Hi-Tech Electric, Inc. of Delaware v. T&B Construction and Electrical Services, Inc., No. 2:2015cv03034 - Document 112 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 92 Plaintiff Hi-Tech's Motion to Dismiss defendant T&B Construction and Electrical Services, Inc.'s first, fourth, sixth, eighth, and ninth causes of action in the counterclaim.. Signed by Judge Sarah S. Vance on 2/15/17. (jjs)
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Hi-Tech Electric, Inc. of Delaware v. T&B Construction and Electrical Services, Inc. Doc. 112 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA HI-TECH ELECTRIC, INC. OF DELAWARE VERSUS CIVIL ACTION NO. 15-30 34 T&B CONSTRUCTION AND ELECTRICAL SERVICES, INC. SECTION “R” (4) ORD ER AN D REASON S Before the Court is plaintiff Hi-Tech Electric, Inc. of Delaware’s (HTE) m otion to dism iss defendant T&B Construction and Electrical Services, Inc.’s (T&B) first, fourth, sixth, eighth, and ninth causes of action.1 For the following reasons, the Court GRANTS plaintiff’s m otion. I. BACKGROU N D HTE is a Delaware corporation based in Houston, Texas,2 and T&B is a Louisiana corporation and a certified Service Disabled Veteran Owned Sm all Business.3 On or around Septem ber 30 , 20 0 9, Clark/ McCarthy Healthcare Partners J V (CMHP) entered into a contract with the United 1 2 3 R. Doc. 92. Id. at 1 ¶¶ 1-2. R. Doc. 90 at 2 ¶ 3. Dockets.Justia.com States of Am erica, by and through the Departm ent of Veterans Affairs, to perform work for the Southeast Veterans Healthcare System Replacem ent Hospital in New Orleans (the VA Project).4 HTE and T&B both sought to take advantage of program s through the Sm all Business Adm inistration, and decided to cooperatively perform work for the VA project.5 On or about August 24, 20 11, HTE and T&B entered into a Team ing Agreem ent, pursuant to which HTE and T&B agreed to cooperate on proposals for the VA Project.6 The Team ing Agreem ent also provided that if T&B were awarded contracts for the VA Project, then T&B and HTE would negotiate in good faith for subcontracts to perform work pursuant to those contracts.7 On or about J anuary 18, 20 12, CMHP entered into a written subcontract (Pan Am Subcontract) with T&B in which T&B agreed to perform electrical work for the VA project in the Pan Am building in New Orleans (Pan Am Project).8 The Pan Am Subcontract included work to be perform ed by HTE, as set forth in the Team ing Agreem ent.9 T&B was also awarded a contract to build a parking structure for the VA Project.10 Both 4 5 6 7 8 9 10 R. Doc. 1 at 2 ¶ 10 . Id. at 3-4 ¶¶ 12-16. R. Doc. 1 at 3 ¶ 11. R. Doc. 1-1 at 3 ¶ 6.1 R. Doc. 1 at 3 ¶ 13. Id. ¶ 14. R. Doc. 90 at 6 ¶ 36. 2 contracts established that T&B would be the Prim e Subcontractor, and that T&B would use HTE as a sub-subcontractor. 11 On or about May 29, 20 13, the parties entered into a Mem orandum of Understanding (MOU), which addressed the work to be perform ed by each party and the m anner in which paym ents would be m ade for work done on the VA Project.12 From this date forward, the facts are disputed. HTE alleges that it properly and tim ely perform ed its work on the Pan Am Project but has not yet been paid. 13 HTE further alleges that despite the VA’s approval of HTE’s applications for paym ent and CMHP’s willingness to pay HTE, T&B has dem anded that HTE not be paid.14 Therefore, HTE alleges that T&B breached both the Team ing Agreem ent and the MOU.15 T&B offers a different picture. According to T&B, HTE has failed to m ake good on m any of the prom ises contained in the Team ing Agreem ent, and these breaches resulted in HTE’s default under the Team ing Agreem ent.16 T&B further alleges that the MOU is unenforceable because it is contrary to public policy and illegal.17 11 12 13 14 15 16 17 Id. at 6-7 ¶¶ 36, 38. R. Doc. 1 at 3 ¶ 15. Id. at 4 ¶ 16. Id. ¶ 17. Id. at 4-8. R. Doc. 90 at 17-21. Id. at 13 ¶ 73. 3 Additionally, T&B alleges throughout its counterclaim that HTE has violated m ultiple federal laws and regulations.18 On J uly 29, 20 15, HTE filed its com plaint against T&B, and brought claim s for breach of both the Team ing Agreem ent and the MOU, as well as for violation of the Louisiana Prom pt Paym ent Statute, La. Stat. Ann. § 9:2784.19 On Novem ber 1, 20 16, T&B filed a counterclaim against HTE, asserting nine causes of action.20 Specifically, T&B alleges tortious interference with contract, m alicious negligence, breach of fiduciary duty, negligent m isrepresentation of m aterial facts, breach of contract through negligent m isrepresentation of m aterial facts, breach of contract through intentional interference with enrichm ent, and conversion.21 contract, breach of contract, unjust Both parties seek dam ages, reasonable attorneys’ fees, and costs.22 HTE now m oves the Court to dism iss five of the nine causes of action in T&B’s counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6). T&B filed a response in opposition,23 and HTE replied.24 18 19 20 21 22 23 24 See generally R. Doc. 90 . R. Doc. 1 at 4-7. R. Doc. 90 . Id. at 27-52. R. Doc. 1 at 9; R. Doc. 90 at 53. R. Doc. 99. R. Doc. 10 8. 4 II. LEGAL STAN D ARD When a defendant attacks the com plaint because it fails to state a legally cognizable claim , Rule 12(b)(6) provides the appropriate challenge. To survive a Rule 12(b)(6) m otion to dism iss, plaintiffs m ust plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). A claim is facially plausible when a plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all wellpleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiffs. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 232-33 (5th Cir. 20 0 9); Baker v. Putnal, 75 F.3d 190 , 196 (5th Cir. 1996). 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 plaintiffs’ 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 elem ents of a cause of action. Tw om bly , 550 U.S. at 555. 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 5 of each elem ent of the plaintiffs’ claim . Lorm and, 565 F.3d at 255-57. If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim m ust be dism issed. III. D ISCU SSION A. Cau s e o f Actio n On e —To rtio u s In te rfe re n ce w ith Co n tract The first cause of action in T&B’s counterclaim is for tortious interference with contract. T&B alleges that after it was awarded the Pan Am Project, HTE interfered with this contract by refusing to enter into good faith negotiations with T&B, refusing to provide m entoring to T&B as prom ised, and refusing to com ply with the Project’s Sm all Business Subcontracting Program under federal regulations.25 In its m otion to dism iss, HTE argues that under Louisiana law tortious interference with contract claim s cannot be m aintained against corporate entity defendants.26 To resist this conclusion, T&B argues that despite only suing HTE and none of its 25 26 R. Doc. 90 at 27 ¶ 159. R. Doc. 92-1 at 5. 6 corporate officers individually, it m akes allegations against individual officers of HTE and therefore its tortious interference claim should survive. 27 Louisiana courts and federal courts applying Louisiana law have m ade clear that claim s for tortious or intentional interference with a contract cannot be m aintained against corporate defendants. The Louisiana Suprem e Court recognized a narrow cause of action of tortious interference in 9 to 5 Fashions, Inc. v. Spurney , 538 So. 2d 228 (La. 1989). Spurney recognized that an action for tortious interference with contract could be m aintained against a corporate officer if a plaintiff had a contract or legally protected interest with the officer’s corporation, the officer knew of the contract, and the officer intentionally and without justification caused the corporation to breach the contract and dam age the plaintiff. Id. at 234. But Louisiana courts have not expanded the lim ited scope of Spurney to other situations, see Petrohaw k Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380 , 395 (5th Cir. 20 12) (collecting cases), and have continued to hold that there can be no claim for tortious interference against the corporate entity itself. See, e.g., Restivo v. Hanger Prosthetics & Orthotics, Inc., 483 F. Supp. 2d 521, 536 (E.D. La. 20 0 7) (holding that tortious interference with contract “cannot be m aintained against a corporate entity defendant”) (citing Tech. 27 R. Doc. 99 at 3. 7 Control Sy s., Inc. v. Green, 80 9 So. 2d 120 4, 120 7 (La. App. 3 Cir. 20 0 2); Boudreaux v. OS Restaurant Services, L.L.C., 58 F. Supp. 3d 634, 638-39 (E.D. La. 20 14) (dism issing tortious interference with contract claim against corporate defendant). Therefore, there can be no claim of tortious interference with contract against HTE itself. It is undisputed that T&B’s counterclaim is brought solely against HTE as a corporate entity, and that no individual em ployee of HTE has been sued. T&B’s counterclaim does m ake allegations against individual em ployees of HTE, but contains no specific allegations against them related to tortious interference with the Pan Am Subcontract. In the section of T&B’s counterclaim titled “Cause of Action Num ber One: Hi-Tech’s Tortious Interference with T&B’s Prim e Subcontract,” there is no m ention whatsoever of any individual officer of HTE, and the section is clearly focused on the actions of HTE as an entity. Further, T&B’s response to this m otion does not specifically identify any allegations in its counterclaim tying the actions of an officer of HTE to interference with T&B’s contract with CMHP. Instead, it alleges that its counterclaim uses HTE and its individual em ployees interchangeably. That argum ent is unavailing. Thus, as T&B’s tortious 8 interference with contract cause of action cannot be m aintained against a corporate defendant, it m ust be dism issed.28 B. Cau s e o f Actio n Fo u r—N e glige n t Mis re p re s e n tatio n o f Mate rial Facts T&B’s fourth cause of action is for negligent m isrepresentation of m aterial facts, and “unauthorized use of T&B’s contract authority and its nam e in com m ission of a felony.”29 T&B alleges that HTE subm itted false tax inform ation and m anipulated cost reports, affidavits, and change orders to defraud the federal governm ent and the Louisiana Departm ent of Revenue.30 T&B further alleges that these m anipulations and m isrepresentations not only violated federal laws and regulations, but also dam aged T&B, because T&B will ultim ately be responsible for “returning to 28 Additionally, T&B’s claim is defective even if it were filed against an individual officer of HTE. T&B’s counterclaim alleges that HTE interfered with a contract between CMHP and T&B and caused CMHP to violate the contract. R. Doc. 99 at 4. But Spurney was lim ited to actions against a corporate officer for interference with “the contractual relation between [the defendant officer’s] em ploy er and a third person.” 538 So. 2d at 234 (em phasis added); see also Matrix Essential, Inc. v. Em porium Drug Mart, Inc., 756 F. Supp. 280 , 284 (W.D. La 1991) (noting that Spurney “recognized only an action wherein a corporate officer causes his ow n corporation to breach a contract between his ow n corporation and the plaintiff) (em phasis in original). Thus, T&B cannot bring a tortious interference claim against an officer of HTE for tortious interference with a contract between CMHP and T&B that CMHP allegedly breached. 29 R. Doc. 90 at 36. 30 Id. at 36-43. 9 the governm ent the am ounts credited back to HTE in its $ 90 ,0 0 0 tax credit schem e,” and T&B is now at risk of default. 31 Unlike HTE’s other attacks on T&B’s counterclaim , HTE’s attack on T&B’s fourth cause of action is brought on standing grounds. A standing m otion challenges the Court’s subject m atter jurisdiction, and it is governed by Federal Rule of Civil Procedure 12(b)(1). Standing consists of three elem ents: (1) the plaintiff m ust have suffered an “injury-in-fact,” which is an “actual or im m inent” invasion of a legally protected interest that is “concrete and particularized”; (2) the injury m ust be “fairly traceable” to the challenged conduct of the defendant; and (3) it m ust be likely that plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 (1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each elem ent. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). Further, “a plaintiff m ust dem onstrate standing for each claim he seeks to press.” Daim lerChry sler Corp. v. Cuno, 547 U.S. 332, 352 (20 0 6) (citing Allen v. W right, 468 U.S. 737, 752 (1984). HTE argues that, by T&B’s own allegations, T&B has not yet paid the governm ent for tax credits HTE allegedly im properly received, nor does it 31 Id. at 42 ¶¶ 264, 266 10 allege that it is actually in default. 32 Therefore, T&B has not yet been injured by any of HTE’s alleged m isrepresentations or m anipulations. In response, T&B argues that “default is a very real possibility.” Even if default is “a very real possibility,” this alone, without m ore, is insufficient to establish standing. Injuries m ust be actual or im m inent, and not “conjectural or hypothetical.” Lujan, 50 4 U.S. at 560 . And while threat of future injuries can be sufficient to confer standing, the threat m ust not be speculative or based on assum ptions, but m ust be “certainly im pending.” Clapper v. Am nesty Intern. USA, 133 S. Ct. 1138, 1147 (citation om itted). T&B bears the burden of showing that default is certainly im pending, and has not alleged facts indicating that default is certainly im pending, or im pending at all. Therefore, the risk of default in the future is insufficient to establish an injury-in-fact. T&B also argues it has suffered an injury-in-fact because it cannot “transact” (i.e., subm it) paym ent applications because of HTE’s actions. But nowhere in T&B’s counterclaim does T&B m ake any allegations related to its ability to transact paym ent applications, m uch less that HTE’s negligent m isrepresentations affected T&B’s ability to transact paym ent applications. “An opposition to a m otion to dism iss is not the place for a party to raise new 32 R. Doc. 92-1 at 6. 11 factual allegations.” Sartin v. EKF Diagnostics, Inc., No. 16-1816, 20 16 WL 3598297, at *4 (E.D. La. J uly 5, 20 16) (quoting Peter-Takang v. Dep’t of Children & Fam ily Servs., No. 14-10 78, 20 16 WL 69633, at *4 (E.D. La. J an. 6, 20 16)); see also Fin. Acquisition Partners LP v. Blackw ell, 440 F.3d 278, 289 (5th Cir. 20 0 6). Therefore, the well-pleaded factual allegations in T&B’s counterclaim do not establish that HTE’s actions have harm ed T&B’s ability to transact paym ent applications. Finally, T&B’s opposition discusses the False Claim s Act, 31 U.S.C. § 3729, including the definitions of words within the Act and caselaw on legal falsity and factual falsity under the Act.33 T&B is apparently arguing that it is obligated to return any m oney to the governm ent that is tainted by fraud and disclose any knowledge of fraud to the governm ent, or face liability under the False Claim s Act. Like the allegations relating to T&B’s ability to transact paym ents, these allegations on FCA liability are m issing from T&B’s counterclaim . Further, to the extent T&B’s argum ent suggests that HTE’s actions will result in future False Claim s Act liability for T&B, this future injury is too speculative and conjectural to establish an injury-in-fact. 33 R. Doc. 99 at 5-8. 12 T&B bears the burden of showing that it has suffered an injury-in-fact, and therefore has standing to bring its negligent m isrepresentation claim . It has failed to do so, and thus T&B’s fourth cause of action m ust be dism issed. C. Cau s e o f Actio n Six—Bre ach o f Co n tract fo r In te n tio n ally In te rfe rin g w ith T&B’s Co n tract w ith CMH P T&B’s sixth cause of action is sim ilar to its first, alleging that HTE interfered with T&B’s subcontract with CMHP by fraudulently m isrepresenting the status of T&B’s and HTE’s negotiations and by m isleading CMHP into term inating its contract with T&B.34 HTE argues that despite the reference to breach of contract in the title, this cause of action is really for tortious interference with contract, and therefore m ust fail for the sam e reasons that doom T&B’s first cause of action.35 In response, T&B contends the cause of action is one for negligent m isrepresentation. A legally sufficient com plaint m ust “give the defendant fair notice of what the claim is.” Tw om bly , 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal alterations om itted). Despite T&B’s belated attem pt to recast its claim as one for negligent m isrepresentation, the title of its sixth cause of action, as well as the allegations contained within it, 34 35 R. Doc. 90 at 48-51. R. Doc. 92-1 at 7. 13 dem onstrate that T&B is either asserting a cause of action for tortious interference with contract, or a cause of action based on HTE’s alleged intentional and/ or fraudulent actions. In fact, this section of T&B’s counterclaim not only fails to m ention negligence at all, but also claim s that each of HTE’s alleged m isrepresentations are either intentional or fraudulent.36 Other sections of T&B’s coun terclaim specifically allege negligent m isrepresentation, so the om ission of allegations of negligent m isrepresentation here seem s purposeful.37 The allegations in this section do not plausibly allege a claim of negligent m isrepresentation. The Court will not allow T&B to rewrite its counterclaim s through its response to the m otion to dism iss, as doing so would deprive HTE of the fair notice that the Federal Rules and Tw om bly require. Given that what T&B does allege here is closer to a cause of action for tortious interference with contract, this cause of action fails for the sam e reason identified above. Further, to the extent that the allegations contained in this section could be read as asserting a claim for intentional or fraudulent m isrepresentation, the claim would be insufficient under Federal Rule of Civil Procedure 9(b). Rule 9(b) im poses a heightened pleading standard for 36 R. Doc. 90 at 50 -51 ¶¶ 323, 331, 336. See, e.g., id. at 43 ¶ 271 (“The negligent m isrepresentation by Hi-Tech . . .”). 14 37 fraud claim s, including state-law fraud claim s. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 20 0 8). The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statem ents contended to be fraudulent, identify the speaker, state when and where the statem ents were m ade, and explain why the statem ents were fraudulent.” Flaherty & Crum rine Preferred Incom e Fund, Inc. v. TX U Corp., 565 F.3d 20 0 , 20 7 (5th Cir. 20 0 9), cert. denied, 588 U.S. 873 (20 0 9). In other words, “Rule 9(b) requires ‘the who, what, when, where, and how’ to be laid out.” Benchm ark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 20 0 3) (quoting W illiam s v. W MX Techs. Inc., 112 F.3d 175, 179 (5th Cir. 1997)). T&B does not identify the “who, when, and where” of the alleged m isrepresentations, and therefore if T&B’s sixth cause of action were read to be a claim for fraudulent or intentional m isrepresentation, it fails under Rule 9(b). D. Cau s e o f Actio n Eigh t—U n ju s t En rich m e n t T&B’s eighth cause of action alleges that HTE has been unjustly enriched at T&B’s expense.38 Under Louisiana law, unjust enrichm ent is a quasi-contractual rem edy, and one cannot assert a claim for unjust enrichm ent if other rem edies are available. See La. Civ. Code art. 2298 (stating that unjust enrichm ent “shall not be available if the law provides 38 Id. at 52 ¶¶ 341-343. 15 another rem edy”); United States v. Bollinger Shipy ards, Inc., No. 12-920 , 20 13 WL 3930 37, at *15 (E.D. La. J an. 30 , 20 13) (“Under Louisiana law, an unjust enrichm ent claim cannot survive when . . . there is an express contract between the parties and other rem edies at law are available.”) (citing Ham burg Steel Buildings, Inc. v. Law rence Gen. Corp., 817 So. 2d 427, 438 (La. App. 2 Cir. 20 0 2)). It is undisputed that HTE and T&B entered into two contracts, the Team ing Agreem ent and the MOU, both of which are attached to HTE’s com plaint.39 Additionally, T&B’s counterclaim alleges that HTE is liable for breach of the Team ing Agreem ent.40 Therefore, if either contract is valid and enforceable, the contract would bar T&B’s unjust enrichm ent claim . That plaintiff m ay not successfully pursue a rem edy under the contracts does not give the plaintiff a claim for unjust enrichm ent. W alters v. MedSouth Record Mgm t., LLC, 38 So.3d 241, 242 (La. 20 10 ). T&B contends that the MOU is unenforceable and invalid, and argues that this factual dispute renders dism issal of the unjust enrichm ent claim prem ature. But the Court n eed not wait to resolve a factual dispute because even if the MOU is invalid and unenforceable, the Team ing Agreem ent is 39 40 R. Doc. 1-1 (Team ing Agreem ent); R. Doc. 1-3 (MOU). R. Doc. 90 at 51. 16 valid and bars T&B’s unjust enrichm ent claim . See Drs. Bethea, Moustoukas and W eaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399, 40 8 (5th Cir. 20 0 4) (citing Edw ards v. Conforto, 636 So. 2d 90 1, 90 7 (La. 1993). In the sam e paragraph that T&B argues the MOU is unenforceable and invalid, T&B argues that the MOU term in ated the Team ing Agreem ent.41 T&B cannot have its cake and eat it too—either the MOU is invalid and the Team ing Agreem ent rem ains, or the MOU term inated the Team ing Agreem ent, and the MOU provides a rem edy barring T&B’s unjust enrichm ent claim . Either way, T&B’s unjust enrichm ent claim fails. E. Cau s e o f Actio n N in e —Co n ve rs io n Finally, HTE challenges T&B’s ninth cause of action, which alleges that HTE converted funds to which T&B is entitled.42 That the parties have a contractual relationship does not preclude delictual actions like conversion. See Carriere v. Jackson Hew itt Tax Service Inc., 750 F. Supp. 2d 694, 70 4 (E.D. La. 20 10 ). Under Louisiana law, conversion has a one year prescriptive period, and the period begins to run from the date the injury or dam age is sustained. Richard v. W al-Mart Stores, Inc., 559 F.3d 341, 345 (5th Cir. 20 0 9) (citing La. Civ. Code art. 3492). When the face of the com plaint shows 41 42 R. Doc. 99 at 12-13. R. Doc. 90 at 52 ¶ 345. 17 that the action is tim e-barred, plaintiffs bear the burden of showing that the action is not prescribed. W im berly v. Gatch, 635 So. 2d 20 6, 211 (La. 1994). T&B m akes two argum ents against prescription. First, as a threshold m atter, T&B argues that its “conversion” claim is really one for breach of contract and breach of fiduciary duty and therefore is not subject to the one year prescriptive period.43 But T&B unequivocally asserted a claim for conversion, and is alleging that “Hi-Tech has converted certain funds to which T&B is entitled.”44 Further, “even when a contract exists, unless a specific contract provision is breached, Louisiana treats the action as tort.” Richard, 559 F.3d at 345 (citing Trinity Universal Ins. Co. v. Horton, 756 So. 2d 637, 638 (La. App. 2 Cir. 20 0 0 )) (em phasis in original). T&B has not alleged what specific contractual provision HTE breached giving rise to alleged conversion. Thus, the Court finds that, based on T&B’s allegations, the ninth cause of action is a claim for conversion, and is subject to the one year lim itations period. See Carriere, 750 F. Supp. 2d at 70 4 (“The allegations in the petition generally control the true nature of the action and the applicable prescription period.”) (citations om itted). 43 44 R. Doc. 99 at 14. R. Doc. 90 at 52 ¶ 345. 18 Second, T&B argues that even if the one year period applies, the period runs from the date that T&B becam e aware of the conversion.45 Not only is this clearly incorrect as a m atter of Louisiana law, see La. Civ. Code art. 3492, but T&B also m isquotes a case to support its argum ent. In arguing that it is the date of knowledge, not date of injury, that starts the prescriptive period, T&B points to Colley v. Canal Bank & Trust Co., 64 F. Supp. 10 16, 10 19 (E.D. La. 1946), and quotes “when plaintiffs received knowledge of the dam age.”46 The next two sentences, which T&B om its, read “[t]he argum ent is not persuasive. It finds support neither in reason nor in authority.” Id. Thus, Colley unquestionably does not support T&B’s argum ent. T&B is advised for future reference not to distort cases to support its argum ents. Applying the one year prescriptive period to T&B’s allegations, T&B’s conversion claim is prescribed. T&B’s counterclaim alleges that the conversion occurred beginning in October 20 12, and ran through Decem ber 20 12.47 T&B’s response in opposition also adm its that the conversion occurred during the period of October to Decem ber 20 12. 48 Therefore, even assum ing the conversion did not occur until Decem ber 20 12, the claim 45 46 47 48 R. Doc. 99 at 14. Id. T&B underlines “when plaintiffs received knowledge . . .” R. Doc. 90 at 40 -42. R. Doc. 99 at 15. 19 prescribed by the end of 20 13, and certainly prescribed before Novem ber 20 16, when T&B filed its counterclaim. T&B’s ninth cause of action is dism issed as prescribed. IV. CON CLU SION For the foregoing reasons, HTE’s m otion to dism iss is GRANTED. T&B’s first, fourth, sixth, eighth, and ninth causes of action are DISMISSED WITHOUT PREJ UDICE. 15th New Orleans, Louisiana, this _ _ _ _ _ day of February, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 20
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