Timothy Barabe v. Apax Partners Europe Managers , 359 F. App'x 82 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12284 ELEVENTH CIRCUIT
OCTOBER 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 08-00212-CV-JOF-1
TIMOTHY BARABE,
Plaintiff-Appellant,
versus
APAX PARTNERS EUROPE MANAGERS, LTD.,
JOHN SAMUEL, individually,
PAUL FITZSIMMONS, individually,
IAN JONES, individually,
MÖLNLYCKE HEALTHCARE US, LCC, and
ROBERT BENNISON, individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 26, 2009)
Before BIRCH, HULL and COX, Circuit Judges.
PER CURIAM:
Timothy Barabe was an executive employee of Regent Medical Americas, LLC
(“Regent”). In June 2004, he entered into a Service Agreement with Regent. The
Service Agreement is governed by Georgia law and the parties agreed to submit to
the exclusive jurisdiction of Georgia to resolve any litigation related to the Service
Agreement.
In August 2005, Mölnlycke Healthcare US, LLC (“Mölnlycke”) acquired
Regent. Apax Partners Europe Managers, Ltd. (“Apax”) is Mölnlycke’s parent
corporation. During the acquisition, Apax represented that it did not plan to make
any particular Regent employee or group redundant. On August 31, 2005, Barabe
signed a Subscription, Transfer and Investment Agreement (“the Subscription
Agreement”). The Subscription Agreement sets forth the terms under which Barabe
would be able to acquire Mölnlycke stock and the manner in which he would be paid
for his shares in the event of his departure from the company. By its own terms, the
Subscription Agreement is governed by the laws of England, and the parties agreed
to submit to the exclusive jurisdiction of the English courts for any litigation related
to the Subscription Agreement.
In May 2006, Mölnlycke informed Barabe that his position at the company was
redundant and notified him of his termination. As a part of his separation, Barabe
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was forced to sell his shares in Mölnlycke back to the company at a price lower than
market value.
Following his separation, Barabe sued Mölnlycke, Apax, and several
individuals who were Mölynlycke officers and directors. The Amended Complaint
(“the Complaint”), filed in the Northern District of Georgia, presents eight purported
claims for relief. (R.1-2 at 12-23.)
On Defendants’ motions, the district court dismissed each and every claim
pleaded in the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for
failure to state a claim on which relief may be granted. And, Count VI was also
dismissed for improper venue. (R.2-24; R.2-53.) Barabe appeals the dismissals.
We consider de novo the district court’s grant of a motion to dismiss for failure
to state a claim, accepting the allegations in the Complaint as true and construing
them in the light most favorable to the nonmoving party. Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003).
We conclude that the district court’s orders state a proper basis for dismissing
each claim. As the district court recognized, Count I (Disregard of the Corporate
Entity), Count II (Joint Venture), and Count III (Agency Relationship) do not plead
independent causes of action. (R.2-24 at 6 n.1.) Count IV (Breach of Contract
regarding the Service Agreement) was properly dismissed because the Complaint
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alleges no breach of the Service Agreement other than a breach of the covenant of
good faith and fair dealing. And, the Complaint predicates the alleged breach of the
covenant of good faith and fair dealing on an alleged breach of the Subscription
Agreement, a contract that did not exist at the time the Subscription Agreement was
executed. (R.2-24 at 7.) Count V (Common Law Fraud) was properly dismissed
because the Complaint does not plead fraud with particularity and, under the facts as
alleged in the Complaint, Plaintiff could not plead reliance because he signed the
Service Agreement before the allegedly false representations were made. (R.2-24 at
9.) Count VI (Breach of Contract regarding the Subscription Agreement) was
properly dismissed for improper venue because litigation regarding the Subscription
Agreement must be brought in the courts of England. (R.2-24 at 10.) Count VII
(Violation of 18 U.S.C. § 1961, the Federal Racketeering Act) was properly dismissed
as the Complaint does not plead facts to support its allegation that Defendants were
engaged in an enterprise to commit racketeering activity. (R.2-24 at 12.) The
Complaint provides no facts regarding false statements or documents made as part of
an enterprise of racketeering activity. (Id.) And, Count VIII (Racial Discrimination
in violation of 42 U.S.C. §1981) does not adequately plead facts that suggest
intentional racial discrimination. (R.2-24 at 12-13.)
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For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
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