Constantin Land Trust v. Epic Diving & Marine Services, LLC

Filing 20

ORDER and REASONS - For the reasons stated within document, IT IS ORDERED that defendant's motion to dismiss 16 is GRANTED to the extent that plaintiff's claim of conversion is dismissed. The remainder of the motion is DENIED. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/4/2012. (cab) Modified on 4/4/2012 to edit document type (cab).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CONSTANTIN LAND TRUST

CIVIL ACTION

VERSUS

NO. 12-259

EPIC DIVING AND MARINE
SERVICES, LLC

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION
Defendant, EPIC Diving & Marine Services, LLC (“EPIC”), filed a motion to
dismiss the petition (originally filed in state court) of plaintiff, Constantin Land Trust
(“Constantin”). Record Doc. No. 16. After defendant filed its motion, Constantin filed
a First Amending Petition for Damages. Record Doc. No. 17. Constantin then filed a
timely written opposition to EPIC’s motion to dismiss, arguing that its First Amending
Petition has rendered the motion moot. Record Doc. No. 18. EPIC received leave to file
a reply memorandum. Record Doc. Nos. 13, 14, 15.
All parties have now consented to proceed before a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). Record Doc. No. 11.
Having considered the written submissions of the parties, the record, and the
applicable law, IT IS ORDERED that defendant’s motion to dismiss is GRANTED IN
PART as to plaintiff’s claim of conversion and DENIED IN SUBSTANTIAL PART, as
follows.

ANALYSIS
A.

Legal Standard for a Motion to Dismiss

Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). In two
recent opinions, the United States Supreme Court clarified the standard for reviewing a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007). The Fifth Circuit has explained the Supreme
Court’s current standard as follows.
When reviewing a motion to dismiss, we must accept all
well-pleaded facts as true and view them in the light most favorable to the
non-moving party. However, “[f]actual allegations must be enough to raise
a right to relief above the speculative level.” “‘To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’” The Supreme
Court in Iqbal explained that Twombly promulgated a “two-pronged
approach” to determine whether a complaint states a plausible claim for
relief. First, we must identify those pleadings that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Legal
conclusions “must be supported by factual allegations.”
Upon identifying the well-pleaded factual allegations, we then
“assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.” “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” This is
a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.”

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Rhodes v. Prince, 360 F. App’x 555, 557-58 (5th Cir. 2010) (quoting Iqbal, 129 S. Ct.
at 1949, 1950; Twombly, 550 U.S. at 555; Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)) (citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996)).
The Supreme Court emphasized that “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to survive a motion to dismiss. Iqbal, 129 S. Ct. at 1949. The
facial “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads
facts that are merely consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id. (quotation omitted).
Post-Twombly, the Fifth Circuit has reiterated the familiar concept that motions
to dismiss for failure to state a claim are viewed with disfavor and are rarely granted.
Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm
Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)); Rodriguez v. Rutter, 310 F. App’x
623, 626 (5th Cir. 2009) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498 (5th Cir. 2000); Kaiser Alum. & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045,
1050 (5th Cir. 1982)).

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Ordinarily, “a court should not dismiss an action for failure to state a claim under
Rule 12(b)(6) without giving the Plaintiff an opportunity to amend.” Litson-Gruenber v.
JPMorgan Chase & Co., No. 7:09-cv-056-0, 2009 WL 4884426, at *6 (N.D. Tex. Dec.
16, 2009) (citing Hart v. Bayer Corp., 199 F.3d 239, 248 n. 6 (5th Cir. 2000)); accord
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.
2002); Linck v. Brownsville Navig. Dist., 4 F.3d 989, 1993 WL 360773, at *4 (5th Cir.
1993).
B.

Plaintiff Fails to State a Claim for Conversion

EPIC argues that Constantin’s petition fails to state a claim for conversion under
Louisiana law because the petition does not allege that defendant interfered with any of
plaintiff’s moveable property. Plaintiff argues in its opposition memorandum that its
trespass and negligence claims should not be dismissed, but does not present any
argument in opposition to dismissal of its claim for conversion. Accordingly, this portion
of defendant’s motion is deemed to be unopposed, and I find that it has merit.
Constantin’s original petition describes the “property known as the Texaco Dock”
by a legal description of a piece of immovable property (the “Texaco Dock”). Record
Doc. No. 1-1, at ¶ 3. The First Amending Petition deletes the allegation in paragraph 6
of the original petition that EPIC “committed a trespass and/or conversion of” the Texaco
Dock, Record Doc. No. 1-1 (emphasis added), so that the paragraph as amended states

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only that defendant’s actions “constitute a trespass.” Record Doc. No. 17. However, the
First Amending Petition also “reavers all portions of its original petition not otherwise
amended herein.” Paragraphs 4, 7 and 9 of the original petition, which were not amended
and therefore are still extant in this action, refer to EPIC having “converted” plaintiff’s
property.
EPIC’s motion to dismiss is granted to the extent that Constantin attempts to state
a claim for conversion. Under Louisiana law, conversion only applies to movable
property. Conversion of a moveable, also known as a chattel, occurs when
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. . . . The conversion action is predicated on the
fault of the defendant and directed to the recovery of the movable or, in the
alternative, the plaintiff may demand compensation.
Dual Drilling Co. v. Mills Equip. Invs., Inc., 721 So. 2d 853, 857 (La. 1998) (citation
omitted) (emphasis added); accord MCI Commc’ns Servs., Inc. v. Hagan, 74 So. 3d
1148, 1154 n.8 (La. 2011).
Constantin’s petition refers only to immovable property. Although plaintiff failed
to delete some of the references to “converting” in its First Amending Petition, its
amendment to paragraph 6 indicates its apparent intent to delete its cause of action for
conversion in response to defendant’s motion to dismiss. In the absence of any allegation
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that EPIC possessed or damaged any of plaintiff’s movable property and in the absence
of any opposition by Constantin to defendant’s motion to dismiss this claim, the petition,
as amended, fails to state a claim for conversion. Accordingly, that claim is dismissed.
C.

The Remainder of the Motion Is Denied

EPIC argues in its motion to dismiss that the original petition is defective because
it fails to state the dates during which EPIC’s allegedly unlawful conduct occurred. That
contention has been mooted by Constantin’s First Amending Petition, which states that
EPIC’s allegedly offending conduct “began in April 2008 and continued through January
of 2012.” Record Doc. No. 17, at ¶ 2. Similarly, EPIC’s original contention that
plaintiff’s claims are premature because plaintiff’s petition indicates that a sublease is
still in effect between EPIC and Pitre Industries, LLC, which allegedly had leased the
Texaco Dock from Constantin, has apparently been mooted by the allegation in the First
Amending Petition that EPIC’s offending conduct ended after January 2012.
Constantin also amended its petition to add a claim of negligence. Defendant’s
motion to dismiss and its reply memorandum do not address that claim. Accordingly,
whether the First Amending Petition states a claim of negligence upon which relief can
be granted is not before this court and is not addressed by the instant order.
Finally, EPIC seeks to dismiss plaintiff’s claim of trespass. The petition, as
amended, alleges that, between April 2008 and January 2010, EPIC used, occupied and

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dumped materials on the Texaco Dock, including the bulkhead and landside dock,
without any legal right or authority from Constantin, which was allegedly the owner of
public record. Plaintiff alleges that EPIC
had actual knowledge of a [Constantin] and Pitre Industries, LLC lease
concerning the Texaco Dock and its provision requiring written agreement
or authorization from [Constantin] for sublease approval. Defendant
sought no such authorization . . . . Instead, defendant colluded with Pitre
Industries, LLC to intentionally and/or willfully circumvent the provision
by entering into a “Service Agreement” which, although invalid, in reality
constitutes a sublease.
Record Doc. No. 17, at ¶ 5(A).
Alternatively, plaintiff alleges that EPIC was negligent to the extent that it relied
on permission from Pitre Industries, LLC to use the Texaco Dock. Constantin also
asserts that EPIC negligently used and damaged the Texaco Dock during the year prior
the filing of the instant lawsuit. Constantin alleges that EPIC paid money to Pitre
Industries, Inc., Pitre Rae Partnership (all Pitre entities named in the original and
amended petitions are hereinafter referred to collectively as “Pitre”) or another unknown
entity for use of the Texaco Dock and that EPIC trespassed on the Texaco Dock from
April 2008 through January 2012. Plaintiff further alleges that no recorded document
establishes any right of any Pitre entity, or any other entity, to lease or sublease the
Texaco Dock, but also asserts in the same paragraph that EPIC was negligent in its

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“failure to review the lease about which it had actual knowledge and/or public record
notice.” Id. at ¶ 8 (emphasis added).
EPIC contends that Constantin cannot state a claim for trespass against it as the
alleged sublessee of Pitre because Constantin allegedly had a lease with Pitre. Citing
Louisiana Civil Code articles 2687 and 2692, EPIC argues that Constantin cannot recover
from EPIC unless Constantin alleges that EPIC was the lessee of the Texaco Dock, rather
than a sublessee.
Article 2687 provides that “[t]he lessee is liable for damage to the thing caused by
his fault or that of a person who, with his consent, is on the premises or uses the thing.”
La. Civ. Code art. 2687 (emphasis added). Article 2692 provides that “[t]he lessee is
bound to repair damage to the thing caused by his fault or that of persons who, with his
consent, are on the premises or use the thing, and to repair any deterioration resulting
from his or their use to the extent it exceeds the normal or agreed use of the thing.” Id.
art. 2692 (emphasis added).
Under Louisiana law, “[a] civil trespass is defined as the unlawful physical
invasion of the property or possession of another. And a trespasser has been defined as
one who goes upon the property of another without the other’s consent.” Pepper v.
Triplet, 864 So. 2d 181, 197 (La. 2004) (quotation and citations omitted).

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Accepting as true all well-pleaded facts of the petition, as amended, and viewing
them in the light most favorable to plaintiff, I cannot find on this record that Constantin
fails to state a claim for trespass against defendant. EPIC’s alleged conduct facially falls
within the definition of trespass. It is not clear from the petition whether a written or
unwritten lease existed between Constantin and EPIC and whether, if a written lease
existed, it was recorded. The petition alleges that EPIC had actual knowledge of the
lease between Pitre and Constantin, which required Constantin’s approval to sublease,
and that EPIC had both an invalid “Services Agreement” and a sublease with Pitre. The
complete terms of all of those agreements are unknown. The case cited by EPIC, Sauer
v. Toye, 616 So. 2d 207 (La. App. 5th Cir. 1993), is not on point because it involved an
eviction proceeding, which is a summary proceeding, and because both the written lease
and the written sublease were submitted into evidence. Trespass was not an issue in that
case.
In the instant case, the terms and validity of any leases, subleases or other
agreements, written or oral, and the precise nature of the legal relationships between
plaintiff, defendant and the non-party, Pitre, remain to be established by evidence. Only
upon determination of those relationships can it be determined whether plaintiff can
establish a claim of trespass against EPIC. On the face of the petition, however,
Constantin has stated a plausible claim for relief.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant’s motion to dismiss
is GRANTED to the extent that plaintiff’s claim of conversion is dismissed. The
remainder of the motion is DENIED.

4th
New Orleans, Louisiana, this _________ day of April, 2012.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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