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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MASCOT BUILDING SERVICES INC.,

Plaintiff,

v.

IOWA CONCRETE LLC, et al.,

Defendants.

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Civil Action No. 3:22-cv-01755-M

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion to Dismiss, filed by Defendants Iowa Concrete, LLC and 

Millis Transfer, LLC. ECF No. 7. For the following reasons, the Motion is GRANTED. 

I. Factual and Procedural Background

On June 29, 2022, Plaintiff Mascot Building Services, d/b/a JW Mechanical & Industrial 

Services, filed suit against Defendants Iowa Concrete, LLC and Millis Transfer, LLC, in Johnson 

County, Texas. Plaintiff asserts claims of breach of contract, quantum meruit, foreclosure on a 

mechanic’s lien, and attorneys’ fees, arising from Defendants’ alleged failure to compensate 

Plaintiff for installing new HVAC systems. ECF No. 1-3 (“Petition”) at 3–4. Specifically, 

Plaintiff alleges that, pursuant to a contractual arrangement, it worked as a subcontractor of Iowa 

Concrete from September through November 2021. Id. at 2. Plaintiff alleges that it fulfilled its 

contractual obligation to Iowa Concrete by “providing and performing all labor, materials, tools, 

supervision and equipment necessary to provide and install new HVAC systems,” which the 

Petition defines as “the Work” for the property located at 3501 South I-35 W, Burleson, Texas 

76028 (“the Project”). Id. Plaintiff alleges that Iowa Concrete has failed and refused to pay 

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Plaintiff for the Work, and Plaintiff is owed $100,294.89. Plaintiff further alleges that on April 

20, 2022, it filed and served on Defendants a First Tier Subcontractor’s Affidavit of Claim for 

Mechanic’s Lien in the amount of $76,967,89, in connection with the Work for Defendants. Id. 

at 2. The Affidavit attached to the Petition identifies Defendant Millis Transfer as the owner of 

the property at 3501 South I-35 W in Burleson.

On August 11, 2022, Defendants removed the case to this Court, and now seek dismissal 

under Federal Rule of Civil Procedure 12(b)(6). ECF No. 7. 

II. Legal Standard

A pleading must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard does not require 

“detailed factual allegations,” but it demands more than an unadorned accusation devoid of 

factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint must contain 

sufficient factual matter to state a claim for relief that is plausible on its face. Twombly, 550 U.S. 

at 570. The Court must accept all of the plaintiff’s factual allegations as true, but it is not bound 

to accept as true “a legal conclusion couched as a factual allegation.” Id. at 555. Where the 

factual allegations do not permit the Court to infer more than the mere possibility of misconduct, 

the complaint has stopped short of showing that the pleader is plausibly entitled to relief. Iqbal, 

556 U.S. at 678.

III. Analysis

Defendants move to dismiss all of Plaintiff’s claims, contending that Plaintiff has failed 

to plausibly state a claim for relief under Federal Rule of Civil Procedure 12(b)(6).

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i. Breach of Contract and Mechanic’s Lien Claims

Defendants argue that Plaintiff’s breach of contract and mechanic’s lien claims are 

deficient because Plaintiff has failed to plead sufficient facts as to the existence of a contract. 

The Court agrees. 

Both a breach of contract and foreclosure of a mechanic’s lien claim are premised on the 

existence of a contract. Under Texas law, to successfully plead a breach of contract claim, 

Plaintiff must allege that: (1) there was a valid contract; (2) Plaintiff performed; (3) the 

Defendant breached duties under the contract; and (4) Plaintiff suffered damages as a result of 

the Defendant’s breach. Williams v. Wells Fargo Bank, N.A., 884 F.3d 239, 244 (5th Cir. 2018). 

In addition, to successfully establish the right to foreclose on a mechanic’s lien, the Plaintiff 

must first establish the right to the lien itself. See, e.g., Gibson v. Bostick Roofing & Sheet Metal 

Co., 148 S.W.3d 482, 493 (Tex. App.—El Paso 2004, no pet.) (“In any foreclosure suit, the 

plaintiff must establish the existence of a valid obligation owing to him by the defendant because 

foreclosure is merely a method of assuring payment of the plaintiff's claim.”). “Whether the lien 

be created by statute, or directly by the constitution, ownership of the property and a contract 

binding upon the owner are indispensable.” Id. (quoting Blesoe v. Colbert, 120 S.W.2d 909, 910 

(Tex. App.—Eastland 1938, no writ); see also Tex. Prop. Code. § 53.021 (one is entitled to a 

statutory mechanic’s lien “if the person, under a contract with the owner or the owner’s agent, 

trustee, receiver, contractor, or subcontractor, . . . labors or furnishes labor or materials for 

construction or repair of an improvement” (emphasis added)).

Here, Plaintiff’s Petition does not plausibly allege the existence of a contract, nor does 

Plaintiff attach any contract to the Petition. Although the Petition alleges that Plaintiff provided 

work “as a subcontractor” and that Iowa Concrete’s failure to pay “for the Work as agreed 

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constitutes a breach of contract,” nowhere does the Petition allege the existence of a valid, 

enforceable contract between Plaintiff and either Defendant. See generally Petition. For 

instance, the Petition does not describe the terms of the alleged agreement between Plaintiff and 

Defendants, or the duties Plaintiff agreed to perform and the payment it would receive in 

exchange. Nor does the Petition specify whether the alleged contract is between Plaintiff and

both Defendants, or with Iowa Concrete alone, or whether the contract is express or implied. Put 

simply, the Petition contains no factual allegations from which Plaintiff’s claims of breach of 

contract can be fairly evaluated. Without more specificity regarding the alleged contractual 

arrangement, there is no way to evaluate Defendants’ alleged duties, how those duties may have 

been breached, and whether Plaintiff’s alleged damages resulted from that breach. 

Accordingly, because Plaintiff has failed to allege the existence of a valid, enforceable 

contract or entitlement to a mechanic’s lien pursuant to a contract, Plaintiff has failed to state a 

claim for breach of contract and foreclosure of mechanic’s lien. 

ii. Quantum Meruit

Plaintiff asserts a claim for quantum meruit against both Defendants. The elements of an 

action for quantum meruit are the following: (1) the Plaintiff provided valuable services or 

materials; (2) the services or materials were provided for the Defendant; (3) the Defendant 

accepted the services or materials; (4) the Defendant had reasonable notice that the Plaintiff 

expected compensation for the services or materials. See Hill v. Shamoun & Norman, LLP, 544 

S.W.3d 724, 732–33 (Tex. 2018).

Plaintiff alleges in the Petition that is entitled to recover under a theory of quantum 

meruit for “services rendered, labor performed and materials furnished to improve the Project 

which Defendants accepted and used and enjoyed with actual or constructive knowledge that 

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Plaintiff expected Defendants to pay therefor.” Petition at 3. The Court notes that, as pleaded in 

the Petition, Plaintiff’s claim for quantum meruit amounts to little more than a bare recitation of 

the claim elements, and thus lacks sufficient factual allegations from which one can assess the 

plausibility of the claim. For instance, other than being identified as the owner of the Property in 

the Mechanic’s Lien Affidavit attached to Plaintiff’s Petition, the Petition never explains the 

relationship of Millis Transfer with Plaintiff and Iowa Concrete, let alone plausibly allege that 

Millis Transfer accepted Plaintiff’s alleged improvements to the Project or knew Plaintiff 

expected to be paid for them. 

b. Attorneys’ Fees

Defendant moves to dismiss Plaintiff’s claim for attorneys’ fees on the grounds that a 

request for fees is not an independent cause of action. The Court agrees. See Redd v. Lambert, 

674 F.2d 1032, 1035 (5th Cir. 1982) (requests for attorney’s fees are “collateral to the main 

cause of action”). To the extent Plaintiff asserts a claim for the recovery of attorneys’ fees as an 

independent cause of action, it is DISMISSED. Plaintiff may seek attorneys’ fees in connection 

with a claim where the law allows for such recovery.

IV. Conclusion

For the reasons stated above, Defendants’ Motion to Dismiss is GRANTED. Plaintiff has 

leave to file an amended complaint, addressing the deficiencies described herein, within twentyone days of the date of this Order.

SO ORDERED.

December 9, 2022.

BARBARA M. G. LYNN

UNITED STATES DISTRICT JUDGE

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