84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al, No. 2:2012cv01748 - Document 263 (E.D. La. 2017)

Court Description: ORDER & REASONS granting 220 Motion for Partial Summary Judgment. Signed by Judge Sarah S. Vance on 5/16/2017. (mmm)
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84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al Doc. 263 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA 84 LUMBER COMPANY VERSUS CIVIL ACTION NO. 12-1748 F.H. PASCHEN, S.N. NIELSEN & ASSOCIATES, LLC, ET AL. SECTION “R” (5) ORD ER AN D REASON S Defendants F.H. Paschen, S.N. Nielsen & Associates, LLC (“Paschen”), Continental Casualty Com pany, Safeco Insurance Company of Am erica, and Fidelity and Deposit Com pany of Maryland (collectively, “Defendants”) m ove for partial sum m ary judgm ent on plaintiff 84 Lum ber Com pany’s Louisiana Public Works Act claim s and unjust enrichm ent claim . 1 For the following reasons, the Court grants defendants’ m otion. I. BACKGROU N D This case arises out of two school construction projects in New Orleans, Louisiana, the Mildred Osborne Project and the South Plaquem ines Project. 2 On J uly 26, 20 10 , Paschen entered into an agreement with the Louisiana 1 2 R. Doc. 220 . R. Doc. 1 at 2-3 ¶ 5. Dockets.Justia.com Department of Education to build a new elem entary school at the Mildred Osborne School in New Orleans (Osborne Project). 3 General Contractor for the project. 4 Paschen was the On Septem ber 13, 20 10 , Paschen entered into a contract with the Plaquem ines Parish School Board to build the South Plaquem ines High School in Buras, Louisiana (South Plaquem ines Project). 5 As with the Osborne Project, Paschen was the General Contractor for the South Plaquem ines Project. 6 Both projects were subject to the provisions of the Louisiana Public Works Act (LPWA), La. Rev. Stat. § 38:2241, et seq., and therefore each project required paym ent bonds before construction could begin. 7 Continental, Safeco, and Fidelity (collectively, “Sureties”) issued the required bonds. 8 Paschen subcontracted a portion of both projects to J & A Construction Managem ent Resources Com pany, Inc. (J & A). 9 On November 19, 20 10 , J & A entered into a Master Service Agreement with 84 Lum ber Com pany, in 3 R. Doc. 214-24 at 1. Id. 5 R. Doc. 214-7 at 2. 6 Id. 7 R. Doc. 1 at 3 ¶ 6. 8 See R. Doc. 214-25 (Bond for Osborne Project); R. Doc. 214-8 (Bond for South Plaquem ines Project). 9 R. Doc. 1 at 3 ¶ 7. See also R. Doc. 214-26 (Osborne Project Subcontract); R. Doc. 214-9 (South Plaquem ines Project Subcontract). 2 4 which J & A subcontracted a portion of its work on both projects to 84 Lum ber. 10 According to 84 Lum ber, in April 20 11, Paschen and J & A stopped paying 84 Lum ber for its work on the projects. 11 As a result, on Novem ber 29, 20 11, 84 Lumber filed sworn statem ents of claims for m oney owed on both projects in com pliance with the LPWA. Specifically, 84 Lumber claim ed at least $ 549,778.16 for the Osborne Project and at least $ 1,666,921.66 for the South Plaquem ines Project. 12 On Decem ber 1, 20 11, 84 Lum ber, through its counsel, sent letters by certified m ail to Paschen’s attorney Charles F. Seem ann, J r., detailing the am ounts owed, as well as a copy of the sworn statements. 13 84 Lum ber also m ailed notice of the sworn statem ents to the Sureties. 14 In an attem pt to “com prom ise partially their differences,” Paschen and 84 Lumber entered into two agreem ents in May 20 12, covering both projects. 15 Under the agreem ents, Paschen agreed to pay 84 Lumber $ 1,297,60 3, and 84 Lumber agreed to indem nify, defend, and hold Paschen 10 R. Doc. 1 at 3 ¶ 8. See also R. Doc. 214-10 at 1, 6, 12. R. Doc. 1 at 3-4 ¶ 9. See also R. Doc. 214-11 at 1. 12 R. Doc. 217-27 at 4; R. Doc. 214-13 at 4. 13 R. Doc. 213-13 at 1, 6; R. Doc. 213-29 at 1. 14 R. Doc. 214-14; R. Doc. 214-30 . 15 R. Doc. 214-31 (Osborne Project); R. Doc. 214-15 (South Plaquem ines Project). 3 11 harm less from any claim s, liens, or other expenses that arose from or in connection with 84 Lumber’s work on the projects. 16 On or about May 17, 20 12, 84 Lumber cancelled its November 20 11 sworn statem ents for both projects and rem oved them from the mortgage records of Orleans Parish and Plaquem ines Parish, respectively. 17 Less than one m onth after cancelling both statem ents, on J une 8, 20 12, 84 Lum ber filed two new sworn statem ents of claim s, one for each project. 84 Lum ber claim ed $ 80 8,520 .39 for the Osborne Project, and $ 1,0 42,0 80 .0 9 for the South Plaquem ines Project. 18 84 Lum ber reflected in two J une 20 12 letters m ailed to the Plaquem ines Parish School Board, and to the Louisiana Departm ent of Education and the Sureties, respectively, that 84 Lumber had em ailed Paschen’s attorney Seem ann copies of the sworn statements. 19 On J uly 5, 20 12, 84 Lum ber sued Paschen and the Sureties, alleging that 84 Lumber was not paid in full for work performed under its Master Service Agreem ent with J & A. 20 84 Lum ber sued under the LPWA, seeking 16 R. Doc. 214-31 at 2; R. Doc. 214-15 at 2. R. Doc. 214-20 ; R. Doc. 210 at 8. 18 R. Doc. 214-32 at 4 (Osborne Project); R. Doc. 214-21 at 7 (South Plaquem ines Project). 19 R. Doc. 214-22 at 1; R. Doc. R. Doc. 213-32 at 1. 20 R. Doc. 1. 4 17 payment on its J une 20 12 Sworn Statem ents of Claim s from both Paschen and the Sureties, and brought a claim of unjust enrichm ent. 21 On February 5, 20 13, 84 Lumber am ended its com plaint to add a breach of contract claim , as well as a claim for payment for m aterials and additional work perform ed outside of the Master Service Agreem ent. 22 Paschen answered 84 Lumber’s com plaint and added J & A as a third-party defendant. 23 The case was stayed for nearly three years while the parties were to pursue their claim s through arbitration. 24 On J anuary 13, 20 16, the case was reassigned from J udge Helen Berrigan to this Court for all further proceedings. 25 On May 5, 20 16, the Court granted 84 Lum ber’s m otion to lift the stay and to dism iss J & A’s claim s against 84 Lumber for failure to prosecute. 26 21 22 23 24 Id. at 4-6 ¶¶ 13-14, 16, 18. R. Doc. 28 at 4, 6 ¶¶ 10 , 20 . R. Doc. 25. For a history of the failed arbitration process, see R. Doc. 151 at 1-6. 25 R. Doc. 144. R. Doc. 151. J & A’s claim s were also dism issed against Maggie’s Managem ent, LLC. 5 26 With the case reopened, defendants now m ove for partial sum m ary judgm ent on 84 Lum ber’s LPWA claims and its unjust enrichm ent claim . 84 Lum ber filed a response, 27 and defendants replied. 28 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 27 28 R. Doc. 222. R. Doc. 228. 6 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for 7 trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION 84 Lumber asserts two claim s under the LPWA: 1) recognition and enforcem ent of its sworn statement of claim s for am ounts owed to 84 Lum ber; and 2) a payment claim seeking interest, costs, and attorneys’ fees. 29 Defendants argue that the two LPWA claim s m ust be dism issed because 84 Lumber failed to com ply with the statute’s notice requirements. 30 As to the unjust enrichm ent claim , defendants argue that this claim m ust be dism issed because 84 Lumber has other legal remedies available. 31 29 R. Doc. 1 at 4-5 ¶¶ 12-14, 15-16. R. Doc. 220 -1 at 9-14. Defendants also argue, independently of its notice argument, that 84 Lumber released and waived both of its LPWA claim s against them in the May, 20 12 agreements with Paschen. Id. at 15. Because the Court resolves this m otion on the notice argum ent, it does not reach defendants’ waiver argum ent. 31 Id. at 17. 8 30 A. W aive r o f D e fe n s e s 84 Lumber contends that defendants’ notice and waiver argum ents are affirm ative defenses and that defendants failed to plead or preserve them properly. 32 Thus, according to 84 Lumber, these defenses are not properly before the Court. The Court rejects this argument. Although defendants’ 20 13 answer does not specifically m ention these defenses, the February 10 , 20 17 pretrial order, signed by the parties, includes them both. 33 It “‘is a wellsettled rule that a joint pretrial order signed by both parties supersedes all pleadings and governs the issues . . . to be presented at trial.’” Vanhoy v. United States, 514 F.3d 447, 450 n.10 (5th Cir. 20 0 8) (quoting McGehee v. Certainteed Corp., 10 1 F.3d 10 78, 10 80 (5th Cir. 1996)). Additionally, after the trial date was continued, the Court’s March 2, 20 17 Scheduling Order allowed the parties to am end their pleadings. 34 Paschen and the Sureties both filed am ended answers that pleaded the notice and waiver defenses. 35 Moreover, there is a good faith exception to waiver of affirm ative defenses when the defense is raised after the pleadings but there is no undue 32 R. Doc. 222 at 4. See R. Doc. 210 at 22 (“84 Lumber did not provide proper notice to Paschen with regard to its LPWA claim s.”); Id. at 23 (discussing May 20 12 agreements and arguing that the “agreements are binding and enforceable, and defeat 84 Lumber’s present claim s.”). 34 R. Doc. 216 at 2. 35 See R. Doc. 223 at 6; R. Doc. 224 at 6. 9 33 prejudice. Kariuki v. Tarango, 70 9 F.3d 495, 50 8 (5th Cir. 20 13) (“An affirm ative defense is not waived if the defendant ‘raised the issue at a pragm atically sufficient tim e, and [the plaintiff] was not prejudiced in its ability to respond.’”) (quoting Pasco ex rel. Pasco v. Knoblauch, 556 F.3d 572, 577 (5th Cir. 20 0 9) (citation om itted)). 84 Lumber has not even attem pted to show prejudice. Further, it has had am ple opportunity to respond to these defenses, since it signed the pretrial order which included them , and had the benefit of a continuance to address them . As defendants’ did not waive their affirm ative defenses, the Court will proceed to address them . B. N o tice U n d e r th e LPW A Under the Louisiana Public Works Act, contracts for projects like the Osborne Project and the South Plaquem ines Project require bonds “for the payment by the contractor or subcontractor to claim ants as defined in R.S. 38:2242.” See La. Rev. Stat. § 38:2241(A)(2). Section 2242(A)(1) defines a “claim ant” as: any person to whom m oney is due pursuant to a contract with the owner or a contractor or subcontractor for doing work, perform ing labor, or furnishing m aterials or supplies for the construction, alteration, or repair of any public works, or for transporting and delivering such m aterials or supplies to the site of the job by a for-hire carrier, or for furnishing oil, gas, electricity, or other m aterials or supplies for use in m achines 10 used in the construction, alteration, or repair of any public works, . . . Id. § 38:2242(A)(1). The LPWA provides two avenues of relief for “claim ants” who are owed m oney for work on public work projects. They can file an action against the general contractor and the sureties on the project’s statutory bond, or they can seek “the unexpended fund[s] in the possession of the public entity with whom the original contract was entered into” by filing an action against the public authority. Pierce Foundations, Inc. v. Jaroy Const., Inc., 190 So. 3d 298, 30 1 (La. 20 16) (quoting W ilkin v. Dev Con Builders, Inc., 561 So. 2d 66, 70 (La. 1990 )). Here, 84 Lum ber’s LPWA claim s are actions on the projects’ statutory bonds, and 84 Lum ber does not seek m oney from the contracting public authorities. Section 2247 governs the notice requirem ents for actions seeking payment from a project’s statutory bonds, and states: Nothing in this Part shall be construed to deprive any claim ant, as defined in this Part and who has com plied with the notice and recordation requirem ents of R.S. 38:2242(B), of his right of action on the bond furnished pursuant to this Part, . . .; except that before any claim ant having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall in addition to the notice and recordation required in R.S. 38:2242(B) give written notice to said contractor within fortyfive days from the recordation of the notice of acceptance by the owner of the work or notice by the owner of default, stating with substantial accuracy the am ount claim ed and the nam e of the 11 party to whom the m aterial was furnished or supplied or for whom the labor or service was done or perform ed. Such notice shall be served by m ailing the sam e by registered or certified m ail, postage prepaid, in an envelope addressed to the contractor at any place he m aintains an office in the state of Louisiana. La. Rev. Stat. § 38:2247. If the claim ant and the general contractor are in contractual privity, then the claim ant need not file a sworn statem ent in order to have a right of action against the general contractor and its surety. Pierce, 190 So. 3d at 30 4-0 5. If, as here, the claim ant is not in contractual privity with the general contractor, the claim ant will not have a right of action under the LPWA against the contractor or its sureties unless it satisfies the requirements of section 2247. In other words, the claim ant m ust provide written notice to the contractor, stating with substantial accuracy the am ount claim ed and the party to whom the labor or material was supplied, by registered or certified m ail, addressed to the contractor at its office in Louisiana. Com pliance with section 2247 is a prerequisite to a right of action, and failure to com ply warrants dism issal. See Interstate Sch. Supply Co. v. Guitreau’s Const. & Consulting Co., 542 So. 2d 138, 139 n.1 (La. App. 1 Cir. 1989); Electric Supply Co., Inc. v. Great Am . Ins. Co., 973 So. 2d 827, 830 (La. App. 2 Cir. 20 0 7) (“[T]he notice referenced in [section] 2247 is to be given to the contractor to preserve the right of action against the contractor 12 or the surety.”); See also, e.g., J. Reed Constructors, Inc. v. Roofing Supply Grp., L.L.C., 135 So. 3d 752, 754-56 (La. App. 1 Cir. 20 13). Whether a claim ant has satisfied the notice requirem ent is a legal question of statutory interpretation. J. Reed at 756. (citing Livingston Parish Council on Aging v. Graves, 10 5 So. 3d 683, 685 (La. 20 12)). The Louisiana Supreme Court has stated that “as a general rule, lien statutes [like the LPWA] are stricti juris and should thus be strictly construed.” Guichard Drilling Co. v. Alpine Energy Servs., Inc., 657 So. 2d 130 7, 1313 (La. 1995) (italics in original); see also W ilkin, 561 So. 2d at 71 (noting that the LPWA should be “strictly construed such that the privileges granted are not extended beyond the statute[]”). As such, the Court cannot ignore the language of section 2247. See Interstate Sch. Supply Co., 542 So. 2d at 139 (“[T]he specific language of [section] 2247 requires com pliance with the notice requirem ents in order to proceed ‘on the bond.’ The clear language cannot be ignored.”). Defendants argue that 84 Lum ber failed to com ply with the LPWA notice requirem ents for its J une 20 12 claim s, and point to the lack of evidence of any com m unication from 84 Lumber, m ailed to Paschen at its office in Louisiana, 36 regarding the J une 20 12 claim s. Further, defendants 36 At all tim es relevant to this lawsuit, Paschen m aintained an office in New Orleans, Louisiana at 541 J ulia Street, Suite 30 2. R. Doc. 214-9 at 1; R. Doc. 214-26 at 1. 13 argue that any com m unications regarding the Decem ber 20 11 sworn statements cannot satisfy the notice requirem ent because 84 Lumber cancelled those statem ents in May of 20 12. 84 Lumber does not rely on its December 1, 20 11 letter to Paschen in its opposition. Instead, 84 Lum ber argues that Paschen had actual notice of its claim s by virtue of 84 Lum ber’s filing its com plaint, as well as em ails sent to Paschen’s then-attorney Charles Seemann, which 84 Lum ber asserts attached copies of its sworn statem ents of claim s. 37 84 Lum ber acknowledges that its em ailed com munications m ay not fully satisfy the language of section 2247, but argues that all that is required under section 2247 is actual notice. 38 As to 84 Lumber’s assertion that its com plaint serves as notice under section 2247, this argument is foreclosed by the plain language of section 2247. The section states “before any claim ant . . . shall have a right of action . . . he shall . . . give written notice.” La. Rev. Stat. § 38:2247. A com plaint asserting a right of action cannot serve as statutorily required notice if the notice is required before one has the right of action. 37 38 R. Doc. 222 at 5-6. Id. at 6. 14 In addition to the com plaint, 84 Lumber asserts that two J une 20 12 em ails sent to Charles Seem ann satisfy the notice requirem ents of section 2247. In doing so, 84 Lumber relies on two letters m ailed on J une 19, and J une 20 , 20 12, respectively. 39 The J une 19 letter was m ailed from 84 Lum ber’s attorney Beatriz Richm ond to the Louisiana Department of Education and the Sureties, and referred to the Osborne Project, while the J une 20 letter, also m ailed from Richm ond, referred to the South Plaquem ines Project and was sent to the Plaquem ines Parish School Board. 40 The bottom of both letters state, “cc: Charles F. Seem ann, J r. (via e-m ail only w/ encl.)”. 41 84 Lumber also subm its the affidavit of J o A. Troiani, a legal secretary with Baker, Donelson, the law firm representing 84 Lumber. 42 Troiani attests that she personally emailed copies of the above J une 20 12 letters to Seem ann, each with the sworn statement of claim attached. 43 84 Lumber did not subm it copies of the em ails to Seem ann, 44 and there is no evidence in the record to indicate that Seem ann received the em ail, or 39 R. Doc. 214-32; R. Doc. 214-23. R. Doc. 214-32 at 1; R. Doc. 214-23 at 1. 41 Id. 42 R. Doc. 222-3. 43 R. Doc. 222-3 at 2 ¶¶ 5, 7. 44 Given that 84 Lumber should be in possession of copies of these em ails, 84 Lum ber’s failure to subm it them is curious. 15 40 notified Paschen of its contents. 45 The defendants do not concede that Seem ann received the em ails, but argue that even if he did, the em ails regarding the J une 20 12 claim s for the Osborne and South Plaquem ines Project do not satisfy section 2247. It is undisputed that any em ail sent to Seem ann is not a “m ailing . . . by registered or certified m ail, postage prepaid, . . . addressed to the contractor at any place he maintains an office in the state of Louisiana.” La. Rev. Stat. § 38:2247. 84 Lumber cites no case accepting an em ail as sufficient notice under section 2247, or any case finding comm unications sent only to a contractor’s counsel, and not the contractor itself at its Louisiana office, as sufficient under section 2247. Acknowledging this, 84 Lumber argues that regardless of a com m unication’s deficiencies under the plain language of section 2247, a claim ant com plies with section 2247 as long as the general contractor has “actual notice.”46 This argument, which is counter to the clear text of section 2247, has not been addressed by The Louisiana Supreme Court. Further, no Louisiana appellate case has held that actual notice is all that section 2247 requires, regardless of the extent of noncom pliance with the text of the section. 45 Seem ann withdrew as defendants’ attorney in August, 20 15, nearly a year before the case was reopened. R. Doc. 136. 46 R. Doc. 222 at 6. 16 But Louisiana appellate cases have addressed sim ilar argum ents by plaintiffs seeking to ignore the clear text of notice provisions in the Public Works Acts 47 or to interpret the statute in ways that would find loose com pliance as sufficient. For the m ost part, these cases have rejected these arguments and found that the clear text cannot be ignored. For exam ple, in Interstate School Supply , it was undisputed that the claim ant com plied with the notice requirem ents of sections 2242 and 2247 forty-six days after the public authority’s acceptance of the project. 542 So. 2d at 139. The court refused to loosely interpret the requirem ent of com pliance within forty-five days of the authority’s acceptance, and found that the claim ant forfeited its right to proceed on the bond, despite being only one day late. Id. Louisiana appellate courts have held that failure to provide notice before filing a sworn statem ent of claim does not com ply with a sim ilar notice provision in section 2242(F), and this noncom pliance defeats a claim ant’s right of action. For example, in Teche Electric Supply L.L.C. v. M.D. Descant, Inc., 2 So. 3d 516 (La. App. 3 Cir. 20 0 8), the Louisiana Third Circuit Court of Appeal found that a claim ant’s failure to furnish notice of nonpaym ent before filing its lien defeated the claim ant’s claim , even though 47 Both the LPWA and the Public Works Act apply to contracts with the Louisiana Departm ent of Transportation and Developm ent. 17 defendants unquestionably had actual notice two weeks after the lien was filed. Id. at 522; see also Electric Supply Co., 973 So. 2d at 828-31 (finding that “clear” language of section 2242(F) requires notice before filing lien). In a sim ilar vein are several cases dealing with public works contracts with the Louisiana Department of Transportation and Development, which are governed by a statute with essentially identical notice requirem ents. 48 For exam ple, in both United Rentals Highw ay Technologies, Inc. v. St. Paul Surety , 852 So. 2d 120 0 (La. App. 2 Cir. 20 0 3), and Martin Marietta Materials of Louisiana, Inc. v. U.S. Fidelity and Guarantee Co., 940 So. 2d 152 (La. App. 2 Cir. 20 0 6), the plaintiffs failed to file their sworn statements in accordance with the statutory provisions. In both cases, the Louisiana Second Circuit Court of Appeal affirmed the dism issal of their claim s, despite 48 Com pare La. Rev. Stat. § 38:2247 (“[H]e shall in addition to the notice and recordation required in R.S. 38:2242(B) give written notice to said contractor within forty-five days . . . , stating with substantial accuracy the am ount claim ed and the name of the party to whom the m aterial was furnished or supplied . . . . Such notice shall be served by m ailing the sam e by registered or certified m ail, postage prepaid, in an envelope addressed to the contractor at any place he m aintains an office in the state of Louisiana.”), w ith La. Rev. Stat. § 48:256.12 (“[H]e shall in addition to the notice and recordation required in R.S. 48:256.5(B) give written notice to said contractor and surety within forty-five days . . . , stating with substantial accuracy the am ount claim ed and the nam e of the party to whom the m aterial was furnished or supplied . . . . Such notice shall be served by m ailing the same by registered or certified m ail, postage prepaid, in envelopes addressed separately to the contractor and surety at any place each maintains an office in the state of Louisiana.” 18 evidence in both cases that the defendants had actual notice. See Martin Marietta, 940 So. 2d at 157 (“It is of no m om ent that in the present case [defendant] acknowledged receiving a copy of the lien . . . or that [defendant] adm itted in his deposition to receiving a copy of the lien.”); see also id. (“In United Rentals, both [defendants] had notice, prior to [plaintiff] filing its statement of claim , that Neosho had failed to pay an invoice for goods and services provided on the project. . . . Nevertheless, despite this notice, this court still held that [plaintiff] lost its right of action because it had not com plied with [the notice provisions].”). 84 Lumber cites three older Louisiana appellate court cases in support of its actual notice argument. 84 Lum ber’s reliance on these cases is m isplaced, as none holds that any actual notice alone satisfies section 2247. In Daigle v. Donald M. Clem ent Contractor, Inc., 533 So. 2d 10 64 (La. App. 4 Cir. 1988), cited by 84 Lumber, the court analyzed the pre-1985Am endm ent version of section 2247, which allowed claim ants to provide notice by either giving written notice or sim ply by filing a sworn statement as provided in section 2242. See 533 So. 2d at 10 66 n.1. Further, it was undisputed in Daigle that the claim ant not only com plied with section 2247 by mailing a certified letter, but also personally delivered a written invoice to defendant. Id. at 10 66. Most im portantly, Daigle does not hold that 19 com pliance with section 2247 is m et whenever there is actual notice, and does not even mention “actual notice.” 84 Lumber also cites Bob McGaughey Lum ber Sales, Inc. v. Lem oine Co., 590 So. 2d 664 (La. App. 3 Cir. 1991), and Gilchrist Construction Co. v. Terral Riverservice, Inc., 819 So. 2d 362 (La. App. 3 Cir. 20 0 2). In McGaughey , the only issue for the court to resolve was whether notice that com plied with section 2247 in all aspects except that it was m ailed through regular m ail, rather than certified or registered m ail, defeats one’s claim . The court held that notice sent through regular m ail com plies with section 2247 when there is undisputed evidence that the defendant received the m ailing. McGaughey , 590 So. 2d at 667. Therefore, all that McGaughey stands for is that sending notice through regular m ail that otherwise complies with section 2247 will not defeat one’s claim s. See also Gilchrist Const. Co., 819 So. 2d 362, 366-67 (relying on McGaughey to find that notice that otherwise com plies with the statutory notice requirem ents delivered through regular m ail as opposed to certified or registered m ail will not defeat one’s claims under the Louisiana Department of Transportation and Developm ent Public Works Act). But neither McGaughey nor Gilchrist says that notice by em ail 20 to a contractor’s counsel’s em ail account, or anything about notice that is not sent to the contractor at its Louisiana office would satisfy the LPWA. 49 The cases 84 Lumber cites are distinguishable from this m atter for another reason as well. In all of them , there was undisputed evidence that the defendant-contractor had received the notice containing the statutorilyrequired inform ation sent from the plaintiffs. See Daigle, 533 So. 2d at 10 66; McGaughey , 590 So. 2d at 665; Gilchrist, 819 So. 2d at 366-67. Here, Troiani’s affidavit establishes that she sent the em ail and its attachment, but there is no evidence indicating that Seem ann received it, or that he brought it to Paschen. The Court therefore finds that failure to satisfy the requirem ents of section 2247 is not excused by em ailing counsel for the contractor. Section 2247 plainly states that claim ants shall give written notice, and said notice shall be m ailed to the contractor at its office in Louisiana. Because it is undisputed that 84 Lum ber did not send written notice to Paschen itself, at 49 McGaughey also states that Daigle “observed that what is required is actual notice.” 590 So. 2d at 666. This is incorrect, as discussed above Daigle does not m ention actual notice at all and does not hold that section 2247 solely requires actual notice. 21 its office in Louisiana—clear requirements of section 2247—the Court finds that 84 Lum ber has not satisfied section 2247. 50 The Court’s finding that the em ails to Seemann are insufficient is supported by the purpose of the delivery requirements contained in section 2247, which is to “assure actual receipt of written notice of the claim and to facilitate proof of the claim .” Martin Marietta, 940 So. 2d at 158; see also McGaughey , 590 So. 2d at 666; cf. Pow ers Regulator Co. v. Murphy ’s Plum bing Serv., Inc., 311 So. 2d 50 3, 50 5 (La. App. 4 Cir. 1975) (claim ant failed to com ply with section 2247, despite sending certified m ail, because claim ant had actual knowledge that notice was never received). As m entioned above, there is no evidence in the record that Seem ann or Paschen received the J une 20 12 em ails. Notably, 84 Lum ber’s previous com m unications with Seem ann were not sent via em ail, but sent by certified 50 In addition, the com m unications that 84 Lumber relies on state that 84 Lum ber is owed $ 1,850 ,60 0 .48, but 84 Lumber’s com plaint seeks that am ount plus “the full am ount of all extra work perform ed by 84 Lum ber,” all apparently under the payment bond. R. Doc. 1 at 6. 84 Lum ber’s amended com plaint seeks m ore than $ 3,20 0 ,0 0 0 in extra work, so 84 Lumber claim s it is owed over $ 5,0 0 0 ,0 0 0 . R. Doc. 28 at 4 ¶ 10 . 84 Lum ber was required to state with substantial accuracy the am ount it is claim ing, but a claim for $ 1,850 ,60 0 .48 is not substantially accurate if the claim ant actually seeks additional unquantified am ounts, or over $ 5,0 0 0 ,0 0 0 . 22 m ail, and the record contains Seemann’s acknowledged receipts of those letters. 51 Additionally, this Court, applying Louisiana law sitting in diversity, m ust be cautious about adopting “substantive innovation” in state law. See, e.g., Rhy nes v. Branick Mfg. Corp., 629 F.2d 40 9, 410 (5th Cir. 1980 ); Cim ino v. Ray m ark Industries, Inc., 151 F.3d 297, 313-14 (5th Cir. 1998) (collecting cases); see also Com bs v. Int’l Ins. Co., 354 F.3d 568, 577-78 (6th Cir. 20 0 4) (collecting federal cases that explain that federal courts “m ust proceed with caution when m aking pronouncem ents about state law”) (citations om itted). It is not the role of the Court to rewrite or reinterpret section 2247, that job belongs to the Louisiana Legislature and Louisiana courts. Thus, 84 Lumber has failed to com ply with the requirem ents of section 2247. As com pliance with the notice requirements of the LPWA is a prerequisite to claim s on the paym ent bonds, 84 Lumber’s LPWA claim s fail, and defendants are entitled sum m ary judgm ent on these claim s as a m atter of law. 52 51 See, e.g., R. Doc. 214-13 at 1, 6; R. Doc. 214-14 at 2, 4. As m entioned above, because insufficient notice is fatal to 84 Lum ber’s LPWA claim s, the Court need not address defendants’ argument that 84 Lum ber waived its claim s in the May 20 12 Defense and Indem nity Agreements. 23 52 C. U n ju s t En rich m e n t That 84 Lumber did not com ply with section 2247 does not affect its unjust enrichm ent claim . But the unjust enrichm ent claim fails for two different reasons. First, the LPWA provides exclusive rem edies to aggrieved parties in public works projects. See State Through Div. of Adm in. v. McInnis Bros. Const., 70 1 So. 2d 937, 944 (La. 1997). Second, under Louisiana law, unjust enrichm ent is a quasi-contractual remedy, and one cannot assert a claim for unjust enrichm ent if other remedies are available. See La. Civ. Code art. 2298 (stating that unjust enrichm ent “shall not be available if the law provides another rem edy”). Therefore, 84 Lum ber cannot bring a claim for unjust enrichment. See, e.g., Bd. of Sup’rs of Louisiana State Univ. v. Louisiana Agr. Fin. Auth., 984 So. 2d 72, 81 (La. App. 1 Cir. 20 0 8) (noting that availability of LPWA rem edies precludes unjust enrichment claim s, and that a claim ant is not entitled to assert a claim of unjust enrichm ent if the claim ant fails to com ply with the LPWA). Defendants are entitled sum m ary judgm ent as a matter of law on 84 Lum ber’s unjust enrichm ent claim . 53 53 84 Lumber concedes that it cannot bring an unjust enrichm ent claim . R. Doc. 222 at 12. 24 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s m otion for partial sum m ary judgm ent. 16th New Orleans, Louisiana, this _ _ _ _ _ day of May, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 25