Double R & J Trucking Service, Inc. v. Patton Installations of Florida, L.L.C. et al

Filing 32

ORDER AND REASONS granting 8 Motion for Partial Summary Judgment. To the extent Double R & J is asserting claims against these Defendants for open account, breach of contract, violations of the Louisiana Prompt Pay Act, and/or unjust enrichment, the claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the 9 Motion for Summary Judgment filed by Defendant Hamps Construction, L.L.C. is GRANTED,40 and all claims asserted against Hamps Construction, L.L.C. are DISMISSED WITH PREJUDICE. As no claims remain against Hamps Construction, L.L.C., it is dismissed as a party to this action. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOUBLE R & J TRUCKING
SERVICE, INC.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 14-2234

PATTON INSTALLATIONS
OF FLORIDA, L.L.C., et al.,
Defendants

SECTION "E"

ORDER
Before the Court are (1) a Motion for Partial Summary Judgment filed by
Defendants Clark Construction Enterprises, L.L.C. (“Clark”) and Hartford Accident and
Indemnity Company (“Hartford”),1 and (2) a Motion for Summary Judgment filed by
Defendant Hamp’s Construction, L.L.C. (“Hamp’s”).2 The Court has reviewed the briefs,
the record, and the applicable law, and now issues this Order.
BACKGROUND
This suit arises out of two levee repair projects for the United States Army Corps
of Engineers. Defendant Hamp’s was awarded Contract P-17A to perform certain levee
repairs (“Project 1”). Hamp’s subcontracted to Defendant Clark to perform portions of
Project 1. Additionally, Clark was awarded Contract WBV-MRL 3.2 to perform certain
levee repairs (“Project 2”). Pursuant to the contract for Project 2, Clark procured a
surety bond and/or payment bond from Defendant Hartford whereby Hartford
guaranteed payment to all subcontractors should Clark or its subcontractors fail to pay
for work performed under Project 2.

1
2

R. Doc. 8.
R. Doc. 9.

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Clark subcontracted portions of the work for Project 1 and Project 2 to Defendant
Patton Installations of Florida, L.L.C. (“Patton”). Patton then hired Plaintiff Double R &
J Trucking Service, Inc. (“Double R & J”) to perform trucking services on Project 1 and
Project 2. Double R & J claims the Defendants have failed to pay it for services rendered
on Project 1 and Project 2 totaling $59,964.62. Double R & J filed suit against
Defendants Patton, Clark, Hamp’s, and Hartford asserting claims for open account,
breach of contract, payment under the Miller Act, penalties under the Louisiana Prompt
Payment Act, and unjust enrichment.3
On December 3, 2014, Defendants Clark and Hartford filed a motion for partial
summary judgment,4 and Defendant Hamp’s filed a motion for summary judgment.5 On
December 16, 2014, default was entered by the Clerk of Court against Defendant Patton,
as provided in Rule 55(a) of the Federal Rules of Civil Procedure.6
STANDARD OF LAW
Rule 56(a) of the Federal Rules of Civil Procedure directs the court to “grant
summary judgment if 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.”7 A fact is
“material” if it may affect the outcome of the action, and a dispute is “genuine” if the
evidence is such that a reasonable jury could return a verdict in favor of the nonmoving

R. Doc. 1. Although not addressed by either party, the Miller Act provides that suits must be brought “in
the name of the United States for the use of the person bringing the action.” 40 U.S.C. § 3133(b)(3)(A).
Plaintiff has not done so in this case. Courts have said that this failure, however, is, “‘at the worst, a mere
formal irregularity, and should not affect either the jurisdiction of the court or the merits of the
controversy.’” Blanchard v. Terry & Wright, Inc., 218 F.Supp. 910, 913 (W.D. Ky. 1963) (quoting United
States ex rel. Maxwell v. Barrett, 135 F. 189, 191 (C.C.N.D. Cal. 1905)), aff’d, 331 F.2d 467 (6th Cir. 1964).
See also Safe Env’t of Am., Inc. v. Employers Ins. of Wausau, 278 F. Supp. 2d 121, 123 (D. Mass. 2003);
Hendry Corp. v. Am. Dredging Co., 318 F.2d 299, 301 (5th Cir. 1963).
4 R. Doc. 8.
5 R. Doc. 9.
6 R. Doc. 11. To date, no motion for default judgment has been filed.
7 Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
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party.8
When assessing whether a material factual dispute exists, the Court considers “all
of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”9 All reasonable inferences must be drawn in favor of the nonmoving party,10 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.”11 There is no genuine dispute of material fact if, even
viewing the evidence in the light most favorable to the nonmoving party, no reasonable
trier of fact could find for the nonmoving party, thus entitling the moving party to
judgment as a matter of law.12
LAW AND ANALYSIS
Defendants Clark, Hartford, and Hamp’s seek summary judgment with respect to
Double R & J’s claims against them for open account, breach of contract, violations of
the Louisiana Prompt Pay Act, and unjust enrichment.13 They contend that because
there is no contract between Double R & J and Clark, Hartford, or Hamp’s, Double R & J
cannot maintain open account, breach of contract, or Louisiana Prompt Pay Act claims
against them.14 Further, because a remedy of law exists for Double R & J to recover any
unpaid amounts it may be owed, they contend Double R & J cannot maintain claims
against them for unjust enrichment.15 Thus, Clark, Hartford, and Hamp’s seek dismissal
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
10 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
11 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotation marks and
citation omitted).
12 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
13 R. Doc. 8; R. Doc. 9.
14 R. Doc. 8-1, p. 1; Doc. 9-1, p. 1.
15 R. Doc. 8-1, p. 1; Doc. 9-1, p. 1.
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of Double R & J’s open account, breach of contract, Louisiana Prompt Pay Act, and
unjust enrichments claims, with prejudice.16 Hamp’s also argues Double R & J’s claim
against it under the Miller Act should be dismissed, with prejudice, “because Double R &
J is a third-tier subcontractor to Hamp’s . . . and cannot maintain a claim under the
Miller Act against Hamp’s.”17
A.

Open Account and Breach of Contract Claims
Clark, Hartford, and Hamp’s seek dismissal of the open account and breach of

contract claims asserted against them. Double R & J’s opposition to both motions states
that “a reading of the Complaint indicates that the open account claim and breach of
contract claim are only alleged against Patton.”18 Although Plaintiff contends the
Complaint is clear and the motions for summary judgment should be denied,
presumably as moot, the Court finds the Complaint to be vague and will rule on the
motions for summary judgment.
All parties agree and the Court finds that, because there is no contract between
Double R & J and Clark, Hartford, or Hamp’s, Double R & J does not have an action
against them under Louisiana law based on open account or breach of contract.
Furthermore, Double R & J has clarified it is not asserting open account or breach of
contract claims against Clark, Hartford, or Hamp’s, and in effect does not oppose the
motions for summary judgment with respect to these claims. Therefore, there are no
factual disputes, and the motions for summary judgment are granted with respect to the
open account and breach of contract claims against Clark, Harford, and Hamp’s.

R. Doc. 8-1, pp. 1–2; Doc. 9-1, p. 1.
R. Doc. 9-1, p. 1.
18 R. Doc. 12, p. 3.
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B. Miller Act Claim
The motion for summary judgment filed by Hamp’s seeks dismissal of the Miller
Act claim asserted against it. Double R & J’s opposition states that “Double R & J has
not sought to recover against Hamp’s under the Miller Act.”19 Double R & J does not
have a cause of action against Hamp’s under the Miller Act.20 In effect, Double R & J
does not oppose the motion for summary judgment with respect to this claim.
Therefore, there are no factual disputes as to this claim, and the motion for summary
judgment filed by Hamp’s is granted with respect to the Miller Act claim asserted
against it.
C. Louisiana Prompt Pay Act Claim
Clark, Hartford, and Hamp’s seek dismissal of the Louisiana Prompt Pay Act
claims asserted against them. Double R & J states it “has not sought to recover against
Hartford under the Louisiana Prompt Pay Act.”21 In effect, Double R & J does not
oppose Hartford’s motion for summary judgment with respect to this claim against
Hartford. As there are no facts in dispute and the Court finds Hartford is entitled to
judgment as a matter of law, Hartford’s motion is granted with respect to the Louisiana
Prompt Pay Act claim asserted against it.
Double R & J is asserting claims for violations of the Louisiana Prompt Pay Act
against Clark and Hamp’s.22 Clark and Hamp’s argue any claims under the Louisiana
Id.
Whereas a second-level subcontractor (a sub-subcontractor) has a cause of action on a Miller Act bond,
a third-level subcontractor (a sub-sub-subcontractor) is considered too remote to be entitled to recover
under the Miller Act. See U. S. for Use of Powers Regulator Co. v. Hartford Acc. & Indem. Co., 376 F.2d
811, 811–12 (1st Cir. 1967); Faerber Elec. Co. v. Atlanta Tri-Com, Inc., 795 F. Supp. 240, 243 (N.D. Ill.
1992). Double R & J is a third-level subcontractor with respect to Project 1 and a second-level
subcontractor with respect to Project 2. Thus, the only Miller Act claim at issue in this case relates to
Project 2.
21 R. Doc. 12, p. 4.
22 Id.
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Prompt Pay Act must be dismissed as a matter of law because they did not owe a duty to
pay Double R & J. They contend they did not have an agreement or contract with Double
R & J; rather, it was Patton’s duty to pay Double R & J.23 Double R & J responds stating:
“Under the plain language of the Louisiana Prompt Pay Act, the contractors (Clark and
Hamp’s) are required to pay the subcontractor (Double R & J) within 14 days of receipt
of payment.”24 Double R & J contends there is no requirement that it have a written
contract with Clark and Hamp’s to assert such a claim against them, and because Clark,
Hamp’s, and Patton all received payment from the owner, they all have violated the
Louisiana Prompt Pay Act as Double R & J has not been fully compensated for its work
on the projects.25
The Louisiana Prompt Pay Act provides, in relevant part:
A. When a contractor receives any payment from the owner . . . , the
contractor shall promptly pay such monies received to each subcontractor
and supplier in proportion to the percentage of work completed . . . .
Further, whenever a subcontractor receives payment from the contractor,
the subcontractor shall promptly pay such monies received to each subsubcontractor and supplier in proportion to the work completed.
****
C. If the contractor or subcontractor without reasonable cause fails to
make any payment to his subcontractors and suppliers within fourteen
consecutive days of the receipt of payment . . . , the contractor or
subcontractor shall pay . . . a penalty . . . .26
It is undisputed that Double R & J’s only contractual relationship is with
Patton.27 Double R & J was a sub-sub-subcontractor of Hamp’s and a sub-subcontractor
of Clark.28 The language of the Louisiana Prompt Pay Act clearly distinguishes payments
owed by a contractor to his subcontractor from payments owed by a subcontractor to his
R. Doc. 8-1, p. 7; R. Doc. 9-1, p. 6.
R. Doc. 12, p. 4.
25 Id., p. 5.
26 LA. REV. STAT. ANN. 9:2784(A), (C) (emphasis added).
27 R. Doc. 8-3, p. 2; R. Doc. 9-4, p. 2; R. Doc. 12-2, p. 1.
28 R. Doc. 8-3, p. 2; R. Doc. 9-2, ¶ 5.
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sub-subcontractor. Additionally, Hamp’s made timely payment in full to Clark,29 its
subcontractor on Project 1, and Clark has timely made payment in full to Patton,30 its
subcontractor on Project 1 and Project 2. The statutory language of the Louisiana
Prompt Pay Act does not provide relief to a sub-subcontractor or a sub-subsubcontractor directly against a contractor when the contractor has timely paid its
subcontractor in full. Additionally, Double R & J cites no support for its contention that
Hamp’s and Clark as contractors are obligated to pay Double R & J when they do not
have a contractual relationship or agreement with Double R & J. Because only Patton
owes a duty to pay Double R & J, Clark and Hamp’s are entitled to judgment as a matter
of law. Accordingly, their motions are granted with respect to any claims under the
Louisiana Prompt Pay Act against Clark and Hamp’s.
D. Unjust Enrichment Claims
Finally, Defendants Clark, Hartford, and Hamp’s seek dismissal of Double R & J’s
claims against them for unjust enrichment. The requirements for establishing an unjust
enrichment claim are: (1) an enrichment; (2) an impoverishment; (3) a connection
between the enrichment and the impoverishment; (4) an absence of “justification” or
“cause” for the enrichment or impoverishment; and (5) the absence of any remedy at
law.31
One of the required elements for a successful unjust enrichment claim is that
“‘there is no other remedy at law, i.e., the action is subsidiary or corrective in nature.’”32

R. Doc. 9-2, ¶ 8 (“Hamp’s timely paid all amounts owed to Clark on Project 1, including all amounts
owed for work performed by Double R & J on behalf of other subcontractors.”).
30 R. Doc. 8-2, ¶ 9 (“Clark timely paid all amounts owed to Patton on both Project 1 and Project 2,
including all amounts owed for work performed by Double R & J on behalf of Patton.”).
31 Minyard v. Curtis Products, Inc., 205 So.2d 422, 432 (1967).
32 Drs. Bethea, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399, 407 (5th Cir.
2004) (quoting Minyard, 205 So.2d at 432).
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The Louisiana Supreme Court has stated that “[t]he unjust enrichment remedy is ‘only
applicable to fill a gap in the law where no express remedy is provided,’”33 and “[t]he
mere fact that a plaintiff does not successfully pursue another available remedy does not
give the plaintiff the right to recover under the theory of unjust enrichment.”34
Additionally, “Louisiana law provides that no unjust enrichment claim shall lie when the
claim is based on a relationship that is controlled by an enforceable contract.”35
In its opposition, Double R & J states it “has alleged its claim for unjust
enrichment, in the alternative, in the event this Honorable Court finds that Double R &
J does not have a legal remedy to recover the sums due.”36 However, there is no factual
dispute that there was a contract between Patton and Double R & J,37 and there is no
indication that the contract is unenforceable. Thus, Double R & J has an adequate
remedy available at law because it has, at a minimum, a breach of contract claim against
Patton. Regardless of whether Double R & J is ultimately successful on its available
claims, Louisiana law bars Double R & J’s unjust enrichment claims against Clark,
Hartford, and Hamp’s because Double R & J has other remedies available. Thus, Clark,
Hartford, and Hamp’s are entitled to judgment as a matter of law, and the motions for
summary judgment are granted with respect to the unjust enrichment claims against
them.
CONCLUSION
IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment

Walters v. MedSouth Record Mgmt., LLC, 38 So.3d 241, 242 (La. 2010) (per curiam) (quoting Mouton
v. State, 525 So.2d 1136, 1142 (La. App. 1 Cir. 1988)).
34 Id. See also JP Mack Indus. LLC v. Mosaic Fertilizer, LLC, 970 F. Supp. 2d 516, 521–22 (E.D. La. 2013)
(Feldman, J.).
35 Drs. Bethea, 376 F.3d at 408.
36 R. Doc. 12, p. 5.
37 R. Doc. 8-3, p. 2; R. Doc. 9-4, p. 2; R. Doc. 12-2, p. 1.
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filed by Defendants Clark Construction Enterprises, L.L.C. and Hartford Accident and
Indemnity Company is GRANTED.38 To the extent Double R & J is asserting claims
against these Defendants for open account, breach of contract, violations of the
Louisiana Prompt Pay Act, and/or unjust enrichment, the claims are DISMISSED
WITH PREJUDICE.39
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Defendant Hamp’s Construction, L.L.C. is GRANTED,40 and all claims asserted against
Hamp’s Construction, L.L.C. are DISMISSED WITH PREJUDICE. As no claims
remain against Hamp’s Construction, L.L.C., it is dismissed as a party to this action.41
The only claims remaining in this action are Plaintiff’s federal Miller Act claim
against Defendants Clark Construction Enterprises, L.L.C., Hartford Accident and
Indemnity Company, and Patton Installations of Florida, L.L.C. and Plaintiff’s state-law
open account, breach of contract, Louisiana Prompt Pay Act, and unjust enrichment
claims against Patton Installations of Florida, L.L.C.42
New Orleans, Louisiana, this 21st day of May, 2015.

_________ ________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
R. Doc. 8.
Double R & J has not made any allegations that Clark or Hartford made a clear expression of intent to
be solidarily liable with Patton or that they conspired with Patton to commit an intentional or willful act
that would make them solidarily liable for Plaintiff’s state-law claims. La. Civ. Code. art 1796; La. Civ.
Code art. 2324.
40 R. Doc. 9.
41 There is no federal Miller Act claim against Hamp’s because Double R & J is a sub-sub-subcontractor.
With respect to the state-law claims, Hamp’s could be liable only if it is solidarily liable with Patton.
Double R & J has not made any allegations that Hamp’s made a clear expression of intent to be solidarily
liable with Patton or that Hamp’s conspired with Patton to commit an intentional or willful act that would
make it solidarily liable for Plaintiff’s state-law claims. La. Civ. Code. art 1796; La. Civ. Code art. 2324.
42 Default was entered by the Clerk of Court against Defendant Patton, as provided in Rule 55(a) of the
Federal Rules of Civil Procedure, on December 16, 2014. R. Doc. 11.
38
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