Harris Builders, L.L.C. v. URS Corporation

Filing 35

ORDER granting in part and denying in part 12 Motion for Judgment on the Pleadings as stated within document. Signed by Judge Carl Barbier. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HARRIS BUILDERS, L.L.C.

CIVIL ACTION

VERSUS

NO: 11-569

URS CORPORATION

SECTION: "J” (5)
ORDER AND REASONS

Before the Court are Defendant’s Rule 12(c) Motion for
Judgment on the Pleadings to Dismiss Plaintiff’s Complaint (Rec.
Doc. 12), Plaintiff’s Opposition (Rec. Doc. 13), Defendant’s
Reply (Rec. Doc. 21), and Plaintiff’s Sur-reply (Rec. Doc. 27).
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
GRANTED IN PART and DENIED IN PART, as set forth below.

PROCEDURAL HISTORY AND BACKGROUND FACTS
Plaintiff Harris Builders, L.L.C. (“Harris”) initiated this
lawsuit alleging that Defendant URS Corporation (“URS”) is liable
to Harris for damages it has incurred due to URS’s acts regarding
a construction contract to build a warehouse for the Port of
1

South Louisiana (the “Owner”).

The complaint, which was filed on

March 11, 2011, alleges that Harris was the general contractor
for the project and entered into a public contract (the
“Contract”) with the Owner worth $5,994,600.

URS is alleged to

have prepared the plans and specifications for the project and to
have served as an engineer, consultant, construction manager, and
representative of the Owner during the bid, Contract, and
construction phases of the project.
Harris’s complaint alleges that URS intentionally and
negligently violated a number of duties owed to Harris, which
caused Harris economic harm.

Among those duties alleged are

URS’s duties to manage the project in a fair manner, approve
completed work when warranted, develop plans and specifications
to appropriate standards of quality, not to interfere with
Harris’s ability to perform the project, and to timely and fairly
review and approve additional time and compensation for work
performed by Harris that is outside the scope of the plans,
specifications, and Contract documents.

Harris alleges that as a

result of URS’s actions, it has incurred damages, including
liquidated damages, extended overhead costs, and general
condition costs.

Harris alleges that URS continues to invoice

the Owner for URS’s work, and the Owner continues to use funds

2

earned by Harris to pay URS for its improper conduct.
The complaint contains three counts.

Count I arises under

“Louisiana Civil Code articles 2315 et seq.”

Rec. Doc. 1, at 6,

¶ 26.

Count II arises under “La. Rev. Stat. 9:2771.”

¶ 33.

Count III arises under “Louisiana Civil Code article

2298.”

Id. at 9, ¶ 42.

Additionally, all three counts are said

to arise under “other aspects of Louisiana law.”
at 8, ¶ 33; at 9, ¶ 42.

Id. at 8,

Id. at 6, ¶ 26;

Harris demanded a jury trial.

URS filed

the instant motion for judgment on the pleadings, which has been
noticed for submission on February 29, 2012.

THE PARTIES’ ARGUMENTS
URS argues that the entire action should be dismissed.

URS

characterizes Count I as a claim for tortious interference with
contract that, under the facts pleaded, finds no basis under
Louisiana law.

URS avers that this count is focused upon URS’s

alleged interference with Harris’s performance and completion of
the construction project.

It argues that under Louisiana law,

tortious interference with contract is only recognized where a
corporate officer intentionally causes his own corporation to
breach the corporation’s contract with the complaining party.
Because there is no allegation of any contract between Harris and

3

URS, URS argues that the tortious interference claim in Count I
should be dismissed.

URS also argues that Harris’s claim of

negligent interference fails as a matter of law.
As to Count II, URS asserts that the statute cited in the
complaint, Louisiana Revised Statutes section 9:2771, does not
provide a cause of action, but rather provides only for the
statutory immunity of a contractor in certain circumstances.

URS

argues that the statute is purely defensive in nature, and
therefore Harris may not use it as the basis of its lawsuit.

URS

argues that Count III, a claim for unjust enrichment, should be
dismissed because there are other legal remedies available to
Harris and because any enrichment in this case was justified.
URS argues that Harris has an available breach of contract claim
against the Owner, which forecloses any remedy for unjust
enrichment.

Further, URS argues, because other counts have been

asserted in the complaint, the unjust enrichment count should be
dismissed.

Additionally, it argues that any enrichment was

justified because URS’s contract with the Owner permitted the
actions URS took.
Harris argues that Louisiana law recognizes the causes of
action in its complaint and that it has pled sufficient facts to
state claims in each count.

Rather than respond to URS’s

4

arguments concerning a claim for tortious interference with
contract under Louisiana law, Harris characterizes Count I as a
claim for negligence and negligent professional undertaking,
which it alleges have long been recognized under Louisiana law.
Harris argues that the facts alleged state a claim for negligent
professional undertaking:

URS’s defective plans and

specifications caused Harris economic injury, it was foreseeable
that Harris would be injured by URS’s acts, and there is a
closeness between Harris’s injury and URS’s actions based on
URS’s approval of Harris’s payment applications and URS’s
management of the construction project.
Concerning Count II, Harris argues that section 9:2771 does
not merely grant immunity, but also implicitly provides a cause
of action.

It avers that it was “held liable” within the meaning

of the statute because it was required to re-perform work
rejected by URS and was charged additional administration and
engineering fees by URS.

It also argues that it needs the

statute to support its other claims and defeat URS’s defenses.
As to the unjust enrichment claim in Count III, Harris argues
that where the Contract is not pled in the complaint, there is no
way to ascertain whether Harris could bring a breach of contract
action against the Owner, and therefore no way to tell whether

5

other legal remedies are available so as to foreclose an unjust
enrichment claim in this case.

Additionally, there is a factual

issue as to whether URS’s actions under its contract with the
Owner were justified so as to defeat an unjust enrichment claim.
Finally, Harris points out that the complaint states the unjust
enrichment claim as providing recovery to the extent there is no
other available legal remedy.
In reply, URS argues that Harris now improperly attempts to
add a new cause of action, or to convert the tortious
interference claim in Count I into a new claim for negligence and
negligent professional undertaking.

URS argues that this

untimely attempt to add a new cause of action should be rejected
and that Harris has not shown good cause for amending his
complaint beyond the expiration date for filing pleading
amendments.

As to Count II, URS asserts that Harris cannot be

“held liable” because URS has not asserted a counterclaim against
Harris.

Therefore, URS argues, section 9:2771 does not provide a

cause of action.

As to Count III, in support of its argument

that other legal remedies are available, URS argues that Harris
has put the Contract at issue in the complaint, and that URS
could submit a copy to the Court if necessary.

6

In its sur-reply, Harris argues that the complaint fairly
put URS on notice of its cause of action for negligence,
including a claim for negligent professional undertaking.

Thus,

Harris asserts, any amendment to the complaint would not add a
new cause of action, but would only clarify what is already
stated in Count I.

Further, Harris adverts to the fact that URS

waited to file the instant motion until two months after the
deadline to amend pleadings to contend that Count I was never
properly pled.

Lastly, Harris argues that it was held liable in

that it was legally responsible for re-performing work required
by URS, and thus Count II properly brings a claim under section
9:2771.

DISCUSSION
A.

Legal Standard
Rule 12(c) provides that “[a]fter the pleadings are

closed—but early enough not to delay trial—a party may move for
judgment on the pleadings.”

FED. R. CIV. P. 12(c).

“A motion

brought pursuant to Fed.R.Civ.P. 12(c) is designed to dispose of
cases where the material facts are not in dispute and a judgment
on the merits can be rendered by looking to the substance of the
pleadings and any judicially noticed facts.”

7

Hebert Abstract

Co., Inc. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir.
1990).

The standard for dismissal for a Rule 12(c) motion for

judgment on the pleadings is the same as that for dismissal for
failure to state a claim under Rule 12(b)(6).

Johnson v.

Johnson, 385 F.3d 503, 529 (5th Cir. 2004).
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

FED. R. CIV. P. 8(a)(2).

The

complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.”
Broudo, 544 U.S. 336, 346 (2005).
simple, concise, and direct.”

Dura Pharm., Inc. v.

The allegations “must be

FED. R. CIV. P. 8(d)(1).

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, __U.S.__, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007)).

A claim is facially plausible when the

plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 129 S. Ct. at 1949.

A court must

accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff.

8

Lormand v. U.S.

Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations.
B.

Count I:

Iqbal, 129 S. Ct. at 1949-50.

Tort Allegations

Based on URS’s characterization of Count I as a claim for
tortious interference with contract, URS argues that the count
must be dismissed as a matter of law.

Louisiana law recognizes a

very limited action for tortious interference with contract.

The

Louisiana Supreme Court in 9 to 5 Fashions, Inc. v. Spurney, 538
So. 2d 228, 229 (La. 1989) recognized a corporate officer’s duty
to refrain from intentional interference with contractual
relations between his corporation and other persons unless the
interference is supported by a reasonable justification.

In

reaching this conclusion, the court initially noted that
Louisiana law had not provided a cause of action for tortious
interference with contract.

Id. at 231.

However, after

examining the law, the Court annulled its previous jurisprudence
“barring absolutely any action based on a tortious interference
with a contract” insofar as such prior case law conflicted with
the opinion.

Id. at 234.

Still, the court expressly declined to

adopt the entire common law doctrine of tortious interference.

9

Id.

Based on the limited cause of action recognized in Spurney,

Harris does not have a tortious interference claim because this
is not a suit against a corporate officer alleging that the
officer intentionally caused his corporation to breach its
contract with the plaintiff.
Louisiana courts1 and the Fifth Circuit2 have consistently
refused to extend the action for tortious interference beyond the
limited scope recognized in Spurney.

Because Louisiana law does

not recognize an action for tortious interference under the
instant facts, any claim for tortious interference with contract
presented by Count I must be dismissed.3

However, the next

question is whether Count I states any other cause of action
under Louisiana law so as to avoid dismissal of the entire count.
1

See, e.g., Belle Pass Terminal, Inc. v. Jolin, Inc., 618 So. 2d 1076,
1080 (La. App. 1st Cir. 1993) (stating that Spurney “applies to a corporate
officer interfering with his employer’s corporate contract with third
persons”); A & W Sheet Metal, Inc. v. Berg Mech., Inc., 653 So. 2d 158, 165
(La. App. 2d Cir. 1995) (“Louisiana courts have limited the Spurney decision
to its facts.”); Spears v. Amer. Legion Hosp., 780 So. 2d 493, 497 (La. App.
3d Cir. 2001) (“Where the interference alleged is beyond the cause of action
created in [Spurney], the trial court is correct in denying the claim.”).
2

See Amer. Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949
F.2d 1384, 1391 (5th Cir. 1991) (discussing Spurney and concluding, “It took
the Louisiana Supreme Court almost 90 years to recognize a quite narrow cause
of action for tortious contractual interference; it is not for this diversity
court to expand that cause of action in the face of Louisiana’s expressed
unwillingness to do so.”); Egorov, Puchinsky, Afanasiev & Juring v.
Terriberry, Carroll & Yancey, 183 F.3d 453, 457 (5th Cir. 1999) (affirming
dismissal of tortious interference claim where there were no allegations of
facts satisfying the elements of a Spurney cause of action).
3

Notably, Harris does not argue that it has a valid claim for tortious
interference with contract.

10

Looking at Count I of the complaint, the phrase “tortious
interference” cannot be found.

The count opens with a statement

that the claims arise under “Louisiana Civil Code articles 2315
et seq.”

Rec. Doc. 1, at 6, ¶ 26.

This is a general invocation

of Louisiana tort law,4 which is followed by more specific facts
in Count I.

Harris alleges the following:

In its role as engineer, consultant, construction
manager, and Owner representative, and through the
actions set forth above in paragraphs 1 through 24
above, URS intentionally and negligently interfered,
and continues to interfere, with Harris’s perfromance
[sic] and completion of the Project, all to URS’s
benefit and to the detriment of Harris.
Id. at 7, ¶ 27.

Read literally, the complaint does not allege

that URS’s actions interfered with Harris’s Contract with the
Owner, but rather with Harris’s ability to “perform” and
“complete” “the Project.”

However, “the Project” refers to

construction under the Contract between Harris and the Owner.5
Count I further alleges that Harris “is entitled to recover all
payments made by the Owner to URS caused and arising from URS’s
intentional and negligent acts.”

Id. at 8, ¶ 31.

This

constitutes an allegation that URS’s actions caused the Owner to
4

Louisiana Civil Code article 2315 is “the ‘fountainhead’ of tort
responsibility in Louisiana.” Veazey v. Elmwood Plantation Assocs., Ltd., 650
So. 2d 712, 717 (La. 1994).
5

The Contract was for construction of the “Project.”
2-3, ¶ 5.

11

Rec. Doc. 1, at

make payments to URS, which interfered with Harris’s contractual
right to receive payments from the Owner.
of tortious interference:

This allegation smacks

URS’s actions tampered with Harris’s

contractual right to payment from the Owner.

The complaint

further alleges that URS owed a duty to Harris to approve
Harris’s work, develop good-quality plans and specifications, not
interfere with Harris’s ability to perform the project, only
require Harris to perform work pursuant to the plans, and timely
and fairly review and approve compensation for Harris’s work.
Id. at 3-5, ¶¶ 10-12, 15-16.
Based on these allegations, a defendant would mainly be
apprised of a claim for tortious interference with contract.

In

Spurney, 538 So. 2d at 230-31, a corporate uniform supplier that
had a contract with a corporation running the 1984 Louisiana
World’s Fair sued the latter corporation’s CEO, alleging that the
CEO’s acts caused the plaintiff delay and difficulty in
performing its contract with the CEO’s corporation and that the
CEO acted intentionally to delay the performance.

The Louisiana

Supreme Court stated that “[i]n effect, without labeling the
delict,” the plaintiff was urging the court “to recognize an
action that it has refused to allow since 1902, viz., an action
for tortious interference with a contractual relationship.”

12

Id.

at 231.6

Likewise, the complaint in this case essentially

alleges that Harris’s ability to perform its obligations as
general contractor to the Owner was delayed and rendered more
difficult by URS’s actions.

These difficulties are alleged to

have resulted from, inter alia, URS’s failure as a construction
manager to develop good-quality project specifications,
insistence on Harris’s performance of unnecessary work that
delayed the construction project, and failure to approve certain
payments by the Owner to Harris.

The gist of the complaint is

that URS’s duties as a construction manner included the
obligation to manage the construction project in a way that would
allow Harris to perform its own contractual duties owed to the
Owner.

This unlabeled tort largely bespeaks a claim for tortious

interference.

The question, then, is whether Count I also can be

read as stating a plausible claim for negligence or negligent
professional undertaking.
The Court concludes that, fairly read, it does.

In ruling

on the instant motion, the Court must draw all reasonable
inferences in Harris’s favor.

See Lormand, 565 F.3d at 232.

6

Specifically, the CEO allegedly had not timely appointed an employee
with uniform supply coordination experience, the CEO’s corporation did not
officially sign the uniform contract with the plaintiff until days before the
fair, and therefore the plaintiff supply company ordered more material than
what was ultimately required, causing it to experience a loss of profits.
Spurney, 538 So. 2d at 230.

13

Harris invoked the law of tort in Civil Code article 2315
generally.

Rec. Doc. 1, at 6, ¶ 26.

If, accepting the factual

allegations as true, Harris states a plausible claim for
negligence, Count I survives URS’s motion for judgment on the
pleadings.

The Court finds that Louisiana jurisprudence

recognizes an action for negligent professional undertaking, the
essential elements of which are established based upon the facts
alleged.
In Colbert v. B.F. Carvin Construction Co., 600 So. 2d 719
(La. App. 5th Cir. 1992), the court recognized the distinction
between tortious interference and negligent professional
undertaking.

At issue in Colbert was the validity of a general

contractor’s counterclaim against an architect in the context of
a public school renovation project.

The court stated that

although the general contractor had pled tortious interference
with contract, it had also pled a cause of action based on the
architect’s allegedly negligent professional undertaking with the
school board.

Id. at 721.

Under Spurney, the Colbert court

noted that there was no remedy for negligent interference with
contract.

600 So. 2d at 722.

However, the court proceeded to

distinguish and recognize a tort based upon the negligent
professional undertaking of an architect.

14

Id. at 723.

The court

reviewed case law from Louisiana and other states, noting that it
had previously recognized such a cause of action by a general
contractor against an engineering firm, and that other Louisiana
appellate courts had recognized subcontractor claims against
architects with whom the subcontractors lacked privity.

Id. at

723-24.
The court noted that the rationale for imposing liability is
the degree of control exerted by the supervising architect over
the contractor, specifically, “[t]he power of the architect to
stop the work alone [that] is tantamount to a power of economic
life or death over the contractor.”

Id. at 724 (quoting United

States v. Rogers & Rogers, 161 F. Supp. 132, 136 (S.D. Cal.
1958)) (emphasis removed).

In concluding that the petition

stated a cause of action, the court adopted a balancing test to
determine whether third parties not in privity may sue an
architect:
“[T]he extent to which the transaction was intended to
affect the plaintiff, the foreseeability of harm to
him, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection
between the defendant’s conduct and the injury
suffered, the moral blame attached to defendant’s
conduct, and the policy of preventing future harm.”
Id. at 725 (quoting Westerhold v. Carroll, 419 S.W.2d 73, 81-82
(Mo. 1967)).

Other cases cited by the court in Colbert have

15

recognized similar negligence claims under Louisiana law.

See

Standard Roofing Co. of New Orleans v. Elliot Constr. Co., Inc.,
535 So. 2d 870, 880 (La. App. 1st Cir. 1988) (recognizing that an
architect has a duty to third parties that arises because the
architect is deemed to know that its services are for the
protection of third parties who “must rely on the architect’s
expertise in providing adequate supervision, plans, and
specifications”); S.K. Whitty & Co., Inc. v. Laurence L. Lambert
& Assocs., 576 So. 2d 599, 601 (La. App. 4th Cir. 1991) (finding
that Louisiana law provides a cause of action for preconstruction negligence against an engineer who prepared
construction plans and specifications).
The Court concludes that whether styled “negligent
professional undertaking” or simply “negligence,” Louisiana law
recognizes a cause of action for negligence by Harris, as general
contractor, against URS.

Although a good deal of the previously

cited case law specifically refers to architects, the reasoning
therein applies to URS in this case, whom the complaint alleges
to be an “engineer, consultant, construction manager, and Owner
representative.”

Rec. Doc. 1, at 3, ¶ 9.

Indeed, the court in

S.K. Whitty, 576 So. 2d at 601, specifically recognized a cause
of action against an engineer—which URS is alleged to be—who

16

negligently prepares plans and specifications for a construction
project.

Further, based on the facts alleged, Harris’s complaint

passes muster under the balancing test adopted in Colbert.

URS’s

construction plan preparations and instructions to Harris to redo
certain work were acts that URS had to have known would directly
affect Harris.

It was foreseeable and fairly certain that Harris

would suffer economic harm if URS managed the project poorly, and
URS’s development of project specifications directly affected the
work Harris performed.

In short, Harris asserts a high degree of

economic control by URS that was the purpose recognized in
Colbert as supporting a cause of action.
The language of the complaint, fairly read, states a
Colbert-type negligence claim. Although Count I is largely
phrased in terms of “interference” with the project, the count
contains allegations similar to those in Colbert, 600 So. 2d at
721, which that court construed as constituting both a tortious
interference and a “negligent professional undertaking” tort.
that case, the claimant alleged that the architect failed to
prepare adequate plans and specifications that would reasonably
notify a bidding general contractor of the scope of work to be
done, failed to furnish instructions and clarifications during
the project, pressured the claimant to perform extra work, and

17

In

caused the claimant to provide maintenance services not
contemplated by the contract between the school board and the
claimant.

Id. at 720-21.

Similarly, in this case, Harris

alleges that URS failed to prepare adequate plans and
specifications and required Harris to re-perform certain work
that was unnecessary.

Rec. Doc. 1, at 4, ¶ 14; at 7, ¶ 29; at 8,

¶ 34.
In light of the foregoing, the Court concludes that Count I
states a claim for negligence beyond any legally insufficient
claim of tortious interference with contract.7

Therefore, URS’s

argument that Harris now attempts to convert his cause of action
to one for negligent professional undertaking is not persuasive.
Even so, Harris will be granted leave to amend its complaint to
clarify the cause of action discussed herein.

Applying the “good

cause” test for permitting untimely pleading amendments reveals
that good cause exists for permitting such an amendment.8

Harris

7

Harris has asserted not only negligence, but also intentional tortious
acts. Thus, Count I survives URS’s motion as to both intentional and
negligent professional undertaking.
8

See S&W Enter., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533,
536 (5th Cir. 2003) (framing the test to consider “(1) the explanation for the
failure to [timely move for leave to amend]; (2) the importance of the
[amendment]; (3) potential prejudice in allowing the [amendment]; and (4) the
availability of a continuance to cure such prejudice.”); see also id. (“Rule
16(b) governs amendment of pleadings after a scheduling order deadline has
expired.”); FED. R. CIV. P. 16(b) (providing that a scheduling order “may be
modified only for good cause and with the judge’s consent”). The deadline for
amending pleadings passed on December 22, 2011. Rec. Doc. 11, at 1.

18

did not previously amend because it validly believed it had
stated a claim for negligence.

The amendment will provide

clarification, though it may prejudice URS to the extent the
complaint, as it has been worded, largely bespeaks tortious
interference, as opposed to the valid theory of negligence
recognized by the Court.

However, any such prejudice can be

cured by the Court’s recent order that the parties jointly
prepare a detailed discovery plan, which implies that URS will be
able to conduct further discovery.
trial.

Rec. Doc. 33.

That order also continued the

Furthermore, even to the extent the

complaint could have provided better notice of the precise
negligence theory relied upon, after answering in August 2011,
URS waited until February 2012 to file its Rule 12(c)
motion—several months after the deadline for Harris to amend its
complaint.9
C.

Count II:

Louisiana Revised Statutes § 9:2771

Count II alleges that the claims therein “arise under La.
Rev. Stat. 9:2771 and other aspects of Louisiana Law.”
1, at 8, ¶ 33.

Rec. Doc.

Count II reiterates certain allegations made

elsewhere in the complaint and further alleges, inter alia, that

9

See Rec. Doc. 9 (answer); Rec. Doc. 12 (motion for judgment on the
pleadings); Rec. Doc. 11 (scheduling order setting December 22, 2011 deadline
for amending pleadings).

19

URS refuses to compensate Harris for extra work performed, has
invoiced the Owner for URS’s time inspecting Harris’s work, has
invoiced the Owner for time URS incurred in requiring Harris to
perform items not recognized in the industry, and is liable to
Harris for resultant damages.

Rec. Doc. 1, at 8-9, ¶¶ 35-40.

The cited statute reads, in pertinent part:
No contractor . . . shall be liable for destruction or
deterioration of or defects in any work constructed, or
under construction, by him if he constructed, or is
constructing, the work according to plans or
specifications furnished to him which he did not make
or cause to be made and if the destruction,
deterioration, or defect was due to any fault or
insufficiency of the plans or specifications. . . .
LA. REV. STAT. § 9:2771.

Louisiana courts have recognized that

this statute provides an affirmative defense of immunity to
contractors in certain circumstances.

See Morgan v. Lafourche

Recreation Dist. No. 5, 822 So. 2d 716, 721-22 (La. App. 1st Cir.
2002); Lyncker v. Design Eng’g, Inc., 988 So. 2d 812, 814-15 (La.
App. 4th Cir. 2008); see also LaForge v. ECC Operating Servs.,
2008 WL 5082895, at *2-3 (E.D. La. Nov. 25, 2008).

The Court

will not extend the meaning of this statute beyond either the
interpretation espoused in Louisiana jurisprudence or the literal
language that “[n]o contractor shall be liable” in certain
situations.

LA. REV. STAT. § 9:2771.

Harris incorrectly argues

that Austin Homes, Inc. v. Thibodeaux, 821 So. 2d 10 (La. App. 3d
20

Cir. 2002) recognized the statute as a basis for recovery.

In

that case, although a general contractor sued homeowners for
unpaid costs, the court recognized the possibility that the
general contractor could use the statute as an affirmative
defense against the homeowners’ counterclaim for breach of
contract.

Id. at 13, 15.

Harris argues that it has been held liable within the
meaning of the statute, in that it has been required to pay URS
additional administration and engineering fees in conjunction
with the re-performance of work that URS should have accepted as
compliant.

Accepting Harris’s definition of liability as “legal

responsibility,” Harris was not “held liable” within the meaning
of the statute through its re-performance of work and incurrence
of resultant damages.

To the contrary, Harris asserts that these

damages were unjustly suffered.

If these damages were unjustly

suffered, in that Harris should not have had to re-perform the
work, it actually had no legal responsibility and thus was not
“held liable” by URS.

Harris has not been held liable so as to

implicate this statute as a cause of action.10

10

The statute

Further, the Court is not persuaded by Harris’s curious argument that
if Count II is dismissed, Harris’s ability to rely on the statute could be
“issue precluded” such that the statute provides no protection to Harris. To
the contrary, a finding that the statute does not create a cause of action
does not mean that the statute cannot serve its proper function of providing
an immunity defense.

21

provides a defense, not a claim.

The Count II claim under

Louisiana Revised Statutes section 9:2771 must be dismissed.
D.

Count III:

Unjust Enrichment

Count III states that the claims therein “arise under
Louisiana Civil Code article 2298, and other aspects of Louisiana
law.”

Rec. Doc. 1, at 9, ¶ 42.

It states that URS is liable to

Harris for all amounts URS has received from the Owner based on
its improper actions, to Harris’s detriment.

Id. at 10, ¶ 43.

It asserts that URS has been unjustly enriched and that URS is
liable “[t]o the extent that Harris has no remedy of law to
recover the extent of its damages.”

Id., ¶ 44.

Concerning a

cause of action for unjust enrichment, Louisiana Civil Code
article 2298 provides, in pertinent part:
A person who has been enriched without cause at the
expense of another person is bound to compensate that
person. The term “without cause” is used in this
context to exclude cases in which the enrichment
results from a valid juridical act or the law. The
remedy declared here is subsidiary and shall not be
available if the law provides another remedy for the
impoverishment or declares a contrary rule.
LA. CIV. CODE art. 2298 (emphasis added).

The import of the

statute is that “[u]njust enrichment is only applicable to fill a
gap in the law where no other remedy is provided for by law.”
Nature Conservancy v. Upland Props., LLC, 48 So. 3d 1257, 1261
(La. App. 1st Cir. 2010).
22

In this case, there is no gap in the law, and there is a
legal remedy in tort available to Harris.

Whether or not that

claim is ultimately successful is immaterial.

Westbrook v. Pike

Elec., L.L.C., 799 F. Supp. 2d 665, 672 (E.D. La. 2011).

The

fact that Harris has pled an action in tort, which states a
claim, demonstrates that another legal remedy is available.

See

Walters v. MedSouth Record Mgmt., LLC, 38 So. 3d 243, 244 (La.
2010) (where the plaintiff pled an action in tort, he failed to
state a cause of action in unjust enrichment, notwithstanding
that the tort claims had been held to be prescribed).

The Court

need not reach URS’s other arguments that Harris has another
available legal remedy in the form of a suit against the Owner
under the Contract and that any enrichment was justified based on
URS’s performance of its contract with the Owner.

Count III must

be dismissed.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant’s
Rule 12(c) Motion for Judgment on the Pleadings to Dismiss
Plaintiff’s Complaint (Rec. Doc. 12) be GRANTED IN PART and
DENIED IN PART.

It is GRANTED insofar as any claim for tortious

interference with contract in Count I, the claim under Louisiana

23

Revised Statutes section 9:2771 in Count II, and the claim for
unjust enrichment in Count III are dismissed with prejudice.

It

is DENIED insofar as Count I states a claim for negligence upon
which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff is granted leave to
amend its complaint to clarify the claim in Count I within 10
days from the entry of this order.
New Orleans, Louisiana, this 19th day of March, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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