Andretti Sports Marketing Louisiana, LLC v. NOLA Motorsports Host Committee, Inc. et al
Filing
136
ORDER GRANTING 67 Motion to Dismiss for Failure to State a Claim by NMHC. IT IS FURTHER ORDERED that NUSSLI's request for leave to amend its complaint is DENIED.Signed by Judge Nannette Jolivette Brown on 7/29/2016. (Reference: 15-2372)(my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NUSSLI US, LLC
CIVIL ACTION
VERSUS
NO. 15-2167
c/w NO. 15-2372
NOLA MOTORSPORTS HOST COMMITTEE,
INC., et al.
SECTION “G”(3)
ORDER
In this litigation, Plaintiff NUSSLI US, LLC (“NUSSLI”) alleges that it is owed money
under a contract it entered into with NOLA Motorsports Host Committee, Inc. (“NMHC”), NOLA
Motor Club, LLC (“NOLA Motor”), and Motor Realty, L.L.C. (“Motor Realty”).1 NUSSLI also
alleges that Defendants NOLA Motor, Motor Realty, Laney C Racing, L.L.C. (“Laney C Racing”),
Laney C, L.L.C. (“Laney C”), and Laney Chouest (“Chouest”) are liable to it under Louisiana’s
single business enterprise, alter-ego, unjust enrichment, conversion, and fraud doctrines.2 Pending
before the Court is NMHC’s “Motion to Dismiss Under Rule 12(b)(6) For Failure to State a Claim.”3
Having considered the motion, the memorandum in support, the memorandum in opposition, the
record, and the applicable law, the Court will grant the motion.
I. Background
A.
Factual Background
In its first amended complaint, NUSSLI alleges that it entered into a Lease Agreement on
1
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p. 1.
2
Id. at pp. 1–2.
3
Rec. Doc. 67.
or about November 4, 2014 with NMHC, NOLA Motor, and Motor Realty.4 NUSSLI alleges that,
pursuant to the Lease Agreement, the Lessee Parties agreed to lease grandstands from NUSSLI and
NUSSLI agreed to supply, install, and thereafter remove the grandstands that were to be used in
connection with the 2015 Indy Grand Prix of Louisiana.5 NUSSLI alleges that the Lessee Parties
initially agreed to pay NUSSLI $871,763.97, but later requested that NUSSLI make additions and
deductions to its services, bringing the total contract price for 2015 to $652,008.54.6 NUSSLI also
alleges that, pursuant to the Lease Agreement, the Lessee Parties also agreed to pay NUSSLI
$884,840.43 for an Event to take place in 2016 and $898,113.04 for an Event to take place in 2017.7
NUSSLI alleges that, to date, it has only received $293,404.04 for the 2015 Event, which, it asserts,
is less than the $374,000 in funds that were designated by the State of Louisiana for the “Grandstand
Build.”8
NUSSLI further alleges that the Chouest Defendants committed fraud by misrepresenting
to Andretti and, by extension, NUSSLI, that the State of Louisiana’s $4.5 million appropriation,
along with Laney Chouest’s investment, would cover expenses incurred by the Racing Event,
including NUSSLI’s fees.9
4
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p. 24.
5
Id.
6
Id. at p. 25.
7
Id.
8
Id.
9
Id. at p. 26.
2
B.
Procedural Background
NUSSLI filed a complaint on June 29, 2015.10 On December 22, 2015, NMHC filed the
instant motion.11 On January 8, 2016, NUSSLI filed an amended complaint, alleging claims of
breach of contract, unfair and deceptive trade practices pursuant to the Louisiana Unfair Trade
Practices and Consumer Protection Law (“LUTPA”), Louisiana Revised Statute § 51:1401 et seq.,
fraud, conversion, unjust enrichment, failure to pay an open account, and claims pursuant to the
Louisiana Private Works Act (“PWA”), Louisiana Revised Statute § 9:4801 et seq.12 On January 12,
2016, NUSSLI filed an opposition to NMHC’s motion to dismiss.13
On January 27, 2016, this case was consolidated with Andretti Sports Marketing Louisiana
v. NOLA Motorsports Host Committee for discovery purposes only.14
II. Parties’ Arguments
A.
NMHC’s Arguments in Support of Dismissal
NMHC moves to dismiss NUSSLI’s fraud, LUTPA, unjust enrichment, conversion, and
PWA claims pursuant to Federal Rule of Civil Procedure 12(b)(6).15
1.
Fraud
NMHC first asserts that NUSSLI has failed to plead sufficient facts to support a fraud
10
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 1.
11
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 42.
12
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47.
13
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 51.
14
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 57.
15
Rec. Doc. 67 at p. 1.
3
claim.16 NMHC contends that in order to state a claim for fraud, NUSSLI must plead facts showing
“a material misrepresentation or omission of past or existing fact, made with the intent to defraud,
on which the Plaintiff justifiably relied, and which proximately caused the Plaintiffs’ damages.”17
NMHC contends that NUSSLI has failed to plead fraud with the particularity required by Federal
Rule of Civil Procedure 9(b), which requires a plaintiff to plead the “time, place and contents of the
false representations, as well as the identity of the person making the misrepresentation and what
[that person] obtained thereby.”18 NMHC asserts that NUSSLI fails to allege the time, place, and
identity of the speaker of the alleged misrepresentations and fails to allege that any of the
misrepresentations were made to NUSSLI or its agents.19 NMHC avers that Andretti communicated
with NUSSLI on behalf of NMHC.20
NMHC asserts that although NUSSLI alleges that NMHC misrepresented that it was
adequately capitalized, NMHC and Andretti specified the necessary capitalization of NMHC in the
Racing Services Agreement, a contract between Andretti and NMHC in which Andretti agreed to
manage the Event, as $1 million.21 NMHC contends that it provided $1 million and that neither
NUSSLI nor Andretti disputes this fact.22 Next, NMHC contends that NUSSLI alleges that although
an unnamed person represented that Chouest himself stood behind the venture, a “secret oral
16
Id. at p. 5.
17
Id. (citing La. Civ. Code art. 1953).
18
Id. at p. 6 (citing Williams v. WMX Tech., Inc., 112 F.3d 175, 177 (5th Cir. 1997)).
19
Id.
20
Id.
21
Id.
22
Id.
4
contract cannot abrogate the clear and unambiguous terms of the Grandstands contract, which
clearly set forth terms of payment.”23 Furthermore, NMHC asserts that any reliance that NUSSLI
may claim in connection with an alleged misrepresentation to Andretti is undermined by Andretti’s
own event budget, which does not list an investment from Chouest.24 In addition, NMHC argues that
the fact that the President of Andretti, John Lopes, is an attorney adds further doubt that there was
any such personal guarantee.25
Furthermore, NMHC asserts that although NUSSLI alleges that an unknown person at an
unknown time failed to inform Andretti that NMHC would operate as an instrumentality of Chouest,
this allegation makes little sense in light of NUSSLI’s allegation that it relied upon a representation
that Chouest personally stood behind the venture.26 Finally, NMHC contends that the allegation is
so non-specific as to preclude any reasonable investigation into the claim and fails to meet the
heightened pleading requirement of Rule 9(b).27 As such, NMHC asserts that NUSSLI’s fraud claim
against NMHC should be dismissed.28
2.
Unjust Enrichment
Next, NMHC moves to dismiss NUSSLI’s unjust enrichment claim on the grounds that
NUSSLI has another adequate remedy at law and any alleged enrichment was justified by contract.29
23
Id. at p. 7.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id. at p. 8.
5
NMHC contends that, under Louisiana law, in order to state a claim for unjust enrichment, NUSSLI
must allege: “(1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment
and resulting impoverishment, (4) the absence of ‘justification’ or ‘cause’ for the enrichment and
impoverishment, and (5) that no other remedy at law is available to plaintiff.”30 NMHC asserts that
Louisiana courts will allow unjust enrichment claims arising out of contractual relationships to
survive motions to dismiss only where it has been determined that no contractual remedies exist.31
NMHC asserts that NUSSLI entered into a contract with either Andretti or NMHC and NUSSLI is
pursuing recovery in this case under breach of contract and therefore has another remedy at law.32
In addition, NMHC contends that no enrichment of NMHC without cause exists.33 NMHC
asserts that Louisiana courts will only find “enrichment” where an entity’s “assets increase, without
adequate compensation, or his liabilities diminish” and here, there is no cognizable “asset increase”
to NMHC that is attributable to NUSSLI’s services.34 NMHC asserts that its assets and liabilities
were nearly totally dictated by the Event budget created and maintained by Andretti.35 Furthermore,
NMHC contends that the only cognizable “diminished liabilities” of NMHC would be that funds in
the Event budget were used to pay liabilities other than those allegedly due to NUSSLI under the
30
Id. (citing Baker v. Maclay Props. Co., No. 94-CA-1529 (La. 1/17/95); 648 So. 2d 888, 897).
31
Id. at pp. 8–9 (citing “We the People” Paralegal Servs., L.L.C. v. Watley, No. 33,480-CW (La. App. 2
Cir. 8/25/00); 766 So. 2d 744, 749).
32
Id. at p. 9.
33
Id.
34
Id. (citing Gulfstream Servs., Inc. v. Hot Energy Servs., Inc., No. 2004-1223 (La. App. 1 Cir. 3/24/05);
907 So. 2d 96, 101).
35
Id.
6
grandstand contract.36 NMHC asserts that any alleged enrichment of NMHC arises solely out of the
grandstands contract and, where the justification or cause for the enrichment is the contractual
agreement between the parties, Louisiana courts will not find unjust enrichment.37 NMHC avers that
payments made to creditors other than NUSSLI were made by NMHC pursuant to the Agreement
and under individual contracts with other creditors.38 NMHC asserts that because NUSSLI fails to
allege that it has no other remedy against NMHC and because any alleged enrichment is justified
by contract, NUSSLI’s unjust enrichment claim should be dismissed.39
3.
LUTPA
NMHC also moves to dismiss NUSSLI’s LUTPA claim on the grounds that NUSSLI has
failed to allege that NMHC participated in conduct that “offends established public policy and . . .
is immoral, unethical, oppressive, unscrupulous, or substantially injurious.”40 NMHC contends that
the range of prohibited practices under LUTPA is extremely narrow and LUTPA does not provide
an alternate remedy for simple breaches of contract.41 NMHC asserts that alleged LUTPA violations
committed for “economic reasons” are not a violation of the statute and asserts that courts will look
for special relationships with power imbalances like that of an employer-employee relationship.42
36
Id.
37
Id. (citing Edwards v. Conforto, 636 So. 2d 901, 907 (La. 1993)).
38
Id. at pp. 9–10.
39
Id. at p. 10.
40
Id. (citing Moore v. Goodyear Tire & Rubber Co., 364 So. 2d 630, 633 (La. App. 2 Cir. 1978)).
41
Id. (citing Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., No. 2009-C-1633 (La. 4/23/10); 35 So.
3d 1053, 1060).
42
Id. at p. 11 (citing Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993); Lilawanti Enters.,
Inc. v. Walden Book Co., No. 95-CA-2048 (La. App. 4 Cir. 2/29/96); 670 So. 2d 558, 561).
7
NMHC asserts that the only allegations in NUSSLI’s complaint regarding actions taken by
NMHC are: “(1) [NMHC] refused to pay [NUSSLI] additional funds after May 4, 2015, and (2) a
blanket conclusion that NMHC’s actions (among other actors) constitute ‘deception,
misrepresentation and/or fraud’ in violation of LUTPA.”43 NMHC contends that NUSSLI’s LUTPA
claim against NMHC is fundamentally a reiteration of its breach of contract claim and as the
Louisiana Supreme Court in Cheramie Services, Inc. v. Shell Deepwater Production, Inc. held,
LUTPA does not provide a remedy for simple breach of contract claims.44 NUSSLI asserts that the
sole allegation of misconduct by NMHC is that NMHC has not paid NUSSLI amounts allegedly due
under the grandstands contract.45
In addition, NMHC argues that the “special relationship” that the Fifth Circuit found to be
relevant in Turner v. Purina Mills, Inc. does not exist between NUSSLI and NMHC.46 NMHC
asserts that it cannot be construed to have a level of power over NUSSLI similar to that in an
employer-employee relationship.47
4.
Conversion
NMHC asserts that NUSSLI has failed to state a claim for conversion because the only
alleged “chattel” converted by NMHC is NMHC’s own money.48 NMHC argues that NUSSLI’s
conversion claim is based upon the allegation that NMHC has continued to retain money owed to
43
Id.
44
Id.
45
Id. at p. 12.
46
Id.
47
Id.
48
Id.
8
NUSSLI under the grandstands contract.49 NMHC contends that a claim for conversion requires that:
“(1) possession is acquired in an unauthorized manner; (2) chattel is removed from one place to
another without intent to control it; (3) possession of the chattel is transferred without authority; (4)
possession is withheld from owner or possessor; (5) the chattel is altered or destroyed; (6) the chattel
is used improperly; or (7) ownership is asserted over the chattel.”50 NMHC asserts that any money
in the possession of NMHC is NMHC’s money and NUSSLI does not argue otherwise.51 Therefore,
NMHC asserts that NUSSLI has failed to state a claim for conversion and this claim should be
dismissed.52
5.
Private Works Act
NMHC also moves to dismiss NUSSLI’s Louisiana Private Works Act claim on the grounds
that this case does not feature a “construction project,” it did not arise out of a “work,” nor is NMHC
a “contractor” as defined by the PWA.53 NMHC also adopts the Chouest Defendants’ arguments in
their motion to dismiss NUSSLI’s PWA claim.54 In the Chouest Defendants’ motion to dismiss, they
assert that because the PWA is in derogation of common rights, the statute must be strictly
construed.55 They contend that this rule of strict construction specifically applies to interpretation
49
Id.
50
Id. at pp. 12–13 (citing Dual Drilling Co. v. Mills Equip. Investments, Inc., Nos. 98-C-0343, 98-C-0356
(La. 12/1/98); 721 So. 2d 853, 857).
51
Id. at p. 13.
52
Id.
53
Id.
54
Id. (citing Rec. Doc. 40-1 at pp. 21–25).
55
Rec. Doc. 65-1 at p. 21 (citing Shreveport Armature & Elec. Works, Inc. v. Harwell, 172 So. 463, 467
(La. App. 2 Cir. 1937)).
9
of key terms such as “owner” and “contractor.”56 Furthermore, they assert that the PWA, like all
statutes that create civil penalties or privileges, “shall not be extended by implication or by
considerations of equity.”57
The Chouest Defendants assert in their motion to dismiss that the purpose of the PWA is to
provide rights and remedies for “improvements of immovables.”58 NMHC contends that pursuant
to Louisiana Revised Statute § 9:4808(A), work is defined as “a single continuous project for the
improvement, construction, erection, reconstruction, modification, repair, demolition or other
physical change of an immovable or its component parts.”59 NMHC contends that there is no
“work” at issue in this case because the renting of the grandstands was not a continuous project for
the improvement of the immovable or its component parts and was not even a part of any such
project.60 The Chouest Defendants aver that the rental of the grandstands was not a physical change
to the immovable or its component parts.61
The Chouest Defendants also assert that NMHC is not a contractor and NUSSLI is not a
subcontractor.62 They contend that contractor is defined in § 4807(A) as “one who contracts with
an owner to perform all or a part of a work” and § 4807(C) defines subcontractor as “one who, by
contract made directly with a contractor, or by a contract that is one of a series of contracts
56
Id. (citing Shreveport Armature & Elec. Works, Inc., 172 So. at 467–68)).
57
Id. at p. 22 (citing Fruge v. Muffoletto, 137 So. 2d 336, 582–83 (La. 1962)).
58
Id. (citing §§ 4801, 4802)).
59
Id.
60
Id.
61
Id.
62
Id. at p. 23.
10
emanating from a contractor, is bound to perform all or part of a work contracted for by the
contractor.”63 NMHC asserts that it simply had a lease for the facility to use the racetrack, but
NMHC was not performing any construction on the land and did not cause any physical change to
the land.64 The Chouest Defendants contend that “[a] lessor of land who contracts for work will not
be construed to be a contractor in order for a would-be claimant under the PWA to reach the
landowner and to gain a privilege against the land itself.”65
The Chouest Defendants assert that while the PWA addresses movables in a limited way, that
provision is inapplicable to the temporary renting of grandstands for the race event.66 They contend
that § 4801(3) addresses “[s]ellers, for the price of movables sold to the owner that become
component parts of the immovable, or are consumed at the site of the immovable, or are consumed
in the machinery or equipment used at the site of the immovable.”67 The Chouest Defendants assert
that NUSSLI was not a seller, only a renter of the grandstands, and the grandstands were not made
component part of the lands or consumed.68 They contend that Section 4801(4) applies to “[l]essors,
for the rent of movables used at the site of the immovable and leased to the owner by written
contract,” but that this section anticipates movables such as equipment used during a construction
project.69 Additionally, the Chouest Defendants contend that for a lessor of movables to gain rights
63
Id. at p. 22.
64
Id. at p. 23.
65
Id. (Shreveport Armature & Elec. Works, Inc., 172 So. X at 468-70)).
66
Id.
67
Id.
68
Id.
69
Id.
11
under the PWA, the lessor must either rent the movable to the owner under § 4801(4) or to a
contractor or subcontractor under § 4801(A)(4); however, NUSSLI did not lease the grandstands to
the landowner, but rather to NMHC, who was not a contractor or subcontractor.70
The Chouest Defendants also assert that NUSSLI’s claim under the PWA for movables fails
because § 4802(G)(1) requires that for any right to arise under § 4801 or § 4802, the lessor of the
movables must deliver a specific notice to the owner and to the contractor not more than 10 days
after the movables are first placed at the site of the immovable for use in a work.71 The Chouest
Defendants contend that lack of notice nullifies the claim by the equipment lessor.72 They aver that
NUSSLI provided no such notice within 10 days after the grandstands were first placed at the site
and NUSSLI does not allege that it did.73
The Chouest Defendants also assert that even where there is a “work,” and where the project
owner is a mere lessor of the immovable property and not the owner of the immovable property, a
claimant under the PWA has rights only against whatever right the lessor has to the immovable.74
Therefore, they contend, at most, the privilege would apply to NMHC’s lease rights, not to the land
itself.75
70
Id. at p. 24.
71
Id.
72
Id. (citing Hawk Field Servs., LLC v. Mid America Underground, LLC, No. 47,078-CA (La. App. 2 Cir.
5/16/12); 94 So. 3d 136, 141).
73
Id.
74
Id.
75
Id. (citing Sinclair v. Justice, 414 So. 2d 826, 828 (La. App. 4 Cir. 1982)).
12
B.
NUSSLI’s Arguments in Opposition to Dismissal
1.
Fraud
In opposition to NMHC’s motion to dismiss, NUSSLI contends that it has pled sufficient
facts to give rise to a claim of fraud.76 NUSSLI contends that Federal Rule of Civil Procedure 9(b)
does not require that a plaintiff plead that a misrepresentation occurred at specific time, and courts
have accepted a month period as an adequate time frame.77 NUSSLI also asserts that it has alleged
several material misrepresentations of fact that Chouest and his business associates made in relation
to Chouest’s assurances that he took personal financial responsibility for the Event.78 Furthermore,
NUSSLI avers that, beginning on May 12, 2014, Chouest and his business associates misrepresented
the reason why NMHC was established as the party to contract with vendors for the Event.79
NUSSLI contends that the specific misrepresentations, as well as the particular facts regarding the
time, place, and intent behind the misrepresentations, are clearly stated.80
NUSSLI contends that NMHC’s other arguments “merely raise factual disputes as to
NUSSLI’s fraud claims which should be reserved for trial.”81 Addressing NMHC’s contention that
NMHC and Andretti specified the necessary capitalization of NMHC, NUSSLI contends that this
is irrelevant to the separate misrepresentations of fact that Chouest and his business associates
76
Rec. Doc. 69 at p. 7.
77
Id. (citing Juergens v. Urban Title Servs., Inc., 533 F. Supp. 2d 64, 77 (D.D.C. 2008)).
78
Id.
79
Id. at pp. 7–8 (citing Rec. Doc. 47 at pp. 9–10).
80
Id. at p. 8.
81
Id.
13
made.82 Next, NUSSLI asserts that NMHC mischaracterizes its position by arguing that NUSSLI’s
allegations suggest a secret oral contract, because the existence of an oral contract is not a
prerequisite to any claim pleaded by NUSSLI and because the misrepresentations occurred prior to
NUSSLI entering into the Lease Agreement.83 NUSSLI contends that Andretti, as agent of the
Chouest Defendants, repeated the misrepresentations to NUSSLI.84
2.
Private Works Act
NUSSLI also contends that it has stated the requisite elements of a Private Works Act
claim.85 NUSSLI asserts that under the PWA, persons who perform work on an immovable,
including lessors, for the rent of movables, are granted a claim against the owner and the contractor,
as well as a privilege against the immovable.86 NUSSLI asserts that “the owner of immovable
property has personal liability under the PWA to those who perform work on the property, even as
to those with whom the owner does not have a contractual relationship, unless the owner timely files
a notice of contract and had the general contractor timely file a proper bond.”87 NUSSLI contends
that as a lessor seeking payment for the rent of a movable (the grandstands) placed on an immovable,
NUSSLI “falls squarely within the express terms of the PWA.”88
NUSSLI also incorporates by reference the arguments made in its opposition to the Chouest
82
Id.
83
Id.
84
Id.
85
Id.
86
Id. (citing La. R.S. § 9:4802(A)(4) and (B)).
87
Id. (citing La. R.S. 9:4802, 4811).
88
Id.
14
Defendants’ motion to dismiss.89 There, NUSSLI asserts that the PWA is not limited to construction
projects and is defined broadly as “a single continuous project for the improvement, construction,
erection, reconstruction, modification, repair, demolition, or other physical change of an immovable
or its component parts.”90 NUSSLI contends that under the statute, the provision “or other physical
change of an immovable or its component parts” encompasses a broad spectrum of activities and
there can be little dispute that the various constructions and modifications required with respect to
the NOLA Motorsports Park consisted of improvement, modifications, repairs, and other physical
changes.91 According to NUSSLI, the Cooperative Endeavor Agreement describes numerous
physical changes to the land that would be required, including track improvements, safety upgrades,
and the installation of grandstands.92 Furthermore, NUSSLI asserts that any argument that the
temporary nature of the grandstands removes them from the scope of the PWA is “completely
belied” by the text of the PWA which specifically includes movables for rent, which are temporary
by their very nature.93
NUSSLI also argues that the notice required pursuant to Louisiana Revised Statute §
9:4802(G)(1) was provided.94 Pointing to its amended complaint, NUSSLI asserts that Defendants
received notice before the scheduled date of delivery of the grandstands and during the erection of
89
Id. at p. 10.
90
Rec. Doc. 68 at p. 21.
91
Id. (citing NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p.
92
Id.
93
Id.
94
Id. at p. 25.
27).
15
the grandstands.95 NUSSLI asserts that Motor Realty was designated a Lessee Party pursuant to the
Lease Agreement and it received the notice.96 Furthermore, NUSSLI argues that in Hawk Field
Services, L.L.C. v. Mid America Underground, L.L.C., a Louisiana Second Circuit Court of Appeal
case, the court held that the failure of delivery of the notice to the owner only defeats the in rem
privilege and not the in personam claim.97 NUSSLI asserts that it properly filed a statement of claim
and lien within the time period required by the PWA and any alleged failure regarding the notice
requirement under § 4802(G)(1) would be relevant only to the existence of the privilege, and not to
the claim against the owner.98
3.
Unjust Enrichment
NUSSLI contends that it has not alleged a claim of unjust enrichment against NMHC.99
4.
LUTPA
In opposition to NMHC’s motion to dismiss its LUTPA claim, NUSSLI asserts that while
it is true that LUTPA does not provide an alternative remedy for simple breaches of contract,
NUSSLI’s LUTPA claim against NMHC is not a simple breach of contract.100 NUSSLI asserts that
NMHC and each of the Chouest Defendants engaged in unfair or deceptive conduct in making false
and misleading statements to Andretti.101 NUSSLI contends that its factual allegations demonstrate
95
Id. (citing Rec. Doc. 47 at p. 33).
96
Id. at p. 26.
97
Id. (citing No. 47,078-CA (La. App. 2 Cir. 45/16/12); 94 So. 3d 136, 141).
98
Id.
99
Rec. Doc. 69 at p. 10.
100
Id. at p. 11.
101
Id.
16
that the Chouest Defendants misrepresented the financial backing behind the Event and that NMHC
and the Chouest Defendants improperly distributed the $4.5 million appropriated under the
Cooperative Endeavor Agreement and failed to distribute the full $374,000 that had been
appropriated for the installation of the grandstands under the Cooperative Endeavor Agreement.102
NUSSLI contends that the “orchestration of this Event as a purported ‘nonprofit’ enterprise, along
with the Chouest Defendants’ dishonest representations, constituted an unfair trade practice.”103
NUSSLI contends that the Chouest Defendants’ actions, in utilizing NMHC as their instrumentality,
were aimed at misleading trade vendors as to the prospects for repayment.104
5.
Conversion
In opposition to NMHC’s motion to dismiss its conversion claim, NUSSLI, citing a
Louisiana Third Circuit Court of Appeals case, Broussard, Bolton, Halcomb & Vizzier v. Williams,
asserts that the tort of conversion applies to the wrongful exercise of dominion over money.105 In
Broussard, NUSSLI contends that the court held that the plaintiff had stated a claim for conversion
where a lawyer withdrew funds from his trust account despite the existence of an agreement that he
would do so only upon certain terms.106
In opposition to NMHC’s argument that NUSSLI’s claim for conversion is simply a
reiteration of its breach of contract claim, NUSSLI asserts that NMHC consented under the
Cooperative Endeavor Agreement, which NMHC entered into with the State of Louisiana for the
102
Id. at p. 12.
103
Id.
104
Id.
105
Id. at p. 13 (citing 01-0219 (La. App. 3 Cir. 10/03/91); 796 So. 2d 791, 796).
106
Id.
17
allocation of a state grant, to devote $374,000 to the grandstand build, but, in spite of that agreement,
NMHC diverted those funds to other recipients.107 NUSSLI asserts that like the lawyer in Broussard,
NMHC and the Chouest Defendants wrongfully exercised dominion over the funds contrary to the
terms of the Cooperative Endeavor Agreement, and instead disbursed the funds for their own
benefit.108 Therefore, NUSSLI contends that it has stated a claim for conversion against NMHC.109
IV. Law and Analysis
A.
Legal Standard on a Motion to Dismiss
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.”110 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”111 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’”112 “Factual allegations must be enough to raise a right to relief above the
speculative level.”113 A claim is facially plausible when the plaintiff has pleaded facts that allow the
court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”114
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and
107
Id.
108
Id. at p. 14.
109
Id. at p. 13.
110
Fed. R. Civ. P. 12(b)(6).
111
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
112
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
113
Twombly, 550 U.S. at 556.
114
Id. at 570.
(2008)).
18
all facts pleaded are taken as true.115 However, although required to accept all “well-pleaded facts”
as true, a court is not required to accept legal conclusions as true.116 “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”117 Similarly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”
will not suffice.118 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.119 That is, the complaint must offer more than an “unadorned, the defendant-unlawfullyharmed-me accusation.”120 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.121 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.122
It is well-established that, in deciding whether to grant a motion to dismiss pursuant to Rule
115
Leatherman v. Tarrant Cnty. 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).
116
Iqbal, 556 U.S. at 677–78.
117
Id. at 679.
118
Id. at 678.
119
Id.
120
Id.
121
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
122
Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir.
2007).
19
12(b)(6), a district court may not “go outside the complaint.”123 There is one recognized 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.124 “In so attaching, the defendant merely
assists the plaintiff in establishing the basis of the suit, and the court in making the elementary
determination of whether a claim has been stated.”125 If, however, a district court considers other
information outside the complaint, it must treat the motion to dismiss as a motion for summary
judgment.126
B.
Applying Louisiana Law
When a federal court interprets a state law, it must do so according to the principles of
interpretation followed by that state’s highest court.127 In Louisiana, “courts must begin every legal
analysis by examining primary sources of law: the State’s Constitution, codes, and statutes.”128
These authoritative or primary sources of law are to be “contrasted with persuasive or secondary
sources of law, such as [Louisiana and other civil law] jurisprudence, doctrine, conventional usages,
and equity, that may guide the court in reaching a decision in the absence of legislation and
custom.”129 To make a so-called “Erie guess” on an issue of Louisiana law, the Court must “employ
123
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).
124
Id.; see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
125
Carter, 541 F. App’x at 416.
126
Fed. R. Civ. P. 12(d); Rodriguez, 310 F. App’x at 626.
127
Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010); Gen. Elec.
Capital Corp. v. Se. Health Care, Inc., 950 F.2d 944, 950 (5th Cir. 1991).
128
Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 547 (5th Cir. 2004).
129
Id. (quoting La. Civ. Code. art. 1 rev. cmt. b).
20
the appropriate Louisiana methodology” to decide the issue the way that it believes the Supreme
Court of Louisiana would decide it.130 Although federal courts should not disregard the decisions
of Louisiana’s intermediate courts unless they are “convinced that the Louisiana Supreme Court
would decide otherwise,” they are not strictly bound by them.131
C.
Analysis
1.
Fraud
NMHC moves to dismiss the fraud claim against it on the grounds that: (1) NUSSLI fails to
plead fraud with the particularity required by Federal Rule of Civil Procedure 9(b); (2) NUSSLI fails
to allege that any supposed misrepresentations were actually made to NUSSLI by NMHC or its
agents; and (3) NUSSLI’s allegations of fraud “fail before even the most rudimentary scrutiny.”132
“The elements of a Louisiana delictual fraud or intentional misrepresentation cause of action
are: (a) misrepresentation of a material fact, (b) made with the intent to deceive, and (c) causing
justifiable reliance with resultant injury.”133 Pursuant to Federal Rule of Civil Procedure 9(b), “[i]n
alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud
or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.” “What constitutes ‘particularity’ will necessarily differ with the facts of each case . . .
.”134 The Fifth Circuit has held, however, that “[a]t 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
130
Id. (citation omitted).
131
In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).
132
Rec. Doc. 67-1 at pp. 5–7.
133
Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 627 (5th Cir. 1999).
134
Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir. 1992).
21
person making the misrepresentation and what he obtained thereby.”135 In addition, “[a]lthough
scienter may be ‘averred generally,’. . . [t]o plead scienter adequately, a plaintiff must set forth
specific facts that support an inference of fraud.”136
NUSSLI asserts that it relied upon several misrepresentations made by Chouest or his
business associates stating that Chouest took personal financial responsibility for the Event and
misrepresentations regarding why NMHC was formed.137 NUSSLI points to four occasions on which
Chouest allegedly made statements that he personally stood behind the Event.138 However, all of
these specific allegations regard statements made by Chouest, not by someone acting on behalf of
NMHC. NUSSLI does allege in its first amended complaint that “Chouest and Sherman informed
[Andretti] that the State grant of $4.5 million to [NMHC], along with other revenues anticipated
from the Event as well as Chouest’s personal commitment ensuring the Event’s financial viability,
that adequate funds were available to pay [Andretti].”139 Sherman is alleged to be an officer of
NMHC.140 However, NUSSLI does not allege when or where these representations were made, nor
does NUSSLI allege to whom these representations were made or how they were communicated to
135
Tel-Phonic Servs., Inc. v. TBS Int’l, 975 F.2d 1134, 1139 (5th Cir. 1992) (internal quotations and citation
omitted).
136
Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994).
137
Rec. Doc. 69 at pp. 7–8.
138
Id. at p. 7 (citing Rec. Doc. 47 at pp. 15–16). NUSSLI alleges that: (1) Chouest represented to John
Lopes (“Lopes”), President of Andretti, on August 24-25, 2015 that he would stand behind the Event financially; (2)
Chouest represented to IndyCar officials on May 31, 2014 that he would personally ensure the Event’s financial
success; (3) Chouest emailed Starke Taylor (“Taylor”), Chief Marketing Officer of Andretti, that he had no doubt of
the event’s operational success despite the fact that there were no “presenting sponsors”; and (4) Chouest stated in a
phone conference with Lopes and Taylor in early April 2015 that he would spend up to $2 million to ensure the
Event’s success. Rec. Doc. 47 at p. 16.
139
Id. at p. 4 (citing Rec. Doc. 47 at p. 13).
140
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p. 12.
22
NUSSLI such that NUSSLI justifiably relied upon these statements. Therefore, this allegation cannot
form the basis for a claim for fraud.
NUSSLI also alleges that it was deceptively led to believe by NMHC and its member,
Michael Sherman, that the State of Louisiana required the formation of NMHC, a non-profit, to
receive State funds even though there is no such requirement.141 Although the amended complaint
does contain specific allegations of Sherman making such statements, these statements were made
prior to the formation of NMHC. Therefore, the statements cannot be attributed to NMHC and this
allegation cannot form the basis of a fraud claim against NMHC either. Accordingly, NUSSLI has
failed to plead sufficient facts to state a claim against NMHC for fraud and the Court grants
NMHC’s motion to dismiss NUSSLI’s fraud claim against it.
2.
Unjust Enrichment
NMHC also moves to dismiss NUSSLI’s unjust enrichment claim;142 however, in response,
NUSSLI contends that it has not pled an unjust enrichment claim against NMHC.143 In NUSSLI’s
first amended complaint, in discussing its claim for unjust enrichment, NUSSLI only lists NOLA
Motor, Motor Realty, Chouest, Laney C. Racing, and Laney C.144 Therefore, the Court need not
address this claim.
3.
LUTPA
NMHC also moves to dismiss NUSSLI’s LUTPA claim against it on the grounds that the
141
Id. at pp. 9–10.
142
Rec. Doc. 67-1 at p. 8.
143
Rec. Doc. 69 at p. 10.
144
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372 Rec. Doc. 47 at p. 35.
23
only allegations are that it refused to pay NUSSLI any funds after May 4, 2015, and a “blanket
conclusion that NMHC’s actions (among other actors) constitute ‘deception, misrepresentation
and/or fraud’ in violation of LUTPA.”145 In opposition, NUSSLI contends that “[NMHC] and each
of the Chouest Defendants engaged in unfair or deceptive conduct in making false and misleading
statements to Andretti, and sending Andretti out to contract on their behalf based upon those
misstatements.”146
LUTPA, Louisiana Revised Statute § 51:1401, declares unlawful “[u]nfair methods of
competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
LUTPA affords a cause of action to any natural or juridical person “who suffers any ascertainable
loss of money or moveable property, corporeal or incorporeal, as a result of the use or employment
by another person of an unfair or deceptive method, act or practice declared unlawful by [Louisiana
Revised Statute] 51:1405.”147 The Louisiana Supreme Court has stated that the goals of LUTPA
include “halting unfair business practices and sanctioning the businesses which commit them,
preserving and promoting effective and fair competition, and curbing business practices that lead
to a monopoly and unfair restraint of trade within a certain industry.”148 What constitutes an unfair
trade practice is to be determined by the courts on a case-by-case basis.149 Under LUTPA, a business
action is deemed “unfair” when it offends established public policy and when it is “immoral,
145
Rec. Doc. 67-1 at pp. 10–11.
146
Rec. Doc. 69 at p. 11.
147
Cheramie Serv., Inc. v. Shell Deepwater Prod., Inc., 2009-1633, p. 6 (La. 4/23/10); 35 So. 3d 1053
(quoting La. Rev. Stat. 51:1409).
148
Quality Envtl. Processes, Inc. v. I.P. Petrol. Co., Inc., 2013-1582 (La. 5/7/14); 144 So. 3d 1011, 1025.
149
Cheramie Serv., Inc., 2009-1633 at p. 10.
24
unethical, oppressive, unscrupulous, or substantially injurious to consumers.”150 A business action
is “deceptive” when it amounts to fraud, deceit, or misrepresentation.151 Ultimately, however, “the
range of prohibited practices under LUTPA is extremely narrow.”152
As discussed above, NUSSLI has not pled any false or misleading statements allegedly made
by NMHC. At the core of NUSSLI’s allegations is a claim that NMHC failed to pay it the amount
it was due under its contract and the amount that was allocated for the grandstand build under the
Cooperative Endeavor Agreement with the State of Louisiana.153 However, the law is clear that
LUTPA does not provide an alternate remedy for simple breaches of contract.154 NUSSLI’s bare
assertions of deceptive conduct on the part of NMHC are insufficient to constitute deception,
unethical conduct, or egregious behavior that would constitute a claim pursuant to LUTPA.
Accordingly, the Court grants NMHC’s motion to dismiss NUSSLI’s LUTPA claim against it.
4.
Conversion
NMHC moves to dismiss NUSSLI’s conversion claim on the grounds that the only alleged
“chattel” converted by NMHC is NMHC’s own money.155 In opposition, NUSSLI contends that the
tort of conversion applies to the wrongful exercise of dominion over money.156 In order to state a
claim for conversion under Louisiana law, a plaintiff must show one of the following: “(1)
150
Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1332 (5th Cir. 1994).
151
Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 553 (5th Cir. 2015).
152
Quality Envtl. Processes, Inc., 144 So. 3d at 1025.
153
Rec. Doc. 47 at p. 25.
154
Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993).
155
Rec. Doc. 67-1 at p. 12.
156
Rec. Doc. 69 at p. 13.
25
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.”157
In support of its argument that it has pled sufficient facts to state a claim for conversion,
NUSSLI cites a Louisiana Third Circuit Court of Appeal case, Broussard, Bolton, Halcomb &
Vizzier v. Williams, stating that, in that case, the court held that a lawyer’s withdrawal of funds from
his trust account, despite the existence of an agreement that he would do so only on certain terms,
constituted a conversion.158 In that case, two attorneys, who had each represented the same client,
signed an agreement whereby one attorney agreed to place the full amount of the attorneys’ fees in
his trust account until the parties resolved a dispute about the amount to which each attorney was
entitled.159 Contrary to the agreement, one of the attorneys withdrew the entire amount from the trust
account for himself.160 The court held that the other attorney, who did not receive any of the funds,
had a claim for both breach of contract and conversion.161
NUSSLI asserts that, here, NMHC consented under the Cooperative Endeavor Agreement
to devote $374,000 of the grant funds from the State of Louisiana to the grandstand build, but,
contrary to that agreement, diverted those funds to other recipients without paying the amounts
157
Dual Drilling Co. v. Mills Equip. Invs., Nos. 98-C-0343, 98-C-0356 (La. 12/1/98); 721 So. 2d 853, 857.
158
Rec. Doc. 69 at p. 13 (citing 2001-0219 (La. App. 3 Cir. 10/3/01); 796 So. 2d 791, 796).
159
Broussard, 796 So. 2d at 793–94.
160
Id. at p. 794.
161
Id. at 796.
26
allocated to the grandstand build.162 However, unlike in Broussard, in this case, although money was
allocated in the Cooperative Endeavor Agreement to the grandstand build, it was not allocated
specifically to NUSSLI. At the time the Cooperative Endeavor Agreement was signed on August
19, 2014, NUSSLI had not yet entered into a contract with NMHC.163 Therefore, NUSSLI’s
conversion claim is unlike that in Broussard because NUSSLI had no right under the Cooperative
Endeavor Agreement to those funds.
Therefore, this claim is indistinguishable from NUSSLI’s breach of contract claim. A claim
that money is owed to a plaintiff pursuant to contract is insufficient for a plaintiff to state a claim
for conversion.164 Accordingly, the Court grants NMHC’s motion to dismiss NUSSLI’s conversion
claim.
5.
Private Works Act
NMHC also moves to dismiss the Private Works Act claim on several grounds: (1) the PWA
does not apply because the Event was not a construction project within the meaning of the PWA;
(2) the PWA does not apply because NMHC is not a contractor nor is NUSSLI a subcontractor
within the meaning of the PWA; (3) NUSSLI has failed to plead that it delivered the notice required
by the PWA; and (4) at most, the privilege would apply to NMHC’s lease rights, not the land
162
Rec. Doc. 69 at p. 13.
163
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p. 14; Rec.
Doc. 47-2 at p. 9.
164
See New Orleans Jazz and Heritage Found., Inc. v. Kirksey, 2009-1433 (La. App. 4 Cir. 5/26/10); 40 So.
3d 394, 406) (“Under the Agreement in effect between KEI and the Foundation, KEI simply owes the Foundation
more money than it has paid. KEI failed to perform satisfactorily under its contract with the Foundation.
Accordingly, the Foundation may recover the money for rebates owed to it under the contract, but it has not alleged
facts sufficient to support a finding that either KEI or Mr. Kirksey ‘wrongfully converted’ the rebates.”).
27
itself.165 In opposition, NUSSLI contends that: (1) the modifications and physical changes to the land
in connection with the Indy Race were clearly within the scope of the PWA; (2) NUSSLI’s claim
and privilege are valid against all of the Chouest Defendants; and (3) the notice required under
Louisiana Revised Statute § 9:4802(G)(1) was provided.166
Pursuant to Louisiana Revised Statute § 9:4802, “[t]he following persons have a claim
against the owner and a claim against the contractor to secure payment of the following obligations
arising out of the performance of work under the contract: (1) Subcontractors, for the price of their
work. . . . (4) Lessors, for the rent of movables used at the site of the immovable and leased to the
contractor or a subcontractor by written contract.” Pursuant to Louisiana Revised Statute § 9:4801,
“[t]he following persons have a privilege on an immovable to secure the following obligations
arising out of a work on the immovable: (1) Contractors, for the price of their work . . . (4) Lessors,
for the rent of movables used at the site of the immovable and leased to the owner by written
contract.” NUSSLI asserts that as a lessor seeking payment for the rent of a movable (the
grandstands) placed on an immovable, its claim falls squarely within the terms of the PWA and it
is entitled to payment from the owner and the contractor, and a privilege against the immovable, the
NOLA Motorsports Park.167
NUSSLI and NMHC disagree over whether the lease of the grandstands was part of the
“performance of work” as defined in the PWA. Louisiana Revised Statute § 9:4808 defines work
as “a single continuous project for the improvement, construction, erection, reconstruction,
165
Rec. Doc. 67-1 at p. 13.
166
Rec. Doc. 69 at pp. 9–10.
167
Id. at p. 20.
28
modification, repair, demolition, or other physical change of an immovable or its component parts.”
NMHC asserts that there is no “work” at issue in this case as the grandstand rental was part of a
finite, three-day event.168 In opposition, NUSSLI contends that there can be little doubt that the
various constructions and modifications required with respect to the NOLA Motorsports Park
“consisted of improvement, modifications, repairs, and other physical changes to the Property.”169
In NUSSLI’s complaint, it alleges that NMHC agreed in the Cooperative Endeavor Agreement with
the State of Louisiana to “use appropriated funds to support planning, operations, and production
of the Indy Prix of Louisiana and to build the required track improvements and safety upgrades to
the NOLA Motorsports Park required by IndyCar in order to host the Event.”170 NUSSLI has
therefore alleged that there were track improvements and safety upgrades constituting “work” within
the meaning of the PWA.
However, to state a claim under the PWA, NUSSLI must have alleged that its provision of
the grandstands was part of the performance of that work. In the Lease Agreement, under “NUS’S
OBLIGATIONS,” NUSSLI agreed to the following activities: “(a) lease, supply, install and
thereafter remove the Equipment at the Event, in accordance with the time frames specified on
Schedule A hereto, (b) install the Equipment during or before the Installation Period, and (c) remove
the Equipment before or during the Removal Period.”171 NUSSLI alleges that the Equipment
168
Rec. Doc. 65-1 at p. 22.
169
Rec. Doc. 68 at p. 21 (citing NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372,
Rec. Doc. 47 at p. 27).
170
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p. 27.
171
Rec. Doc. 65-2 at p. 1.
29
discussed in the Lease Agreement were grandstands.172 NUSSLI does not allege anywhere in its first
amended complaint that the lease of the grandstands was part of the track improvements or safety
upgrades, or otherwise associated with physical change to the immovable or its component parts.
Therefore, NUSSLI does not have a claim or privilege under the PWA. Accordingly, the Court
grants NMHC’s motion to dismiss NUSSLI’s claim under the PWA.
6.
Request for Leave to Amend
Finally, NUSSLI requests that, in the event that the Court grants NMHC’s motion to dismiss
as to one or more of its causes of action, it request that it be granted leave to amend its first amended
complaint in accordance with the Court’s ruling.173 Other than making such a general request,
NUSSLI fails to explain exactly what amendments could be made to address the deficiencies in the
complaint. Pursuant to the Court’s Scheduling Order, “[a]mendments to pleadings, third-party
actions, cross claims, and counterclaims shall be filed no later than January 8, 2016, in accordance
with the Federal Rules of Civil Procedure and Local Rule 7.6.”174 Federal district courts have the
inherent power to enforce their scheduling orders,175 and Federal Rule of Civil Procedure 16(b)
provides that a scheduling order “may be modified only for good cause and with the judge’s
consent.”176
NUSSLI has already amended its complaint once, following the motions to dismiss filed by
172
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at p. 19.
173
Rec. Doc. 69 at p. 14.
174
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 39 at p. 2.
175
See Flaska v. Little River Marine Const. Co., 389 F.2d 885, 887 n.3 (5th Cir. 1968) (citing Link v.
Wabash R. Co., 370 U.S. 626, 630 (1962)); see also Finisar v. DirecTV Group, Inc., 424 F. Supp. 2d 896, 899 (E.D.
Tex. 2006).
176
Fed. R. Civ. P. 16(b)(4).
30
the Chouest Defendants and NMHC.177 At the time it amended its complaint, the Court had already
issued orders on the motions to dismiss filed by Defendants NOLA Motor, Chouest, and NMHC in
Andretti, with which this case is consolidated for the purposes of discovery.178 The claims in the
Andretti action overlap with many of the claims at issue in this case and the parties here repeatedly
reference the Court’s orders on the motions to dismiss in Andretti. Therefore, NUSSLI was on notice
regarding the Court’s likely rulings on certain legal arguments and claims. Furthermore, NUSSLI
has not alleged, nor does the Court perceive, what amendments could be made to address the
deficiencies in NUSSLI’s complaint. Therefore, the Court concludes that NUSSLI has failed to
demonstrate good cause and NUSSLI’s request for leave to amend its complaint is denied.
177
NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47.
178
Rec. Docs. 40, 42.
31
IV. Conclusion
For the foregoing reasons, the Court concludes that NUSSLI has failed to state a fraud,
LUTPA, conversion, or PWA claim against NMHC. Accordingly,
IT IS HEREBY ORDERED that NMHC “Motion to Dismiss Under Rule 12(b)(6) For
Failure to State a Claim”179 is GRANTED.
IT IS FURTHER ORDERED that NUSSLI’s request for leave to amend its complaint is
DENIED.
NEW ORLEANS, LOUISIANA, this 29thday of July, 2016.
___
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
179
Rec. Doc. 67.
32
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