Silva et al v. Enercept, Inc

Filing 39

ORDER granting in part and denying in part 26 Motion for Summary Judgment. The motion is GRANTED with regard to the treble damages issue, but the motion is DENIED with regard to the actual agent, apparent agent, and LUPTA claims issues. Signed by Judge Carl Barbier on 3/22/2011. (mmm, )

Silva et al v. Enercept, Inc

Doc. 39

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

MARCOS AND MARY SILVA VERSUS ENERCEPT, INC.

CIVIL ACTION NO: 10-6 SECTION: J(4)

ORDER Before the Court are Defendant's Motion for Summary Judgment (Rec. Doc. 26), Plaintiffs' Memorandum in Opposition (Rec. Doc. 32), and Defendant's Reply Memorandum in Support (Rec. Doc. 38). Summary judgment is appropriate if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving

party bears the initial burden of demonstrating the absence of a genuine issue of material fact. U.S. 317, 323 (1986). Celotex Corp. v. Catrett, 477

If that burden has been met, the non-

moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Regarding the issues of agency and apparent agency, the Court has reviewed the motion, the memoranda of counsel, and the applicable law. The Court finds that genuine issues of material

fact remain regarding whether Donald Fisher was an agent or an

Dockets.Justia.com

apparent agent of Defendant.

These genuine issues of material

fact preclude summary judgment. Regarding Plaintiffs' claims under the Louisiana Unfair Trade Practices Act ("LUPTA"), the Court first finds that Plaintiffs have standing to bring a claim for damages pursuant to LUPTA. LUPTA provides that "[a]ny person who suffers any

ascertainable loss of money or movable property . . . as a result . . . of any unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405[] may bring an action individually . . . to recover actual damages." § 51:1409 (2011). LA. REV. STAT. ANN.

Moreover, the Louisiana Supreme Court has

interpreted LUPTA to apply to natural persons, not just business competitors and consumers. Cheramie Services, Inc. v. Shell

Deepwater Prod., Inc., and Filco Int'l, Inc., 35 So. 2d 1053, 1056-58 (La. 2010). Thus, Plaintiffs have standing under LUPTA;

however, the Court finds that genuine issues of material fact remain regarding Defendant's alleged violations of LUPTA that preclude summary judgment. Finally, regarding the issue of treble damages under LUPTA, the Court finds that Plaintiffs are not entitled to treble damages under the statute. LUPTA states that a court shall award

treble damages "[i]f the court find [that] the unfair or deceptive method, act, or practice was knowingly used[] after being put on notice by the attorney general . . . ." § 51:1409.

Here the parties do not dispute that Defendant was not put on

notice by the attorney general, so Plaintiffs are not entitled to recover treble damages under LUPTA. Accordingly,

IT IS ORDERED that Defendant's Motion for Summary Judgment (Rec. Doc. 26) is GRANTED IN PART and DENIED IN PART. The motion

is GRANTED with regard to the treble damages issue, but the motion is DENIED with regard to the actual agent, apparent agent, and LUPTA claims issues.

New Orleans, Louisiana this 22nd day of March, 2011.

____________________________ CARL J. BARBIER UNITED STATES DISTRICT JUDGE

3