CMP, LLC v. Railway Spine Productions, LLC et al
Filing
22
ORDER AND REASONS granting 7 defendants' partial motion to dismiss for failure to state a claim. The plaintiff's defamation claim is dismissed. Signed by Judge Martin L.C. Feldman on 10/5/16. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CMP, LLC
CIVIL ACTION
V.
NO. 16-6850
RAILWAY SPINE PRODUCTIONS, LLC, ET AL.
SECTION F
ORDER AND REASONS
Before the Court is the defendants’ partial motion to dismiss
for failure to state a claim.
For the reasons that follow, the
motion is GRANTED.
Background
This litigation arises out of a production company’s use of
private property to film scenes for a television series.
CMP, LLC owns rural property in the Town of Jean Lafitte,
located in Jefferson Parish, Louisiana. Railway Spine Productions,
LLC (RSP), a television production company, entered into a Location
Agreement with CMP to use its property as a filming location during
June and July 2015 in order to film scenes for a television series
entitled Quarry.
According to the Location Agreement dated May
12, 2015, work on CMP’s property would last from June 9, 2015 to
1
July
28,
2015.
This
time
period
was
preparation, shooting, and wrap periods.
broken
down
into
set
During set preparation,
from June 9, 2015 to July 6, 2015, RSP was to prepare sets called
Vietnam Village, Marine Barracks, and Heroin Dock.
Shooting the
scenes was estimated to last four days, July 7 to July 13, 2015.
And, the wrap period, in which property and personnel would be
removed from CMP’s property was estimated to last from July 14,
2015 to July 28, 2015.
The Agreement provided that CMP would be
paid $8,000 for prep, another $8,000 for wrap, and $7,500 for each
day of shooting.
The Agreement also provided for additional fees,
including an overage fee to be paid in the event that CMP’s
property was occupied beyond the term.
By
July
20,
2015,
in
accordance
with
its
contractual
obligations, RSP had removed most but not all of its personnel and
equipment.
RSP had left behind refuse, construction materials,
equipment, and portions of temporary sets and props, as well as
river sand.
CMP submitted to RSP its contractor’s invoice in the
amount of $32,145.74 for remaining clean up and damage repair.
Mickey Lambert, on behalf of RSP, agreed with the scope of the
work contemplated by the invoice, but not the price; he countered
with changes amounting to a total of $19,214.50.
On July 31, 2015,
CMP submitted its contractor’s revised invoice for clean up in the
amount of $19,400.
2
The parties mutually agreed on that amount for cleanup.
Lambert told CMP that CMP must first execute a release before RSP
paid the $19,400.
Concerned that CMP may be liable for any
mitigation or penalties imposed by regulatory authorities if the
defendants had failed to obtain the necessary regulatory permits
before depositing river sand into CMP’s wetlands, CMP refused to
sign the release. 1
The parties reached a stalemate.
Meanwhile,
Mickey Lambert, RSP’s location manager, emailed New Orleans area
movie production scouts and the New Orleans Mayor’s Office Director
of Film on October 16, 2015, stating that he had “a very bad
experience” shooting at CMP’s property and that the experience
“extended
well
beyond
production,
to
the
point
where
studio
attorneys are still involved.”
This litigation ensued.
On April 22, 2016, CMP sued Railway
Spine Productions, LLC, Seven Curses Productions, LLC, Abel Meet
Cain Productions, LLC, and Home Box Office, Inc. in state court
for breach of contract, 2 defamation, and trespass; CMP also seeks
CMP hired a lawyer to draft a release that did not waive the
indemnity provisions in the Agreement. The release was forwarded
to the defendants on August 15, 2015 and included a provision that
HBO shall be the guarantor of the indemnity provision in the
Agreement. Defendants countered with yet another release that was
unacceptable to CMP.
2 In
the state court petition, CMP lists five breaches of the
Agreement: (1) failure to obtain necessary permits prior to
occupying CMP’s property, in particular, before depositing river
sand on CMP’s wetlands; (2) failure to completely remove RSP’s
3
1
to recover “a reasonable percentage of any income and benefit
derived from the production of [Quarry] which in any manner depict
CMP’s Property.”
On May 23, 2016, the defendants removed the case
to this Court, invoking the Court’s diversity jurisdiction.
The
defendants now seek to dismiss the plaintiff’s defamation claim as
well as the claim seeking a percentage of income derived from the
production of Quarry. 3
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
property from the site and failure to restore CMP’s property to
its pre-work condition; (3) failure to pay the site representative
fee ($100/day) since June 18, 2015; (4) failure to pay the overage
fee ($1,500/day) from 7/29/15 due to RSP’s continuing occupation
of the property; and (5) attempt to impose unauthorized and
overreaching conditions on CMP in return for their obligation to
pay for the cleanup of CMP’s property.
3 On September 13, 2016, the magistrate judge conducted a settlement
conference in which “resolution of a single, discrete claim among
the many asserted in this lawsuit was agreed upon, but no overall
settlement of the case was reached.”
See Minute Entry dated
9/13/16. There is nothing in the record to indicate which claim
was dismissed.
4
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he
pleading
'detailed
standard
factual
Rule
8
allegations,'
announces
but
it
does
demands
not
more
require
than
an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
5
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
footnote omitted).
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
that
the
defendant
is
liable
for
the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”).
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
6
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.”
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
II.
A.
The
defendants
first
seek
dismissal
of
the
plaintiff’s
defamation claim on the grounds that opinions are not actionable
and the plaintiff fails to allege any damages associated with the
unactionable
opinion.
The
plaintiff
counters
that
Lambert’s
statements and comments in the challenged email were intentional,
malicious, untrue, and intended to cause injury by discouraging
other location scouts and managers from using the property.
The
plaintiff has failed to state a plausible defamation claim.
Claims of defamation arise under state negligence law under
Louisiana Civil Code article 2315 and involve “the invasion of a
person’s interest in his...reputation and good name.”
v. Tucker, 737 So.2d 706, 715 (La. 1999).
Fitzgerald
To succeed on a
defamation claim in Louisiana, the plaintiff must prove four
elements:
“(1)
a
false
and
defamatory
7
statement
concerning
another; (2) an unprivileged publication to a third party; (3)
fault (negligence or greater) on the part of the publisher and (4)
resulting injury.” Cluse v. H&E Equipment Services, Inc., 34 So.2d
959, 970 (La.App. 3 Cir. 3/31/10)(quoting Fitzgerald, 737 So.2d at
715-16).
Under Louisiana law, defamatory words traditionally have
been divided into two categories: those that are defamatory per se
and those that are susceptible of a defamatory meaning. Kennedy v.
Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06, 4-5); 935 So.2d
669, 674-75. The distinction is important because, if the plaintiff
proves that words are defamatory per se, falsity and malice are
presumed, and the burden shifts to the defendant to rebut the
adverse presumption. Id.
“By definition, a statement is defamatory if it tends to harm
the reputation of another so as to lower the person in the
estimation of the community, deter others from associating or
dealing with the person, or otherwise expose the person to contempt
or ridicule.”
Kennedy v. Sheriff of East Baton Rouge, 935 So. 2d
669, 675 (La. 2006).
Words that accuse another of criminal
conduct, or words that “by their very nature tend to injure one's
personal or professional reputation[,]” are defamatory per se.
Id.
And, “[m]alice (or fault), for purposes of the tort of
defamation, is the lack of reasonable belief in the truth of the
8
statement giving rise to the defamation.” Costello v. Hardy, 20031146 (La. 1/21/04, 18); 864 So.2d 129, 143.
The Louisiana Supreme Court sensibly has instructed that
statements of opinion are not actionable in defamation:
A pure statement of opinion, which is based totally on
the speaker's subjective view and which does not
expressly state or imply the existence of underlying
facts, usually will not be actionable in defamation.
That is because falsity is an indispensable element of
any defamation claim and a purely subjective statement
can be neither true nor false.
Bussie
v.
citations
Lowenthal,
omitted).
535
In
So.2d
378,
fashioning
an
381
(La.
approach
1988)(internal
to
distinguish
between statements of fact and statements of opinion, courts
generally consider “whether ordinary persons hearing or reading
the matter complained of would be likely to understand it as an
expression of the speaker's or writer's opinion, or as a statement
of existing fact.” Mashburn v. Collin, 355 So.2d 879, 885 (La.
1977).
To determine whether CMP has stated a defamation claim, the
Court must scrutinize the challenged words.
In the state court
petition, CMP takes issue with statements made by Mickey Lambert,
RSP’s location manager, in an email he sent to New Orleans area
movie production scouts and the New Orleans Mayor’s Office Director
9
of Film on October 16, 2015.
According to the state court petition
at paragraph XXVIII:
Mr. Lambert warn[ed] “anyone who is interested in using
this location. I have shot there recently (evidenced by
[CMP’s] brochure) and it was a very bad experience. If
you want to know some details, please feel free to call
me. The bad experience has extended will [sic] beyond
production, to the point where studio attorney’s [sic]
are still involved.”
Breaking down this statement and considering first Mr. Lambert’s
suggestion that “it was a very bad experience” filming on CMP’s
property, the Court finds that this is merely an expression of Mr.
Lambert’s opinion, rather than an assertion of fact.
subjective statement is not actionable as defamation.
Thus, the
See Sanders
v. Dillard Univ., No. 14-845, 2014 WL 7342440 (E.D. La. Dec. 23,
2014)(Barbier, J.)(statement that professor was “neglecting [her
students’] academic needs” was “pure opinion” and, thus, did not
state a claim for defamation); Marshall Investments Corp. v. R.P.
Carbone Co., No. 05-6486, 2006 WL 2644959 (E.D. La. Sept. 13,
2006)(Vance, J.)(statement to “stay away from the project” because
the plaintiff was a “bad person” was insufficient to state a
defamation claim).
opinion.
To be sure, there is no such thing as a false
When one suggests that he had a bad experience dealing
with another person, clearly this is an evaluative statement
reflecting his view; a paradigm of opinion.
10
This statement, which
conveys no facts, is merely a comment that is not capable of being
objectively characterized as true or false.
Nor
is
the
second
portion
of
Mr.
Lambert’s
statement
actionable. Considering the second part of Mr. Lambert’s statement
(that the bad experience has extended well beyond production, to
the point where studio attorneys are still involved), this is a
mixed statement of opinion and fact.
Again, the opinion portion
(“the bad experience has extended well beyond production”) is not
actionable for the same reasons already articulated. The assertion
of fact (that “the studio’s attorneys are still involved”) is just
that:
an assertion of fact.
Not even CMP in its state court
petition disputes the statement’s truthfulness.
That lawyers are
involved is certainly true: each party is represented by counsel
and the parties are presently airing their dispute in this forum.
Falsity is an essential element of a defamation claim.
Insofar as
the second portion of Mr. Lambert’s statement asserts a fact, the
fact is true and therefore not actionable as defamation. 4
CMP’s
The Court also observes that the plaintiff has failed to allege
factual support for the malice element of his defamation claim.
The allegations in the state court petition merely parrot the
elements of a defamation claim.
Of course, mere labels and
conclusions do not satisfy the plaintiff’s obligation to provide
the grounds of his entitlement to relief. The plaintiff fails to
suggest in his opposition papers how Mr. Lambert could lack a
reasonable belief in the truth of either (a) his own subjective
opinion; or (b) the fact that lawyers are involved in this dispute
post-production.
11
4
defamation claim (including counsel’s suggestion in its briefing
that the email is defamatory per se) is borderline frivolous and
must be dismissed for failure to state a claim.
B.
Next, the Court considers the technical sufficiency of the
plaintiff’s “claim” to recover a percentage of income derived from
production of the television series, Quarry.
The defendants
advance two grounds in support of their request for dismissal:
first, they contend that the stipulated damages provision of the
Location Agreement explicitly precludes the plaintiff’s claim for
an interest in the series; and, second, they submit that, as a
matter of law, Louisiana does not permit non-compensatory damages
for breach of contract.
The plaintiff counters that it “is
entitled to recover profits from the production of Quarry to ‘place
it in the same position’ as if the Location Agreement had not been
breached.”
The Court disagrees; the plaintiff’s argument, again,
borders on frivolous (and, arguably, vindictive).
Under Louisiana law, a party to a contract is “liable for the
damages
caused
obligation.”
by
his
failure
to
La. Civ. Code art. 1994.
perform
a
conventional
Civil Code article 1995
instructs that damages for a breach of contract cause of action
“are measured by the loss sustained by the obligee and the profit
12
of which he has been deprived.”
As the U.S. Court of Appeals for
the Fifth Circuit has explained the limited nature of this measure
of damages:
Louisiana has embraced the contract damages principle of
“expectation” damages.
Under this principle, the
general purpose of contract damages is not to punish
breaching parties or enrich non-breaching parties, but
rather to produce the same result as would have occurred
if there was no breach.
As stated by the Louisiana
Supreme Court, the calculation of damages should place
the non-breaching party “in the same position he would
have been in” had the contract been fulfilled. A court
must take “great care ... to ensure that the plaintiff
is not actually placed in a better position than he would
have attained had the contract been performed.”
In re Bankston, 749 F.3d 399, 403 (5th Cir. 2014) (internal
citations, parentheticals omitted; emphasis in original).
In
other words, consistent with the compensatory damages measure in
common law parlance, “[w]hen one sustains a loss because of a
breach of contract, the law does not authorize compensation twice
for the same loss.”
LAD Services of Louisiana, L.L.C. v. Superior
Derrick Services, L.L.C., 2013-0163 (La.App. 1 Cir. 11/7/14), 167
So.3d 746, 762.
At Paragraph XXXIII of the state court petition, the plaintiff
alleges:
As a direct result of the breaches of the Agreement,
Defendants are liable in solido unto CMP for a reasonable
percentage of any income and benefit derived from the
production of the Recordings made for Quarry Series 1
which in any manner depict CMP’s Property.
13
The
plaintiff
does
not
suggest
the
source
of
its
alleged
entitlement to recover “a reasonable percentage of any income or
benefit” related to the production of Quarry.
To be sure, that
source is not the Louisiana Civil Code or Louisiana contract
damages law.
Nor is that source the parties’ Location Agreement. 5
The Location Agreement limits the plaintiff’s remedy, in the event
of
breach,
to
money
(as
opposed
to
equitable)
damages; 6
the
Agreement also states that all rights and interest in Quarry belong
to RSP. 7
Thus, the plain terms of the Agreement foreclose any
equitable
relief
as
well
as
any
right
or
interest
in
the
5
The Court’s role in interpreting contracts is to determine the
common intent of the parties.
La. Civ. Code art. 2045.
In
determining common intent, pursuant to Civil Code article 2047,
words and phrases are to be construed using their plain, ordinary
and generally prevailing meaning, unless the words have acquired
a technical meaning.
See Henry v. South Louisiana Sugars
Cooperative, 957 So.2d 1275, 1277 (La. 2007) (citing Cadwallader
v. Allstate Ins. Co., 848 So.2d 577, 580 (La. 2003)). “When the
words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of
the parties’ intent” (La. Civ. Code art. 2046), and the agreement
must be enforced as written. Hebert v. Webre, 982 So.2d 770, 77374 (La. 2008). The Court’s approach to a contract’s meaning is
driven by simple common sense principles.
Paragraph 5 of the Location Agreement provides: “Your [CMP’s]
sole remedy for a breach by Producer of any of Producer’s
obligations hereunder shall be an action at law for money damages
[and] in no event shall [CMP] be entitled to injunctive or other
equitable relief.”
7 Paragraph 4 of the Agreement provides: “Producer shall solely and
exclusively own and control all rights, title and interest of
whatever nature (including without limitation all copyrights) in
and to the Recordings, throughout the world, in perpetuity.”
14
6
“Recordings” by CMP; enforcing the Agreement as written thus
precludes the plaintiff’s demand for “a reasonable percentage of
any
income
and
benefit
derived
from
the
production
of
the
Recordings made for Quarry Series 1 which in any manner depict
CMP’s Property.” Notably, to accept the plaintiff’s position would
be to betray the doctrinal purpose of contract damages by punishing
the alleged breaching party (RSP) and enriching the alleged nonbreaching party (CMP).
Allowing the plaintiff to recover income
from Quarry would put the plaintiff in a better position than it
would have been in absent any breach.
Finding no source for the
plaintiff’s demand for this special theory and measure of damages
for
his
breach
of
contract
claim,
the
Court
finds
that
the
plaintiff has no right in law to recover “a reasonable percentage
of any income and benefit derived from the production of the
Recordings made for Quarry Series 1 which in any manner depict
CMP’s Property.”
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendants’ partial motion to dismiss is hereby GRANTED.
The
plaintiff’s defamation claim is dismissed, as is the “claim” to
recover “a reasonable percentage of any income and benefit derived
from the production of the Recordings made for Quarry Series 1
15
which in any manner depict CMP’s Property.”
New Orleans, Louisiana, October 5, 2016
________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE
16
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