Ralls Corp. v. Huerfano River Wind, LLC (27 F. Supp. 3d 1303, 2014)

United States District Court for the Northern District of Georgia 2014-06-27

Citations

Full opinion text

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

Before the Court are two motions to dismiss: a motion to dismiss for lack of personal jurisdiction brought by Defendants U.S. Innovative Renewable Energy, LLC (USIRE), Xiaolin “Jerry” Zhang and Lu “Lucy” Zhang [29]; and a motion to dismiss for failure to state a claim on each of the nine counts in Plaintiff Ralls Corporation’s amended complaint brought by USIRE and the Zhang’s [29] and Defendant Huerfano River Wind, LLC (HRW) [30],

I. Background

In October 2012, Ralls began negotiations with Jerry Zhang and USIRE, a Delaware limited liability company of which Zhang is the sole member, about constructing a wind farm in Huerfano County, Colorado. Ralls and its senior executives knew and had done business with Zhang, in the past. Over the next five months, Zhang and his wife Lucy negotiated the terms of the deal. In doing so, they made several trips to Georgia. They also communicated with Ralls’s representatives or attorneys in Georgia; specifically, Jerry Zhang placed or participated in at least eight telephone calls, and both Jerry and Lucy Zhang sent a number of emails. The deal closed on March 22, 2013.

As part of this deal, USIRE purchased HRW, a Colorado limited liability company. Ralls and HRW then entered into a series of related transactions memorialized in integrated agreements. This action centers around the alleged breach of two of those agreements.

The first is a loan and security interest agreement in which Ralls loaned HRW just over $13.4 million. This loan was to cover the cost of (1) acquiring the wind farm ($1.1 million), (2) purchasing four wind-turbine generators ($8.8 million), and (3) constructing the wind farm ($3.5 million, with the possibility of upward adjustment). In return, HRW granted Ralls a security interest in the turbines to secure its obligations under the loan documents.

The second is a secured promissory note that HRW executed in favor of Ralls. HRW can derive revenue from two different sources: a power purchase agreement that it entered into with a local electric cooperative, San Isabel Electric Association, Inc., and investment and production tax credits. The repayment terms in the note vary by source.

According to the loan agreement, an event of default occurs if HRW fails to perform any of its obligations under any of the loan documents. If an event of default remains uncured, Ralls has the right to accelerate the loan, rendering the entire debt immediately due and payable. And once accelerated, Ralls is entitled to exercise any right or remedy under the loan documents.

For present purposes, the following obligations under the loan documents are relevant.

First, paragraph 5 of the note provides that “the Acquisition Cost shall become immediately due and fully payable” to Ralls on “the date on which the actual amount of the Construction Cost has exceeded [$2,419,169]” — the trigger amount.

Second, section 1.7 of the loan agreement provides that “the date that the actual amount of the Construction Cost has exceeded [$2,419,169]” — the trigger amount — “such excess amount, as incurred, shall be immediately due and payable to [Ralls] by [HRW].”

Third, section 1.4 of the loan agreement provides for the opening of a “mutually designated” account into which any proceeds from the sale of electricity to San Isabel are to be deposited. The sole purpose of this account, according to that section, is to facilitate the calculation of the net cash flow (defined in paragraph 4 of the note) and the repayment of the loan under the terms of the note.

Section 1.4 also provides that

(x) any single payment in the amount in excess of $5,000 or (y) any payment that shall make the total payments in a calendar month to exceed $10,000, in either case to be made out of such mutually designated account to any third party, shall be made only upon the written approval of [Ralls].

Finally, paragraph 2 of the note provides that the loan is to be repaid quarterly from the revenue generated from the sale of electricity to San Isabel. Specifically, the quarterly payments must be ninety-five percent of the “Net Cash Flow,” which is defined in paragraph 4 of the note as

the payments received by [HRW] from any of its customers, including any utility cohipany, in consideration for the electricity purchased from [HRW] minus (x) any amount paid by [HRW7] for the maintenance services on the turbines and other equipment of [HRW] minus (y) any other statutory or mandatory payment made by [HRW7], including tax payments....

Ralls alleges that HRW has breached several of its obligations under the loan documents and thus is in default and liable for the entire balance of the loan.

First, in a letter dated August 26, 2013, Ralls notified HRW that the actual construction costs had exceeded the trigger amount and demanded payment of the full amount of the acquisition cost under paragraph 5 of the note. HRW has not made this payment.

Second, in a letter dated February 14, 2014, Ralls notified HRW that the actual construction costs had exceeded the trigger amount — enclosing a letter from the wind farm’s contractor confirming that Ralls had incurred and paid $2,875,833 in construction costs. Under section 1.7 of the loan agreement, Ralls demanded that HRW make an immediate payment of $456,664, the amount by which the actual construction costs exceed the trigger amount. HRW has yet to make this payment.

Third, Ralls alleges that “HRW has refused to open and administer an account mutually designated by Ralls and HRW.” Ralls notified HRW that this violated section 1.4 of the loan agreement in a letter dated November 26, 2013.

Last, Ralls avers that HRW has used the San Isabel revenue for purposes other than repaying the loan. To support this allegation, Ralls relies on HRW’s 2013 profit-and-loss statement (received in late January 2014). In Ralls’s view, the profit- and-loss statement “reflects several hundred thousands of dollars of purported expenses that were neither permissible under the definition of ‘Net Cash Flow” set forth in the Note, nor were they incurred and paid in compliance with Section 1.4- of the Loan Agreement.”

Ralls alleges that the following expenses listed in the profit-and-loss statement, among others, cannot be deducted when determining the net cash flow:

(1) $125,000 for payroll. HRW entered into an undated executive employment agreement with Lucy Zhang under which she receives a monthly base salary of $12,500 effective March 2013;

(2) $155,000 for professional fees (other). Based on an invoice from USIRE seeking an asset management fee equal to three percent of the appraised value of HRW ($15.5 million) prorated for the September to December 2013 period; and

(3) $139,430 for legal fees.

Ralls also alleges that the profit-and-loss statement shows that HRW has entered into agreements that impair its ability to meet its obligations as they come due and thus has failed to keep its representation to avoid incurring such obligations and to possess sufficient capital to operate. Finally, Ralls alleges that the profit-and-loss statement demonstrates Jerry Zhang’s self-dealing and shows that he has not respected the corporate form of HRW and USIRE.

Accordingly, Ralls brings the following causes of action against Defendants:

Count one: breach of contract against HRW;

Count two: breach of the implied duty of good faith and fair dealing against HRW;

Count three: conversion against all Defendants;

Count four: alter-ego liability against USIRE and Jerry Zhang;

Count five: unjust enrichment against Lucy Zhang;

Count six: request for prejudgment attachment against all Defendants;

Count seven: equitable accounting against all Defendants;

Count eight: fraudulent transfers against USIRE and Lucy Zhang; and Count nine: civil conspiracy against Jerry and Lucy Zhang.

In addition to these causes of action, Ralls seeks attorney’s fees in connection with its breach-of-contract claim and punitive damages in connection with its claims for conversion and civil conspiracy.

Defendants have moved to dismiss for failure to state a claim each count in Ralls’s amended complaint along with Ralls’s claims for punitive damages and attorney’s fees. Additionally, USIRE and the Zhangs have moved to dismiss for lack of personal jurisdiction.

The Court will first consider USIRE and the Zhangs’ jurisdictional challenge. See Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 940 (11th Cir.1997) (“As a general rule, courts should address issues relating to personal jurisdiction before reaching the merits of a plaintiffs claims.”).

II. Personal Jurisdiction over USIRE and the Zhangs

The adjudicatory authority of a federal court is often coextensive with that of the forum state. See Daimler AG v. Bauman, - U.S. -, 134 S.Ct. 746, 753, 187 L.Ed.2d 624 (2014). This is because in most federal cases personal jurisdiction is “linked to service of process on a defendant Vho is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.’ ” Walden v. Fiore, — U.S.-, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) (quoting Fed. R.Civ.P. 4(k)(l)(A)). In this respect, this case is typical. Thus, the Court’s adjudicatory authority over USIRE and the Zhangs is coextensive with that of a Georgia Superior Court.

The Due Process Clause of the Fourteenth Amendment protects a nonresident’s “liberty interest” in not being bound to a judgment in Georgia without first establishing meaningful “contacts, ties, or relations” with the state. PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 811 (11th Cir.2010) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) (internal quotation marks omitted). The hallmark of this protection is “fair warning.” Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir.2010) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). That is, Georgia courts cannot exercise personal jurisdiction over a nonresident unless “the defendant’s conduct and connection with [Georgia] are such that he should reasonably anticipate being haled into court there.” Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). And while Georgia’s adjudicatory authority is no longer tied to a nonresident’s physical presence within its territorial border, personal jurisdiction still generally depends on whether a nonresident has established “certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Walden, 134 S.Ct. at 1121 (quoting Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940))) (internal quotation marks omitted).

There are two kinds of personal jurisdiction: general and specific. Daimler AG, 134 S.Ct. at 754. General jurisdiction exists when the nonresident’s “affiliations with the State are so ‘continuous and systematic’ as to render [the nonresident] essentially at home in the forum State,” thereby permitting a judgment on any claim. Id. (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S. -, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)) (internal quotation mark omitted). Specific jurisdiction, on the other hand, “aris[es] out of or relate[s] to the defendant’s contacts with the forum.” Id. (alterations in original) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). This case involves only specific jurisdiction.

A. Motions to Dismiss for Lack of Personal Jurisdiction

A plaintiff in federal court must allege sufficient facts in the complaint to make out a prima facie case of personal jurisdiction over a nonresident defendant. Diamond Crystal, 593 F.3d at 1257. When, as here, no evidentiary hearing is held on a motion- to dismiss for lack of personal jurisdiction, a prima facie case exists where the plaintiff presents enough evidence to survive a motion for judgment as a matter of law. Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir.2000). And unless the nonresident defendant introduces evidence that contradicts the plaintiffs jurisdictional allegations, all allegations in the complaint are accepted as true, and all reasonable inferences are drawn in the plaintiffs favor. Id. Here, USIRE and the Zhangs have not introduced any contradictory jurisdictional evidence, so the sole source of jurisdictional facts is Ralls’s amended complaint.

For federal courts sitting in diversity, the specific-jurisdiction inquiry is a two-step process. First, they ask whether exercising jurisdiction is appropriate under the forum state’s long-arm statute; and if so, they consider whether exercising jurisdiction would violate due process. Diamond Crystal, 593 F.3d at 1257-58. Because Georgia has not extended the state’s long-arm statute to the limits of due process, each step of the inquiry is distinct. See id. at 1259 (construing Innovative Clinical & Consulting Servs., LLC v. First Nat’l Bank of Ames, 279 Ga. 672, 620 S.E.2d 352 (2005)).

1. Step One: Georgia’s Long-Arm Statute

Georgia’s long-arm statute reaches only those nonresidents whose conduct brings them within the ambit of at least one of the statute’s six subsections. O.C.G.A. § 9-10-91. And each subsection is construed literally. Innovative Clinical, 620 S.E.2d at 353. Like most states, Georgia permits its courts to exercise personal jurisdiction over nonresidents who “[transact any business within the State” so long as the cause of action “arises out of’ these transactions. § 9-10-91(1); 4a Charles Alan Weight, Et Al., Federal Practice and Procedure § 1069.3 (3d ed.2002). Here, Ralls’s allegations implicate only this subsection.

The Georgia Supreme Court recently reiterated that the long-arm statute “grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in [Georgia].” Amerireach.com, LLC v. Walker, 290 Ga. 261, 719 S.E.2d 489, 494 (2011) (quoting Innovative Clinical, 620 S.E.2d at 355). Importantly, transacting business does not require physical presence in Georgia. Diamond Crystal, 593 F.3d at 1264 (citing Innovative Clinical). Courts thus consider both a nonresident’s tangible and intangible conduct, such as “mail, telephone calls, and other ‘intangible’ acts” — even if they occurred outside of Georgia — to determine “whether it can fairly be said that the nonresident has transacted any business within Georgia.” Id.; see also id. at 1264 n. 18 (finding “instructive the literal definition of the words in the statute” and providing the definitions of transact, any and business from Webster’s Third New International DiCtionary (1993)); Lima Delta Co. v. Global Aerospace, Inc., 325 Ga.App. 76, 752 S.E.2d 135, 139-40 (2013) (noting that post-innovative Clinical long-arm jurisdiction may be “based on business conducted by the defendant or its agent ‘through postal, telephonic, and Internet contacts’ ” (quoting ATCO Sign & Lighting Co. v. Stamm Mfg. Inc., 298 Ga.App. 528, 680 S.E.2d 571, 576 (2009))).

In its amended complaint, Ralls alleges that Jerry Zhang (as a representative of USIRE) and Lucy Zhang made several trips to Georgia to negotiate the terms of the wind-farm deal. USIRE and the Zhangs contend that these allegations do not establish a prima facie case under the Georgia long-arm statute. At bottom, their argument rests on the so-called fiduciary-shield doctrine: “that [they] cannot be subject to personal jurisdiction in Georgia courts based solely upon acts taken in [their] capacity as a corporate officer.” Amerireach.com, 719 S.E.2d at 493. Their argument fails.

In Amerireach.com, the Georgia Supreme Court explained that nothing in the long-arm statute indicates that the General Assembly intended to shield agents or fiduciaries acting on a corporation’s behalf from the adjudicatory authority of the state’s courts. Id. The court then held that the fiduciary-shield doctrine is inconsistent with Georgia law. Id. at 493-96. USIRE and the Zhangs thus find no protection behind this doctrine. And just as importantly, one well-recognized way for nonresidents to transact business under Georgia law is to negotiate the terms of an agreement within the state. E.g., Genesis Research Inst., Inc. v. Roxbury Press, Inc., 247 Ga.App. 744, 542 S.E.2d 637, 639 (2000). Thus, by alleging that part of the wind-farm negotiations occurred in Georgia, Ralls’s amended complaint sufficiently alleges that USIRE and the Zhangs’ conduct constitutes transacting business under the long-arm statute.

That USIRE and the Zhangs transacted business within Georgia does not end the long-arm inquiry. After all, that “statute permits jurisdiction where a plaintiffs cause of action ‘arises out of a nonresident defendant’s ‘transaction] of any business within [Georgia].’ ” Diamond Crystal, 593 F.3d at 1264 (alterations in original) (emphasis added) (quoting O.C.G.A. § 9-10-91(1)). In other words, this statute “requires that the cause of action arise from the act of transacting business in Georgia.” Smith v. Air Ambulance Network, Inc., 207 Ga.App. 75, 427 S.E.2d 305, 306 (1993). The long-arm inquiry thus poses a second question: does at least one of Ralls’s causes of action against USIRE and the Zhangs arise out of the business that they transacted in Georgia?

How .to answer this question under Georgia law rather than the Fourteenth Amendment is not obvious, however. This is because “Georgia’s appellate courts have developed[, and the Georgia Supreme Court seems to support,] a three-part test to determine whether a defendant has transacted business in Georgia so as to subject itself to the personal jurisdiction of the State’s courts.” Lima Delta, 752 S.E.2d at 139. Under this test,

Jurisdiction exists on the basis of transacting business in this [S]tate (1) if the nonresident defendant has purposefully done some act or consummated some transaction in this [S]tate, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this [S]tate does not offend traditional notions of fairness and substantial justice.

Id. (alterations in original) (quoting Aero Toy Store, LLC v. Grieves, 279 Ga.App. 515, 631 S.E.2d 734, 737 (2006)); see also Amerireach.com, 719 S.E.2d at 496 (quoting Aero Toy Store).

According to these courts, parts one and two ensure that a nonresident has sufficient minimum contacts with Georgia to permit the exercise of personal jurisdiction. Lima Delta, 752 S.E.2d at 139; see also Amerireach.com, 719 S.E.2d at 496 (holding that the plaintiffs allegations regarding the in-state activities of nonresident fiduciaries of a limited liability company satisfied the minimum-contacts test because “[t]hese allegations support a finding that the individual defendants were primary participants in [the company’s] transaction of business within this state [and] that the cause of action arises from or is connected with such act or transaction” (quoting Aero Toy Store, 631 S.E.2d at 737) (all internal punctuation omitted)). And part three ensures that exercising personal jurisdiction is reasonable. Lima Delta, 752 S.E.2d at 139.

Simply put, Georgia’s courts have incor'porated the due-process inquiry into the three-part test for determining whether personal jurisdiction lies under subsection (1) of the long-arm statute. To illustrate, consider part one, which requires the nonresident defendant to have “purposefully done some act or consummated some transaction” in Georgia. Id. (emphasis added). Purposeful conduct, however, is not necessary under the literal construction of subsection (1). On the contrary, this provision “grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State.” Innovative Clinical, 620 S.E.2d at 355 (emphasis added).

Of course, as the Georgia Supreme Court recognized, exercising personal jurisdiction whenever this requirement was met would extend Georgia’s adjudicatory authority beyond the bounds set by the Fourteenth Amendment. To avoid this result, the supreme court held that “subsection (1) ... reach[es] only ‘to the maximum extent permitted by procedural due process.’ ” Id. (quoting Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399, 401 (1973)). This explains the “purposeful conduct” requirement — a staple of the due-process inquiry — in part one of Georgia’s personal-jurisdiction test. Cf. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”). Consequently, Georgia courts can exercise personal jurisdiction under the transacting-business provision only if the nonresident’s conduct was directed at or occurred in Georgia. See Diamond Crystal, 593 F.3d at 1264.

Another well-established aspect of the due-process inquiry in specific-jurisdiction cases is “whether the plaintiffs claims ‘arise out of or relate to’ at least one of the defendant’s contacts with the forum.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir.2013) (citing Helicopteros, 466 U.S. at 413-14, 104 S.Ct. 1868). Substantively, however, this due-process question is the same as part two of the personal-jurisdiction test under the transacting-business provision. It is not surprising then that few, if any, Georgia cases separate the arises-out-of inquiry under the long-arm statute from the arises-out-of-or-related-to inquiry under the Due Process Clause. For this reason, that USIRE and the Zhangs’ conduct falls within the literal meaning of the transacting-business provision functionally ends the long-arm inquiry, and the arises-out-of question will be answered in step two of the specific-jurisdiction inquiry: would exercising personal jurisdiction violate USIRE and the Zhangs’ constitutional rights?

B. Step Two: Due Process

The due-process step of the specific-jurisdiction inquiry centers on “the relationship among the defendant, the forum, and the litigation.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). Because the constitutional “limits on [Georgia’s] adjudicative authority principally protect the liberty of the nonresident defendant — not the convenience of plaintiffs or third parties” — the connection to Georgia “must arise out of contacts that the ‘defendant himself creates.” Walden, 134 5.Ct. at 1122 (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174). So before Georgia courts can exercise personal jurisdiction, a nonresident’s “suit-related conduct must create a substantial connection ” with the state. Id. at 1121 (emphasis added). For this reason, this analysis focuses on “the defendant’s contacts with [Georgia] itself, not the defendant’s contacts with persons who reside there.” Id. at 1122. And while the parties’ relationships to one another may be relevant in evaluating their forum contacts, USIRE and the Zhangs’ contacts must be analyzed individually. Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980).

In short, the due-process inquiry in specific-jurisdiction cases has three prongs:

(1) whether the plaintiff s claims “arise out of or relate to” at least one of the defendant’s contacts with the forum; (2) whether the nonresident defendant “purposefully availed” himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state’s laws; and (3) whether the exercise of personal jurisdiction comports with “traditional notions of fair play and substantial justice.”

Louis Vuitton Malletier, 736 F.3d at 1355 (citing Burger King, 471 U.S. at 472-73, 474-75, 105 S.Ct. 2174; Helicopteros, 466 U.S. at 413-14, 104 S.Ct. 1868; Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154; as well as Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220-21 (11th Cir.2009); Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 630-31 (11th Cir.1996)).

For the first two prongs, the burden of proof lies with the plaintiff. Should he carry this burden, the defendant must come forward with compelling evidence that establishes the third prong. Id.; see also Diamond Crystal, 593 F.3d at 1267.

1. Prong One: The Relatedness of Ralls’s Claims to USIRE and the Zhangs’ Georgia Contacts

Neither the Supreme Court nor the Eleventh Circuit has established a specific approach for district courts to follow when deciding whether a nonresident defendant’s contacts are sufficiently 'related to the plaintiffs claims. Oldfield, 558 F.3d at 1222. ' Even so, this much is clear: the “inquiry must focus on the direct causal relationship between ‘the defendant, the forum, and the litigation.’ ” Fraser v. Smith, 594 F.3d 842, 850 (11th Cir.2010) (quoting Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868). And for claims sounding in tort, the circuit has held that the nonresident’s forum contacts must be not only a “but for” cause of the tort but also sufficient to provide “fair warning” that he could be haled into court there. See Oldfield, 558 F.3d at 1222-23.

Here, Ralls alleges that USIRE and the Zhangs have numerous Georgia contacts, including attending several in-state meetings as well as participating in a number of telephone calls with and sending emails to Ralls’s representative or attorneys in Georgia. Each contact, according to the amended complaint, concerned the wind farm, and these contacts occurred both before and after the loan documents were executed.

USIRE and the Zhangs dispute whether Ralls sufficiently alleges that they have the requisite “substantial connections” with Georgia to satisfy due process. This point is put most succinctly in their reply brief: “Ralls’ allegation of contacts are all prior to the execution of the relevant agreements, but its [amended] complaint alleges conduct that occurred after execution, none of which is alleged to have resulted from contacts with Georgia.” And later in the brief, they conclude, “[Ralls’s] claims here arise out of and relate to the post-formation performance, or alleged nonperformance, of the underlying contract, none of which took place or will take place in Georgia.”

In its opposition brief, Ralls highlights USIRE and the Zhangs’ connections to Georgia. Then — without argument — it asserts that the “causes of action against the USIRE and the Zhangs arise from those negotiations.” Later in its brief, Ralls concludes that “[b]ecause the Nonresident Defendants ‘personally involved’ themselves in the transactions giving rise to [its] claims, they have established sufficient minimum contacts in Georgia to support personal jurisdiction.”

While the relatedness question is closer than Ralls’s brief suggests, a fair reading of the amended complaint reveals that Ralls has adequately pleaded a prima facie case of personal jurisdiction. Along with allegations of Georgia contacts before the execution of the loan documents, Ralls alleges that USIRE and the Zhangs had the following in-forum contacts between the March 2013 closing and Ralls’s August 26 demand letter:

• Jerry Zhang sent an email stating that USIRE, not HRW, owned the wind farm;

• in May, Ralls and HRW entered into a balance-of-plant contract in Atlanta, Georgia that was executed by Jerry Zhang (on behalf of HRW), and Lucy Zhang accompanied him and participated in meetings in Atlanta before the contract was executed;

• later that month, Lucy Zhang requested copies of the loan agreement and note from “Ralls’ attorneys in this District”;

• in July, Jerry and Lucy Zhang attended a meeting in Atlanta to discuss the wind farm; and

• in August, Jerry Zhang participated in a conference call discussing the wind farm with Ralls’s representatives and attorneys who were in Atlanta.

USIRE and the Zhangs ignore these allegations, most likely because they are unrelated to the loan agreement and note. But whatever their reason, these contacts cannot be ignored. For while unrelated to the agreements at issue, these postclosing contacts show that USIRE and the Zhangs were not only personally involved in HRW’s management of the wind farm but also knew that the wind farm’s operation affected a Georgia resident: Ralls. Both facts are constitutionally significant because Ralls’s claims against USIRE and the Zhangs follow from the business decisions of HRW — -decisions that could have only been made by HRW’s president (Lucy Zhang) or its sole member (USIRE through Jerry Zhang).

Additionally, the loan documents are but-for causes of Ralls’s legal claims— some of which sound in tort. And in view of USIRE and the Zhangs’ role in the management of HRW and their postclos-ing Georgia contacts related to the wind farm’s operation, they should have reasonably foreseen being haled into a Georgia court on claims related to their alleged mismanagement of HRW.

2. Prong Two: Purposeful Availment

The “purposeful availment” requirement focuses on the nonresident’s conduct, thereby ensuring that he “will not be subject to jurisdiction based solely on ‘ “random,” “fortuitous,” or “attenuated” contacts.’ ” Diamond Crystal, 593 F.3d at 1268 (quoting Burger King, 471 U.S. at 480, 105 S.Ct. 2174). The Eleventh Circuit has made clear that the minimum-contacts analysis is “immune to solution by checklist.” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir.2007) (quoting Prod. Promotions, Inc. v. Cousteau, 495 F.2d 483, 499 (5th Cir.1974)). At the same time, the circuit has explained that “[c]on-siderations such as the quality, nature, and extent of the activity in the forum, the foreseeability of consequences within the forum from activities outside it ... relate to whether it can be said that the defendant’s actions constitute ‘purposeful availment.’ ” Sea Lift, Inc. v. Refinadora Costarricense de Petroleo, S.A., 792 F.2d 989, 993 (11th Cir.1986) (quoting Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1268 (5th Cir. Unit A Aug.1981)) (internal quotation marks omitted).

Here, USIRE and the Zhangs have purposefully engaged in and directed their actions at Georgia and Ralls, a Georgia resident. Specifically, they negotiated the terms of the loan documents and other contracts related- to the operation of the wind farm in Georgia. In the process, they invoked “benefits and protections” of Georgia law; thus, “it is presumptively not unreasonable to require [them] to submit to the burdens of litigation” in Georgia. Burger King, 471 U.S. at 475-76, 105 S.Ct. 2174.

3. Prong Three: Fair Play and Substantial Justice

To decide whether exercising personal jurisdiction would violate “fair play and substantial justice” requires consideration of several factors: “(1) ‘the burden on the defendant’; (2) ‘the forum’s interest in adjudicating' the dispute’; (3) ‘the plaintiffs interest in obtaining convenient and effective relief; and (4) ‘the judicial system’s interest in resolving the dispute.’ ” Louis Vuitton, 736 F.3d at 1358 (quoting Licciardello v. Lovelady, 544 F.3d 1280, 1288 (11th Cir.2008)). And the burden of coming forward with compelling evidence that this prong is satisfied falls on USIRE and the Zhangs. Id. at 1355;. see also Diamond Crystal, 593 F.3d at 1267.

While USIRE and the Zhangs state that exercising personal jurisdiction would violate traditional notions of fair play and substantial justice, this statement is unsupported by the record. Even if their contacts with Georgia were constitutionally insufficient — which they are not— USIRE and the Zhangs would remain intimately connected to Ralls’s claims against HRW. After all, Lucy Zhang is HRW’s sole employee; USIRE is HRW’s sole member; and Jerry Zhang is USIRE’s sole member. Because legal entities can only act’ through their agents, Ralls allegations of wrongdoing by HRW were carried out by USIRE and the Zhangs — whether collectively or individually. Their role in this litigation is thus assured. Lastly, USIRE and the Zhangs offer no evidence suggesting that litigating this case in Georgia will be burdensome — whether financially or otherwise.

For these reasons, USIRE and the Zhangs have failed to carry their burden of showing that exercising personal jurisdiction over them would violate traditional notions of fair play and substantial justice. And because each movant has individually established constitutionally sufficient contacts with Georgia, the assertion of adjudicative authority over them does not violate due process. Their motion will thus be denied.

III. Motion to Dismiss for Failure to State a Claim

A. Legal Standard

A claim will be dismissed under Federal Rule of Civil Procedure 12(b)(6) if the plaintiff does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Chandler v. Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194, 1199 (11th Cir.2012). The Supreme Court has explained this standard as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted); Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir.2012). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are “enough to raise a right to relief above the speculative level,” and “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. And while all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir.2011), the court need not accept as true plaintiffs legal conclusions, including those couched as factual allegations, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires two steps: (1) eliminate any allegations in the complaint that are merely legal conclusions, and (2) where there are well-pleaded factual allegations, “assume their veracity and ... determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937.

B. Analysis

HRW, USIRÉ and the Zhangs move to dismiss for failure to state a claim each of the nine counts in the amended complaint.

1. Count One: Breach of Contract by HRW

HRW challenges whether Ralls has adequately pleaded a breach of contract. Specifically, HRW contends that the amended complaint is inadequate in three ways:

First, it does not establish that HRW’s failure to repay the entire acquisition loan upon Ralls’s demand constitutes a breach;

Second, it does not establish that HRW has refused to open and administer a mutually designated bank account; and

Third, it does not establish that HRW has violated its obligation under the note to remit to Ralls ninety-five percent of the net cash flow on a quarterly basis.

The starting point for many of HRW’s arguments is the language of the loan agreement and note.

These documents, along with several letters exchanged between the parties, are attached as exhibits to HRW’s motion to dismiss, though they were not attached to Ralls’s amended complaint. Normally, district courts must convert a motion to dismiss to one for summary judgment before considering documents outside of the pleadings. Chesnut v. Ethan Allen Retail, Inc., 971 F.Supp.2d 1223, 1228 (N.D.Ga.2013). But conversion is not required where an extrinsic document is central to the plaintiffs claims and its authenticity is undisputed. Id.; see also Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.2005) (“Our prior decisions ... make clear that a document need not be physically attached to a pleading to be incorporated by reference into it; if the document’s contents are alleged in a complaint and no party questions those contents, we may consider such a document provided it meets the centrality requirement imposed in Horsley [v. Feldt, 304 F.3d 1125, 1134 (11th Cir.2002) ].”). Ralls has not disputed either the centrality or authenticity of these documents; indeed, most of HRW’s exhibits are explicitly referenced in the amended complaint. Thus, these documents will be considered without converting HRW’s motion to a motion for summary judgment.

One more prefatory point. Like HRW, Ralls bases many of its arguments on a particular interpretation of the loan agreement and note. Some issues between the parties, therefore, cannot be resolved without construing these loan documents. Neither party argues that contract construction is inappropriate at the motion-to-dismiss stage. Nor is it — at least where (1) the contract has been incorporated into the pleadings (including by reference), and (2) the sufficiency of the pleading depends on the contract’s meaning.

After all, under Georgia law “[c]ontract construction is a question of law for the court, unless, after applying the rules of contract interpretation, an uncertainty still remains as to which of two or more possible meanings represents the parties’ true intentions.” Eells v. State Farm Mut. Auto. Ins. Co., 824 Ga.App. 901, 752 S.E.2d 70, 74 (2018) (citing Davis v. United Am. Life Ins. Co., 215 Ga. 521, 111 S.E.2d 488, 491-92 (1959)). “The cardinal rule of construction is to ascertain the intention of the parties.” O.C.G.A. § 13-2-3. And so long as the parties’ intention is clear, violates no law, and is sufficiently spelled out, “it shall be enforced irrespective of all technical or arbitrary rules of construction.” Id. And where a contract’s terms are plain and unambiguous, “the contractual terms alone determine the parties’ intent.” Garrett v. S. Health Corp. of Ellijay, Inc., 320 Ga.App. 176, 739 S.E.2d 661, 667 (2013).

This means that the answers to many contract-construction questions will be the same regardless of whether they are answered at the motion-to-dismiss or summary-judgment stage. Even so, the Court is mindful that the purpose of a motion to dismiss is to test the sufficiency of the amended complaint rather than the need for a jury to resolve disputed issues of fact. Thus, the Court focuses on those provisions of the loan documents that bear directly on the adequacy of Ralls’s amended complaint. In the end, some claims in the amended complaint may fail not because of what they lack but rather because of what they — and the documents incorporated by reference — contain. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205 (11th Cir.2007) (“[The] complaint contains an abundance of factual detail; the complaint itself is 41 pages long, and it was accompanied by 21 different exhibits. Under the Federal Rules of Civil Procedure, these exhibits are part of the pleading ‘for all purposes.’ ” (quoting Fed.R.Civ.P. 10(c))); Gen. Guar. Ins. Co. v. Parkerson, 369 F.2d 821, 825 (5th Cir.1966) (“This complaint is plagued not by what it lacks, but by what it contains. All of the paths to relief which the pleading suggests are blocked by the allegations and the attached documents themselves, without more.”).

a. Did Ralls Adequately Allege That It Funded the Acquisition Loan?

HRW contends that Ralls never alleges that it made the acquisition loan. “There is no pleading at all as to whether the loan was made, the date, the format (check or wire transfer), amount or anything else.” In HRW’s view, “the pleading of the provision of the subject funds should be among the most basic pleading obligations of a lender alleging a breach.”

Setting aside whether the Federal Rules should require Ralls to specifically plead that it made the acquisition loan to state a breach-of-contract claim for failure to repay that loan, Ralls has pleaded — albeit generally — that it funded the acquisition loan. Greater specificity is not required. See Fed.R.CivP. 8(a)(2) (“A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 9(c) (providing that conditions precedent may be pleaded generally); see also infra note 13. Additionally, section 1.8 of the loan agreement provides:' “[HRW] hereby acknowledges and agrees that as of the date hereof, [Ralls] has advanced to [HRW], and [HRW] has received from [Ralls], in cash, the total amount of the Acquisition Cost.” This unambiguous provision — which Ralls quotes in its opposition brief but which HRW fails to even mention in its reply brief — appears to also foreclose HRW’s argument,

b. What Is HRW’s Payment Obligation Once the Actual Construction Costs Exceed the Trigger Amount?

The parties agree that HRW’s obligation to repay the acquisition loan is triggered when “the actual amount of the Construction Cost has exceeded [$2,419,-169].” What they disagree about is the scope of HRW’s obligation once the repayment trigger is pulled.

The following facts are relevant:

On August 26, 2013, Ralls notified HRW in writing that HRW was in default under the note. Under paragraph 5 of the note, the entire amount of the acquisition loan became due and payable to Ralls when the actual construction costs exceeded the trigger amount, which this letter stated had occurred. HRW failed to make this payment.

On February 14, 2014, Ralls sent HRW a letter that included as an attachment a letter from the contractor for the wind farm, which indicated that Ralls had incurred and paid $2,875,833 in construction costs. Under section 1.7 of the loan agreement, Ralls demanded immediate payment of the excess amount ($456,-664). HRW did not remit payment.

In its opposition brief, Ralls contends that it has alleged two separate breaches by HRW: one under the note (tied to-HRW’s nonpayment of the entire acquisition loan following the August 26 letter) and one under the loan agreement (tied to HRW’s nonpayment of the excess amount following the February 14 letter).

In its reply brief, HRW argues — not for the first time — that' performance under both loan documents is impossible. This is so, the argument goes, because the note makes the full amount of the acquisition loan due once the trigger amount is reached, but the loan agreement mandates only that the excess amount becomes due — and then only on an as-incurred basis. As a result, HRW could pay the excess amount due under the loan agreement and still be in breach under the note so long as the excess amount is less than the acquisition loan. HRW thus argues that Ralls’s interpretation renders section 1.7 of the loan agreement illusory and activates the supremacy clause of section 9.11 of the loan agreement, which provides that “if there is a conflict between this Agreement and any other document executed contemporaneously herewith [e.g., the note] with respect to the Obligations, the provision of this Agreement shall control.”

HRW has the better argument. To begin, the loan agreement and note must be construed together. After all, Ralls alleges that during the March 2013 closing “Ralls and HRW ... entered into a series of related transactions memorialized in integrated agreements.” [18] at ¶23. This allegation is buttressed by the integration and merger clauses in section 9.11 of the loan agreement: “This Agreement and the other written agreements between [HRW] and [Ralls] represent the entire agreement between the parties concerning the subject matter hereof, and all oral discussions and prior agreements are merged herein.” Finally, construing the loan documents— which were executed during the March 2013 closing — together is consistent with longstanding Georgia law. See Hardin v. Great N. Nekoosa Corp., 237 Ga. 594, 229 S.E.2d 371, 374 (1976) (“Where instruments are executed at the same time in the course of the same transaction, they should be read and construed together.” (citing Dyal v. Foy & Shemwell, Inc., 159 Ga. 848, 126 S.E. 783, 785-86 (1925))); see also Rizk v. Jones, 243 Ga. 545, 255 S.E.2d 19, 20 (1979); Curry v. Georgia, 309 Ga.App. 338, 711 S.E.2d 314, 317 (2011).

The note and the loan agreement impose conflicting obligations regarding the repayment of the acquisition loan. For this reason, the loan agreement’s supremacy clause — which Ralls does not even mention — voids HRW’s obligation under paragraph 5 of the note. This means that HRW cannot be in breach for failing to remit the entire sum of the acquisition loan following the August 26 demand letter. Ralls’s breach-of-contract claim related to HRW’s nonpayment of the entire acquisition loan thus fails.

Importantly, this does not mean that HRW’s repayment obligations were not triggered when the actual construction costs exceeded the trigger amount — which Ralls’s August 26 letter states had occurred. Nor does it mean that Ralls has failed to state a breach-of-contract claim under section 1.7 of the loan agreement for HRW’s failure to pay the excess amount demanded in Ralls’s February 14 letter. Indeed, HRW mounts a different loan-agreement-based attack against the section 1.7 breach-of-contract claim: Ralls’s failure to satisfy a condition precedent,

c. Conditions Precedent

Federal Rule of Civil Procedure 9 governs the pleading of conditions precedent. For actions sounding in contract, failure to perform a condition precedent is an affirmative defense. See Gravitt v. Bank of the Ozarks, 326 Ga.App. 461, 756 S.E.2d 695, 701 n. 8 (2014). Under Rule 9(c), a plaintiff may “allege generally that conditions precedent have occurred or been performed,” but if the defendant wants to deny the occurrence or performance of a condition precedent, he “must do so with particularity.” Such denials, however, “may be raised in a motion to dismiss (rather than an answer) as long as they meet Rule 9(c)’s particularity requirement.” Bloodworth v. Colvin, 17 F.Supp.3d 1245, 1253, No. 1:12-cv-1851-TCB, 2014 WL 1711794, at *5 (N.D.Ga. Jan. 14, 2014). And once made, the burden of proving that the conditions precedent have been satisfied falls on the plaintiff. See Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir.1982).

In Georgia, a party must perform a condition precedent in order for the contract to become binding on the other party. O.C.G.A. § 13-3-4. Put another way, “[a] condition precedent is one which must be performed before any right to be created thereby accrues.” Brogdon ex rel. Cline v. Nat’l Healthcare Corp., 103 F.Supp.2d 1322, 1335 (N.D.Ga.2000) (quoting Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 177 S.E.2d 819, 822 (1970)). Parties can create conditions precedent “by language such as ‘on condition that,’ ‘if and ‘provided,’ or by explicit statements that future events are to be construed as conditions precedent.” Choate Constr. Co. v. Ideal Elec. Contractors, Inc., 246 Ga.App. 626, 541 S.E.2d 435, 438 (2000). But Georgia law does not favor interpreting a contract to find a condition precedent; thus, “[i]f the contract’s terms are clear and unambiguous and do not clearly establish a condition precedent, [courts] cannot construe the contract to create one.” Id.

Here, despite HRW’s contrary contention, Ralls’s amended complaint satisfies Rule 9(c) by alleging generally that all conditions precedent have been satisfied or waived. The only question is whether this allegation is contradicted by the rest of the amended complaint and the terms of the loan documents.

HRW contends that under the loan documents, Ralls has to satisfy certain conditions precedent before declaring an event of default and accelerating the payment of the full loan amount. For example, HRW posits that its obligation to begin repaying the acquisition loan under the loan agreement depends on the satisfaction of two conditions precedent. First, the actual construction costs must exceed the trigger amount. Second, Ralls must substantiate these construction costs by complying with section 5.21 of the loan agreement, which provides in full:

[HRW] and [Ralls] shall cooperate with each other in good faith to ascertain the specific amount of the Construction Cost within a reasonable time after the Commercial Operation Date. [Ralls] shall produce such specific amount and provide reasonably detailed documentations to support its calculation of. the Construction Cost. Unless [HRW] can provide specific reason to challenge the authenticity of such documentations or the commercial reasonableness of the amounts set forth therein, such documentations and calculation and the resultant specific amount of the Construction Cost shall be deemed to be final.

Ralls does not dispute that the trigger amount constitutes a condition precedent to HRW’s obligation to repay the acquisition loan. The question then is: does section 5.21 create a condition precedent to HRW’s obligation to pay the excess amount due under section 1.7? It does not.

To be sure, section 5.21 calls for Ralls to provide “reasonably detailed documentations to support [its] calculation of the Construction Cost” and affords HRW an opportunity to challenge the “authenticity of such documentations” as well as the “commercial reasonableness of the amounts set forth therein.” But the plain language of this section poses two problems for HRW.

First, under section 5.21, Ralls’s substantiation obligation and HRW’s challenge rights only come into play “a reasonable time after the Commercial Operation Date,” which the loan agreement defines as “the date the [wind farm] commences its commercial production of electricity.” Here, that date was in October 2013— nearly two months after Ralls’s August 26 letter notifying HRW that the actual construction costs had exceeded the trigger amount. HRW offers no explanation for how this section can apply before the commercial operation date. Nor is one obvious.

Second, once section 5.21 is satisfied, the “specific amount of the Construction Cost shall be deemed final.” HRW’s interpretation never addresses nor accounts for the finality requirement. But the thrust of its interpretation is that section 5.21 imposes an ongoing obligation — a view that is at odds with the section’s plain language.

This is not to diminish HRW’s practical point: it is a “questionable business practice” for a company “to write a check for hundreds of thousands of dollars without having an opportunity to review or question the expenditures or reasonableness of charges” giving rise ,to this payment obligation. But if the loan documents protect HRW from such a practice, they do so under a provision other than section 5.21 of the loan agreement.

Accordingly, the loan documents attached to HRW’s motion to dismiss do not contradict Ralls’s allegation that it satisfied the conditions precedent to an action for HRW’s nonpayment of the excess amount demanded in the February 14 letter.

d. Breach Related to the Creation of a Mutually Designated Account

Section 1.4 of the loan agreement provides for the creation of a “mutually designated” bank account for the deposit of any proceeds from the sale of electricity to San Isabel. And the parties agreed to “make commercially reasonable efforts ... to implement the letter and spirit of this provision.” The sole purpose of this account, according to section 1.4, is to facilitate the calculation of the net cash flow and the repayment of the loan under the note.

As the Court is well aware, no mutually designated account was created before this case was filed. In its opposition brief, Ralls states that this is because HRW has not been reasonable or willing to carry out the letter and spirit of this provision. In its briefs, HRW asserts that the unreasonable party has been Ralls, which allegedly demanded that HRW open a “joint account.” At its core, this dispute is factual and thus cannot be resolved at the motion-to-dismiss stage. Ralls has thus adequately pleaded a breach-of-contract claim under this portion of section 1.4.

e. Breach Based on HRW’s Alleged Failure to Pay Ninety-Five Percent of the Net Cash Flow on a Quarterly Basis

Based on its review of HRW’s 2013 profit-and-loss statement, Ralls alleges that “Jerry Zhang has been misappropriating the [San Isabel] Revenues to fund wholly unauthorized distributions, including payments to his wife, Lucy Zhang, for purported employment services, to USIRE for alleged ‘asset management fees,’ and for multiple other unauthorized purposes, apparently including the defense of this action.” Ralls contends that the profit-and-loss statement “reflects several hundred thousands of dollars of purported expenses that were neither permissible under the definition of ‘Net Cash Flow1 set forth in the Note, nor were they incurred and paid in compliance with Section 1.4 of the Loan Agreement.”

In its opposition brief, Ralls contends that it has pleaded a separate breach of the note based on HRW’s failure to pay ninety-five percent of the net cash flow, defined in paragraph 4 of the note as

the payments received by [HRW] from any of its customers, including any utility company, in consideration for the electricity purchased from [HRW] minus (x) any amount paid by [HRW] for the maintenance services on the turbines and other equipment of [HRW] minus (y) any other statutory or mandatory payment made by [HRW], including tax payments.

Ralls notes that the expenses that HRW deducted from the San Isabel revenue in calculating the net cash flow were neither “ ‘mandatory’ under the plain meaning of the word, nor were they authorized by Ralls as required by the Loan Agreement.” Ralls, however, does not claim in its opposition brief that HRW’s failure to comply with the authorization requirement constitutes a breach of the loan agreement. In any event, that requirement is set out in section 1.4 of the loan agreement as

(x) any single payment in the amount in excess of $5,000 or (y) any payment that shall make the total payments in a calendar month to exceed $10,000, in either case to be made out of such mutually designated account to any third party, shall be made only upon the written approval of [Ralls].

HRW challenges whether Ralls has pleaded sufficient facts to show that it failed to met its obligation to pay ninety-five percent of the net cash flow. More precisely, HRW argues that Ralls has not pleaded that the expenses deducted from the San Isabel revenue were not “mandatory.”

At its core, the parties’ dispute over the adequacy of HRW’s payment is a disagreement about the meaning of mandatory, which is undefined in the note. HRW claims that “the mandatory nature of a payment is determined by what is necessary to operate a wind farm.” Ralls responds that the plain meaning of mandatory is not nearly this broad, but it offers no specific meaning. Neither party, however, devotes much attention to Georgia’s rules of contract construction even though these rules are very much in play.

Under Georgia law, “[a]mbiguity exists when a contract contains an uncertain meaning, is duplicitous, and indistinct, or when a word or phrase may be fairly understood in more than one way.” Snipes v. Marcene P. Powell & Assocs., Inc., 273 Ga.App. 814, 616 S.E.2d 152, 155 (2005). Here, the phrase “any other statutory or mandatory payment made by [HRW], including tax payments” can be fairly understood in multiple ways. Put differently, this phrase lends support to both HRW’s proposed interpretation and Ralls’s response. Given the importance of this issue, the relative dearth of briefing, and the undeveloped record, the Court will not decide whether the expenses deducted in determining the net cash flow were in fact deductable under the note.

Two more points are in order. First, contrary to HRW’s contention, Ralls’s theory of breach can be “divined” from the amended complaint. But the fact is that paragraphs 42-48, 52-53 and count one of the amended complaint could have been more artfully pleaded. Take, for ex-? ample, paragraph 53: “As a result of these unauthorized payments [those listed in the profit-and-loss statement], HRW has committed additional breaches of the Loan Agreement and Note, and is also in default under the Note.” This allegation suggests that HRW breached both loan documents because it made unauthorized payments. But that theory contradicts the plain language of the note. Read in context, however, it is plausible that unauthorized payments is merely shorthand for “the expenses listed in the profit-and-loss statement that were both deducted in calculating the net cash flow and unauthorized prior to payment.” That is, Ralls appears to allege that the profit-and-loss statement shows that HRW has committed separate breaches under the note and loan agreement. As a result, Ralls will be required to replead this portion of the amended complaint to clarify its claims.

Second, HRW’s argument that the authorization requirement applies only to payments made from a mutually designated account is built on shaky ground. The argument’s foundation is the phrase “payment ... to be made out of such mutually designated account ... shall be made only upon the written approval of [Ralls].” In context, however, this phrase appears to be ambiguous. Thus, the Court declines to adopt HRW’s proposed interpretation at this time.

2. Count Two: Breach of the Implied Duty of Good Faith and Fair Dealing by HRW

In Georgia, every contract implies a covenant of good faith and fair dealing. Myung Sung Presbyterian Church, Inc. v. N. Am. Ass’n of Slavic Churches & Ministries, Inc., 291 Ga.App. 808, 662 S.E.2d 745, 748 (2008). But this covenant does not provide an independent basis for liability; instead, it “becomes a part of the provisions of the contract ... [and] cannot be breached apart from the contract provision it modifies.” Id.; see also O.C.G.A. § 11-1-203.

The reason HRW offers for dismissing count two is that Ralls has failed to adequately plead a cause of action for breach of contract. Because this is not true, HRW’s argument fails.

3. Count Three: Conversion by All Defendants

In Georgia, a secured creditor like Ralls may bring an action for conversion against a debtor so long as the “property subject to its security interest is disposed of without the creditor’s authorization. The elements of such a claim include the showing of a valid security interest in the debtor’s property, disposi tion of that property, absence of the creditor’s authorization for the disposition, and resulting damage to the creditor.” William Goldberg & Co. v. Cohen, 219 Ga.App. 628, 466 S.E.2d 872, 883 (Ga.Ct.App.1995) (emphasis added).

In Ralls’s view, Defendants’ conversion arises from their failure to deposit the San Isabel revenue in a mutually designated account and their use of that revenue for purposes other than repaying the loan. Even if true, Ralls’s conversion claim fails. This is because the loan agreement does not grant Ralls a security interest in the San Isabel revenue. So while Ralls is a secured creditor with respect to other collateral, it cannot bring a claim for the conversion of the San Isabel revenue. Accordingly, count three of the amended complaint will be dismissed.

4. Count Four: Alter-Ego Liability of USIRE and Jerry Zhang

The Court assumes without deciding that Georgia law governs Ralls’s claim that the corporate veils of HRW and USIRE should be pierced and that USIRE and Jerry Zhang are liable for HRW’s actions under a theory of alter-ego