MARTIN L.C. FELDMAN, District Judge.
Before the Court is Mosaic Fertilizer, LLC's motion to dismiss the complaint for failure to state a claim. For the reasons that follow, the motion is GRANTED.
This litigation arises out of a construction project nonpayment dispute between Mosaic Fertilizer, LLC, as owner, CCC
Mosaic Fertilizer, LLC owns and operates a chemical plant in Uncle Sam, Louisiana. Mosaic hired CCC Group, Inc. as general contractor to complete some construction work at its plant. In October 2011 CCC Group, Inc., as general contractor, contracted with JP Mack Industries LLC, as sub-contractor; JP Mack agreed to furnish labor, equipment, and materials to complete roofing and siding work at Mosaic's chemical plant.
During the course of JP Mack's work, CCC Group and Mosaic approved change orders totaling approximately $965,369.28, which caused JP Mack to incur $388,927.97 in overtime and equipment expenses above the original contract estimate. Overall, JP Mack incurred an approved $1,649,490.91 above the original contract price. JP Mack has rendered all services and delivered all materials in accordance with the original contract and all change orders. Nevertheless, JP Mack has been only partially paid for its services and materials; it is still owed $639,593.49.
On May 15, 2013 JP Mack sued Mosaic Fertilizer, LLC and CCC Group, Inc. in state court for nonpayment; in particular, JP Mack asserts open account and late payment claims against CCC Group and asserts unjust enrichment and third-party beneficiary theories of recovery against Mosaic Fertilizer. The defendants removed the case to this Court, invoking this Court's diversity jurisdiction.
Mosaic now seeks to dismiss the unjust enrichment and third-party beneficiary claims asserted against it.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading standard Rule 8 announces does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Thus, in considering a Rule 12(b)(6) motion, the Court "accepts `all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" See Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir.2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). But, in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Kaiser, 677 F.2d at 1050. Indeed, the Court must first identify allegations that are conclusory and, thus, not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A corollary: legal conclusions "must be supported by factual allegations." Id. at 678, 129 S.Ct. 1937. Assuming the veracity of the well-pleaded factual allegations, the Court must then determine "whether they plausibly give rise to an
"`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.'" Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937)(internal quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and footnote omitted). "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." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("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."). This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678, 129 S.Ct. 1937 (internal quotations omitted) (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief'", thus, "requires more than labels and conclusions, 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 (alteration in original) (citation omitted).
Finally, "[w]hen reviewing a motion to dismiss, a district court `must consider the complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'" Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)).
Mosaic advances several grounds for dismissal. First, Mosaic contends that, as a matter of law, JP Mack's exclusive remedy against Mosaic would be under the Louisiana Private Works Act, La.R.S. 9:4801, but that JP Mack has failed to preserve this remedy. Second, and relatedly, Mosaic contends that JP Mack cannot recover under the theory of unjust enrichment because such a remedy is not available in light of the availability of a remedy provided by the Louisiana Act. Finally, Mosaic contends that JP Mack has failed to plead facts to support a third-party beneficiary or obligor theory of recovery. The Court addresses each ground in turn.
Mosaic contends that JP Mack's exclusive remedy against it lies only in a claim under the Louisiana Private Works Act, La. R.S. 9:4801. In support of this exclusivity argument, Mosaic summarizes how a subcontractor perfects rights granted by the Private Works Act, which was "enacted to facilitate construction of improvements on immovable property and does so by granting to subcontractors, among others, two rights to facilitate recovery of the costs of their work from the owner with whom they lack privity of contract." See Byron Montz, Inc. v. Conco Const., Inc.,
JP Mack does not dispute that the Private Works Act provides a remedy to subcontractors like it against owners like Mosaic, but disputes that the Act excludes all other remedies. JP Mack invokes La.R.S. 9:4802(D), which provides "[c]laims against the owner and the contractor granted by this Part are in addition to other contractual or legal rights the claimants may have for the payment of amounts owed to them." Certainly this statutory language is in direct conflict with Mosaic's exclusivity argument; indeed, the Court notes that the Louisiana legislature has demonstrated, in other contexts, that it can expressly mandate that a remedy is exclusive when it so desires. See, e.g., La.R.S. 23:1031 (Louisiana Workers' Compensation Act as "exclusive remedy").
But the Court need not determine whether the case literature has decreed, as a matter of law, that the Louisiana Private Works Act is the exclusive remedy for subcontractors seeking recovery for nonpayment from owners in the context of private construction contracts
Mosaic next contends that JP Mack's claim for unjust enrichment fails as a matter of law because such a remedy is not available in this case. The Court agrees.
Article 2298 of the Louisiana Civil Code codifies Louisiana's doctrine of unjust enrichment:
La. Civ.Code art. 2298 (emphasis added). To support a claim for unjust enrichment under Louisiana law, a plaintiff must show five elements:
Carriere v. Bank of Louisiana, 702 So.2d 648 (La.12/13/96). Here, Mosaic contends that the no-other-remedy-at-law element cannot be satisfied. That the availability of other remedies at law (here, the Private Works Act) precludes an unjust enrichment claim. While there appears to be some support to the contrary,
Louisiana law precludes JP Mack's unjust enrichment claim. The Louisiana Supreme Court has observed that "[t]he mere fact that a plaintiff does not successfully pursue another available remedy does not give the plaintiff the right to recover under the theory of unjust enrichment." Walters v. MedSouth Record Mgmt., LLC, 38 So.3d 241, 242 (La.6/4/10) (per curiam). In Walters, the plaintiff pursued tort claims against a medical records company that had charged the plaintiff's attorney to obtain certified records requested by the plaintiff. Id. The state trial court dismissed the tort claims on an exception of no cause of action based on prescription. Id. The plaintiff then amended his petition to allege that the company had been unjustly enriched by charging unauthorized fees. Id. The district court denied the company's exception of no cause of action and the state appellate court denied the company's requested relief. Id. Noting that the unjust enrichment remedy is "subsidiary in nature" and "only applicable to fill a gap in the law where no express remedy is provided," the Supreme Court reversed the judgment of the district court, granted the exception of no cause of action, and dismissed Walters' suit with prejudice. Id. "Because the law provided plaintiff with another remedy," the state high court held, `we find he has failed to state a cause of action in unjust enrichment." Id. ("[h]aving pled a delictual action, we find plaintiff is precluded from seeking to recover under unjust enrichment").
The plaintiff's unjust enrichment claim against Mosaic must therefore be dismissed. State law, and precedent, strongly instruct dismissal.
Finally, Mosaic challenges the sufficiency of the plaintiff's allegations that it was a third-party beneficiary to the contract (or change orders) between Mosaic and CCC Group. No third-party beneficiary claim is stated, Mosaic suggests, because the plaintiff has advanced no factual allegations that, if proven, would permit recovery under a third-party beneficiary theory. The plaintiff counters that, to comply with Rule 8, it need only allege grounds that entitle it to relief under some theory; JP Mack suggests that whether Mosaic was a third-party beneficiary or third-party obligor is a disputed factual matter to be determined through discovery, not by a motion to dismiss. The Court disagrees. State law is clear.
Louisiana's Civil Code provides that a contracting party may stipulate a benefit for a third person not a party to the contract; specifically, article 1978 provides:
To establish a "stipulation pour autrui" (a contractual provision that benefits a third-party and gives the third-party a cause of
JP Mack appears to allege the change orders executed between Mossaic and CCC Group conferred a benefit on JP Mack. But JP Mack's factual allegations are conclusory; the allegations (which merely conclude that JP Mack, as subcontractor, is a third-party beneficiary to the change orders between CCC Group as general contractor and Mosaic as owner) fall far short of demonstrating facial plausibility because JP Mack has not pleaded factual content that allows the Court to draw the inference that Mosaic is liable under a third-party beneficiary or obligor theory. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Rather, JP Mack's allegations suggest that the benefit conferred upon it as subcontractor was merely incidental to the change orders between CCC Group and Mosaic; this falls short of stating a claim for stipulation pour autrui.
Accordingly, Mosaic's motion to dismiss is GRANTED. The plaintiff's claims against Mosaic are hereby dismissed.