     Case: 13-30756   Document: 00512589225     Page: 1   Date Filed: 04/08/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                 No. 13-30756                        April 8, 2014
                                                                   Lyle W. Cayce
BRAND COUPON NETWORK, L.L.C.,                                           Clerk


                                           Plaintiff-Appellant
v.

CATALINA MARKETING CORPORATION; PAMELA SAMNIEGO; JOE
HENSON; L. DICK BUELL,

                                           Defendants-Appellees




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
      Plaintiff-Appellant Brand Coupon Network, L.L.C. (“BCN”) appeals the
district court’s dismissal of its claims pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. BCN sued Defendants-Appellees Catalina Marketing
Corp. (“Catalina”) and three of its individual officers or employees, Pamela
Samniego, Joe Henson, and L. Dick Buell (collectively, “Defendants”), alleging
deceptive trade practices, trademark violations, and related fraud and tort
claims, all stemming from Defendants’ creation of CouponNetwork.com, a
website and business “remarkably similar” to BCN’s existing business,
BrandCouponNetwork.com. The district court ruled that BCN failed to state
a claim for trade secret violation and dismissed the remaining claims as time
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                                  No. 13-30756
barred, basing its conclusion on use of the word “immediately” in BCN’s
petition to describe its attempt to contact Defendants following their entry into
the Internet coupon market. We affirm in part, vacate in part, and remand.
                       I. FACTS AND PROCEEDINGS
        In July 2011, BCN filed a petition for damages and injunctive relief in
state court alleging that it has sold printable coupons and other “coupon
technology” over the Internet since 2004, and that Daniel Abraham, BCN’s
founder and CEO, had contact with Defendants while serving on the board of
the Association of Coupon Professionals (“ACP”). BCN alleged that, during an
ACP conference on April 27, 2010, Abraham discussed with Defendants
Samniego and Henson “confidential information relative to the internet coupon
industry and [BCN’s] strategies and business plans.” At the time, Defendants
“were engaged only in the print coupon business.” BCN also alleged that,
around the same time as the ACP conference, or shortly thereafter, Defendants
“entered the internet coupon business . . . under the remarkably similar name”
of CouponNetwork.com (compare BrandCouponNetwork.com).
        The parties dispute whether BCN became aware of Defendants’ entry
into the market as early as April or May of 2010, or only later, in the fall of
2010.    The parties further dispute whether BCN sustained the business
injuries it alleges beginning that April or not until the fall of that year. The
record includes a letter Abraham sent to Defendants in December 2010 seeking
to discuss “collaborative options to avoid any confusion in the market place
arising from Catalina’s adoption of a brand name that is confusingly similar to
ours.” The record also includes Abraham’s December email resignation from
the board of ACP, citing his having “recently discovered” that Defendants had
acquired Invenda, BCN’s rival, and begun an online marketing program called
CouponNetwork.com. The record contains Abraham’s affidavit stating that
“[p]rior to October of 2010, I had no knowledge that defendants had engaged
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                                     No. 13-30756
in the . . . actions complained of in the Petition for Damages and/or that their
practices were detrimental to [BCN].” Finally, Abraham averred that the
December 2010 letter was his first successful contact with Defendants after
learning of their actions in October 2010, stating that they had failed to
respond to his several phone calls placed between October and December.
      BCN’s petition recites seven causes of action: (1) detrimental reliance;
(2) unjust enrichment; (3) unfair trade practices; (4) trade secret violation; (5)
trademark infringement; (6) breach of the duty of good faith and fair dealing;
and (7) tortious conduct in violation of Article 2315 of the Louisiana Civil
Code. 1 Defendants removed the case to the Middle District of Louisiana,
asserting jurisdiction based on diversity of citizenship. Defendants then filed
a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, insisting that BCN’s claims were facially prescribed or perempted
because its petition was not filed until July 2011, more than a year after BCN
knew or should have known of the Defendants’ entry into the market in or
about April 2010. Defendants also urged that BCN had failed to state claims
against the individual defendants in their personal capacities.                     BCN’s
opposition to the motion to dismiss asserted that the injury did not occur until
the fall of 2010; it included as attachments (1) Abraham’s affidavit, (2)
Abraham’s December 2010 letter, and (3) Abraham’s emailed resignation from
the board of ACP.
      The district court granted the dismissal motion, holding that the
applicable prescriptive and peremptive periods began to run in April 2010
when Defendants entered the Internet coupon market. The district court
based this conclusion on its reading of BCN’s petition, which the court


             1The district court dismissed BCN’s trade secret claim as insufficiently
      pleaded, and BCN does not challenge this ruling on appeal.

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understood to indicate that BCN became aware of the injury at that time. 2 The
district court also dismissed BCN’s claims against the individual defendants,
holding that BCN’s allegations of a “personal duty” owed by those defendants
were conclusional and that they acted solely within their roles as agents and
employees of Catalina.
      The district court entered final judgment on September 10, 2012,
dismissing BCN’s claims. On October 9, 2012, BCN filed a motion seeking to
amend the judgment pursuant to Rule 59(e), and on November 13, 2012, filed
a motion for leave to file an amended complaint. The district court denied both
motions on June 18, 2013, and this timely appeal followed.


                          II. STANDARD OF REVIEW
      We review a district court’s dismissal under Rule 12(b)(6) de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” 3 Rule 8 does not require “detailed factual
allegations, but it demands more than an unadorned, the-defendant-




             2 The full text of the critical paragraph of BCN’s petition reads as
      follows, with original punctuation:

                    Thereafter, on or about April 2010, Catalina who had
             previously been engaged only in the print coupon business,
             suddenly entered the internet coupon business and did so under
             the remarkably similar name of Coupon Network.com (Compare
             Brand Coupon Network.com) Abraham immediately attempted
             to reach and was subsequently forced to write to Catalina’s
             president and CEO Mr. Richard Buell demanding that Catalina
             cease and desist from further use of the nearly identical and
             overtly confusing name Coupon Network.com. Buell and/or
             Catalina refused.

             3Morris v. Livingston, 739 F.3d 740, 745 (5th Cir. 2014) (quoting
      Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)).

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                                     No. 13-30756
unlawfully-harmed-me accusation.” 4 A plaintiff’s claim must contain “enough
facts to state a claim to relief that is plausible on its face.” 5 A petition meets
this standard when it contains “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” 6


                                   III. ANALYSIS
A. Timeliness of BCN’s Claims
      BCN does not appear to dispute that its claims are subject to a one-year
limitations period, whether prescriptive or peremptive. 7 Because prescription
begins to run “when a plaintiff obtains actual or constructive knowledge of
facts indicating to a reasonable person that he or she is the victim of a tort,” 8
and because BCN filed its petition in July 2011, the timeliness of its claims
depends on whether it became aware of Defendants’ entry into the market in
April or May 2010, as Defendants argue, or not until October 2010, as BCN
insists.
      On a Rule 12(b)(6) motion, a district court generally “must limit itself to
the contents of the pleadings, including attachments thereto.” 9 The court may
also consider documents attached to either a motion to dismiss or an opposition



              4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
      omitted).
              5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
              6 Iqbal, 556 U.S. at 678.
              7 BCN also concedes that the doctrine of contra non valentem does not

      apply here.
              8 Campo v. Correa, 828 So. 2d 502, 510 (La. 2002).
              9 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.

      2000). Rule 12(d) provides: “If, on a motion under Rule 12(b)(6) or 12(c),
      matters outside the pleadings are presented to and not excluded by the court,
      the motion must be treated as one for summary judgment under Rule 56. All
      parties must be given a reasonable opportunity to present all the material that
      is pertinent to the motion.”
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                                       No. 13-30756
to that motion when the documents are referred to in the pleadings and are
central to a plaintiff’s claims. 10
      When interpreting BCN’s petition, the district court considered exhibits
attached to BCN’s opposition to Defendants’ motion to dismiss, noting in its
order that “Plaintiff’s memorandum in opposition to the present motion
appears to factually augment the complaint timeline.” 11 The district court
further found the evidence to be “largely diminished and defeated by [BCN’s]
own allegations in the original complaint.” Yet the evidence was not a referent
of the petition, nor could it have been: The affidavit was signed on September
12, 2011, a day before BCN filed its opposition to Defendants’ motion to
dismiss, and weeks after the filing of the petition. We conclude that the district
court erred when it considered evidence outside the pleadings—and not
referred to therein—without converting the motion to dismiss into a motion for
summary judgment. Moreover, when viewed in light of the record before us, a
genuine issue of material fact appears to exist, which would preclude summary
judgment. We vacate the district court’s judgment to the extent that, pursuant
to Rule 12(b)(6), it dismissed BCN’s claims as time barred, and remand for
further consistent action.




             10  Collins, 224 F.3d at 498; see Walch v. Adjutant General’s Dep’t of Tex.,
      533 F.3d 289, 293-94 (5th Cir. 2008) (considering exhibits attached to an
      opposition because “[n]o party questions the authenticity of these two
      documents and both were sufficiently referenced in the complaint to permit
      their consideration on a motion to dismiss”); In re Katrina Canal Breaches
      Litig., 495 F.3d 191, 205 (5th Cir. 2007) (“But because the defendants attached
      the contracts to their motions to dismiss, the contracts were referred to in the
      complaints, and the contracts are central to the plaintiffs’ claims, we may
      consider the terms of the contracts in assessing the motions to dismiss.”) (citing
      Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)).
              11 Defendants contend that the district court “hardly considered these

      new allegations,” but thereby implicitly concede that the district court did
      consider the new allegations to some extent. In any event, the district court did
      not explicitly exclude this evidence as improper.
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                                 No. 13-30756
      On remand, the district court must conduct such proceedings as it
determines to be necessary to ascertain whether a triable issue of fact exists
regarding the timeliness of BCN’s claims, possibly including additional
discovery and amended or additional pleadings. In that regard we note that
the district court might have misappreheded BCN’s argument. The court’s
order and reasons summarizes BCN’s contention this way: “[A]lthough Mr.
Abraham knew of the existence of Defendants’ website in April 2010, it was
not until October 2010 that Plaintiff had actual knowledge of any injury,” with
a citation to page 6 of BCN’s opposition memorandum. The cited page does
not, however, contain any statement to the effect that Abraham knew of the
existence of Defendants’ website before October. The district court’s “although”
clause is unsupported, and it mischaracterizes BCN’s proffered timeline.
Similar errors appear in the following paragraph, in the form of two additional
citations to the same page of BCN’s opposition, page 6, for the following
propositions: BCN became aware in April or May of (1) “Coupon Network’s
existence”; and (2) “Defendants’ entrance into the Internet coupon business.”
The district court’s paragraph concludes with the following assertion:
“According to the original petition, Plaintiff had actual knowledge of the
alleged harm following the discovery of the implicated website in April or May
of 2010.” An “id.” citation follows this statement, which indicates yet another
reference to page 6 of BCN’s opposition, but which the district court may have
intended to refer to the petition itself. But, neither document supports the
assertion of the court, which goes on to state:
            [BCN’s discovery] of Coupon Network’s presence in the
      Internet coupon business obviously incited the requisite curiosity
      and inquiry necessary for a showing of constructive notice. Indeed,
      this knowledge was apparently a substantial impetus to compel an
      “immediate” cause for contact with Defendants following the April
      27, 2010 meeting [citation to page 6 of BCN’s opposition
      memorandum].
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                                         No. 13-30756
      The first sentence does not contain an error; BCN would have to agree
that its discovery gave it constructive notice—and, in fact, actual notice—of
claims against Defendants. Rather, the dispute is over when that discovery
took place.        The second sentence misconstrues the evidence presented in
Abraham’s affidavit and its attachments: Not only does the cited opposition
memorandum contain no such statement, but even Defendants do not contend
that BCN contacted them in April. The record does not reflect any contact
between opposing parties between their April 27 meeting at the ACP
conference and BCN’s December 15 letter.                Even Abraham’s reference to
having made telephone calls beginning in October notes that they went
unreturned. Abraham’s affidavit contains his clear statement that he had no
knowledge of Defendants’ actions, and no knowledge of the damage to his
business, before October 2010.


B. Claims against Individual Defendants
      BCN maintains that it properly preserved for appeal a second issue, viz.,
the propriety of the district court’s dismissal of its claims against three of
Catalina’s officers or employees, in their individual capacities, for violations of
the Louisiana Unfair Trade Practices Act (“LUTPA”). 12 Defendants counter
that BCN has failed to preserve this issue for appeal because BCN did not
present it to the district court, only conclusionally stating that the individual
Defendants owed it a personal duty. Defendants also note that, in making this
new argument, BCN cites no authority for the proposition that an individual
corporate officer or employee may be liable under LUTPA for acts taken within
the scope of his employment. Defendants highlight our opinion in Industrias



              12   La. Rev. Stat. § 51:1409(A).

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                                          No. 13-30756
Magromer Cueros y Pieles S.A. v. Louisiana Bayou Furs Inc., in which we noted
that status as an agent protects an individual from LUTPA liability unless the
circumstances support the extraordinary remedy of piercing the corporate
veil. 13
           Defendants correctly note that BCN did not make this contention before
the district court. We have stated repeatedly “that we are a court of errors,
and that a district court cannot have erred as to arguments not presented to
it.” 14 Accordingly, we affirm the district court’s dismissal of the claims against
the individual Defendants, Pamela Samniego, Joe Henson, and L. Dick Buell.


                                      IV. CONCLUSION
           For the foregoing reasons, we vacate the district court’s dismissal of the
following BCN claims as time barred: (1) detrimental reliance; (2) unjust
enrichment; (3) unfair trade practices; (4) trademark infringement; (5) breach
of duty of good faith; and (6) tortious conduct; we affirm the district court’s
dismissal of the individual Defendants Pamela Samniego, Joe Henson, and L.
Dick Buell; and we remand for further proceedings consistent with this
opinion.
           VACATED in part, AFFIRMED in part, and REMANDED.




                  13 Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293
           F.3d 912, 920 (5th Cir. 2002).
                  14 Miller v. Nationwide Life Ins. Co., 391 F.3d 698, 701 (5th Cir. 2004).

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