Electrical Mechanical Solutions Group, LLC et al v. Monforte Exploration, LLC

Filing 36

RULING granting 23 Motion for Summary Judgment. Plaintiff shall submit a brief on attorney's fees and costs by 5/17/2019 as set forth herein. Signed by Chief Judge Shelly D. Dick on 5/1/2019. (SWE) Modified on 5/2/2019 to edit the text (SWE).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ELECTRICAL MECHANICAL SOLUTIONS

Civil Action Number
17-1676-SDD-RLB

VERSUS
MONFORTE EXPLORATION, LLC
RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Plaintiff, Electrical Mechanical Solutions (“Plaintiff”). Defendant, Monforte Exploration,
LLC (“Defendant”) has filed an Opposition2 to the motion, to which Plaintiff filed a Reply.3
For the reasons which follow, Plaintiff’s motion shall be granted.
I.

BACKGROUND
Plaintiff alleges that, over the course of eighteen months, Defendant failed to pay

any rent due for a generator it leased from Plaintiff under an Equipment Lease Agreement
(“the Agreement”) executed July 6, 2016. Plaintiff filed suit claiming Defendant’s default
under the Agreement and seeking to recover monies owed under the Agreement, interest,
and attorney’s fees and costs. Plaintiff has alternatively argued that, should the Court find
that the Agreement does not provide for the recovery of attorney’s fees, Plaintiff is entitled
to attorney’s fees under La. R.S. 9:2781 as the Agreement constitutes an “open account.”4
Defendant opposes Plaintiff’s motion only to the extent that Plaintiff argues the

1

Rec. Doc. No. 23.
Rec. Doc. No. 26.
3
Rec. Doc. No. 29.
4
La. R.S. 9:2781(D) defines “open account” as “any account for which a part or all of the balance is past
due, whether or not the account reflects one or more transactions and whether or not at the time of
contracting the parties expected future transactions. ‘Open account’ shall include debts incurred for
professional services, including but not limited to legal and medical services. For the purposes of this
Section only, attorney fees shall be paid on open accounts owed to the state.
2

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Agreement constitutes an “open account” under Louisiana law. Defendant fails to offer
any summary judgment evidence or argument to controvert its default or the amount due
under the Agreement.
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”5 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”6 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”7 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”8 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”9
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a

5

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
7
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
8
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
9
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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reasonable jury could return a verdict for the nonmoving party.’”10 All reasonable factual
inferences are drawn in favor of the nonmoving party.11 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”12 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”13
B. Default under the Lease Agreement
On July 6, 2016, Defendant leased a Land Pride Custom Build Diesel Genset
generator from Plaintiff pursuant to an Equipment Lease Agreement.14 The Agreement
provides that Defendant would operate the generator month-to-month aboard a fixed
platform in the Gulf of Mexico on the outer continental shelf.15 Defendant took possession
of this generator in 2016 and maintained possession until the Court ordered repossession
on August 16, 2018.16 Plaintiff contends it has attempted to recover the amount due, but
the Defendant has consistently refused to pay. Plaintiff cites Section III of the Agreement
entitled Compensation, which details Defendant’s rent obligations under the Agreement.17
Appendix A of the Agreement provides for a rate of $175.00 per day (or $4,900.00 per

10

Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
11
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
12
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

13
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
14
Rec. Doc. No. 1-2 at 3-14.
15
Rec. Doc. No. 18-1.
16
Rec. Doc. No. 19.
17
Rec. Doc. No. 1-2 at 4. 

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month) in rent for the generator.18 The invoices submitted by Plaintiff demonstrate that
Defendant has failed to pay any rent from May 2017 through mid-August 2018, resulting
in an outstanding balance of $86,450.00.19 Further, Plaintiff submits an invoice detailing
$11,534.70 in late fees Defendant accrued during this time period, which results in a total
balance of $97,984.70.20
Plaintiff also claims that attorney’s fees are available under the Remedies section
of the Agreement. Section VI (2) provides:
Lessor may exercise any other right or remedy available to it by law or by
agreement, and may in any event recover legal fees and other
expenses incurred by reason of a Default or the exercise of any remedy
hereunder, including expenses of repossession, repair, storage,
transportation, and disposition of the Equipment.21
Defendant has not challenged or argued that attorney’s fees are not available under the
Remedies section of the Agreement. The Court finds that this provision contemplates
recovery of attorney’s fees in the event of a Default. Thus, Plaintiff’s alternative argument
that the Agreement constitutes an open account need not be addressed by the Court.
Defendant’s sole argument in opposition to Plaintiff’s motion is that the Agreement
does not constitute an open account. However, Plaintiff’s motion is not limited to the
theory of recovery on an open account. Defendant has failed to submit any summary
judgment evidence to controvert the summary judgment evidence submitted by Plaintiff
establishing that Defendant has defaulted under the Agreement and owes the amounts
set forth in the invoices. Indeed, Defendant utterly ignores this issue. In its Statement of

18

Rec. Doc. No. 1-2 at 15.
Rec. Doc. No. 23-1 at 17.
20
Id. at 1.
21
Rec. Doc. No. 1-2 at 6 (emphasis added).  
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Disputed Facts,22 which contains three statements addressing only the issue of whether
the Agreement constitutes an open account, Defendant fails to controvert the Statement
of Undisputed Facts23 submitted by Plaintiff, which include:
3. Monforte failed to pay any rent over the course of eighteen months for an
outstanding balance of $86,450.00.
4. During that period, Monforte also accrued $11,534.70 in late fees as
detailed on Invoice No. FC21g00001 for a total balance of $97,984.70.
Thus, as a matter of fact and law, these statements are deemed admitted.24 Accordingly,
Plaintiff is entitled to summary judgment as there are no material issues of fact that
preclude judgment against the Defendant for the amounts due.
III.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment25 is

hereby GRANTED. Plaintiff shall submit to the Court, on or before May 17, 2019, a brief
setting forth a basis for the amount of requested attorney’s fees and costs. Plaintiff’s brief
must comply with the Local Rules of the Middle District and apply the legal principles
applicable to this determination. The Court will delay entering final judgment in this matter
until resolution of the issue of attorney’s fees and costs.
Signed in Baton Rouge, Louisiana the 1st day of May, 2019. 

S

CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

22

Rec. Doc. No. 26-2.
Rec. Doc. No. 25. 
24
Local Rule 56(b) requires a litigant to include with a summary judgment opposition “a separate, short and
concise statement of the material facts as to which the opponent contends there exists a genuine issue to
be tried. All material facts set forth in the statement required to be served by the moving party will be
deemed admitted, for purposes of the motion, unless controverted as required by this Rule.”
25
Rec. Doc. No. 23.
23

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