Threadgill, et al v. Orleans Parish Sch, et al

Filing 210

ORDER AND REASONS the Court GRANTS Crustos motion 182 to dismiss OPSBs contributory infringement cross-claim and DENIES Crustos motion to dismiss OPSBs indemnity cross-claim. Signed by Chief Judge Sarah S. Vance on 8/28/13. (Reference: 02-1460)(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BUTCH THREADGILL, ET AL.

CIVIL ACTION

VERSUS

NO: 02-1122

ORLEANS PARISH SCHOOL BOARD, ET AL.

SECTION: R(1)

ORDER AND REASONS
Before the Court is Mitchell F. Crusto’s Rule 12 (b) (6)
motion to dismiss the cross-claims of defendant Orleans Parish
School Board (“OPSB”). For the following reasons, Crusto’s motion
is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
On January 23, 2000, a severe hail storm caused significant
roof damage to Orleans Parish schools. The City of New Orleans
(“City”) contracted with Mitchell Crusto d/b/a Angelic Asset
Management, Inc., to adjust the insurance claims for the roof
damage with the City’s insurer, CNA Insurance Company, and to
contract on an emergency basis to repair the damaged roofs.1
Crusto contracted with Butch Threadgill and Tom Weems through
their business, General Contracting and Consulting Services, LLC,
to prepare bids and estimates for loss and damage to the schools’
roofs.2

1

No. 02-1460, R. Doc. No. 1.

2

Id. at 3.

In 2002, plaintiffs filed suit against Crusto and the OPSB.3
They then filed suit against Crusto, the City, and the City’s
insurers.4 The two suits were consolidated.5 Plaintiffs allege
that they submitted repair estimates and bid proposals to Crusto
that were copyrighted to Tom Weems, all rights reserved.6
Plaintiffs also state that they negotiated damage estimates with
CNA Insurance Company.7 Plaintiffs claimed that Crusto did not
pay plaintiffs for the work done, unlawfully displayed the
copyrighted work on his website, and distributed the bids to the
City as his own for approval. Plaintiffs asserted claims under
federal and state copyright law, the Louisiana Unfair Trade
Practices Act, and state tort and contract law.
In 2003, plaintiffs and Crusto entered into an arbitration,
and all of the proceedings were stayed. The Court entered a
judgment confirming an arbitration award on June 17, 2009.8
Plaintiffs then sought to lift the stay to allow the case to
proceed among the remaining parties, which the Court granted.9 As

3

R. Doc. No. 1.

4

No. 02-1460, R. Doc. No. 1.

5

R. Doc. No. 31.

6

No. 02-1460, R. Doc. No. 1 at 4.

7

Id.

8

R. Doc. No. 84.

9

R. Doc. No. 106.
2

the parties prepared for trial, they discovered that the City had
never been notified that the stay had been lifted and trial set.
After being served, the City moved to dismiss plaintiffs’ claims.
The Court granted that motion but gave plaintiffs leave to amend
their complaint.10
On April 3, 2013, Plaintiffs filed a Consolidated Amended
Complaint asserting a claim of unjust enrichment against the City
and OPSB.11 OPSB responded by filing an answer, affirmative
defenses, and cross claims against Crusto for contributory
infringement and indemnity.12 The City had previously filed
virtually identical cross claims against Crusto.13 The Court
granted Crusto’s motion to dismiss the City’s cross claim for
contributory infringement pursuant to Rule 12 (b) (6) and denied
Crusto’s motion to dismiss the City’s indemnity cross claim as
premature.14 Here Crusto has filed a motion to dismiss the cross
claims of the OPSB pursuant to Rule 12 (b) (6) for the same
reasons as he asserted in the motion to dismiss the City’s cross
claims.
II. STANDARD

10

R. Doc. No. 156.

11

R. Doc. No. 166.

12

R. Doc. No. 178.

13

R. Doc. No. 163.

14

R. Doc. No. 184.
3

To survive a Rule 12 (b) (6) motion to dismiss, the
plaintiff must plead enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “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. A court must accept all well-pleaded facts as true
and must draw all reasonable inferences in favor of the
plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th
Cir. 2009). 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 complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause
of action. Id. In other words, the face of the complaint must
contain enough factual matter to raise a reasonable expectation
that discovery will reveal evidence of each element of the
plaintiff’s claim. Lormand, 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
complaint that there is an insuperable bar to relief, the claim
must be dismissed. Twombly, 550 U.S. at 555.

4

III. DISCUSSION
A. Contributory Infringement
As was noted in the order granting Crusto's motion to
dismiss the City's contributory infringement claim,15 plaintiffs
did not include a claim for direct copyright infringement in the
Consolidated Amended Complaint.

In the absence of such a claim,

the cross claim for contributory infringement cannot succeed. “A
party is liable for contributory infringement when it, with
knowledge of the infringing activity, induces, causes or
materially contributes to the infringing conduct of another.”
Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 791 (5th
Cir. 1999) (internal quotation marks omitted). It follows that an
allegation of direct infringement is a logical predicate for a
claim of contributory infringement. Accordingly, OPSB’s crossclaim for contributory infringement must be dismissed.
B. Indemnity
OPSB alleges that, should it be adjudged liable to
plaintiffs for unjust enrichment, Crusto would be obligated to
indemnify OPSB pursuant to an agreement between OPSB and Angelic
Asset Management.16 Crusto moves to dismiss this claim as well,
arguing that the indemnity provision at issue does not cover
plaintiffs’ claims. This motion, like plaintiff's motion to
15

Id.

16

R. Doc. No. 178 at 8-9.
5

dismiss the City's identical claim, is premature.17 “The Fifth
Circuit has made clear that ‘the duty-to-indemnify issue [is] not
ripe when the underlying . . . . lawsuit has not yet been
completed.’” Travelers Cas. & Sur. Co. of Am. v. Univ.
Facilities, Inc., No. 10-1682, 2012 WL 1198611, at *11 (E.D. La.
Apr. 10, 2012) (citing Coregis Ins. Co. v. Sch. Bd. of Allen
Parish, No. 07-30844, 2008 WL 2325632, at *2 (5th Cir. June 6,
2008)). Because OPSB’s liability to plaintiffs in the underlying
lawsuit, if any, has not yet been determined, the Court need not
decide now whether Crusto would be obligated to indemnify OPSB if
OPSB is found liable on plaintiffs’ claims.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Crusto’s motion
to dismiss OPSB’s contributory infringement cross-claim and
DENIES Crusto’s motion to dismiss OPSB’s indemnity cross-claim.

New Orleans, Louisiana, this _______ day of August, 2013.
28th

______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

17

Contrary to Crusto’s assertion, OPSB’s claim for
indemnity is not premature. OPSB has not requested an immediate
adjudication of Crusto’s indemnity obligations; rather it has
simply alleged that Crusto would be liable to OPSB in the event
that plaintiffs succeed on their unjust enrichment claim.
6