Murillo et al v. Coryell County Tradesmen LLC et al

Filing 323

ORDER: IT IS HEREBY ORDERED that Plaintiffs' 239 Motion to Dismiss Roy Anderson Corp's and Travelers Casualty and Surety Company of America's Counterclaim is DENIED. Signed by Judge Nannette Jolivette Brown on 6/23/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY MURILLO, et al.

CIVIL ACTION

VERSUS

NO. 15-3641

CORYELL COUNTY TRADESMEN, LLC, et
al.

SECTION: “G”(1)

ORDER
In this litigation, Plaintiffs and Counter-Defendants (hereinafter, “Plaintiffs”),
approximately 160 individuals hired to work on a construction and renovation project located at
225 Baronne Street in New Orleans, Louisiana, allege that Defendants did not pay overtime wages
or minimum wages in violation of the Fair Labor Standards Act (“FLSA”).1 Defendants and
Counterclaimants Roy Anderson Corporation (“Roy Anderson”) and Travelers Casualty and
Surety Company of America (“Travelers”) have asserted a counterclaim against Plaintiffs pursuant
to Louisiana Revised Statute § 9:4833, in which they argue that Plaintiffs “improperly” filed
laborers’ liens and refused to cancel them after Roy Anderson and Travelers provided a written
request to do so.2 Pending before the Court is Plaintiffs’ “Motion to Dismiss Roy Anderson Corp’s
and Travelers Casualty and Surety Company of America’s Counterclaim.”3 Having considered the
motion, the memoranda in support and in opposition, and the applicable law, the Court will deny
the motion.

1

Rec. Doc. 48; Rec. Doc. 52-1 at 1.

2

Rec. Doc. 216 at 7.

3

Rec. Doc. 239.

1

I. Background
A.

Factual Background
This lawsuit arises from the renovation of a luxury hotel and apartment building in

downtown New Orleans named “The Strand” at 225 Baronne Street (“the Project”).4 Plaintiffs
allege that the mostly migrant workers who performed the renovation work were not paid
minimum wages or overtime wages while working “grueling” 70-hour workweeks.5 Plaintiffs
further contend that their recorded hours were often “adjusted” to reflect shorter work periods so
that Defendants Roy Anderson, Ronald Franks, Coryell County Tradesmen (“CCT”), CC Labor,
LLC (“CC Labor”), Paul Isaacks, Brandon Isaacks, and Brent Isaacks could pay them less.6
Defendants CCT and CC Labor are alleged to be two family-run construction companies
owned by Defendants Paul Isaacks, Brandon Isaacks, and Brent Isaacks.7 Defendant Roy Anderson
is alleged to be one of the general contractors that employed Plaintiffs, and Ronald Franks and
CCT were two of the subcontractors on the Project.8 Defendant Travelers is alleged to have
contracted to pay the obligations of Roy Anderson with respect to the work done on the
construction project at issue in this case.9

4

Rec. Doc. 48 at 3.

5

Id. at 3–4.

6

Id. at 4.

7

Id. at 5.

8

Id. at 5–6.

9

Id. at 6–7.

2

B.

Procedural Background
Plaintiffs Nancy Murillo, Evelyn Mejia, Ambrocio Benito Castro, and Mechlor Acevedo

filed a complaint on August 19, 2015, against Defendants CCT, CC Labor, Brandon Isaacks, Brent
Isaacks, and Paul Isaacks.10 From November 12, 2015, to November 17, 2015, Plaintiffs filed 146
individual laborers’ liens on the Project for the amounts alleged owed for their labor.11 With leave
of Court, on February 18, 2016, Plaintiffs filed an amended complaint, adding additional plaintiffs
and adding Ronald Franks, Roy Anderson, and Travelers as Defendants.12 Plaintiffs filed a second
amended complaint, with leave of Court, on May 13, 2016.13
On July 12, 2016, Roy Anderson filed an answer to Plaintiffs’ complaint and a crossclaim
and third-party demand against Defendant Ronald Franks and Third-Party Defendant National
American Insurance Company (“NAIC”), respectively.14 On December 8, 2016, Roy Anderson
and Travelers filed a counterclaim against Plaintiffs.15
On January 17, 2017, Plaintiffs filed the instant motion.16 On February 21, 2017, Roy
Anderson and Travelers filed an opposition.17 On March 3, 2017, with leave of Court, Plaintiffs

10

Rec. Doc. 1.

11

See Rec. Doc. 241 at 2.

12

Rec. Doc. 19.

13

Rec. Doc. 48.

14

Rec. Doc. 92 at 15.

15

Rec. Doc. 216.

16

Rec. Doc. 239.

17

Rec. Doc. 241.

3

filed a reply.18
II. Parties’ Arguments
A.

Plaintiffs’ Arguments in Support of the Motion to Dismiss
In their motion, Plaintiffs aver that Defendant and Counterclaimant Roy Anderson, as the

general contractor for the Project, is liable to Plaintiffs for unpaid work performed on the Project
via laborers’ liens filed by Plaintiffs pursuant to the Louisiana Private Works Act (“PWA”).19
Plaintiffs contend that after the work on the Project was completed, they timely filed laborers’
liens for their uncompensated labor.20
Plaintiffs assert that Roy Anderson and Travelers’ counterclaim is brought pursuant to
Louisiana Revised Statute § 9:4833, which allows “interested persons” to recover damages and
attorneys’ fees from lienholders whose liens are “improperly” filed. 21 However, Plaintiffs argue
that Roy Anderson and Travelers failed to allege sufficient facts to demonstrate that Plaintiffs’
liens were filed “improperly.”22 According to Plaintiffs, Louisiana Revised Statute § 9:4822(G)
sets out the requirements for properly filing a laborers’ liens:
G. A statement of a claim or privilege:
(1) Shall be in writing.
(2) Shall be signed by the person asserting the same or his representative.
(3) Shall reasonably identify the immovable with respect to which the work was
18

Rec. Doc. 248.

19

Rec. Doc. 239-1 at 1.

20

Id. at 2.

21

Id. at 2–3.

22

Id. at 3.

4

performed or movables or services were supplied or rendered and the owner
thereof.
(4) Shall set forth the amount and nature of the obligation giving rise to the claim
or privilege and reasonably itemize the elements comprising it including the person
for whom or to whom the contract was performed, material supplied, or services
rendered. The provisions of this Paragraph shall not require a claimant to attach
copies of unpaid invoices unless the statement of claim or privilege specifically
states that the invoices are attached.
In particular, Plaintiffs point out that Roy Anderson and Travelers argue that Plaintiffs’
liens were “improperly” filed under Section 9:4822(G)(4), as the lien amounts claimed by
Plaintiffs are allegedly “vaguely supported with no reasonable indication of how the amount was
calculated.”23 However, Plaintiffs point out that Louisiana law only requires lienholders to “set
forth the amount and nature” of their lien and “reasonably itemize the elements comprising
it . . . .”24 Thus, Plaintiffs argue that their liens are “valid on their face.”25 Because Roy Anderson
and Travelers failed to allege any facts that are actionable under Sections 4833 and 4822, Plaintiffs
aver, their counterclaim must be dismissed.26
Plaintiffs assert that, in support of their counterclaim, Roy Anderson and Travelers allege
that the lien amounts claimed by Plaintiffs are much higher than what Plaintiffs stated they were
owed in their discovery responses.27 Plaintiffs argue that this is inaccurate, as Plaintiffs contend
that Defendants asked for an itemization of the hours worked by Plaintiffs that they were not paid

23

Id.

24

Id.

25

Id. at 5.

26

Id. at 4.

27

Id.

5

for and Plaintiffs provided Defendant CCT’s payroll documentation in response.28 Plaintiffs assert
that this payroll documentation does not account for Plaintiffs’ additional claims in their lien
amounts for: (1) time waiting to clock in and clock out each day; and (2) time that was
“systematically shaved off of each Plaintiff’s paycheck each week.”29 Moreover, Plaintiffs argue
that Roy Anderson and Travelers have not pointed to any statute or case law that allows for
terminating a lien because there is a difference between the lien amount and the amount ultimately
owed.30 Rather, Plaintiffs assert that the PWA was designed to address such disputes over amounts
owed to laborers.31 In sum, Plaintiffs contend that because a dispute as to the amount of the lien
does not establish a cause of action under Louisiana Revised Statute § 9:4833, Roy Anderson and
Travelers’ request for declaratory relief, damages, and attorneys’ fees pursuant to Louisiana
Revised Statute § 9:4833 must be dismissed.32
B.

Roy Anderson and Travelers’ Arguments in Opposition to the Motion to Dismiss
In opposition, Roy Anderson and Travelers state that 146 of the Plaintiffs have filed

individual laborers’ liens on the Project for a total value of $2,362,693.33 By contrast, Roy
Anderson and Travelers aver that Plaintiffs claimed in their discovery responses that they were

28

Id.

29

Id.

30

Id. at 5.

31

Id.

32

Id.

33

Rec. Doc. 241 at 2.

6

only owed $245,892.86, i.e. $2,116,800.14 less than the amounts claimed in the laborers’ liens.34
Roy Anderson and Travelers assert that they have sufficiently alleged a claim under
Louisiana Revised Statute § 9:4833.35 According to Roy Anderson and Travelers, an owner or
interested party may demand in writing that a person who has improperly filed a lien must cancel
the lien and, if the person fails to do so after ten days, then he is liable for damages and attorneys’
fees.36 Here, Roy Anderson and Travelers argue that it is undisputed that they are “interested
parties” under Section 9:4833, as Roy Anderson was the design-builder for the Project and
Travelers issued the lien bond that cleared the Project’s title after Plaintiffs filed their laborers’
liens.37 Roy Anderson and Travelers also contend that they sufficiently alleged that the laborers’
liens are improper, because: (1) the amounts listed in each are “vaguely supported without any
reasonable indication of how its amount was calculated;” and (2) “because there is a direct
contradiction between two sworn statements that each of the Plaintiffs recording the Labor Liens
made.”38 Additionally, Roy Anderson and Travelers aver that they alleged that this discrepancy
between the two numbers claimed demonstrate that the liens are “without reasonable cause for
believing [they were] valid in the hope that economic pressure may be placed upon the owner or
contractor to extract a settlement or other payment as the price of a release.”39

34

Id.

35

Id. at 4.

36

Id.

37

Id. at 5.

38

Id.

39

Id. at 5–6.

7

Thus, Roy Anderson and Travelers contend that they have made sufficient allegations to
state a claim under Louisiana Revised Statute § 9:4833, as they only need to show that the liens
were filed without reasonable cause.40 Roy Anderson and Travelers further argue Louisiana
Revised Statute § 9:4822 does not govern the analysis here as Plaintiffs contend, and therefore
their counterclaim does not need to “track” the language and requirements of Section 9:4822(G)
in order to state a claim under Section 9:4833.41 Roy Anderson and Travelers point out that the
comments to Louisiana Revised Statute § 9:4833 make clear that the statute is “designed to
discourage the filing of a claim that is clearly unjustified, late, or otherwise made without
reasonable cause for believing that it is valid . . . .”42
C.

Plaintiffs’ Arguments in Further Support of the Motion to Dismiss
In their reply, Plaintiffs assert that Roy Anderson and Travelers’ argument that whether

Plaintiffs’ liens are “improper” is determined under Louisiana Revised Statute § 9:4833 and not
Louisiana Revised Statute § 9:4822 is the “exact opposite of the argument that they advocated (and
won) only months ago in another dispute pertaining to the 225 Baronne Street jobsite” in Louisiana
state court.43 According to Plaintiffs, in another case, Roy Anderson argued to the Louisiana Fourth
Circuit Court of Appeal that only Section 9:4822 is relevant to a lien’s validity, and not Section

40

Id. at 6.

41

Id.

42

Id. at 7.

43

Rec. Doc. 248 at 1 (citing 225 Baronne Complex, L.L.C. v. Roy Anderson Corporation, 2016-0492 (La.
App. 4 Cir. 12/14/16), — So. 3d —, 2016 WL 7238975).

8

9:4833, and the appeals court agreed.44 Plaintiffs assert that all of the requirements of Section
9:4822 are met by their liens, and because Roy Anderson and Travelers failed to plead otherwise,
their counterclaim should be dismissed.45
Moreover, Plaintiffs argue that, because Roy Anderson and Travelers failed to adequately
plead that Plaintiffs’ liens are invalid, they can only plead that the liens should still be cancelled if
they allege that the lienholders are owed no money. 46 According to Plaintiffs, the Fifth Circuit has
made clear that under Louisiana law, “a refusal to cancel a lien is not unreasonable where, as here,
there is a sum of money owed to the lienholder.”47 Plaintiffs aver that Roy Anderson and Travelers
failed to make such an allegation in their counterclaim, and instead argue that the difference in the
sum of money claimed on the liens and in the discovery responses support their counterclaim.48
In sum, Plaintiffs allege that they have “reasonable cause” to believe the liens are valid
under Louisiana Revised Statute § 9:4833, because: (1) Plaintiffs are owed money for unpaid
overtime wages; and (2) the liens are facially valid and comply with the requirements of Louisiana
Revised Statute § 9:4822.49

44

Id.

45

Id. at 1–2.

46

Id. at 2.

47

Id. (citing Pipes v. Dyna Ten Corp., 389 F. 3d 488, 491 (5th Cir. 2004)).

48

Id.

49

Id. at 3.

9

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.”50 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”51 “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.’”52 “Factual allegations must be enough to raise a right to relief above the
speculative level.”53 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.”54
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.55 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.56 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”57
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

50

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

51

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

52

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

53

Twombly, 550 U.S. at 556.

54

Id. at 570.

55
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).
56

Iqbal, 556 U.S. at 677–78.

57

Id. at 679.

10

statements” will not suffice.58 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.59 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”60 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.61 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.62
B.

Analysis
In their counterclaim brought under Louisiana Revised Statute § 9:4833, Roy Anderson

and Travelers allege that the 138 liens filed individually by Plaintiffs against the Project are
improper because they failed to comply with Louisiana Revised Statute § 9:4822(G)(4).63 In
particular, Roy Anderson and Travelers argue that the liens were improperly filed because “the
respective amount listed in each [lien] is vaguely supported with no reasonable indication of how

58

Id. at 678.

59

Id.

60

Id.

61

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

62
Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir. 2007).
63

Rec. Doc. 216 at 2, 7.

11

the amount was calculated.”64 Moreover, Roy Anderson and Travelers allege that in their sworn
answers to Defendants’ interrogatories, each Plaintiff admitted that the outstanding amount owed
for unpaid overtime is “significantly less than the amount listed” in the individual liens, and that
each Plaintiff is unable to quantify the precise amount that he or she is owed for the work
performed on the Project.65
Roy Anderson and Travelers also provide in their counterclaim a chart comparing the
amounts that each Plaintiff listed in their liens against the amounts verified in discovery. 66 For
example, Roy Anderson and Travelers aver that Plaintiff Melchor Acevedo represented in his lien
that he is owed $23,040, while his sworn response to Defendants’ interrogatories indicate he is
only owed $1,740.67 In sum, Roy Anderson and Travelers assert that Plaintiffs collectively
represented in their liens that they are owed $2,362,693, while they collectively admitted in
discovery to only being owed $245,892.86, which is a difference of $2,116,800.14.68 Roy
Anderson and Travelers contend in their counterclaim that the PWA only allows for liens to secure
a claim for payment on the principal amount of the price of the work performed by Plaintiffs on
the Project, as well as interest and filing fees.69 According to Roy Anderson and Travelers’
counterclaim, the lien amounts cannot include penalties, liquidated damages, attorneys’ fees, or

64

Id. at 7.

65

Id.

66

Id. at 8–13.

67

Id. at 8.

68

Id. at 8, 15.

69

Id. at 14.

12

“any other amount that the Lien Plaintiffs use to qualify the amounts identified in their Verified
Responses.”70
Furthermore, Roy Anderson and Travelers allege that they sent a formal written demand
to Plaintiffs to remove the “improper and inflated” liens, but that Plaintiffs, “without reasonable
cause,” refused to do so.71 In sum, Roy Anderson and Travelers argue that Plaintiffs filed the labor
liens “without reasonable cause for believing it is valid in the hope that economic pressure may be
placed upon the owner or contractor to extract a settlement or other payment as the price of a
release.”72
In relevant part, the Louisiana Private Works Act grants a claim to laborers of a contractor
or subcontractor on immovable property to secure payment for the price of the work performed on
that immovable property.73 To preserve his or her claim, the laborer must file a statement of claim
or privilege with the recorder of mortgages within either 30 or 60 days after the substantial
completion of the work or the filing a notice of termination, depending on whether a notice of
contract was filed.74
Louisiana Revised Statute § 9:4822 provides the mechanism for filing liens through which
a laborer may preserve the claim or privilege granted to him or her by the PWA. In particular,

70

Id.

71

Id.

72

Id. at 15 (citing La. Rev. Stat. § 9:4833, cmt. (a)).

73
See La. Rev. Stat. § 9:4802; La. Prac. Employment Law § 4:30; see also First Thrift & Loan, L.L.C. v.
Griffin, 41,666 (La. App. 2 Cir. 3/14/07); 954 So. 2d 269, 271.
74

See La. Rev. Stat. § 9:4822(A); La. Prac. Employment Law § 4:30.

13

Section 9:4822(G) mandates that the statement of privilege or claim, i.e. the lien, must: (1) be in
writing; (2) signed; (3) “reasonably identify the immovable with respect to which the work was
performed or movables or services were supplied or rendered and the owner thereof;” and (4) “set
forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably
itemize the elements comprising it including the person for whom or to whom the contract was
performed, material supplied, or services rendered.”75
Roy Anderson and Travelers assert their counterclaim for failure to cancel an allegedly
improper lien under Louisiana Revised Statute § 9:4833. Section 9:4833(A) provides that if a
statement of claim or privilege is “improperly filed” or is later extinguished, an owner or “other
interested person” may require the person who filed the statement to give a written request for
cancellation directing the recorder of mortgages to cancel the statement of claim or privileges from
his records.76 Section 9:4833(A) further provides that the lienholder’s request for cancellation must
be delivered within ten days after the owner or other interested person requested it.77 Pursuant to
Louisiana Revised Statute § 9:4833(B), a lienholder who, “without reasonable cause,” fails to
cancel the lien is liable for damages suffered by the owner or person requesting the cancellation as
well as attorneys’ fees.
In their Rule 12(b)(6) motion to dismiss, Plaintiffs argue that Roy Anderson and Travelers
have failed to state a claim under Louisiana Revised Statute § 9:4833 because they have not

75

La. Rev. Stat. § 9:4822(G) (emphasis added); see Bradley Elec. Servs., Inc. v. 2601, L.L.C., 2011-0627
(La. App. 4 Cir. 12/14/11); 82 So. 3d 1242, 1243.
76

La. Rev. Stat. § 9:48233(A).

77

Id.

14

sufficiently alleged that Plaintiffs’ laborers’ liens, i.e. their statements of claim or privilege, were
“improperly filed.”78 Plaintiffs assert that Roy Anderson and Travelers’ allegation in their
counterclaim that the amounts requested in the liens are “vaguely supported with no reasonable
indication of how the amount was calculated” is not a cognizable basis to cancel a lien, as Section
9:4822(G)(4) only requires that the lienholder “set forth the amount and nature” of the obligation
due and “reasonably itemize the elements comprising it.”79 Plaintiffs also argue that Roy Anderson
and Travelers mischaracterize Plaintiffs’ discovery responses, which Plaintiffs aver only included
information from the incomplete payroll documentation provided by Defendant CCT.80
As an initial matter, the Court notes that it is well established that, in considering a motion
to dismiss pursuant to Rule 12(b)(6), a district court may not “go outside the complaint.”81 Thus,
the Court cannot consider Plaintiffs’ extrinsic evidence and explanations regarding why their
discovery responses on the amounts owed are lower than the amounts listed in the liens, as doing
so would require the Court to go beyond the pleadings on a motion to dismiss. The Court also
notes that while Roy Anderson and Travelers appear to assert in their opposition memorandum
that Section 9:4822 does not control the analysis here,82 Roy Anderson and Travelers’
counterclaim only alleges that Plaintiffs’ liens fail to comply with Section 9:4822(G)(4)’s

78

Rec. Doc. 239-1 at 2–3.

79

Id. at 3.

80

Id. at 4.

81
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); Mabile v. BP, p.l.c., No. 11-1783, 2016 WL 5231839, at *16 (E.D. La. Sept. 22, 2016) (Brown,
J.).
82

Rec. Doc. 241 at 6.

15

requirement for setting forth the amount of the obligation in the lien.83Accordingly, the Court will
proceed to consider whether Roy Anderson and Travelers have failed to state a claim under
Louisiana Revised Statute § 9:4833 based on the allegations in the counterclaim.
Here, the Court finds that, liberally construing the counterclaim in Roy Anderson and
Travelers’ favor and accepting all well-pleaded facts as true,84 Roy Anderson and Travelers have
alleged sufficient facts in support of their claim under Louisiana Revised Statute § 9:4833 to
survive a motion to dismiss. As stated supra, Section 9:4822(G)(4) requires that the lienholder “set
forth the amount and nature of the obligation” due and “reasonably itemize the elements
comprising it.”85 Louisiana courts have consistently held that the Private Works Act is in
derogation of general contract law and must be strictly construed,86 and therefore liens filed
pursuant to the PWA must also “be strictly construed in favor of the owner and against the
claimant.”87 Here, Roy Anderson and Travelers have plausibly alleged in their counterclaim that
Plaintiffs failed to “set forth the amount . . . of the obligation” by listing amounts that were
substantially inaccurate or not due from Roy Anderson and Travelers.88 Indeed, in response to

83

Rec. Doc. 216 at 7.

84
Leatherman v. Tarrant Cty. 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)
85

La. Rev. Stat. § 9:4822(G)(4).

86

Hibernia Nat. Bank v. Belleville Historic Dev., L.L.C., 2001-0657 (La. App. 4 Cir. 3/27/02); 815 So. 2d
301, 305–06; see also Mid-S. Plumbing, LLC v. Dev. Consortium-Shelly Arms, LLC, 2012-1731 (La. App. 4 Cir.
10/23/13); 126 So. 3d 732, 740 (quoting Hughes v. Will, 35 So. 2d 241, 245 (La. App. Orleans 1948)).
87

Byron Montz, Inc. v. Conco Const., Inc., 2002-0195 (La. App. 4 Cir. 7/24/02); 824 So. 2d 498, 503.

88

Rec. Doc. 216 at 7–8.

16

Plaintiffs’ assertion in the instant motion that it is “essentially undisputed” that they were not paid
overtime,89 Roy Anderson and Travelers point out in their opposition that this is “wholly incorrect”
and that they “completely dispute that claim,” as Roy Anderson argues it did, in fact, pay overtime
and that this is the “key question” in this litigation.90 Here, Defendants have plausibly alleged that
Plaintiffs’ liens were “improperly” filed because they are inaccurate or not due from Roy Anderson
and Travelers, and therefore failed to “set forth the amount and nature of the obligation” due and
“reasonably itemize the elements comprising it” as required by Section 9:4822.91
Several Louisiana state courts have recognized that a lien is “improperly” filed when the
amounts listed are inaccurate or not due to the plaintiff. For example, in Grover v. Carter, the
Louisiana Fifth Circuit Court of Appeal concluded that including in a lien an additional $40 charge
for a load of sand that was delivered to a different job site and that the plaintiff knew was not
recoverable against the defendant was improper.92 The court noted that the plaintiff “should have
reduced the amount of the lien upon receiving Carter’s request to cancel it,” and his refusal to do
so makes him liable for damages.93 Likewise, in Tee It Up Golf, Inc. v. Bayou State Construction,
L.L.C., the Louisiana Third Circuit Court of Appeal considered whether two liens filed on two
different properties that listed the exact same amount of $180,762.59 were improper. 94 The court

89

Rec. Doc. 239-1 at 2.

90

Rec. Doc. 241 at 3.

91

Id.

92

498 So. 2d 132, 134 (La. App. 5 Cir. 1986).

93

Id.

94

2009-855 (La. App. 3 Cir. 2/10/10); 30 So. 3d 1159, 1162.

17

held that simply inserting “a lump sum amount cannot meet the statutory requirement to set forth
the amount and nature of the claim giving rise to the privilege against each property,” as it was
“impossible to know how much the reasonable amount is for the” two separate claims on each
property.95 Similarly, in Rogers v. Hooter, the Louisiana Third Circuit Court of Appeal remarked
that, although it was clear that the plaintiff was owed at least some compensation for his labor and
services, the lower court correctly cancelled the lien when the court was unable to determine from
the record how the plaintiff arrived at the sum of $45,119.96
Indeed, Louisiana courts routinely note that the comments of Louisiana Revised Statute
§ 9:4822 state that the “purpose of a statement of claim or privilege is to give notice to the owner
(and contractor) of the existence of the claim and to give notice to persons who may deal with the
owner that a privilege is claimed on the property.”97 Moreover, the comments of Louisiana Revised
Statute § 9:4833 state that the statute “is designed to discourage the filing of a claim that is clearly
unjustified, late, or otherwise made without reasonable cause for believing it is valid in the hope
that economic pressure may be placed upon the owner or contractor to extract a settlement or other

95

Id.

96
2016-969 (La. App. 3 Cir. 4/5/17); 215 So. 3d 979, 981–82. See also Bradley Electrical Services., Inc. v.
2601, L.L.C., 2011-0627 (La. App. 4 Cir. 12/14/11); 82 So. 3d 1242, 1244 (determining that a lien which demanded
an “unpaid balance” of $195,280.14 for “services rendered” failed to provide sufficiently specific information
regarding the debt, as a “lump sum with no supporting description is more than a technical defect”); LaMoyne-Clegg
Development Corporation v. Bonfanti-Fackrell, Ltd., 509 So. 2d 43, 46 (La. App. 1 Cir. 1987) (determining that a lien
was improperly filed because it claimed that $252,092.78 was due when, under the express terms of the parties’
contract, that amount was not yet due at the time the lien was filed).
97

La. Rev. Stat. § 9:4822, cmt. (g). see, e.g. Bradley Electrical Services., Inc., 82 So. 3d at 1244 (noting that
the requirements of the statute need to be balanced with the legislative intent of the statute); Hibernia Nat. Bank v.
Belleville Historic Dev., L.L.C., 2001-0657 (La. App. 4 Cir. 3/27/02); 815 So. 2d 301, 306 (concluding that that the
trial court ignored the purpose of filing a lien affidavit when it cancelled the lien for technical defects).

18

payment as the price of a release.”98 Here, Roy Anderson and Travelers have plausibly alleged that
Plaintiffs’ liens were filed “without reasonable cause for believing” they are valid.99
The Court notes that Plaintiffs cite to Pipes v. Dyna Ten Corporation, where the Fifth
Circuit held that “Louisiana law is clear: a refusal to cancel a lien is not unreasonable where, as
here, there is a sum of money owed to the lienholder.”100 However, that case involved a motion
for summary judgment, not a motion to dismiss.101 Moreover, the Fifth Circuit affirmed the lower
court’s finding that there were technical defects in the liens, but that because the defendants did
not dispute that they owed some amount to the plaintiff, the plaintiff’s refusal to cancel the lien
was not “unreasonable,” and thus the defendants were not entitled to damages under Louisiana
Revised Statute § 4833.102 Here, however, Roy Anderson and Travelers “completely dispute” the
assertion that Plaintiffs were not paid overtime, and instead allege that Roy Anderson did, in fact,
pay overtime.103
Therefore, the Court concludes that Roy Anderson and Travelers have alleged sufficient
facts to state a counterclaim pursuant to Louisiana Revised Statute § 9:4833. Roy Anderson and
Travelers have plausibly alleged that Plaintiffs refused to cancel “improperly” filed liens after Roy
Anderson and Travelers delivered their written request for cancellation. Moreover, liberally

98

La. Rev. Stat. § 9:4833, cmt. (a) (emphasis added).

99

Rec. Doc. 216 at 15.

100

Rec. Doc. 248 at 2 (quoting Pipes v. Dyna Ten Corp., 389 F.3d 488, 490 (5th Cir. 2004)).

101

Pipes, 389 F.3d at 490.

102

Id.

103

Rec. Doc. 241 at 3.

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construing the complaint and accepting all well-pleaded facts as true, Roy Anderson and Travelers
have also alleged sufficient facts to show that Plaintiffs’ liens were “improperly” filed because
they failed to “set forth the amount and nature of the obligation” due and “reasonably itemize the
elements comprising it” when they allegedly listed amounts that were inaccurate or not due. 104
Accordingly, the Court hereby denies Plaintiffs’ motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil procedure.
IV. Conclusion
Based on the foregoing, the Court concludes that Roy Anderson and Travelers have alleged
sufficient facts to state a counterclaim pursuant to Louisiana Revised Statute § 9:4833.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Motion to Dismiss Roy Anderson Corp’s
and Travelers Casualty and Surety Company of America’s Counterclaim”105 is DENIED.
NEW ORLEANS, LOUISIANA this 23rd day of June, 2017.
_____

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

104

La. Rev. Stat. § 9:4822(G)(4).

105

Rec. Doc. 239.

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