United States District Court, W.D. Louisiana, Lafayette Division
Hadassa Investment Nigeria, Ltd.
Swiftships Shipbuilders, LLC
RICHARD T. HAIK, Senior Magistrate Judge.
Before the Court is plaintiff, Hadassa Investment Nigeria, Ltd's ["Hadassa"], Motion For Partial Summary Judgment [Rec. Doc. 41], defendant, Swiftships Shipbuilders, L.C.C.'s ["Swiftships"], Opposition Memorandum [Rec. Doc. 54] and plaintiff's Reply thereto [Rec Doc. 57]. Also before the Court is Swiftships' Motion For Partial Summary Judgment [Rec. Doc. 60] and Hadassa's Opposition Memorandum [Rec. Doc. 68]. Oral argument is not necessary. For the reasons that follow the Court will deny the Motions.
Hadassa, a limited business entity organized under the law of Nigeria, and Swiftships, a ship/boat building and selling company in Morgan City, Louisiana, entered into an agreement in 2009 giving Hadassa the exclusive right to represent Swiftships in Nigeria. Hadassa and a Swiftships' representative made a presentation to the Nigerian Navy with the hope that the Navy would procure Swiftships' fast patrol boats from Hadassa. As Swiftships already had such a patrol boat, it agreed to hold the vessel ("the Patrol Boat") for Hadassa for the sum of $499, 970. Hadassa made a wire-transfer of $499, 970 ($500, 000 less the bank fee of $30) to Swiftships' bank account on April 30, 2009. R. 39, Exh. 2; R. 41, Aff. Of Nelken.
On June 25, 2012, Hadassa submitted correspondence to Swiftships stating "up until now, our company is still trying to get the [Nigeria Navy] contract... it might take a year or two." Hadassa's letter further stated that it understood the Patrol Boat had been sold to the United States Government and requested "a refund of our deposit." Thereafter, on July 15, and August 27, 2013, plaintiff demanded the return of its $499, 970. Swiftships neither responded to Hadassa's requests nor returned the deposit. Hadassa filed this action asserting a cause of action for: (1) Recission of the Contract Based on Fraud pursuant to La. C.C. Art. 1958; (2) Conversion; (3) Breach of Contract; (4) Fraud; (5) Detrimental Reliance; (6) Unfair Trade Practices ("LUPTA") pursuant to La.R.S. 51:1404-1430; and alternatively, (7) Unjust Enrichment. R. 39.
Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, as with this motion, the moving party "must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075
Hadassa contends the Court should grant its claim against Swiftships for conversion of the $499, 970 because the money was a deposit rather than earnest money, and as Swiftships acknowledged receipt of the money, it must be returned to Hadassa. Swiftships argues that the money was for its "hastened production and delivery of a vessel (the Patrol Boat), " and when Hadassa cancelled the contract it forfeited the money. Hadassa concedes these contrary positions exist but maintains they do not create a material issue of fact because any agreement is irrelevant. In its motion for summary judgment as well as its opposition memorandum, Swiftships further argues that Hadassa's action for conversion has prescribed as it is a delictual action subject to a liberative prescription of one year under La. C.C. art. 3492.
Under Louisiana law, conversion is committed when any of the following occurs:
1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; ...