Hi-Tech Electric, Inc. of Delaware v. T&B Construction and Electrical Services, Inc.

Filing 112

ORDER AND REASONS granting 92 Plaintiff Hi-Tech's Motion to Dismiss defendant T&B Construction and Electrical Services, Inc.'s first, fourth, sixth, eighth, and ninth causes of action in the counterclaim.. Signed by Judge Sarah S. Vance on 2/15/17. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HI-TECH ELECTRIC, INC. OF
DELAWARE
VERSUS

CIVIL ACTION
NO. 15-3034

T&B CONSTRUCTION AND
ELECTRICAL SERVICES, INC.

SECTION “R” (4)

ORDER AND REASONS
Before the Court is plaintiff Hi-Tech Electric, Inc. of Delaware’s (HTE)
motion to dismiss defendant T&B Construction and Electrical Services, Inc.’s
(T&B) first, fourth, sixth, eighth, and ninth causes of action.1

For the

following reasons, the Court GRANTS plaintiff’s motion.

I.

BACKGROUND
HTE is a Delaware corporation based in Houston, Texas,2 and T&B is

a Louisiana corporation and a certified Service Disabled Veteran Owned
Small Business.3

On or around September 30, 2009, Clark/McCarthy

Healthcare Partners JV (CMHP) entered into a contract with the United

1
2
3

R. Doc. 92.
Id. at 1 ¶¶ 1-2.
R. Doc. 90 at 2 ¶ 3.

States of America, by and through the Department of Veterans Affairs, to
perform work for the Southeast Veterans Healthcare System Replacement
Hospital in New Orleans (the VA Project).4 HTE and T&B both sought to
take advantage of programs through the Small Business Administration, and
decided to cooperatively perform work for the VA project.5 On or about
August 24, 2011, HTE and T&B entered into a Teaming Agreement, pursuant
to which HTE and T&B agreed to cooperate on proposals for the VA Project.6
The Teaming Agreement also provided that if T&B were awarded contracts
for the VA Project, then T&B and HTE would negotiate in good faith for
subcontracts to perform work pursuant to those contracts.7
On or about January 18, 2012, CMHP entered into a written
subcontract (Pan Am Subcontract) with T&B in which T&B agreed to
perform electrical work for the VA project in the Pan Am building in New
Orleans (Pan Am Project).8 The Pan Am Subcontract included work to be
performed by HTE, as set forth in the Teaming Agreement.9 T&B was also
awarded a contract to build a parking structure for the VA Project.10 Both

4
5
6
7
8
9
10

R. Doc. 1 at 2 ¶ 10.
Id. at 3-4 ¶¶ 12-16.
R. Doc. 1 at 3 ¶ 11.
R. Doc. 1-1 at 3 ¶ 6.1
R. Doc. 1 at 3 ¶ 13.
Id. ¶ 14.
R. Doc. 90 at 6 ¶ 36.
2

contracts established that T&B would be the Prime Subcontractor, and that
T&B would use HTE as a sub-subcontractor.11
On or about May 29, 2013, the parties entered into a Memorandum of
Understanding (MOU), which addressed the work to be performed by each
party and the manner in which payments would be made for work done on
the VA Project.12 From this date forward, the facts are disputed. HTE alleges
that it properly and timely performed its work on the Pan Am Project but has
not yet been paid.13 HTE further alleges that despite the VA’s approval of
HTE’s applications for payment and CMHP’s willingness to pay HTE, T&B
has demanded that HTE not be paid.14 Therefore, HTE alleges that T&B
breached both the Teaming Agreement and the MOU.15
T&B offers a different picture. According to T&B, HTE has failed to
make good on many of the promises contained in the Teaming Agreement,
and these breaches resulted in HTE’s default under the Teaming
Agreement.16 T&B further alleges that the MOU is unenforceable because it
is contrary to public policy and illegal.17

11
12
13
14
15
16
17

Id. at 6-7 ¶¶ 36, 38.
R. Doc. 1 at 3 ¶ 15.
Id. at 4 ¶ 16.
Id. ¶ 17.
Id. at 4-8.
R. Doc. 90 at 17-21.
Id. at 13 ¶ 73.
3

Additionally, T&B alleges

throughout its counterclaim that HTE has violated multiple federal laws and
regulations.18
On July 29, 2015, HTE filed its complaint against T&B, and brought
claims for breach of both the Teaming Agreement and the MOU, as well as
for violation of the Louisiana Prompt Payment Statute, La. Stat. Ann. §
9:2784.19 On November 1, 2016, T&B filed a counterclaim against HTE,
asserting nine causes of action.20

Specifically, T&B alleges tortious

interference with contract, malicious negligence, breach of fiduciary duty,
negligent misrepresentation of material facts, breach of contract through
negligent misrepresentation of material facts, breach of contract through
intentional interference with contract, breach of contract, unjust
enrichment, and conversion.21

Both parties seek damages, reasonable

attorneys’ fees, and costs.22
HTE now moves the Court to dismiss five of the nine causes of action
in T&B’s counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6).
T&B filed a response in opposition,23 and HTE replied.24

18
19
20
21
22
23
24

See generally R. Doc. 90.
R. Doc. 1 at 4-7.
R. Doc. 90.
Id. at 27-52.
R. Doc. 1 at 9; R. Doc. 90 at 53.
R. Doc. 99.
R. Doc. 108.
4

II.

LEGAL STANDARD
When a defendant attacks the complaint because it fails to state a

legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge.
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead enough
facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 547 (2007)). A claim is facially plausible when a plaintiff pleads facts
that allow the court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 678. A court must accept all wellpleaded facts as true and must draw all reasonable inferences in favor of the
plaintiffs. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.
2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not
bound to accept as true legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that plaintiffs’ claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
5

of each element of the plaintiffs’ claim. Lormand, 565 F.3d at 255-57. If
there are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.

III. DISCUSSION
A.

Cause of Action One—Tortious Interference with
Contract

The first cause of action in T&B’s counterclaim is for tortious
interference with contract. T&B alleges that after it was awarded the Pan Am
Project, HTE interfered with this contract by refusing to enter into good faith
negotiations with T&B, refusing to provide mentoring to T&B as promised,
and refusing to comply with the Project’s Small Business Subcontracting
Program under federal regulations.25 In its motion to dismiss, HTE argues
that under Louisiana law tortious interference with contract claims cannot
be maintained against corporate entity defendants.26

To resist this

conclusion, T&B argues that despite only suing HTE and none of its

25
26

R. Doc. 90 at 27 ¶ 159.
R. Doc. 92-1 at 5.
6

corporate officers individually, it makes allegations against individual
officers of HTE and therefore its tortious interference claim should survive.27
Louisiana courts and federal courts applying Louisiana law have made
clear that claims for tortious or intentional interference with a contract
cannot be maintained against corporate defendants. The Louisiana Supreme
Court recognized a narrow cause of action of tortious interference in 9 to 5
Fashions, Inc. v. Spurney, 538 So. 2d 228 (La. 1989). Spurney recognized
that an action for tortious interference with contract could be maintained
against a corporate officer if a plaintiff had a contract or legally protected
interest with the officer’s corporation, the officer knew of the contract, and
the officer intentionally and without justification caused the corporation to
breach the contract and damage the plaintiff. Id. at 234. But Louisiana
courts have not expanded the limited scope of Spurney to other situations,
see Petrohawk Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380,
395 (5th Cir. 2012) (collecting cases), and have continued to hold that there
can be no claim for tortious interference against the corporate entity itself.
See, e.g., Restivo v. Hanger Prosthetics & Orthotics, Inc., 483 F. Supp. 2d
521, 536 (E.D. La. 2007) (holding that tortious interference with contract
“cannot be maintained against a corporate entity defendant”) (citing Tech.

27

R. Doc. 99 at 3.
7

Control Sys., Inc. v. Green, 809 So. 2d 1204, 1207 (La. App. 3 Cir. 2002);
Boudreaux v. OS Restaurant Services, L.L.C., 58 F. Supp. 3d 634, 638-39
(E.D. La. 2014) (dismissing tortious interference with contract claim against
corporate defendant).

Therefore, there can be no claim of tortious

interference with contract against HTE itself.
It is undisputed that T&B’s counterclaim is brought solely against HTE
as a corporate entity, and that no individual employee of HTE has been sued.
T&B’s counterclaim does make allegations against individual employees of
HTE, but contains no specific allegations against them related to tortious
interference with the Pan Am Subcontract.

In the section of T&B’s

counterclaim titled “Cause of Action Number One: Hi-Tech’s Tortious
Interference with T&B’s Prime Subcontract,” there is no mention whatsoever
of any individual officer of HTE, and the section is clearly focused on the
actions of HTE as an entity. Further, T&B’s response to this motion does not
specifically identify any allegations in its counterclaim tying the actions of an
officer of HTE to interference with T&B’s contract with CMHP. Instead, it
alleges that its counterclaim uses HTE and its individual employees
interchangeably. That argument is unavailing. Thus, as T&B’s tortious

8

interference with contract cause of action cannot be maintained against a
corporate defendant, it must be dismissed.28
B.

Cause of Action Four—Negligent Misrepresentation of
Material Facts

T&B’s fourth cause of action is for negligent misrepresentation of
material facts, and “unauthorized use of T&B’s contract authority and its
name in commission of a felony.”29 T&B alleges that HTE submitted false
tax information and manipulated cost reports, affidavits, and change orders
to defraud the federal government and the Louisiana Department of
Revenue.30

T&B

further

alleges

that

these

manipulations

and

misrepresentations not only violated federal laws and regulations, but also
damaged T&B, because T&B will ultimately be responsible for “returning to

Additionally, T&B’s claim is defective even if it were filed against
an individual officer of HTE. T&B’s counterclaim alleges that HTE interfered
with a contract between CMHP and T&B and caused CMHP to violate the
contract. R. Doc. 99 at 4. But Spurney was limited to actions against a
corporate officer for interference with “the contractual relation between [the
defendant officer’s] employer and a third person.” 538 So. 2d at 234
(emphasis added); see also Matrix Essential, Inc. v. Emporium Drug Mart,
Inc., 756 F. Supp. 280, 284 (W.D. La 1991) (noting that Spurney “recognized
only an action wherein a corporate officer causes his own corporation to
breach a contract between his own corporation and the plaintiff) (emphasis
in original). Thus, T&B cannot bring a tortious interference claim against an
officer of HTE for tortious interference with a contract between CMHP and
T&B that CMHP allegedly breached.
29
R. Doc. 90 at 36.
30
Id. at 36-43.
9
28

the government the amounts credited back to HTE in its $90,000 tax credit
scheme,” and T&B is now at risk of default. 31
Unlike HTE’s other attacks on T&B’s counterclaim, HTE’s attack on
T&B’s fourth cause of action is brought on standing grounds. A standing
motion challenges the Court’s subject matter jurisdiction, and it is governed
by Federal Rule of Civil Procedure 12(b)(1). Standing consists of three
elements: (1) the plaintiff must have suffered an “injury-in-fact,” which is an
“actual or imminent” invasion of a legally protected interest that is “concrete
and particularized”; (2) the injury must be “fairly traceable” to the challenged
conduct of the defendant; and (3) it must be likely that plaintiff’s injury will
be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992). As the party invoking federal jurisdiction, the plaintiff
bears the burden of establishing each element. Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016). Further, “a plaintiff must demonstrate standing for
each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
352 (2006) (citing Allen v. Wright, 468 U.S. 737, 752 (1984).
HTE argues that, by T&B’s own allegations, T&B has not yet paid the
government for tax credits HTE allegedly improperly received, nor does it

31

Id. at 42 ¶¶ 264, 266
10

allege that it is actually in default.32 Therefore, T&B has not yet been injured
by any of HTE’s alleged misrepresentations or manipulations. In response,
T&B argues that “default is a very real possibility.”
Even if default is “a very real possibility,” this alone, without more, is
insufficient to establish standing. Injuries must be actual or imminent, and
not “conjectural or hypothetical.” Lujan, 504 U.S. at 560. And while threat
of future injuries can be sufficient to confer standing, the threat must not be
speculative or based on assumptions, but must be “certainly impending.”
Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1147 (citation omitted).
T&B bears the burden of showing that default is certainly impending, and
has not alleged facts indicating that default is certainly impending, or
impending at all. Therefore, the risk of default in the future is insufficient to
establish an injury-in-fact.
T&B also argues it has suffered an injury-in-fact because it cannot
“transact” (i.e., submit) payment applications because of HTE’s actions. But
nowhere in T&B’s counterclaim does T&B make any allegations related to its
ability to transact payment applications, much less that HTE’s negligent
misrepresentations affected T&B’s ability to transact payment applications.
“An opposition to a motion to dismiss is not the place for a party to raise new

32

R. Doc. 92-1 at 6.
11

factual allegations.” Sartin v. EKF Diagnostics, Inc., No. 16-1816, 2016 WL
3598297, at *4 (E.D. La. July 5, 2016) (quoting Peter-Takang v. Dep’t of
Children & Family Servs., No. 14-1078, 2016 WL 69633, at *4 (E.D. La. Jan.
6, 2016)); see also Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278,
289 (5th Cir. 2006). Therefore, the well-pleaded factual allegations in T&B’s
counterclaim do not establish that HTE’s actions have harmed T&B’s ability
to transact payment applications.
Finally, T&B’s opposition discusses the False Claims Act, 31 U.S.C. §
3729, including the definitions of words within the Act and caselaw on legal
falsity and factual falsity under the Act.33 T&B is apparently arguing that it
is obligated to return any money to the government that is tainted by fraud
and disclose any knowledge of fraud to the government, or face liability
under the False Claims Act. Like the allegations relating to T&B’s ability to
transact payments, these allegations on FCA liability are missing from T&B’s
counterclaim. Further, to the extent T&B’s argument suggests that HTE’s
actions will result in future False Claims Act liability for T&B, this future
injury is too speculative and conjectural to establish an injury-in-fact.

33

R. Doc. 99 at 5-8.
12

T&B bears the burden of showing that it has suffered an injury-in-fact,
and therefore has standing to bring its negligent misrepresentation claim. It
has failed to do so, and thus T&B’s fourth cause of action must be dismissed.
C.

Cause of Action Six—Breach of Contract for
Intentionally Interfering with T&B’s Contract with
CMHP

T&B’s sixth cause of action is similar to its first, alleging that HTE
interfered

with

T&B’s

subcontract

with

CMHP

by

fraudulently

misrepresenting the status of T&B’s and HTE’s negotiations and by
misleading CMHP into terminating its contract with T&B.34 HTE argues that
despite the reference to breach of contract in the title, this cause of action is
really for tortious interference with contract, and therefore must fail for the
same reasons that doom T&B’s first cause of action.35 In response, T&B
contends the cause of action is one for negligent misrepresentation.
A legally sufficient complaint must “give the defendant fair notice of
what the claim is.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355
U.S. 41, 47 (1957)) (internal alterations omitted). Despite T&B’s belated
attempt to recast its claim as one for negligent misrepresentation, the title of
its sixth cause of action, as well as the allegations contained within it,

34
35

R. Doc. 90 at 48-51.
R. Doc. 92-1 at 7.
13

demonstrate that T&B is either asserting a cause of action for tortious
interference with contract, or a cause of action based on HTE’s alleged
intentional and/or fraudulent actions.

In fact, this section of T&B’s

counterclaim not only fails to mention negligence at all, but also claims that
each of HTE’s alleged misrepresentations are either intentional or
fraudulent.36

Other sections of T&B’s counterclaim specifically allege

negligent misrepresentation, so the omission of allegations of negligent
misrepresentation here seems purposeful.37 The allegations in this section
do not plausibly allege a claim of negligent misrepresentation. The Court will
not allow T&B to rewrite its counterclaims through its response to the motion
to dismiss, as doing so would deprive HTE of the fair notice that the Federal
Rules and Twombly require. Given that what T&B does allege here is closer
to a cause of action for tortious interference with contract, this cause of
action fails for the same reason identified above.
Further, to the extent that the allegations contained in this section
could be read as asserting a claim for intentional or fraudulent
misrepresentation, the claim would be insufficient under Federal Rule of
Civil Procedure 9(b). Rule 9(b) imposes a heightened pleading standard for

R. Doc. 90 at 50-51 ¶¶ 323, 331, 336.
See, e.g., id. at 43 ¶ 271 (“The negligent misrepresentation by
Hi-Tech . . .”).
14
36
37

fraud claims, including state-law fraud claims. Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 339 (5th Cir. 2008). The Fifth Circuit “interprets Rule
9(b) strictly, requiring the plaintiff to specify the statements contended to be
fraudulent, identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent.” Flaherty &
Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th
Cir. 2009), cert. denied, 588 U.S. 873 (2009). In other words, “Rule 9(b)
requires ‘the who, what, when, where, and how’ to be laid out.” Benchmark
Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003) (quoting
Williams v. WMX Techs. Inc., 112 F.3d 175, 179 (5th Cir. 1997)). T&B does
not identify the “who, when, and where” of the alleged misrepresentations,
and therefore if T&B’s sixth cause of action were read to be a claim for
fraudulent or intentional misrepresentation, it fails under Rule 9(b).
D.

Cause of Action Eight—Unjust Enrichment

T&B’s eighth cause of action alleges that HTE has been unjustly
enriched at T&B’s expense.38 Under Louisiana law, unjust enrichment is a
quasi-contractual remedy, and one cannot assert a claim for unjust
enrichment if other remedies are available. See La. Civ. Code art. 2298
(stating that unjust enrichment “shall not be available if the law provides

38

Id. at 52 ¶¶ 341-343.
15

another remedy”); United States v. Bollinger Shipyards, Inc., No. 12-920,
2013 WL 393037, at *15 (E.D. La. Jan. 30, 2013) (“Under Louisiana law, an
unjust enrichment claim cannot survive when . . . there is an express contract
between the parties and other remedies at law are available.”) (citing
Hamburg Steel Buildings, Inc. v. Lawrence Gen. Corp., 817 So. 2d 427, 438
(La. App. 2 Cir. 2002)).
It is undisputed that HTE and T&B entered into two contracts, the
Teaming Agreement and the MOU, both of which are attached to HTE’s
complaint.39 Additionally, T&B’s counterclaim alleges that HTE is liable for
breach of the Teaming Agreement.40 Therefore, if either contract is valid and
enforceable, the contract would bar T&B’s unjust enrichment claim. That
plaintiff may not successfully pursue a remedy under the contracts does not
give the plaintiff a claim for unjust enrichment. Walters v. MedSouth Record
Mgmt., LLC, 38 So.3d 241, 242 (La. 2010).
T&B contends that the MOU is unenforceable and invalid, and argues
that this factual dispute renders dismissal of the unjust enrichment claim
premature. But the Court need not wait to resolve a factual dispute because
even if the MOU is invalid and unenforceable, the Teaming Agreement is

39
40

R. Doc. 1-1 (Teaming Agreement); R. Doc. 1-3 (MOU).
R. Doc. 90 at 51.
16

valid and bars T&B’s unjust enrichment claim. See Drs. Bethea, Moustoukas
and Weaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399, 408 (5th Cir.
2004) (citing Edwards v. Conforto, 636 So. 2d 901, 907 (La. 1993). In the
same paragraph that T&B argues the MOU is unenforceable and invalid, T&B
argues that the MOU terminated the Teaming Agreement.41 T&B cannot
have its cake and eat it too—either the MOU is invalid and the Teaming
Agreement remains, or the MOU terminated the Teaming Agreement, and
the MOU provides a remedy barring T&B’s unjust enrichment claim. Either
way, T&B’s unjust enrichment claim fails.
E.

Cause of Action Nine—Conversion

Finally, HTE challenges T&B’s ninth cause of action, which alleges that
HTE converted funds to which T&B is entitled.42 That the parties have a
contractual relationship does not preclude delictual actions like conversion.
See Carriere v. Jackson Hewitt Tax Service Inc., 750 F. Supp. 2d 694, 704
(E.D. La. 2010). Under Louisiana law, conversion has a one year prescriptive
period, and the period begins to run from the date the injury or damage is
sustained. Richard v. Wal-Mart Stores, Inc., 559 F.3d 341, 345 (5th Cir.
2009) (citing La. Civ. Code art. 3492). When the face of the complaint shows

41
42

R. Doc. 99 at 12-13.
R. Doc. 90 at 52 ¶ 345.
17

that the action is time-barred, plaintiffs bear the burden of showing that the
action is not prescribed. Wimberly v. Gatch, 635 So. 2d 206, 211 (La. 1994).
T&B makes two arguments against prescription. First, as a threshold
matter, T&B argues that its “conversion” claim is really one for breach of
contract and breach of fiduciary duty and therefore is not subject to the one
year prescriptive period.43 But T&B unequivocally asserted a claim for
conversion, and is alleging that “Hi-Tech has converted certain funds to
which T&B is entitled.”44 Further, “even when a contract exists, unless a
specific contract provision is breached, Louisiana treats the action as tort.”
Richard, 559 F.3d at 345 (citing Trinity Universal Ins. Co. v. Horton, 756
So. 2d 637, 638 (La. App. 2 Cir. 2000)) (emphasis in original). T&B has not
alleged what specific contractual provision HTE breached giving rise to
alleged conversion. Thus, the Court finds that, based on T&B’s allegations,
the ninth cause of action is a claim for conversion, and is subject to the one
year limitations period.

See Carriere, 750 F. Supp. 2d at 704 (“The

allegations in the petition generally control the true nature of the action and
the applicable prescription period.”) (citations omitted).

43
44

R. Doc. 99 at 14.
R. Doc. 90 at 52 ¶ 345.
18

Second, T&B argues that even if the one year period applies, the period
runs from the date that T&B became aware of the conversion.45 Not only is
this clearly incorrect as a matter of Louisiana law, see La. Civ. Code art. 3492,
but T&B also misquotes a case to support its argument. In arguing that it is
the date of knowledge, not date of injury, that starts the prescriptive period,
T&B points to Colley v. Canal Bank & Trust Co., 64 F. Supp. 1016, 1019 (E.D.
La. 1946), and quotes “when plaintiffs received knowledge of the damage.”46
The next two sentences, which T&B omits, read “[t]he argument is not
persuasive. It finds support neither in reason nor in authority.” Id. Thus,
Colley unquestionably does not support T&B’s argument. T&B is advised for
future reference not to distort cases to support its arguments.
Applying the one year prescriptive period to T&B’s allegations, T&B’s
conversion claim is prescribed.

T&B’s counterclaim alleges that the

conversion occurred beginning in October 2012, and ran through December
2012.47

T&B’s response in opposition also admits that the conversion

occurred during the period of October to December 2012.48 Therefore, even
assuming the conversion did not occur until December 2012, the claim

45
46
47
48

R. Doc. 99 at 14.
Id. T&B underlines “when plaintiffs received knowledge . . .”
R. Doc. 90 at 40-42.
R. Doc. 99 at 15.
19

prescribed by the end of 2013, and certainly prescribed before November
2016, when T&B filed its counterclaim. T&B’s ninth cause of action is
dismissed as prescribed.

IV.

CONCLUSION
For the foregoing reasons, HTE’s motion to dismiss is GRANTED.

T&B’s first, fourth, sixth, eighth, and ninth causes of action are DISMISSED
WITHOUT PREJUDICE.

15th
New Orleans, Louisiana, this _____ day of February, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

20