84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al
ORDER AND REASONS denying 295 and 298 Motions Entry of Final Judgment. Signed by Judge Sarah S. Vance on 11/14/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
84 LUMBER COMPANY
F.H. PASCHEN, S.N. NIELSEN &
ASSOCIATES, LLC, ET AL.
SECTION “R” (5)
ORDER AND REASONS
Plaintiff 84 Lumber Company moves for entry of final judgment as to
the Court’s May 16, 2017 and September 14, 2017 orders.1 For the following
reasons, the Court denies the motions.
This case arises out of two school construction projects in Louisiana.2
Defendant F.H. Paschen, S.N. Nielsen & Associates, LLC (Paschen) entered
into contracts to build an elementary school at the Mildred Osborne School
in New Orleans (Osborne Project) and a high school in South Plaquemines
Parish (South Plaquemines Project).3 Paschen also entered into a contract
R. Docs. 295, 298.
R. Doc. 28 at 2-3 ¶ 5.
Id. at 3 ¶ 5.
with the Plaquemines Parish School Board to build. 4 On both projects,
Paschen was the general contractor.5 Both projects were subject to the
provisions of the Louisiana Public Works Act (LPWA), La. R.S. § 38:2241, et
seq., and therefore each project required the general contractors to post
payment bonds before construction could begin.6 Defendants Continental
Casualty Company, Safeco Insurance Company of America, and Fidelity &
Deposit Company of Maryland (collectively, the Sureties) issued the required
Paschen subcontracted a portion of both projects to J & A Construction
Management Resources Company, Inc. (J & A). 8 J & A in turn subcontracted
a portion of its work on both projects to 84 Lumber. 9 84 Lumber alleges that
Paschen and J & A have failed to compensate it for its work on the projects.10
84 Lumber filed several statements of claim under the LPWA: one in
November 2011 for $3,507.16 in materials supplied on the Osborne Project,
and two in June 2012 for $1,850,600.48 in work performed on the Osborne
Id. at 2 ¶ 5.
Id. at 3 ¶ 6.
Id. at 3 ¶ 7.
Id. at 3 ¶ 9.
Id. at 3-4 ¶ 9.
and South Plaquemines Projects.11 Paschen and Continental later posted
release bonds for these statements of claim. 12
On July 5, 2012, 84 Lumber sued Paschen and the Sureties, alleging
that 84 Lumber was not paid in full for work performed on the Osborne and
South Plaquemines Projects.13 84 Lumber sued under the LPWA, seeking
payment on its June 2012 statements of claim from both Paschen and the
Sureties. 14 84 Lumber also brought a claim of unjust enrichment.15
February 5, 2013, 84 Lumber amended its complaint to add a breach of
contract claim and to seek payment for materials provided and extra work
performed on the projects. 16 84 Lumber again amended its complaint on
April 17, 2017, seeking recovery from the release bonds. 17
The Court granted summary judgment dismissing 84 Lumber’s initial
LPWA claims because the June 2012 statements of claim lacked proper
notice under Louisiana Revised Statutes § 38:2242(B).18 The Court also
granted summary judgment on and dismissed 84 Lumber’s unjust
See R. Doc. 296 at 2-3.
R. Doc. 249 at 1-2 ¶¶ 1-3.
R. Doc. 1.
Id. at 4-5 ¶¶ 13-14, 16.
Id. at 6 ¶ 18.
R. Doc. 28 at 4 ¶ 10, 6 ¶ 20.
R. Doc. 249.
R. Doc. 263 at 23.
enrichment claim. 19 Later, the Court granted judgment on the pleadings and
dismissed 84 Lumber’s release bond claim. 20 84 Lumber now moves for final
judgment as to these dismissed claims.
Federal Rule of Civil Procedure permits the Court to enter final
judgment as to some, but not all, claims if “there is no just reason for delay.”
Fed. R. Civ. P. 54(b). “One of the primary policies behind requiring a
justification for Rule 54(b) certification is to avoid piecemeal appeals.” PYCA
Indus. v. Harrison Cty. Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 (5th
Cir. 1996). Rule 54(b) judgments are not favored and should be awarded
only when necessary to avoid “hardship or injustice through delay,” and
“should not be entered routinely as a courtesy to counsel.” Id.
One factor the district court should consider is whether the appellate
court “would have to decide the same issues more than once even if there
were subsequent appeals.” H & W Indus., Inc. v. Formosa Plastics Corp.,
USA, 860 F.2d 172, 175 (5th Cir. 1988) (quoting Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 8 (1980)). The Court has dismissed all of 84 Lumber’s
Id. at 24.
R. Doc. 296.
Louisiana Public Works Act (LPWA) claims except for its $3,507.16 claim for
materials. The dismissed claims involve legal questions related to proper
notice under the LPWA, while the materials claim does not. Thus, the
appellate court would not have to decide the same issues more than once if
there were subsequent appeals.
Nonetheless, after weighing the appropriate factors, the Court finds
that certification is inappropriate in this case. 84 Lumber has not shown that
it would be prejudiced by a delay in entry of final judgment. A bench trial is
set for January 29, 2018.21 A delay of a few months, while inconvenient to
84 Lumber, does not indicate that this is the sort of “infrequent harsh case”
that Rule 54(b) was designed to address. Jasmin v. Dumas, 726 F.2d 242,
244 (5th Cir. 1984) (quoting Fed. R. Civ. P. 54 advisory committee’s note to
1946 amendment). Thus, the hardship or injustice 84 Lumber would suffer
by the delay of a few months in entering final judgment do not outweigh the
costs of piecemeal review.
R. Doc. 216.
For the foregoing reasons, the Court DENIES 84 Lumber’s motions for
entry of final judgment.
New Orleans, Louisiana, this _____ day of November, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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