Andretti Sports Marketing Louisiana, LLC v. NOLA Motorsports Host Committee, Inc. et al

Filing 163

ORDER granting in part and denying in part 86 Motion to Dismiss for Failure to State a Claim. The motion is granted to the extent that Andretti moves to dismiss NUSSLI's conversion claim and NUSSLI's claims under Louisiana's Unfair Trade Practices Act and the Private Works Act. The motion is denied with regard to NUSSLI's breach of contract claim and claim under Louisiana's Open Account Statute. Signed by Judge Nannette Jolivette Brown on 12/27/2016. (Reference: All Cases)(mmm)

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
for services rendered under a contract it entered into with NOLA Motorsports Host Committee,
Inc. (“NMHC”), NOLA Motor Club, LLC (“NOLA Motor”), and Andretti Sports Marketing,
Louisiana, LLC (“Andretti”).1 Pending before the Court is Andretti’s “Rule 12(b)(6) Motion to
Dismiss.”2 Having considered the motion, the memoranda in support, the memorandum in
opposition, the record, and the applicable law, the Court will grant in part and deny in part the
motion to dismiss.
I. Background
A.

Factual Background
In its second amended complaint, NUSSLI alleges that on July 6, 2014, Andretti entered

into a Racing Services Agreement with NMHC, whereby Andretti agreed to operate and manage

1

Rec. Doc. 84 at 1.

2

Rec. Doc. 95.

1

the Indy Grand Prix of Louisiana (“Event”).3 NUSSLI avers that Andretti approached NUSSLI to
supply, install, and remove grandstands to be used as seating during the Event in 2015 as well as
in subsequent Events scheduled for 2016 and 2017.4 NUSSLI states that on November 4, 2014,
Andretti, “acting as the authorized agent for the Lessee Parties,” entered into a Lease Agreement
with NUSSLI.5 NUSSLI contends that it relied on Andretti’s reputation and credibility when it
entered into the Lease Agreement for its grandstands.6 NUSSLI states 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 the 2015 Event to $652,008.54.7
NUSSLI also alleges that, pursuant to the Lease Agreement, the Lessee Parties 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 2017.8
According to NUSSLI, although the Event took place from April 10–12, 2015, NUSSLI
never received the amounts that were due under the Lease Agreement for the services it rendered.9
Instead, NUSSLI alleges that the funds it was owed were used to pay vendors who performed
capital improvements to the NOLA Motorsports Park and racing track.10 NUSSLI alleges that, to

3

Rec. Doc. 84 at 9, 19.

4

Id. at 20–21.

5

Id. at 20.

6

Id. at 22.

7

Id. at 25.

8

Id. at 27.

9

Id. at 21.

10

Id. at 21–22.

2

date, it has only received $293,404.04 for the 2015 Event, which is less than the $374,000 in funds
that were designated by the State of Louisiana for the “Grandstand Build,” and that it is still owed
$358,604.50.11
B.

Procedural Background
NUSSLI filed its original complaint on June 29, 2015, in which Andretti was not named as

a defendant.12 On January 8, 2016, NUSSLI filed its first amended complaint.13 On January 27,
2016, this case was consolidated with Andretti Sports Marketing Louisiana v. NOLA Motorsports
Host Committee for discovery purposes only.14 On February 2, 2016, NUSSLI filed a motion for
leave to file a second amended complaint in order to add Andretti as a defendant.15 NUSSLI stated
that it had aimed to informally resolve its claims against Andretti, but because Andretti sought to
settle its own claims against the other Defendants without including NUSSLI, NUSSLI had “no
choice but to now assert these claims” against Andretti as one of the named “Lessee Parties” to
NUSSLI’s Lease Agreement.16 On March 4, 2016, the Court granted NUSSLI’s motion to file a
second amended complaint.17

11

Id. at 27.

12

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 1.

13

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47.

14

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 57.

15

Rec. Doc. 74.

16

Id. at 1–2.

17

Rec. Doc. 83.

3

On March 22, 2016, Andretti filed the instant motion to dismiss NUSSLI’s claims pursuant
to Federal Rule of Civil Procedure 12(b)(6).18 On April 5, 2016, NUSSLI opposed the motion.19
On April 11, 2016, Andretti filed a motion for leave to file a reply memorandum. 20 On April 12,
2016, the Court granted Andretti leave to file a reply.21
II. Parties’ Arguments
A.

Andretti’s Arguments in Support of Dismissal
Andretti moves to dismiss all of NUSSLI’s claims under Louisiana’s Unfair Trade

Practices Act (“LUTPA”), Louisiana’s Open Account Statute (“OAS”), Louisiana’s Private Works
Act (“PWA”), and for breach of contract and conversion against Andretti for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). 22
NUSSLI’s Breach of Contract Claim

1.

First, Andretti argues that NUSSLI’s breach of contract claim should be dismissed because,
according to Andretti, it was not a party to NUSSLI’s Lease Agreement and thus contractual privity
does not exist.23 Andretti asserts that NUSSLI and NMHC are the sole parties to the Lease
Agreement and are the only parties that signed the Lease Agreement and two Change Orders.24
Andretti points out that the first paragraph of the Lease Agreement explicitly provides that the

18

Rec. Doc. 86.

19

Rec. Doc. 95.

20

Rec. Doc. 96.

21

Rec. Doc. 100.

22

Rec. Doc. 86; Rec. Doc. 86-1 at 1–2.

23

Rec. Doc. 86-1 at 4.

24

Id.

4

agreement is “made by and between” NMHC as the “Lessee” and NUSSLI. 25 According to
Andretti, the Lease Agreement further provides that “Lessee desires to lease from [NUSSLI]
certain equipment” and that “Lessee will pay [NUSSLI] rent,” and that the Lease Agreement does
not impose any obligations on any other Defendant.26 NUSSLI avers that only Kristen Engeron,
the President of NMHC, signed the Lease Agreement and the two Change Orders.27
Andretti further represents that the only reference to the other Defendants in the Lease
Agreement is in an indemnification provision requiring NUSSLI to indemnify NMHC, NOLA
Motor Club, Motor Realty, and Andretti for any of NUSSLI’s negligent acts or omissions.28
Andretti argues a provision protecting Andretti from NUSSLI’s negligence does not create any
obligations or liabilities for Andretti.29
Finally, Andretti contends that NUSSLI has not pleaded and cannot plead any facts that
demonstrate Andretti was an authorized agent for NMHC or any of the Lessee Parties.30 Moreover,
Andretti argues that the Racing Services Agreement between Andretti and NMHC specifically
provides that Andretti and NMHC are “independent contractors” and that “nothing in the [Racing
Services Agreement] shall be construed to create a partnership, joint venture or agency relationship
between the parties.”31

25

Id. at 5.

26

Id.

27

Id. at 6.

28

Id.

29

Id. at 6–7.

30

Id. at 7.

31

Id. at 7–8.

5

2.

All other claims by NUSSLI

Second, Andretti avers that, to the extent applicable, any of NUSSLI’s claims under
LUTPA, OAS, PWA, and/or conversion that were intended to be alleged against Andretti should
be dismissed as well.32 For example, Andretti states that NUSSLI has alleged a claim under
LUTPA for the other Defendants’ alleged acts of deception, misrepresentation, and/or fraud.33
However, Andretti avers that NUSSLI “goes to great length in the Complaint to make clear” that
Andretti was also a target and victim of any deception, rather than a perpetrator liable under
LUTPA, and does not allege any acts by Andretti that would state a claim under LUPTA. 34
Likewise, Andretti contends that NUSSLI brought a claim under OAS for the other Defendants’
failure to pay the balance due on NUSSLI’s open account for amounts owed under the Lease
Agreement, and a claim under the PWA against the other Defendants as “owners” or “contractors”
for amounts due for the grandstand rentals.35 However, Andretti argues that it was not a party to
the Lease Agreement or acting as an agent for NMHC, and thus cannot be liable under either OAS
or the PWA.36 Finally, Andretti points out that NUSSLI alleged in its complaint that the “Chouest
Defendants” committed wrongful acts of conversion “unbeknownst to Andretti,” and thus, to the

32

Id. at 8.

33

Id. at 8–9.

34

Id. at 9.

35

Id.

36

Id. at 9–10.

6

extent that NUSSLI now seeks to bring a conversion claim against Andretti, Andretti asserts it
should also be dismissed.37
B.

NUSSLI’s Arguments in Opposition to Dismissal
In its opposition memorandum, NUSSLI states that it only asserts claims against

Andretti for breach of contract based upon the Lease Agreement as well as its related claims under
OAS and the PWA.38 NUSSLI clarifies that it does not assert a claim against Andretti under
LUTPA or for conversion.39
1.

Breach of Contract Claim and Claim under Louisiana’s Open Account Statute

NUSSLI first avers that it has adequately pleaded a claim for breach of contract and a
claim under OAS, because Andretti was a party to the Lease Agreement.40 According to NUSSLI,
Andretti and NMHC entered into a Racing Services Agreement whereby Andretti agreed to
manage many aspects of three Events scheduled for 2015, 2016, and 2017.41 NUSSLI asserts that
the Racing Services Agreement “employed a great deal of legalese to obfuscate the true nature of
the relationship” between NMHC and Andretti.42 For example, NUSSLI avers that the Racing
Services Agreement stated that Andretti and NMHC were not agents of one another, “despite

37

Id. at 10.

38

Rec. Doc. 95 at 2.

39

Id.

40

Id. at 6.

41

Id. at 3.

42

Id.

7

authorizing Andretti to act and sign contracts on [NMHC]’s behalf,” and that they were not joint
venturers, “despite their intention to share in profits from the Indy Race.”43
However, NUSSLI avers that its Lease Agreement designated Andretti, through its
employee, Craig Campbell, to perform certain duties with regard to NUSSLI’s grandstand
installation, such as requiring Campbell’s signature on a Change Order and requiring invoices and
notices for “Lessee” to be sent to Campbell instead.44 NUSSLI also points out Andretti’s prominent
role in operating and managing the Event, and that NMHC has averred in its own motions that it
was only responsible for providing the initial $1 million in funding for the Event.45
NUSSLI further argues that its Lease Agreement identified Andretti as one of the
“Lessee Parties.”46 NUSSLI avers that the plain language of the Lease Agreement makes each of
the Lessee Parties liable for the rent owed to NUSSLI. 47 According to NUSSLI, the Lease
Agreement contained a signature block for Andretti and identified Andretti as the “LESSEE”
entering into the agreement.48 Moreover, NUSSLI states that the Lease Agreement only imposes
an obligation to pay rent on the generic “Lessee,” which corresponds to Andretti’s label as a

43

Id.

44

Id.

45

Id. at 4.

46

Id. at 4, 6.

47

Id. at 6.

48

Id.

8

“LESSEE” in its signature block.49 Accordingly, NUSSLI asserts that there is “ample evidence”
to show that Andretti was a party to the Lease.50
Next, NUSSLI states that the Louisiana Civil Code defines the principal-agent
relationship, or mandatary, as “a contract by which a person, the principal, confers authority on
another person, the mandatary, to transact one or more affairs for the principal.”51 NUSSLI asserts
that NMHC “undisputedly conferred authority upon Andretti to transact on its behalf.” 52 For
example, NUSSLI argues that the Racing Services Agreement required Andretti to “seek approval
from NMHC before executing any agreement in excess of $5,000 in support of the Event.” 53
NUSSLI further avers that the Racing Services Agreement required Andretti: to “manage the cash
flow” to ensure that the Event funds “are sufficient to timely pay for all costs necessary to fund
the event;” to “act [as] NMHC’s contractor” responsible for the Event budget; to “provide
oversight and management of all commercial activities” of the Event; and to “execute the [Event]
both operationally and commercially.”54 Moreover, NUSSLI points out that Kristen Engeron, the
President of NMHC, signed under Andretti’s signature block, further raising a factual issue as to
the existence and scope of an agency relationship between the two entities.55

49

Id. at 7.

50

Id.

51

Id. at 8. (citing La. Civ. Code art. 2989).

52

Id.

53

Id.

54

Id. at 8–9.

55

Id. at 9.

9

2.

NUSSLI’s Private Works Act Claim

Second, NUSSLI argues that Andretti is liable as a contractor under the PWA.56
According to NUSSLI, Andretti’s “only defense to liability” under the PWA is that it was not a
Lessee under NUSSLI’s Lease Agreement.57 NUSSLI contends that it has pleaded sufficient facts
to show that Andretti was a lessee party, and thus, NUSSLI avers, this defense should fail.58
Alternatively, NUSSLI argues that even if the Court finds that Andretti was not a lessee party,
Andretti was also a contractor under the terms of the PWA and is thus still liable for the lease of
the movables under the PWA.59 According to NUSSLI, the PWA does not require direct privity of
contract, and Andretti is liable as a contractor because it “contract[ed] with an owner to perform
all or a part of a work.”60
NUSSLI, referring the Court to the arguments in its opposition to the other Defendants’
motions to dismiss, contends that it meets the other required elements of the PWA because it leased
a movable for rent at the site of the immovable to a contractor.61 NUSSLI contends that there is
“little dispute that the various constructions and modifications . . . to the NOLA Park consisted of
improvement, modifications, repairs, and other physical changes to the Property.” 62 Moreover,

56

Id. at 10.

57

Id.

58

Id.

59

Id.

60

Id.

61

Id. at 11 (citing Rec. Doc. 50 at 20–27).

62

Id.

10

NUSSLI asserts that the Racing Services Agreement establishes that Andretti contracted with
NMHC, “an owner[,] to perform all or a part of a work,” and is thus liable under the PWA.63
C.

Andretti’s Arguments in Further Support of Dismissal
1.

Breach of Contract Claim and Claim under Louisiana’s Open Account Statute

Andretti responds that the unambiguous terms of the Lease Agreement demonstrate that
Andretti is not the “Lessee” under the agreement, and that the terms “Lessee” and “Lessee Parties”
are separately defined in the Lease Agreement with different meanings.64 According to Andretti,
the Lease Agreement defines the “Lessee” as NMHC, and defines the “Lessee Parties” for
indemnification purposes only as “Lessee, NOLA Motor Club, LLC, Motor Realty, LLC,
[Andretti] and their directors.”65 Andretti points out that the definition of the “Lessee Parties”
includes both Andretti and the “Lessee,” further demonstrating that Andretti is not the “Lessee.”66
Andretti argues that the Lease Agreement only imposes the obligation to pay rent to NUSSLI on
the “Lessee,” not the indemnified “Lessee Parties.”67
Furthermore, Andretti avers that the Lease Agreement was only signed by Kristen
Engeron, the President of NMHC, and the reference to Andretti as “Lessee” above the signature
block was erroneously included by NUSSLI, the drafter of the Lease Agreement. 68 Andretti

63

Id. at 12.

64

Rec. Doc. 101 at 2.

65

Id. at 3.

66

Id.

67

Id.

68

Id. at 4.

11

contends that the unambiguous and express terms of the Lease Agreement clearly show that this
was merely a scrivener’s error.69 Andretti also avers that the two Change Orders correctly list
NMHC on the signature block and were signed by Kristen Engeron on behalf of NMHC, and not
on behalf of Andretti.70 According to Andretti, any errors in the Lease Agreement must be
construed against NUSSLI as the drafter.71
Moreover, Andretti argues that it is irrelevant whether or not it was an agent of NMHC, as
it did not sign the Lease Agreement for itself or as the agent of NMHC.72 Andretti also states that
NUSSLI did not allege sufficient facts that Andretti transacted any business with NUSSLI as an
agent of NMHC.73 Andretti also points out that NUSSLI admits Andretti was a target of the alleged
deception by Defendant Chouest and the Chouest-related Defendants, which Andretti avers proves
that Andretti was not the agent of NMHC.74 Thus, Andretti asserts that, because it was not a party
to the Lease Agreement, NUSSLI’s breach of contract and Open Account Statute claims must be
dismissed with prejudice.75

69

Id.

70

Id. at 4–5.

71

Id. at 5.

72

Id.

73

Id. at 5–6.

74

Id. at 6.

75

Id. at 7.

12

2.

Private Works Act Claim

Next, Andretti argues that under La. Rev. Stat. § 9:4802.A(4) of the PWA, lessors only
have a claim for the lease of movables to a contractor or a subcontractor “by written contract.” 76
Thus, because there was no written contract, Andretti asserts, it cannot be subject to any PWA
claim by NUSSLI.77 Andretti also states that NUSSLI’s claim under the PWA fails because: (1)
the renting of grandstands was part of an event, and not a “work” as required and defined by the
PWA; (2) Andretti was not a “contractor” for purposes of the Event or the grandstands rental under
the PWA; and (3) Andretti failed to provide proper notice to any owner or contractor as required
by the PWA.78 Andretti states that it incorporates and adopts the arguments set forth by the other
Defendants in their motion to dismiss NUSSLI’s claims under the PWA.79
III. 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.”80 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”81 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that

76

Id. at 8 (quoting La. Rev. Stat. § 9:4802.A(4)).

77

Id.

78

Id.

79

Id. (citing Rec. Doc. 40 at 21–25).

80

Fed. R. Civ. P. 12(b)(6).

81

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

13

is plausible on its face.’”82 “Factual allegations must be enough to raise a right to relief above the
speculative level.”83 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.”84
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.85 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.86 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”87
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.88 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.89 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”90 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

82

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

83

Twombly, 550 U.S. at 556.

84

Id. at 570.

(2008)).

85

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).
86

Iqbal, 556 U.S. at 677–78.

87

Id. at 679.

88

Id. at 678.

89

Id.

90

Id.

14

the asserted claims.91 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.92
It is well-established that, in deciding whether to grant a motion to dismiss pursuant to
Rule 12(b)(6), a district court may not “go outside the complaint.”93 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.94 “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.”95 If, however, a district court
considers other information outside the complaint, it must treat the motion to dismiss as a motion
for summary judgment.96
B.

Legal Standard for 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.97 In Louisiana, “courts must begin every legal

91

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

92
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).
93
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).
94

Id.; see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

95

Carter, 541 F. App’x at 416.

96

Fed. R. Civ. P. 12(d); Rodriguez, 310 F. App’x at 626.

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).
97

15

analysis by examining primary sources of law: the State’s Constitution, codes, and statutes.” 98
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.”99 To make a so-called “Erie guess” on an issue of Louisiana law, the Court must
“employ the appropriate Louisiana methodology” to decide the issue the way that it believes the
Supreme Court of Louisiana would decide it.100 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.101
C.

Analysis
In its motion to dismiss, Andretti alleges that NUSSLI has failed to state a claim pursuant

to Rule 12(b)(6).102 First, the Court notes that NUSSLI states that it is not asserting a claim for
conversion or a claim under Louisiana’s Unfair Trade Practices Act against Andretti. 103
Accordingly, the Court will grant Andretti’s motion to dismiss to the extent that it seeks to dismiss
a claim for conversion and a claim under LUTPA. NUSSLI contends that it is asserting three
claims against Andretti: (1) a breach of contract claim; (2) a claim under the Open Account Statute;

98

Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 547 (5th Cir. 2004).

99

Id. (quoting La. Civ. Code. art. 1 rev. cmt. b).

100

Id. (citation omitted).

101

In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).

102

Rec. Doc. 86.

103

Rec. Doc. 95 at 2.

16

and (3) a claim under the Private Works Act.104 The Court will address the arguments regarding
each claim in turn.
1.

Breach of Contract Claim
Andretti argues that NUSSLI’s breach of contract claim must be dismissed because

Andretti was never a party to NUSSLI’s Lease Agreement.105 Andretti asserts that the Lease
Agreement defined Andretti as one of the indemnified “Lessee Parties,” and that only NMHC, as
the defined “Lessee,” was obligated to pay rent under the contract.106 Andretti avers that only the
President of NMHC signed the contract, and that any reference to Andretti in the signature block
as the “Lessee” was a drafting error made by NUSSLI.107 Andretti also argues that it is irrelevant
whether it was an agent of NMHC, as it did not sign the Lease Agreement for itself or as the agent
of NMHC.108
By contrast, NUSSLI asserts that Andretti was a party to the Lease Agreement, and thus
NUSSLI contends it has adequately pleaded a claim for breach of contract. 109 NUSSLI contends
that the signature page of the Lease agreement identifies Andretti as “LESSEE,” and that while
Kristen Engeron signed the contract, “[i]t is unclear whether Engeron signed the Lease on behalf
of Andretti, as substitute for Andretti, or as a joint obligor with Andretti.” 110 NUSSLI avers that

104

Id.

105

Rec. Doc. 86-1 at 1.

106

Rec. Doc. 101 at 2–4.

107

Id. at 4–6.

108

Id. at 5.

109

Rec. Doc. 95 at 6.

110

Id. at 9.

17

the Lease Agreement also permitted Andretti’s employee, Craig Campbell, to sign any Change
Orders modifying the original Lease Agreement and to receive any invoices and notices intended
for “Lessee.”111 NUSSLI further argues that its Lease Agreement identified Andretti as one of the
“Lessee Parties.”112 NUSSLI also points out Andretti’s prominent role in operating and managing
the Event, such as Andretti’s alleged responsibility for handling the Event budget and ensuring
there were sufficient funds to timely pay all costs of the Event.113
Under Louisiana law, “[a]n obligor is liable for the damages caused by his failure to
perform a conventional obligation.”114 To survive a motion to dismiss on its breach of contract
claim against Andretti, NUSSLI must plausibly plead that: (1) Andretti undertook an obligation to
perform; (2) Andretti failed to perform the obligation; and (3) the failure to perform resulted in
damages to NUSSLI.115 Here, Andretti argues that NUSSLI failed to plausibly allege the first
element of a breach of contract claim, i.e. that Andretti was a party to the contract and was
obligated to pay rent to NUSSLI for the use of its grandstands. 116 In its Second Amended
Complaint, NUSSLI alleges that Andretti approached NUSSLI to lease, supply, install, and
remove grandstands, and that Andretti, “acting as the authorized agent for the Lessee Parties,

111

Id.

112

Id.

113

Id. at 4, 8–9.

114
La. Civ. Code art. 1994; see Schafer v. State Farm Fire & Cas. Co., 507 F. Supp. 2d 587, 597 (E.D. La.
2007) (Duval, J.).
115

See La. Civ. Code art. 1994; Denham Homes, L.L.C. v. Teche Fed. Bank, 2014-1576 (La. App. 1 Cir.
9/18/15), 182 So. 3d 108, 119. See also Envtl., Safety & Health Consulting Servs. v. Crest Energy Partners, L.P.,
No. 13-5747, 2015 WL 2452458, at *4 (E.D. La. May 21, 2015) (Berrigan, J.).
116

Rec. Doc. 86-1 at 4.

18

executed the Lease Agreement with NUSSLI on or about November 4, 2014.”117 NUSSLI also
alleged that it relied on Andretti’s reputation and credibility when NUSSLI agreed to lease its
grandstands for the Event.118
Moreover, the Lease Agreement, which was attached to the First Amended Complaint119
and repeatedly referenced throughout the Second Amended Complaint,120 provides that the
“Lessee” is obligated to pay NUSSLI rent for its services, and identifies Andretti as the “Lessee”
on the final page of the contract.121 It also permits Craig Campbell, who NUSSLI asserts is an
employee of Andretti, to validly sign a Change Order deducting or adding new costs and services
to the original contract.122 The Lease Agreement also requires any invoices, payments, and notices
that are intended for Lessee to be sent to Andretti.123 In response, Andretti argues that the Lease
Agreement clearly identified NMHC as the “Lessee,” and that labelling Andretti as the “Lessee”
in the signature block was a scrivener’s error.124 However, the disputed issue of whether naming
Andretti as a “Lessee” in the Lease Agreement was a mistake is not one properly decided on a
motion to dismiss.125 Rather, while reviewing this motion to dismiss, the Court cannot look beyond

117

Rec. Doc. 84 at 20 (emphasis in the original).

118

Id. at 22.

119

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47-2.

120

Rec. Doc. 84.

121

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47-2 at 3, 9.

122

Id. at 2.

123

Id.; NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47-2 at 6.

124

Rec. Doc. 101 at 4.

125
See generally Chase Manhattan Bank v. First Marion Bank, 437 F.2d 1040, 1049 (5th Cir. 1971)
(requiring “clear, positive, and convincing evidence of a scrivener’s error” to conclude that the written agreement
fails to reflect the real agreement between the parties and permitting reformation (internal citations and quotation

19

the pleadings, and is required to accept all well-pleaded facts as true and view them in the light
most favorable to NUSSLI.126 Here, NUSSLI has alleged that Andretti executed the Lease
Agreement, and NUSSLI has pointed to multiple provisions in the Lease Agreement that
demonstrate Andretti assumed significant responsibilities while managing the Event. Moreover,
NUSSLI has alleged that the Lease Agreement designates Andretti as the “Lessee” responsible for
paying rent to NUSSLI. Accordingly, construing the complaint liberally and accepting all wellpleaded facts as true, the Court finds that NUSSLI has alleged sufficient facts to state a claim that
Andretti is liable for the alleged contractual breaches. Therefore, Andretti’s motion to dismiss
NUSSLI’s breach of contract claim for failure to state a claim is denied.
Claim under Louisiana’s Open Account Statute

2.

Andretti also moves to dismiss NUSSLI’s claim under OAS on the grounds that Andretti
is not a party to the Lease Agreement.127 However, for the reasons discussed supra, the Court finds
that NUSSLI has alleged sufficient facts at this stage to support a claim that Andretti was a party
to the Lease Agreement. Therefore, the Court denies Andretti’s motion to dismiss NUSSLI’s open
account claim.

marks omitted)); Employers Mut. Cas. Co. v. Normmurray Springs Bottled Water Co., No. 1:08CV255, 2011 WL
902032, at *5 (N.D. Miss. Mar. 14, 2011) (stating that a “mistake of a scrivener in drafting a document may be
reformed based upon parol evidence, provided the evidence is clear, precise, convincing and of most satisfactory
character that the mistake has occurred and that the mistake does not reflect the intent of the parties.” (internal
quotation marks omitted) (citing 66 Am. Jur. 2d Reformation of Instruments § 19)).
126
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); S & A Rest. Corp. v. Lane, No. 306CV1550L, 2007
WL 4403304, at *2 (N.D. Tex. Dec. 18, 2007).
127

Rec. Doc. 101 at 7.

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3.

Claim under Louisiana’s Private Works Act
Andretti also moves to dismiss NUSSLI’s claim under the PWA on several grounds: (1)

because there is no written contract, NUSSLI cannot assert a claim under the PWA for the lease
of movables to a contractor or a subcontractor; (2) the renting of grandstands was not a “work” as
required and defined by the PWA; (3) Andretti was not a “contractor” for purposes of the Event
under the PWA; and (4) Andretti failed to provide proper notice to any owner or contractor as
required by the PWA.128 In opposition, NUSSLI contends that: (1) it has pleaded sufficient facts
to show that Andretti was a party to the Lease Agreement, and thus could be liable under the PWA;
(2) the “various constructions and modifications” done in connection with the Event qualifies as a
“work” under the PWA as “improvements, modifications, repairs, and other physical changes to
the Property;” (3) Andretti was a contractor for the purposes of the PWA; and (4) the Racing
Services Agreement establishes that Andretti contracted with NMHC, “an owner[,] to perform all
or a part of a work,” and is thus liable under the PWA.129
Louisiana state courts have found that the “fundamental aim” of the Louisiana legislature
in enacting the PWA was to “protect materialmen, laborers and subcontractors who engage in
construction and repair projects.”130 The PWA “was enacted to facilitate construction of
improvements on immovable property and does so by granting to subcontractors, among others,”

128

Rec. Doc. 101 at 8.

129

Rec. Doc. 95 at 10–11.

130

Byron Montz, Inc. v. Conco Const., Inc., 2002-0195 (La. App. 4 Cir. 7/24/02), 824 So. 2d 498, 502. See
also La. R.S. 9:4801 et seq.; Hibernia Nat. Bank v. Belleville Historic Dev., L.L.C., 01–0657 (La. App. 4 Cir.
3/27/02), 815 So.2d 301, 305–06; Bernard Lumber Company, Inc. v. Lake Forest Construction Co., Inc., 572 So.2d
178 (La. App. 1 Cir. 1990).

21

rights to recover the costs of their work.131 Louisiana state courts have further held that the PWA
“must be strictly construed.”132
Pursuant to La. Rev. Stat. § 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.” Likewise, under La. Rev. Stat. § 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.133
The Court will first address the issue of whether the leasing of grandstands was part of
the “performance of work” as defined in the PWA.134 La. Rev. Stat. § 9:4808 defines “work” 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.” Andretti adopted the arguments set forth by the other Defendants in their motions to

131

Byron Montz, Inc., 824 So. 2d at 502.

132

Id.

133

Rec. Doc. 95 at 10–12.

134

La. Rev. Stat. § 9:4802.

22

dismiss,135 who asserted that there is no “work” at issue in this case as the grandstand rental was
part of a finite, three-day event.136 In opposition, NUSSLI contends that there is “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 to the Property.”137
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.”138
NUSSLI has therefore alleged that there were track improvements and safety upgrades constituting
“work” within the meaning of the PWA.
However, what remains to be determined is whether NUSSLI has 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.”139 NUSSLI alleges that the

135

Rec. Doc. 101 at 8.

See Rec. Doc. 65-1 at 22; see also Rec. Doc. 101 at 8 (Andretti arguing that “the renting of the
grandstands to NMHC was part of an event, not a “work” as that term is defined in the PWA”).
136

137

Rec. Doc. 95 at 11.

138

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at 27.

139

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47-2 at 1.

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Equipment discussed in the Lease Agreement were grandstands.140 NUSSLI does not allege
anywhere in its complaint that the lease of the grandstands was part of the track improvements or
safety upgrades, or otherwise involving any physical change to the immovable or its component
parts. As this Court previously discussed when denying NUSSLI’s motion for reconsideration of
the Court’s dismissal of the same PWA claim alleged against other Defendants,141 NUSSLI has
not demonstrated that the temporary renting of seating to be used during a racing event constitutes
a “single continuous project for the improvement, construction, erection, reconstruction,
modification, repair, demolition, or other physical change of an immovable or its component
parts.”142 Here, NUSSLI has not plausibly alleged that installing grandstands was part of any
underlying physical change to the land, such as the improvements or upgrade to the race track
property done to prepare for the Event. Rather, NUSSLI has only alleged that installing the
grandstands was performed for the Event alone, and has not alleged that its services included any
physical changes to the land that might qualify the temporary rental of event seating as a “work”
under the PWA.143 Thus, the Court finds that NUSSLI has failed to allege sufficient facts to state
a claim against Andretti under the PWA. Accordingly, the Court grants Andretti’s motion to
dismiss NUSSLI’s claims under the PWA. 144

140

NUSSLI US, LLC v. NOLA Motorsports Host Committee, Inc., No. 15-2372, Rec. Doc. 47 at 19.

141

See generally Rec. Doc. 162 (explaining in depth why NUSSLI failed to state the same PWA claim
against other Defendants and denying NUSSLI’s motion for reconsideration).
142

La. R.S. § 9:4808 (emphasis added).

143

See Rec. Doc. 162 at 24.

144

Andretti asserts several other arguments in support of its motion to dismiss the PWA claims. In light of
the Court’s ruling that NUSSLI does not have a claim or privilege because it did not perform any “work” as defined
in the PWA, the Court need not address these additional arguments.

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IV. Conclusion
For the foregoing reasons, the Court concludes that NUSSLI has pleaded sufficient facts
to state a breach of contract claim and a claim under Louisiana’s Open Account Statute. The Court
concludes that NUSSLI has failed to state a claim against Andretti for conversion or a claim under
LUTPA or the Private Works Act. Accordingly,
IT IS HEREBY ORDERED that the Andretti’s “Rule 12(b)(6) Motion to Dismiss”145
is GRANTED IN PART and DENIED IN PART. The motion is granted to the extent that
Andretti moves to dismiss NUSSLI’s conversion claim and NUSSLI’s claims under Louisiana’s
Unfair Trade Practices Act and the Private Works Act. The motion is denied with regard to
NUSSLI’s breach of contract claim and claim under Louisiana’s Open Account Statute.
NEW ORLEANS, LOUISIANA, this _____ day of December, 2016.
27th
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

145

Rec. Doc. 86.

25