Contracting King, Inc. v. Creek Services, L.L.C. et al

Filing 98

ORDER AND REASONS granting 79 Motion to Dismiss Case. Signed by Judge Ivan L.R. Lemelle on 12/23/2011. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES FOR THE USE AND BENEFIT OF
CONTRACTING KING, INC.

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VERSUS
CREEK SERVICES, L.L.C., ET AL.

CIVIL ACTION

NO. 09-6098
SECTION “B”(2)

ORDER AND REASONS
Before

the

Court

is

Defendants

Creek

Services,

LLC

and

Travelers Casualty and Surety Company of America’s Rule 12(b)(6)
and 12(b)(1) Motion to Dismiss and responsive pleading. (Rec. Doc.
Nos. 79 and 89).
thereto.

Plaintiff Contracting King filed opposition

(Rec. Doc. No. 85). Accordingly, and for the reasons

pronounced below, IT IS ORDERED that Defendants’ Rule 12(b)(6) and
12(b)(1) Motion to Dismiss (Rec. Doc. No. 79) is GRANTED.
Cause of Action and Facts of the Case:
The facts of this case are well known to the Court, and are
adopted and incorporated by reference from this Court’s July 7,
2011 Order.

(Rec. Doc. No. 69).

Law and Analysis
12(b)(1) standard
Federal Rule of Civil Procedure 12(b)(1) authorizes a court to
dismiss

a

plaintiff’s

complaint

for

lack

of

subject

matter

jurisdiction. “A case is properly dismissed for lack of subject
1

matter

jurisdiction

when

the

court

lacks

the

statutory

or

constitutional power to adjudicate the case.” Home Builders Ass’n
of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010
(5th Cir. 1998). A party seeking to invoke jurisdiction has the
burden of proving its existence, and thus, a plaintiff “constantly
bears the burden of proof that jurisdiction does in fact exist.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Furthermore,

“there

is

a

presumption

against

subject

matter

jurisdiction that must be rebutted by the party bringing an action
to federal court.” Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996).
Finally,

“[s]overeign

immunity

implicates

subject

matter

jurisdiction.” Chapa v. U.S. Dept. Of Justice, 339 F.3d 388, 389
(5th Cir. 2003).
12(b)(6) standard
When reviewing a motion to dismiss, courts must accept all
well-pleaded

facts

as

true

and

favorable to the non-moving party.
196 (5th Cir. 1996).

view

them

in

the

light

most

Baker v. Putnal, 75 F.3d 190,

However, "[f]actual allegations must be

enough to raise a right to relief above the speculative level."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "'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.'"

Gonzales v. Kay, 577 F.3d 600, 603 (5th

Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009))
2

(internal quotation marks omitted).

The Supreme Court in Iqbal

explained that Twombly promulgated a "two-pronged approach" to
determine whether a complaint states a plausible claim for relief.
Iqbal, 129 S.Ct. at 1950.

First, courts must identify those

pleadings that, "because they are no more than conclusions, are not
entitled to the assumption of truth." Id. Legal conclusions "must
be supported by factual allegations." Id. "Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice."

Id. at 1949.

Upon identifying the well-pleaded factual allegations, courts
then

“assume

their

veracity

and

then

determine

plausibly give rise to an entitlement to relief.”

whether

they

Id. at 1950.

“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.”

Id. at 1949.

This is a “context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
plaintiffs

must

“nudge[]

their

conceivable to plausible.”

claims

across

the

Id.

The

line

from

Twombly, 550 U.S. at 570.

Plaintiff’s Equitable Claims
It is well settled that “unjust enrichment principles are only
applicable to fill a gap in the law where no express remedy is
provided.”

La. Nat’l Bank of Baton Rouge v. Belello, 577 So.2d

1099, 1102 (La. App. 1 Cir. 1991). First, Plaintiff had a contract
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with CWW, Inc. and this Court awarded a default judgment on behalf
of Plaintiff in the amount of the contract price, $63,000.00. (Rec.
Doc. No. 22). Moreover, Plaintiff even concedes that it obtained a
judgment against CWW, Inc. (Rec. Doc. No. 85, p. 10).1

See

Fogleman v. Cajun Bag & Supply Co., 638 So.2d 706, 708 (La. App. 3
Cir. 1994). Therefore a “remedy at law” is available to Plaintiff.
Id. at 709. Second, the immediate instance is not one in which the
Louisiana courts would traditionally grant quantum meruit relief.
Id. at 708.2
Inc.

and

Here, there was a contract between Plaintiff and CWW,

the

contract

price

was

supplied

therein.

Third,

detrimental reliance “usually functions when no written contract or
an unenforceable contract exists between the parties.” Drs. Bethea,
Moustoukas and Weaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d
399, 403 (5th Cir. 2004). As previously noted, there was a direct

1

Contracting King, Inc. has asserted a breach of
contract action against Creek Services, L.L.C. for its
failure to pay the outstanding balance due for work on
the Project per the guarantee contract.
That
Contracting King has obtained a judgment against CWW,
Inc. on its subcontract should not preclude it from
obtaining a judgment against Creek Services, Inc. as
guarantor of the balance due for work.
(Rec. Doc. No. 85, p. 10).
2

“The Court went on to distinguish two situations where
Louisiana courts had applied quantum meruit. One situation is
where a contract actually exists, and the court is simply
supplying a price. The other is where no contract exists, and the
court must supply a substantive basis for recovery.” Fogleman v.
Cajun Bag & Supply Co., 638 So.2d 706, 708 (La. App. 3 Cir.
1994).
4

contract between CWW, Inc. and Plaintiff for pump station repair
work.
legal

(Rec. Doc. No. 1 at 3, ¶7).
remedies

available,

and

Accordingly, Plaintiff has

thus,

equitable

relief

is

not

appropriate at this juncture.
Plaintiff also asserts that “[t]o the extent Creek Services,
Inc. guaranteed the payment of the balance owed Contracting King,
Inc. on its subcontract agreement with CWW, Inc., Creek Services is
likewise in breach and should be held liable for damages.”

(Rec.

Doc. No. 1 at 6, ¶15). However, Plaintiff has already been granted
the right to a default judgment against CWW, Inc., see Rec. Doc.
No. 22. Yet, Defendants note that “[t]o date, Contracting King has
not taken any steps to collect on its full judgment against CWW,”
see Rec. Doc. No. 79-1, p. 4, and Plaintiff has not shown an
inability to obtain relief per the default judgment.

Thus,

Plaintiff seeks, in essence, to double recover. Albert v. Farm
Bureau Insur. Co., 940 So.2d 620, 622 (La. 2006) (“Louisiana law
does

not

allow

for

double

recovery

of

the

same

element

of

damages.”). Given that Plaintiff has already been granted the right
to the damages it now seeks, by way of default judgment, it cannot
seek further recovery from Creek Services without showing an
an inability of recovery from the defaulted defendant.
Bad Faith Insurer Claims
Plaintiff’s reliance upon Ninth Circuit precedent to establish
that federal courts contemplate that sureties on a Miller Act
project

may

be

subject

to

state
5

bad

faith

insurance

law

is

misplaced.

La. Rev. Stat. 22:1973 and 22:1892 both pertain to

insurers, not sureties.

Here, Travelers acted as a surety, not an

insurer. Furthermore, Plaintiff even concedes that Travelers was
acting as a surety for Creek Services.
2).

(See Rec. Doc. No. 1, p. 1,

As such, this immediate claim must fail.
Accordingly, and for the reasons pronounced above, IT IS

ORDERED that Defendants’ Rule 12(b)(6) and 12(b)(1) Motion to
Dismiss (Rec. Doc. No. 79) is GRANTED.
New Orleans, Louisiana, this 23rd day of December, 2011.

_____________________________
UNITED STATES DISTRICT JUDGE

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