NOLA Fine Art, Inc. et al v. Ducks Unlimited, Inc.

Filing 73

ORDER AND REASONS - GRANTING Ducks Unlimited's motions for summary judgment on plaintiffs' detrimental reliance 38 unfair trade practices 40 and fraud claims 39 . The Court DENIES Ducks Unlimited's motion for summary judgment 37 on plaintiffs' breach of contract claim. The Court also denies Ducks Unlimited's motion 58 to strike plaintiffs' summary judgment exhibits.. Signed by Chief Judge Sarah S. Vance on 2/12/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NOLA FINE ART, INC. AND
MICHAEL HUNT

CIVIL ACTION

VERSUS

NO: 13-4904

DUCKS UNLIMITED, INC.

SECTION: R(4)

ORDER AND REASONS
Before the Court is defendant, Ducks Unlimited, Inc.'s
motions for summary judgment on plaintiffs' contract,1 detrimental
reliance,2 unfair trade practices,3 and fraud4 claims.

Also before

the Court is Ducks Unlimited's motion to strike two of plaintiffs'
summary judgment exhibits.5

For the following reasons, the Court

grants

motions

Ducks

Unlimited's

for

summary

judgment

on

plaintiffs' detrimental reliance, unfair trade practices, and fraud
claims.

The Court denies Ducks Unlimited's motion for summary

judgment on plaintiffs' breach of contract claim.

The Court also

denies Ducks Unlimited's motion to strike plaintiffs' summary
judgment exhibits.

1

R. Doc. 37.

2

R. Doc. 38.

3

R. Doc. 39.

4

R. Doc. 40.

5

R. Doc. 50.

I.

BACKGROUND
This suit arises from a failed charitable project intended to

raise money for the restoration of Cat Island, a small island off
the coast of Southeast Louisiana.

Plaquemines Parish Coastal

Director P.J. Hahn spearheaded the project and met with plaintiff
Michael Hunt in late May or early June of 2012 to discuss Hunt's
interest in participating in the project.6

Hunt, the artist-owner

of NOLA Fine Art, Inc., agreed to participate in the project.
Specifically, Hunt agreed to paint, sell, and ship a "Cat Island
Poster" and donate 20% of the proceeds to the restoration project.7
Although the primary goal of the project was to raise funds to
benefit Cat Island, Hunt anticipated that the project would also
generate substantial profits.8
After securing plaintiffs' participation, Hahn approached
Ducks Unlimited to gauge their interest in lending their name,
logo, and reputation to the project.9

In early June, Hahn and Hunt

met with Ducks Unlimited's State Chairman, Robert Garrity, Jr., to
discuss Ducks Unlimited's participation in the project.

6

R. Doc. 1 at 2.

7

The

Id. at 3-4.

8

Id. at 4-5 ("NOLA Fine Art anticipated that such a project
would sell out quickly, be profitable, charitable, and earn
favorable publicity for him by having generated the donated funds
from the sale of his art.").
9

R. Doc. 37-3 at 3.
2

parties dispute centers on the extent to which Garrity committed
Ducks

Unlimited

to

the

project

during

this

meeting.

Ducks

Unlimited concedes that Garrity authorized Hunt to use the Ducks
Unlimited logo on select editions of the Cat Island Poster in
exchange for a 20% licensing fee.10

Ducks Unlimited contends that

this is where the agreement ends.11

Plaintiffs, on the other hand,

argue that Garrity agreed to donate a portion of Ducks Unlimited's
20% licensing revenues to the Cat Island project and further agreed
to send "email blasts" advertising the prints to Ducks Unlimited's
650,000 members nationwide.12 The parties did not execute a written
contract.
Over the next month and a half, Hunt finished the project and
began to advertise the prints. Ducks Unlimited also advertised the
prints in its August 2012 "Louisiana DU News" publication.13

By

mid-August, however, Hunt became concerned about Ducks Unlimited's

10

R. Doc. 37-3 at 3.

11

Id.

12

R. Doc. 48-2 at 2 ("Ducks Unlimited's sole obligations
under the parties' agreement was that it was to actively and
regularly advertise the prints to its over 650,000 members and it
was to turn over a portion of its percentage to the restoration
of Cat Island.").
13

R. Doc. 48-6. The Newsletter reads, in pertinent part:
"The 'Cat Island Project' print was commissioned by DU President
John Newman and DU State Chairman, Robert Garrity and was
unveiled at the 2012 Louisiana DU State Convention in New
Orleans, LA. These prints are now available for sale with a
portion of the proceeds going towards the restoration of the Cat
Islands, a nesting habitat of the Brown Pelican."
3

commitment to the project.

On August 20, 2012, Hunt met with

Garrity and Hahn to address his concerns.
recorded.14
concerns

The conversation was

Although the meeting focused on Ducks Unlimited's

regarding

references

to

the

BP

Oil

Spill

in

the

promotional material, Garrity also confirmed that Ducks Unlimited's
licensing fees would go to general "coastal restoration" rather
than the Cat Island restoration project in particular.15

Garrity

also stated that Ducks Unlimited would not send any national emails
advertising the Cat Island poster.16
Unsatisfied with Ducks Unlimited's performance, Hunt withdrew
from the project, refused to sell any additional prints, and
brought

this

suit

alleging

breach

of

contract,

detrimental

reliance, unfair trade practices, and fraud under Louisiana law.17
Ducks Unlimited now moves for summary judgment on all four of
plaintiffs' claims.18

Ducks Unlimited also moves to strike two of

plaintiffs' summary judgment exhibits.19

14

R. Doc. 48-5.

15

Id. at 16. Garrity confirmed Ducks Unlimited's position
in his deposition. R. Doc. 48-8 at 5.
16

state.

R. Doc. 48-5 at 29 ("[W]e can do web blasts from the
We can't do 'em nationally.").

17

R. Doc. 1.

18

R. Docs. 37-40.

19

R. Doc. 50.
4

II.

LEGAL STANDARD
Summary judgment is warranted when "the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the

Court

considers

"all

of

the

evidence

in

the

record

but

refrain[s] from making credibility determinations or weighing the
evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co.,

530

inferences

F.3d
are

395,
drawn

398–99
in

(5th

favor

Cir.

of

the

2008).

All

nonmoving

reasonable
party,

but

"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to either
support or defeat a motion for summary judgment." Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also
Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would 'entitle it to a directed verdict
if the evidence went uncontroverted at trial.'" Int'l Shortstop,
Inc. v. Rally's, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991). The
nonmoving party can then defeat the motion by either countering
with evidence sufficient to demonstrate the existence of a genuine
5

dispute of material fact, or “showing that the moving party's
evidence is so sheer that it may not persuade the reasonable
fact-finder to return a verdict in favor of the moving party." Id.
at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075
("Rule 56 'mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.'" (quoting Celotex, 477 U.S. at
322)).

6

III. DISCUSSION
a.

Ducks Unlimited's Motion to Strike Plaintiffs' Summary
Judgment Exhibits

Ducks Unlimited moves to strike two of plaintiffs' summary
judgment exhibits.20

First, Ducks Unlimited moves to strike an

email authored by P.J. Hahn arguing that it is inadmissible hearsay
and that plaintiffs have not properly authenticated the email.21
Second, Ducks Unlimited moves to strike the transcript of a
recorded conversation between Michael Hunt, Robert Garrity, and
P.J. Hahn arguing that transcript was not certified in accordance
with Federal Rule of Civil Procedure 30(f)(1).22

The Court finds

Ducks Unlimited's arguments to be without merit.
Ducks Unlimited first argues that the Hahn email is not
competent summary judgment evidence because it is inadmissible
hearsay.

Hahn's email, dated August 10, 2012, is addressed to

Michael Patterson, Ducks Unlimited's 2012 Publicity Chairman.23
Hahn states, inter alia, that "our agreement was to promote the
project through the media to jump start the interest, and then get
email blasts to DU members (All members) to produce sales."24 Ducks

20

R. Doc. 50.

21

R. Docs. 47-3, 48-3, and 49-3.

22

R. Docs. 47-5, 48-5, and 49-5.

23

R. Doc. 47-3 at 3.
also copied on the email.
24

Michael Hunt and Robert Garrity were

Id.
7

Unlimited contends that plaintiffs offer the email to prove the
terms of the alleged contract, and that the email is therefore
inadmissible hearsay.25

Although not admissible to prove the truth

of the contents, the Court finds the Hahn email admissible for the
non-hearsay purpose of demonstrating that Ducks Unlimited was aware
of

plaintiffs'

interpretation

of

the

alleged

contract.

See

Imperial Trading Co., Inc. v. Travelers Property Cas. Co. of Am.,
CIV. A. No. 06-4262, 2009 WL 2382787, at *1 (E.D. La. July 31,
2009)

(email

admissible

demonstrating

that

contained

the

in

for

defendant
email").

"the

non-hearsay

was

informed

The

Court

of

also

purpose

the

of

information

overrules

Ducks

Unlimited's objection to the Hahn email on authenticity grounds.
As an initial matter, Michael Hunt, a recipient of the email,
provided an affidavit authenticating the email.26

Love v. Nat'l

Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000) ("[E]vidence may be
authenticated by testimony of a witness with knowledge that a
matter is what it is claimed to be.").

Moreover, Ducks Unlimited

produced the email to plaintiffs in discovery and therefore cannot
seriously dispute the email's authenticity. See John Paul Mitchell
Sys. v. Quality King Distribution, Inc., 106 F. Supp. 2d 462, 472
(S.D.N.Y. 2000) (a defendant's act of producing documents in
response to a request for production implicitly authenticates the

25

R. Doc. 50-2 at 2.

26

R. Doc. 48-2 at 4.
8

documents produced).
The Court likewise overrules Ducks Unlimited's objection to
the transcript of the recorded conversation between Hunt, Hahn, and
Garrity.27

Ducks Unlimited does not dispute the accuracy of the

transcript,

but

instead

argues

that

plaintiffs

failed

to

authenticate the transcript and failed to have the transcript
certified in accordance with Federal Rule of Civil Procedure
30(f)(1).28

As an initial matter, Rule 30(f)(1), by its express

terms, applies only to "depositions by oral examination," and Ducks
Unlimited has not provided the Court with any authority for
applying

the

rule's

deposition context.

certification

requirement

Fed. R. Civ. P. 30.

outside

the

Absent such authority,

the Court declines Ducks Unlimited's invitation to expand the
certification requirement beyond the scope contemplated by the
rule.

The Court likewise overrules Ducks Unlimited's objection

regarding
transcript.

plaintiffs'

alleged

failure

to

authenticate

the

Like the Hahn email, Ducks Unlimited produced the

transcript in discovery and Michael Hunt, a party to the recorded
conversation, provided an affidavit authenticating the transcript.29
Thus, the Court overrules Ducks Unlimited's failure to authenticate
objection on the same grounds.

See Love, 230 F.3d at 776; John

27

R. Docs. 47-5, 48-5, and 49-5.

28

R. Doc. 50-2 at 3.

29

R. Doc. 48-2 at 4.
9

Paul Mitchell Sys., 106 F. Supp. 2d at 472.
b.

Ducks Unlimited's Summary Judgment Motions
i.

Plaintiffs' Contract Claim

Ducks Unlimited moves for summary judgment on plaintiffs'
breach of contract claim arguing (1) that plaintiffs failed to
proffer sufficient evidence to create a question of fact as to
whether the parties formed a contract, (2) that Louisiana law
requires the contract to be in writing because the alleged contract
is a stipulation pour autrui, and (3) that Hurricane Isaac's
landfall

was

a

resolutory

condition

that

terminated

Ducks

Unlimited's obligations under the alleged contract. The Court will
address Ducks Unlimited's arguments in turn.
Ducks Unlimited first argues that plaintiffs failed to proffer
sufficient evidence to create a question of fact as to whether the
parties formed a contract.

"A party who demands performance of an

obligation must prove the existence of the obligation."
Code art. 1831.

La. Civ.

A contract is formed by the consent of the parties

established through offer and acceptance, and "[u]nless the law
prescribes a certain formality for the intended contract, offer and
acceptance may be made orally, in writing, or by action or inaction
that under the circumstances is clearly indicative of consent." La
Civ. Code art. 1927. However, an oral contract valued at more than
$500 "must be proved by at least one credible witness and other
corroborating circumstances."

La. Civ. Code art. 1846.

10

Although

"[t]he plaintiff himself may serve as the witness to establish the
existence of the oral contract," the "corroborating circumstances"
must come from a source other than the plaintiff.

Suire v.

Lafayette City-Parish Consol. Gov't, 907 So. 2d 37, 58 (La. 2005).
The corroborating circumstances need only be general in nature;
"independent
required."

proof

of

every

detail

of

the

agreement

is

not

Id. (citing Kilpatrick v. Kilpatrick, 660 So. 2d 182,

185 (La. App. 2d Cir. 1995)).
Here, plaintiffs have proffered sufficient evidence to create
a question of fact as to whether the parties entered into a
contract.

Michael Hunt provided an affidavit which states that

Robert Garrity contracted on Ducks Unlimited's behalf and agreed to
donate a portion of Ducks Unlimited's licensing fee proceeds to the
Cat Island restoration project and further agreed to send email
advertisements to its 650,000 members nationwide.30
"credible witness" under Article 1846.
Plaintiffs

have

also

provided

Hunt is a

Suire, 907 So.2d at 58.

evidence

that

"corroborating circumstances" under Article 1846.

qualifies

as

For example,

Ducks Unlimited's August 2012 "Louisiana DU News" publication tends
to

support

contract.31

plaintiffs'

characterization

of

the

parties'

The Newsletter provides in pertinent part:

The "Cat Island Project" print was commissioned by DU

30

R. Doc. 49-2 at 2.

31

R. Doc. 48-6 at 8.
11

oral

President John Newman and DU State Chairman, Robert
Garrity and was unveiled at the 2012 Louisiana DU State
Convention in New Orleans, LA.
These prints are now
available for sale with a portion of the proceeds going
towards the restoration of the Cat Islands, a nesting
habitat of the Brown Pelican.32
Not

only

does

Ducks

Unlimited's

own

publication

support

the

existence of a contract between the parties, but it also supports
plaintiffs' contention that Ducks Unlimited agreed to donate a
portion of its licensing fees to the Cat Island restoration
project.

This is sufficient under Article 1846.

See Harang v.

Schwartz, CIV. A. No. 13-58, 2014 WL 4084939, at *8 (E.D. La. Aug.
15,

2014)

(denying

judgment

as

a

matter

of

law

because

"corroborating circumstances need only be general in nature");
Robert Hale, III v. M.J.J.K. LLC, CIV. A. No. 12-1515, 2013 WL
6835987, at *3 (E.D. La. Dec. 23, 2013) (denying summary judgment
because "[w]hether a plaintiff has offered sufficient corroborating
evidence is a question of fact").

Accordingly, the Court finds

that plaintiffs have proffered sufficient evidence to create a
question of fact as to the existence and terms of a contract
between the parties.
Ducks Unlimited next argues that, if there was a contract
between the parties, it was for the benefit of Cat Island, and
Louisiana law requires third party beneficiary contracts, known as
stipulations pour autrui, to be in writing.

32

Id.
12

Contrary to Ducks

Unlimited's assertion, Louisiana law does not require third party
beneficiary contracts to be in writing.

Joseph v. Hosp. Serv.

Dist. No. 2 of Parish of St. Mary, 939 So. 2d 1206, 1215 (La. 2006)
("Review of the former articles, as well as the current articles
related to a third party beneficiary contract, indicates that there
is no statutory requirement that the stipulation pour autrui be in
writing.").
parties

Thus, even if the Court were to assume that the

agreement

constitutes

a

stipulation

pour

autrui,

the

Louisiana Supreme Court has expressly held that there is "no
general requirement that stipulations pour autrui be in writing."
Id. at 1215 n.13.

Accordingly, the Court finds Ducks Unlimited's

second argument to be without merit.
Ducks Unlimited's final argument is that Hurricane Isaac's
landfall

on

August

28,

2012

fulfilled

an

implied

resolutory

condition thereby terminating Ducks Unlimited's obligations under
the contract.33
viability

of

In other words, Ducks Unlimited argues that the
the

project

was

an

implied

obligations under the alleged contract.

condition

of

its

Ducks Unlimited further

contends that Hurricane Isaac rendered the Cat Island project
infeasible and thereby terminated Ducks Unlimited's obligations.
To support this theory Ducks Unlimited provides the affidavit of
P.J. Hahn which states that although Hahn "was initially hopeful
that the Cat Island restoration plan . . . would remain viable

33

R. Doc. 37-3 at 12.
13

after Hurricane Isaac," Hahn later recognized that Hurricane Isaac
rendered Cat Island unsalvageable.34
Although a proponent of a contract has the burden to prove the
contract's existence, "[a] party who asserts that an obligation is
null, or that it has been modified or extinguished, must prove the
facts

or

acts

giving

rise

to

the

nullity,

modification,

or

extinction" by a preponderance of the evidence. La. Civ. Code art.
1831.

See also Bell v. Badger, Inc., 420 So. 2d 1197, 1198-99 (La.

App. 5th Cir. 1982) ("A litigant who pleads extinction of an
obligation

bears

the

burden

of

preponderance of the evidence.").

proving

that

defense

by

a

The Court finds that Ducks

Unlimited has failed to carry this burden.

Indeed, the only

evidence Ducks Unlimited provides to support its position is the
affidavit of P.J. Hahn.35
Isaac

ultimately

Although Hahn concludes that Hurricane

rendered

the

Cat

Island

restoration

project

"unfeasible," neither Hahn nor Ducks Unlimited provides any factual
support for this position.

Hurricane Isaac's effect on Cat Island

is a factual determination that the Court is not prepared to make
on

such

scant

evidence.

Cf.

Citadel

Builders,

LLC

v.

Transcontinental Realty Inv., Inc., CIV. A. No. 06-7719, 2007 WL
1805666, at *4 (E.D. La. June 22, 2007) ("The Court will not rule
as

a

matter

of

law

that

34

R. Doc. 37-4 at 2.

35

Katrina

R. Doc. 37-4.
14

and

her

aftermath

are

not

fortuitous events under Louisiana law.").
The Court also finds that there is a question of fact as to
whether

Ducks

Unlimited

breached

Hurricane Isaac's landfall.

the

alleged

contract

before

Hunt met with Garrity and Hahn on

August 20, 2012, eight days before Hurricane Isaac made landfall.36
At this meeting, Garrity informed Hunt that Ducks Unlimited would
not earmark any of its 20% licensing revenues for the Cat Island
restoration project but would instead use the money for "coastal
restoration" in general.37

Garrity also informed Hunt that Ducks

Unlimited would not send out emails to their national membership.38
Thus, even assuming that Hurricane Isaac's landfall fulfilled the
alleged resolutory condition, the Court finds that there is a
question of fact as to whether Ducks Unlimited breached the alleged
agreement before the hurricane struck.

See Schaumburg v. State

Farm Mut. Auto. Ins. Co., 421 F. App'x 434, 438 n.4 (5th Cir. 2011)
("Louisiana recognizes the concept of anticipatory breach.")
For

all

the

foregoing

reasons,

the

Court

denies

Ducks

Unlimited's motion for summary judgment on plaintiffs' breach of
contract claim.
ii.

Plaintiffs' Detrimental Reliance Claim

Ducks Unlimited next moves for summary judgment on plaintiffs'

36

R. Doc. 49-5.

37

Id. at 16.

38

Id. at 29.
15

detrimental reliance claim. Ducks Unlimited argues that plaintiffs
failed to provide evidence demonstrating that plaintiffs relied on
Ducks Unlimited's alleged promises to their detriment.39
Louisiana

Civil

Code

detrimental reliance claim.

article

1967

governs

plaintiffs'

That article provides, in pertinent

part:
A party may be obligated by a promise when he knew or
should have known that the promise would induce the other
party to rely on it to his detriment and the other party
was reasonable in so relying. Recovery may be limited to
the expenses incurred or the damages suffered as a result
of the promisee's reliance on the promise. Reliance on
a gratuitous promise made without required formalities is
not reasonable.40
Accordingly,

to

succeed

on

a

detrimental

reliance

claim,

a

plaintiff must prove: (1) that defendant made a representation; (2)
that plaintiff justifiably relied on the representation; and (3)
that plaintiff changed its position to its detriment based on that
reliance.

See Gangi Seafood Inc. v. ADT Sec. Services, Inc., 353

F. Supp. 2d 710, 715 (E.D. La. 2004).
Although plaintiffs have provided evidence that Garrity made
the alleged promises, the Court finds that plaintiffs have failed
to provide any evidence demonstrating a change in their position
based on their reliance on Ducks Unlimited's alleged promises.
Indeed, plaintiffs spend the majority of their opposition quoting

39

R. Doc. 38-3 at 4.

40

La. Civ. Code art. 1967.
16

from allegations in the complaint:
Plaintiffs allege in their Complaint that Ducks Unlimited
commissioned the prints and that in return Ducks
Unlimited obligated itself to donate its 20% interest in
the proceeds directly to the Cat Island project for the
restoration of Cat Island. The Complaint further states
as a result of Nola Fine Arts Commitments that: "In
return, DU would market and promote the prints to their
650,000 members nationally" and take other steps to
promote the sale of the prints and the goals of the
project. The Complaint further states that Hunt would
have to postpone other projects to focus his efforts and
the efforts on the prints and that marketing would have
to be swift and massive. "Nola Fine Arts set aside two
pending projects and focused on the Cat Island project
exclusively.41
It is well-settled, however, that to survive summary judgment a
plaintiff must do more than rest on allegations contained in the
complaint. Celotex, 477 U.S. at 325; see also Weyant v. Acceptance
Ins. Co., 917 F.2d 209, 212 (5th Cir. 1990) (to survive summary
judgment, "the party opposing the motion may not sit on its hands,
complacently relying upon the pleadings").
Notwithstanding this failure, plaintiffs do make the general
assertion that the "record reflects a genuine issue of material
fact as to the nature of the promises, the reliance upon them, and
the detriment caused to the plaintiff," and cite every exhibit they
attach to the pleading in support.42

Although the Court is under

no obligation "to sift through the record in search of evidence to
support a party's opposition to summary judgment," Ragas v. Tenn.

41

R. Doc. 49 at 3.

42

Id. at 3-4.
17

Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998), the Court has
reviewed plaintiffs' exhibits and finds no factual support for
their contention. Indeed, the only time reliance is even mentioned
in any of the exhibits is in the affidavit of Michael Hunt.

Hunt

provides that "Ducks Unlimited was aware that I would have to
forego other opportunities in order to participate in this project"
and that he "relied on these promises from DU."43
As an initial matter, "affidavits setting forth ultimate or
conclusory facts . . . are insufficient to either support or defeat
a motion for summary judgment."

Galindo v. Precision Am. Corp.,

754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotations omitted);
see also Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631,
639 (5th Cir. 2002).

Thus, Hunt's assertion that he "relied on

these promises from DU" is insufficient to defeat Ducks Unlimited's
motion for summary judgment.

Moreover, Hunt's assertion that he

had to forego other work to participate in the project does not
demonstrate that he changed his position in reliance on Ducks
Unlimited's alleged promises.

Plaintiffs readily admit that they

committed to the project before Ducks Unlimited became involved,44
and plaintiffs have provided no evidence or testimony demonstrating

43

R. Doc. 49-2 at 2.

44

R. Doc. 1 at 6 ("Prior to DU's involvement, NOLA Fine
Arts' original plan was to produce 1000 prints . . . and market
these Celebrity Edition prints to his collectors and general
public without the DU logo for $250 each, generating a profit for
NOLA Fine Art.").
18

a change in position after Ducks Unlimited made the alleged
promises.

To survive summary judgment, plaintiffs are required to

offer competent evidence demonstrating that they suffered damages
as

a

result

promises.

of

their

reliance

on

Ducks

Unlimited's

alleged

See Jackson v. Lare, 779 So. 2d 808, 813 (La. App. 2d

Cir. 2000) ("If the plaintiff suffered no damage in reliance on a
promise, there was no detrimental reliance.").

As plaintiffs have

not provided the Court with any such evidence,

Ducks Unlimited is

entitled to summary judgment.

See, e.g., City of Bossier City v.

Camp Dresser & McKee Inc., CIV. A. No. 11-0472, 2014 WL 4660791, at
*4 (W.D. La. Sept. 16, 2014) (granting summary judgment where
plaintiff failed to provide evidence demonstrating "a change in
position to one's detriment because of the reliance").
For

the

foregoing

reasons,

Ducks

Unlimited's

motion

for

summary judgment on plaintiffs' detrimental reliance claim is
granted.
iii. Plaintiffs' Unfair Trade Practices Claim
Plaintiffs also allege that Ducks Unlimited's conduct violated
the Louisiana Unfair Trade Practices Act ("LUPTA").

See La. Rev.

Stat. § 51:1405 ("Unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce
are hereby declared unlawful."). Ducks Unlimited moves for summary
judgment on the LUPTA claim arguing that plaintiffs lack standing
to bring a LUPTA claim and that plaintiffs have failed to prove

19

that Ducks Unlimited engaged in conduct proscribed by the act.45
The Court will address these arguments in turn.
Ducks Unlimited first argues that LUPTA claims are limited to
individual consumers or business competitors, and that plaintiffs
do not fit into either category.

Although the Fifth Circuit

previously limited LUPTA's private right of action to individual
consumers or business competitors, Orthopedic & Sports Injury
Clinic v. Wang Labs., Inc., 922 F.2d 220, 226 (5th Cir. 1991), the
Louisiana Supreme Court has since clarified that LUPTA includes no
such limitation.

Cheramie Servs., Inc. v. Shell Deepwater Prod.,

Inc., 35 So. 3d 1053, 1057 (La. 2010) ("LUPTA grants a right of
action

to

any

ascertainable

person,
loss

.

natural
.

.

.

or

juridical,

Although

who

business

suffers

consumers

an
and

competitors are included in the group afforded this private right
of action, they are not its exclusive members."). See also Burgers
v. Bickford, CIV. A. No. 12-2009, 2014 WL 4186757, at *3 (E.D. La.
Aug. 22, 2014) (applying the Cheramie Servs. standard rather than
"older Fifth Circuit law on the issue"). Because plaintiffs allege
that they have suffered an ascertainable loss as a result of Ducks
Unlimited's "unfair or deceptive acts," the Court finds that
plaintiffs have standing to bring a LUPTA claim.
Ducks Unlimited next argues that even if plaintiffs have
standing to bring a LUPTA claim, they have nevertheless failed to

45

R. Doc. 40-3.
20

demonstrate that Ducks Unlimited engaged in conduct proscribed by
the act.

The Court agrees.

To succeed on a LUPTA claim, a plaintiff must show that the
defendant engaged in conduct that "offends established public
policy and

. . . is immoral, unethical, oppressive, unscrupulous,

or substantially injurious."

Cheramie Servs., 35 So. 3d at 1059

(internal quotations omitted).

What constitutes an unfair trade

violation is determined on a case-by-case basis.

Id.

"The range

of prohibited practices under LUPTA is extremely narrow," however,
and there is "a great deal of daylight between a breach of contract
claim and the egregious behavior the statute proscribes." Cargill,
Inc. v. Degesch Am., Inc., 875 F. Supp. 2d 667, 676-77 (E.D. La.
2012) (citing Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422
(5th Cir. 1993)).

LUPTA does not provide an alternate remedy for

a breach of contract claim.
citations omitted).

Turner, 989 F.2d at 1422 (internal

Indeed, "only egregious actions involving

elements of fraud, misrepresentation, deception, or other unethical
conduct will be sanctioned based on LUPTA," Cheramie Servs., 35 So.
3d at 1060, and this "egregiousness" often involves "the breach of
a special relationship of trust."

Cargill, 875 F. Supp. 2d at 677.

Plaintiffs contend that Turner is inapposite because Ducks
Unlimited engaged in "unethical, unscrupulous, and substantially
injurious behavior in addition to breaching the contract."46
46

R. Doc. 47 at 12.
21

In

support

of

this

position,

plaintiffs

argue

that:

(1)

Ducks

Unlimited deceived plaintiffs and the public when Ducks Unlimited
promised they would donate a portion of their licensing fees to the
Cat Island restoration project, but later reneged on this promise;
(2)

Ducks

promised

Unlimited
they

would

deceived

plaintiffs

advertise

the

when

prints

to

Ducks
their

Unlimited
national

membership, but failed to do so; and (3) Ducks Unlimited was
motivated to breach the contract by an improper desire to appease
BP.47

This argument is merely a recitation of plaintiffs' breach

of contract claim.48

It is no different than asserting that

plaintiffs expected Ducks Unlimited to perform under the contract,
and it did not. Plaintiffs cannot manufacture a LUPTA violation by
simply adding the words "deceit" and "misrepresentation" to their
contract claim.

See Shaw Indus. v. Brett, 884 F. Supp. 1054, 1058

(M.D. La. 1995) (finding that "the relationship between the parties
and the nature of the disagreement . . . [was] more analogous to a
breach of contract dispute than one involving unfair or deceptive
acts," despite plaintiff's allegation of defendant's "deceitful,
coercive,

manipulative,

and

intentional

misrepresentations").

Plaintiffs' allegation that Ducks Unlimited was motivated to breach

47

Id. at 12-17.

48

R. Doc. 47-2 ("Ducks Unlimited's sole obligations under
the parties' agreement was that it was to actively and regularly
advertise the prints to its over 650,000 members and it was to
turn over a portion of its percentage to the restoration of Cat
Island.").
22

the alleged contract by concerns that they would lose funding from
BP does not alter this analysis.

See Rogers v. Brooks, 122 F.

App'x 729, 733 (5th Cir. 2004) (no LUPTA violation where defendant
breached contract to take advantage of better offer).

Thus,

because the Court finds plaintiffs' allegations "more similar to a
breach of contract claim than to a claim for the egregious behavior
covered under LUPTA," Target Const., Inc. v. Baker Pile Driving &
Site Work, L.L.C., CIV. A. No. 12-1820, 2012 WL 5878855, at *4
(E.D. La. Nov. 20, 2012), Ducks Unlimited's summary judgment motion
on plaintiffs' LUPTA claim is granted.
iv.

Plaintiffs' Fraud Claim

Ducks Unlimited also moves for summary judgment on plaintiffs'
fraud claim.49

Louisiana law defines fraud as "a misrepresentation

or a suppression of the truth made with the intention either to
obtain an unjust advantage for one party or to cause a loss or
inconvenience to the other."

La. Civ. Code art. 1953.

To prevail

on a fraud claim against a party to a contract a plaintiff must
prove: (1) a misrepresentation, or omission of true information;
(2) the intent to obtain an unjust advantage or to cause damage or
inconvenience to another; and (3) the error induced by a fraudulent
act must relate to a circumstance substantially influencing the
victim's

consent

to

the

contract.

Shelton

v.

Standard/700

Associates, 798 So. 2d 60, 64 (La. 2001). Although fraud cannot be

49

R. Doc. 39-3.
23

predicated on unfulfilled promises or statements as to future
events, Dutton & Vaughn, Inc. v. Spurney, 600 So. 2d 693, 698 (La.
App. 4th Cir. 1992), a fraud claim may be predicated on a promise
made with the intention not to perform at the time the promise is
made.

Keenan v. Donaldson, Lufkin & Jenrette, Inc., 575 F.3d 483,

489 (5th Cir. 2009).
Ducks Unlimited first contends that plaintiffs have failed to
identify a specific misrepresentation by Ducks Unlimited, arguing
that an "affidavit from someone other than Hunt" is required to
prove

that

Ducks

Unlimited

made

the

alleged

promises.50

As

discussed above, Hunt's affidavit states that Garrity promised that
Ducks Unlimited would donate a portion of its licensing fee
proceeds to the Cat Island restoration project and further promised
that Ducks Unlimited would advertise the prints to its national
membership.51 Although the affidavit is arguably self-serving, Rule
56 precludes the Court from discrediting Hunt's affidavit on
summary judgment.

See C.R. Pittman Const. Co., Inc. v. Nat. Fire

Ins. Co. of Hartford, 453 F. App'x 439, 443 (5th Cir. 2011) ("[A]n
affidavit

based

on

personal

knowledge

and

containing

factual

assertions suffices to create a fact issue, even if the affidavit
is arguably self-serving.").

Accordingly, the Court finds that

there is a question of fact as to whether Garrity made the alleged

50

R. Doc. 54 at 10.

51

R. Doc. 47-2 at 2.
24

promises.
Although

the

Court

finds

that

plaintiffs

have

provided

sufficient evidence to create a question of fact as to whether
Garrity made the alleged promises, plaintiffs have failed to
provide sufficient evidence of Ducks Unlimited's intent to defraud.
As stated above, a fraud claim under Louisiana law requires proof
of a defendant's "intent to obtain an unjust advantage or to cause
damage or inconvenience to another."

Shelton, 798 So. 2d at 64.

Additionally, in order to differentiate their claim from a simple
breach of contract, plaintiffs must provide evidence tending to
show that Ducks Unlimited made the alleged promises with the intent
not to perform at the time the promises were made.

Keenan, 575

F.3d at 490 ("A breach of promise, standing alone, is not enough
for a fraud claim.").
The undisputed evidence here shows that Ducks Unlimited had a
20% interest in the project,52 and plaintiffs have not provided any
evidence that Ducks Unlimited committed to the project with the
intent to cause damage to plaintiffs at Ducks Unlimited's own
expense.

Moreover, while plaintiffs repeatedly claim that Ducks

Unlimited had no intention of fulfilling the alleged promises,
plaintiffs have not provided the Court with any evidence tending to
show that Garrity had a contemporaneous intent to breach the
agreement at the time the parties allegedly formed the contract.

52

R. Doc. 37-3 at 3.
25

That Garrity and other Ducks Unlimited representatives now deny the
existence of the contract in this litigation does not tend to show
Garrity's intent not to perform when he allegedly made the promises
in 2012. Indeed, the only evidence of intent plaintiffs provide is
evidence that Ducks Unlimited formed the intent to breach the
alleged

contract

upon

learning

of

BP's

concerns

regarding

references to the "BP Oil Spill" in the parties' promotional
material.53

Critically, plaintiffs' own argument concedes that

Ducks Unlimited did not form this intent to breach until after the
parties entered into the alleged contract and began circulating
promotional materials. Evidence that after allegedly entering into
the contract, Ducks Unlimited decided to breach it out of a desire
to appease BP does not demonstrate that Ducks Unlimited made the
alleged promises with the intent not to perform.

Keenan, 575 F.3d

at 489 ("Fraud cannot be imputed, and simple broken promises alone
are not sufficient.") (internal quotation omitted).
evidence

of

a

contemporaneous

intent

not

to

Thus, absent

perform,

Ducks

Unlimited's failure to fulfill the alleged promises is "merely a
breach of contract which must be enforced by an action on the
contract."

Hanover Modular Homes of N. La., Inc. v. Scottish Inns

53

See, e.g., R. Doc. 47 at 18 ("Ducks Unlimited advertised
and induced others to participate in the project as a response to
the BP disaster, yet it quickly backpedaled and killed the deal
through its failure to advertise when BP's concerns were brought
to its attention."); id. at 5 ("Faced with the choice of
continuing with the project as agreed to, or reneging and
accommodating BP, [Ducks Unlimited] sided with BP.").
26

of Am., 443 F. Supp. 888, 892 (W.D. La. 1978).
For the foregoing reasons, the Court grants Ducks Unlimited's
motion for summary judgment on plaintiffs' fraud claim.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Ducks Unlimited's

motions for summary judgment on plaintiffs' detrimental reliance,54
unfair trade practices,55 and fraud56 claims. The Court DENIES Ducks
Unlimited's motion for summary judgment on plaintiffs' breach of
contract claim.57

The Court also denies Ducks Unlimited's motion

to strike plaintiffs' summary judgment exhibits.58

New Orleans, Louisiana, this 12th day of February, 2015.
___
_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

54

R. Doc. 38.

55

R. Doc. 40.

56

R. Doc. 39.

57

R. Doc. 37.

58

R. Doc. 50.
27