Servicios Azucareros de Venezuela, C.A. et al v. John Deere Thibodeaux, Inc.
Filing
61
ORDER & REASONS granting in part and denying in part 50 Motion to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 2/6/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SERVICIOS AZUCAREROS
DE VENEZUELA, C.A. ET AL.
CIVIL ACTION
VERSUS
NO. 10-4443
JOHN DEERE THIBODAUX, INC.
SECTION “F”
ORDER AND REASONS
Before the Court is John Deere Thibodaux, Inc.’s motion to
dismiss for failure to state a claim upon which relief can be
granted.
For the reasons that follow, the motion is GRANTED in
part and DENIED in part.
Background
This dispute arises out of an alleged breach of an oral
contract.
Servicios Azucareros de Venezuela, C.A., a Venezuela
corporation, and its president, Zvonimir Tolj, Sr., a citizen of
Venezuela (collectively, “Servicios”), assert that Servicios had
an oral contract with Cameco Industries, Inc., making Servicios
the exclusive distributor of John Deere products in Venezuela.
In 1996, Cameco changed its name to John Deere Thibodaux, Inc.
Although the contract was oral, Servicios contends that it
was substantiated with various written instruments over the
years.
Specifically, Servicios asserts that John Deere confirmed
in writing to customers in Venezuela that its products were sold
exclusively though Servicios, and that it informed other
1
companies to cease representing themselves as John Deere dealers
based on Servicios’s exclusive distributorship.
Servicios
submits that through its efforts over the years, it successfully
developed the Venezuelan market for John Deere products.
Under the contract, Servicios alleges, that it was entitled
to receive, and did for many years, a 20% commission on all John
Deere harvesters and tractors, and a 25% commission on spare
parts, sold in Venezuela.
In 2006, Servicios contends that John
Deere, using “economic duress”, wrongfully reduced Servicios’s
commission from 20% to 10%; however, Servicios continued to sell
and distribute John Deere products under the reduced commission
rate.
Then in 2008, Servicios asserts, John Deere wrongfully
terminated its contract.
Servicios sued John Deere in this Court on December 1, 2010,
invoking the Court’s diversity jurisdiction, and asserting claims
under Louisiana and, alternatively Venezuela, law.
Under
Louisiana law, Servicios seeks recovery of damages for breach of
contract under Louisiana Civil Code articles 1983, 1966-67, 201314, and 2024, and, for commissions wrongfully withheld under
Louisiana Revised Statutes sections 51:481-90; alternatively,
Servicios claims unjust enrichment under article 2298.
Under
Venezuelan law, Servicios asserts contract remedies pursuant to
Venezuela Civil Code articles 1159, 1212, and 1264, unjust
enrichment under article 1184, and moral damages under article
2
1196.
In sum, Servicios seeks over $1.5 million in damages.
On March 14, 2011, John Deere filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), alleging
that Servicios did not have standing to sue, and, even assuming
that the standing requirement was met, Servicios’s claims under
Louisiana Revised Statute 51:481, the Louisiana Dealer Agreement
Act, fail because the statute applies solely to Louisiana
dealers.
The Court ordered supplemental briefing on (1) whether
the plaintiff had prudential standing, and (2) whether Louisiana
or Venezuela law governs plaintiff’s claims.
On July 29, 2011,
the Court granted John Deere’s motion to dismiss finding that
plaintiff did not have standing.
Servicios moved to reopen the
case, which the Court denied on September 1, 2011.
Servicios
appealed this Court’s decision to the U.S. Court of Appeals for
the Fifth Circuit.
On December 13, 2012, the Fifth Circuit,
finding that Servicios had standing, vacated this Court’s
decision dismissing the complaint and remanded the case for
further proceedings.
John Deere now moves to dismiss Servicios’s
complaint under Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
I. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
3
Such a motion is
rarely granted because it is viewed with disfavor.
See Lowrey v.
Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982)).
In considering a Rule
12(b)(6) motion, the Court “accepts ‘all well-pleaded facts as
true, viewing them in the light most favorable to the
plaintiff.’”
See Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464 (5th Cir. 2004) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
But, in deciding
whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
F.2d at 1050.
Kaiser, 677
Indeed, the Court must first identify allegations
that are conclusory and, thus, not entitled to the assumption of
truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A
corollary: legal conclusions “must be supported by factual
allegations.” Id. at 678.
Assuming the veracity of the well-
pleaded factual allegations, the Court must then determine
“whether they plausibly give rise to an entitlement to relief.”
Id. at 679.
“‘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.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).
“Factual allegations must be enough to
4
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations and footnote omitted). “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.”
Iqbal, 556 U.S.
at 678 (“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”).
This is a “context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“Where a complaint
pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”
Id. at 678 (internal
quotations omitted) (citing Twombly, 550 U.S. at 557).
“[A]
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’”, thus, “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Twombly, 550 U.S. at 555
(alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings.”
That is,
any documents attached to or incorporated in the plaintiff’s
5
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498-99 (5th Cir. 2000)).
Also, the Court is permitted
to consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one
for summary judgment.
See United States ex rel. Willard v.
Humana Health Plan of Tex. Inc.,
336 F.3d 375, 379 (5th Cir.
2003).
II. Discussion
John Deere contends that several of Servicios’s claims
should be dismissed for failure to state a claim upon which
relief can be granted.
Specifically, John Deere asserts that (1)
the Louisiana Dealer Agreement Act applies to Louisiana dealers
only, (2) any claims for commissions that accrued prior to
November 30, 2007 are time barred, and (3) plaintiff fails to
allege with enough specificity a claim for an accounting.
The
Court agrees but only in part.
A.
As a threshold matter, plaintiff asserts that the
defendant’s current motion should be disregarded, because this is
defendant’s second Rule 12(b)(6) motion, and Rule 12(g)(2)
prohibits successive motions.
Rule 12(g)(2) states that
“[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes
a motion under this rule must not make another motion under this
6
rule raising a defense or objection that was available to the
party but omitted from its earlier motion.”
Rule 12(h)(2)
permits a party, however, to assert a defense for failure to
state a claim upon which relief can be granted in any pleading
permitted under Rule 7(a), a motion for judgment on the pleadings
under Rule 12(c), or at trial.
See Fed. R. Civ. P. 12(h)(2); see
also Fed R. Civ. P. 12(h)(1) (addressing waiver of defenses and
conspicuously omitting 12(b)(6) motions).
Although John Deere’s
second Rule 12(b)(6) motion raises new and old entitlements for
relief,1 any error is harmless, where, as here, these additional
defenses could have been raised in a Rule 12(c) motion for
judgment on the pleadings, which is subject to the same standard
of review as a motion to dismiss under Rule 12(b)(6).
See Great
Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 330 n.8 (5th Cir. 2002) (“Rule 12(b)(6) decisions
appropriately guide the application of Rule 12(c) because the
standards for deciding motions under both rules are the same.”);
Cannon v. Sixth Dist. Pub. Defender Office, No. 09-2164, 2010 WL
5855912, at *3 (W.D. La. Oct. 26, 2010) (holding that the
defendant did not waive his new defenses by failing to include
them in his original Rule 12(b)(6) motion to dismiss, because the
1
In its earlier motion, John Deere argued that Servicios is
unable to state a claim under the Louisiana Dealer Agreement Act.
See Rec. Doc. 6. The new bases for relief include the assertions
that certain claims for past-due commissions are prescribed and
that the claim for an accounting lacks specificity.
7
arguments could have been raised in a Rule 12(c) motion, which is
evaluated under the same standard as a Rule 12(b)(6) motion).
B.
John Deere correctly asserts that Servicios cannot state a
claim under the Louisiana Dealer Agreement Act, because the
statute applies to Louisiana dealers only.
The Louisiana Dealer Agreement Act, codified in Section
51:481 of the Louisiana Revised Statutes, prohibits a distributor
from terminating, cancelling, failing to renew, or substantially
changing the competitive circumstances of a dealership agreement
or contract without good cause.
(2012).
La. Rev. Stat. Ann. 51:482(A)(1)
The LDAA, also called the Louisiana Repurchase Act or
the Wholesaler Act, mandates that a distributor “repurchase” any
equipment it previously transferred to its dealer upon
cancellation of a contract.
Id. § 51:481.
As recognized by the
Fifth Circuit:
[T]he substantive sections of the Repurchase Act embody
the Louisiana Legislature’s determination to protect
resident sellers, distributors, and retailers (defined in
the statute and hereafter referred to as “Dealers”) who
contract with wholesalers, manufacturers, or distributors
(defined by the statute and hereafter referred to as
“Agents”) from two potential economic risks that the
Legislature perceived as likely to result from the
superior bargaining power of the Agents. First, Dealers
are protected from arbitrary and precipitous termination
or cancellation of dealership relationships without being
furnished adequate advance notice that specifies good
cause and gives the Dealer an opportunity to cure the
cause. Second, former Dealers are protected from being
left holding large inventories of equipment or spare
parts, or both, with no choice but to incur substantial
8
economic losses by “fire-sale” dispositions of such
assets.
Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192,
198 (5th Cir. 2003) (emphasis added) (footnotes omitted).
Moreover, several courts have repeatedly held that the purpose of
the LDAA is to “protect Louisiana dealers.”
Engines Sw., Inc. v.
Kohler Co., 371 F. Supp. 2d 830, 836 (W.D. La. 2005) (“[T]he
purpose is to protect Louisiana businesses from retaining
unsaleable stock in the event a manufacturer or ‘agent’ cancels a
contractual relationship.” (citing Int’l Harvester Credit Corp.
v. Seale, 518 So. 2d 1039 (La. 1988))); see also Lake Charles
Diesel, 328 F.3d at 199 (“The perspective of the Repurchase Act
that emerges from a comprehensive reading of the statute as a
whole is one of statutory protection for the benefit of Louisiana
Dealers in (1) specified kinds of equipment (2) for use in one of
more identified industries.”); Cherokee Pump & Equip. Inc. v.
Aurora Pump, 38 F.3d 246, 250-51 (5th Cir. 1994) (“Louisiana has
an interest [under the LDAA] in protecting all its citizens, both
distributors and consumers.
It also has an interest in policing
to some extent those companies . . . who do business within its
borders, who enter into contracts with Louisiana citizens, and
who introduce their products into the stream of commerce for enduse here in Louisiana.”).2
Therefore, as a nonresident dealer,
2
The Court notes that the LDAA’s limited legislative history,
although not binding or very informative, also indicates that the
statute is intended to protect Louisiana dealers only. The
9
Servicios fails to state a claim under the LDAA upon which relief
can be granted.
The text of some sections of the LDAA also indirectly
reinforces the Court’s finding that the statute applies to
Louisiana dealers only, and Louisiana principles of statutory
construction require that the statute be read in pari materia.
See La. Civ. Code art. 13 (“Laws on the same subject matter must
be interpreted in reference to each other.”); Detillier v. Kenner
Reg’l Med. Ctr., 2003-3259 (La. 7/6/04); 877 So. 2d 100, 103.
For example, Section 51:490 of the LDAA, which delineates the
procedure for an inspection of parts when a local dealer returns
spare parts to a manufacturer, provides that “the parish sheriff
shall be appointed” as the agent of the manufacturer when the
manufacturer does not provide its own agent to certify the
committee meeting minutes from both the original 1975 enactment
of the LDAA and the 1991 amendments discuss the provisions of the
LDAA in comparison with similar protective statutes enacted in
other states. See Minutes of House Commerce Committee, Reg.
Sess. 19, 22 (June 19, 1991); see also Engines Sw., 371 F. Supp.
2d at 834; see, e.g., Fabrication & Truck Equip., Inc. v. Powell,
96 P.3d 1251, 1255-56 (Or. App. 2004) (“[W]hile the [Washington
State Farm Implements Act] is designed as a sort of farm
implement dealer ‘lemon law,’ to protect Washington resident
dealers of farm implements, . . . the analogous Oregon provisions
are designed to protect only Oregon resident dealers. . . . Thus,
plaintiff [a Washington state dealer] was not within the class of
persons protected under the Oregon statutes and could not have
obtained relief under those statutes. Given that plaintiff [a
Washington state dealer] could not have invoked the Oregon
statutes and, concomitantly, that Oregon has no interest
expressed in its farm implement dealer statutes or otherwise, in
regulating remedies available to nonresident retailers against
Oregon wholesalers . . . .” (citations omitted)).
10
condition of the returned parts.
51:490(B).
La. Rev. Stat. Ann. §
Section 51:487, which specifies the supplemental
nature of the LDAA, cross-references the inapplicability of the
“provisions of the bulk sales law,” referring to the Louisiana
Bulk Sales Law, which Louisiana repealed when it adopted the
Uniform Commercial Code.
Id. § 51.487; see also David S.
Willenzik, Louisiana Secured Transactions § 7:30 (2012-2013 ed.)
(“Bulk sales of inventory and equipment in Louisiana previously
(prior to January 1, 1992) were subject to the Louisiana Bulk
Sales Act.”).
These Louisiana-specific provisions also help to
understand that the scope of the statute was to be limited to
dealers within the state.
Servicios asserts that John Deere “deliberately put
[Servicios] into the position of a Louisiana dealer” because (1)
the Venezuelan customer sent payment directly to John Deere in
Louisiana, so the payment for equipment never occurred in
Venezuela; (2) John Deere’s receipt of the purchase price in
Louisiana triggered Servicios’s right to a commission; and (3)
all records of payments were maintained in Louisiana.3
In other
words, Servicios’s commissions were earned and paid in Louisiana;
therefore, the argument goes, Servicios is “like a Louisiana
3
Servicios refers to portions of an “amended complaint” that it
has not yet sought leave of Court to file. Accordingly, the
Court disregards any reference or citation to the amended
complaint. This seems to be an opportune time to call to
counsels’ attention the mandate of 28 U.S.C. § 1927.
11
dealer” and the LDAA should apply.
Notably, Servicios provides no prudential support for its
position other than a fanciful argument that the United States
and Venezuela Friendship Treaty confers “special protection” upon
Venezuelan citizens, and this special protection is broad enough
to include substantive rights (rights under the LDAA).
Article
13 of the Treaty of Peace, Friendship, Navigation and Commerce
states:
Both the contracting parties promise and engage,
formally, to give their special protection to the persons
and property of the citizens of each other, of all
occupations, who may be in the territories subject to the
jurisdiction of the one or the other, transient or
dwelling therein, leaving open and free to them the
tribunals of justice, for their judicial recourse, on the
same terms which are usual and customary with the natives
or citizens of the country in which they may be; for
which they may employ in defence [sic] of their rights,
such advocates, solicitors, notaries, agents and factors,
as they may judge proper, in all their trials at law; and
such citizens or agents shall have free opportunity to be
present at the decisions and sentences of the tribunals,
in all cases which may concern them; and likewise at the
taking of all examinations and evidence which may be
exhibited on the said trials.
Treaty of Peace, Friendship, Navigation and Commerce, U.S.Venez., Jan. 20, 1836, art. 13, 8 Stat. 466.
In sum, Article 13
provides that the courts of both the United States and Venezuela
shall be “open and free” to the other’s citizens “on the same
terms which are usual and customary with the natives or citizens
of the country in which they may be.”
The language of Article 13
appears to give Venezuelan citizens who are physically in the
12
United States the same access to the courts as U.S. citizens; it
does not appear to confer a statutory right available to
Louisiana dealers only.
See, e.g., James v. Gulf Int’l Marine
Corp., 777 F.2d 193, 194 & n.2 (5th Cir. 1985) (addressing a
somewhat similar provision in a treaty between the United States
and Honduras, and noting that it likely allows Honduran citizens
equal access to the courts, but failing to decide the access
issue because it was not raised at the trial court level);
Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968) (holding
that the Treaty of Friendship, Commerce, and Navigation between
Germany and the United States gives German citizens equal access
to the courts but does not create substantive rights);
Morales
v. Ford Motor Co., 313 F. Supp. 2d 672, 687 (S.D. Tex. 2004)
(finding that the meaning of Article 13 of the United StatesVenezuela treaty is that the countries’ courts must be open to
foreign nationals who happen to be located within the territory
of the other); Rivas ex rel. Estate of Gutierrez v. Ford Motor
Co., No. 02-676, 2004 WL 1247018, at *8 (M.D. Fla. 2004) (noting
that Article 13 of the treaty between the United States and
Venezuela provides Venezuelans who are in the United States the
same right of access to the courts as U.S. citizens).
Plaintiff
points to no other authority in the treaty or instructive case
literature as to why Servicios should be treated like a Louisiana
dealer, and the Court finds no rational or authoritative reason
13
See, e.g., In re Whitaker
to support plaintiff’s stretch.
Constr. Co., 411 F.3d 197, 209 n.4 (5th Cir. 2005) (“It is
axiomatic that as an Erie court we attempt to discern how
Louisiana’s highest court would resolve the issue at hand. . . .
It is incumbent upon us to avoid creating new rights and remedies
in Louisiana state law where we lack express statutory authority
or clear directive from the Louisiana Supreme Court.” (citation
omitted)).
Accordingly, plaintiff fails to state a claim upon which
relief can be granted under the LDAA.
C.
Plaintiff also asserts claims for commissions that became
due between 2006 and early 2008.
John Deere counters that any
claims for unpaid or underpaid commissions that accrued before
November 30, 2007 are prescribed, because under Louisiana Civil
Code Article 3494 “[a]n action for the recovery of compensation
for services rendered, including . . . commissions” is subject to
a three-year prescriptive period.
La. Civ. Code Ann. art. 3494.
Therefore, because plaintiff filed the complaint on December 1,
2010, any claims under Louisiana law for unpaid or underpaid
commissions that became due before November 30, 2007 must be time
barred.
Servicios relies on theories of breach of contract and,
therefore, submits that the ten-year prescriptive period of
Louisiana Civil Code Article 3499 governs.
14
The applicable prescriptive period is determined by the
character of the action disclosed in the complaint.
See Fishbein
v. State ex rel. La. State Univ. Health Scis. Ctr., 04-2482 (La.
4/12/05); 898 So. 2d 1260, 1265.
Under Louisiana Civil Code
Article 3499, a personal action (which includes a claim for
breach of contract) is subject to a liberative prescription of
ten years unless otherwise provided by law.
art. 3499.
La. Civ. Code Ann.
An exception to this general rule is found in
Louisiana Civil Code article 3494, which subjects claims for the
recovery of compensation for services rendered, including the
payments of commissions, to a three-year prescriptive period.
La. Civ. Code Ann. art. 3494.
This three-year prescriptive
period commences to run from the day payment is “exigible”, or
exact enough to be demandable.
La. Civ. Code Ann. art. 3495.
In Starns v. Emmons, the plaintiff sued for past-due rent,
late fees, and attorney fees under a lease agreement.
275, 277 (La. 1989).
538 So. 2d
The plaintiff argued that
the inclusion of a demand for rent arrearages in a
petition alleging breach of contract does not give the
suit the character of an action to recover rent. . . .
the applicable prescriptive periods depend on the nature
of the action as a whole [and] that because the entire
action sounds in contract, the ten year period of article
3499, not the three year prescription of article 3494,
should apply.
Id. at 278.
The Louisiana Supreme Court explicitly rejected this
line of argument:
Such a rationale, however, cannot stand, because it
15
renders article 3494 useless. All of the actions covered
by the provisions of that article essentially arise from
contractual relationships. Article 3494 does not present
a choice between a contract remedy and some other remedy;
it merely provides exceptions to the general rule stated
in article 3499 that a personal action prescribes in ten
years.
Id.
The Louisiana Supreme Court and other courts have repeatedly
affirmed this reasoning.
For instance, in Grabert v. Iberia
Parish School Board, the plaintiffs sued for breach of contract,
alleging that the School Board paid them less than they were due
under the appropriate salary index.
So. 2d 645, 646.
93-2715 (La. 7/5/94); 638
Plaintiffs argued that article 3494's three-
year prescriptive period for past wages was not applicable
“because their action for breach of contract [was]
distinguishable from a claim for past due wages.”
Id.
Again,
the Louisiana Supreme Court rejected this reasoning, stating that
“[a] petition claiming breach of contract by the payment of wages
less than what is due and seeking judgment for the underpaid
wages is clearly a cause of action asserting the right to recover
unpaid wages.”
Id.
The court went on to reason that “[b]reach
of contract is not a free standing cause of action.
It is a
legal premise, or principle, which gives rise to the right to
claim some substantive remedy of law.
recovery of past due wages.”
Id.
Here that remedy is the
Put in perhaps a more
instructive way, substance prevails over form.
16
In this case, John Deere’s alleged failure to pay the full
and proper compensation for services rendered gives rise to the
action for breach of contract, for which the remedy is recovery
of commissions.
The complaint expressly states “Deere
unilaterally and wrongfully reduced Plaintiffs’ commission from
20% to 10%,” and that “Deere refused to pay the additional 10%
due under the oral contract.”
The Court finds that the three-
year prescriptive period of article 3494 applies.
Moreover, Servicios’s reliance on Babkow v. Morris Bart,
P.L.C. is misplaced.
2d 423.
98-0256 (La. App. 4 Cir. 12/16/98); 726 So.
At issue in Babkow was a letter written by a law firm,
promising a chiropractor who treated the firm’s client that the
firm would “protect” chiropractor’s charges out of expected
proceeds.
Id. at 424-25.
Initially, the trial court deemed this
letter to be a suretyship agreement and applied the three-year
prescriptive period of article 3494.
Id. at 425.
The state
appellate court, however, noted that the plaintiff may be able to
prove that this letter is a contract and therefore the ten-year
prescriptive period of article 3499 should apply.
429.
Id. at 426,
The court held that when there are “two possible
constructions, the one that favors maintaining, as opposed to
barring, an action should be adopted.”
Id. at 429 (citing
Bustamento v. Tucker, 607 So. 2d 532 (La. 1992)).
The appellate
court then reversed and remanded the case to the trial court to
17
determine whether the letter was a contract.
Id.
The Court here finds that the alleged contract between John
Deere and Servicios does not have more than one possible
“construction” as in Babkow.
As previously mentioned,
Servicios’s complaint charges that John Deere breached the
contract by failing to pay the full 20% commission rate, and
Servicios is seeking judgment for the payment of underpaid
commissions.
“The nature of the claim (for underpaid
[commissions]) is not something different because it arises out
of breach of contract.”
Grabert, 638 So. 2d at 646.
Accordingly, the applicable prescriptive period here for
underpaid commissions is three years under article 3494, and any
claims accruing before November 30, 2007 are therefore time
barred.
See Basco v. Wal-Mart Stores, No. 00-3184, 2003 WL
21219026, at *1 (E.D. La. May 20, 2003); Hughes v. Provident Life
& Accident Ins. Co., No. 97-2644, 1998 WL 157350, at *1-2 (E.D.
La. Apr. 3, 1998); Starns, 538 So. 2d at 277-78; Achord v. City
of Baton Rouge, 489 So. 2d 1373 (La. App. 1 Cir. 1986).
D.
Last, John Deere contends that Servicios has failed to plead
with enough specificity a claim for an accounting and, therefore,
Servicios fails to state a claim upon which relief can be
granted.
In the alternative, John Deere requests for a more
definite statement under Rule 12(e).
18
According to Rule 8 of the Federal Rules of Civil Procedure,
a complaint need only recite “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).
Fed. R.
Thus, Rule 8 sets out a “low bar” to evaluate
the sufficiency of the claim, requiring only that a plaintiff’s
pleadings “give the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.”
Gen. Elec.
Capital Corp. v. Posey, 415 F.3d 391, 396 (5th Cir. 2005
(internal quotation marks omitted).
Here, Servicios’s complaint alleges that it is owed an
accounting under “both Louisiana and Venezuelan law.”
In its
opposition memorandum, Servicios states that this claim is based
on its oral contract with John Deere.
The Court agrees that
Servicios’s claim for an accounting is rather inartful, vague,
and ambiguous; however, because Servicios has not previously
amended its complaint, given our loose pleading standards in
cases such as this, the Court will permit plaintiff to provide a
more definite statement with regard to the claim for an
accounting.
According to Rule 12(e), failure to provide such a
statement within 14 days of this Order may result in the Court
striking the pleadings or issuing any other appropriate order.
Fed. R. Civ. P. 12(e).4
4
The Court notes that a conflict-of-laws analysis is not
necessary based on the defendant’s assertions in this motion.
Because Venezuelan law does not have a comparable statutory
remedy, there is no conflict on which law governs as to this
claim. When, and if, the parties contest the breach of contract
19
New Orleans, Louisiana, February 6, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
issues, the Court will then address choice of law.
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