84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al, No. 2:2012cv01748 - Document 294 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 269 Paschen's motion for judgment on the pleadings. J & A's breach of contract counterclaim is DISMISSED. Signed by Judge Sarah S. Vance on 8/8/2017. (cg)
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84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al Doc. 294 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 Defendant and Third-Party Plaintiff F.H. Paschen, S.N. Nielsen & Associates, LLC (“Paschen”) m oves for judgm ent on the pleadings on J & A Construction Management Resources Com pany Inc.’s (“J & A”) counterclaim against Paschen. 1 For the following reasons, the Court grants Paschen’s 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 Paschen was the general contractor on both projects. Paschen subcontracted part of the work on the projects to J & A, and J & A subcontracted portions 1 R. Doc. 269. R. Doc. 70 . For a m ore extensive review of the facts underlying this dispute, see generally R. Docs. 151, 20 6, and 263. 2 Dockets.Justia.com of its obligations to 84 Lum ber Company. 3 The projects were backed by Continental Casualty Com pany, Safeco Insurance Company of Am erica, and Fidelity and Deposit Com pany of Maryland as sureties. On J uly 5, 20 12, 84 Lum ber sued Paschen and the surety com panies, alleging that it was not paid in full for work perform ed under its Master Service Agreement with J & A. 4 It also alleged that it was entitled to paym ent for m aterials and for additional work performed outside of the Master Service Agreement. Paschen answered 84 Lum ber’s com plaint and added J & A as a third-party defendant. 5 J & A filed an answer asserting counterclaim s against Paschen and 84 Lum ber. 6 The case was stayed for nearly three years while the parties attempted to resolve their claim s through arbitration. 7 On J anuary 13, 20 16, this case was reassigned from J udge Berrigan’s cham bers to this Court for all further proceedings. 8 On May 5, 20 16, the Court granted 84 Lumber’s motion to lift the stay in this case. 9 3 4 5 6 7 R. Doc. 20 6 at 1-2. R. Doc. 1. R. Doc. 25. R. Doc. 39. For a history of the failed arbitration process, see R. Doc. 151 at 1-6. 8 R. Doc. 144. R. Doc. 151. The Court also dism issed J & A’s claim s against 84 Lum ber and Maggie’s Management, LLC, for failure to prosecute. Id. 2 9 With the case reopened, Paschen now m oves for judgm ent on the pleadings on J & A’s breach of contract counterclaim . 10 J & A has not filed a response. II. LEGAL STAN D ARD A m otion for judgm ent on the pleadings under Federal Rule of Civil Procedure 12(c) is appropriate if the m atter can be adjudicated by deciding questions of law rather than factual disputes. Brittan Com m c’ns Int’l Corp. v. Sw . Bell Tel. Co., 312 F.3d 899, 90 4 (5th Cir. 20 0 2). It is subject to the same standard as a m otion to dism iss under Rule 12(b)(6). Doe v. My Space, Inc., 528 F.3d 413, 418 (5th Cir. 20 0 8). To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 10 R. Doc. 269; R. Doc. 39 at 15-16. 3 228, 239 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff’s claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. III. D ISCU SSION Paschen m oves for judgm ent on the pleadings to dism iss J & A’s breach of contract counterclaim . 11 All of the breach of contract allegations against Paschen are located in paragraphs 67 through 71 under the breach of contract claim heading. 12 11 R. Doc. 269. See R. Doc. 39 at 15-16. The counterclaim does not incorporate any previous or subsequent allegations m ade in J & A’s Answer. 4 12 Under Louisiana law, a plaintiff m ust prove three essential elements to prevail on a claim for breach of contract: (1) the parties consented to be bound through offer and acceptance; (2) the obligor failed to perform a conventional obligation (the breach); and (3) the failure to perform resulted in dam ages to the obligee. La. Civ. Code arts. 1927, 1994; see also Hendrickson v. Meeks Disposal Co., No. 0 8-2744, 20 0 8 WL 4657268, at *3 (E.D. La. Oct. 20 , 20 0 8); Favrot v. Favrot, 68 So. 3d 10 99, 110 8-0 9 (La. App. 4 Cir. 20 11). Here, J & A alleges that “Paschen agreed to furnish to J &A payment of the Subcontract Price under the [Subcontract 310 4-0 8 and 310 6-0 0 8] agreements.”13 J & A further alleges that it was not paid by Paschen “for the work it was hired to perform.”14 But J & A does not allege that it actually perform ed the work. In fact, the crux of J & A’s allegations is that J & A could not perform the work because 84 Lumber’s actions m ade “it im possible for J & A to perform in accordance with [its contracts with Paschen].”15 J & A points to no specific provision obligating Paschen to guarantee 84 Lumber’s perform ance under 84 Lum ber’s contract with J & A. Further, J & A does 13 Id. at 15. J & A references Subcontract 310 4-0 8; however, this subcontract is referred to as 310 4-0 0 8 or 340 1-0 0 8 in the record. See R. Doc. 214-26 at 1, 54. 14 R. Doc. 39 at 16. 15 Id. at 15 ¶¶ 67-68. 5 not even generally allege that Paschen was responsible for 84 Lum ber’s behavior, nor do its pleadings support an inference of Paschen’s responsibility. That Paschen m ay have been in com munication with 84 Lum ber generally, or that Paschen m ay have told J & A that 84 Lum ber’s behavior would change does not contractually obligate Paschen to rem edy the situation. 16 Accordingly, J & A’s allegations that Paschen is som ehow liable for 84 Lum ber’s actions, and that 84 Lum ber’s actions somehow form the basis of Paschen’s breach of its contract with J & A, do not raise a right to relief beyond a speculative level. Additionally, to state a claim for breach of contract, “a plaintiff m ust allege a breach of a specific provision of the contract.” Blackstone v. Chase Manhattan Mortg. Corp., 80 2 F. Supp. 2d 732, 738 (E.D. La. 20 11) (citing Louque v. Allstate Ins. Co., 314 F.3d 776, 782 (5th Cir. 20 0 3)); see also Sm oothie King Franchises, Inc. v. Southside Sm oothie & Nutrition Ctr., Inc., No. 11-20 0 2, 20 12 WL 1698365, at *9 (E.D. La. May 15, 20 12) (rejecting breach of contract affirm ative defense because defendants did not “allege a breach of a specific provision of the contract”). J & A refers to “Subcontract[s] 310 4-0 8 [sic] and 310 6-0 0 8” in its allegations, but did not attach either docum ent. The only docum ents attached to J & A’s Answer are 16 Id. at 16 ¶¶ 69-70 . 6 agreements between J & A and 84 Lum ber, not between J & A and Paschen. And while Subcontracts 310 4-0 0 8 and 310 6-0 0 8 between J & A and Paschen are in the record, J & A’s failure to identify a specific provision of the contract breached renders its claim legally insufficient. 17 Bean v. Am . Gen. Life Ins. Co., No. 17-57, 20 17 WL 2831692, at *2-3 (E.D. La. J une 30 , 20 17) (granting m otion to dism iss on breach of contract claim in part because of failure to identify specific provision of contract allegedly breached). Because J & A does not specifically identify the contractual provision that Paschen allegedly breached, Paschen m ust speculate as to which obligation it failed to perform . The subcontracts at issue are both over fifty pages in length and contain a m ultitude of obligations. Further, J & A’s lack of specificity means Paschen cannot know if its challenged behavior was in accordance with the contract. As Paschen points out, per provisions in Section 24 of the subcontracts, it is contractually entitled to withhold payments to J & A under certain situations. 18 For exam ple, if J & A defaults 17 The Fifth Circuit has held that a court m ay properly consider docum ents attached to a m otion to dism iss if the documents are referred to in the com plaint and central to the plaintiff’s claim . See Causey v. Sew ell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 20 0 4); Brand Coupon N etw ork, LLC v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 20 14). The subcontracts at issue are both referred to in and central to J & A’s counterclaim . 18 See R. Doc. 214-26 at 14; R. Doc. 214-9 at 14-15. 7 or fails to perform its work, Paschen m ay withhold the cost of furnishing labor and m aterials necessary for J & A’s work. 19 As m entioned above, J & A does not allege that it perform ed the work which would trigger Paschen’s obligation to pay. Thus, J & A fails to state a claim for breach of contract, and dism issal of the counterclaim is warranted. See Blackstone, 80 2 F. Supp. 2d at 738 (granting m otion to dism iss breach of contract claim because plaintiff failed to identify specific provision that was breached); Tw om bly , 550 U.S. at 555. IV. CON CLU SION For the foregoing reasons, the Court GRANTS Paschen’s m otion for judgm ent on the pleadings. J & A’s breach of contract counterclaim is DISMISSED. New Orleans, Louisiana, this _ _ _ _ _ day of August, 20 17. 8th _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 19 R. Doc. 214-26 at 14; R. Doc. 214-9 at 14-15. 8
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