RULING AND ORDER

BRIAN A. JACKSON, Chief District Judge.

Before the Court are separate motions to dismiss filed by Defendant Western Surety Company, Inc. ("Western") (Doc. 92) and Defendant DQSI, L.L.C. ("DQSI, LLC") (Doc. 93)1 seeking dismissal of Plaintiff Sun Coast Contract Services, L.L.C.'s ("SCCS") first supplemental and amended complaint ("amended complaint") (Doc. 81). Western seeks dismissal pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(6). Should Western prevail on its motion, DQSI, LLC seeks dismissal pursuant to Rule 12(b)(1). For the reasons explained herein, Defendants' motions are DENIED.

I. Background

On or about March 10, 2010, the U.S. Army Corps of Engineers ("USACE") entered into a prime contract to complete work on the Bayou Sorrel Lock in the Atchafalaya Basin Floodway ("the project"). (Doc. 1 at ¶ 10). On May 5, 2013, SCCS filed its first complaint against DQSI, LLC and Western, wherein it asserted that DQSI, LLC furnished performance and payment bonds on the project as the prime contractor in compliance with the Miller Act, with Western serving as surety. (Id.). SCCS further asserted that it was owed payment for materials, labor, and supplies furnished to DQSI, LLC in performing the prime contract. (Id. at ¶ 39). On December 17, 2014, the Court determined that SCCS can continue to maintain a Miller Act claim and its claim for unjust enrichment against Defendants, notwithstanding Defendants' assertion that SCCS was improperly assigned rights under a subcontract that existed between DQSI, LLC and SCCS's alleged predecessor in interest, Sun Coast Contracting, LLC.2 (See Docs. 56, 61).

On April 22, 2015, SCCS filed its amended complaint wherein it asserts that that the prime contract may have been improperly awarded to DQSI Corporation ("DQSI, Corp.").3 (Doc. 81 at ¶¶ 12-18). SCCS further asserts that DQSI, LLC submitted an offer on the project to the USACE on March 29, 2010, even though it was not an 8(a) qualified firm as required. (Id. at ¶¶ 15-17, 45-46). SCCS further claims that DQSI, LLC used the DUNS (Data Universal Number System) of DQSI, Corp. when it submitted its offer to the USACE. (Id. at 45-46). Creating even more confusion, SCCS claims that as late as March 30, 2010, the USACE issued work orders to DQSI, Corp. even though it ceased to exist as a corporate entity as of September 1, 2009. (Id. at ¶ 47).

Given these irregularities, the amended complaint asserts that if the prime contract was in fact awarded to DQSI, Corp., it was an "absolute nullity" that was "void ab initio."4 (Id. at ¶¶ 15, 63-64). Consequently, SCCS asserts that it added a separate claim against Western in count two that was pled in the alternative "should it be found that the contract was, in fact, awarded to DQSI Corporation."5 (Doc. 81 at ¶¶ 62-71; Doc. 118 at p. 11). SCCS asserts that the amended complaint maintains its claim against DQSI, LLC and Western under the theory that it was DQSI, LLC that contracted with the USACE and was paid by the USACE to complete the project. (Doc. 81 at ¶¶ 55-61; Doc. 118 at pp. 10-11).

Prior to the filing of SCCS's amended complaint, the parties did not dispute that DQSI, LLC was the entity that entered into the aforementioned prime contract, and that Western acted as surety on the Miller Act performance and payment bonds furnished in connection with the prime contract. (See Doc. 8-16 at ¶¶ 1-19; See Doc. 31 at pp. 1-2). The parties also did not dispute that DQSI, LLC entered into a subcontract with SCCS's alleged predecessor in interest,6 or that work was performed pursuant to the subcontract. (Doc. 8-1 at pp. 2-4; Doc. 8-16 at ¶¶ 3-19).

II. Standard of Review7

A motion to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6) tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). On a Rule 12(b)(6) motion, a district court generally "must limit itself to the contents of the pleadings, including attachments thereto." See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief [is]. . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. "[F]acial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (Twombly, 550 U.S. at 556).

Hence, the complaint need not set out "detailed factual allegations," but something "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" is required. Twombly, 550 U.S. at 555. When conducting its inquiry, the Court must "accept[] all well-pleaded facts as true and view[] those facts in the light most favorable to the plaintiff." Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted).

The Supreme Court has noted that Rule 12(b)(6) requires dismissal whenever a claim is based on an invalid legal theory:

Neitzke v. Williams, 490 U.S. 319, 327 (1989) (quotation marks and citations omitted). However, "[f]ederal pleading rules . . . do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, Miss., 574 U.S. ___, ___, 135 S.Ct. 346, 346 (2014) (per curiam).

III. Defendants' Motions

With potential irregularities in the bid process related to the project now identified, Western seeks dismissal pursuant to Rule 12(b)(6) on the basis of SCCS's own allegation — set forth in its amended complaint — that the prime contract was "absolutely null" and "void ab initio." (Doc. 92-1 at pp. 1, 3-12). Western asserts that SCCS has "pled itself out of a Miller Act claim" because a payment bond is invalid if the prime contract for which it is furnished is, as alleged by SCCS, null. (Doc. 92-1 at pp. 3-4; Doc. 150 at p. 1). Western further asserts that the allegation that the prime contract is null was not pled as part of an alternative argument, and as a result, it is dispositive as to all of SCCS's claims against it.8 (Id.).

To support its position, Western relies upon language of the Miller Act, which Western asserts contemplates that a payment bond exists to secure payment for work performed pursuant to a prime contract; if the prime contract is null, Western asserts that the payment bond cannot be binding. (Id. at pp. 6-9). Western also argues that the payment bond is a contract of suretyship under Louisiana law, and as an accessory right or obligation, it cannot exist without a primary obligation. (Id.). Again, because the amended complaint asserts that the prime contract was "void ab initio," Western argues that Louisiana law also requires dismissal of SCCS's lawsuit.

After Western filed its motion, DQSI, LLC filed its motion pursuant to Rule 12(b)(1), asserting that dismissal of SCCS's Miller Act claim would deprive the Court of jurisdiction over any remaining state law claims set forth in the amended complaint.

IV. DISCUSSION

The narrow issue Western presents in its motion to dismiss is whether SCCS's own allegation that the prime contract was absolutely null defeats SCCS's claims against it, even though Western admits that it acted as surety on a Miller Act payment bond related to the project. When viewed in a light most favorable to SCCS, the Court finds that any defect in the amended complaint resulting from poor drafting is not fatal to SCCS's lawsuit. Western reads SCCS's statements regarding the nullity of the prime contract in isolation9; although the amended complaint lacks clarity, the Court is satisfied that it sets forth sufficient factual matter, accepted as true, to state a plausible claim for relief against Western as surety on a payment bond furnished for a prime contract between the USACE and DQSI, LLC, or alternatively, for a prime contract that was purportedly between the USACE and DQSI, Corp. (See id. at p. 7). See Whitener v. Pliva, Inc., No. 10-cv-1552, 2010 WL 3021866, at *2 (E.D. La. July 29, 2010) (alternative theories of recovery permitted where plaintiff alleged that the defendant was either a manufacturer or a seller of medication in a products liability action). SCCS was placed in a difficult position: amend its complaint by adding DQSI, Corp. and explain the attendant — and confusing — factual reasons for doing so, or risk protracted litigation without having identified a possible proper defendant. (See Doc. 118 at p. 5). Because SCCS's factual assertions create uncertainty as to which DQSI entity was awarded the prime contract, which DQSI entity signed the prime contract, and which DQSI entity performed the work required under the prime contract, Western's contention that SCCS has "pled itself out of a Miller Act claim" is simply too facile for the Court to sanction at this stage of this proceeding.10

And even if the Court were to find that the allegations made in the amended complaint were not pled in the alternative, Western has nonetheless failed to demonstrate that dismissal is proper under the relaxed Rule 12(b)(6) standard. Western points to the following language of the Miller Act to support its contention that the payment bond is unenforceable if the prime contract is null:

(Doc. 92-1 at p. 7) (emphasis supplied in Western's brief). Yet it is of no moment to the Court that the Miller Act requires a bond to be furnished in connection with a prime contract; this is not a profound observation. To read into this language, however, that irregularities in the bidding process of a prime contract, without more, render an otherwise valid payment bond per se unenforceable under these circumstances is to distill a legal fiction that belies the policy considerations underlying the Miller Act.11 See Clifford F. MacEvoy Co. v. U.S. for Use & Benefit of Calvin Tomkins Co., 322 U.S. 102, 107 (1944) (holding that "[t]he Miller Act is . . . highly remedial in nature. It is entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects'"). At the very least, SCCS's factual assertions indicate that a putative contract was awarded in this case under which work was performed, and Western availed itself of the benefits of guaranteeing payment of that work under the prevailing facts then known to the parties.12 Without reaching a determination on the merits, the Court finds that SCCS has set forth sufficient factual matter, accepted as true, to state a plausible claim for relief against Western as surety even if the prime contract at issue was flawed.

Western's reliance on the Louisiana law of suretyship to support its contention that its bond is null if the prime contract is null is similarly unpersuasive. As Judge Lemmon of the United States District Court for the Eatern District of Louisiana recently recognized:

J&B Boat Rental, LLC v. JAG Const. Servs., Inc., No. 12-cv-323, 2015 WL 2376004, at *6 (E.D. La. May 18, 2015). While the Court may find aspects of the Louisiana law on suretyship instructive where federal law is silent, the Court is nonetheless not bound to apply state law limitations on contracts of suretyship in the context of a Miller Act claim. Id.

The Court finds that SCCS's claims against Western as surety of the Miller Act payment bond furnished in connection with the project survive Western's Rule 12(b)(6) motion to dismiss. Because SCCS still has a viable Miller Act claim, DQSI, LLC's argument that federal question jurisdiction no longer exists in this matter is without merit.

V. Conclusion

For the foregoing reasons:

IT IS HEREBY ORDERED that the Motion to Dismiss all Claims Against Western Surety Company (Doc. 92) filed by Defendant Western Surety Company, Inc. is DENIED.13

IT IS FURTHER ORDERED that the Motion to Dismiss (Doc. 93) filed by Defendant DQSI, L.L.C is DENIED.