Mabile v. BP, p.l.c. et al

Filing 55

ORDER: IT IS HEREBY ORDERED that BP's 30 Motion to Dismiss Plaintiff's Amended Complaint for Failure to State a Claim is GRANTED IN PART and DENIED IN PART. The Court grants BP's motion to dismiss Mabile's unjust enrichment claim, and denies BP's motion to dismiss Mabile's conversion and LUTPA claims. Signed by Judge Nannette Jolivette Brown on 9/22/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PIERRE MABILE

CIVIL ACTION

VERSUS

NO. 11-1783

BP, P.L.C., et al.

SECTION “G”(2)

ORDER
In this litigation, Plaintiff Pierre Mabile (“Mabile”) alleges that he designed and
manufactured a prototype (the “Mabile Cap”) to stop the flow of oil during the well blowout on
Deepwater Horizon, and that Defendants BP p.l.c., BP Exploration & Production, Inc., BP
America Production Company, and BP America, Inc. (collectively “BP”) used his design without
compensating him. Mabile brings claims of conversion, unfair trade practices, and unjust
enrichment against BP. Pending before the Court is BP’s “Motion to Dismiss Plaintiff’s Amended
Complaint for Failure to State a Claim.”1 Having considered the motion, the memoranda in
support, the memoranda in opposition, and the applicable law, the Court will deny the motion.
I. Background
A.

Factual Background
In his amended complaint, Mabile alleges that he designed and manufactured a prototype

(the “Mabile Cap”) to stop the flow of oil during the well blowout on Deepwater Horizon.2 He
alleges that his design contains a unique “flange on top of a flange” design and “contains a valve

1

Rec. Doc. 30.

2

Rec. Doc. 28 at 3–4.

1

to allow the oil to either be piped to the surface or to cement the well in.”3 According to Mabile,
on June 15, 2010, he wrote a letter generally describing the Mabile Cap’s functionality, and
submitted it, along with a schematic drawing of the device, to BP through its website dedicated to
soliciting ideas on how to stop the oil spill.4 The letter informed BP that a demonstration of the
Mabile Cap was going to be held on June 19, 2010, in Grand Isle, Louisiana.5 Mabile also
submitted this letter to BP’s office in Houston, Texas.6
Mabile alleges that he demonstrated the Mabile Cap on June 19, 2010, for two BP
engineers, Jason French (“French”) and Thomas Pearce (“Pearce”).7 According to Mabile, French
then immediately called another BP engineer, Al Ledet (“Ledet”), who requested that Mabile meet
him later that day in Houma, Louisiana, to perform another demonstration of the Mabile Cap.8
Mabile alleges that he performed a demonstration for Ledet and United States Coast Guard
engineer, Kurt Hansen (“Hansen”), the same day. 9 Mabile states that Hansen, though a Coast
Guard engineer, was acting on behalf of BP as an engineer and/or technical consultant to cap the
oil flow.10 Mabile recalls that Hansen called his idea the best design he had ever seen for capping
the oil spill.11 He alleges that, per Hansen’s request, he left a schematic drawing of the Mabile Cap

3

Id. at 4.

4

Id.

5

Id.

6

Id.

7

Id. at 5.

8

Id.

9

Id.

10

Id.

11

Id.

2

with Hansen and later emailed a digital copy of the drawing to Hansen on or around June 22,
2010.12 Again, per Hansen’s request, Mabile alleges that he sent Hansen a DVD of the Mabile Cap
demonstration.13
According to Mabile, on or around July 11, 2010, BP began installing a “flange on top of
a flange” device on the Deepwater Horizon oil spill that was “consistent with and identical to the
form and function of the Mabile Cap.”14 On or around July 12, 2010, Mabile alleges that BP
installed a sealing cap assembly (“the 3-ram Capping Stack”), which, like the Mabile Cap, was
“used to plug the wellhead and allow oil to continue to flow through valves to vessels or other
infrastructure.”15 He states that on July 15, 2010, the wellhead was capped and oil ceased gushing
into the Gulf of Mexico.16 Mabile argues that BP used his design to cap the oil well and has failed
to acknowledge or compensate him for its use of his invention.17
B. Procedural Background
Mabile originally filed his petition for damages in the 32nd Judicial District Court for the
Parish of Terrebonne.18 BP removed the case to this Court on July 22, 2011.19 This case was
previously consolidated with MDL No. 2179 before Section “J” of this Court.20 Mabile filed a

12

Id.

13

Id.

14

Id. at 5–6.

15

Id. at 6.

16

Id.

17

Id.

18

Rec. Doc. 1-2.

19

Rec. Doc. 1.

20

Rec. Doc. 5.

3

motion to sever his action from the multi-district litigation, which was granted on October 16,
2015.21 Mabile filed an amended complaint on December 7, 2015, alleging claims of conversion,
unfair trade practices under Louisiana’s Unfair Trade Practices and Consumer Protection Law
(“LUTPA”),22 and unjust enrichment.23
BP filed the instant motion on December 24, 2015.24 Mabile filed his opposition on January
12, 2016.25 With leave of Court, BP filed a reply on January 20, 2016. 26 The Court heard oral
argument on the motion on February 17, 2016.27 Following oral argument, BP filed a “Notice of
Supplemental Authority” on February 19, 2016.28 On February 19, Mabile also filed a “PostHearing Submission in Opposition to Motion to Dismiss.”29 With leave of Court, BP filed a
response to Mabile’s post-hearing submission on March 1, 2016.30
II. Parties’ Arguments
A.

BP’s Arguments in Support of Dismissal
BP presents three broad arguments in support of its motion to dismiss: (1) that Mabile fails

to plausibly allege certain “essential” elements necessary to bring a state law “use-of-idea” claim;31

21

Id.

22

See La. Civ. Code § 51:1405(A).

23

Rec. Doc. 28.

24

Rec. Doc. 30.

25

Rec. Docs. 31, 32.

26

Rec. Doc. 38.

27

Rec. Doc. 35.

28

Rec. Doc. 41.

29

Rec. Doc. 42.

30

Rec. Doc. 46.

31

Rec. Doc. 30-1 at 8.

4

(2) that Mabile fails to plausibly state a conversion, unfair trade practices, or unjust enrichment
claim based on individual deficiencies in each of Mabile’s claims;32 and (3) that each of Mabile’s
claims are preempted by federal patent law.33 Additionally, as a preliminary matter, BP requests
that this Court take judicial notice of the MDL 2179 Court’s Findings of Fact and Conclusions of
Law from the MDL Phase II trial to consider alongside the pleadings when deciding BP’s motion
to dismiss.34
1.

Judicial Notice of MDL Phase II Findings

As an initial matter, BP argues that the Court may properly take judicial notice and consider
the MDL 2179 Court’s Findings of Fact and Conclusions of Law from the MDL Phase II trial
(“MDL Phase II Findings”) to decide if Mabile has failed to state his claims under a Rule 12(b)(6)
motion to dismiss.35 BP argues that it is permissible here for this Court to utilize the “items in the
record of the case, related cases and matters of public record.”36 BP represents that, in the Fifth
Circuit, this Court “may take judicial notice of the record in prior related proceedings, and draw
reasonable inferences therefrom.”37 BP states that both parties designated the MDL Phase II
Findings to be part of the record in this matter when it was severed from MDL 2179, and that

32

Id.

33

Id. at 7.

34

Id. at 15.

35

Id.

36

Id. (quoting G.C.P. Tel. Cards LLC v. ADT Security Servs., Inc., No. 10-4305, 2011 WL 2118732, at *3
(E.D. La. May 24, 2011) (McNamara, J.)).
37

Id. (quoting Matter of Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 211 (5th Cir. 1983)). See also
In re Am. Cont’l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996) (rejecting argument “that
the district court erred in examining the MDL 834 record in ruling on” a motion to dismiss because “ample authority
exists which recognizes that matters of public record, including court records in related or underlying cases which
have a direct relation to the matters at issue, may be looked to when ruling on a 12(b)(6) motion to dismiss”).

5

Mabile attached two exhibits from the MDL Phase II Findings to his amended complaint.38
Therefore, according to BP, the Court can properly consider the MDL Phase II Findings when
determining BP’s motion to dismiss Mabile’s claims. 39
Essential Elements for “Use of Idea” Claims

2.

In support of its motion to dismiss, BP first argues that because all three of Mabile’s claims
are premised upon BP’s alleged use of Mabile’s idea when BP created the 3-Ram Capping Stack,
Mabile must additionally allege that his idea was (1) novel, (2) disclosed in confidence, and (3)
used by BP.40 BP bases its argument on Official Airlines Schedule Info. Serv., Inc. v. E. Air Lines,
Inc., a Fifth Circuit case affirming a Florida federal district court’s order granting summary
judgment against a plaintiff’s claims for alleged appropriation of plaintiff’s idea.41 There, the Fifth
Circuit, citing several other circuits,42 held that to find a defendant liable for the alleged
appropriation of an idea, a plaintiff must satisfy the necessary prerequisite elements of novelty,
38

Id. at 16.

39
For example, BP argues that the MDL Phase II Findings show that BP’s 3-ram Capping Stack had a
different connecting configuration than the Mabile Cap; that BP cut off the “riser stub” that the Mabile Cap was
designed to attach to in order to allow its 3-ram Capping Stack to attach to the blowout preventer instead; that BP
identified a capping stack as a potential solution nearly two months before Mabile submitted his design; that BP had
the technology available to build a capping stack prior to the blowout; and that a Peer Assist was held to evaluate
capping options prior to Mabile’s submission. Id. at 18–19. Likewise, BP cites a photograph of a “largely assembled”
3-ram Capping Stack that was allegedly taken on May 30, over two weeks before Mabile contends he provided the
ideas that BP used to build its cap. Id. The photograph was an MDL trial exhibit referenced in an October 13, 2013
trial transcript, and does not appear to be cited in the MDL Phase II Findings designated by Mabile. See Rec. Doc. 179 (Transcript of Nonjury Trial Proceedings on Oct. 2, 2013) at 898–901; Rec. Doc. 17-29 (MDL Trial Ex. 143045) at
6.
40

Rec. Doc. 30-1 at 14.

41

333 F.2d 672, 673–74 (5th Cir. 1964).

42

See, e.g., Mitchell Novelty Co. v. United Mfg. Co., 199 F.2d 462 (7th Cir. 1952) (holding that the plaintiff
failed to establish the prerequisite elements of novelty, confidentiality, and use for his unjust enrichment claim for
alleged appropriation of his idea); De Filippis v. Chrysler Corp., 159 F.2d 478 (2d Cir. 1947) (holding that the plaintiff
cannot allege novelty or use of his idea when defendant was already manufacturing the product at the time of
disclosure); Smoley v. New Jersey Zinc Co., 106 F.2d 314, 315 (3d Cir. 1939) (finding the plaintiff failed to “sustain
the burden upon him of proving that the idea was novel”); Lueddecke v. Chevrolet Motor Co., 70 F.2d 345, 346 (8th
Cir. 1934) (stating that the plaintiff’s idea was not novel or useful, and that there was no agreement by defendant to
pay for the plaintiff’s alleged idea).

6

confidential relationship, and use of the idea by the defendant for his concept “to be entitled to
protection as a property right.”43
BP argues that Mabile fails to plausibly allege any of these essential elements. First, BP
states that the amended complaint fails to allege that any of Mabile’s disclosures were made in
confidence or that BP offered to keep his idea confidential.44 BP argues that Mabile could not
impose a confidential relationship on BP “by his gratuitous and unilateral act” of voluntarily
disclosing his idea to BP.45 Second, BP argues that Mabile has not plausibly alleged that BP used
any features of Mabile’s invention.46 In particular, BP asserts that though the amended complaint
states there were two unique features of the “Mabile Cap” design—the “flange on top of a flange”
feature and a valve designed to allow oil to be piped to the surface or to cement the well in47—
Mabile has not plausibly alleged that BP used either.48
Finally, BP, citing the MDL Phase II Findings,49 argues that Mabile has not plausibly
alleged that his idea was novel.50 In support of this contention, BP points to McIntyre v. BP
Exploration & Production, Inc., where another plaintiff alleged BP appropriated his well-capping

43

Official Airlines Schedule Info. Serv., Inc., 333 F.2d at 674.

44

Rec. Doc. 30-1 at 14.

45

Id. (quoting Official Airlines Schedule Info. Serv., Inc., 333 F.2d at 674).

46

Id. at 16.

47

Id. at 17–18 (quoting Rec. Doc. 28 at 4).

48
Id. In its reply brief, BP states that Mabile’s “rudimentary” submission lacked any important details for
which BP could have used to design the 3-ram Capping Stack. Rec. Doc. 38 at 11. For example, BP agrees with Mabile
that both of their designs included the use of valves, but asserts that Mabile has not alleged any specific details “about
these valves such as their type, size, material, operating limits, or other specifications” beyond vague allegations
“regarding the general use of valves.” Rec. Doc. 30-1 at 18. BP contends that such vague, generalized assumptions
are insufficient to satisfy BP’s proposed “use” element. Id.
49

BP cites to the MDL Phase II Findings to argue that BP had already identified and begun constructing a
capping stack as a potential solution prior to the submission of Mabile’s design. Id. at 18–19.
50

Id.

7

idea.51 There, BP states that the district court found that the only similarity plaintiff’s design had
with BP’s cap was the use of a “shutoff valve” that allowed oil to continue to flow, and held that
the use of valves was not sufficiently novel to support plaintiff’s claims.52 Here, BP asserts
Mabile’s submission also “amounts to little more than the idea of attaching valves to the Macondo
well to shut off the flow of hydrocarbons,” and thus lacked novelty.53
Alleged Deficiencies in Each of Mabile’s Claims

3.

Next, BP argues that Mabile’s conversion, unfair trade practices, and unjust enrichment
claims each suffer from particular deficiencies that require the Court to dismiss all three claims.
a.

Conversion

BP argues that, under Louisiana law, conversion only applies to goods and chattel, while
Mabile’s claim is based upon the alleged use of intangible, intellectual property. 54 According to
BP, Louisiana state courts repeatedly define the tort of conversion in terms of goods and chattel.55
BP represents that several federal district courts in Louisiana have held the same; for example, a
court in the Middle District of Louisiana held that conversion “requires unlawful interference with
chattel,” while a court in the Western District of Louisiana has stated that Louisiana limits
conversion claims of intangible property rights to those that “are traditionally merged into or

51

Id. at 20 (citing No. 13-149, 2015 WL 999092 (D. Alaska Mar. 5, 2015).

52

Id. (citing McIntyre, 2015 WL 999092 at *1, 3).

53

Rec. Doc. 38 at 11.

54

Id. at 21–23.

55

Id. at 21 (citing Tracer Prot. Servs., Inc. v. Burton, No. 15-0215, 2015 WL 5515793, at *6 (La. Ct. App.
2015) (citing Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So. 2d 853, 857 (La. 1998) (describing conversion as,
inter alia, the “wrongful exercise or assumption of authority over another’s goods” that is “committed when any of
the following occurs: (1) possession is acquired in an unauthorized manner; (2) the chattel is removed from one place
to another with the intent to exercise control over it; (3) possession of the chattel is transferred without authority; (4)
possession is withheld from the owner or possessor; (5) the chattel is altered or destroyed; (6) the chattel is used
improperly; or (7) ownership is asserted over the chattel.” (emphasis added))).

8

identified with some document,” such as “stock certificates and bonds.”56 Therefore, BP argues
that intangible property may only be subject to conversion in Louisiana when there is “unlawful
interference with some physical document or other tangible property.”57 In support of this
argument, BP cites Dorsey v. Money Mack Music, Inc., where another section of the Eastern
District of Louisiana, considering whether a conversion claim was preempted by the Copyright
Act, stated that “the torts of conversion and trespass relate to interference with tangible rather than
intangible property.”58
Here, BP argues that Mabile has premised his conversion claim on BP’s alleged use of
Mabile’s intellectual property and not on the use of any tangible goods or chattel. 59 BP points to
the conversion section of Mabile’s amended complaint, which argues that BP interfered with
Mabile’s “intellectual property,” “design,” and “property rights in his invention.”60 BP represents
that the only physical property mentioned by Mabile was the copy of the schematic and a DVD of
the demonstration that Mabile allegedly gave to a Coast Guard engineer; however, BP argues that
this Court does not have to, nor should it, accept Mabile’s “unsupported legal conclusions” that
the Coast Guard engineer was an agent of BP.61 Moreover, BP states that Mabile voluntarily turned

56

Id. (citing Brand Coupon Network, LLC v. Catalina Mktg. Corp., No. 11-00556, 2014 WL 6674034, at *6
(M.D. La. Nov. 24, 2014) (emphasis in original); BASF Agrochemical Prods. v. Unkel, No. 05-1478, 2006 WL
3533133, at *7 (W.D. La. Dec. 7, 2006)).
57

Id.

58
304 F. Supp. 2d 858, 866 (E.D. La. 2003) (Duval, J.) (quoting 1 Melville B. Nimmer & David Nimmer,
NIMMER ON COPYRIGHT § 1.01(B)(1), at 1–41 (2000)).
59

Rec. Doc. 30-1 at 22.

Id. at 22 (citing Rec. Doc. 28 at 7). However, the same section of Plaintiff’s Amended Complaint also uses
the term “schematic.” Rec. Doc. 28 at 7.
60

Rec. Doc. 30-1 at 22. (citing Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (“We do not accept as
true conclusory allegations, unwarranted factual inferences, or legal conclusions” (quoting Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005))); Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (for purposes of a motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” (quoting Bell Atl. Corp. v.
61

9

over his schematic without ever requesting its return.62
BP also distinguishes Mabile’s case from the two Eastern District of Louisiana cases he
cites, contending that both cases involved conversion of physical objects or documents and are
thus not applicable here.63 BP argues that in Joe Hand Promotions, Inc. v. Ashby, the district judge
held that interference with a satellite signal could form the basis for a conversion claim, but based
its reasoning on the court’s conclusion that a satellite signal is “not an abstraction” but rather “a
physical thing, composed of matter, with physical properties.”64 Likewise, in Endotech USA v.
Biocompatibles International PLC, another district judge denied a motion to dismiss for a
conversion claim premised on the use and distribution of physical documents containing the
plaintiff’s business plan.65 According to BP, Mabile’s conversion claim here “is not based on the
distribution of his physical schematics,” which BP states Mabile has not plausibly alleged that BP
ever received, but rather BP’s alleged use of his abstract, intangible idea.66 Neither case, BP argues,
suggests incorporeal intellectual property or an abstract concept can be converted.67
b.

Unfair Trade Practices

Next, BP cites two cases, one in the Eastern District of Louisiana and one in the Middle

Twombly, 550 U.S. 544, 555 (2007))).
62

Id. (citing Davis v. Am. Marine Corp., 163 So. 2d 163, 167-68 (La. Ct. App. 1964) (when property is
voluntarily given to another, there can be no claim for conversion unless the recipient provides “an absolute,
unqualified refusal to deliver”)).
63

Id.

64
Id. (citing Joe Hand Promotions, Inc. v. Ashby, No. 13-4747, 2014 WL 1652511, at *4 (E.D. La. Apr. 24,
2014) (Vance, J.)).
65

Id. (citing Endotech USA v. Biocompatibles International PLC, No. 00-0957, 2000 WL 1594086, at *10
(E.D. La. Oct. 24, 2000) (Duval, J.)).
66

Id.

67

Id. at 23.

10

District of Louisiana, where courts have held that when a plaintiff’s claim under LUTPA is based
on a defendant’s alleged “fraudulent misrepresentation,” it must meet the heightened pleading
requirements of Rule 9(b).68 BP asserts that because Mabile’s unfair trade practices claim under
LUTPA is premised on alleged “misrepresentations” by BP, the heightened pleading requirements
of Federal Rule of Civil Procedure 9(b) applies.69
BP represents that, in the Fifth Circuit, Rule 9(b) is interpreted “strictly.”70 Here, BP argues
that Mabile failed to meet this heightened pleading statement standard.71 BP represents that Mabile
only states that “BP and/or its agents” made “misrepresentations,” but does not specifically
identify who made those misrepresentations, what the content was, why the statements were “false
or deceptive,” and when and where the misrepresentations occurred.72
Additionally, BP contends that Mabile’s unfair trade practices claim relies on “factually
unsupported legal conclusions that fail to satisfy the plausibility standard set forth in Twombly and
Iqbal.”73 BP refutes Mabile’s suggestion that the “abundance” of other, similar “use-of-idea”
lawsuits against BP demonstrates that “the individuals who submitted ideas to BP’s Website

68
Id. at 24 (citing Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F. Supp. 2d 710, 721 (E.D. La. 2009)
(“Because plaintiff’s LUTPA claim is based on defendants’ allegedly fraudulent misrepresentation, plaintiff’s LUTPA
claim must meet the heightened pleading requirements of Rule 9(b).”); Brand Coupon Network, LLC v. Catalina
Marketing Corp., 2014 WL 6674034, at *5 (“Where a plaintiff’s LUTPA claim is based on alleged fraudulent
misrepresentation, the LUTPA claim must meet the heightened pleading requirements of Rule 9(b).”)).
69

Id.

70

Id. (quoting Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th Cir.

71

Id.

72

Id. at 25.

2009)).

Id. For example, BP states that Mabile’s contention that, “[a]s shown by BP’s refusal to properly
compensate Mr. Mabile for his design, BP’s Website was used by BP to extract the information and knowledge it
desperately needed” is an unsupported legal conclusion that the Court should not be accepted as true. Id. (quoting Rec.
Doc. 28 at 8).
73

11

justifiably believed they would receive compensation for any submission used.” 74 BP asserts that
no such inference can be drawn from the mere fact that a lawsuit was filed, and BP represents that
every such lawsuit of which BP is aware “has been voluntarily dismissed, dismissed on the
pleadings, or dismissed on the summary judgment stage.”75 Thus, BP argues that Mabile’s unfair
trade practices claim fails to satisfy both Rule 9(b)’s heightened pleading requirements and a
plaintiff’s typical requirement to plausibly allege his claims.76
c.

Unjust Enrichment

Finally, BP argues that Mabile’s unjust enrichment claim fails because it is only available
when there is no alternative remedy available at law.77 According to BP, Louisiana Civil Code
article 2298 states that unjust enrichment “shall not be available if the law provides another remedy
for the impoverishment or declares a contrary rule.”78 BP further points to Walters v. MedSouth
Record Mgmt., LLC, a Supreme Court of Louisiana case, which held that “the remedy of unjust
enrichment is subsidiary in nature, and shall not be available if the law provides another remedy.
The unjust enrichment remedy is only applicable to fill a gap in the law where no express remedy
is provided.”79 BP argues that Walters makes it clear that the inquiry is not whether the plaintiff

74

Id. (quoting Rec. Doc. 28 at 8).

Id. (citing Erikson v. BP Expl. & Prod. Inc., 567 F. App’x 637 (10th Cir. 2014); Richards v. BP Expl. &
Prod., Inc., 533 F. App’x 378 (5th Cir. 2013); Vann v. British Petroleum Oil Co., 451 F. App’x 404 (5th Cir. 2011);
Lacy v. BP, plc, No. 11-21855, 2015 WL 3952593 (S.D. Fla. June 29, 2015); McIntyre v. BP Expl. & Prod., Inc., No.
13-149, 2015 WL 999092 (D. Alaska Mar. 5, 2015); Laing v. BP Expl. & Prod. Inc., No. 13-1041, 2014 WL 272846
(M.D. Fla. Jan. 23, 2014); Kaminski v. BP Expl. & Prod., Inc., 975 F. Supp. 2d 1220 (M.D. Fla. 2013); Throckmorton
v. BP Am., Inc., No. 13-43, 2013 WL 1187017 (E.D. Ky. Mar. 20, 2013); Cutler v. BP, MDL No. 2179, 2012 WL
4753418 (E.D. La. Oct. 4, 2012); Holland v. BP Am., Inc., No. 11-0580, 2012 WL 761980 (E.D. Cal. Mar. 7, 2012);
Ramani v. BP. N. Am. Inc., Case No. 1:11-cv-05953 (E.D.N.Y. 2011)).
75

76

Id. at 25–26.

77

Id.

78

Rec. Doc. 30-1 at 26.

79

Id. (quoting Walters v. MedSouth Record Mgmt., LLC, 38 So. 3d 243, 244 (La. 2010) (internal citations

12

can actually prevail on an alternative claim, but rather if no other legal framework governs the
alleged conduct.80
Here, BP argues that there is no “gap in the law” that would permit Mabile to bring an
unjust enrichment claim.81 BP offers two other potential remedies for the alleged impoverishment
that precludes Mabile from bringing an unjust enrichment claim: the Louisiana Uniform Trade
Secrets Act (“UTSA”) and LUTPA.82 In McPhearson v. Shell Oil Co., BP asserts that the
Louisiana Fourth Circuit Court of Appeal held that UTSA precluded an unjust enrichment claim
premised on the defendant’s use of plaintiff’s non-confidential design, “even though the plaintiff
did not assert a claim for trade secret misappropriation or maintain his idea as confidential.”83 BP
argues that Mabile could have sought the protections offered by UTSA, and thus his unjust
enrichment claim is precluded.84
BP also alleges that Mabile’s unjust enrichment claim is precluded by his LUTPA claim.85
In support of this contention, BP alleges that Mabile uses the same theory for both his unjust
enrichment and LUTPA claims; for example, BP represents that Mabile’s unjust enrichment claim
argues that BP made “deceitful solicitations” through its website, leading to the uncompensated

and quotation marks omitted)).
Id. See also Zaveri v. Condor Petroleum Corp., 27 F. Supp. 3d 695, 701–02 (W.D. La. 2014) (“As correctly
held by Judge Feldman of the Eastern District, under Louisiana law, an unjust enrichment claim is a ‘subsidiary’ claim,
not an alternative claim, which cannot be pursued when Louisiana law affords any other legal remedy.”) (citing JP
Mack Indus. LLC v. Mosaic Fertilizer, LLC, 970 F. Supp. 2d 516, 521 (E.D. La. 2013)); Constance v. Austral Oil
Expl., Co., Nos. 12-1252 & 12-1253, 2013 WL 6578178, at *9 (W.D. La. Dec. 13, 2013) (“Unjust enrichment is a
specific cause of action that may not be asserted against a defendant as a mere catchall or safety net in the event that
a plaintiff fails to succeed on the merits of his or her other claims.”).
80

81

Id. at 27.

82

Id.

83

Id. (citing McPhearson v. Shell Oil Co., 584 So. 2d 373, 376 (La. App. 4 Cir. 1991)).

84

Id.

85

Id.

13

and unauthorized use of his invention, while Mabile’s LUTPA claim alleges BP was “deceptive”
through its website resulting in “uncompensated use” of his invention.86 According to BP, it does
not matter if Mabile has failed to adequately allege sufficient facts to support his unfair trade
practices claim under LUTPA; all that matters is that there are remedies available at law for these
types of allegations.87
Even if this Court finds that Mabile can assert an unjust enrichment claim, BP argues that
it still fails because Mabile has not plausibly alleged that BP was “enriched without cause” from
Mabile’s invention.88 Relying on a number of non-Louisiana cases, BP states that, for an unjust
enrichment claim premised on the use of an idea, the idea must be “sufficiently developed to be
ready for immediate use without additional embellishment.”89 Here, BP argues that Mabile’s
alleged idea lacked the “specifications, dimensions, materials, operating limits, or other
engineering details” necessary for immediate use.90 Therefore, Mabile has not plausibly alleged

86

Id. (citing Rec. Doc. 28 at 8–10).

87

Id. at 28.

88

Id.

89

Id. (citing McIntyre v. BP Expl. & Prod., Inc., No. 3:13-CV-149 RRB, 2015 WL 999092, at *2 (D. Alaska
Mar. 5, 2015) (holding that the plaintiff’s well capping idea lacked “any specifications, dimensions, materials,
operating limits, or other critical engineering detail essential to implementation” and thus was not “sufficiently
developed to be ready for immediate use” (internal quotations omitted)); Kaminski v. BP Expl. & Prod. Inc., 975 F.
Supp. 2d 1220, 1238 (M.D. Fla. 2013); Smith v. Recrion Corp., 541 P.2d 663, 665 (Nev. 1975) (affirming summary
judgment for defendant because the idea on which the plaintiff’s claims was based “was hardly capable of ‘immediate
use without any additional embellishment’”); Tate v. Scanlan Int’l, Inc., 403 N.W.2d 666, 672 (Minn. Ct. App. 1987)
(“An idea is a protectable property interest, if it is sufficiently developed to be ready for immediate use without
additional embellishment. If an idea requires extensive investigation, research, and planning before it is ripe for
implementation, it is not concrete.”); Matarese v. Moore-McCormack Lines, Inc., 158 F.2d 631, 634 (2d Cir. 1946)
(“Courts have justly been assiduous in defeating attempts to delve into the pockets of business firms through spurious
claims for compensation for the use of ideas. Thus to be rejected are attempts made by telephoning or writing vague
general ideas to business corporations and then seizing upon some later general similarity between their products and
the notions propounded as a basis for damages.”)).
90

Rec. Doc. 30-1 at 29.

14

that his idea enriched BP, and his unjust enrichment claims should therefore be dismissed.91
4.

Federal Preemption of State Law Claims

Finally, BP contends that all three of Mabile’s claims are preempted by federal patent law
because they are all premised upon BP’s alleged use of Mabile’s non-confidential invention.92 BP
asserts that it is well-established that “[f]ederal law preempts state law that offers patent-like
protection to discoveries unprotected under federal patent law.”93 BP represents that the United
States Supreme Court, in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., found that “[a] state law
that substantially interferes with the enjoyment of an unpatented utilitarian or design conception
which has been freely disclosed by its author to the public at large impermissibly contravenes the
ultimate goal of public disclosure and use which is the centerpiece of federal patent policy.”94
Likewise, in Ultra-Precision Mfg., Ltd. v. Ford Motor Co., the Federal Circuit held that “[a]bsent
secrecy, state law cannot create a collateral set of rights available as an adjunct or expansion to
patent rights.”95
Generally, BP assert that because Mabile’s invention was publicly known and not patented,
his state law claims alleging BP used his idea without compensation “encroach impermissibly on
the exclusive domain of federal patent law.”96 According to BP, Mabile did not allege that he kept
his idea secret or confidential, but rather admitted that he held demonstrations of his invention for

91

Id.

92

Id. at 10–14.

93

Id. (citing 411 F.3d 1369, 1377–78 (Fed. Cir. 2005)).

94

Id. (quoting 489 U.S. 141, 156–57 (1989)).

95

Id. at 10–11 (citing Ultra-Precision Mfg., Ltd., 411 F.3d at 1379 (quoting Waner v. Ford Motor Co., 331
F.3d 851, 856 (Fed. Cir. 2003))).
96

Id.

15

a number of individuals, including several BP employees and a member of the United States Coast
Guard.97 BP asserts that an idea is considered publicly available, and thus unprotected by federal
patent law, if it is “given to a member of the public without restriction.”98
More specifically, BP contends that Mabile’s conversion claim is premised upon BP’s
alleged unauthorized use of his “Mabile Cap” idea, and thus it is preempted by federal patent law.99
BP asserts that in BASF Agrochemical Products v. Unkel, a court in the Western District of
Louisiana held that the tort of conversion under Louisiana law is preempted by federal patent law
when it is based upon an alleged unauthorized use of an invention.100 BP also cites Spear
Marketing, Inc. v. BancorpSouth Bank, a Fifth Circuit case, which BP states also stands for the
proposition that claims for conversion of intangible property are preempted.101
BP further asserts that Mabile’s unfair trade practices claim under LUTPA and his unjust
enrichment claim, both of which are also premised on BP’s alleged use of Mabile’s idea, are
preempted for the same reason as his conversion claim.102 BP avers that Mabile’s LUTPA claim
is preempted particularly in light of the fact that he does not limit the damages he seeks to only the
incremental benefit over and above the benefit the public received from the disclosure of his
idea.103 In support of this argument, BP represents that in Powell v. Home Depot U.S.A., Inc., a

97
Id. at 11 (citing Rec. Doc. 1-2 at 3; Rec. Doc. 28 at 5). BP also cites to Mabile’s original complaint, which
allegedly stated that the mayor of Grand Isle was also in attendance. Id (citing Rec. Doc. 1-2 at 3).
98

Id. (citing Pronova Biopharma Norge AS v. Teva Pharm. USA, Inc., 549 F. App’x 934, 940 (Fed. Cir.

99

Id.

2013)).

100

Id. at 12 (citing No. 05-478, 2006 WL 3533133, at *7 (W.D. La. Dec. 7, 2006)).

101

Id. (citing 791 F.3d 586, 597–98 (5th Cir. 2015)).

102

Id.

103

Id. at 13 (citing Ultra-Precision, 411 F. 3d at 1379–80).

16

federal district court in Florida held that a plaintiff’s claim under Florida’s Deceptive and Unfair
Trade Practices Act was preempted by federal patent law because it was not limited to such
“incremental profits.”104 With regards to Mabile’s unjust enrichment claim, BP again cites UltraPrecision Manufacturing, Ltd., a Federal Circuit case in which, BP asserts, the court held that the
plaintiff’s unjust enrichment claim was preempted because the idea was not kept confidential and
was “free for all of the world to enjoy.”105
B.

Mabile’s Arguments in Opposition of Dismissal
Mabile opposes BP’s motion to dismiss for failure to state a claim, and argues, in sum, that

the Court should not take judicial notice of the MDL Phase II Findings, that all three of his claims
are plausibly alleged, and that none of his claims are preempted by federal patent law. 106
1.

Judicial Notice of the MDL Phase II Findings

Mabile opposes BP’s use of documents outside the amended complaint in its motion to
dismiss, arguing that it is “wholly inappropriate at this premature stage.”107 Mabile asserts that, on
a Rule 12(b)(6) motion to dismiss, a court may not go outside the complaint beyond the limited
exception of attached documents. 108 Mabile argues that, even though the MDL Phase II findings
were designated as part of the record in this matter, reference to them may only be made during a
motion for summary judgment.109
Even if a summary judgment motion was currently before the Court, Mabile argues, the

104

No. 07-80435, 2010 WL 375796, at *5 (S.D. Fla. Jan. 26, 2010).

105

Rec. Doc. 30-1 at 13–14 (citing Ultra-Precision, 411 F. 3d at 1380–82).

106

Rec. Doc. 31.

107

Id. at 17.

108

Id. at 17–18.

109

Id.

17

Court does not have enough information yet to analyze the overlap between his “Mabile Cap” and
BP’s 3-ram Capping Stack.110 Mabile asserts that this case requires a detailed comparison of the
two designs and involves complicated engineering, expert, and fact issues that BP cannot plausibly
expect the Court to consider on a motion to dismiss this early in the litigation.111
Second, Mabile also opposes the consideration of BP’s “Figure 1: Annotated Exhibit 1 of
the Amended Complaint, Rec. Doc. 28-1” submitted in BP’s memorandum in support of its motion
to dismiss.112 In BP’s memorandum, BP submitted its own version of Mabile’s exhibit by drawing
dotted lines and inserting a label on the schematic Mabile attached to his amended complaint.113
Mabile argues that BP has improperly tried to submit its own exhibit on a motion to dismiss, and
thus BP’s “Figure 1” should not be considered.114
Essential Elements of “Use-of-Idea” Claims

2.

Mabile also opposes BP’s argument that he was required to allege the “essential elements”
of confidentiality, use, and novelty to survive a motion to dismiss on his three claims.115 Mabile
states that BP’s prerequisite elements are rooted in “antiquated” case law and are not based on
Louisiana law.116 Moreover, Mabile argues that the District Court of Alaska’s holding in McIntyre,

110

Id.

111

Id. Additionally, Mabile argues that even if the Court took judicial notice of the MDL Phase II Findings,
it would not be fatal to his claims, as all it shows is that BP had the ability to create a successful capping device, but
failed to do so until after Mabile submitted his designs. Id. Mabile asserts that BP has not alleged anything that
forecloses the fact that the specific successful design used to stop the oil spill was in fact created by Mabile.
112

Id. (citing Rec. Doc. 30-1 at 11).

113
Rec. Doc. 30-1 at 11. The annotated exhibit purportedly points out that Mabile’s device was intended to
attach to a riser stub on the ocean floor that BP cut off before installing its 3-ram Capping Stack. Id.
114

Rec. Doc. 31 at 18.

115

Id. at 18–20.

116

Id. at 19.

18

which considered the three elements asserted by BP when granting a motion to dismissed, was
premised on materially different circumstances than the case at hand.117 Mabile argues that in
McIntyre, the plaintiff’s submission to BP lacked any essential details, and the plaintiff had
admitted that there were “outright differences” between his proposal and BP’s ultimate solution.118
Here, Mabile asserts his schematic contained much more detail, including describing and
specifying the types of valves used and the application of seals, vacuum lines, studs, clips, and
flanges.119 Moreover, in response to BP’s citations to other cases involving similar plaintiffs,
Mabile argues that the fact that other claimants have alleged unsuccessful use of idea claims
against BP or settled “says nothing” about Mabile’s claims.120
Alleged Deficiencies in Each of Mabile’s Claims

3.

a.

Conversion

Mabile next contends that BP’s unauthorized interference with his property “falls squarely
within Louisiana’s cause of action for conversion.”121 Mabile asserts that Louisiana courts have
defined conversion as “an act in derogation of the plaintiff’s possessory rights” 122 that occurs
“when a party does not have permission to use the property of another.”123 Like BP, Mabile cites
the Louisiana Supreme Court case Dual Drilling, but reads it differently as allowing conversion

117

Id.

118

Id. (quoting McIntyre, 2015 WL 999092, at *2).

119

Id.

120

Id. at 19–20.

121

Rec. Doc. 31 at 9.

122

Id. (quoting Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So. 2d 756, 760 (La. 1985)).

123

Id. (quoting Glod v. Baker, 998 So. 2d 308, 316 (La. App. 3d Cir. 2008).

19

claims for general property rights.124 Accordingly, Mabile states that BP’s argument that
conversion only applies to “chattels,” defined as “corporeal movable,” is erroneous, arguing that
the courts who have arrived at that conclusion had relied on common law sources rather than
Louisiana state law and its civil law tradition.125 For example, Mabile argues that the court in BASF
Agrochemical Products v. Unkel defined chattel using Black’s Law Dictionary, and not on any
Louisiana state laws or court cases,126 while the court in Dorsey v. Money Mack Music, Inc. looked
to Nimmer on Copyright, a common law work, to define conversion.127 Mabile argues that the
Fifth Circuit has disapproved of holdings grounded in dictionary definitions rather than Louisiana
law,128 and the Louisiana Supreme Court rejects the common law version of conversion.129
Mabile argues instead that conversion under Louisiana law can apply to incorporeal
movables.130 In Joe Hand Productions, for example, Mabile asserts that another district judge in
the Eastern District of Louisiana “relied heavily on the Louisiana Civil Code” and held that a
conversion claim could be stated for the interception of incorporeal movables such as satellite
signals. 131 Likewise, Mabile argues that in Endotech, another district judge in the Eastern District

124

Id. at 9–10 (citing Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So. 2d 853, 857 (La. 1998)).

125
Id. (citing BASF Agrochemical Products v. Unkel, No. 11-00556, 2014 WL 6674034, at *6 (M.D. La.
Nov. 24, 2014); Dorsey v. Money Mack Music, Inc., 304 F. Supp. 2d 858, 866 (E.D. La. 2003) (quoting 1 Melville B.
Nimmer & David Nimmer, NIMMER ON COPYRIGHT§ 1.01(B)(1), at 1-41 (2000))).
126

Id. (citing BASF Agrochemical Products v. Unkel, No. 11-00556, 2014 WL 6674034, at *6 (M.D. La.
Nov. 24, 2014)).
127

Id. (citing Dorsey v. Money Mack Music, Inc., 304 F. Supp. 2d 858, 866 (E.D. La. 2003) (quoting 1
Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT§ 1.01(B)(1), at 1-41 (2000))).
Id. at 13 (citing Lamar Adver. Co. v. Cont’l Cas. Co., 396 F.3d 654, 663 (5th Cir. 2005) (declining to
follow a Louisiana state court opinion that based its holding on a Webster’s Dictionary definition and “considered
neither the Louisiana Supreme Court[] . . . nor any provision of the Louisiana Civil Code in reaching [its]
conclusion”)).
128

129

Id. at 9–10 (citing Dual Drilling, 721 So. 2d at 856).

130

Id. at 10.

131

Rec. Doc. 31 at 10 (citing Joe Hand Productions, Inc. v. Ashby, No. 13-4747, 2014 WL 1330027, at *4

20

of Louisiana rejected the defendant’s claim that the case must be dismissed because “one cannot
convert intangible property,” and instead determined that the unauthorized use and distribution of
documents explaining the plaintiff’s suggested business plan for the defendant constituted
conversion.132 Mabile argues that Endotech is particularly persuasive here because, in that case,
the defendant converted plaintiff’s property by using the information contained within a physical
document, i.e. the business plan.133 Similarly, here, Mabile alleges that BP converted his property
by using information contained within a physical document, i.e. his schematic.134 Mabile
represents that BP acquired possession of his schematic when he submitted it to BP’s website and
to BP’s alleged agent in the United States Coast Guard, Kurt Hansen. 135 Thus, Mabile contends
that, because conversion applies to both corporeal and incorporeal movables under Louisiana law,
BP’s unauthorized use and possession of Mabile’s schematic constitutes conversion.136
b.

Unfair Trade Practices

Mable next argues that he has plausibly stated a claim under LUTPA as well.137 According
to Mabile, LUTPA declares that all “[u]nfair or deceptive acts or practices in the conduct of any
trade or commerce” are unlawful, a purposefully broad prohibition.138 Mabile represents that in

(E.D. La. Apr. 2, 2014) (Vance, J.) (holding that intercepting a satellite signal without authorization constituted
conversion under Louisiana law), vacated on other grounds, 2014 WL 1652511 (E.D. La. Apr. 24, 2014)).
132

Id. at 11 (citing Endotech USA v. Biocompatibles International PLC, No. CIV.A. 00-0957, 2000 WL
1594086 (E.D. La. Oct. 24, 2000) (Duval, J.)).
133

Id. at 11–12.

134

Id. at 12.

135

Id. at 10.

136

Id.

137

Rec. Doc. 31 at 6.

138

Id. (citing La. Rev. Stat. § 51:1405(A)).

21

Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., the Louisiana Supreme Court held that
recovery under LUTPA is available to anyone who has suffered due to an unfair or deceptive
method, act, or practice.139 Mabile asserts than an “unfair” act is one that offends public policy,
and is “immoral, unethical, oppressive, unscrupulous, or substantially injurious.”140 Likewise, an
act is “deceptive” under LUTPA “when it amounts to fraud, deceit, misrepresentation, or other
unethical conduct.”141 Here, Mabile asserts BP committed a “series of unjust acts” by setting up a
website to solicit ideas and soliciting Mabile’s ideas in person in order to acquire and use his
schematic and design while failing to compensate or acknowledge him.142 Mabile asserts this
conduct is “the type of deceptive and unfair acts condemned by LUTPA.”143
Furthermore, Mabile argues that his LUTPA claim does not need to meet the heightened
pleading requirements of Rule 9(b).144 He asserts that LUTPA claims are different than fraud
claims that must be pleaded with particularity.145 Mabile argues that LUTPA includes all types of
unfair and unethical conduct, not just fraud, and that the Fifth Circuit has stated that “LUTPA does
not require an intent to obtain an advantage or to cause a loss,” 146 which Mabile argues is an
essential element of fraud.147 Instead, the Fifth Circuit stated that LUPTA “merely requires a

139

Id. (citing Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 35 So. 3d 1053, 1057–58 (La. 2010)).

140

Id.

141

Id.

142

Id. at 7.

143

Id.

144

Id.

145

Id.

146

Id. (quoting Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 922 (5th

Cir. 2002)).
For this proposition, Plaintiff cites La. Civ. Code art. 1953: “Fraud is a misrepresentation or suppression
of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or
147

22

showing of some element of fraud, misrepresentation, deception, or other unethical conduct.”148
Mabile argues that the two LUTPA cases cited by BP both involved allegations of fraudulent
misrepresentation, which Mabile has not alleged here.149 Mabile also points to this Court’s holding
in Andretti and another court’s holding in Brand Coupon Network, neither of which applied Rule
9(b) to LUTPA claims not based on fraud.150 Here, Mabile states that he does not assert that BP
committed fraud or made a fraudulent representation, but rather that BP’s actions were deceptive,
unethical, immoral, and offended the public policy of Louisiana.151 Therefore, he has pleaded a
cognizable claim under § 51:1409(A) of LUTPA.152 In a footnote, Mabile also states that, even if
Rule 9(b) does apply, his amended complaint meets the pleading requirements.153
c.

Unjust Enrichment

Finally, Mabile responds that, “[i]n the event this Court finds that [he] has no other remedy
at law,” then he has also plausibly alleged an “alternatively-pleaded” claim for unjust
enrichment.154 Mabile cites three Eastern District of Louisiana cases where the courts allowed the

inconvenience to the other.” Id.
148

Id. (quoting Andretti Sports Mktg. La., LLC v. Nola Motorsports Host Comm., Inc., CIV. ACTION NO.
15-2167, 2015 WL 7459697, at *18 (E.D. La. Nov. 24, 2015) (quoting La. Bayou Furs, 298 F.3d at 922) (emphasis
added)).
149

Id. at 8.

150

Id. See Andretti, 2015 WL 7459697, at *17–*23, *28 (applying Rule 9(b) standard to fraud claim, but not
applying the standard to the plaintiff’s LUTPA claim); Brand Coupon Network, 2014 WL 6674034, at *5–*9 (applying
Rule 9(b) standard to LUTPA claim based on conspiracy to defraud, but not applying the same standard to LUTPA
claim based on the passing off of products).
151

Rec. Doc. 31 at 8.

152

Id.

153

Id. at 8 n.43.

154

Id. at 13, 15. A plaintiff must plead the following elements to state a cause of action for unjust enrichment:
“(1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the
enrichment and the resulting impoverishment; (4) there must be an absence of ‘justification’ or ‘cause’ for the
enrichment and impoverishment; and (5) there must be no other remedy at law available to plaintiff.” Carriere v. Bank

23

plaintiff to bring a claim for unjust enrichment in the alternative.155 For example, in Orx Resources,
Inc. v. Autra, Mabile states that the district judge held that “the federal rules permit a claim for
unjust enrichment to be pled in the alternative.”156 Therefore, because Mabile argues that he has
plausibly alleged the first four elements of unjust enrichment,157 Mabile requests that his claim not
be dismissed unless the Court or the jury finds that another remedy is expressly available to him.158
Mabile further argues that, contrary to BP’s assertion, he has never been able to assert a claim
under UTSA that would preclude his unjust enrichment action, because he has never had a trade
secret such that a remedy under UTSA would have been available.159
4.

Federal Preemption of Mabile’s State Law Claims

Finally, Mabile asserts that none of his claims are preempted by federal patent law. Mabile
argues that the Supremacy Clause of the United States Constitution only renders state law without
effect if it conflicts with federal law.160 Mabile contends that conflict preemption occurs when
state law “stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.”161 He avers that the Court must analyze the relationship between the state

of Louisiana, 702 So.2d 648 (La. Dec. 13, 1996). See Orx Res., Inc., 2009 WL 3447256 at *2..
155

Rec. Doc. 31 at 15 (citing Orx Resources, Inc. v. Autra, No. 09-445, 2009 WL 3447256, at *2 (E.D. La.
Oct. 20, 2009) (Africk, J.); Mayer v. Lamarque Ford, Inc., No. CIV.A. 00-1325, 2001 WL 175232, at *2 (E.D. La.
Feb. 16, 2001)(Clement, J.); Endotech USA v. Biocompatibles International PLC, No. CIV.A. 00-0957, 2000 WL
1594086, at *14 (E.D. La. Oct. 24, 2000) (Duval, J.)).
156

2009 WL 3447256, at *2.

Rec. Doc. 31 at 14. In particular, Mabile states that BP was enriched when it used Mabile’s schematic to
stop the oil spill, that BP’s failure to compensate Mabile for his idea resulted in his impoverishment, that the
enrichment and impoverishment were connected, and that this uncompensated use was not allowed for by law or
judicial act. Id.
157

158

Id. at 15–16.

159

Id. at 16.

160

Id. at 20.

161

Id. (citing Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979)).

24

law claim and patent law, including the conduct that forms the basis of the claim and the remedy
sought.162 Mabile asserts that whether a state law is preempted is “an ad hoc inquiry that depends
heavily on the circumstances of the case.”163
Mabile asserts that the cases cited by BP do not support their contention that conversion of
intangible property claims are preempted.164 Mabile contends that his conversion claim is not
preempted by federal patent law because requiring BP to compensate him provides an incentive to
invent, encourages investors to disclose their information to the public, and such a reward does not
hinder BP or the public’s use of the Mabile Cap.165
Mabile asserts that his LUTPA claim is also not preempted because courts have generally
found that patent law will not preempt state law claims if they include additional elements not
found in a patent law cause of action.166 Furthermore, Mabile argues that his LUTPA claim is
based on more than just BP’s use of his design, and also includes the means that BP used to acquire
the schematic and the failure to compensate him for it.167 Because his claim is for conduct above
and beyond the use of his schematic and design, Mabile asserts that his damages award need not
be limited to an incremental benefit.168 He contends that the LUTPA claim does not obstruct the

162

Id. at 20–21 (citing Lyden v. Nike, Inc., No. 13-662, 2014 WL 2563401, at *2 (D. Or. June 6, 2014);
Powell v. Home Depot U.S.A., 2010 WL 375796, at *3 (S.D. Fla. Jan. 26, 2010)).
163

Id. at 21.

164

Id.

165

Id.

166

Id. at 22 (citing Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1306 (Fed. Cir. 1999)).

167

Id.

168

Id. at 23. Mabile also cites Rodime PLC v. Seagate Technology, Inc., where the Federal Circuit stated that
patent laws do not preempt state law claims if the state law claim includes additional elements not found in the federal
law cause of action, and if they are not an impermissible attempt to offer patent-like protection to subject matter
addressed by federal law. Rec. Doc. 42 at 2 (citing 174 F.3d 1294, 1306 (Fed. Cir. 1999)).

25

objectives of patent law and will not affect the information available to the public, but rather it will
deter those in the future from using the unlawful means employed by BP. 169 Mabile also cites a
Western District of Louisiana case, Total Rebuild, Inc. v. Streamline Hose and Fittings, Inc.,
where, he asserts, the court rejected the defendant’s argument that the plaintiff’s LUTPA claim
was preempted, stating that “Louisiana courts have denied attempts to apply federal patent law
preemption to LUTPA claims.”170
With regards to his unjust enrichment claim, Mabile contends that he does not seek patentlike remedies and patent laws do not preempt a plaintiff’s right to recover under theories sounding
in contract or tort for misappropriation of property protected under state law.171 In support, Mabile
cites a Third Circuit case, Wawrynski v. H.J. Heinz Co., where he asserts that the court reversed
the district court’s dismissal of the plaintiff’s unjust enrichment claim on preemption grounds
because the plaintiff was not seeking to recover for patent infringement, but rather requested
damages for defendant’s failure to pay him for their use of his concepts and ideas.172 Mabile also
points to University of Colorado Foundation, Inc. v. American Cyanamid Co., where the Federal
Circuit found that, if the state law does not offer patent-like protection to intellectual creations
which would otherwise remain unprotected as a matter of federal law, the application of an unjust
enrichment claim does not impermissibly interfere with the federal patent scheme.173

169

Rec. Doc. 31 at 23.

170

Id. (citing No. 6:15-01172, 2015 WL 9217451 (W.D. La. Sept. 25, 2015)).

171

Id. at 23–24.

172

Id. at 24 (citing 574 F. App’x 99, 102 (3d Cir. 2014)).

173

Id. at 4 (citing 342 F.3d 1298, 1306 (Fed. Cir. 2003)).

26

C.

BP’s Reply to Mabile’s Opposition
Federal Preemption of Mabile’s State Law Claims

1.

First, BP argues that the Supreme Court has made clear that “[a] state law that substantially
interferes with the enjoyment of an unpatented utilitarian or design conception which has been
freely disclosed by its author to the public” is preempted.174 Here, BP claims that all three of
Mabile’s claims are “premised upon BP’s alleged use or ‘enjoyment of’ his idea,” and that Mabile
“does not dispute that his idea was freely disclosed to the public and not confidential.” 175 Thus, it
is precisely the type of conduct that is exclusively governed by patent law.176 BP asserts that even
if it had used Mabile’s idea, it would have been permissible because “the federal patent laws do
create a federal right to ‘copy and to use’ . . . potentially patentable ideas which are fully exposed
to the public.”177Moreover, BP asserts that patent law has “stringent requirements and procedures
that an inventor must satisfy in order to secure a property right in his or her invention.” 178 BP
argues that if the Court finds that Mabile may assert a conversion claim here, it would mean that
“a would-be inventor need not satisfy any of the rigorous standards of patentability to secure a
perpetual patent-like royalty under state law based on the use of an unpatented idea.”179
In response to Mabile’s argument that his LUTPA claim is not preempted because it is
based upon conduct beyond just the use of his schematic and design, BP asserts that Mabile’s

174

Rec. Doc. 38 at 3 (citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 156–57 (1989)).

175

Id.

176
Id. at 4 (citing BASF Agrochemical Products v. Unkel, No. 05-1478, 2006 WL 3533133, at *6–7 (W.D.
La. Dec. 7, 2006)).
177

Id. (citing Bonito Boats, 489 U.S. at 165 (emphasis in original)).

178

Id.

179

Id. (citing Ultra-Precision, 411 F.3d at 1381).

27

amended complaint does not identify any such conduct, nor does his brief identify any such
conduct.180 Instead, BP asserts that Mabile’s LUTPA claim is merely a vehicle to seek
compensation for an alleged unauthorized use of his publicly disclosed, unpatented Mabile Cap
design, i.e. to receive patent-like protection.181
Finally, BP contends that Mabile is also using his unjust enrichment claim to seek “patentlike royalty” for using a product in the public domain, which was held to be preempted in UltraPrecision.182 BP contends that in Wawrynski v. H.J. Heinz Co., a case cited by Mabile, the plaintiff
had a patent on a food container and asserted a claim for unjust enrichment based upon “packaging
and marketing ideas” that were beyond the patented invention itself, which were not preempted.183
Here, BP asserts that Mabile’s unjust enrichment claim is based only on the alleged use of an
unpatented, publicly disclosed invention.184
2.

Conversion

BP represents that Mabile’s conversion claim is only premised on BP’s “alleged use of his
‘intellectual property’ contained in the schematic for his purported invention,” and argues that
Mabile “does not allege that BP interfered with, or even received, any of his physical property.”185
Moreover, BP asserts that it is “undisputed” that Mabile’s conversion claim rests on BP’s alleged

180

Id. at 4–5.

181
Id. at 5. Moreover, BP argues that Mabile’s reliance on Rodime PLC v. Seagate Technology, Inc. is
misplaced because the holding makes clear that the inclusion of additional elements in a state law claim that is not
found in a patent law cause of action does not prevent preemption if it seeks patent-like protection to subject matter
addressed by federal patent law. Id. (quoting Rodime PLC v. Seagate Technology, Inc., 174 F.3d 1294, 1306 (Fed.
Cir. 1999)).
182

Id. (citing Ultra-Precision, 411 F.3d at 1382).

183

Id. at 6 (citing 574 F. App’x 99 (3d Cir. 2014)).

184

Id.

185

Id.

28

use of the “information” contained in Mabile’s schematic, and that Mabile failed to identify any
legal support for his contention that conversion can apply to incorporeal property.186 Rather, the
cases cited by Mabile, Joe Hand and Endotech, both involved physical objects (a satellite signal)
and documents (physical business plans), and not intellectual property.187
3.

Unfair Trade Practices

Next, BP again argues that Mabile’s claim under LUTPA must satisfy Rule 9(b)’s
heightened pleading requirement because his claim is premised upon allegedly fraudulent
behavior.188 BP supports this argument by asserting that Mabile’s LUTPA allegations match the
three elements required to state a cause of action for fraud in Louisiana: “(1) a misrepresentation
of material fact, (2) made with intent to deceive, (3) causing justifiable reliance with resultant
injury.”189 For example, BP argues that Mabile’s amended complaint explicitly asserts there were
misrepresentations; implicitly alleges the misrepresentations were made with the intent to deceive
by stating that “[a]s shown by BP’s refusal to properly compensate Mr. Mabile for his design, BP’s
Website was used by BP to extract the information and knowledge it desperately needed while
avoiding an obligation to pay just compensation”; and directly alleges justifiable reliance by
asserting that “individuals who submitted ideas to BP’s Website justifiably believed they would
receive compensation.”190

186

Id. at 7.

187

Id. (citing Joe Hand Promotions, Inc. v. Ashby, No. 13-4747, 2014 WL 1330027, at *4 (E.D. La. Apr. 2,
2014); Endotech USA v. Biocompatibles Int’l PLC, No. 00-0957, 2000 WL 1594086, at *10 (E.D. La. Oct. 24, 2000)).
188

Id. at 8.

189

Id. (quoting Chapital v. Harry Kelleher & Co., 144 So. 3d 75, 86 (La. Ct. App. 2014)).

190

Id. at 8–9 (citing Rec. Doc. 28 at 8–9.

29

4.

Unjust Enrichment

BP further argues that Mabile does not dispute that his unjust enrichment claim is based on
the same theory as his unfair trade practices claim under LUTPA.191 Moreover, BP responds that
Mabile’s argument that he never had an UTSA claim does not mean there is a “gap in the law”
here; UTSA provides a remedy for alleged misappropriation of non-confidential ideas like Mabile
asserts, further precluding an unjust enrichment claim.192
5.

Essential Elements

Finally, BP argues that its proposed required elements for use of idea claims were used to
evaluate similar well-capping claims in McIntyre, and that Mabile’s claims clearly fail under each
of the three requirements.193
D.

Mabile’s Post-Hearing Supplemental Memorandum
Following oral argument in this matter, Mabile filed a “Post-Hearing Submission in

Opposition to Motion to Dismiss.”194 In this supplemental memorandum, Mabile further asserts
that his LUTPA claim is not preempted by federal patent law.195 In support, Mabile cites a Western
District of Louisiana case, Total Rebuild, Inc. v. Streamline Hose and Fittings, Inc., where, he
argues, the court rejected the defendant’s argument that the plaintiff’s LUTPA claim was
preempted by federal patent law, stating that “Louisiana courts have denied attempts to apply
federal patent law preemption to LUTPA claims.”196 Mabile contends that in Total Rebuild, the

191

Id. at 10.

192

Id.

193

Id. at 11.

194

Rec. Doc. 42.

195

Id. at 1.

196

Id. (citing No. 6:15-01172, 2015 WL 9217451 (W.D. La. Sept. 25, 2015)).

30

court cited two Louisiana cases, which were referred to as NovelAire I197 and NovelAireII,198
where, Mabile asserts, the Louisiana courts found that the United States Supreme Court had
suggested that states should continue to regulate unsavory business practices even if they
incidentally involve intellectual property and information that may be subject to federal patent
law.199
Likewise, in Hall v. Bed Bath and Beyond, Inc., Mabile contends that the Federal Circuit
made clear that “principles of patent law preemption do not override potential causes of action
based on unfair commercial practices.”200 In addition, Mabile cites another Federal Circuit case,
Rodime PLC v. Seagate Technology, Inc., where the court stated that patent laws do not preempt
state law claims if the state law claim includes “additional elements not found in the federal patent
law cause of action and if they are not an impermissible attempt to offer patent-like protection to
subject matter addressed by federal law.”201
Mabile also argues that his unjust enrichment claim is not preempted by federal patent law.
In support, he cites University of Colorado Foundation, Inc. v. American Cyanamid Co., where
the Federal Circuit found that a claim based on the “alleged wrongful use of the [plaintiffs’]
research results” was not an attempt to enforce patent-like intellectual property rights.202 Mabile
points out that the court further noted that unjust enrichment there would not interfere with the
federal patent scheme, but rather benefit society by requiring restitution in the face of unjust

197

NovelAire Techs., L.L.C. v. Harrison, 08-157 (La. App. 5 Cir. Aug. 19, 2008); 994 So. 2d 57.

198

NovelAire Techs., L.L.C. v. Harrison, 2009-1372 (La. App. 4 Cir. Oct. 13, 2010); 50 So. 3d 913.

199

Rec. Doc. 42 at 1–2 (citing 2015 WL 9217451, at *6).

200

Id. at 2 (citing 704 F.3d 1357 (Fed. Cir. 2013)).

201

Id. at 3 (citing 174 F.3d 1294, 1306 (Fed. Cir. 1999)).

202

Id. at 4 (citing 342 F.3d 1298, 1306 (Fed. Cir. 2003)).

31

enrichment.203
In response to comments made by BP at this Court’s February 17, 2016 oral argument,
Mabile also notes that there is no allegation in his amended complaint that he held a publicly
televised demonstration of the Mabile Cap prototype or demonstrated the Mabile Cap in the
presence of the mayor of Grand Isle, Louisiana, and therefore his claims are not foreclosed by a
demonstration to third parties.204 Moreover, Mabile asserts that, more importantly, his schematic
for the invention was not in the public domain.205
E.

BP’s Reply to Mabile’s Post-Hearing Memorandum
In response to Mabile’s post-hearing memorandum,206 BP contends that even if Mabile’s

state law claims require additional elements, they all still seek a “patent-like remedy” by focusing
on BP’s unauthorized use of a purported invention. 207 BP contends that in University of Colorado
Foundation, the Federal Circuit found that the unjust enrichment claim “was not preempted by
federal patent law because it sought restitution for unfair use of confidential information, not any
patent-like protection over an unpatentable or publicly-available technology.”208 BP argues that
Univ. of Colorado Found., Inc. v. Am. Cyanamid Co, a Federal Circuit case cited by Mabile, is
distinguishable because it involved the taking and improper distribution of a confidential
manuscript, and not an unauthorized use of a publicly disclosed invention that would have been

203

Id.

204

Id. at 5.

205

Id. Mabile contends that fact that a demonstration was performed does not make the idea non-confidential
because the invention could not have been duplicated by others who merely viewed the demonstration. Id. at 5–6
(citing Tubular Threading, Inc. v. Scandaliato, 443 So. 2d 712 (La. App. 5 Cir. 1983) (holding that a viewing of an
invention did not render it non-confidential when the system could not be replicated without the drawings)).
206

Rec. Doc. 46 at 2.

207

Id.

208

Id. (quoting Tavory v. NTP, Inc., 297 F. App’x 976, 983 (Fed. Cir. 2008)).

32

preempted.209
In response to Mabile’s argument that his LUTPA claim is not preempted, BP asserts that
Mabile only cites cases where the allegations involved unfair and deceptive conduct entirely
separate and apart from any allegation of the unauthorized use of a public invention.210 However,
BP asserts that none of the cases cited by Mabile are persuasive because none involved an unfair
competition claim premised upon the unauthorized use of a publicly disclosed invention.211 For
example, BP contends that in Total Rebuild, which BP notes is not binding precedent, the LUTPA
claim was based on the defendant making its product “aesthetically identical” to the plaintiff’s
product in order to cause confusion among customers.212 Likewise, BP represents that NovelAire
involved “less than savory business practices” where the defendant “secretly used the plaintiff’s
materials, resources, and equipment to develop improvements” and engaged in conduct that
violated confidentiality obligations.213
In addition, BP asserts that Mabile cannot dispute the public disclosure of his invention
because he alleged in his amended complaint that he disclosed it both to BP employees without
any allegation of confidentiality, as well as to a member of the United States Coast Guard.214
Furthermore, BP contends that in his original complaint, Mabile alleged that he publicly disclosed
his invention to the mayor of Grand Isle, and in his opposition to the instant motion, stated that he

Id. (citing 342 F.3d 1298 (Fed. Cir. 2003)). See Tavory v. NTP, Inc., 297 F. App’x 976, 983–84 (Fed. Cir.
2008) (stating that if University of Colorado Foundation involved a dispute regarding whether the defendant had made
unauthorized use of a publicly disclosed invention, it would be governed exclusively by federal patent law).
209

210

Id. at 4.

211

Id. at 3.

212

Id. at 3–4 (citing No. 6:15-cv-1172, 2015 WL 9217451, at *1 (W.D. La. Sept. 25, 2015)).

213

Id. (citing Novelaire Techs., L.L.C. v. Harrison, 994 So.2d 57, 59 (5th Cir. 2008)).

214

Id.

33

made a public demonstration that was televised on the local news.215 BP contends that these
admissions are binding and may be considered by the Court at the motion to dismiss stage. 216
III. Law and Analysis
A.

Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”217 To survive a motion to dismiss under
Rule 12(b)(6), a “complaint must contain factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”218 A claim “has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”219 A complaint need not contain “detailed factual allegations,” but rather “must provide
the plaintiff’s grounds for entitlement to relief—including factual allegations that when assumed
to be true ‘raise a right to relief above the speculative level.’”220 In resolving a motion to dismiss,
this Court “draw[s] all reasonable inferences in the Plaintiff[s’] favor.”221 Motions to dismiss under
Rule 12(b)(6) are “viewed with disfavor and [are] . . . rarely granted.”222
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,

215

Id.

216
Id. (citing City Nat’l Bank v. United States, 907 F.2d 536, 544 (5th Cir. 1990) (“We can appropriately
treat statements in briefs as binding judicial admissions.”)).
217

Fed. R. Civ. P. 12(b)(6).

218

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

219

Id. (citing Twombly, 550 U.S. at 556).

(2007)).

220

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citations omitted).

221

Id.

222

Id.

34

and all facts pleaded are taken as true.223 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.224 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”225
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.226 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.227 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”228 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims.229 If factual allegations are insufficient 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.230
Where a party alleges fraud or mistake, Federal Rule of Civil Procedure 9(b) requires that
those allegations “state with particularity the circumstances constituting fraud or mistake.”231

223

Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
224

Iqbal, 556 U.S. at 677–78.

225

Id. at 679.

226

Id. at 678.

227

Id.

228

Id.

229

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007).
230

231

U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009).

35

“What constitutes ‘particularity’ will necessarily differ with the facts of each case . . . .” 232 “At a
minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false
representations, as well as the identity of the person making the misrepresentation and what he
obtained thereby.”233 This Court applies Rule 9(b) to fraud claims “with ‘bite’ and ‘without
apology.’”234 Such claims must contain “simple, concise, and direct” allegations of the
“circumstances constituting fraud,” which “must make relief plausible, not merely conceivable,
when taken as true.”235
B.

Whether the Court May Consider Evidence Outside the Pleadings
1.

MDL Phase II Findings

BP requests that this Court take judicial notice of the MDL 2179 Court’s Findings of Fact
and Conclusions of Law from the MDL Phase II trial to consider when determining if Mabile has
failed to state his claims under BP’s Rule 12(b)(6) motion to dismiss.236 Importantly, BP requests
that this Court take judicial notice of the contents of the findings, rather than the fact that findings
were issued.237 BP argues that because both parties designated the MDL Phase II Findings to be
part of the record in this matter when it was severed from MDL 2179, and because Mabile
“endorsed the use of MDL 2179 record documents by attaching two MDL trial demonstrative

232

Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir. 1992).

233

Tel–Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir.1992) (internal quotation marks
and citation omitted).
234

U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d at 185.

235

Id. at 186.

236

Rec. Doc. 30-1 at 15.

237

Id. at 15.

36

exhibits to his Amended Complaint,”238 the Court should consider it here.239 In opposition, Mabile
contends that it would be inappropriate to consider the MDL Phase II Findings at this stage, both
as a procedural matter—reference to other parts of the record should only be made on a motion for
summary judgment240—and a factual matter—the Court does not yet have enough information to
analyze whether Mabile’s idea was used in the 3-ram Capping Stack.241
It is well established that, in deciding whether to grant a motion to dismiss pursuant to Rule
12(b)(6), a district court may not “go outside the complaint.”242 If documents outside the pleadings
are presented and considered by the court, the motion must be treated as one for summary judgment
under Rule 56.243 By contrast, a district court may decline to consider the submission of extraneous
materials and refer solely to the pleadings, thereby preserving the motion as a motion to dismiss
under Rule 12(b)(6).244 The Fifth Circuit recognizes one exception to that rule: a district court may
consider documents attached to the motion to dismiss if they are referred to in the complaint and
are central to the claim.245
Under Rule 201 of the Federal Rules of Evidence, a court may also judicially notice certain

238

Id. at 16 & n.2.

239

See Rec. Doc. 13 (memorandum designating document from MDL record).

240

Rec. Doc. 31 at 17.

241

Id.

Rodriguez v. Rutter, 310 F. App’x 623, 626 (5th Cir. 2009); Carter v. Target Corp., 541 F. App’x. 413,
416–17 (5th Cir. 2013).
242

243

Fed. R. Civ. P. 12(d); see U.S. ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 275 (5th Cir. 2015);
Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979).
244

See U.S. ex rel. Long., 798 F.3d at 275 (holding that a district court does not need to convert a motion to
dismiss to a motion for summary judgment if it does not rely on a party’s submission of extraneous materials).
245

See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

37

adjudicative facts, sua sponte or by request of a party, when considering a motion to dismiss.246 In
particular, the Court may take judicial notice of any adjudicative fact that is “not subject to
reasonable dispute” in that it is either “(1) generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.”247 A district court may only take judicial notice of adjudicative facts
under Rule 201, but not legal determinations of another court.248 When a party requests that the
Court take judicial notice and supplies the court with the necessary information, the Court must
take judicial notice.249 The decision to take or refuse to take judicial notice is reviewed for an abuse
of discretion.250
In the Fifth Circuit, courts may ordinarily take judicial notice of public or judicial records
for such indisputable facts as proving a transcript exists in the docket, a judgment was filed, or a
previous litigation was commenced.251 However, it is rarely permissible for a court to take notice
of the factual findings of another court for the truth asserted therein; to do so, the factual findings
must satisfy Rule 201’s indisputability requirement, i.e. be beyond “reasonable dispute.”252 The

246

Fed. R. Evid. 201(c).

247

Fed. R. Evid. 201(b).

248

Taylor v. Charter Med. Corp., 162 F.3d 827, 830–31 (5th Cir. 1998) (stating that a court cannot take
judicial notice of another district court’s legal determination that a private party is a state actor).
249

Fed. R. Evid. 201(c)(2).

250

See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011); Taylor, 162 F.3d at 829.

251

See Ferguson v. Extraco Mortg. Co., 264 Fed. Appx. 351, 352 (5th Cir. 2007) (per curiam) (citing Taylor,
162 F.3d at 830); Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick, 15 F.3d 1338,
1343 n.6 (5th Cir.1994)); Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277 n. 33 (5th Cir. 1978) (“[W]e find no
error in the district court's judicial notice of materials in the court's own files from prior proceedings.”); see also Brown
v. Lippard, 350 Fed. Appx. 879, 883 n. 2 (5th Cir.2009) (per curiam) (citing cases that authorized judicial notice of
the record in related cases to support taking judicial notice of the existence of a transcript through a docket entry).
Taylor, 162 F.3d at 830 (“It is not necessary at this point for us to determine whether courts in this circuit
are never permitted to take notice of the factual findings of another court or are permitted to do so on rare occasion,
subject to the Rule 201's indisputability requirement . . . .” (emphasis added)).
252

38

fact in question must be “the type of self-evident truth that no reasonable person could question, a
truism that approaches platitude or banality.”253 While it is “conceivable that a finding of fact may
satisfy” Rule 201(b), factual findings are generally disputable and were disputed at trial, and thus
may not be the subject of judicial notice.254
Here, the MDL Phase II Findings were issued on January 15, 2015, after a twelve day
trial.255 The MDL Phase II Findings consist of forty-four pages of findings split into two segments:
the “Source Control” segment, which concerned “the conduct or omissions relative to stopping the
discharge of hydrocarbons,” and the “Quantification” segment, which determined the “amount of
oil actually released into the Gulf of Mexico.”256 The source control segment is further split into a
“Stipulated Facts” section and a “Findings on Disputed Issues” section.257 The first section was
stipulated to by all the parties to the source control segment, which the MDL Phase II Findings
state includes “private plaintiffs and claimants-in-limitation (represented by the Plaintiffs’ Steering
Committee or ‘PSC’).”258 The MDL Phase II Findings do not explicitly state whether Mabile was
a party to the source control segment or if the stipulated facts were ever in dispute.259
As stated supra, in the Fifth Circuit, a court may rarely take judicial notice of the judicial
findings of another court when considering a motion to dismiss.260 Doing so would only be

253

Id.

254

Id (quoting General Electric Capital Corporation v. Lease Resolution Corporation, 128 F.3d 1074 (7th
Cir.1997)). See also Wright & Miller, 21B Fed. Prac. & Proc. Evid. § 5106.4 (2d ed.).
255

See Rec. Doc. 17-1 at 3.

256

Id.

257

Id. at 3, 7–36.

258

Id. at 5–6.

259

Id.

Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir. 1998) (“It is not necessary at this point for us
to determine whether courts in this circuit are never permitted to take notice of the factual findings of another court or
260

39

appropriate if the findings are beyond dispute, i.e. “one that only an unreasonable person would
insist on disputing.”261 Here, the MDL Phase II Findings include findings on disputed factual
issues as well as conclusions of law.262 However, as the Fifth Circuit has held, facts that were
disputed in a previous case cannot be the subject of judicial notice merely because a court has
issued final findings of fact in that case.263 Likewise, the Fifth Circuit has held that Rule 201 only
extends to adjudicative facts, and not to legal determinations.264 Taking judicial notice of the
content of another court’s findings, “merely because it had been found to be true in some other
action,” would risk rendering the doctrine of collateral estoppel “superfluous.”265 BP’s urged use
of the MDL Phase II Findings is expansive, and, in its motion to dismiss, BP relies on findings of
disputed issues of fact266 and trial exhibits not part of the MDL Phase II Findings267 to support its

are permitted to do so on rare occasion, subject to the Rule 201's indisputability requirement . . . We note, however,
that we have difficulty conceiving of an adjudicative fact found in a court record that is not subject of reasonable
dispute and, therefore, of which a court could take judicial notice.”).
261

Id. at 831 n.28 (quoting United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)).

See, e.g. Rec. Doc. 17-1 at 36 (“[I]t cannot be said that the decisions made and actions taken post-blowout
were unreasonable.”); Id. at 37 (“[S]imple negligence is not at issue here.”); Id. at 38 (“The Court finds that BP was
not grossly negligent, reckless, willful, or wanton in its source control planning.”)
262

See Ferguson v. Extraco Mortgage Co., 264 F. App’x 351, 352 (5th Cir. 2007) (holding that the court
could not have taken judicial notice of facts in two similar cases where the facts were subject to dispute, even though
the judge was the same in all three cases);
263

264

See Taylor, 162 F.3d at 831 (citing Charles Alan Wright & Kenneth W. Graham, Federal Practice &
Procedure: Evidence § 5103 at 472–73 (1977) (stating that courts cannot take judicial notice of legal determinations
under Rule 201)).
265

Id. at 830.

See, e.g., Rec. Doc. 30-1 at 19 (pointing to the finding on a dispute issue that the “scientific principles and
materials necessary for designing and creating capping stacks were available prior to the HORIZON/Macondo
blowout and known to BP . . . [and that the] technology to build a capping stack was available . . . prior to the
blowout.”).
266

267

For example, BP cites an October 2013 bench trial transcript, where Defendant Transocean crossexamined a BP employee, Mr. Trevor Smith, regarding the timeline of when the 3-ram Capping Stack was developed.
Rec. Doc. 30-1 at 19 (citing Rec. Doc. 17-19). Likewise, BP also cites a trial exhibit of an internal BP email chain that
includes May 30 photograph of its 3-ram Capping Stack. Id. (citing Rec. Doc. 17-29).

40

arguments. These findings, however, cannot be characterized as “self-evident truth[s]” that are
beyond dispute,268 and BP provides no case law to convince the Court otherwise.269 Moreover,
while one section of the MDL Phase II Findings includes stipulated facts, the Court notes that
merely because certain facts were stipulated to for a large and complex case such as MDL 2179
does not necessarily mean the facts were not disputed before or are not at issue in this particular
case.270 While the Court may properly consider such evidence if brought on a motion for summary
judgment, the Court declines to do so here in its consideration of BP’s motion to dismiss.
Therefore, the Court denies BP’s request for judicial notice and will continue its analysis without
consideration of or reliance on the MDL Phase II Findings.271
2.

BP’s “Figure 1”

Relatedly, Mabile also argues that, on a motion to dismiss, this Court should not consider
BP’s “Figure 1: Annotated Exhibit 1 of the Amended Complaint, Rec. Doc. 28-1” submitted in

268

Taylor, 162 F.3d at 830.

269
In support of its contentions, BP cites the Eastern District of Louisiana case G.C.P. Tel. Cards LLC v.
ADT Security Servs., Inc., No. 10-4305, 2011 WL 2118732, at *3 (E.D. La. May 24, 2011) (McNamara, J.). However,
in G.C.P. Tel. Cards LLC, the district court merely stated that judicial notice of items in the record, related cases, and
public records is possible on a motion to dismiss, but did not itself take judicial notice of such items. Id. Moreover,
the three cases cited in G.C.P. Tel. Cards LLC by the district judge in support of that holding are not analogous to
BP’s request here, as each involve a Rule 12(c) motion where the courts properly considered documents attached to
or referenced in the plaintiff’s complaint. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 313 (5th Cir. 2002) (affirming the consideration of documents on a Rule 12(c) motion that were referenced in the
plaintiff’s complaint, reply, and objections); Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 891
n.4 (5th Cir. 1998) (noting that considering documents attached to the pleadings did not transform a Rule 12(c) motion
into one for summary judgment); Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990)
(noting that a court may consider judicially noticed facts on a Rule 12(c) motion).
270
See, e.g., Gisclair v. Galliano Marine Serv., No. CIV A 05-5223, 2007 WL 1238902, at *2 (E.D. La. Apr.
25, 2007) (Vance, J.) (holding that the court would not take judicial notice of stipulated facts that were previously
disputed).

See U.S. ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 275 (5th Cir. 2015) (“If the district court
does not rely on materials in the record, such as affidavits, it need not convert a motion to dismiss into one for summary
judgment.”).
271

41

BP’s memorandum in support of its motion to dismiss.272 The Fifth Circuit has held that when
“non-pleading materials are filed with a motion to dismiss . . . a district court has complete
discretion” to accept or reject the exhibits offered with a Rule 12(b)(6) motion.273 By annotating
Mabile’s exhibit and adding new facts that were not referenced in Mabile’s amended complaint,
e.g., what object Mabile’s invention was allegedly intended to attach to, this Court finds that BP
has submitted evidence outside the pleadings. In U.S. ex rel. Long v. GSDMIdea City, L.L.C., the
Fifth Circuit approved of a district court’s decision declining to consider the evidence and
materials submitted in the defendant’s reply brief when ruling on a motion to dismiss.274 Here, this
Court expressly declines to consider such evidence outside the pleadings, including BP’s Figure 1
included in its opposition memorandum.
3.

Demonstrations of Mabile Cap

Finally, BP cites to alleged facts contained in Mabile’s original complaint that the mayor
of Grand Isle was also in attendance at one of Mabile’s demonstrations of the Mabile Cap, and the
statement in Mabile’s opposition to the motion to dismiss that his demonstration was televised on
the local news, neither of which is alleged in Mabile’s amended complaint.275 BP argues that such
admissions are binding and may be considered by the Court during a motion to dismiss.276 BP cites
a Fifth Circuit case, City National Bank v. United States, in support of its assertion that the facts
that Mabile alleged in his original complaint and in his opposition to the motion to dismiss are

272

Id (citing Rec. Doc. 30-1 at 11).

273

See Isquith for & on Behalf of Isquith v. Middle S. Utilities, Inc. , 847 F.2d 186, 196 (5th Cir. 1988).

274

Id.

275

Rec. Doc. 46 at 4 (citing Rec. Doc. 1-2 at 1–2; Rec. Doc. 31 at 16).

276

Id.

42

binding and may be considered by the Court at the motion to dismiss stage. 277 At issue in City
National Bank, however, was whether a party was bound by a misstatement made in an appellate
brief or if the party could correct the mistake at oral argument, not whether a party is bound on a
Rule 12(b)(6) motion to dismiss by facts that are not alleged in an amended complaint.278
Moreover, in direct contrast, BP urges the Court to ignore other facts Mabile asserts in his
memoranda that were not alleged in his amended complaint, arguing that Mabile “cannot now
supplement his complaint with self-serving assertions made for the first time now . . . .”279
The Fifth Circuit has held that an amended complaint “supersedes the original complaint
and renders it of no legal effect unless the amended complaint specifically refers to and adopts or
incorporates by reference the earlier pleading.”280 Here, no such reference or adoption of the
original complaint was made by Mabile. Moreover, in deciding whether to grant a motion to
dismiss pursuant to Rule 12(b)(6), a district court may not “go outside the complaint” to other
alleged facts.281 Thus, the Court will only consider those facts alleged in the amended complaint
to determine BP’s motion to dismiss.
C.

Whether Mabile is Required to Allege Use, Novelty, and Confidentiality
Next, BP argues that, because each of Mabile’s three claims are “use of idea” allegations,

they must satisfy three implicit elements: use, novelty, and confidentiality. In support of this
assertion, BP cites to a 1964 Fifth Circuit case interpreting Florida conversion and unjust

277

Rec. Doc. 46 at 4 (citing 907 F.2d 536, 544 (5th Cir. 1990)).

278

907 F.2d at 544.

279

Rec. Doc. 46 at 5.

280

King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (citing Boelens v. Redman Homes, Inc., 759 F.2d 504,
508 (5th Cir.1985)).
281
Rodriguez v. Rutter, 310 F. App’x 623, 626 (5th Cir. 2009); Carter v. Target Corp., 541 F. App’x. 413,
416–17 (5th Cir. 2013).

43

enrichment law;282 a 1969 Eastern District of Louisiana patent case that cites to that Fifth Circuit
case without tying it to Louisiana state law;283 and a District of Alaska case involving a similar
well-capping claim against BP but interpreting Alaska law.284 In response, Mabile argues that these
cases are “approximately a half-century old, and are not based in Louisiana law.”285
Under Louisiana’s civil law tradition, “courts must begin every legal analysis by examining
primary sources of law: the State’s Constitution, codes, and statutes.”286 The Louisiana Civil Code
states that “[t]he sources of law are legislation and custom,”287 and “[l]egislation is a solemn
expression of legislative will.”288 “[T]he primary basis of law for a civilian is legislation, and not
(as in the common law) a great body of tradition in the form of prior decisions of the courts.”289
Thus, to determine the necessary requirements to prove an alleged claim, courts must first look to
statutory law290 Stare decisis is a foreign concept to the Civil Law of Louisiana.291 Therefore, this
Court is guided by decisions rendered by Louisiana Courts of Appeal, “particularly when
numerous decisions are in accord on a given issue—the so-called jurisprudence constant—but

282

Official Airlines Schedule Info. Serv., Inc. v. E. Air Lines, Inc., 333 F.2d 672, 673–74 (5th Cir. 1964).

283

Thomson Mach. Co. v. LaRose, 306 F. Supp. 681, 695 (E.D. La. 1969).

284

McIntyre v. BP Expl. & Prod., Inc., No. 3:13-CV-149 RRB, 2015 WL 999092, at *1 (D. Alaska Mar. 5,

285

Rec. Doc. 31.

2015).

286

Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 547 (5th Cir.2004); see also Andretti Sports
Mktg. Louisiana, LLC v. Nola Motorsports Host Comm., Inc., 147 F. Supp. 3d 537, 552 (E.D. La. 2015) (Brown, J.).
287

La. Civ. Code art. 1 (2015).

288

La. Civ. Code art. 2.

289

See Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir.1992) (quoting Tate,
Techniques of Judicial Interpretation in Louisiana, 22 La. L. Rev. 727 (1962)).
290

Id. (footnote omitted).

291

Id.

44

[this Court is] not strictly bound by them.”292
Here, BP has cited no binding authority, nor has this Court uncovered any, mandating that
Mabile must prove three additional elements when a Louisiana state law claim for conversion,
unfair trade practices, or unjust enrichment are premised on a “use of idea” allegation. By contrast,
in the numerous persuasive Louisiana state court decisions that discuss what a plaintiff must allege
to state a claim for conversion,293 unjust enrichment,294 or unfair trade practices under LUTPA,295
BP has not cited any that list confidentiality, novelty, or use as separate elements.
To impose new elements from cases based on Florida or Alaska law “would require a
drastic departure from the civil law methodology followed by the Louisiana Supreme Court.”296
While these three issues may implicitly arise on a case-by-case basis as questions of fact—for
example, to what extent BP used Mabile’s design is a question that may arise in each of Mabile’s
claims—this Court will not depart from Louisiana’s civil law tradition and add new necessary
elements for established causes of action. Accordingly, the Court denies BP’s motion to dismiss
for failure to allege use, confidentiality, or novelty as “necessary requirements” for Mabile’s

292

Id.

293
See Dual Drilling Co. v. Mills Equip. Investments, Inc., 98-0343 (La. 12/1/98), 721 So. 2d 853, 857 (“A
conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2)
the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel
is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or
destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.”).
294

See McPhearson v. Shell Oil Co., 584 So. 2d 373, 376 (La. Ct. App. 1991) (stating that the elements of
unjust enrichment are “1) defendant was enriched; 2) he was impoverished; 3) there was a connection between the
enrichment and the impoverishment; 4) there was no justification or cause for the enrichment and impoverishment;
and 5) plaintiff had no remedy at law.” (citing Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967)).
295

See generally Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633 (La. 4/23/10), 35 So. 3d
1053, 1059 (describing the range of conduct prohibited by the Louisiana Unfair Trade Practices and Consumer
Protection Law).
296

Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 546 (5th Cir. 2004).

45

Louisiana state law claims.297
D.

Whether Mabile has Failed to Plausibly State Each Claim
1.

Conversion

BP raises two grounds for dismissal of Mabile’s conversion claim: (1) that a conversion
claim may only be stated for “chattel” or “goods,” and not intangible, intellectual property; and
(2) that Mabile voluntarily gave BP his schematic without ever requesting its return. 298 “The
common law tort of conversion—a distinct act of dominion wrongfully exerted over another’s
property in denial of or inconsistent with the owner's right therein—has been recognized by
Louisiana courts for over a century as an offense or quasi offense under [La. Civ. Code §] 2315.”299
To prevail on a claim of conversion, a plaintiff “must prove that (1) he owned or had the right to
possess; (2) the defendant’s use was inconsistent with the plaintiff’s right of ownership; and (3)
the defendant’s use constituted a wrongful taking.”300 The Louisiana Supreme Court has explained
that the tort of conversion:
… is committed when any of the following occurs: 1) possession is acquired in an
unauthorized manner; 2) the chattel is removed from one place to another with the
intent to exercise control over it; 3) possession of the chattel is transferred without
authority; 4) possession is withheld from the owner or possessor; 5) the chattel is
altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted
over the chattel.301

297

Rec. Doc. 30-1 at 14.

298

Rec. Doc. 30-1 at 21–23.

299
Chrysler Credit Corp. v. Perry Chrysler Plymouth, Inc., 783 F.2d 480, 483 (5th Cir. 1986) (citing Madden
v. Madden, 353 So.2d 1079, 1081 (La. App. 2d Cir. 1977)); see also Importsales, Inc. v. Lindeman, 92 So.2d 574 (La.
1957).
300
Gaunt v. Louisiana Citizens Prop. Ins. Corp., 512 F. Supp. 2d 493, 498 (E.D. La. 2007) (citing Bernofsky
v. Tulane University Medical School, 962 F.Supp. 895, 906 (E.D. La. 1997) (citing Chrysler Credit Corp. v. Whitney
Nat'l Bank, 51 F.3d 553 (5th Cir.1995))).
301

Dual Drilling Co., 721 So. 2d at 856 (citing Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law
§ 1-2, at 3 (1996 & Supp. 1998); Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (La. 1957); see also
Louisiana State Bar Assoc. v. Hinrichs, 486 So. 2d 116 (La. 1986)) (emphasis added).

46

BP argues that the above shows that a claim for conversion only applies to “goods” and “chattel,”
which, in Louisiana, is deemed “corporeal movable” property.302 Mabile counters that conversion
can be applied to any property rights, including incorporeal movables.303
First, the Court notes that conversion is frequently, but not exclusively, defined as a cause
of action involving property rights in tangible goods. For example, the Louisiana Supreme Court
stated that “the tort of conversion has been limited to those major interferences with a chattel,”304
while the Louisiana Fifth Circuit Court of Appeal described conversion as “[a]ny wrongful
exercise or assumption of authority over another’s goods.”305 The Fifth Circuit and another section
in the Eastern District of Louisiana have also defined conversion as “any wrongful exercise or
assumption of authority over another's goods, depriving him of the possession, permanently, or for
an indefinite time.”306 Additionally, a court in the Western District of Louisiana rejected a
conversion claim over patented intellectual property and held intangible rights can only be
converted if it is embodied in or merged into a document.307 However, conversion has not
exclusively been described in such limited terms; for example, as stated supra, the Louisiana
Supreme Court in Dual Drilling provided seven different circumstances when a conversion is

302

Rec. Doc. 30-1 at 21. See BASF Agrochemical Prod. v. Unkel, No. 05 CV 1478, 2006 WL 3533133, at *7
(W.D. La. Dec. 7, 2006) (“‘Chattel’ is defined as ‘[m]ovable or transferable property; personal property; esp., a
physical object capable of manual delivery and not the subject matter of real property.’ Black's Law Dictionary (8 th
ed. 2004). In Louisiana, such property is deemed ‘corporeal movable’ property. La. Civ. Code art. 471.”).
303

Rec. Doc. 31 at 9–10.

304

Louisiana State Bar Ass'n v. Hinrichs, 486 So. 2d 116, 120 (La. 1986) (emphasis added).

305

Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La. App. 5 Cir. Oct. 6, 2005), 912 So. 2d 715, 718
(citing F.G. Bruschweiler (Antiques) Ltd. v. GBA Great British Antiques, L.L.C., 03–792, at 7 (La. App. 5th Cir. Nov.
25, 2003), 860 So.2d 644, 649) (emphasis added)).
306

Chrysler Credit Corp. v. Perry Chrysler Plymouth, Inc., 783 F.2d 480, 483 (5th Cir. 1986); Gaunt v.
Louisiana Citizens Prop. Ins. Corp., 512 F. Supp. 2d 493, 498 (E.D. La. 2007).
307

BASF Agrochemical Prod. v. Unkel, No. 05 CV 1478, 2006 WL 3533133, at *7 (W.D. La. Dec. 7, 2006).

47

committed, two of which do not reference chattels or goods.308 Likewise, other courts interpreting
Louisiana law have frequently defined conversion in broader terms; for example, the Fifth Circuit
has stated conversion is “a cause of action for the wrongful act of repudiation of the owner’s right
to property,”309 while the Louisiana First Circuit Court of Appeal has stated it occurs when “one
wrongfully does any act of domination over the property of another.”310
Here, the Court finds it does not need to determine at this time whether a purely intangible
property right may be converted under Louisiana law if Mabile has plausibly alleged that BP did,
in fact, convert his physical property. BP argues that Mabile “has not plausible alleged that BP
even received any of his physical property.”311 Instead, BP asserts that Mabile is asserting a claim
based on an “incorporeal” object, defined in the Louisiana Civil Code as a thing that has “no body,
but [is] comprehended by the understanding, such as the rights of inheritance, servitudes,
obligations, and right of intellectual property.”312 However, in his amended complaint, Mabile
alleges that BP “used Mr. Mabile’s schematic to create the device that stopped the oil spill,” that
BP “intentionally and willfully exercise authority over Mr. Mabile’s intellectual property and the
Mabile Cap schematic” and that Mabile was damaged “as a result of BP’s unauthorized and
improper use of the schematic to reconstruct and use the Mabile Cap design.”313 The schematic—
a physical, tangible representation of the Mabile Cap—was attached to Mabile’s amended

308

Dual Drilling Co., 721 So. 2d at 856.

309

Chrysler Credit Corp, 783 F.2d at 483 (5th Cir. 1986).

310

Aymond v. State, Dept. of Revenue and Taxation, 951663 (La. App. 1st Cir. Apr. 4, 1996), 672 So. 2d 273.

311

Id. at 23.

312

See Rec. Doc. 41 at 2 (quoting Lamar Advertising Co. v. Continental Cas. Co., 396 F.3d 654, 661 (5th
Cir. 2005) (quoting La. Civ. Code art. 461)).
313

Rec. Doc. 28 at 7.

48

complaint.314 Likewise, Mabile alleges he submitted a letter to BP’s website and to its Houston
office “generally describing the Mabile Cap’s functionality.”315 Thus, Mabile has alleged that BP
received and used two pieces of Mabile’s physical property to construct the 3-ram Capping Stack:
Mabile’s schematic and his letter. In other words, construing the claim liberally in favor of Mabile,
this Court finds that Mabile’s conversion claim plausibly rests on a “corporeal” object, defined in
the Louisiana Civil Code as a thing that has “a body, whether animate or inanimate, and can be
felt or touched.”316
Here, the Court finds Endotech, the Eastern District of Louisiana case cited by both parties,
most instructive. In Endotech, another district judge in the Eastern District of Louisiana found that
taking and using a plaintiff’s business plans without authorization was sufficient to state a claim
for conversion in Louisiana.317 There, the court rejected the argument that, because the plaintiff’s
claims centered on the intangible marketing, distribution, and financial information contained
within the business plans, plaintiff’s claims amounted to claims of conversion for intangible
property. 318 Rather, the judge recognized that physical documents themselves supported plaintiff’s
conversion claim, such that the judge did not need to address the question of whether intangible
property could be converted. 319 BP attempts to distinguish Endotech from the case at hand by
arguing that the claim there was based on the use and distribution of the plaintiff’s physical

314

Rec. Doc. 28-1.

315

Rec. Doc. 28 at 4.

316

See Lamar Advert. Co., 396 F.3d at 661 (quoting La. Civ. Code art. 461).

317

Endotech USA v. Biocompatibles Int'l PLC, No. 00-0957, 2000 WL 1594086, at *14 (E.D. La. Oct. 24,
2000) (Duval, J.).
318

Id.

319

Id.

49

business plan documents, while Mabile’s claims are really premised on the use of his abstract ideas
and intellectual property.320 However, the Court finds little distinction between the actions taken
in Endotech—using the information within a proprietary business plan without authorization321—
and the use of the schematic here, as both claims are premised on the unauthorized acquisition and
use of physical documents containing valuable information.322
Moreover, the Court finds Mabile’s claim to be distinct from a conversion claim premised
on purely intellectual property like in BASF Agrochemical Prods. v. Unkel.323 There, the court
rejected the plaintiff’s argument that defendants converted its patented technology by the manner
in which defendants used the technology, which infringed on the plaintiff’s patent. 324 Here,
however, Mabile’s conversion claim rests on BP’s alleged use of his physical schematic without
authorization to develop its 3-ram Capping Stack. That is, Mabile’s claim is distinct because BP’s
acquisition and use of the schematic to reconstruct the Mabile Cap is integral to his allegations.325
Second, BP briefly states in one sentence that Mabile “voluntarily provided his schematic”
to BP and the Coast Guard Engineer and “does not allege that he ever requested return” of the
schematic, and therefore cannot bring a conversion action.326 As federal and state courts in

320

Rec. Doc. 30-1 at 23.

321

Endotech USA, No. CIV. A. 00-0957, 2000 WL 1594086 at *1–3, *14.

322
See Dual Drilling Co., 721 So. 2d at 856 (stating that conversion “is committed when any of the following
occurs . . . possession is acquired in an unauthorized manner”).
323

No. 05-1478, 2006 WL 3533133, at *7 (W.D. La. Dec. 7, 2006).

324

Id. at 5–7.

325
See Rec. Doc. 31 at 22 (“After acquiring Mr. Mabile’s schematic, BP used the information therein, without
Mr. Mabile’s authorization, to reconstruct the Mabile Cap.” (Emphasis added)).
326

Rec. Doc. 30-1 at 22 (citing Davis v. Am. Marine Corp., 163 So. 2d 163, 167–68 (La. Ct. App. 1964)
(“when property is voluntarily given to another, there can be no claim for conversion unless the recipient provides ‘an
absolute, unqualified refusal to deliver’”).

50

Louisiana have held, “when the owner consents to or ratifies the taking of his property, he is
estopped from bringing an action for conversion.”327 For example, in Gaunt, another section in the
Eastern District of Louisiana held that a defendant must only show that the owner took some action
that demonstrates consent to or ratification of the taking of his property to defeat an action for
conversion.328
However, Mabile does not allege he consented to BP’s use of his schematic or voluntarily
allowed BP to exercise ownership over it in the way BP alleges; rather, Mabile states that “BP
and/or its agents induced Mr. Mabile to submit the Mabile Cap schematic to BP by misrepresenting
that Mr. Mabile would receive acknowledgment and/or economic benefit if the Mabile Cap design
was used to successfully cap the wellhead.”329 Additionally, Mabile asserts that BP used Mabile’s
“intellectual property and the Mabile Cap schematic . . . [w]ithout Mr. Mabile’s consent.”330
Moreover, he argues that, “[w]ithout even communicating with Mr. Mabile beforehand, BP used
Mr. Mabile’s schematic to construct a device consistent with and identical to the Mabile Cap. Thus
BP acquired possession of Mr. Mabile’s design in an unauthorized manner, and Mr. Mabile has
stated a claim for conversion.”331 Accordingly, the Court finds BP’s consent argument
unpersuasive, and holds that Mabile has plausibly alleged at this stage that BP did not have the
authority to use his schematic.
Based on the forgoing, the Court finds that Mabile may assert a conversion claim and that,

327

Gaunt v. Louisiana Citizens Prop. Ins. Corp., 512 F. Supp. 2d 493, 498 (E.D. La. 2007) (citing Blair v.
Source One Mortgage Services Corp., 1997 WL 250040 (E.D.La.5/9/1997) (citing Aymond v. State, Dept. of Revenue
& Taxation, 672 So.2d 273, 276 (La. App. 1st Cir.1996))).
328

Id (citing Aymond v. State, Dept. of Revenue & Taxation, 672 So.2d 273, 276 (La. App. 1st Cir.1996)).

329

Rec. Doc. 28 at 7 (emphasis added).

330

Id. (emphasis added).

331

Rec. Doc. 31 at 10.

51

construing the claim liberally in favor of Mabile, he has plausibly alleged sufficient facts to support
his allegations. Mabile has alleged that (1) he owned or had the right to possess his schematic and
the intellectual property contained within;332 (2) he gave the schematic under the false
understanding that BP would compensate or acknowledge him if it was used;333 (3) that, as
evidenced by the timing of the development of BP’s solution, the interest showed by BP engineers
in attending a demonstration and requesting a second demonstration, and the alleged material
similarities between the Mabile Cap and the 3-ram Capping Stack, BP used his schematic in a way
that was inconsistent with Mabile’s rights;334 and (4) that by taking and using Mabile’s property
in this manner, BP’s use constitutes a wrongful taking.335 In other words, Mabile has sufficiently
alleged that BP acquired possession of Mabile’s property “in an unauthorized manner.”336
Accordingly, the Court denies BP’s motion to dismiss Mabile’s conversion claim.
2.

Unfair Trade Practices

BP presents two possible grounds for dismissal for Mabile’s unfair trade practices claim
under LUTPA. First, BP argues that Mabile’s claims must satisfy the Federal Rule of Civil
Procedure 9(b)’s heightened pleading requirements because they are implicitly premised on

332

Id.

Id. at 8 (“BP and/or its agents induced Mr. Mabile to submit the Mabile Cap schematic to BP by
misrepresenting that Mr. Mabile would receive acknowledgment and/or economic benefit if the Mabile Cap design
was used to successfully cap the wellhead.”).
333

334

Id. at 5, 8.

335
See Gaunt v. Louisiana Citizens Prop. Ins. Corp., 512 F. Supp. 2d 493, 498 (E.D. La. 2007) (citing
Bernofsky v. Tulane University Medical School, 962 F.Supp. 895, 906 (E.D. La. 1997) (citing Chrysler Credit Corp.
v. Whitney Nat'l Bank, 51 F.3d 553 (5th Cir.1995))).
336

Dual Drilling Co., 721 So. 2d at 856 (citing Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law
§ 1-2, at 3 (1996 & Supp.1998); Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (La.1957); see also
Louisiana State Bar Assoc. v. Hinrichs, 486 So.2d 116 (La.1986)) (emphasis added).

52

allegations of fraud.337 Second, even if Rule 9(b) does not apply, BP asserts that Mabile’s
allegations are “merely factually unsupported legal conclusions” that fail the plausibility standard
set forth in Twombly and Iqbal.338
Rule 9(b) of the Federal Rules of Civil Procedure provides that when a plaintiff alleges
“fraud or mistake,” he must meet a heightened pleading standard by stating “with particularity the
circumstances constituting fraud or mistake.” However, the Supreme Court has not extended Rule
9(b) beyond averments of mistake and fraud.339 Rather, the Supreme Court has advised that Federal
Rule of Civil Procedure 8(a)’s simplified pleading standard, requiring only a “short and plain
statement of the claim,” generally applies to all civil actions “with limited exceptions.”340 Thus,
the Fifth Circuit has held that Rule 9(b) does not apply to claims for negligent misrepresentation
alone, 341 while district courts in the Fifth Circuit have also found that Rule 9(b) does not apply to
such circumstances as breaches of fiduciary duty based on non-fraudulent conduct.342 By contrast,
district courts within the Fifth Circuit have found that Rule 9(b) applies to allegations of fraudulent
misrepresentation and conspiracy to defraud under LUTPA must satisfy Rule 9(b).343 However, as

337

Rec. Doc. 30-1 at 24–25.

338

Id. at 25.

See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (declining to extend Rule 9(b)’s
requirements to employment discrimination claims); Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168–69 (1993) (declining to apply Rule 9(b) to municipal lability claims).
339

340

See Swierkiewicz, 534 U.S. at 513; U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009).

341

Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 723 (5th Cir. 2003) (holding that Rule 9(b)
generally does not apply to negligent misrepresentation claims unless it is not plead separately from a plaintiff’s fraud
claims), opinion modified on other grounds on denial of reh'g, 355 F.3d 356 (5th Cir. 2003).
342

In re Electronic Data Systems Corp. ERISA Litigation, 305 F.Supp.2d 658, 672 (E.D. Tex. 2004).

343

Pinero, 594 F. Supp. 2d at 721 (holding that that Rule 9(b) applied when plaintiff had directly alleged
both fraud and fraudulent misrepresentation); Brand Coupon Network, LLC v. Catalina Mktg. Corp., No. CIV. A. 1100556-BAJ, 2014 WL 6674034, at *5 (M.D. La. Nov. 24, 2014) (holding that when a plaintiff’s LUTPA claim is
based on fraudulent misrepresentation and conspiracy to defraud, Rule 9(b) applies).

53

Wright & Miller note, while courts are split as to what constitutes fraud for the purposes of Rule
9(b), its application “should be construed narrowly and not extended to other legal theories or
defenses.”344
LUTPA declares unlawful “[u]nfair methods of competition and unfair or deceptive acts
or practice in the conduct of any trade or commerce.”345 Courts determine what constitutes “unfair”
and “deceptive” conduct on a case-by-case basis.346 Louisiana courts have stated that a practice is
unfair “when the practice is unethical, oppressive, unscrupulous, or substantially injurious.”347
Likewise, Louisiana courts have described a trade practice as deceptive when it amounts to “fraud,
deceit or misrepresentation.”348 Thus, it is clear that LUTPA claims are not limited solely to
allegations of fraud, but may be independently premised on a range of non-fraudulent conduct.349
Here, Mabile has not explicitly alleged fraud or fraudulent conduct in his amended
complaint as a basis for his LUTPA claim against BP.350 Rather, Mabile has alleged that “BP’s
misrepresentation and failure to provide Mr. Mabile with compensation constitute deceptive
practices declared unlawful under [LUTPA] . . . [and] BP’s refusal to compensate or recognize
Mr. Mabile for his design is, at least, an unethical, immoral, and unscrupulous act that violates

344

Charles A. Wright, Arthur R. Miller, et al., 5A Fed. Prac. & Proc. Civ. § 1297 (3d ed.).

345

La. Rev. Stat. § 51:1405 (emphasis added).

346
American Machinery Movers, Inc. v. Machinery Movers of New Orleans, LLC, 136 F. Supp. 2d 599, 604
(E.D. La. 2001); Core v. Martin, 543 So.2d 619, 621 (La. App. 2 Cir. 1989).
347

See Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F. Supp. 2d 710, 720–21 (E.D. La. 2009) (Vance, J.)
(citing Jefferson v. Chevron U.S.A. Inc., 713 So.2d 785, 792 (La. App. 4 Cir. 1998)).
348

See id. at 721 (citing Jefferson, 713 So.2d at 793) (emphasis added); see also Computer Mgmt. Assistance
Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404 (5th Cir. 2000) (“To recover under LUTPA, a plaintiff must prove
fraud, misrepresentation, or other unethical conduct.”).
349

See Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F. Supp. 2d 710, 720–21 (E.D. La. 2009) (citing Jefferson
v. Chevron U.S.A. Inc., 713 So.2d 785, 792 (La.Ct.App.1998)
350

See Rec. Doc. 28.

54

public policy.”351 Mabile also asserts that “BP and/or its agents induced Mr. Mabile to submit the
Mabile Cap schematic to BP by misrepresenting that Mr. Mabile would receive acknowledgement
and/or economic benefit if the Mabile Cap design was used.”352 Accordingly, unlike the plaintiffs
in Pinero and Brand Coupon Network who specifically alleged fraudulent misrepresentations
under LUTPA, and thus had to satisfy Rule 9(b), Mabile has premised his unfair trade practices
claim under LUTPA on allegations of non-fraudulent conduct by BP.353
BP avers, however, that Mabile’s LUTPA claim implicitly alleges fraudulent behavior,
triggering Rule 9(b)’s heightened pleading requirement, because his allegations would also satisfy
the necessary elements to prove fraud under Louisiana law.354 According to BP, a cause of action
for fraud is established when a plaintiff successfully alleges “(1) a misrepresentation of material
fact, (2) made with intent to deceive, (3) causing justifiable reliance with resultant injury.” 355 To
satisfy the second necessary element of “intent to deceive,” BP points to Mabile’s assertion that
“[a]s shown by BP’s refusal to properly compensate Mr. Mabile for his design, BP’s Website was
used by BP to extract the information and knowledge it desperately needed while avoiding an
obligation to pay just compensation.”356
However, the Court is unpersuaded by BP’s argument that this vague averment in Mabile’s
LUTPA claim necessarily alleges an intent to deceive that would satisfy the well-pleaded
complaint rule for a claim of fraud. Mabile’s allegation regarding how BP’s website was used does

351

Id. at 9.

352

Id. at 8.

353

Pinero, 594 F. Supp. 2d at 72; Brand Coupon Network, LLC, 2014 WL 6674034 at *5.

354

Rec. Doc. 38 at 8–9.

355

Id. at 8 (citing Chapital v. Harry Kelleher & Co., 144 So. 3d 75, 86 (La. App. 4 Cir. 2014)).

356

Id. at 9 (citing Rec. Doc. 28 at 8).

55

not necessarily imply that BP had the requisite intent to deceive needed to satisfy a fraud claim, or
that Mabile’s argument must be implying fraudulent conduct. Moreover, BP does not provide any
case citations for its proposed theory that an allegation under LUTPA premised on non-fraudulent
conduct must still satisfy Rule 9(b) if the plaintiff could have also alleged the defendant committed
fraud. Additionally, even if this Court was to find that Mabile has alleged fraud along with his
allegations of other non-fraudulent conduct, the Fifth Circuit has instructed that the “proper route
is to disregard averments of fraud not meeting Rule 9(b)’s standard and then ask whether a claim
has been stated.”357 Here, Mabile has alleged a LUTPA claim on non-fraudulent grounds and does
not make any averments of fraud, fraudulent conduct, or intent to deceive by BP.358 Therefore, the
Court holds that Mabile’s LUTPA claim does not need to satisfy the particularity requirement
found in Rule 9(b) of the Federal Rules of Civil Procedure.
Second, BP argues that even if Rule 9(b) does not apply, Mabile’s allegations are “merely
factually unsupported legal conclusions that fail to satisfy the plausibility standard set forth in
Twombly and Iqbal.”359 BP asserts that Mabile has not identified any misrepresentations that BP
allegedly made, and that no conclusion can be drawn from Mabile’s assertion that a number of
similar lawsuits have been filed against BP by others who believed they would receive
compensation for any submissions used.360 According to BP, Mabile “repeatedly makes the
conclusory allegation that BP’s alleged conduct was deceptive, [but he] does not provide any

357

Lone Star Ladies Investment Club v. Schlotzsky's, Inc., 238 F.3d 363, 368 (5th Cir. 2001).

See Rec. Doc. 28 at 8–9 (“BP’s misrepresentation and failure to provide Mr. Mabile with compensation
constitute deceptive practices . . . [and] BP’s uncompensated use of the Mabile Cap is an unfair act declared unlawful
under Louisiana’s Unfair Practices and Consumer Protection Law.”); Rec. Doc. 31 at 5–7 (“The maneuvers BP used
to acquire the Mabile Cap’s schematic and design, and BP’s uncompensated use thereof, are the type of deceptive and
unfair acts condemned by LUTPA.”).
358

359

Rec. Doc. 30-1 at 25.

360

Id. at 25–26.

56

supporting factual allegations.”361
Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must include only “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Such a
statement must simply “give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”362 Though “a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations,” the plaintiff is required to assert more than
mere labels, speculation, or formulaic recitations of the elements in order to state his claim.363
Here, Mabile has alleged a series of deceptive, unfair, and/or unjust acts by BP, including
creating a website to solicit ideas to stop the oil spill, soliciting Mabile’s design through that
website and through in-person meetings, misrepresenting that a design successfully used would be
compensated or acknowledged, obtaining and using Mabile’s schematic to cap the oil spill, and
failing to compensate or acknowledge Mabile.364 While the Court agrees with BP that the existence
of other lawsuits involving similar allegations is not probative evidence of misconduct, the Court
finds that, taking all well-pleaded facts as true as required on a motion to dismiss, Mabile’s
allegations offer “more than an unadorned, the-defendant-unlawfully-harmed-me accusation” or a
mere “formulaic recitation of the elements.”365 Here, the factual allegations, taken as a whole,
provide sufficient support for a claim under LUTPA, i.e. that Mabile suffered “an ascertainable
loss of money or movable property . . . as the result of the use or employment by another person

361

Id.

362

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).

363

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

364

Rec. Doc. 28 at 8–9.

365

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

57

of an unfair or deceptive method, act or practice . . . .”366 Though BP argues that Mabile’s LUTPA
claim should fail because he did not provide greater detail on how the issue of compensation and
acknowledgement was misrepresented by BP, Iqbal and Twombly made clear that a plaintiff is still
not required to provide “detailed factual allegations” in his complaint to survive a motion to
dismiss.367 Therefore, the Court finds that Mabile has plausibly stated a claim under LUTPA, and
accordingly will deny BP’s motion to dismiss Mabile’s unfair trade practices claim.
3.

Unjust Enrichment

BP argues that Mabile’s unjust enrichment claim fails on two grounds.368 First, BP avers
that Mabile’s claim fails because unjust enrichment under Louisiana law is only available when
there is no other remedy at law for the alleged conduct. 369 Second, BP asserts that, even if Mabile’s
unjust enrichment claim is not precluded by other available remedies, Mabile has failed to
plausibly allegation that BP was “enriched without cause at the expense of” Mabile.370
In response, Mabile contends that, under Rule 8(d) of the Federal Rules of Civil
Procedure,371 he may plead separate, inconsistent claims in the alternative such as unjust
enrichment.372 Mabile argues he has sufficiently stated all five elements of unjust enrichment as

366

La. Civ. Code § 51:1409.

367

Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

368

Rec. Doc. 30-1 at 26–30.

369

Id.

370

Id.

371
“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in
a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any
one of them is sufficient . . . . A party may state as many separate claims or defenses as it has, regardless of
consistency.” Fed. R. Civ. P. 8(d).
372

See Orx Res., Inc. v. Autra, No. CIV.A. 09-4451, 2009 WL 3447256, at *2 (E.D. La. Oct. 20, 2009)

(Africk, J).

58

an alternatively-pled claim: (1) there was an enrichment for BP; (2) there was an impoverishment
for Mabile; (3) there is a connection between the enrichment and the resulting impoverishment;
(4) there was an absence of justification or legal cause for either; and (5) in the alternative, “if this
Court finds there is no other remedy available at law,” then there is no other remedy at law
available to Mabile.373 Mabile cites several cases in the Eastern District of Louisiana, decided by
other sections, as support, where an alternatively-pled unjust enrichment claim was not
dismissed.374
The Louisiana Civil Code clearly states that unjust enrichment “shall not be available if the
law provides another remedy for the impoverishment [of a plaintiff] or declares a contrary rule.”375
The Supreme Court of Louisiana has held that unjust enrichment is a remedy “subsidiary in
nature,” applicable only “to fill a gap in the law where no express remedy is provided.” 376 As the
Fifth Circuit held in Ferrara Fire Apparatus, Inc. v. JLG Indus., Inc., “[t]he important question is
whether another remedy is available, not whether the party seeking a remedy will be successful.”377
Here, Mabile’s unjust enrichment claim is based on the same factual premises and alleged

373

Rec. Doc. 28 at 10–11, 13–15. See Carriere v. Bank of Louisiana, 702 So.2d 648 (La. Dec. 13, 1996); Orx
Res., Inc. v. Autra, No. CIV.A. 09-4451, 2009 WL 3447256, at *2 (E.D. La. Oct. 20, 2009 ) (Africk, J.).
374
See id. (holding that the plaintiff properly pled an unjust enrichment claim in the alternative, as permitted
by Rule 8(d)); Mayer v. Lamarque Ford, Inc, No. CIV. A. 00-1325, 2001 WL 175232, at *2 (E.D. La. Feb. 16, 2001)
(Clement, J.) (allowing plaintiff to plead unjust enrichment as an alternative “in conjunction with numerous other
claims for the same alleged wrong,” but only allowing it to reach the jury if the jury found that the plaintiff had no
other remedy at law); Endotech USA v. Biocompatibles International PLC, No. CIV.A. 00-0957, 2000 WL 1594086,
at *14 (E.D. La. Oct. 24, 2000) (denying motion to dismiss for unjust enrichment claim pleaded in the alternative).
375

La. Rev. Stat. 2298.

376

Walters v. MedSouth Record Mgmt., 38 So. 3d 243, 244 (La. 2010) (internal citations and quotation marks

omitted).
581 F. App’x 440, 443–44 (5th Cir. 2014). See also Cenac Inland, LLC v. River Valley Shipyards, LLC,
No. CIV.A. 12-2260, 2013 WL 1786641, at *4 (E.D. La. Apr. 25, 2013) (Brown, J.) (holding that, where a court finds
that the plaintiff has stated a claim for the conduct alleged, the Court “must dismiss Plaintiff’s alternative claim for
unjust enrichment, irrespective of whether Plaintiff is ultimately able to successfully pursue its claim.”).
377

59

wrong as his LUTPA and conversion claims.378 For example, Mabile argues that BP is liable for
unjust enrichment because it made “deceitful solicitations” for and “uncompensated use of” his
invention, while his LUTPA claim is based on “deceptive practices” to “solicit potential solutions”
that led to “uncompensated use of the Mabile Cap.”379 Additionally, Mabile’s unjust enrichment
claim argues that BP was enriched by its “unauthorized use of the Mabile cap” and that Mabile
was impoverished by BP failing to compensate him for his efforts;380 likewise, his conversion
claim is based on “BP’s unlawful exercise of dominion over the Mabile Cap design” and “refus[al]
to compensate or recognize Mr. Mabile for the use of the Mabile Cap design.”381 As the Court held
supra, Mabile has adequately alleged his claims for conversion and for unfair trade practices under
LUTPA.
In Walters v. MedSouth Record Mgmt., LLC, the Louisiana Supreme Court held that a
plaintiff who alleged that he had suffered harm as a “direct result of the negligent and tortious
conduct” of the defendant could not seek to recover under unjust enrichment, even though the tort
claims were held to be prescribed.382 Likewise, in Westbrook v. Pike Elec., L.L.C., another section
of the Eastern District of Louisiana dismissed an unjust enrichment claim when the plaintiff had
also alleged, inter alia, a violation of LUTPA.383 Accordingly, because Mabile has other remedies

378

See Rec. Doc. 30-1 at 27–28.

379
Compare Rec. Doc. 28 at 8–9 (Mabile’s LUTPA claim) with Rec. Doc. 28 at 10 (Mabile’s unjust
enrichment claim).
380

Rec. Doc. 28 at 10.

381

Id. at 7.

382
38 So.3d 243, 244 (La. 2010). See also Gallant Investments, Ltd. v. Illinois Central R. Co., 7 So.3d 12, 18
(La. App. 1 Cir. Feb. 13, 2009) (“we conclude that any equitable action for unjust enrichment is precluded by the
availability of the unambiguously-pleaded delictual action”); Dugas v. Thompson, 2011-0178 (La. App. 4 Cir. June
29, 2011), 71 So. 3d 1059, 1068 (holding that an unjust enrichment claim was precluded by the tort of conversion).
383

799 F. Supp. 2d 665, 672 (E.D. La. 2011) (Duval, J.).

60

available to him, this Court finds he is precluded by Louisiana law from asserting a claim of unjust
enrichment.384
Mabile argues that the Court should not dismiss his unjust enrichment claim because it was
properly pled in the alternative under Rule 8(d), and points to other sections of the Eastern District
of Louisiana that have allowed plaintiffs in the past to proceed with an alternatively-pled unjust
enrichment claim.385 However, as this Court held in JP Mack Indus. LLC v. Mosaic Fertilizer,
LLC, when a court finds that there are other remedies at law available, an unjust enrichment claim
is precluded by the plain words of Louisiana substantive law, regardless of whether it is was pled
in the alternative under federal procedural law.386 “In Louisiana, by law, an unjust enrichment
claim is a ‘subsidiary’ claim, not an alternative claim.”387 Importantly, it is the availability of
another remedy at law that determines whether an unjust enrichment claim is barred, and not the
outcome of Mabile’s other causes of action.388 Therefore, whether Mabile has brought an unjust
enrichment action alone or in the alternative to other claims is irrelevant once the Court determines
that Louisiana state law precludes it entirely. Accordingly, the Court will grant BP’s motion to
dismiss Mabile’s unjust enrichment claim.
E.

Whether Federal Patent Law Preempts Mabile’s Claims
Finally, BP argues that both Mabile’s conversion claim and unfair trade practices claim
384

See Bauer v. Dean Morris, L.L.P., No. 08-5013, 2011 WL 1303806, at *8 (E.D. La. Mar. 30, 2011) (Duval,

385

See Rec. Doc. 31 at 15.

386

970 F. Supp. 2d 516, 521 (E.D. La. 2013) (Brown, J.).

387

Id.

J.).

388

This holding is consistent with the analysis of several other sections of the Eastern District of Louisiana.
See, e.g., Patterson v. Dean Morris, L.L.P., No. 08–5014, 2011 WL 1743617 (E.D. La. May 6, 2011) (Duval,
J.)(holding that “[t]he availability of an alternative remedy bars [the plaintiff's] claim for unjust enrichment and entitles
[the defendant] to summary judgment on her claim of unjust enrichment” and noting that the fact that the plaintiff
failed to prevail on other remedies does not negate the fact that such remedies were available to the plaintiff).

61

under LUTPA are preempted.389 BP asserts that Mabile’s state law claims are all premised upon
BP’s alleged use of his Mabile Cap design. Generally, BP argues that, because Mabile publicly
disclosed his idea, does not allege it to have been confidential, and does not have a patent on his
invention, this Court must find that his state law claims are preempted.390 In opposition, Mabile
asserts that his claims are not preempted because he does not seek patent law remedies and his
claims do not offend the primary objectives of federal patent law.391
Under the Supremacy Clause of the United States Constitution, a state law that conflicts
with federal law is without effect.392 There are three types of preemption: explicit, field, or conflict
preemption.393 Here, BP argues that Mabile’s claims conflict with federal patent law.394 “Conflict
preemption occurs when state law ‘stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.’”395
Federal Circuit law governs whether federal patent law preempts a state law claim.396 The
Federal Circuit has stated that “[f]ederal law preempts state law that offers ‘patent-like protection’
to discoveries unprotected under federal patent law.”397 The Supreme Court has further noted that

Rec. Doc. 30-1 at 11–13. Because the Court has found that Mabile’s unjust enrichment claim is precluded
by Louisiana state law, the Court will not address BP’s arguments that it is preempted by federal patent law.
389

390

Rec. Doc. 30-1 at 7.

391

Rec. Doc. 31 at 20.

392

U.S. Const. art. VI, cl. 2; Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1377 (Fed. Cir.

393

Ultra-Precision Mfg., 411 F.3d at 1377.

394

Rec. Doc. 30-1 at 11.

2005).

395

Ultra-Precision Mfg., 411 F.3d at 1377 (quoting Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262
(1979) (internal quotations and citation omitted)).
396

Id. at 1376.

397

Id. at 1377–78 (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 156 (1989)).

62

“[a] state law that substantially interferes with the enjoyment of an unpatented utilitarian or design
conception which has been freely disclosed by its author to the public at large impermissibly
contravenes the ultimate goal of public disclosure and use which is the centerpiece of federal patent
policy.”398 The Federal Circuit has further found that the objectives of federal patent law include
“seek[ing] to foster and reward invention,” “promot[ing] disclosure of inventions to stimulate
further innovation and to permit the public to practice the invention once the patent expires,”
promoting “the stringent requirements for patent protection . . . to assure that ideas in the public
domain remain there for the free use of the public,” providing a “clear federal demarcation between
public and private property,” and promoting “nationwide uniformity in patent law.”399 “A state
cause of action that frustrates these objectives is preempted.”400 The Federal Circuit has
determined that patent laws will not preempt state law claims if the state claims include additional
elements not found in the federal patent law cause of action and are not an impermissible attempt
to offer patent-like protection to subject matter addressed by federal law.401
1.

Conversion

BP argues that federal patent law preempts claims for the tort of conversion under
Louisiana law when they are premised on an alleged unauthorized use of a publicly disclosed,
unpatented invention.402 According to BP, in BASF Agrochemical Prods. v. Unkel, a section of the
Western District of Louisiana held that a conversion claim for intangible intellectual property was

398

Bonito Boats, 489 U.S. at 156–57.

399
Ultra-Precision Mfg., 411 F.3d at 1378 (quoting Bonito Boats, 489 U.S. at 162–63; Aronson v. Quick
Point Pencil Co., 440 U.S. 257, 262 (1979)).
400

Id. (citing Bonito Boats, 489 U.S. at 156–57).

401

Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1306 (Fed. Cir. 1999).

402
Rec. Doc. 30-1 at 12 (citing Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 597–98 (5th Cir.
2015); BASF Agrochemical Prods. v. Unkel, No. 05-478, 2006 WL 3533133, at *7 (W.D. La. Dec. 7, 2006)).

63

preempted by federal patent law.403 Likewise, BP represents that in Spear Mktg., Inc. v.
BancorpSouth Bank, the Fifth Circuit also held a conversion claim for intangible property was
preempted.404 BP also cites Ultra-Precision Mfg., Ltd. v. Ford Motor Co., where the Federal
Circuit held an unjust enrichment claim was preempted because the plaintiff sought a “royalty-like
award” from Ford’s use of technical information that the plaintiff made public through its
patents.405
Mabile counters that the preemption analysis is an ad hoc inquiry that turns on the
underlying conduct asserted by the plaintiff, not the name of the claim.406 Thus, not all conversion
claims will be preempted.407 Mabile argues that the BASF court found that the plaintiff’s
conversion claim was preempted, not simply because some intangible property was at issue, but
because the underlying conduct for the conversion claim was the exact same as the conduct
underlying the plaintiff’s patent infringement claim.408 Likewise, in Spears Marketing, Mabile
asserts that the Fifth Circuit was examining the preemption of a Texas law conversion claim for
the theft of computer software under the Copyright Act, “which is wholly inapplicable to this
case.”409
Additionally, Mabile states that his conversion claim does not offend or obstruct the “three

403

Id. (citing 2006 WL 3533133 at *7).

404

Rec. Doc. 30-1 at 12 (citing 791 F.3d at 597–98).

405

411 F.3d 1369, 1380 (Fed. Cir. 2005).

406
Rec. Doc. 31 at 21 (citing Lyden v. Nike, Inc., No. 13-cv-00662-HZ, 2014 WL 2563401, at *2 (D. Or.
June 6, 2014); Powell v. Home Depot U.S.A., Inc., 2010 WL 375796, at *3 (S.D. Fla. Jan. 26, 2010)).
407

Id.

408

Id. (citing BASF, 2006 WL 3533133, at *7).

409
Id. (citing 791 F.3d at 597–98; 17 U.S.C. § 102(b); Kaminski v. BP Expl. & Prod., Inc., 975 F. Supp. 2d
1220 (M.D. Fla. 2013)).

64

primary objectives of patent law: (1) providing an incentive to invent; (2) promoting the full
disclosure of inventions; and (3) ensuring that ‘that which is in the public domain cannot be
removed therefrom by action of the State.’”410 Here, Mabile represents that requiring BP to
compensate Mabile for acquiring his schematic and using the information therein to reconstruct
the Mabile Cap without his authorization “provides incentive to invent, and also encourages
inventors to disclose their information to the public . . . [and] does not hinder BP’s, nor the public’s,
use of the Mabile Cap.”411
In Hunter Douglas, Inc. v. Harmonic Design, Inc., the Federal Circuit indicated that courts
should use a conflict preemption analysis to determine whether a state law cause of action is
preempted by federal patent law.412 The Federal Circuit has further advised courts to examine the
defendant’s allegedly tortious conduct to determine if a state law tort claim is in conflict with
federal patent law.413 Thus, the Court must examine whether entertaining the specific conversion
claim pled by Mabile “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”414
For example, in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., the Supreme Court found
that federal patent law preempts a state law claim against the plaintiff’s competitor when it was
premised on the duplication of the plaintiff’s unpatented boat hull design that the plaintiff had

410

Id. (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480-81 (1974)).

411

Id. at 22.

412

153 F.3d 1318, 1334–35 (Fed. Cir. 1998), overruled in part on other grounds by Midwest Indus., Inc. v.
Karavan Trailers, Inc., 175 F.3d 1356 (Fed. Cir. 1999).
413

Id. at 1335; see also BASF Agrochemical Prod. v. Unkel, No. 05 CV 1478, 2006 WL 3533133, at *6–7
(W.D. La. Dec. 7, 2006).
414
Ultra-Precision Mfg., 411 F.3d at 1378 (citing Univ. of Colo. Found. v. Am. Cyanamid, 196 F.3d 1366,
1371 (Fed. Cir. 1999) (evaluating whether an unjust enrichment claim was preempted as pled)).

65

marketed and sold to the public for six years.415 Likewise, in Ultra-Precision Mfg., Ltd. v. Ford
Motor Co., the Federal Circuit found that an unjust enrichment claim was preempted when the
plaintiff alleges that the defendant used its technology that the plaintiff publicly disclosed in two
patents.416 Finally, in Spear Mktg., Inc. v. BancorpSouth Bank, the Fifth Circuit analyzed a Texas
state law conversion claim for commercially available computer software trade secrets under the
Copyright Act.417 Though federal patent law preemption was not at issue, the court’s analysis also
focused on the underlying alleged conduct of the conversion claim: the Fifth Circuit stated that
“we have held that claims for conversion of intangible property are preempted” by the Copyright
Act, but further clarified that “[t]o the extent that SMI’s claim alleges conversion of physical
property, it is not preempted by § 301(a).”418
By contrast, in Univ. of Colo. Found. v. Am. Cyanamid, the Federal Circuit held that an
unjust enrichment claim for the copying of the plaintiffs’ confidential research was not preempted
because it “springs not from an attempt to enforce intellectual property rights, but instead from
Cyanamid’s alleged wrongful use of the [the plaintiffs’] research results.”419 When American
Cyanamid came before the Federal Circuit a second time, the court further stated that the unjust
enrichment claim was not “patent-like” because it sought “to remedy the breach of a contract
implied in law for disclosure of their confidential manuscript in exchange for a promise not to

415

489 U.S. 141, 144–45 (1989).

416

Ultra-Precision Mfg., 411 F.3d at 1379–80. See also BASF Agrochemical Prods. v. Unkel, No. 05 CV
1478, 2006 WL 3533133, at *1, 6 (W.D. La. Dec. 7, 2006) (holding that a conversion claim was preempted when it
was based on the same underlying conduct as the plaintiffs’ patent infringement claim, i.e. that defendants used their
patented technology in an unauthorized manner).
417

791 F.3d 586, 597–98 (5th Cir. 2015).

418

Id. at 597.

419

196 F.3d 1366, 1371–72 (Fed. Cir. 1999).

66

disseminate the idea without the [the plaintiffs’] consent.”420 In other words, the plaintiffs’ claim
was not preempted because they “did not seek to prevent the use of information they placed in the
public domain.”421
In support of his conversion claim, Mabile represents in his amended complaint that, in the
weeks following the Deepwater Horizon crisis, BP tried a variety of methods to seal the oil well,
to no avail.422 Mabile alleges that BP was “[d]esperate to find a solution for the oil spill it created”
and accordingly launched a website dedicated to soliciting the public for ideas on how to stop the
discharge of crude oil into the Gulf of Mexico.423 As the crisis was ongoing, Mabile represents that
he “labored tirelessly to create an invention” to stop the oil spill, resulting in the creation of the
“Mabile Cap.”424 Mabile alleges that BP and/or its agents “induced” Mabile to submit his
schematic to BP “by misrepresenting that [he] would receive acknowledgement and/or economic
benefit if the Mabile Cap design was used to successfully cap the wellhead.”425 Mabile states that
he had sole possession of his invention before contacting BP, and that his “unique, successful
design was not generally known to BP or available in the public domain” prior to his submission.426
Mabile further alleges that, “[w]ithout [his] consent, BP intentionally and willfully exercised
authority over [his] intellectual property and the Mabile Cap schematic in its effort to stem the

420

Univ. of Colorado Found., Inc. v. Am. Cyanamid Co., 342 F.3d 1298, 1306 (Fed. Cir. 2003).

421

Id. at 7 (emphasis omitted).

422

Id.

423

Id.

424

Id.

425

Rec. Doc. 28 at 7.

426

Id. at 6–7.

67

flow of oil into the Gulf.”427 Mabile avers that, “[d]espite furnishing BP with the solution to prevent
a catastrophic ecological disaster from becoming even worse” after BP made online and in-person
solicitations for proposals, BP failed to compensate or recognize Mabile; thus, Mabile asserts that
“BP’s actions constitute an improper use of [his] property.”428
Accepting the above allegations as true and construing the complaint in favor of Mabile on
this motion to dismiss, the Court finds Mabile’s conversion claim is distinguishable from the
underlying conduct of the preemption cases cited by BP. The thrust of Mabile’s argument is that
he built and provided the Mabile Cap specifically for BP and at its request, all in the span of a few
weeks during an ongoing national crisis, because BP allegedly induced him to do so through
misrepresentations that he would be compensated or acknowledged for his work. 429 In his
conversion claim, Mabile does not assert a general right to exclude BP and the world at large from
using the Mabile Cap; instead, his cause of action is specific to one entity through its alleged
misrepresentations that allowed it to access and allegedly use the Mabile Cap. Thus, the alleged
conduct underlying Mabile’s conversion claim against BP is not analogous to a competitor copying
publicly available, unpatented products like in Bonito Boats,430 or a company drawing on technical
information to create a device years after it became publicly available in a plaintiff’s patent
applications as in Ultra-Precision.431 Moreover, the rationale behind BASF and Spear Mktg is
inapplicable to Mabile’s case too; BASF found preemption because a conversion claim was
premised on the same conduct as the plaintiff’s patent infringement claim, which is not at issue

427

Id. at 7.

428

Id.

429

See Rec. Doc. 28 at 7.

430

Bonito Boats, 489 U.S. at 156–57.

431

Ultra-Precision Mfg., 411 F.3d at 1378.

68

here,432 and Spear Mktg dealt with Texas conversion law under the Copyright Act. 433 Rather,
Mabile’s claim is more closely analogous to the American Cyanamid cases, where a state law
claim for the wrongful use of intellectual property conditionally provided to the defendant was not
preempted by federal patent law. 434 Though the invention in American Cyanamid was disclosed
after relying on a promise of confidentiality, the Court finds the same arguments applicable to
Mabile: he alleges that he only disclosed his idea based on misrepresentations by BP and the
“justifiabl[e] belie[f]” that he would be compensated or acknowledged. 435 Therefore, the Court
finds that Mabile’s state law conversion claim is based on factual allegations beyond the conduct
covered under federal patent law.
However, BP also asserts that, even assuming arguendo that it did use Mabile’s design to
construct its 3-ram Capping Stack without compensating Mabile, it was permitted to do so because
Mabile’s invention was “publicly known.”436 BP argues that Mabile provided the schematic to BP
and a Coast Guard engineer, performed two demonstrations of the Mabile Cap, 437 and has made
no allegations that he kept his idea secret or confidential. 438 Therefore, BP asserts the invention
was “fully exposed to the public” and available for BP and the world to freely use.439

432

BASF Agrochemical Prod. v. Unkel, No. 05 CV 1478, 2006 WL 3533133, at *6–7 (W.D. La. Dec. 7,

433

791 F.3d 586, 597–98 (5th Cir. 2015).

434

Am. Cyanamid, 196 F.3d at 1371–72.

435

Rec. Doc. 28 at 8.

436

Rec. Doc. 38 at 3.

2006).

437

As the Court held supra, the Court will not consider on a motion to dismiss any factual allegations made
by BP that exist outside of the pleadings.
438

Rec. Doc. 30-1 at 11.

439

Id. at 11–12; Rec. Doc. 38 at 3 (citing Bonito Boats, 489 U.S. at 165).

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The Supreme Court and the Federal Circuit have recognized that federal patent law allows
anyone to copy and use unpatented inventions that exist in the public domain, and state laws that
seek to protect those inventions from use are preempted. For example, in Bonito Boats, the
Supreme Court held that a plaintiff’s state law claim was preempted by patent law when that
plaintiff had freely chosen to “expose its hull design to the public in the marketplace, eschewing
the bargain held out by the federal patent system of disclosure in exchange for exclusive use.”440
Likewise, in Ultra-Precision, the plaintiff met with Ford to propose a solution to a problem Ford
was facing in its automobiles, and later publicly disclosed the technology in a patent application
before Ford began using it. The Federal Circuit held that, because Ford did not adopt the plaintiff’s
concepts “until well after [plaintiff’s] alleged solution to the NVH problem became publicly
known” through its patent applications, his state law claim was preempted.441 Finally, in Pronova
Biopharma Norge AS v. Teva Pharmaceuticals USA, Inc, the Federal Circuit found that a drug
patent was invalid because the plaintiff had voluntarily sent samples without restriction to at least
four doctors prior to receiving a patent.442
By contrast, in Wawrzynski v. H.J. Heinz Co., the Federal Circuit examined whether it had
jurisdiction to review state law claims arising out of the alleged uncompensated use of patented
and unpatented ideas that the plaintiff had pitched to Heinz. 443 Though the plaintiff had disclosed
his ideas to Heinz, the Federal Circuit expressed doubt that his state law claims were preempted;
instead, the court stated that “it appears that nothing in federal patent law now stands in the way

440

Bonito Boats, 489 U.S. at 159.

441

Id.

549 F. App’x at 936–38 (internal quotations omitted) (quoting Dey, L.P. v. Sunovion Pharm., Inc., 715
F.3d 1351, 1355 (Fed. Cir. 2013)).
442

443

728 F.3d 1374, 1380 (Fed. Cir. 2013).

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of [the plaintiff] pursuing his state law claims.”444 When the case was subsequently heard by the
Third Circuit, it concurred, holding that state law claims for the plaintiff’s unpatented design and
marketing ideas that were disclosed to Heinz through correspondence, promotional materials, and
in person meetings were not preempted by federal patent law.445
In his amended complaint, Mabile asserts that “the Mabile Cap’s unique, successful design
was not generally known to BP or available in the public domain.”446 Moreover, Mabile states that
prior to submitting his schematic to BP, Mabile “had sole possession of his intellectual property
and schematic for his Mabile Cap invention.”447 Mabile also argues that the United States Coast
Guard engineer who received a copy of the schematic was “[u]pon information and belief . . .
acting on behalf of BP as an engineer/technical consultant to cap the oil flow”448 and that there are
no allegations in his amended complaint of other individuals attending the Mabile Cap
demonstrations or receiving the schematic.449 Furthermore, Mabile asserts that even if there was
such an allegation, merely demonstrating an invention without revealing the technical specifics of
the device does not render it non-confidential, because it “still could not be duplicated by others
simply from viewing this demonstration” without access to the schematic.450
As a preliminary matter, the Court must determine if providing the schematic to Hansen
constitutes public disclosure for the purposes of federal patent law preemption. As the Fifth Circuit

444

Id. at 1381.

445

Wawrzynski v. H.J. Heinz Co., 574 F. App’x 99, 102 (3d Cir. 2014).

446

Rec. Doc. 28 at 6.

447

Id. at 7.

448

Id. at 5.

449

Rec. Doc. 42 at 5.

450

Id. at 5–6.

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has held, a district court should not “accept as true conclusory allegations, unwarranted factual
inferences, or legal conclusions” when determining if a claim has facial plausibility. 451 Here,
Mabile supports his allegation that Hansen was BP’s agent “[u]pon information and belief.”452
Moreover, though it is unclear from the face of the complaint how Hansen received notice of or
was invited to Mabile’s demonstration, it is plausible under the facts alleged and the unique
circumstances of the oil spill that he was present at the demonstration on behalf of BP. For
example, in his amended complaint, Mabile asserts that he first held a demonstration for at least
two BP engineers, Jason French and Thomas Pearce, after which French called another BP
engineer, Al Ledet, to discuss Mabile’s device.453 Mabile represents that it was Ledet who
requested a second demonstration of the Mabile Cap later that day, and it was at that BP-requested
demonstration when Kurt Hansen becomes involved.454 Mabile further states that Hansen
commented that the “Mabile Cap was the best device he had seen for capping the oil spill,” raising
the reasonable inference that Hansen had seen more than just Mabile’s proposed solution, and that
Hansen requested a copy of the schematic and a DVD of the demonstration.455 Accordingly, based
on the facts alleged and drawing all reasonable inferences therefrom, the Court finds that there are
sufficient factual allegations for the purposes of this motion to dismiss to accept Mabile’s
representation that Kurt Hansen was acting on behalf of BP when he received the schematic and
attended the demonstration. Therefore, Hansen’s involvement as an agent of BP does not affect

Gentilello, 627 F.3d at 544; see Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (“While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”)
451

452

Rec. Doc. 28 at 5.

453

Id.

454

Id.

455

Id.

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the Court’s preemption analysis. Additionally, while the parties have offered conflicting assertions
regarding who else was in attendance at Mabile’s demonstrations and whether it was publicly
televised, these disputed facts are not in Mabile’s amended complaint.456 Thus, the Court will not
consider these allegations at this time.
The Court holds that Mabile has sufficiently alleged that he only disclosed his schematic
and invention to BP and its agents after BP allegedly “induced” him to do so. The Court finds that
Mabile’s claim is more analogous to Wawrzynski v. H.J. Heinz Co., where the plaintiff disclosed
his patented and unpatented ideas in person and through the mail in order to solicit Heinz’s
business.457 There, neither the Federal Circuit nor the Third Circuit found that the state claims
should be preempted based on public disclosure of the ideas. Likewise, the Federal Circuit’s
discussion in Ultra-Precision of when the plaintiff’s ideas were publicly disclosed is also
applicable to Mabile. 458 There, the court specially noted that Ford did not immediately use the
information provided by plaintiff that was disclosed during the plaintiff’s meetings with Ford, but
rather waited until after the ideas were publicly disclosed in the plaintiff’s patent applications.459
Additionally, the Court notes that, according to Mabile’s amended complaint, he did not
“freely disclose[]” his invention to the public like the plaintiffs in Bonita Boats (selling its
unpatented product), Pronova (sending out samples), or Ultra-Precision (filing public patent
applications); rather, he asserts that “BP and/or its agents induced” him to provide his invention
to BP through “misrepresentations” about compensation if the device was successfully used.460

456

See Rec. Doc. 28.

457

574 F. App’x 99, 102 (3d Cir. 2014).

458

Id.

459

Id.

460

Rec. Doc. 28 at 6–7.

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Therefore, this Court finds that, accepting the allegations of his amended complaint as true,
Mabile’s invention was not “publicly” or “freely disclosed” when he submitted his unpatented
design to BP at its request and under the assumption that he would be compensated if it was
successfully used.
Finally, BP argues that Mabile’s state law conversion claim, if successful, “stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of Congress”
and federal patent law.461 BP argues Mabile’s conversion claim subverts patent law’s “stringent
requirements and procedures that an inventor must satisfy in order to secure a property right in his
or her invention.”462 In opposition, Mabile argues that having BP compensate him for the use of
the design provides an incentive to invent and encourages inventors to disclose their information
to the public.463
In Bonito Boats, the Supreme Court found that a state law claim was preempted because it
“substantially interferes with the enjoyment of an unpatented utilitarian or design conception
which has been freely disclosed by its author to the public at large impermissibly contravenes the
ultimate goal of public disclosure and use which is the centerpiece of federal patent policy.”464
Likewise, in Ultra-Precision, the Federal Circuit found that permitting an unjust enrichment claim
against the use of technology openly disclosed in the plaintiff’s patent applications would
“frustrate[]Congress’s objective of ‘creating an incentive to develop inventions that meet the
rigorous requirements of patentability.’”465 The court went on to note that if the unjust enrichment

461

Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1378 (Fed. Cir. 2005)).

462

Rec. Doc. 38 at 4.

463

Rec. Doc. 31 at 22.

464

Bonito Boats, 489 U.S. at 156–67.

465

Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1380–81 (Fed. Cir. 2005) (quoting Bonito

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claim was available there, “a would-be inventor need not satisfy any of the rigorous standards of
patentability to secure a perpetual patent-like royalty under state law based on the use of an
unpatented idea.”466
By contrast, in Kewanee Oil Co. v. Bicron Corp., the Supreme Court found that state trade
secret laws are not preempted because they support rather than conflict with the objectives of
Congress in passing patent laws.467 The Court stated that the laws have a “decidedly beneficial
effect on society” by “encourag[ing] invention in areas where patent law does not reach,” fostering
competition, and avoiding the deprivation “of the use of valuable, if not quite patentable,
invention” by the public.468 If trade secret laws were preempted, the “innovative entrepreneur with
limited resources would tend to confine his research efforts” against disclosure “and society, as a
whole, would suffer.”469 Moreover, “[t]he holder of a trade secret would not likely share his secret
with a manufacturer who cannot be placed under binding legal obligation to pay a license fee or to
protect the secret. The result would be to hoard rather than disseminate knowledge.”470 “The
detrimental misallocation of resources and economic waste that would thus take place if trade
secret protection were abolished . . . cannot be justified by reference to any policy that the federal
patent law seeks to advance.”471
Additionally, in Aronson, the Supreme Court held that permitting inventors to enter into

Boats, 489 U.S. at 160–63).
466

Id. at 1381.

467

Id.

468

Id.

469

Id. at 486.

470

Id. (citing Painton & Co. v. Bourns, Inc., 442 F.2d at 223).

471

Id. at 486–87.

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perpetual, pre-patent licensing agreements “provides an additional incentive to invention.”472 The
Court stated that allowing an inventor “to make arrangements for the manufacture of her
[invention] furthers the federal policy of disclosure of inventions . . . [i]t is equally clear that the
design entered the public domain as a result of the manufacture and sale of the [invention] under
the contract.”473 Finally, the Supreme Court noted that “[e]nforcement of the agreement does not
discourage anyone from seeking a patent.”474
In light of the Court’s finding supra that Mabile brings a limited claim of conversion
premised on the specific alleged conduct of BP, the Court finds that the reasoning and policy
objectives raised in Kewanee Oil and Aronson are more persuasive here. Permitting conversion
claims against private entities who solicit aid from outside parties, represent that compensation or
acknowledge will be given to successful submissions, accept those submissions from individuals
who expend great time and labor in creating solutions, and then decline to pay them afterwards
will aid, rather than hinder, the objectives of patent law and have a “decidedly beneficial effect on
society.”475 Allowing such a claim to go forward would promote innovation and the dissemination
of information by encouraging inventors to respond to calls for technical assistance without fear
that disclosing their invention on the promise of compensation would render them without legal
recourse for its uncompensated use. By contrast, preemption here would discourage such invention
and disclosure, and the “result would be to hoard rather than disseminate knowledge.”476
If Louisiana conversion law was preempted in this case, then, like with Kewanee Oil Co.,

472

Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979).

473

Id. at 263.

474

Id.

475

Id.

476

Id. (citing Painton & Co. v. Bourns, Inc., 442 F.2d 216, 223 (2nd Cir. 1971)).

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the “innovative entrepreneur with limited resources would tend to confine his research efforts”
against disclosure “and society, as a whole, would suffer.”477 This is particularly true during times
of immediate crisis. If the Court was to hold that preemption applies in such a case, would-be
inventors would be discouraged from responding to calls for innovative solutions to national
disasters or would be wary that promises to pay for such inventions may be withdrawn as soon as
the schematic has transferred hands. Additionally, those entities searching for emergency solutions
benefit from such assurances for inventors; if this Court holds that preemption applies in such
circumstances, entities seeking solutions would be forced to wait while inventors sought patents
to protect their works or to be forced to engage in costly pre-disclosure negotiations for
confidentiality and compensation with every person alleging to have an invention. A potential
holder of an innovative solution “would not likely share his secret with a manufacturer who cannot
be placed under binding legal obligation to pay a license fee or to protect the secret.” 478 Such a
holding would hinder the free exchange of information, reduce the incentive to innovate, and
impose great costs on the public at large who must continue to suffer through an ongoing crisis
when a potential solution may exist. Thus, the Court finds that preempting Mabile’s state law
conversion claim here would not interfere with the goals and objectives of federal patent law.
Accordingly, the Court finds that Mabile does not assert a general right to exclude the
public from exploiting the ideas in his unpatented Mabile Cap; rather, he asserts one failure to pay
claim against one entity who allegedly induced him to forgo his right to “keep his invention secret
and reap its fruits indefinitely.”479 Mabile’s allegations of inducement and misrepresentation are

477

Id. at 486.

478

Id. (citing Painton & Co. v. Bourns, Inc., 442 F.2d at 223).

479

Id. at 151.

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what makes BP’s alleged use of his property unauthorized. Thus, the Court finds that the state
restrictions on the use of unpatented ideas here are “limited to those necessary to promote goals
outside the contemplation of the federal patent scheme.”480 Therefore, this Court concludes that
Mabile’s conversion claim is not preempted by federal patent law.
2.

Unfair Trade Practices

BP argues that Mabile’s unfair trade practices claim under LUTPA is preempted by federal
patent law for the same reasons it asserts that his conversion claim is preempted—the claim is
premised upon BP’s alleged use of an idea that was publicly disclosed without any confidentiality
restrictions.481 In support, BP cites an Eastern District of New York case, Sorias v. National
Cellular USA, Inc.482 In Sorias, the court held that the plaintiffs’ unfair competition claim was
preempted by federal patent law because the plaintiffs made no allegations of unfair competition
that are “separate and independent from its patent law claim” of infringement; rather, the claim of
unfair competition was “purely based on allegations of patent infringement or copying of an
unpatented product.”483 BP also cites a Southern District of Florida case, Powell v. Home Depot
U.S.A, Inc., where the defendant had brought state law counterclaims against the plaintiff alleging
that it had contributed to or discovered the initial idea for plaintiff’s invention, and therefore
defendant was the co-inventor.484 The court determined that co-inventorship is a field that is
governed exclusively by federal patent law and therefore the defendant’s state law counterclaims

480

Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1382 (Fed. Cir. 2005) (Bonito Boats, 489
U.S. at 166).
481

Rec. Doc. 30-1 at 12.

482

Id. (citing 124 F. Supp. 3d 244, 262 (E.D. N.Y. 2015)).

483

Id.

484

Nos. 07-80435-CIV, 08-61862, 2010 WL 375796, at *4 (S.D. Fla. Jan. 26, 2010)).

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were preempted.485
In opposition, Mabile asserts that his LUTPA claim is not based solely on BP’s use of his
invention but also arises from the means that BP employed to acquire the Mabile Cap schematic
and design and BP’s failure to compensate him for it.486 Therefore, Mabile contends that because
LUTPA is a broad statute, the elements of which are “markedly different” from those of a patent
claim, his LUTPA claim is not preempted.487 Mabile cites a Western District of Louisiana case,
Total Rebuild, Inc. v. Streamline Hose and Fittings, Inc., where the court noted that “Louisiana
courts have denied attempts to apply federal patent law preemption to LUTPA claims.”488 In Total
Rebuild, the plaintiff brought claims for both patent infringement and unfair trade practices
alleging that the defendant’s conduct in using a configuration “very similar if not identical to” the
high pressure safety system designed and built by the plaintiff constituted an unfair method of
competition and unfair or deceptive acts or practice.489 The court concluded that the plaintiff’s
state law claim required a finding that the defendant’s action constituted an unfair or deceptive
trade practice and was more than just a parallel way of enforcing its patent rights, that it did not
impose requirements that were inconsistent with federal law, and did not serve as an obstacle to
any Congressional objectives.490
Mabile also cites a Federal Circuit case, Hall v. Bed Bath & Beyond, Inc., in which the
court found that a New York state misappropriation action was not preempted by federal patent

485

Id. (citing Univ. of Colo. Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1372 (Fed. Cir. 1999)).

486

Rec. Doc. 31 at 22.

487

Id.

488

Rec. Doc. 42 at 1 (citing No. 6:15-01172, 2015 WL 9217451 (W.D. La. Sept. 25, 2015)).

489

2015 WL 9217451, at *1.

490

Id. at *6.

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law where the plaintiff argued that the defendant copied his proprietary towel that he had showed
to the defendant in the course of discussion of a business relationship.491 Finally, Mabile points to
Rodime PLC v. Seagate Technology, Inc., where the Federal Circuit stated that an unfair
competition claim that is aimed at preventing unethical and oppressive business practices protects
interests different from federal patent law and was therefore not preempted.492
Here, like with conversion, the Court must look beyond the name of the cause of action to
the underlying conduct alleged to determine whether Mabile’s claim under LUTPA is an
impermissible attempt to offer patent-like protection to subject matter addressed by federal law.493
In his amended complaint, Mabile alleges that BP used a website to solicit potential solutions for
the oil spill and “[a]s shown by the abundance of lawsuits filed against BP for misappropriating
solutions to the oil spill, the individuals who submitted ideas to BP’s Website justifiably believed
they would receive compensation for any submissions used by or assisting BP in successfully
capping the wellhead.”494 Mabile alleges that BP’s uncompensated use of the Mabile Cap is an
unfair act that is unlawful pursuant to LUTPA and that BP and/or its agents induced Mabile to
submit his schematic by misrepresenting that he would receive acknowledgment and/or economic
benefit if his design was used by BP.495 BP contends that the amended complaint does not identify
any conduct beyond the use of the Mabile’s purported invention that could serve as the basis for a
LUTPA claim.496

491

Rec. Doc. 42 at 2 (citing 705 F.3d 1357, 1371–72 (Fed. Cir. 2013)).

492

174 F.3d 1294, 1306 (Fed. Cir. 1999).

493

Id. at 3 (citing 174 F.3d 1294, 1306 (Fed. Cir. 1999)).

494

Rec. Doc. 28 at 8.

495

Id. at 8–9.

496

Rec. Doc. 38 at 5.

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For the same reasoning used supra in holding that Mabile’s conversion claim is not
preempted, this Court finds that Mabile’s allegations that the methods in which BP acquired and
used his schematic were unlawful do not “offer patent-like protections to subject matter addressed
by federal law.”497 Mabile’s LUTPA claim is premised on the unfair and deceptive trade practices
of BP, rather than alleged property rights in an unpatented device. Further, the Court notes that
Mabile’s LUTPA claim contains additional elements that are “markedly different” from those
federal patent law cause of action.498 As the Federal Circuit held in Rodime PLC, “laws will not
preempt such claims if they include additional elements not found in the federal patent law cause
of action.”499
Thus, the Court finds the Federal Circuit’s reasoning in Rodime PLC most persuasive here,
as the court found that an unfair competition claim was aimed at preventing unethical and
oppressive business practices and therefore protected interests different from federal patent law.500
As the Supreme Court has held, a state law targeting unsavory business practices should not be
preempted, as “[t]he necessity of good faith and honest, fair dealing is the very life and spirit of
the commercial world.”501 As the First Circuit noted, the “the Supreme Court has suggested that
states should continue to regulate just these sorts of less-than-upright business practices, even if
they incidentally involve intellectual property and information that may be subject to federal patent
laws.”502 Moreover, though BP argues that Mabile’s claim must be preempted because it is not

497

Rodime PLC v. Seagate Technology, Inc., 174 F.3d 1294, 1306 (Fed. Cir. 1999).

498

Id.

499

Id.

500

Id.

501

Kewanee Oil Co., 416 U.S. at 480–81.

502

Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 559 F.3d 1, 3 (1st Cir. 2009).

81

limited to incremental benefits, the cases in which BP cites for support discuss such a limitation
for allegations of co-authorship or contributions to the creation of a patented product rather than
state law claims aimed at unfair and deceptive conduct beyond the subject matter addressed by
patent law.503 Here, because it appears that Mabile’s LUTPA claim is aimed at preventing unethical
and deceptive business practices, rather than asserting a general property right in unpatented
technology, does not impose requirements that were inconsistent with federal law, and does not
serve as an obstacle to any Congressional objectives, this Court concludes that Mabile’s LUTPA
claim is also not preempted.
IV. Conclusion
For the reasons stated above, this Court grants BP’s motion to dismiss Mabile’s unjust
enrichment claim and denies BP’s motion to dismiss Mabile’s conversion claim and unfair trade
practices claim under LUTPA. In sum, the Court finds that Mabile’s unjust enrichment claim is
precluded by the availability of other remedies at law. Furthermore, the Court holds that Mabile’s
other state law claims are not preempted by federal patent law, and that Mabile has alleged
sufficient facts to state a claim for conversion and an unfair trade practices claim under LUTPA.
Accordingly,
IT IS HEREBY ORDERED that BP’s “Motion to Dismiss Plaintiff’s Amended
Complaint for Failure to State a Claim”504 is GRANTED IN PART and DENIED IN PART. The

503

See Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1379 (Fed. Cir. 2005) (finding that
plaintiff did not seek the incremental benefits over and above the benefits the public received when the plaintiff
published its technology in its patent application); Univ. of Colorado Found., Inc. v. Am. Cyanamid Co., 342 F.3d
1298, 1306 (Fed. Cir. 2003) (holding that an unjust enrichment claim for the unauthorized use of plaintiffs’
confidential research to secure a patent was not preempted because, inter alia, it was limited to incremental benefits
obtained by copying their research); Powell v. Home Depot U.S.A, Inc., No. 07-80435-CIV, 2010 WL 375796, at *5
(S.D. Fla. Jan. 26, 2010) (finding that counterclaim of co-authorship of a patent was preempted because it sought all
benefits the plaintiff had received rather than the incremental profits based on defendant’s contributions).
504

Rec. Doc. 30.

82

Court grants BP’s motion to dismiss Mabile’s unjust enrichment claim, and denies BP’s motion to
dismiss Mabile’s conversion and LUTPA claims.

22nd
NEW ORLEANS, LOUISIANA, this ________ day of September, 2016.

_________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

83