United States District Court, N.D. Oklahoma
JACOB JACKSON, KASEY JACKSON, DERIL LEES, ROBBIN LEES, ALYSSA SANDERS, DEREK SANDERS, and DERIL LEES, J.R., Plaintiffs,
GREERWALKER, LLP, POLSINELLI, P.C., and BUTCHER JOSEPH & CO., LLC, Defendants.
OPINION AND ORDER
V. EAGAN O LIMITED STATES DISTRICT JUDGE.
before the Court are motions to dismiss plaintiffs'
complaint (Dkt. # 2) filed by all defendants: GreerWalker,
LLP (GreerWalker) (Dkt. # 24); Butcher Joseph & Co., LLC
(Butcher Joseph) (Dkt. # 27); and Polsinelli, P.C.
(Polsinelli) (Dkt. # 29).
times pertinent to this action, plaintiffs were employees and
shareholders of Freedom Pharmaceuticals, Inc. (Freedom), an S
corporation incorporated in the State of Oklahoma.
Id. at 1. GreerWalker is a North Carolina accounting
firm; Polsinelli is a Missouri law firm; and Butcher Joseph
is a Missouri investment banking firm. Id. at 1-2.
their complaint, plaintiffs allege the following: in early
2013, Butcher Joseph “was retained” as an
investment banker after plaintiffs “had been approached
to sell Freedom” (the transaction). Id. at 2.
Shortly thereafter, Polsinelli “was retained in
connection with the transaction, ” and attorneys in its
tax department, prior to the transaction, created a
spreadsheet that included sections entitled “Tax
Analysis” and “Net Shareholder After Tax Detail,
” as well as a line item labeled “less Total Tax
early March 2013, at Butcher Joseph's
“recommendation, ” GreerWalker “was engaged
. . . connection [sic] with” the transaction.
Id. at 3. That month, “after GreerWalker had
already been retained, [Butcher Joseph] recommended that
GreerWalker be tasked with performing a ‘tax
analysis' of the potential stock sale transaction
‘so that we can fine tune results to each
individual.' [Butcher Joseph] stated that [it] would
involve and task GreerWalker as indicated, unless someone
disagreed; no one expressed disagreement.” Id.
April 17, 2013, “a closing occurred whereby
Freedom's shareholders sold their stock to a third party
pursuant to stock purchase agreements.” Id.
GreerWalker, Butcher Joseph, and Polsinelli were aware of the
closing date. Id. After the closing, GreerWalker
provided tax advice to plaintiffs concerning the tax
treatment and consequences associated with their stock sale,
including capital gains treatment in Oklahoma. Id.
about December 15, 2014, the Oklahoma Tax Commission (OTC)
issued written notices to the plaintiffs. Id. The
notices stated that plaintiffs owed additional tax to the
State of Oklahoma for the tax year 2012 in amounts
significantly in excess of $75, 000, together with monetary
penalties and interest. Id. The notices reflect the
OTC's decision to disallow the capital gains treatment
and deduction, related to their sale of Freedom stock, that
plaintiffs included in their 2013 Oklahoma income tax
returns. Id. at 4. The OTC notified plaintiffs that,
to be eligible for capital gains treatment and deduction,
plaintiffs must have sold an ownership interest in an
Oklahoma company that had been headquartered in the state for
three or more years. Id. Freedom was incorporated
and headquartered in Oklahoma, but the date of the
closing-i.e., April 17, 2013-occurred before the
third anniversary of its incorporation-i.e., May 28,
2013. Id. Plaintiffs administratively protested
OTC's assessment of the additional taxes. Id. In
November 2015, pursuant to a taxpayer amnesty program,
plaintiffs paid the additional tax amounts assessed and, in
exchange, avoided the monetary penalties and interest.
7, 2017, plaintiffs filed their complaint in this case, Dkt.
# 2,  which alleges: professional negligence
against GreerWalker (count one), Polsinelli (count two), and
Butcher Joseph (count three); breach of contract against
GreerWalker (count four), Polsinelli (count five), and
Butcher Joseph (count six); breach of fiduciary duty against
all defendants (count seven); and aiding and abetting breach
of fiduciary duty against all defendants (count eight).
Id. at 4-9.
Butcher Joseph, and Polsinelli move to dismiss
plaintiffs' complaint (Dkts. ## 24, 27, 29).
Standard of Review
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must determine whether the
claimant has stated a claim upon which relief may be granted.
A motion to dismiss is properly granted when a complaint
provides no “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). A complaint must contain enough
“facts to state a claim to relief that is plausible on
its face” and the factual allegations “must be
enough to raise a right to relief above the speculative
level.” Id. (citations omitted). “Once a
claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in
the complaint.” Id. at 562. Although decided
within an antitrust context, Twombly
“expounded the pleading standard for all civil
actions.” Ashcroft v. Iqbal, 556 U.S. 662, 683
(2009). For the purpose of making the dismissal
determination, a court must accept all the well-pleaded
allegations of the complaint as true, even if doubtful in
fact, and must construe the allegations in the light most
favorable to a claimant. Twombly, 550 U.S. at 555;
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007); Moffett v. Halliburton Energy Servs.,
Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). A court need
not accept as true, however, allegations that are conclusory
in nature. Erikson v. Pawnee Cnty. Bd. of Cnty.
Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001).
GreerWalker's Motion to Dismiss
argues that plaintiffs' complaint must be dismissed
because it fails to state a claim. Dkt. # 25, at
plaintiffs' claim for professional negligence (count
one), GreerWalker argues that plaintiffs fail to allege any
facts to establish the existence of an accountant-client
relationship giving rise to any duty by GreerWalker to
provide plaintiffs with tax analysis, advice, or planning in
connection with the transaction. Id. at 20.
Plaintiffs respond that ...