VALLOUREC TUBOS DO BRASIL S.A. v. PDVSA Services Inc et al
MEMORANDUM AND ORDER granting 8 MOTION to Dismiss 1 Complaint (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
V ALLOUREC T UBOS D O B RASIL S.A.,
PDVSA S ERVICES, IN C. AND B ARIVEN,
June 22, 2017
David J. Bradley, Clerk
C IVIL A CTION N O. 4:16-CV-03698
MEMORANDUM AND ORDER
Before the Court is defendant PDVSA’s motion to dismiss. Dkt. 13. All parties
consent to magistrate judge jurisdiction. Dkt. 19. After considering the motion, responses,
and law, the motion to dismiss is granted.
Vallourec entered into an agreement with PDVSA as the agent for purchaser
Bariven to sell carbon steel casing. Dkt. 1 at 3. Vallourec delivered the product in
accordance with the agreement. Id. Vallourec alleges that PDVSA and Bariven have
failed to pay an outstanding balance on the account. PDVSA now brings this Rule
12(b)(6) motion to dismiss all claims against it.
Standard of Review
In reviewing a pleading under Rule 12(b)(6), the Court must accept as true all
well-pleaded facts contained in the plaintiff’s complaint and view them in the light most
favorable to the plaintiff. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). However,
only facts are entitled to an assumption of truth; legal conclusions unsupported by factual
allegations do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “While a
complaint attached by a Rule 12(b)(6) motion to dismiss does not need to detail factual
allegations, … a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
PDVSA contends that the allegations are insufficient because they do not allege
that PDVSA was a party to the contract at issue, and there are no specific allegations
against it. In response, Vallourec contends that the agreement is facially ambiguous as to
which entity is bound (Dkt. 10 at 5), and so extrinsic evidence should be considered in
deciding the issue.1
However, the agreement unambiguously establishes PDVSA’s role as agent.2 The
address block on the agreement says “Bariven, S.A., c/o PDVSA Services, Inc.,
Purchasing Agent.” Dkt. 1-1 at 2. The purchase order defines “agent” as “PDVSA
Services Inc. in its capacity as agent for “Purchaser,” with “purchaser” defined as
“Bariven S.A.” Id. at 3. Consistent with the agent-principal relationship, Bariven is the
Vallourec also contends that PDVSA is actually the alter ego of Bariven and acted on its own accord.
Dkt. 10 at 6. Vallourec’s complaint does not allege an alter ego theory of liability against PDVSA, nor
any facts supporting such a theory. It is not properly before this Court for purposes of this motion to
dismiss. In re Baker Hughes Securities Litigation, 136 F.Supp.2d 630, 646 (S.D. Tex. 2001).
The agreement in question is attached to Vallourec’s complaint. Dkt. 1-1. Since a Rule 12(b)(6) inquiry
is restricted to the contents of the pleadings, including attachments thereto,” the Court’s consideration of
the agreement is appropriate. Brand Coupon Network, L.L.C. v. Catalina Marketing Corp., 748 F.3d 631,
635 (5th Cir. 2014).
only party entitled to make changes on the order (Id.), and the only party responsible for
payment (Id. at 4). The agreement closes with the signature “Bariven, S.A. – C/O PDVSA
Services, Inc., Purchasing Agent.” Id. at 20. Vallourec even admits in its complaint that
PDVSA is Bariven’s agent. See Dkt. 1 at 3.
“When an agent acting with actual or apparent authority makes a contract on
behalf of a disclosed principal, (1) the principal and the third party are parties to the
contract; and (2) the agent is not a party to the contract unless the agent and the third
party agree otherwise.” Restatement (Third) of Agency § 6.01 (2006). The agent can be
liable on the contract, however, if its actions breach an independent duty. Westmoreland
v. Sadoux, 299 F.3d 462, 466-67 (5th Cir. 2002). Plaintiff asserts no facts in the complaint
that could lead the court to believe that PDVSA is liable for the misconduct alleged.
Without any allegation that PDVSA can be held liable for Bariven’s alleged breach of
contract, the claims cannot proceed. See Pension Advisory Group, Ltd. v. Country Life
Ins. Co., 771 F. Supp. 2d 680, 705 (S.D. Tex 2011).
For the reasons above, Defendant PDVSA’s motion to dismiss is granted.
Signed at Houston, Texas, on June 21, 2017.
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