Coleman et al v. Sears Home Improvement Products, Inc.

Filing 203

ORDER: IT IS HEREBY ORDERED that Defendant SHIP's #10 Motion to Dismiss Plaintiffs' original Petition is DENIED AS MOOT. IT IS FURTHER ORDERED that Defendant SHIP's #49 Motion to Dismiss Second Amended Complaint is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs are granted leave to amend their complaint by April 17, 2017, to address the issues identified by the Court. If Plaintiffs are unable to cure the deficiencies in the complaint by that time, upon motion of a party the Court will dismiss the following claims: (1) Plaintiffs' claim of redhibition; (2) Plaintiffs' claim of fraud; and (3) Plaintiffs' request for attorneys' fees. Signed by Judge Nannette Jolivette Brown on 3/21/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY COLEMAN AND
AVA COLEMAN

CIVIL ACTION

VERSUS

NO. 16-2537

SEARS HOME IMPROVEMENT
PRODUCTS, INC.

SECTION: “G”(5)

ORDER
In this litigation, Plaintiffs Anthony Coleman and Ava Coleman (“Plaintiffs”) allege that
Defendant Sears Home Improvement Products, Inc. (“SHIP”) failed to ensure that Plaintiffs’ roof
was properly installed pursuant to their contract and in accordance with applicable building codes
and manufacturer specifications.1 Currently pending before the Court are SHIP’s “Motion to
Dismiss”2 and SHIP’s “Motion to Dismiss Second Amended Complaint.”3 Because SHIP filed a
second motion to dismiss after Plaintiffs filed an amended complaint,4 the Court will deny SHIP’s
first motion to dismiss as moot. Moreover, having considered the second motion to dismiss, the
record, the memoranda in support and in opposition, and the applicable law, the Court will deny
the motion without prejudice and grant Plaintiffs leave to amend their complaint to address the
deficiencies identified by the Court by April 17, 2017.

1

See Rec. Doc. 35 at 2–3.

2

Rec. Doc. 10.

3

Rec. Doc. 49.

4

See Rec. Doc. 35.

1

I. Background
A.

Factual Background
Plaintiffs state that on November 24, 2010, they entered into a contract with SHIP for the

installation of an “Owens-Corning 3-tab 25-year shingle roof” on their home.5 SHIP then hired an
independent contractor, Third-Party Defendant Magnolia Roofing & Exteriors, Inc. (“Magnolia”),
to perform the installation.6 SHIP also entered into an agreement with Third-Party Defendant
Crawford & Company, D/B/A Strategic Warranty Services (“Crawford”) as an independent
contractor to perform inspections of roof installations performed by other independent contractors
such as Magnolia.7
In their amended complaint, Plaintiffs allege that the roof installation began in December
2011 and was never completed or properly installed pursuant to the applicable building codes and
manufacturer’s specifications.8 For example, Plaintiffs assert that four nails per shingle were used
instead of the required six nails per shingle and that the nails were improperly placed on the
shingles.9 Plaintiffs argue that SHIP breached several duties of care and acted negligently and/or
fraudulently by, inter alia, allowing a “substandard subcontractor” to install Plaintiffs’ roof.10

5

Rec. Doc. 35 at 2–3.

6

See id.; Rec. Doc. 68 at 3.

7

Rec. Doc. 68 at 3.

8

Rec. Doc. 35 at 2.

9

Id. at 5.

10

Id. at 2–3.

2

B.

Procedural History
Plaintiffs filed a petition in Louisiana state court on March 1, 2016.11 On March 29, 2016,

SHIP removed the case to this Court pursuant to the Class Action Fairness Act.12 On April 7, 2016,
this Court granted SHIP’s motion for an extension of time to file responsive pleadings, 13 and on
April 25, 2016, SHIP filed its first motion to dismiss.14 On May 17, 2016, Plaintiffs filed an
opposition.15 With leave of Court, SHIP filed a reply on May 24, 2016.16
On July 1, 2016, Plaintiffs filed an amended complaint asserting the same claims but
adding an expanded definition of Plaintiffs’ proposed class.17 With leave of Court, SHIP filed a
third-party complaint against Crawford and Magnolia on August 10, 2016.18
On July 18, 2016, SHIP filed the second instant motion to dismiss Plaintiffs’ amended
complaint, which incorporated SHIP’s previous arguments from its first motion to dismiss.19 On
July 26, 2016, Plaintiffs filed an opposition, which also incorporated Plaintiffs’ previous

11

See id.

12

Rec. Doc. 1.

13

Rec. Doc. 9.

14

Rec. Doc. 10.

15

Rec. Doc. 15.

16

Rec. Doc. 18.

17

Rec. Doc. 35.

18

Rec. Doc. 68.

19

Rec. Doc. 49.

3

arguments on the first motion to dismiss.20 With leave of Court, SHIP filed a reply on August 16,
2016.21
II. Parties’ Arguments
A.

SHIP’s Arguments in Support of the Second Motion to Dismiss
In its second motion to dismiss, SHIP argues that all of Plaintiffs’ claims in the amended

complaint should be dismissed pursuant to Rules 10(b) and (12)(b)(6) of the Federal Rules of Civil
Procedure.22 Because Plaintiffs’ amended complaint is “substantially identical” to the first petition,
SHIP avers, SHIP incorporates the arguments it made in its previous motion to dismiss.23 SHIP
further asserts that Plaintiffs’ first opposition memorandum only opposed dismissal of Plaintiffs’
negligence claims, and thus SHIP argues that Plaintiffs had “[e]ffectively, but not technically”
withdrawn opposition to the dismissal of the remainder of their claims.24
In the original motion to dismiss, SHIP contends that Plaintiffs’ “shotgun complaint” fails
the pleading requirements of Rule 8 and Rule 10(b) and should be dismissed in its entirety.25 SHIP
points out that Plaintiffs failed to attach the contract with SHIP or the 25-year manufacturer’s
warranty to the amended complaint or cite to any relevant provisions of either document.26 SHIP
avers that Plaintiffs simultaneously allege that the December 2010 roof installation was never

20

Rec. Doc. 52.

21

Rec. Doc. 74.

22

Rec. Doc. 49.

23

Rec. Doc. 49-1 at 2.

24

Id.

25

Rec. Doc. 10-1 at 2.

26

Id. at 3.

4

completed and that Plaintiffs also did not discover the alleged defects until late January 2015.27
SHIP argues that Plaintiffs allege, without any factual basis, that SHIP knew or had constructive
knowledge that its third-party contractor would not properly install the roof.28 SHIP also points
out that Plaintiffs failed to identify the specific building codes that SHIP and its contractors
allegedly did not follow.29 SHIP argues that Plaintiffs’ “shotgun” pleading does not specify what
claims the Plaintiffs are bringing or identify the supporting factual allegations for each of
Plaintiffs’ claims, which makes it “virtually impossible” to know which facts are intended to
support which claims for relief.30 For example, SHIP asserts that Plaintiffs list five legal duties
that SHIP allegedly failed to meet without identifying supporting facts or the sources of the duties,
while at other times Plaintiffs fail to tie their alleged facts to a cause of action.31
SHIP contends that Plaintiffs allege a redhibition cause of action without including
important factual information such as when the alleged defects existed or how SHIP knew or
should have known about the alleged defects.32 Likewise, SHIP argues that Plaintiffs assert a
breach of contract claim in the amended complaint, but do not plead how, when, or by whom the
contract was breached.33 SHIP further argues that Rule 9(b) requires allegations of fraud to be

27

Id.

28

Id.

29

Id. at 3–4.

30

Id. at 4–6.

31

Id. at 6.

32

Id. at 7.

33

Id.

5

stated with particularity, and that Plaintiffs “flatly fail to meet these requirements” with their vague
assertions regarding alleged misrepresentations.34
SHIP avers that Plaintiffs request attorneys’ fees and costs, but do not state a statutory or
contractual basis for their claim.35 SHIP also contends that Plaintiffs’ “piecemeal negligence
allegations” do not cite to any sources of legal duties allegedly owed to Plaintiffs or how SHIP
acted negligently.36 Finally, SHIP asserts that Plaintiffs seek several categories of “non-pecuniary
damages,” such as emotional and mental suffering and loss of enjoyment of life, but that Plaintiffs
failed to state what caused these damages or that SHIP knew such damages would result from the
allegedly defective roof.37 SHIP argues that under Louisiana law, non-pecuniary damages are only
allowed in contract cases “when (1) it is clear the contract was intended to satisfy a non-pecuniary
interest and (2) the allegedly breaching party knew or should have known the breach would cause
such loss.”38
B.

Plaintiffs’ Arguments in Opposition to the Second Motion to Dismiss
In their second opposition memorandum, Plaintiffs clarify that they have never withdrawn

or conceded that any of their claims should be dismissed, and Plaintiffs incorporate their arguments
made in their opposition to SHIP’s first motion to dismiss.39 In their first opposition memorandum,

34

Id. at 8.

35

Id. at 8–9.

36

Id. at 9.

37

Id.

38

Id. (citing La. Civ. Code art. 1998).

39

Rec. Doc. 52 at 1–2.

6

Plaintiffs argue that SHIP “knows exactly what [Plaintiffs] are complaining about.”40 Plaintiffs
contend that SHIP’s designated corporate representative testified in Glenn Jones v. Sears Home
Improvements, et al., a separate Louisiana state court lawsuit over SHIP’s allegedly defective roofs
brought by different plaintiffs, and confirmed that SHIP had instructed SHIP’s contractors to only
use four nails per shingle, while the manufacturer’s specifications and local building codes require
six nails per shingle and a proper nailing pattern.41 Plaintiffs aver that the 25 year manufacturer
warranty is void when the roof is installed inadequately.42 Plaintiffs assert that a “shotgun
pleading” is one that lists an excessive number of facts and a number of conclusory legal claims,
whereas here Plaintiffs make direct factual allegations regarding the negligent acts or omissions
of SHIP.43 Moreover, Plaintiffs argue that the remedy for shotgun pleadings would be to move for
a more definite statement under Rule 12(e) and to provide Plaintiffs with an opportunity to amend
their complaint.44
Plaintiffs aver that SHIP’s “interrogatory style questions” could be reasonably answered in
discovery, but “for the sake of judicial efficiency” Plaintiffs answer them in their opposition
memorandum.45 For example, Plaintiffs represent that the defects in the roof were not discovered

40

Rec. Doc. 15 at 1.

41

Id. at 2.

42

Id.

43

Id. at 4.

44

Id. at 5.

45

Id. at 7.

7

until January 2015 because that was the first time anyone went on the roof to count the number of
nails under the shingles.46
Likewise, Plaintiffs further allege that SHIP owed Plaintiffs the ordinary duties of a seller
and/or contractor to a homeowner to follow the manufacturer’s installation requirements, perform
their work in a “workmanlike manner,” and comply with all applicable codes and laws.47
According to Plaintiffs, the Louisiana legislature adopted the International Building Code of 2009
(“IBC”), which specifically provides that it is unlawful for any person or corporation to “erect,
construct, alter, extend, repair, move, remove, demolish, or occupy” a building or structure in
violation of the IBC.48 Plaintiffs assert that the IBC and Louisiana law also impose a duty on
contractors to safeguard public health, safety, and general welfare, as well as safety to life and
property.49 Furthermore, Plaintiffs represent that Louisiana law imposes a duty of care on
contractors and inspectors to perform their work in a “good and workmanlike manner,” and that a
“person who negligently builds something is liable in tort . . . for whatever damages are caused by
his negligent construction.”50 Plaintiffs aver that Louisiana courts have held that a contractor
“owes third parties a duty to exercise ordinary care and refrain from creating hazardous
conditions.”51 Plaintiffs point to several Louisiana state court cases that Plaintiffs contend stand
for the proposition that SHIP owed Plaintiffs two duties: (1) to comply with applicable building
46

Id.

47

Id.

48

Id. at 12–13.

49

Id. at 13.

50

Id. at 14–15 (citations omitted).

51
Id. at 15 (citing Wood v. Lindsey, 2014-0907 (La. App. 4 Cir. 1/28/15), 158 So. 3d 939, 942; Lyncker v.
Design Engineering, Inc., 2007-1522, at 3 (La. App. 4th Cir. 6/25/08) 988 So.2d 812, 814).

8

codes; and (2) “to build the roof or to adequately inspect the workmanship thereof in a manner as
to prevent the entry of water into the home.”52
Additionally, Plaintiffs argue that their damages include suffering from the installation of
a defective roof, needing to replace an entire roof only five and a half years after it was installed,
and emotional distress from knowing the roof was defective.53 Plaintiffs attach excerpts of the
2009 International Building Code, which Plaintiffs represent were adopted by local building codes,
which requires that roofs be installed with the capability of withstanding 120 mile per hour winds.54
According to Plaintiffs, the manufacturer’s installation requirements require six nails to be
installed per shingle to withstand 120 mile per hour winds and require that the roof be compliant
with local codes.55 In addition to pointing to the deposition of SHIP’s corporate representative in
Glenn Jones v. Sears Home Improvements, et al., Plaintiffs also point out that Tony Milo, a roofing
expert, testified that four nails instead of six nails were inadequate and would require the entire
roof to be replaced.56

52
Id. at 16 (citing Marine Ins. Co. v. Strecker, 234 La. 522, 100 So.2d 493 (La. 1958); Vicknair v. Hibernia
Bldg. Corp., 479 So.2d 904 (La. 1985); Winget v. Colfax Creosoting Co., 626 So.2d 370 (La. App. 3rd Cir. 1993);
Morrison v. J.A. Jones Constr. Co., 537 So.2d 360 (La. App. 4th Cir. 1988); Clement, 528 So.2d at 180; Oller v.
Sharp Electric. Inc., 451 So.2d 1235, 1236 (La. App. 4th Cir. 1984); Brock v. New Orleans Public Service. Inc., 433
So.2d 1083 (La. App. 4th Cir. 1983)).
53

Id.

54

Id. at 8–9 (citing Rec. Doc. 15-9).

55

Id. at 9.

56

Id. at 9–12 (citing Rec. Doc. 15-12).

9

C.

SHIP’s Arguments in Further Support of the Second Motion to Dismiss
In response, SHIP contends that Plaintiffs failed to oppose the dismissal of their claims for

redhibition, breach of contract, or fraud, and thus they should be dismissed.57 Moreover, SHIP
argues that, pursuant to Federal Rule of Civil Procedure 8(a), Plaintiffs need to plead their
negligence claims in their complaint and not in their opposition memorandum.58 SHIP avers that
Plaintiffs’ attached exhibits are outside the scope of a Rule 12(b)(6) motion to dismiss and cannot
be considered.59 SHIP further asserts that a party may not rely on new facts alleged in response to
a motion to dismiss to defeat the motion.60 Thus, SHIP argues that Plaintiffs have also failed to
state a claim for relief for negligence as well.61
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.”62 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”63 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that

57

Rec. Doc. 18 at 1.

58

Id. at 2.

59

Id.

60

Id. at 3.

61

Id. at 4.

62

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

63

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

10

is plausible on its face.’”64 “Factual allegations must be enough to raise a right to relief above the
speculative level.”65 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.”66
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.67 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.68 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”69
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.70 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.71 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”72 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

64

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

65

Twombly, 550 U.S. at 556.

66

Id. at 570.

67

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).
68

Iqbal, 556 U.S. at 677–78.

69

Id. at 679.

70

Id. at 678.

71

Id.

72

Id.

11

the asserted claims.73 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.74
Where a party alleges fraud or mistake, Federal Rule of Civil Procedure 9(b) requires that
those allegations “state with particularity the circumstances constituting fraud or mistake.”75
“What constitutes ‘particularity’ will necessarily differ with the facts of each case . . . .”76 “At a
minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false
representations, as well as the identity of the person making the misrepresentation and what he
obtained thereby.”77 This Court applies Rule 9(b) to fraud claims “with ‘bite’ and ‘without
apology.’”78 Such claims must contain “simple, concise, and direct” allegations of the
“circumstances constituting fraud,” which “must make relief plausible, not merely conceivable,
when taken as true.”79
B.

Analysis
First, the Court notes that after SHIP filed its first motion to dismiss, Plaintiffs filed an

amended complaint asserting the same claims but adding an expanded definition of Plaintiffs’

73

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

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).
74

75

U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009).

76

Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir. 1992).

77

Tel–Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir.1992) (internal quotation marks and
citation omitted).
78

U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d at 185.

79

Id. at 186.

12

proposed class.80 Subsequently, SHIP filed a second motion to dismiss that incorporated the
arguments made in its first motion.81 Accordingly, the Court will deny SHIP’s first motion to
dismiss as moot.82
In its second motion to dismiss, SHIP argues that Plaintiffs’ claims should be dismissed
pursuant to Rule 12(b)(6), as SHIP contends that Plaintiffs’ complaint omits important factual
information necessary to support their causes of action and to state a claim upon which relief can
be granted.83
1.

Consideration of Documents outside the Pleadings

As a preliminary matter, the Court notes that Plaintiffs attach seventeen exhibits to their
memorandum in opposition to the motion to dismiss.84 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.”85 If documents outside the pleadings are presented and considered by the court,
the motion must be treated as one for summary judgment under Rule 56. 86 By contrast, a district
court may decline to consider the submission of extraneous materials and refer solely to the

80

See Rec. Docs. 1-1, 35.

81

Rec. Doc. 49.

82

Rec. Doc. 10.

83

Rec. Doc. 49-1 at 1–2 (incorporating previous motion’s arguments); Rec. Doc. 10-1 at 2–3.

84

See Rec. Doc. 15.

85
Rodriguez v. Rutter, 310 F. App’x 623, 626 (5th Cir. 2009); see 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.).
86
Fed. R. Civ. P. 12(d); see U.S. ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 275 (5th Cir. 2015);
Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979).

13

pleadings, thereby preserving the motion as a motion to dismiss under Rule 12(b)(6). 87 However,
the Fifth Circuit has recognized that a district court may consider documents attached to the motion
to dismiss or the opposition memorandum if they are referred to in the complaint and are central
to the claim.88
Here, Plaintiffs’ amended complaint repeatedly references the manufacturer’s
specifications,89 Plaintiffs’ contract with SHIP,90 and the applicable building codes.91 Moreover,
each of these documents are central to Plaintiffs’ claims that SHIP improperly installed Plaintiffs’
roof in violation of the manufacturer’s specifications, their contract, and the applicable building
codes.92 Accordingly, the Court finds that it may consider these documents while deciding the
instant motion to dismiss.
However, Plaintiffs also attach to their memorandum a multitude of other documents that
were not referenced in the complaint or do not appear central to Plaintiffs’ claims. For example,

87

See U.S. ex rel. Long., 798 F.3d at 275 (holding that a district court does not need to convert a motion to
dismiss to a motion for summary judgment if it does not rely on a party’s submission of extraneous materials).
88

See Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014) (holding
that a court may consider documents attached to either a motion to dismiss or an opposition to that motion “when the
documents are referred to in the pleadings and are central to a plaintiff's claims”); Walch v. Adjutant General's Dep't
of Tex., 533 F.3d 289, 293–94 (5th Cir. 2008) (considering exhibits attached to an opposition because “[n]o party
questions the authenticity of these two documents and both were sufficiently referenced in the complaint to permit
their consideration on a motion to dismiss”); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(same).
See Rec. Doc. 35 at 3 (alleging that SHIP failed to install Plaintiffs’ roof in accordance with the roofing
manufacturer’s specifications); Rec. Doc. 15-1.
89

90

See Rec. Doc. 35 at 2–3 (alleging that SHIP entered into an agreement with Plaintiffs for the roof
installation and is liable for breach of contract); Rec. Doc. 15-2.
See Rec. Doc. 35 at 3 (alleging that SHIP failed to install Plaintiffs’ roof in accordance with the applicable
building codes); Rec. Doc. 15-9.
91

92

See Rec. Doc. 35.

14

Plaintiffs attached SHIP’s third party contractor’s inspection report for Plaintiffs’ roof,93 SHIP’s
“Service Work Order” for the roof installation,94 photos of Plaintiffs’ roof,95 two affidavits from
Plaintiffs,96 and a multitude of depositions and expert reports filed in a separate action by different
plaintiffs, Glenn Jones v. Sears Home Improvement Products, Inc.97 The Court declines to consider
these extraneous materials and will proceed to consider this motion as a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.98
Plaintiffs’ Redhibition Claim

2.

SHIP argues that Plaintiffs have alleged a claim of redhibition “without marrying facts with
the required elements.”99 In particular, SHIP contends that it is unclear whether the alleged defects
existed at the time the roof was delivered or if the alleged defects are “redhibitory defects,” or how
SHIP allegedly knew or should have known about any supposed defects in the roofs. 100 Plaintiffs
did not directly address SHIP’s arguments regarding their redhibition claim, but Plaintiffs
generally assert that all of their claims were sufficiently plead and should survive SHIP’s
motion.101

93

Rec. Doc. 15-3.

94

Rec. Doc. 15-4.

95

Rec. Doc. 15-5.

96

Rec. Docs. 15-7, 15-8.

97

Rec. Docs. 15-10, 15-11, 15-12, 15-13, 15-14, 15-15, 15-16, 15-17.

98
See Fed. R. Civ. P. 12(d) (providing that a motion to dismiss must be treated as a motion for summary
judgment only when matters outside the pleadings are presented and not excluded by the court); U.S. ex rel. Long.,
798 F.3d at 275.
99

Rec. Doc. 10-1 at 7.

100

Id.

101

Rec. Doc. 52 at 2.

15

Plaintiffs contend that SHIP has chosen to “intentionally mislead this court about their
feigned ignorance,” as SHIP was put “on clear notice” of these types of problems in its roof
installations when it was previously sued in Glenn Jones v. Sears Home Improvement Products,
Inc., which involved similar allegations.102 The Court notes that Plaintiffs appear to misinterpret
SHIP’s motion and the applicable law. Whether SHIP has faced similar litigation in the past and
should already be familiar with the allegations asserted by Plaintiffs is not at issue before the Court.
Rather, SHIP argues in its motion to dismiss that Plaintiffs have failed to state a claim upon which
relief can be granted.103 Thus, to survive the motion to dismiss, Plaintiffs’ amended complaint
must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible
on its face.104 That is, the inquiry before the Court on this motion is whether Plaintiffs, and not
other litigants in other cases not currently before this Court, have pleaded facts that raise a right to
relief above the speculative level and allow the Court to “draw a reasonable inference that the
defendant is liable for the misconduct alleged.”105
Under the Louisiana law of redhibition, “[t]he seller warrants the buyer against redhibitory
defects, or vices, in the thing sold.”106 Thus, a claim of redhibition may be asserted to recover
damages caused by a breach of that warranty in a sale.107 Pursuant to Louisiana Civil Code article

102

Rec. Doc. 15 at 5–6.

103

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

104

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008))
(quotation marks omitted).
105

Id. at 570.

106

La. Civ. Code art. 2520.

107

Austin v. N. Am. Forest Prod., 656 F.2d 1076, 1083 (5th Cir. 1981) (citing Cotton States Chemical Co. v.
Larrison Enterprises, Inc., 342 So.2d 1212, 1214–15 (La. App. 2 Cir. 1977); Crowley Grain Drier, Inc. v. Fontenot,
132 So.2d 573 (La. App. 3 Cir. 1961)).

16

2520, a defect is “redhibitory” when: (1) “it renders the thing useless, or its use so inconvenient
that it must be presumed that a buyer would not have bought the thing had he known of the defect;”
or (2) “without rendering the thing totally useless, it diminishes its usefulness or its value so that
it must be presumed that a buyer would still have bought it but for a lesser price.” The first type of
redhibitory defect gives a buyer the right to obtain rescission of the sale, while the second type of
redhibitory defect limits the right of a buyer to a reduction of the price. 108 Louisiana courts have
clarified that the term “defect” generally means “a physical imperfection or deformity; or a lacking
of necessary components or level of quality.”109
To assert a claim of redhibition, a buyer must establish (1) that a “redhibitory” defect exists
and (2) that the redhibitory defect existed at the time of delivery and was not known or apparent
to the buyer. 110 Moreover, pursuant to Louisiana Civil Code article 2522, the buyer must give the
seller notice that a redhibitory defect exists and allow the seller an opportunity to make repairs, or
else suffer a “diminution of the warranty.” However, article 2522 goes on to provide that “[s]uch
notice is not required when the seller has actual knowledge of the existence of a redhibitory defect
in the thing sold.”111

108

Id.

109
Ezell v. Gen. Motors Corp., 446 So. 2d 954, 956 (La. App. 3 Cir. 1984); Williams v. Louisiana Machinery
Company, Inc., 387 So.2d 8 (La. App. 3 Cir. 1980).
110

See La. Civ. Code arts. 2520, 2521, 2522, 2530 and 2531; Cain v. Gen. Motors, LLC, No. 14-1057, 2015
WL 1198591, at *2 (W.D. La. Mar. 16, 2015) (listing elements of a suit for redhibition); Purvis v. Statewide Trailer
Sales, Inc., 339 So. 2d 403, 407 (La. App. 1 Cir. 1976) (same). See also Stroderd v. Yamaha Motor Corp., U.S.A., No.
04-3040, 2005 WL 2037419, at *3–4 (E.D. La. Aug. 4, 2005) (Fallon, J.).
111

La. Civ. Code art. 2522. See also Pellegrin v. City of Thibodaux, 2001-2750 (La. App. 1 Cir. 12/31/02),
837 So. 2d 139, 141 (noting that failing to give the seller notice and an opportunity to repair does not foreclose the
filing of a lawsuit for redhibition, but merely limits the remedies available to the buyer).

17

Additionally, when considering whether a claim for redhibition exists, courts in Louisiana
distinguish between redhibitory defects arising from a sales contract and those deficiencies arising
from a “contract to do,” such as a service or construction contract, to which the laws of redhibition
would not apply.112 This is because the underlying transaction for a redhibition action must be a
“sale” for a redhibitory defect to exist in the “thing sold.” 113 A contract of sale is one “whereby a
person transfers ownership of a thing to another for a price in money.”114 When a contract gives
rise to multiple obligations, courts in Louisiana typically look to the fundamental or predominating
primary obligation of the contract to determine what rules will control.115
Louisiana courts consider three factors in determining whether a contract is one of “a sale”
or one “to build” or “to do”: (1) “in a contract to build, the ‘purchaser’ has some control over the
specifications of the object;” (2) “the negotiations in a contract to build take place before the object
is constructed;” and (3) “a building contract contemplates not only that the builder will furnish the
materials, but that he will also furnish his skill and labor in order to build the desired object.” 116

112

See First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., 178 F. Supp. 3d 390, 403 (E.D. La. 2016)
(Engelhardt, J.); Alonzo v. Chifici, 526 So. 2d 237, 241 (La. App. 5 Cir. 1988); see generally S. Litvinoff, 5 La. Civ.
L. Treatise, Law Of Obligations § 1.4 (2d ed.) (“The object of the performance is the criterion for the traditional
classification of obligations in three categories, namely, obligations to give, obligations to do, and obligations not to
do.”).
113

La. Civ. Code art. 2520; see Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 520 (5th Cir. 1981);
Peoples Water Serv. Co. of La. v. Menge Pump & Mach. Co., 452 So. 2d 752, 754 (La. App. 5 Cir. 1984).
114

La. Civ. Code art. 2439; see Blue v. Schoen, 556 So. 2d 1364, 1368 (La. App. 5 Cir. 1990), writ granted,
judgment amended, 559 So. 2d 1347 (La. 1990), order clarified, 563 So. 2d 869 (La. 1990).
115
Peoples Water Serv. Co. of La., 452 So. 2d at 754 (citing 7 S. Litvinoff, La. Civil Law Treatise:
Obligations, at 291); Blue, 556 So. 2d at 1368.
116

Alonzo v. Chifici, 526 So.2d 237, 241 (La. App. 5 Cir. 1988) (quoting Acadiana Health Club, Inc. v.
Hebert, 469 So.2d 1186, 1189 (La. App. 3 Cir. 1985)); see First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., 178 F.
Supp. 3d 390, 403 (E.D. La. 2016) (Engelhardt, J.).

18

Additionally, courts use the “value test” by looking to whether “the labor extended in constructing
the item, or the materials incorporated therein, constitute the ‘principal value of the contract.’”117
For example, in Rasmussen v. Cashio Concrete Corporation, the Louisiana First Circuit
Court of Appeal considered whether a plaintiff may assert a redhibition action from a contract for
the sale and installation of a home sewer treatment plant.118 The court held that, because the
“primary object of the agreement between the parties was the provision of a functioning sewer
treatment plant,” the contract was categorized as a contract of sale and Louisiana law on redhibition
applied.119 By contrast, in Kegler's Inc. v. Levy, the Louisiana Fourth Circuit Court of Appeal
determined that a redhibition action could not be asserted based on a contract to furnish and install
new carpeting in a bowling alley, as the court held that the contract was not a “contract of sale.”120
The Louisiana court noted that the defendant was required to do more than solely deliver and
warrant the carpet, but rather the defendant was obliged to cut the carpeting and padding to fit the
floor, sew the seams, and fix the material to the floor.121 Thus, the Louisiana fourth circuit
concluded that the plaintiff’s petition stated a cause of action for breach of contract, and not for
redhibition.122

117

Alonzo, 526 So.2d at 241 (quoting Price v. Huey Childs Builder, Inc., 426 So.2d 398 (La. App. 2 Cir.
1983)); First Am. Bankcard, Inc., 178 F. Supp. 3d at 403.
118

484 So. 2d 777, 778 (La. App. 1 Cir. 1986).

119
Id. See also PPG Indus., Inc. v. Indus. Laminates Corp., 664 F.2d 1332, 1336 (5th Cir. 1982) (affirming
a district court’s finding that defendant’s defective panels that were installed directly by plaintiff “fit[] squarely into
the definition of redhibition under Louisiana law”).
120

239 So. 2d 450, 453 (La. App. 4 Cir. 1970).

121

Id. at 452.

122

Id. at 453.

19

Here, in the amended complaint, Plaintiffs allege that SHIP is liable for the “redhibitory
vices in the roofs that it sold . . . as [Plaintiffs] would not have bought Sears roofs had they known
that they were not going to be sold building-code compliant roofs, were not built to withstand
expected coastal winds, and had no manufacturer warranty, as a result of improper installation.”123
Moreover, Plaintiffs aver that “SHIP knew, or had constructive knowledge, that the 3-tab roofs it
sold were not building code compliant the way SHIP instructed its subcontractors to install it, with
4 nails per shingle instead of 6, where the nails were placed, and the type of ridge cap used and the
nailing patterns of the ridge cap.”124
However, Plaintiffs have not alleged sufficient facts to show that a redhibitory defect
existed or that such a defect existed at the time of delivery. In particular, Plaintiffs have failed to
allege sufficient facts to demonstrate that Plaintiffs’ contract with SHIP was a contract of sale to
which the law of redhibition would apply. As stated above, the factors considered by courts to
determine if a contract of sale existed involve a fact-intensive inquiry into the parties’ prior
negotiations and the content of the contract.125 Here, the Court notes that the contract at issue
appears to have required SHIP to remove Plaintiffs’ old roof, inspect for rotten wood, clean up
around the work site, and install new shingles, metal drip edges, vent covers, and an attic
ventilation system.126 However, without further information, the Court cannot determine what the
primary obligation of the contract was or find that a cause of action for redhibition may properly

123

Rec. Doc. 35 at 6.

124

Id. at 5.

125

Alonzo v. Chifici, 526 So.2d 237, 241 (La. App. 5 Cir. 1988) (quoting Acadiana Health Club, Inc. v.
Hebert, 469 So.2d 1186, 1189 (La. App. 3 Cir. 1985)); see First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., 178 F.
Supp. 3d 390, 403 (E.D. La. 2016) (Engelhardt, J.).
126

Rec. Doc. 15-2 at 1.

20

be asserted against SHIP. Therefore, even construing Plaintiffs’ complaint liberally and accepting
all allegations as true, the Court concludes that Plaintiffs have failed to allege sufficient facts to
state a claim of redhibition against SHIP.
Nonetheless, the Court notes that Plaintiffs request that, if the Court finds that SHIP’s
motion to dismiss has merit, Plaintiffs should be allowed leave to amend their complaint.127
Dismissal is a harsh remedy, and the Court is cognizant of the Fifth Circuit’s instruction that a
motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely granted.”128 Short of
granting a motion to dismiss, a court may grant a plaintiff leave to amend his or her complaint.129
Here, Plaintiffs could plausibly allege facts that would allow the Court to draw a “reasonable
inference” that SHIP is liable under Louisiana law of redhibition, and SHIP has not pointed to any
authority to the contrary. Accordingly, the Court, in its discretion, will grant Plaintiffs leave to
amend their complaint by April 17, 2017, to address the issues identified by the Court. If Plaintiffs
are unable to do so by the Court’s deadline, the Court will dismiss their claim of redhibition.
3.

Breach of Contract

Next, SHIP argues that Plaintiffs’ breach of contract claim should be dismissed, as SHIP
cannot determine which facts go to such a claim.130 SHIP contends that Plaintiffs state that a
contract between Plaintiffs and SHIP existed, but that “SHIP cannot discern how, when, or by
whom the Coleman Contract was breached or what damages (if any) Plaintiffs suffered as a result

127

Rec. Doc. 15 at 2; Rec. Doc. 52 at 2.

128

Beanal v. Freeport-McMoran, Inc, 197 F.3d 161, 164 (5th Cir. 1999).

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (“This standard ‘evinces a bias in
favor of granting leave to amend. The policy of the Federal Rules is to permit liberal amendment.’”) (quoting Dussouy
v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
129

130

Rec. Doc. 10-1 at 7.

21

of the breach.”131 Plaintiffs did not directly address SHIP’s arguments, but Plaintiffs generally
assert that all of their claims were sufficiently plead and should survive SHIP’s motion.132
Under Louisiana law, to assert a breach of contract claim, the plaintiff must show: (1) the
obligor undertook an obligation to perform; (2) the obligor failed to perform the obligation,
resulting in a breach; and (3) the failure to perform resulted in damages to the obligee.133 In the
amended complaint, Plaintiffs allege that: (1) Plaintiffs entered into an agreement with SHIP for
the sale and installation of an Owens-Corning 3-tab 25-year shingle roof for $12,000; (2) SHIP
failed to complete the roof installation and/or properly install the roof, such as by using an
insufficient number of nails per shingle in contradiction to local building codes and the
manufacturer’s specifications; and (3) Plaintiffs suffered damages as a result.134 Accordingly,
construing the complaint liberally, the Court finds that Plaintiffs have plausibly alleged sufficient
facts to support a claim for breach of contract.
While SHIP criticizes Plaintiffs for not providing further detail in the amended complaint,
the Court notes that, pursuant to Rule 8 of the Federal Rules of Civil Procedure, the complaint
need only contain a “short and plain statement of the claim” showing that Plaintiffs are entitled to
relief. As the Supreme Court recognized in Twombly and Iqbal, Rule 8 does not require “detailed
factual allegations, as long as the plaintiff’s complaint contains sufficient factual matter to state a

131

Id.

132

Rec. Doc. 52 at 2.

133

Sanga v. Perdomo, 14-609 (La. App. 5 Cir. 12/30/14), 167 So. 3d 818, 822; see La. Civ. Code art. 1994;
Favrot v. Favrot, 10–0986 (La. App. 4 Cir. 02/09/11), 68 So.3d 1099, 1109.
134

Rec. Doc. 35 at 2–3, 13.

22

facially plausible claim.”135 Plaintiffs have done so here. Therefore, the Court will deny SHIP’s
motion to dismiss Plaintiffs’ breach of contract claim.
4.

Fraud

SHIP contends that Plaintiffs “vaguely refer” to alleged misrepresentations made by SHIP
and its employees without specifying who made the representations or when and where they were
made.136 Thus, SHIP argues that Plaintiffs fail to meet the heightened pleading requirements of
Rule 9(b) of the Federal Rules of Civil Procedure.137 Plaintiffs also did not directly address SHIP’s
arguments regarding their fraud claim, but Plaintiffs generally assert that all of their claims were
sufficiently plead and should survive SHIP’s motion.138
Under Louisiana law, fraud is defined as “a misrepresentation or a suppression of the truth
made with the intention either to obtain an unjust advantage for one party or to cause a loss or
inconvenience to the other.”139 To state a claim for fraud or intentional misrepresentation, a
plaintiff must allege: (1) a misrepresentation of a material fact; (2) made with intent to deceive;
and (3) causing justifiable reliance with resultant injury.140 To assert a claim for negligent
misrepresentation in Louisiana, the plaintiff must demonstrate: (1) the defendant had a legal duty
to supply correct information; (2) there was a breach of that duty, which can occur by omission as

135

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

136

Rec. Doc. 10-1 at 8.

137

Id.

138

Rec. Doc. 52 at 2.

139

La. Civ. Code art. 1953.

140

Kadlec Medical Center v. Lakeview Anesthesia Assoc., 527 F.3d 412, 418 (5th Cir. 2008); Boutain v.
Radiator Specialty Co., No. 11-1907, 2011 WL 6130754, at *2 (E.D. La. Dec. 8, 2011) (Vance, J.); Gonzales v.
Gonzales, 2008-0258 (La. App. 4 Cir. 9/30/09), 20 So. 3d 557, 563.

23

well as by affirmative misrepresentation; and (3) the breach caused damages to the plaintiff based
on the plaintiff's reasonable reliance on the misrepresentation.141
Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, a plaintiff alleging fraud or
mistake “must state with particularity the circumstances constituting fraud or mistake.”142 Thus,
in the Fifth Circuit, allegations of fraud “must meet a higher, or more strict, standard than the basic
notice pleading required by Rule 8.”143 “At a minimum, Rule 9(b) requires allegations of the
particulars of time, place, and contents of the false representations, as well as the identity of the
person making the misrepresentation and what he obtained thereby.”144
In the amended complaint, Plaintiffs assert that SHIP “knowingly and fraudulently
represented to Plaintiffs . . . that they had purchased a valid warranty” when SHIP’s alleged
conduct made the warranty invalid.145 Plaintiffs further contend that SHIP failed to inform
Plaintiffs that the roof installed did not comply with the building codes and the manufacturer’s
specifications or that it was not suitable for its intended purposes.146 In sum, Plaintiffs allege that

Kadlec Medical Center, 527 F.3d at 418; Pastor v. Lafayette Bldg. Ass’n, 89-462 (La. App. 3 Cir. 10/3/90),
567 So. 2d 793, 796. See generally Daye v. Gen. Motors Corp., 97-1653 (La. 9/9/98), 720 So. 2d 654, 659 (“In general,
the courts of this state have recognized that La. Civ. Code arts. 2315 and 2316, the code articles defining tort law,
encompass an action for negligent misrepresentation.”).
141

142

Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (explaining that both state-law fraud
claims and federal securities claims are subject to the heightened pleading requirements of Rule 9(b)) (citing Williams
v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997) (“We see no principled reason why the state claims of fraud
should escape the pleading requirements of the federal rules . . . .”)); Boutain v. Radiator Specialty Co., No. 11-1907,
2011 WL 6130754, at *2 (E.D. La. Dec. 8, 2011) (Vance, J.) (“State-law fraud claims, such as those alleged by
plaintiffs here, are subject to the pleading requirements of Federal Rule of Civil Procedure 9(b).”).
143

See Shushany v. Allwaste, Inc., 992 F.2d 517, 521 (5th Cir. 1993).

144

Id. (quoting Tel–Phonic Services, Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992)); see also
U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 188 (5th Cir. 2009).
145

Rec. Doc. 35 at 4.

146

Id. at 5.

24

SHIP “made an intentional or negligent misrepresentation” to Plaintiffs “which constitutes fraud
and/or fraudulent inducement to contract.”147
Without additional factual allegations, the Court finds that the amended complaint does not
meet the particularity requirement of Rule 9(b). Plaintiffs fail to make sufficient factual allegations
regarding the “time, place, and contents” of any alleged misrepresentations or fraudulent
statements by SHIP.148 Accordingly, the Court determines that Plaintiffs have failed to plead
sufficient facts to state a claim against SHIP for fraud and/or negligent misrepresentation.
Nonetheless, as noted supra, Plaintiffs request that, if the Court determines that SHIP’s
motion to dismiss should be granted, Plaintiffs should be allowed leave to amend their
complaint.149 As the Fifth Circuit has repeatedly held, a plaintiff’s failure to meet Rule 9’s
heightened pleading requirements “should not automatically or inflexibly result in dismissal of the
complaint,” as a plaintiff should be granted leave to amend unless amendment would be futile or
the plaintiff has already been afforded repeated opportunities to amend.150 Accordingly, the Court
will grant Plaintiffs leave to amend their complaint by April 17, 2017, to address the issues
identified by the Court. If Plaintiffs are unable to do so by the Court’s deadline, the Court will
dismiss their claims.

147

Id.

148

Shushany, 992 F.2d at 521.

149

Rec. Doc. 15 at 2; Rec. Doc. 52 at 2.

150

Hart v. Bayer Corp., 199 F.3d 239, 248 (5th Cir. 2000); See Cates v. International Telephone and
Telegraph Corp., 756 F.2d 1161, 1180 (5th Cir. 1985) (“But such deficiencies do not normally justify dismissal of the
suit on the merits and without leave to amend, at least not in the absence of special circumstances.”); U.S. ex rel.
Stewart v. The Louisiana Clinic, No. 99-1767, 2002 WL 257690, at *5 (E.D. La. Feb. 22, 2002) (Engelhardt, J.).

25

5.

Negligence

SHIP asserts that Plaintiffs’ negligence claims should be dismissed because Plaintiffs have
failed to sufficiently allege how SHIP was negligent, the sources of the legal duties it allegedly
owed to Plaintiffs, or what damages were caused.151 In response, Plaintiffs argue that SHIP owed
Plaintiffs a number of duties which were violated by SHIP’s negligent conduct. 152 For example,
Plaintiffs aver that Louisiana law imposes a duty on builders to protect the health and safety of
occupants of buildings and requires “reasonable safeguards for health, safety, welfare, comfort and
security.”153 Moreover, Plaintiffs point out that Louisiana law states that contractors owe a duty
to perform their work in a “good and workmanlike manner,” and that a person who negligently
builds something is liable for the damages caused by his negligent construction.154 Likewise,
Plaintiffs contend that roof contractors must perform their work in accordance with industry
standards and the manufacturer’s specifications.155 Thus Plaintiffs aver that SHIP violated these
duties to (1) comply with local building codes and (2) properly build the roof or adequately inspect
the workmanship of the roof installation when SHIP installed a deficient roof.156
Louisiana courts conduct a “duty-risk analysis” to determine whether a defendant is liable
for negligence.157 To prevail on a negligence claim, a plaintiff must prove five elements: (1) the

151

Rec. Doc. 10-1 at 9.

152

Rec. Doc. 15 at 12–18.

153

Id. at 12 (citing La. Rev. Stat. § 40:1730.21).

154

Id. at 14–15 (citing La. Civ. Code arts. 2315, 2762).

155

Id. at 16.

156

Id.

157

La. Civ. Code art. 2315; Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So. 2d 627,
632–33 (citing Mathieu v. Imperial Toy Corporation, 94-0952 (La.11/30/94), 646 So.2d 318, 321); see also Nagle v.

26

defendant had a duty to conform his conduct to a specific standard of care; (2) the defendant’s
conduct failed to conform to the appropriate standard of care; (3) the defendant’s substandard
conduct was a cause-in-fact of the plaintiff’s injuries; (4) the defendant’s substandard conduct was
a legal cause of the plaintiff’s injuries; and (5) the defendant’s conduct caused actual damages.158
First, the threshold question is whether SHIP owed Plaintiffs a duty under “any law
(statutory, jurisprudential, or arising from general principles of fault).”159 Plaintiffs point to a
number of sources of duties owed to Plaintiffs by SHIP, including Louisiana Civil Code article
2315, Louisiana’s general negligence statute.160 Pursuant to article 2315, “[e]very act whatever of
man that causes damage to another obliges him by whose fault it happened to repair it.”161 As
Louisiana courts have recognized, a contractor who negligently constructs or builds something is
liable in tort under Louisiana Civil Code article 2315 for whatever damages are caused, and the
contracts owes a duty “to perform in a workmanlike manner free from defects attributable to either
faulty materials or poor workmanship.”162 Accordingly, the Court finds that the element of duty is
met.

Gusman, 61 F. Supp. 3d 609, 620 (E.D. La. 2014) (Vance, J.).
158

Lemann, 923 So. 2d at 633.

159

Id. (citing Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229, 233; Faucheaux v. Terrebonne
Consolidated Government, 615 So.2d 289, 292 (La. 1993)).
160

Rec. Doc. 15 at 14–15.

161

La. Civ. Code art. 2315.

162

Clement v. State Through Dep't of Transp. & Dev., 528 So. 2d 176, 179–80 (La. App. 1 Cir. 1988) (citing
Marine Insurance Company v. Strecker, 234 La. 522, 100 So.2d 493 (1958); Kendrick v. Mason, 234 La. 271, 99
So.2d 108 (1958); Cell-O-Mar, Inc. v. Gros, 479 So.2d 386 (La. App. 1 Cir. 1985); Oller v. Sharp Electric, Inc., 451
So.2d 1235 (La. App. 4 Cir. 1984)).

27

Second, Plaintiffs allege that SHIP breached its duties to Plaintiffs.163 A breach of duty is
“the failure to exercise reasonable care under the circumstances.”164 Here, Plaintiffs allege in the
amended complaint that SHIP failed to meet its duties in a number of ways, including: (1) failing
to install the Plaintiffs’ roof according to the local building codes or the manufacturer’s
specifications or with the proper materials and techniques required; (2) failing to provide proper
instructions to its inspectors or to ensure the third-party contractors properly installed Plaintiffs’
roof; and (3) hiring a subcontractor who SHIP knew or should have known did not possess the
necessary skill or knowledge to install the roof correctly.165 Thus, construing the amended
complaint liberally and accepting all allegations as true, the Court finds that the element of breach
of duty is met.
Third, Plaintiffs aver that SHIP’s negligence was the cause-in-fact and legal cause of
Plaintiffs’ injuries, which Plaintiffs assert satisfies the third and fourth elements of a negligence
claim.166 Under Louisiana law, determining if the defendant’s conduct was the cause-in-fact
involves a “but for” inquiry, “which tests whether the accident would or would not have happened
but for the defendant's substandard conduct.”167 The fourth element of negligence, legal cause (also
called “scope of duty”), asks whether “the particular risk falls within the scope of the duty . . . [and
if] the enunciated rule extends to or is intended to protect this plaintiff from this type of harm

163

Rec. Doc. 35 at 3–4.

164
D.C. v. St. Landry Par. Sch. Bd., 2000-01304 (La. App. 3 Cir. 3/7/01), 802 So. 2d 19, 22 (citing Frank L.
Maraist & Thomas C. Galligan, Louisiana Tort Law § 6–1, at 139 (1996)); see also Nagle, 61 F. Supp. 3d at 620.
165

Rec. Doc. 35 at 3–7.

166

Id. at 13.

167

Perkins v. Entergy Corp., 782 So.2d 606, 611 (La. 2001); see also Nagle, 61 F. Supp. 3d at 622.

28

arising in this manner.”168 Here, Plaintiffs have plausibly alleged that SHIP was both the cause-infact and the legal cause of Plaintiffs’ injuries, as Plaintiffs assert that their defective roof was the
direct result of SHIP’s allegedly negligent acts and that SHIP’s conduct falls within the scope of
its duties.169 Accordingly, for this motion to dismiss, the Court finds that both the third and fourth
elements of negligent are met.
Finally, Plaintiffs allege that SHIP’s conduct caused Plaintiffs actual damages, including
the costs of replacing the defective roof, the costs of repairs, and other such injuries.170
Accordingly, the Court finds that the fifth element of Plaintiffs’ negligence claim is met. Therefore,
the Court finds that Plaintiffs have plausibly alleged sufficient facts to state a claim for negligence
against SHIP. Thus, the Court will deny SHIP’s motion to dismiss Plaintiff’s negligence claims.
Attorneys’ Fees and Costs

6.

SHIP also asserts that Plaintiffs’ request for attorneys’ fees and costs should be
dismissed.171 SHIP argues that Louisiana law provides that damages for attorneys’ fees are not
allowed unless they are authorized by statute or contract, and that Plaintiffs have not alleged a
statutory or contractual basis to support their request here. 172 Plaintiffs did not respond to SHIP’s
argument.173 Moreover, in their opposition memorandum to the second motion to dismiss,

168

Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 293–94 (La. 1993) (citations omitted); see also
Nagle, 61 F. Supp. 3d at 622; Fowler v. Roberts, 556 So.2d 1, 6 (La. 1989).
169

Rec. Doc. 35 at 13.

170

Id.

171

Rec. Doc. 10-1 at 8.

172

Id.

173

Rec. Doc. 15.

29

Plaintiffs only stated that they have not waived their claims for “redhibition, fraud, damages,
negligence and breach of contract,” but do not mention their original request for attorneys’ fees.174
Under Louisiana law, a litigant typically bears his or her own attorneys’ fees unless a
contract or statute explicitly authorizes recovery.175 In the amended complaint, Plaintiffs allege
that because SHIP “fraudulently and knowingly sold non-building code complaint roofs with
redhibitory vices” and violated their contract with Plaintiffs, SHIP is liable for attorneys’ fees and
costs.176 The Court notes that Louisiana courts have held that, unless a contract contains a specific
provision for attorneys’ fees, a plaintiff will not be awarded attorneys’ fees on a breach of contract
claim.177 The Court further notes that Louisiana Civil Code article 2545 authorizes the recovery
of reasonable attorneys’ fees for redhibition claims; however, the Court found supra that Plaintiffs
failed to sufficiently allege a claim for redhibition in the amended complaint. Additionally, while
claims seeking rescission of a contract based on fraud may receive attorneys’ fees pursuant to
Louisiana Civil Code article 1958,178 it is not clear that Plaintiffs are asserting such a claim here.
Moreover, the Court also found supra that Plaintiffs’ fraud claims failed to meet the heightened
requirements of Rule 9(b). Accordingly, the Court finds that Plaintiffs have failed to state claim

174

Rec. Doc. 52 at 2.

175

See La. Civ. Code art. 1920; 21 La. Civ. L. Treatise, Louisiana Lawyering § 16.1. See also F.D.I.C. v.
Barton, 233 F.3d 859, 865 (5th Cir. 2000) (“In Louisiana, attorney's fees usually are not allowed in civil actions in the
absence of a statute or contract.”); Morris v. Wyeth, Inc., No. 09-0854, 2009 WL 5342507, at *3 (W.D. La. Nov. 18,
2009); Kinsinger v. Taco Tico, Inc., 861 So.2d 669, 671–672 (La. App. 5 Cir. 2003).
176

Rec. Doc. 35 at 14.

177
See N-Y Assocs., Inc. v. Bd. of Comm'rs of Orleans Par. Levee Dist., 2004-1598 (La. App. 4 Cir. 2/22/06),
926 So. 2d 20, 27 (citing Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1015 (La. 1984);
Lamonte v. Premier Sales, Inc., 00-298, 00-299 (La. App. 5 Cir. 10/18/00), 776 So.2d 493, 497l Willett v. Premier
Bank, 97-187 (La. App. 3 Cir. 6/4/97), 696 So.2d 196, 201).
178

See Stutts v. Melton, 2013-0557 (La. 10/15/13), 130 So. 3d 808, 814.

30

for attorneys’ fees. However, based on the same reasoning above, the Court will, in its discretion,
grant Plaintiffs leave to amend their complaint to sufficiently allege grounds on which attorneys’
fees may be awarded under Louisiana law in this matter.
7.

General Compensatory Damages

Finally, SHIP argues that Plaintiffs’ claims for emotional and mental suffering and anguish
and loss of enjoyment of life should be dismissed.179 SHIP contends that Plaintiffs’ complaint “tell
us nothing about these damages, what caused them, or that SHIP knew . . . an allegedly defective
roof would cause such losses.”180 SHIP avers that these are “non-pecuniary damages,” which are
only allowed in contract cases when (1) the contract was intended to satisfy a non-pecuniary
interest and (2) the defendant knew or should have known the breach would cause such loss.181
Plaintiffs did not directly respond to SHIP’s arguments, but generally asserted that they are not
dropping any of their requests for damages.182
The Court first notes that SHIP appears to ignore the fact that Plaintiffs have also asserted
negligence claims in addition to their breach of contract claim. Pursuant to Louisiana Civil Code
article 2315, a tortfeasor must compensate the tort victim for all damages he or she has caused.183
The tortfeasor is thus liable for general compensatory damages, which include mental pain or
suffering and loss of enjoyment of life.184 The Louisiana Supreme Court has held that

179

Rec. Doc. 10-1 at 9.

180

Id.

181

Id. at 9–10.

182

Rec. Doc. 52 at 2.

See La. Civ. Code art. 2315 (“Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it”); McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So. 2d 770, 773.
183

184

McGee, 933 So. 2d at 773 (citing Duncan v. Kansas City S. R.R., 00–0066, (La.10/30/00), 773 So. 2d 670,

31

compensatory damages are distinct from nonpecuniary damages, which are damages “of a moral
nature.”185 Thus, if proven, Louisiana law authorizes Plaintiffs to recover damages on their
negligence claims for their alleged emotional and mental suffering and anguish and loss of
enjoyment of life. By contrast, SHIP has pointed to no authority to support its argument that
Plaintiffs cannot recover such damages on the negligence claims they have asserted. Accordingly,
the Court will deny SHIP’s motion to dismiss Plaintiffs’ request for emotional and mental suffering
and anguish and loss of enjoyment of life.
IV. Conclusion
As stated supra, because SHIP filed a second motion to dismiss after Plaintiffs filed an
amended complaint, the Court will deny SHIP’s first motion to dismiss as moot.186 With regard to
SHIP’s second motion to dismiss, the Court concludes, based on the foregoing, that Plaintiffs have
alleged sufficient facts to state a claim for breach of contract and a claim for negligence. SHIP has
not pointed to any authority demonstrating that Plaintiffs’ claims for breach of contract and
negligence should be dismissed pursuant to Rule 12(b)(6). Moreover, the Court determines that, if
proven, Plaintiffs’ negligence claims entitle Plaintiffs to recover damages for their alleged
emotional and mental suffering and anguish and loss of enjoyment of life. SHIP has failed to
identify any authority to show that Plaintiffs are barred from recovering such damages.

682; Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506, 507 (La. 1978); Anderson v. Welding Testing Lab.,
Inc., 304 So.2d 351, 352 (La. 1974)).
185
Young v. Ford Motor Co., 595 So. 2d 1123, 1128 & n.8 (La. 1992); see also Duncan, 773 So. 2d at 682
(“General damages are those which may not be fixed with pecuniary exactitude; instead, they ‘involve mental or
physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses
of life or life-style which cannot be definitely measured in monetary terms.’”).
186

Rec. Doc. 10.

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However, the Court also finds that Plaintiffs have not made sufficient factual allegations
to support a claim for redhibition pursuant to Rule 12(b)(6). Plaintiffs have not alleged sufficient
facts to determine whether a redhibition defect existed at the time of delivery or that a claim of
redhibition may be asserted based on Plaintiffs’ contract with SHIP. The Court further determines
that Plaintiffs have failed to satisfy the heightened pleading requirements of Rule 9 to assert a
fraud claim, as Plaintiffs have not sufficiently alleged the “time, place, and contents” of any alleged
misrepresentations or fraudulent statements by SHIP. Additionally, the Court finds that Plaintiffs
have not identified a contractual provision or statute that would authorize the recovery of attorneys’
fees based on their remaining causes of action.
Nonetheless, because dismissal is a harsh remedy, the Court will deny SHIP’s motion and
grant Plaintiffs leave to amend their complaint by April 17, 2017, to address the issues identified
by the Court in Plaintiffs’ claims for redhibition and fraud and Plaintiffs’ request for attorneys’
fees. If Plaintiffs are unable to do so, the Court will dismiss their claims of redhibition and fraud
and their request for attorneys’ fees. Accordingly,
IT IS HEREBY ORDERED that Defendant SHIP’s “Motion to Dismiss”187 Plaintiffs’
original Petition is DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendant SHIP’s “Motion to Dismiss Second
Amended Complaint”188 is DENIED WITHOUT PREJUDICE.

187

Rec. Doc. 10.

188

Rec. Doc. 49.

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IT IS FURTHER ORDERED that Plaintiffs are granted leave to amend their complaint
by April 17, 2017, to address the issues identified by the Court. If Plaintiffs are unable to cure the
deficiencies in the complaint by that time, upon motion of a party the Court will dismiss the
following claims: (1) Plaintiffs’ claim of redhibition; (2) Plaintiffs’ claim of fraud; and (3)
Plaintiffs’ request for attorneys’ fees.

21st
NEW ORLEANS, LOUISIANA, this ______ day of March, 2017.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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