I F G Port Holdings L L C v. Lake Charles Harbor & Terminal District

Filing 370

MEMORANDUM RULING : The Port's Motion for Partial Summary Judgment on Claims Related to MAG Charges (doc. 285) is GRANTED, the Port's Motion for Partial Summary Judgment Regarding the Dredging Permit (doc. 289) is DENIED, the Port's M otion for Partial Summary Judgment Regarding Costs to Elevate DMPF 3 (doc. 288) is DENIED, the Port's Motion for Partial Summary Judgment on Breach Of Warranty and Fraudulent Inducement Claims (doc. 291) is DENIED, the Port's Motion for Partial Summary Judgment on LUPTA Claims (doc. 286) is DENIED, and IFG's Motion for Partial Summary Judgment on LUPTA Claims (doc. 280) is DENIED. Signed by Magistrate Judge Kathleen Kay on 3/6/2019. (crt,LaCombe, L)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

IFG PORT HOLDINGS, LLC.

:

VERSUS

:

LAKE CHARLES HARBOR &
TERMINAL DISTRICT, d/b/a
THE PORT OF LAKE CHARLES

:
:

DOCKET NO. 16-cv-00146

MAGISTRATE JUDGE KAY
(by Consent)

MEMORANDUM RULING

This litigation involves a contractual dispute between IFG Port Holdings, LLC, (hereafter
“IFG”) and Lake Charles Harbor & Terminal District, d/b/a The Port of Lake Charles, (hereafter
“the Port”). Plaintiff alleges that the basis of our jurisdiction is diversity of citizenship as set forth
in 28 U.S.C.A. § 1332. Doc. 1, p. 2, ¶ 4.
Before the court are five Motions for Partial Summary Judgment filed by the Port and one
Motion for Partial Summary Judgment filed by IFG.1 Docs. 280, 285, 286, 288, 289, 291. Each
motion is opposed. Docs. 300, 301, 302, 303, 304, 315.
For the following reasons we conclude that the Port's Motion for Partial Summary
Judgment on Claims Related to MAG Charges (doc. 285) should be GRANTED, the Port's Motion
for Partial Summary Judgment Regarding the Dredging Permit (doc. 289) should be DENIED, the
Port's Motion for Partial Summary Judgment Regarding Costs to Elevate DMPF 3 (doc. 288)
should be DENIED, the Port's Motion for Partial Summary Judgment on Breach Of Warranty and
Fraudulent Inducement Claims (doc. 291) should be DENIED, the Port's Motion for Partial

1

Two of the motions [docs. 280, 286] are essentially cross-motions for partial summary judgment as the respective
parties seek judgment on and/or dismissal of IFG’s claims filed under the Louisiana Unfair Trade Practices Act.
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Summary Judgment on LUPTA Claims (doc. 286) should be DENIED, and IFG's Motion for
Partial Summary Judgment on LUPTA Claims (doc. 280) should be DENIED.
I.
BACKGROUND AND PROCEDURAL HISTORY
This suit was initiated by a complaint filed by IFG on January 19, 2016. 2 Doc. 1. The
disputed contract is a Ground Lease Agreement (“the Lease”) between the parties effective August
15, 2011. Doc. 341, att. 26, pp. 158-211, [D49]3. That Ground Lease Agreement was the end
result of protracted and detailed negotiations between the two parties and stipulated the terms
under which IFG would construct a grain terminal on property owned by the Port. The Lease also
described certain dredging activity that was to occur in the waterway adjacent to the property being
improved. Id. at p. 172, § 8.9.
In its Amended, Supplemental, and Restated Complaint IFG alleges multiple instances of
breach of contract by the Port, violations of the Louisiana Unfair Trade Practices Act (“LUTPA”),
fraudulent inducement or detrimental reliance, and asserts claims for declaratory and injunctive
relief. Doc. 236. IFG seeks monetary damages in connection with its breach of contract claims,
reimbursement of sums it paid under protest, and injunctive and declaratory relief. Id. at p. 15, ¶
20, p. 16, ¶¶ 22, 23, p. 22 ¶ 27, p. 27, ¶ 35, p. 28, ¶ 28, p. 29, ¶ 37.
In Answer to the Amended, Supplemental, and Restated Complaint [doc. 254] the Port
acknowledged the existence of the contract but denied or recast much of the nefarious conduct of

2

IFG subsequently filed a First, Second, and Third Amended Complaint, and most recently, an Amended,
Supplemental, and Restated Complaint which combines and sets forth all of IFG’s claims, defenses, and counterclaims
in one pleading. See docs. 98, 121, 136, 236. IFG’s claims in its original complaint and its multiple amendments and
supplements were ultimately incorporated into its Amended, Supplemental, and Restated Complaint to eliminate any
confusion caused by the multiple filings.
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Throughout this opinion we will refer to exhibits submitted by IFG and the Port. Throughout this litigation, multiple
copies of exhibits were filed and attached to various pleadings, memoranda, etc., until the parties were instructed to
put ALL exhibits together and file as one document. These exhibits are now filed at Document #341 and are referenced
as P##, and D##.
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which it was accused in the original complaint.4 It asserts seventeen affirmative defenses to IFG’s
complaint. Id. at ¶¶ 38-70. The Port also asserted several counterclaims against IFG seeking
declaratory relief and attorney fees and expenses incurred defending against the claims brought by
IFG. Doc. 37, pp. 40-42, ¶¶ VI-XIII, Doc. 84, pp. 14-16, ¶¶ XIV-XVIII, Doc. 131.
A. Events leading up to the execution of the Lease
The execution of the lease was the culmination of several years of negotiations between
IFG and the Port. In order to be competitive in the market IFG expressed its desire to service large
vessels known as Panamex vessels which would require a marine depth at the Port’s docks to be
at least 42 feet. Doc. 341, att. 24, p. 26-27 [D4].
On January 16, 2008, IFG and the Port executed a Letter of Intent (“LOI”) which
summarized the parties’ understanding of terms and conditions regarding a future lease agreement.
Doc. 341, att. 1, pp. 174-76 [P25]. Briefly, IFG sought to develop an export grain terminal which
would service large vessels on property owned by the Port and which would be subject to a longterm lease. Id. The LOI indicates that Berth No. 8, which would be the site of the terminal, was
at that time being redeveloped by the Port. Id. at p. 175. The LOI states that the water depth
alongside Berth No. 8 was 37 feet when it was dredged in 2004 and that the Port will “take
reasonable steps” to work with the United States Army Corps of Engineers (“USACE”) to deepen
and maintain the depth to 40 feet or more. Id. At the time IFG understood that the USACE might
not permit such deepening and it expressed its desire to work with the Port to ensure that the
dredging would take place. Doc. 341, att. 1, pp. 285-287 [P35].
The LOI provided that IFG would conduct a study by a licensed engineering firm to assure
that its ship loader can be placed on Berth No. 8. Doc. 341, att. 1 p. 175 . The study, according to

4

Virtually everything that occurred between the two parties is documented in some form or fashion and has been
docketed at Document #341, but the import of each is vociferously debated between the two parties.
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the LOI, must also include that the concrete pilings beneath Berth No. 8 are at a depth sufficient
to withstand dredging to at least 40 feet. Id. Other issues addressed in the LOI but not necessarily
pertinent to issues herein are railroad service to the Port and IFG’s right of exclusivity pertaining
to the export of grain at the Port.
The Lease, which incorporated some but not all conditions listed in the LOI, was ultimately
executed by parties on August 15, 2011.
B. IFG Grain Terminal Facility
Under the lease IFG was to begin construction of its facility within twelve months of the
effective date of the lease (August 15, 2011) and the facility was to be completed within twentyfour months of commencing construction. Doc. 341, att. 26, p. 168, § 6.3 [D49]. There were
several extensions of the expected completion date and the IFG facility ultimately opened on July
15, 2015. Doc. 1, ¶ 8. This date, July 15, 2015, is referred to as the Rent Commencement Date
under the Lease. Doc. 341, att. 26, p. 163 [D49]. Pursuant to Section 4 of the Lease, IFG was to
begin paying rental payments, or Minimum Annual Guarantee (“MAG”) throughput charges,
beginning on the Rent Commencement Date in accordance with a schedule set forth in Exhibit 3
of the Lease. Id. at pp. 166-167, 203-204.
On July 31, 2016, the Port sent an invoice to IFG for $359,167.63 representing MAG
charges for the first year of the lease. Doc. 341, att. 10, p. 61 [P285]. IFG contends that pursuant
to the force majeure provisions of the Lease it is not obligated to pay these MAG charges. Doc.
236, pp. 18-23, ¶¶26-27. However, according to IFG, in order to mitigate damages, it paid the
Port the amount invoiced plus interest under protest and sought reimbursement of this amount in
its amended complaint. Doc. 341, att. 11, pp. 257-59 [P300]. On July 31, 2017, the Port sent
another invoice to IFG in the amount of $44,958.03 representing MAG charges due for the second

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lease year. Doc. 341, att. 15, pp. 29-30 [P323]. Again IFG paid the amount due under protest and
the parties, rather than file another amended pleading, entered into a stipulation providing that the
court’s determination regarding the MAG charges for the first year will be applied and handled in
the same way for the second year MAG charges. Doc. 341, att. 15, pp. 87-91 [P325].
C. The Default Letter
After the Lease was executed, the parties’ attention turned to preparations for dredging.
The marine area alongside Berth No. 8 needed to be at least 42 feet in order for IFG to attract
larger vessels and increase shipping traffic. The Port’s 2004 maintenance dredging permit from
the USACE only allowed dredging to a depth of 37 feet. Doc. 341, att. 24, p. 1-21 [D1]. Therefore,
the permit needed to be amended. Section 8.9 of the Lease, which is the subject of much of this
litigation, provides:
8.9 Dredging. [IFG] will arrange for and complete the initial dredging of the
marine area alongside the Berth No. 8 Servitude Area and the vicinity connecting the
Calcasieu ship channel to this area (see the map attached as Exhibit 6 which
shows the specific areas to be dredged) to a depth of no less than forty-two
(42') feet below the low water line as measured at mean low Gulf tide. [IFG]
will only arrange for and complete this dredging one (1) time prior to the
Expected Completion Date. To offset the cost of this initial dredging the [Port] will
pay [IFG] one-half of the cost of this initial dredging up to a maximum
payment of two hundred and fifty thousand dollars ($250,000). The [Port]
will pay [IFG] this amount immediately upon completion of the dredging
and [IFG] reasonably documenting the amount paid for such dredging work
and upon [IFG] giving the [Port] an invoice from the contractor performing the
dredging work. [IFG] or its contractor will deposit the spoil from the initial
dredging, subject to the guidelines and requirements of the United States Corps
of Engineers and all applicable laws, rules and regulations, at the [Port’s] dredge
spoil site that is closest in proximity to the area dredged and which is available
for use. The [Port] will not assess or charge [IFG] any fee for use of the [Port’s]
disposal sites. After this initial dredging is complete, the [Port] will at its sole
cost, arrange for and complete dredging of the areas indicated in Exhibit 6 for
the entire Initial and Extended Terms of the Ground Lease to ensure that the
depth is maintained at forty-two (42) feet and provide semi-annual surveys to
[IFG] to show that the required depth is being maintained; provided, however,
at any time the depth is forty-one (41) feet or less, the Port will promptly
commence and diligently pursue the process to maintenance dredge to return
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the depth back to forty-two (42) feet within a reasonable time. After the initial
dredging, all future dredging and surveys of the areas indicated in Exhibit 6 will be
at no cost to [IFG].
Doc. 341, att. 26, p. 172, § 8.9 [D49].
The parties agree that IFG was to initially undertake the dredging of the area alongside
Berth No. 8 with the Port reimbursing IFG one half of the cost up to $250,000. What the parties
do not agree upon is who was to obtain the amendment to the Port’s permit that would allow IFG
to dredge to 42 feet. The Port maintains that Section 8.9’s language that states IFG “will arrange
for and complete the initial dredging” required IFG to obtain the necessary amendment from the
USACE. See generally, doc. 293. IFG argues that it was the understanding between the parties
from the beginning of negotiations that the Port was either solely responsible for securing the
necessary permit or that the responsibility was shared by the Port and IFG with the Port taking the
lead in working with the USACE. See generally, doc. 301. Documents in the record indicate that
both prior to the effective date of the Lease and after the Port communicated with engineers,
consultants, and the USACE regarding dredging or deepening of the marine area alongside Berth
No. 8. See, e.g., Doc. 341, att. 2, pp. 166-71 [P62], Doc. 341, att. 2, pp. 172-73 [P63], Doc. 341,
att. 2, pp. 225-48 [P70-P78], Doc. 341, att. 2, p. 250 [P79], Doc. 341, att. 5, pp. 29- 33 [P175-176],
Doc. 341, att. 5, pp. 34-39 [P177-179].
On January 5, 2015, IFG informed the Port that it was scheduling dredging at Berth No. 8
beginning in February. Doc. 341, att. 29 p. 95 [D76]. On January 21, 2015 Port officials met with
the USACE to discuss, among other items, IFG’s grain elevator project. Doc. 341, att. 5, pp. 1620 [P171-173]. After this meeting, on January 26, 2015, the Port informed IFG that the USACE
advised that the Port’s dredging permit was not adequate for IFG’s dredging project. Doc. 341,
att. 5, pp. 44 [P182]. The Port noted that it was “addressing the issue” and that it was “quickly

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gathering the information needed to amend the dredging permit,” but that it would take three
months at the earliest for the USACE to issue the amendment. Id.
On March 4, 2015, the Port, through its general counsel, sent an email detailing the process
it proposed for obtaining the amendment. Doc. 345, att. 5, p. 109 [P198]. The Port informed IFG
that it would apply for the amendment to its permit and IFG, at its cost, would be responsible for
engaging any contractors to perform any work necessary to obtain the amendment and to perform
the dredging. Id. IFG hired AECOM to perform sediment samplings required by the USACE and
on July 7, 2015, the Port informed IFG that the results of that testing gave them concern that the
USACE would not allow the dredged material to be placed in its existing disposal areas. Doc.
341, att. 5, pp. 205-06 [P203]. Because of the potential expense of disposing of the dredged
material in a landfill designated for contaminated material, the Port decided to contract for a second
sampling and testing process which it explained would be somewhat “time consuming.” Id.
On August 6, 2015, counsel for IFG sent correspondence to the Port invoking the “Force
Majeure” provision under the Lease.5 Doc. 341, att. 6, p. 35 [P217]. The letter explained that, due
to the potential presence of contaminants in the dredging area, IFG was informed that the Port
would not allow dredging. Id. Counsel wrote that the Port’s resultant decision to undertake further
testing and the ensuing delays attributed thereto were events beyond the control of IFG. Id.
Further, the letter stated, since IFG’s grain facility was designed to accommodate large vessels,
and the dredging cannot commence, its throughput volumes would be substantially limited, an
event also beyond IFG’s control. Id.

5

The term “Force Majeure” is specifically defined in the Lease. Doc. 341, att. 26, p. 160 [D49].
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On September 30, 2015, the Port, disagreeing that an event of “Force Majeure” had
occurred, sent a letter to IFG notifying it that it was in default of Section 15.1(b) of the Lease. 6 7
Doc. 341, att. 29, pp. 134-36 [D85]. The Port stated that IFG was free to begin dredging the area
alongside Berth No. 8 as early as January 1, 2012, the date of the Ground Lease Commencement
Date but waited until January 2015 to begin discussing dredging. Id. While IFG indicated that it
would begin dredging in February of 2015, the letter states, no explanation was given for IFG’s
failure to do so. Id. The Port further stated that IFG should have “acted expeditiously after the
Ground Lease Commencement Date to move forward with dredging under the [Port’s] current
Corps permit and to move forward with sampling so that dredging to -42 feet MLG could have
occurred well in advance of the Expected Completion Date and the Rent Commencement Date.”
Id. at p. 135. The letter noted that the “erroneous” testing results by AECOM, the contractor IFG
selected, prevented amendment to the permit and, in turn, dredging. Id.
The Port wrote that it would proceed with the permit amendment upon IFG paying the sum
it incurred to disprove the AECOM results. Id. It additionally asked that IFG agree to proceed
with the necessary work to amend the existing permit and to pay all costs associated with amending
the existing dredging permit. Id. Finally, the letter stated that “there are no geotechnical
restrictions related to the wharf and dock facilities adjacent to the area to be dredged and, upon
issuance of the required Corps permit amendment allowing for dredging to a depth of -41 feet
MLG, the dredging IFG is required to perform can proceed.” Id. at p. 135.
On November 30, 2015, counsel for IFG sent a response to the Port’s letter. Doc. 341, att.
29, pp. 139-141 [D87]. The letter stated that IFG would pay for, and in fact it enclosed a check

Under Section 15.1(b) of the Lease IFG had 60 days to “cure” the default. Doc. 341, att. 26, pp. 180-81 [D49].
A copy of the September 30, 2015 default letter was also sent to IFG’s creditors. Doc. 341, att. 29, pp. 137-38
[D86].
6
7

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for, the sum incurred by the Port to disprove the AECOM results. Id. at p. 141. IFG also agreed
to proceed with “the necessary work to amend the existing Corps permit and agrees to pay all costs
associated with amending the existing dredging permit, per the Lease.” Id. at p. 139. In closing,
counsel asked that the Port withdraw its September 30, 2015 letter. Id. at p. 140.
A January 19, 2016, letter from the Port to IFG confirmed its position that IFG was in
default of the lease for failing to complete the initial dredging on or before the Expected
Completion Date (July 15, 2015). Doc. 341, att. 9, pp. 134-139 [P270]. IFG filed this lawsuit on
January 29, 2016. Doc. 1.
IFG and the Port entered into a Cooperative Endeavor Agreement (“CEA”) on February
15, 2016 whereby the parties agreed to use the Port’s 214 agreement with the USACE to expedite
the USACE’s review of the Port’s permit amendment. Doc. 341, att. 29, pp. 164-172 [D91]. The
CEA provided that the Port, at IFG’s cost, would agree to obtain the necessary permit for dredging.
Id. On March 14, 2016, the Port submitted the application to the USACE to amend its permit to
allow for dredging to a depth of 42 feet. Doc. 341, att. 29, pp. 176-78 [D93]. On the same date
counsel for the Port issued a letter stating that it understands that IFG cannot take any action
relating to dredging until the USACE approves the application. Doc. 341, att. 29, pp. 179-81
[D94]. It also informed IFG that it had “no intention and shall not issue the second notice of
default pursuant to Section 15.3 of the Lease at this time or hereafter so long as IFG continues to
work diligently in arranging for and completing the Initial Dredging.” Id. at p. 180.
On February 16, 2017, the USACE issued its permit modification letter to the Port’s
existing maintenance permit to allow IFG to dredge to a depth of 42 feet. Doc. 341, att. 31, pp.
96-102 [D107]. The USACE also determined that Dredged Material Placement Facility (“DMPF”)

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3 was the site that could be used to dispose of the dredge material. Doc. 341, att. 31, pp. 91-95
[D106].
D. DMPF 3 Containment Dikes
Section 8.9 of the Lease provides, in pertinent part,
[IFG] or its contractor will deposit the spoil from the initial dredging, subject
to the guidelines and requirements of the United States Corps of Engineers and
all applicable laws, rules and regulations, at the [Port’s] dredge spoil site that is
closest in proximity to the area dredged and which is available for use. The
[Port] will not assess or charge [IFG] any fee for use of the [Port’s] disposal
sites.
Doc. 341, att. 26, p. 172, § 8.9 [D49]. In a February 7, 2017 letter from the USACE to the Port
the USACE determined that, as a condition for approval of the permit modification, the
containment dikes at DMPF 3 had to be expanded, elevated, and/or built-up in order to handle the
dredge material from Berth No.8. Doc. 341, att. 31, pp. 91-95 [D106]. The USACE proposed two
options to undertake the raising of the dikes. Id. The first option allowed the “requester” to utilize
the dredging contractor that was already performing maintenance work at the disposal site on
behalf of the USACE. Id. The second option allowed the “requester” to choose its own dredging
contractor, but work could not begin until after the USACE’s maintenance was complete. Id.
IFG’s dredging consultant notified the Port by correspondence dated February 20, 2017, of
its plan to proceed with dredging and noted, “[a]fter the Port has notified IFG that DMPF 3 is
available to receive dredge material from Berth 8 deepening, IFG will give the selected dredging
contractor notice to proceed.” Doc. 341, att. 11, pp. 289-90 [P303]. In response to this letter the
Port wrote on February 23, 2017 that the “obligation to complete the dredging and disposal work
… lies with IFG. …” Doc. 341, att. 11, p. 293 [P304]. The Port stated that option one or two was
a decision for IFG to make and IFG would be responsible for all costs associated with raising the
containment dikes at DMPF 3. Id.
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On March 17, 2017, IFG informed the Port that, while it disagreed with the Port’s demands,
“in the interest of moving forward as quickly as possible” the Port was authorized by IFG to work
with the USACE to perform the dike work. Doc. 341, att. 31, p. 106 [D110]. IFG also informed
the Port that it agreed to pay for the work.8 Id.
The USACE informed IFG that the work to expand the DMPF 3 containment dikes was
completed on June 20, 2017. Doc. 341, att. 31, p. 136 [D118].
E. Slope Stability of Berth No. 8
In September 2017 IFG received documents through discovery requests issued to Gahagan
& Bryant Associates (“GBA”), one of the Port’s dredging consultants, that referenced potential
slope stability issues at Berth No. 8. See, e.g. Doc. 341, att. 2, p. 47, Doc. 341, att. 11, pp. 21718, Doc. 341, att. 5, pp. 219-230, Doc. 341, att. 6, pp. 1-16, Doc. 341, att. 6, pp. 30-31. IFG
contends that, until these issues are resolved, it cannot conduct the initial dredging. Doc. 280, att.
1, p. 25. The documents received from GBA are a series of emails exchanged between the Port,
its engineering consultants Myer & Associates (“Meyer”), and GBA ranging in date from February
2011 to August 2015. Id.
In sum, the substance of the emails is whether Berth No. 8 can be dredged to 42 feet and
whether the dock structural design can withstand such dredging. In February 2011 the Port emailed
Meyer in reference to Berth No. 8’s design and future dredging. Doc. 341, att. 2, p. 47 [P50].
Meyer informed the Port that the “rehabilitated portion of Berth 8 was designed for 40 foot draft.
The standard template would apply achieving a depth of -40 approximately 10 feet away from face
of fender.” Id. In a May 2011 reply email to the Port from GBA, after examining dock
improvement plans for Berth No. 8, GBA’s engineer expressed concern because no geotechnical

IFG paid the Port $510,000 under protest. IFG’s complaint seeks reimbursement of this amount. Doc. 236, pp.2327, ¶¶ 28-35.
8

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data was provided. Doc. 341, att. 2, p. 179 [P68]. She wrote, “[i]f the design depth for the structure
is only -40 feet then we may have some issues here. …” Id.
On July 16, 2015, the Port wrote that it did not “know if Berth 8 will structurally
accommodate that depth [-42 feet MLG].” Doc. 341, att. 6, pp. 1 [P212]. It also noted that Meyer’s
position “is that dredging should not take place within 10 feet of the dock to protect the fender
system.” Id. On August 4, 2015 Meyer advised the Port that dredging along Berth No. 8 “will
accommodate a dredge elevation of 39.1 MLG.” Doc. 341, att. 6, p. 30 [P214].
Notwithstanding the information contained in the emails from Meyer and GBA regarding
dredging depth, on August 5, 2015, the Port’s general counsel wrote to IFG’s attorney “we have
the geo-tech engineers that worked to develop the details of the upgrade of Berth 8 in the late
1990’s re-looking at calculations and numbers and there may well be a determination that the 42
mean low gulf standard of the lease can be met without a safety concern to the dock.” Doc. 341,
att. 6, p. 32 [P215]. Further, the September 30, 2015, default letter issued by the Port stated, “the
[Port] has determined that there are no geotechnical restrictions related to the wharf and dock
facilities adjacent to the area to be dredged and, upon issuance of the required Corps permit
amendment allowing for dredging to a depth of -42 feet MLG, the dredging IFG is required to
perform can proceed.” Doc. 341, att. 29, pp. 135 [D85]. The Port maintains that this statement is
based on a series of calculations performed by its in-house engineer on a dry erase board, which
calculations were subsequently erased. Doc. 341, att. 15, p. 435 [P340], Doc. 341, att. 15, pp. 448
[P342].
Both the Port and IFG have hired engineers to perform slope stability analyses for the
proposed dredging at Berth No. 8. The Port employed Michael Hasen of HVJ Associates who
prepared reports dated January 19, 2018 and December 26, 2018. Doc. 341, att. 15, pp. 494-559

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[P344], Doc. 341, att. 20, pp.1-101 [P390]. IFG retained Timothy Stark of Stark Consultants who
prepared reports dated November 20, 2018 and January 10, 2019. Doc. 341, att. 17, pp. 1-63
[P368], Doc. 341, att. 23, pp. 1-22. [P402]. Hasen and Stark reach conflicting conclusions on the
safety of dredging to 42 feet at Berth No. 8.
II.
APPLICABLE LAW
A. Summary Judgment Standard
A court should grant a motion for summary judgment when 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.” FED. R. CIV. P. 56. The party moving for summary judgment is initially responsible for
identifying portions of pleadings and discovery that show the lack of a genuine issue of material
fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion
for summary judgment if the movant fails to meet this burden. Id.
If the movant makes this showing, however, the burden then shifts to the non-moving party
to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2511 (1986) (quotations omitted). This requires more than mere
allegations or denials of the adverse party's pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 106 S.Ct. at 2511 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Clift v. Clift, 210 F.3d 268,
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270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier
of fact could render a verdict for the nonmoving party. Brumfield v. Hollins, 551 F.3d 322, 326
(5th Cir. 2008).
B. Substantive Law Regarding Contract Interpretation
Because our subject matter jurisdiction is based on diversity of citizenship as found in 28
U.S.C. § 1332, we must apply the substantive law of the state in which we sit. Erie v. Thompkins,
58 S.Ct. 817 (1938). Also the contract at issue provides that it “shall be governed by and construed
in accordance with the laws of the State of Louisiana.” Doc. 1, att. 3, p. 31.
Section 24.8 of the lease provides that Louisiana law governs the terms of the lease. Under
Louisiana law,
[i]nterpretation of a contract is the determination of the common intent of
the parties. The reasonable intention of the parties to a contract is to be
sought by examining the words of the contract itself, and not assumed.
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. Common intent is determined, therefore, in accordance with the
general, ordinary, plain and popular meaning of the words used in the
contract.
Prejean v. Guillory, 38 So. 3d 274, 279 (La. 2010) (citations omitted).
When examining a contract on a motion for summary judgment, the interpretation can be
either a question of law or fact depending on whether the contract is ambiguous. While questions
of law in regard to contract interpretation are appropriate to decide during a motion for summary
judgment, questions of fact should only be decided if there is no material issue of fact. See LFI
Fort Pierce, Inc. v. Acme Steel Buildings, Inc., 200 So. 3d 939, 946 (La. App. 3 Cir 2016). “The
determination of whether a contract is clear or ambiguous is a question of law.” Sims v. Mulhearn
Funeral Home, Inc., 956 So. 2d 583, 590 (La. 2007). Under Louisiana law, the interpretation of
an unambiguous contract is a question of law that can be decided on a motion for summary
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judgment. Greenwood 950, L.L.C. v. Chesapeake La., L.P., 683 F.3d 666, 668 (5th Cir. 2012)
(citing Sims v. Mulhearn Funeral Home, Inc., 956 So. 2d at 590). “However, if a court determines
as a matter of law that a contract is ambiguous, then extrinsic (parol) evidence may be used to
determine the true intent of the parties, and determining the intent of the parties becomes, in part,
a question of fact.” LFI Fort Pierce, Inc., 200 So. 3d at 946 (citing Carter v. BRMAP, 591 So.2d
1184, 1188–89 (La. App. 1 Cir. 1991)). Because the intent of the parties in an ambiguous contract
is a question of fact, the court should only grant summary judgment if there is no material issue of
fact as to the parties’ intent. Id.
III.
MERITS OF THE PENDING MOTIONS
A. Motion for Partial Summary Judgment on Claims Related to MAG Charges
In this motion the Port moves for partial summary judgment declaring that IFG was
required to pay the MAG charges under Section C of Exhibit 3 of the Lease and dismissing IFG’s
claims that it does not owe MAG charges and is entitled to recover funds that it paid under protest,
as pled in Count VI of IFG’s Amended, Supplemental, and Restated Complaint. Doc. 285.
Pursuant to Section 4 of the Lease, IFG was to begin paying rental payments, or Minimum
Annual Guarantee (“MAG”) throughput charges, beginning on the Rent Commencement Date in
accordance with a schedule set forth in Exhibit 3 of the Lease. Doc. 341, att. 26, pp. 166-167, 203204. [D49]. The IFG grain facility opened on July 15, 2015 and this date is referred to as the Rent
Commencement Date under the Lease. Doc. 1, ¶ 8, Doc. 341, att. 26, p. 163 [D49]. IFG shipped
its first cargo through its facility on September 30, 2015. Doc. 1, ¶ 8.
Under Section C of Exhibit 3 of the Lease IFG is obligated to pay a MAG charge each
lease year when the total amount of cargo shipped through its facility does not exceed 400,000

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metric tons.9 Doc. 341, att. 26, p. 204 [D49]. During the first lease year, IFG shipped 87,680.32
tons of cargo through its facility. Doc. 341, att. 10, p. 61[P285]. At the end of the first lease year,
on July 31, 2016, the Port sent an invoice to IFG for $359,167.63 representing MAG charges it
alleges were owed for the first year of the Lease. Id.
IFG contends that pursuant to the force majeure provisions of the Lease it is not obligated
to pay the MAG charges. Doc. 236, pp. 18-23, ¶¶26-27. On August 6, 2015, IFG sent a letter to
the Port invoking the force majeure provision in the Lease and explaining that circumstances
beyond its control have prevented it from dredging the area around its berth to a depth of 42 feet.
Doc. 341, att. 6, p. 35 [P217]. It stated that its facility was designed with a plan to accommodate
large Panamax vessels and the depth restrictions will limit its ability to service large vessels and
achieve throughput volumes and attain business targets. Id. While IFG eventually paid the MAG
charges the Port alleges were due, it did so under protest and seeks reimbursement of this payment.
Doc. 341, att. 11, pp. 257-59 [P300].
The Lease contains the following relevant provisions. Under the section of the Lease titled
“Rent,” Section 4.2(c) states:
The Minimum Annual Guarantee, if any, set forth in Exhibit 3, Subsection
C, shall be calculated commencing as of the Rent Commencement Date and
shall be payable no later than sixty (60) days from the end of each Lease
Year.
Doc. 341, att. 26, p. 167 [D49]. Exhibit 3 to the Lease is entitled “Rental” and Section C
contains the following provision regarding MAG charges:
Minimum Annual Guarantee. [IFG] shall be obligated each Lease Year to
pay Throughput charges based on a minimum Throughput of 400,000 metric
tons of Cargo, hereafter called the Minimum Annual Guarantee (''MAG"). For
purposes of the MAG, "metric ton" is defined as 2,205 pounds. The number of
9

The MAG charge is calculated as the difference between 400,000 metric tons and the amount of cargo actually
shipped through IFG’s facility during a lease year multiplied by $1.15 per metric ton. Doc. 341, att. 26, pp. 203-04
[D49].
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metric tons shall be determined from the manifest weight of all such Cargo
which is confirmed by [IFG] and the [Port]. Accordingly, if the actual
Throughput for a given Lease Year is less than 400,000 metric tons, [IFG] shall
pay, within sixty (60) days after the end of the Lease Year, the difference
between the Throughput charge as calculated pursuant to Section B based on
actual Throughput and the Throughput charge calculated on the MAG of
400,000 metric tons. In the event of Force Majeure, [IFG] shall receive a pro
rata (365 days divided by number of days delayed) credit only for the period of
time for which the Force Majeure event causes an actual interruption of the
operation of the Facility.
Id. at p. 204. Section 1 of the Lease defines specific terms used in the Lease. Force
Majeure is defined as follows:
"Force Majeure" means any cause not reasonably within the control of the
Party claiming suspension, and shall include, but not be limited to, the
following: (i) physical events such as acts of God, landslides, lightning,
earthquakes, fires, storms or storm warnings, such as hurricanes, which result
in evacuation of the· affected area, droughts, floods, washouts, explosions,
breakage or accident or necessity of repairs to machinery or equipment or
lines of pipe; (ii) weather related events affecting an entire geographic region; (iii)
acts of others such as strikes, lockouts or other industrial disturbances, riots,
sabotage, terrorism, insurrections or wars; provided that the settlement of
strikes, lockouts or other industrial disturbances shall be within the sole
discretion of the Party claiming such suspension; (iv) the failure or
interruption of performance by the Tenant's engineering, procurement and
construction contractor or any of subcontractors of such contractor to the
extent caused by an event of Force Majeure under this Ground Lease; (v) the
failure or interruption of performance by the Tenant's suppliers by reason of
such supplier's valid declaration of an event that would constitute an event of
force majeure under the Tenant's contract with such supplier, or in the case
of a contract for the supply of grains, rice or other agricultural products to the
Tenant, any non-delivery of grains, rice or other agricultural products other
than as a result of a breach of contract by the Tenant; (vi) governmental
actions such as necessity for compliance with any court order, law, statute,
ordinance, regulation, or policy having the effect of law promulgated by a
Governmental Authority having jurisdiction, or that restrict the Tenant's ability
to construct the Facility or any delay in issuance or effectiveness of any
Governmental Approval that has been properly applied for by the Tenant that is
required to construct the Facility; and (vii) litigation commenced by any
Person with respect to the Facility, involving injunctive relief or relief
which, if adversely determined, would likely have a material adverse effect
on the Tenant's performance of its obligations under this Ground Lease.
Id. at p. 160. Section 23 of the Lease contains the following provision related to Force Majeure:
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Provided that notice is given within fifteen (15) days of an occurrence of an
event of Force Majeure by the Party seeking to invoke and utilize the provisions
of this Section, either Party hereto shall be excused from performing any of its
respective obligations or undertakings provided in this Ground Lease, excepting
any of its respective obligations or undertakings to pay any sum of money under
the applicable provisions hereof, for so long as the performance of such
obligations is prevented or significantly delayed, retarded or hindered by any
event of Force Majeure.
Id. at pp. 186-87.
The Port argues that the plain and unambiguous terms of the Lease require IFG to pay
MAG charges and that the force majeure provisions do not excuse IFG’s obligation. The Port
asserts that IFG’s attempt to invoke the force majeure provisions fail for three reasons; 1) force
majeure is inapplicable to MAG charges, 2) IFG was the cause of the delays in completing
dredging; and 3) even if a force majeure existed, IFG’s letter attempting to invoke it was untimely.
Doc. 285, att. 1, p. 11.
Under Section C of Exhibit 3, the provision setting forth the MAG obligation, it states,
“[i]n the event of Force Majeure, [IFG] shall receive a pro rata (365 days by number of days
delayed) credit only for the period of time for which the Force Majeure event causes an actual
interruption of the operation of the Facility.” Doc. 341, att. 26, p. 204 [D49]. The Port argues that
since IFG has never ceased operating the facility there has been no “actual interruption” in the
operation of IFG’s facility and the force majeure provision is inapplicable.10
IFG maintains that the circumstances surrounding the failure to dredge and its resultant
failure to achieve MAG throughput volumes are wholly attributable to the failure of the Port to
obtain a dredging permit, to provide a useable spoil disposal site, and uncertainty of the integrity
of the dock at Berth 8 to accommodate a dredge to 42 feet. Doc. 304, pp. 6-7. These events, IFG

10

In the second lease year IFG shipped 360,906.66 tons of cargo through its facility. Doc. 341, att. 11, pp. 29-30
[P323].
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claims, constitute events of force majeure as contemplated by the Lease. IFG asserts that its
facility has been only “partially open” due to the limitations imposed by a lack of dredging. Id. at
24-25.
While we agree with IFG that these are events that may be considered force majeure, we
find that the specific MAG provisions in the Lease nevertheless require payment of MAG charges.
Specifically, Section 23 of the Lease which is entitled “Force Majeure” provides that any party to
the Lease invoking its provisions “shall be excused from performing any of its respective
obligations or undertakings … excepting any of its respective obligations or undertakings to pay
any sums of money under the applicable provisions hereof … .” Doc. 341, att. 26, pp. 186-87
[D49]. Further, under Section C of Exhibit 3, the provision setting forth the MAG obligation, the
Lease allows for a pro rata reduction in payment for the number of days that there is an “actual
interruption” in the operation of the facility. Id. p. 204. We note here that there has been no “actual
interruption” of IFG’s facility and find that under the terms of the Lease MAG charges are due.
The Port’s motion for partial summary judgment on this issue will be granted.
B. Motion for Partial Summary Judgment Regarding Dredging Permit
In this motion the Port moves for partial summary judgment dismissing IFG’s claims
regarding the dredging permit obligation as pled in Counts III and IV of IFG’s Amended,
Supplemental, and Restated Complaint and dismissing its requests for declaratory and injunctive
relief as pled in Counts VIII and IX of IFG’s Amended, Supplemental, and Restated Complaint.
Doc. 289.
The language in the Lease pertaining to dredging and obligations associated with dredging
is found in Section 8.9 and it states in pertinent part:
[IFG] will arrange for and complete the initial dredging of the marine area
alongside the Berth No. 8 Servitude Area and the vicinity connecting the Calcasieu
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ship channel to this area (see the map attached as Exhibit 6 which shows the
specific areas to be dredged) to a depth of no less than forty-two (42') feet
below the low water line as measured at mean low Gulf tide.
Doc. 341, att. 26, p. 172. [D49]. The Port contends that the language “arrange for and complete”
in Section 8.9 required IFG to secure a dredging permit from the USACE to complete the initial
dredging. Doc. 293, p. 7. IFG, on the other hand, vehemently denies that it was ever its obligation
to secure the USACE permit. See generally doc. 301. To this end, IFG points out that the Lease
is completely silent as to who is obligated to secure the initial dredging permit and that documents
exchanged between the parties show that the Port was “either acting upon its own responsibility to
secure necessary USACE permitting or, at the very least, the Port was recognizing that the
responsibility was shared.” Id. at p. 5.
We find that the language in Section 8.9 which states “arrange for and complete” is not
clear and explicit and is subject to different interpretations of exactly what duties were imposed
on IFG. Since we determine, as a matter of law, that Section 8.9 is ambiguous, we may look to
parol evidence to attempt to determine the true intent of the parties. Determining the intent of the
parties becomes a question of fact and in order to grant summary judgment on this issue, we must
find that there is no genuine dispute as any material fact. LFI Fort Pierce, Inc., 200 So. 3d at 946
(citing Carter v. BRMAP, 591 So.2d 1184, 1188–89 (La. App. 1 Cir. 1991)).
Here, we cannot say that there is no genuine dispute as to any material fact on this issue.
The issue of who was responsible for obtaining the initial permit from the USACE to begin the
initial dredging is a matter that is fiercely contested and not appropriate for summary judgment.
The Port’s motion for partial summary judgment on this issue will be denied.

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C. Motion for Partial Summary Judgment Regarding Costs to Elevate DMPF 3
In this motion the Port moves for partial summary judgment declaring that IFG is
responsible for all costs and expenses incurred in complying with its obligation to arrange for and
complete the initial dredging and dismissing IFG’s claim in Count VII of its Amended,
Supplemental, and Restated Complaint wherein it seeks reimbursement of the money it paid under
protest to raise the containment dikes at DMPF 3. Doc. 288.
We again turn to Section 8.9 of the Lease which provides in pertinent part:
[IFG] or its contractor will deposit the spoil from the initial dredging, subject
to the guidelines and requirements of the United States Corps of Engineers and
all applicable laws, rules and regulations, at the [Port’s] dredge spoil site that is
closest in proximity to the area dredged and which is available for use. The
[Port] will not assess or charge [IFG] any fee for use of the [Port’s] disposal
sites.
Doc. 341, att. 26, p. 172 [D49]. The Port argues that the Lease states that IFG was responsible for
arranging for and completing the initial dredging and depositing the spoil at a dredge spoil site.
Doc. 288, p. 11. According to the Port, this necessarily includes any costs incurred as a result of
any requirements imposed by the USACE. Id. Since the USACE required that the dikes at DMPF
3 be raised, it contends that IFG is responsible for this expense. Id.
IFG argues that the Lease requires the Port to provide a dredge spill area “available for
use” and without charging IFG any fee for using the site. Doc. 303, p. 2. IFG maintains that the
Port provided an area that was not useable without significant modification. IFG contends that the
language “subject to the guidelines and requirements of the United States Corps of Engineers and
all applicable laws, rules and regulations” does not require IFG to expand the Port’s dredge spoil
site but rather required IFG to properly, in accordance with USACE methods, deposit the spoil.
Id. at 10.

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We agree with IFG. The phrase “available for use” is clear and explicit and coupled with
the language that “the [Port] will not assess or charge [IFG] any fee for use of the [Port’s] disposal
sites” required the Port to provide a dredge spoil site that IFG was able to use to deposit the spoil
from the initial dredging without any cost to IFG. The Port’s motion for partial summary judgment
on this issue will be denied.
D. Motion for Partial Summary Judgment on Breach of Warranty and Fraudulent
Inducement
In this motion the Port moves for partial summary judgment dismissing IFG’s claims for
breach of warranty and fraudulent inducement as set forth in Counts I and II of IFG’s Amended,
Supplemental, and Restated Complaint. Doc. 291.
IFG claims that the Port, as lessor, violated its warranty against vices and defects (La. C.C.
Arts. 2696, 2697), failed to provide Berth No. 8 in a condition suitable for its purpose (La. C.C.
Art. 2682), and failed to deliver Berth No. 8 at the agreed time and in good condition suitable for
the purpose for which it was leased (La. C.C. Art. 2684). Doc. 236, pp. 6-15, ¶¶ 1-20.
The Port argues that the lease warranty obligations that IFG relies on in Count I of its
Amended, Supplemental, and Restated Complaint are inapplicable because the Port granted a
servitude rather than a lease over Berth No. 8 to IFG.
Section 2 of the Lease, entitled “Ground Lease Premises” provides at Section 2.4:
Servitudes. As set forth below, the [Port] hereby grants to [IFG] and [IFG]
accepts from the [Port], without additional charge or rent for use in
connection with the construction, operation, maintenance, repair and
replacement of the Facility, a servitude and right of use consisting of the
following:
***
(d) For Berth #8. The [Port] grants to [IFG] non-exclusive rights to the
Berth No. 8 Servitude Area for the purpose of constructing, installing,
operating, maintaining, repairing and replacing improvements and
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equipment at the cost of [IFG], in accordance with plans and specifications
subject to the approval of the [Port], which approval shall not be
unreasonable withheld, for the loading and unloading of vessels. The [Port]
shall at its cost maintain Berth #8 (but not any of [IFG's] improvements and
equipment) in reasonable good condition and repair throughout the Initial
Term and any Extended Term. The use of Berth #8 granted herein shall be
in accordance with the Tariff and generally applicable operating procedure
of the [Port]. The [Port] shall retain all use and rights to Berth #8 which do
not unreasonable interfere with the rights of [IFG] granted herein.
Doc. 341, att. 26, pp. 164-65 [D49].
The Port maintains that the Lease granted a non-exclusive servitude over Berth No.8 to
IFG and the Port's only obligation under the Lease with respect to Berth No. 8 is to maintain it in
good condition and repair. Doc. 291, att. 1, pp. 7-8. The Port further argues, citing La. CC. Art.
651, that it, as the servient estate owner, has no obligation whatsoever unless assumed by contract.
Id. at p. 10. Consequently, the Port maintains that IFG's claims for breach of lease warranty
obligations are inapplicable.
IFG argues that the provision in the Lease which grants the servitude over Berth No. 8 to
IFG is clearly a right derived from the Lease. Doc. 302, p. 5. It maintains, citing Hawthorne Land
Co. v. Equilon Pipeline Company., LLC, 309 F.3d 888 (5th Cir.2002), that a servitude can be
expressly included in a commercial lease. In Hawthorne a property owner donated a servitude to
the United States Department of Energy to construct pipelines for the Strategic Petroleum Reserve
("SPR"). When the Government's use of the pipelines for the SPR declined it leased the servitude
to Shell (Equilon's predecessor-in-interest) to transport crude oil. The property owner sued
claiming that the servitude was exclusively grated for the management and maintenance of the
SPR. The court, in reasoning not pertinent to our opinion here, determined that the donation of
the servitude did not "restrict the Government's ability to lease the servitude for commercial
purposes." Id. at p. 892.

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IFG, therefore contends that the servitude granted in this case is a right granted under the
Lease and as such the Civil Code articles regarding lease warranties and obligations are applicable.
Whether or not the Port has lived up to its obligations under the Lease, according to IFG, is
factually disputed and not ripe for summary judgment. Doc. 302, p. 10.
We agree. The servitude over Berth No.8 is a part of and included within the Lease signed
by the parties. The Civil Code imposes certain warranties and obligations on a Lessor. Whether
or not these warranties and obligations have been breached is genuinely disputed and summary
judgment will not be granted on this issue.
Next, the Port argues that IFG's claim that it was fraudulently induced into executing the
Lease as alleged in Count II of its Amended, Supplemental, and Restated Complaint should be
dismissed. It contends, in sum, that the undisputed facts show that IFG failed to conduct its own
due diligence and obtain engineering studies that it agreed to secure relative to dredge depth and
the stability of Berth No. 8. Doc. 291, att. 1, p. 19. Had IFG conducted its own study, according
to the Port, it would have learned of any issues or concerns it now raises. Doc. 323, p. 14.
Under Louisiana law, in order to establish fraud involving a contract IFG must prove; "(1)
a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust
advantage or to cause damage or inconvenience to another; and (3) the error induced by a
fraudulent act must relate to a circumstance substantially influencing the victim's consent to (a
cause of) the contract." Koerner v. CMR Constr. & Roofing, LLC, 910 F.3d 221, 228 (5th
Cir.2018)(citing Shelton v. Standard/700 Associates, 798 So.2d 60, 64 (La.2001)). Additionally,
the claims will not survive if the party against whom the fraud was directed could have "ascertained
the truth without difficulty, inconvenience, or special skill." Id. (citing La. C.C. art. 1954).

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IFG submits that the Port knew from the outset that its intention was to service large
Panamax vessels at its Facility which would require a dredge depth of at least 42 feet. Doc. 302,
pp. 10-11. In its brief IFG sets forth a litany of facts which it suggests that the Port had knowledge
of but did not inform IFG of prior to signing the Lease. Id. at pp. 12-18. These facts are relative
to issues concerning dredge depth and slope/stability at Berth No. 8. According to IFG, the Port
intentionally omitted certain information and fraudulently induced IFG into signing the Lease.
The court has reviewed the facts presented by both parties. At this time, we cannot say
that there is no genuine dispute as to any material fact on this issue. Exactly what information the
Port knew and whether or not its intent was to obtain any unjust advantage is not clear and is not
appropriate for summary judgment. The Port’s motion for partial summary judgment on this issue
will be denied.
E. Cross-Motions for Partial Summary Judgment on LUPTA Claims
The Port moves for partial summary judgment dismissing IFG's claims under the Louisiana
Unfair Trade Practices Act ("LUPTA") as found in Count V of IFG’s Amended, Supplemental,
and Restated Complaint. Doc. 286. IFG has also moved for partial summary judgment asking the
court to grant its LUPTA claims against the Port. Doc. 280.
LUPTA forbids "unfair methods of competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce." La. R.S. 51:1405. LUPTA does not specifically identify
any prohibited types of conduct and the Louisiana Supreme Court has stated that "[i]t has been left
to the courts to decide, on a case-by-case basis, what conduct falls within the statute's prohibition."
Cheramie Services, Inc. v. Shell Deepwater Prod., Inc., 35 So.3d 1053, 1059 (La. 2010). In order
to establish a LUPTA claim the plaintiff must show that "the alleged conduct offends established
public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious." Id.

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Accordingly, "the range of prohibited practices under LUPTA is extremely narrow, as LUPTA
prohibits only fraud, misrepresentation, and similar conduct, and not mere negligence." Quality
Envtl. Processes, Inc. v. I.P. Petroleum Co., Inc., 144 So.3d 1011, 1025 (La.2014)(citing Cheramie
35 So.3d at 1059).
IFG alleges that the Port is liable under LUPTA for its "deceptive and misleading
communications that it was properly, lawfully and timely securing adequate dredge permitting,"
and its "deceptions, concealment and substantially fraudulent conduct" it employed in "connection
with hiding evidence that it was fully aware of its role in obtaining an amended permit … knowing
that the concealed records would directly contradict legal positions advanced" before and during
the lawsuit. Doc. 280, pp. 1-2. IFG also alleges that the Port violated LUPTA by employing "a
series of misrepresentations, deceptions, concealments and substantially fraudulent conduct … in
connection with hiding extensive records confirming that there were substantial concerns about
slope/dock stability and dredge depth issues that were not being contemporaneously shared with
IFG …." Id. at p. 2.
In opposing IFG's motion and in support of its own motion the Port first asserts that IFG
lacks standing to bring an action under LUPTA. Doc. 286, att. 1, pp. 13-15, Doc. 315 pp. 7-10. It
maintains, citing Orthopedic & Sports Injury Clinic v. Wang Labs, Inc., 922 F.2d 220, 226 (5th
Cir.1991), that LUPTA provides a cause of action only to business competitors and those injured
by transactions involving consumers buying for personal, family, or household use. Since IFG is
neither a consumer nor business competitor of the Port it argues that it is entitled to summary
judgment as a matter of law because IFG does not have standing to bring a LUPTA action.
IFG calls our attention to a recent opinion written by Chief Judge S. Maurice Hicks, Jr.,
Caldwell Wholesale Company, LLC v. R.J. Reynolds Tobacco Co., 2018 WL 2209165 (W.D. La

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5/11/2018), wherein the court found that LUPTA provides a private right of action to plaintiffs
other than direct consumers and business competitors. Doc. 300, pp. 6-7. In Caldwell the court
addressed standing in the context of a LUPTA claim filed by someone other than a consumer or
business competitor. The court noted that, following the plurality opinion of the Louisiana
Supreme Court in the case of Cheramie Serv., Inc. v. Shell Deepwater Prod., Inc, 35 So.3d 1053
(La. 2010), which expanded LUPTA to allow anyone harmed by prohibited unfair or deceptive
practices to file a private right of action to bring a claim, a number of Louisiana appellate and
federal district courts have followed that plurality opinion and found that private parties have a
right of action under LUPTA.11 Caldwell at *6. The court found Cheramie instructive on the
issue of standing and in accordance with the other court decisions determined that a private right
of action exists and that the plaintiff had standing to bring the LUPTA claim. Id.
Following the reasoning of Chief Judge S. Maurice Hicks, Jr., we too find that IFG has
standing to bring its LUPTA claims against the Port; however, we find that genuine issues of
material fact remain regarding the Port's alleged violations of LUPTA that preclude summary
judgment.
LUPTA necessarily entails a finding of "immoral, unethical, oppressive, or unscrupulous"
conduct with an intent to deceive and or defraud. We do not take these serious allegations lightly.
The parties have presented hundreds of documents containing a myriad of facts most of which are

11

See Jones v. Americas Ins. Co., 2016-0904 (La. Ct. App. 1st Cir. 8/16/17), 226 So.3d 537, 544; Bogues v. Louisiana
Energy Consultants, Inc., 46-434 (La. Ct. App. 2nd Cir. 8/10/11), 71 So.3d 1128, 1132; J. A. Davis Properties, LLC
v. Martin Operating P'ship, LP, 2017-449 (La. Ct. App. 3rd Cir. 6/21/17), 224 So.3d 39, 43; Prime Ins. Co. v. Imperial
Fire & Cas. Ins. Co., 2014-0323 (La. Ct. App. 4th Cir. 10/1/14), 151 So.3d 670, 678; Hurricane Fence Co., Inc. v.
Jensen Metal Products, Inc., 12-956 (La. Ct. App. 5th Cir. 5/23/13), 119 So.3d 683, 688; Rockwell Automation, Inc.
v. Montgomery, Civil Action No. 17-415, 2017 WL 2294687, at *2–3, 2017 U.S. Dist. LEXIS 80820, at *7 (W.D. La.
May 24, 2017); Swoboda v. Manders, Civil Action No. 14-19-EWD, 2016 WL 1611477, at *5, 2016 U.S. Dist. LEXIS
53377, at *18 (M.D. La. Apr. 21, 2016); Max Access, Inc. v. Gee Cee Co. of LA, Civil Action No. 15-1728, 2016 WL
454389, at *4, 2016 U.S. Dist. LEXIS 14166, at *13 (E.D. La. Feb. 5, 2016). Caldwell, at *6.

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disputed. At this juncture the court is not able to determine intent and this necessarily precludes
granting either motion for summary judgment on IFG's LUPTA claims.
IV.
CONCLUSION
For the reasons stated, the Port's Motion for Partial Summary Judgment on Claims Related
to MAG Charges (doc. 285) is GRANTED, the Port's Motion for Partial Summary Judgment
Regarding the Dredging Permit (doc. 289) is DENIED, the Port's Motion for Partial Summary
Judgment Regarding Costs to Elevate DMPF 3 (doc. 288) is DENIED, the Port's Motion for Partial
Summary Judgment on Breach Of Warranty and Fraudulent Inducement Claims (doc. 291) is
DENIED, the Port's Motion for Partial Summary Judgment on LUPTA Claims (doc. 286) is
DENIED, and IFG's Motion for Partial Summary Judgment on LUPTA Claims (doc. 280) is
DENIED.
THUS DONE AND SIGNED in Chambers this 6th day of March, 2019.

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