Entergy Gulf States Louisiana, L.L.C. et al v. Louisiana Generating, LLC

Filing 201

RULING granting 160 Motion to Dismiss Unjust Enrichment Claim, or Alternative Motion for Partial Summary Judgment. Entergy's unjust enrichment claim is Dismissed with Prejudice. Signed by Chief Judge Shelly D. Dick on 2/27/2020. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ENTERGY GULF STATES LOUISIANA,
L.L.C. AND ENTERGY TEXAS, INC.

CIVIL ACTION

VERSUS

14-385-SDD-RLB

LOUISIANA GENERATING, L.L.C.
RULING
This matter is before the Court on the Motion to Dismiss Unjust Enrichment Claim,
or Alternative Motion for Partial Summary Judgment1 filed by Defendant, Louisiana
Generating, L.L.C. (“LaGen”). Plaintiffs, Entergy Gulf States Louisiana, L.L.C. and
Entergy Texas, Inc. (“Entergy”) have filed an Opposition,2 to which LaGen filed a Reply.3
For the following reasons, the Court finds that the Motion shall be GRANTED.
I.

BACKGROUND
LaGen and Entergy co-own Unit 3 of the Big Cajun II power plant in New Roads,

Louisiana.4 Their co-ownership is governed by a contract: the Joint Ownership
Participation and Operating Agreement (“JOPOA”). Entergy brought this suit in 2014,
alleging breach of certain provisions of the JOPOA and seeking, inter alia, recovery of
costs it paid in connection with the installation of a pollution control device on Unit 3 at
Big Cajun II. On October 26, 2017, three years after filing suit, Entergy sought leave to
file an amended complaint.5 That leave was granted, and Entergy’s First Supplemental

1

Rec. Doc. No. 160.
Rec. Doc. No. 164.
3
Rec. Doc. No. 175.
4
Rec. Doc. No. 158, ¶ 8-11.
5
Rec. Doc. No. 30.
2

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and Amending Complaint6 added various new claims. Later, on November 20, 2018,
Entergy sought leave to file a Second Supplemental and Amending Complaint. That leave
was granted in part and denied in part; this Court did not permit Entergy to add its
proposed breach of contract and LUTPA claims, finding that there was no good cause for
such untimely amendments.7 But, as to the proposed unjust enrichment claim, this Court
granted leave to amend, on the basis that “[w]hether Entergy can succeed on its unjust
enrichment claim is best determined in the context of resolving an appropriately briefed
dispositive motion.”8
LaGen responded by filing the instant motion, arguing that Entergy’s unjust
enrichment claim should be dismissed because, under Louisiana law, such a claim “is
only viable in equity if no remedy exists at law.”9 In LaGen’s view, Entergy had a remedy
– the breach of contract claim which this Court found untimely. The fact that the breach
of contract claim is not actually part of this lawsuit is of no moment, LaGen contends,
because the law does not require that Entergy will prevail on its “other” remedy in order
for that remedy to preclude an unjust enrichment claim; unjust enrichment is precluded
as long as “a legal remedy at law was available.”10
Entergy rejects LaGen’s interpretation of the unjust enrichment doctrine. Per
Entergy, the mere availability of another remedy does not bar an unjust enrichment claim
because it “cannot plead a remedy into existence.”11 The relevant question, Entergy

6

Rec. Doc. No. 45.
Rec. Doc. No. 155, p. 8.
8
Id. at p. 10.
9
Rec. Doc. No. 160, p. 1.
10
Rec. Doc. No. 175 p. 4 (emphasis added).
11
Rec. Doc. No. 164, p. 7.
7

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contends, is whether the breach of contract claim actually provided a remedy for its loss.
Entergy urges the Court to deny LaGen’s motion to dismiss because “the Court is not in
a position to adjudicate”12 the merits of the breach of contract claim because doing so
would involve factual disputes not appropriate for resolution on the face of the pleadings.
Additionally, Entergy argues that its unjust enrichment claim was simply pled “in the
alternative” and points to a handful of cases where federal courts allowed unjust
enrichment to be pled in that alternative despite the existence of other remedies.
The Court will address the parties’ arguments in turn.
II.

LAW AND ANALYSIS
A. Motions to Dismiss under 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”13 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”14 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”15 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

12

Rec. Doc. No. 164, p. 8.
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
14
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
15
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d at 467).
13

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entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”16 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”17 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”18 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”19 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”20 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”21
B. Unjust Enrichment Claims Under Louisiana Law
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.22
Because “a federal court sitting in diversity applies the substantive law of the forum
state,”23 the substantive law of the state of Louisiana applies. Louisiana Civil Code Article
2298 sets forth the doctrine of unjust enrichment as follows:
A person who has been enriched without cause at the expense of another
person is bound to compensate that person . . . The remedy declared here
is subsidiary and shall not be available if the law provides another remedy
for the impoverishment or declares a contrary rule.

16

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets
omitted)(hereinafter Twombly).
17
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(internal citations omitted)(hereinafter “Iqbal”).
18
Twombly, 550 U.S. at 570.
19
Iqbal, 556 U.S. at 678.
20
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
21
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
22
Rec. Doc. No. 1, p. 2, ¶ 3-5.
23
Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013).

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The Louisiana Supreme Court has articulated five elements necessary to support a claim
for unjust enrichment: “enrichment on the part of the defendant; impoverishment on the
part of plaintiff; [a] casual relationship between the enrichment received by the defendant
and the plaintiff's impoverishment; and a lack of other remedy at law.”24 The fifth element
– a lack of other remedy at law – is the subject of the instant motion.
C. Analysis
It is true, as Entergy insists, that there is a line of cases from federal district courts
in Louisiana which hold that, because Federal Rule of Civil Procedure 8 allows for
alternative pleading, an unjust enrichment claim can be pled alongside other claims.25
However, the cases cited by Entergy for that proposition have something in common –
they all predate highly relevant rulings on the topic from the Louisiana Supreme Court
and the United States Court of Appeals for the Fifth Circuit. The cases cited by Entergy
in support of its alternative pleading argument may “make good sense,”26 as Entergy
contends, but, post-Walters and Ferrara, they do not control.
In Walters, the Louisiana Supreme Court considered whether a claim for unjust
enrichment could be pled alongside a tort claim arising out of the same conduct. It clearly
held that it could not. “Having pled a delictual action, we find plaintiff is precluded from
seeking to recover under unjust enrichment,”27 the court stated, explaining that “[t]he
unjust enrichment remedy is ‘only applicable to fill a gap in the law where no express

24

Carriere v. Bank of Louisiana, 95-3058 (La. 12/13/96), 702 So. 2d 648, 658, on reh'g (Nov. 3, 1997).
McCullum v. McAlister's Corp. of Mississippi, No. CIVA 08-5050 S3, 2010 WL 1489907 (E.D. La. Apr.
13, 2010); Orx Res., Inc. v. Autra, No. CIV.A. 09-4451, 2009 WL 3447256 (E.D. La. Oct. 20, 2009); Univ.
Rehab. Hosp., Inc. v. Int'l Coop. Consultants, Inc., No. CIVA 05-1827, 2006 WL 2983050 (W.D. La. Oct.
16, 2006); Mayer v. Lamarque Ford, Inc., No. CIV. A. 00-1325, 2001 WL 175232 (E.D. La. Feb. 16, 2001).
26
Rec. Doc. No. 164, p. 7.
27
Walters v. MedSouth Record Mgmt., L.L.C., 2010-0352 (La. 6/4/10), 38 So. 3d 241, 242.
25

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remedy is provided.’”28 Although the holding in Walters addressed the simultaneous
pleading of a tort claim and an unjust enrichment claim, not, as here, a breach of contract
claim, this Court finds that nothing in the Walters court’s reasoning suggests that the
holding should be construed as applying only to that exact combination of claims. The
Walters court explicitly stated that unjust enrichment was precluded “[b]ecause the law
provided plaintiff with another remedy.”29 The parties in the instant case do not dispute
that the law provided Entergy with another remedy, namely, its breach of contract claim.
It should be noted that a different section of this Court has previously concluded to
the contrary, finding that the Walters holding precludes recovery only where a tort claim
coexists with a claim for unjust enrichment. In the 2011 case Property One, Inc. v.
USAgencies, L.L.C., et al,30 Judge Brady allowed the plaintiff to plead an unjust
enrichment claim in the alternative because he found that Walters “only barred unjust
enrichment claims from being plead alongside tort claims.”31 This Court notes the holding
in Property One without adopting it. Not only is Property One apparently an outlier among
cases on the subject, the issue of whether the Walters principle applies to breach of
contract as well as tort has since been addressed by the Fifth Circuit in Ferrara (discussed
below).
Entergy disagrees that the mere existence of that claim is enough to preclude
recovery under unjust enrichment when this Court held it to be untimely. Walters
forecloses that argument directly. The court found it to be “of no moment that plaintiff's

28

Id. quoting Mouton v. State, 525 So. 2d 1136, 1142 (La. App. 1st Cir.1988), writ denied, 526 So.2d 1112
(La.1988).
29
Id.
30
830 F. Supp. 2d 170 (M.D. La. 2011).
31
Id. at 175.

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tort claims have been held to be prescribed. The mere fact that a plaintiff does not
successfully pursue another available remedy does not give the plaintiff the right to
recover under the theory of unjust enrichment.”32 This Court echoed that principle in the
post-Walters case Tribute Real Estate, LLC v. United Artist Theater Circuit.33 Granting
the plaintiff’s motion to dismiss the defendant’s unjust enrichment counterclaim, this Court
wrote:
As expressed by [a Louisiana state appeals court], ‘it is not the success or
failure of other causes of action, but rather the existence of other causes of
action, that determine whether unjust enrichment can be applied.’ The court
finds that [the] unjust enrichment claim should be dismissed, as the remedy
[the defendant] seeks is available, if at all, pursuant to the lease agreement
between the parties.34
Moreover, the Fifth Circuit has since reinforced the Walters rationale, explaining
that where a plaintiff attempts to recover under both unjust enrichment and breach of
contract, “Louisiana law is clear on this point”35 – it cannot be done. In Ferrara, the plaintiff,
a manufacturer of firefighting equipment, brought a claim for breach of contract and a
claim for unjust enrichment after the defendant, which had an exclusive contract to sell
Ferrara’s telescoping boom called the “Strong Arm,” terminated that contract and began
selling the Strong Arm to other companies. The defendant filed a motion for judgment as
a matter of law, arguing that, under Louisiana law, the availability of the contract claim
clearly precluded the unjust enrichment claim. On appeal, the Fifth Circuit reasoned as
follows:
both parties agree that Ferrara is not entitled to unjust enrichment damages
for the period of time during which its contract with [the defendant] was still
32

Walters, 38 So.3d at 242.
2011 WL 663137 (M.D. La. Feb. 14, 2011).
34
Id. at *2 (citing Garber v. Badon & Ranier, 981 So. 2d 92, 100 (La. App. 3d. Cir. 2008).
35
Ferrara Fire Apparatus, Inc. v. JLG Indus. Inc., 581 Fed. Appx. 440, 443 (5th Cir. 2014).
33

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in effect. Louisiana law is clear on this point. Under Louisiana Civil Code
article 2298, a person who has been enriched without cause at the expense
of another person is bound to compensate that person. But, the remedy
[provided for in 2298] is subsidiary and shall not be available if the law
provides another remedy for the impoverishment or declares a contrary rule.
The important question is whether another remedy is available, not whether
the party seeking a remedy will be successful. Thus, because Ferrara could
have brought a claim for breach of contract for any damages it incurred
during the time the contract was still in effect, Ferrara cannot maintain a
cause of action for unjust enrichment during that time.36
Ferrara counsels that “the important question is whether another remedy is available, not
whether the party seeking a remedy will be successful,”37 foreclosing Entergy’s argument
that LaGen must prove that “the contract actually provided a remedy for Entergy’s loss”38
in order to show that the breach of contract claim was really viable. The potential failure
or success of the breach of contract claim is, as the Louisiana Supreme Court put it in
Walters, “of no moment” here, especially because, in light of the denial of leave to amend,
the breach of contract claim is not even part of this action. Louisiana courts and federal
courts applying Louisiana law have clearly held that if another remedy exists, there is no
“gap” in the law and unjust enrichment is not a viable claim, regardless of the plaintiff’s
likelihood of success on the merits of that “other” remedy. Accordingly, LaGen’s Motion
to Dismiss shall be granted and Entergy’s unjust enrichment claim dismissed with
prejudice. Because this motion was resolved at the motion to dismiss stage, the Court
does not reach the alternative Motion for Partial Summary Judgment also urged by LaGen
herein.

36

Id. at 443-444 (emphasis added).
Id.
38
Rec. Doc. No. 164, p. 8.
37

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III.

CONCLUSION
For the reasons set forth above, LaGen’s Motion to Dismiss Unjust Enrichment

Claim, or Alternative Motion for Partial Summary Judgment39 is hereby GRANTED, and
Entergy’s unjust enrichment claim is dismissed with prejudice.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 27, 2020.

S

SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

39

Rec. Doc. No. 160.

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