Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fisk Electric Co. v. Winter Park Contruction Co.

United States District Court, E.D. Louisiana

June 11, 2015



IVAN L.R. LEMELLE, District Judge.


Before the Court is a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss by Defendant, Winter Park Construction Company ("Winter Park").[1] Plaintiff, Fisk Electric Company ("Fisk"), has filed a response in opposition.[2] The motion, set for submission on June 10, 2015, is before the Court, on the pleadings, without oral argument. Accordingly, and for the reasons enumerated below,

IT IS ORDERED that the Motion to Dismiss is GRANTED, in part, and DENIED, in part.


This action filed pursuant to the Court's diversity jurisdiction under 28 U.S.C. ยง 1332, et seq., arises out of a contract dispute. Plaintiff, Fisk Electric Company ("Fisk") entered into an agreement with Benetech, LLC ("Benetech") wherein Fisk would provide electrical work on a project.[3] Benetech contracted as a primary contractor with the U.S. Army Corps of Engineers ("USACE") on a drainage project.[4] Benetech was subsequently removed as a contractor, and replace by defendant, Winter Park Construction Company ("Winter Park").[5] On or around May 31, 2012, Fisk and Winter Park entered into an agreement for the completion of outstanding work on the project ("Agreement"), which was comprised of a subcontractor agreement and a release and assignment agreement.[6]

Fisk claims that under the terms of the Release and Assignment agreement, it would release claims against the bond company in exchange for Winter Park paying all outstanding invoices for work completed on the project and for damages incurred before May 31, 2012; however, due to a miscalculation on the part of both parties, Winter Park failed to pay $146, 276.00 on its outstanding invoice, or for additional damages in the amount of $24, 292.79.[7] Further, as a result of project delays, Fisk incurred additional expenses in the amount of $306, 203.00. Lastly, Fisk contends that Winter Park received payment from the project owner, USACE, for work completed by Fisk, which payment has not been transmitted to Fisk.[8] On March 4, 2015, Fisk filed the instant action, asserting claims for breach of contract and unjust enrichment under Louisiana law, and seeking $476, 772.04, plus interest and damages under the Agreement, as well as costs, penalties, and attorneys' fees. Here, Winter Park moves the Court for dismissal of the unjust enrichment claims under Fed.R.Civ.P. 12(b)(6). Winter Park also contends that under Louisiana law, Fisk is not entitled to attorneys' fees and/or penalties.


a. Fed.R.Civ.P. 12(b)(6) Standard for Dismissal

Federal Rule of Civil Procedure 12(b)(6) allows for dismissal of an action "for failure to state a claim upon which relief can be granted." While a complaint attacked by a Rule 12(b)(6) motion need not contain detailed factual allegations, in order to avoid dismissal, the plaintiff's factual allegations must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. ( citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In determining whether a plaintiff has pled factual allegations to state a claim that is plausible, the Court may not evaluate the plaintiff's likelihood of success but must construe the complaint liberally and accept all of the plaintiff's factual allegations in the complaint as true. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2009); see also Twombly, 550 U.S. at 555 (factual allegations, which taken as true, must be enough to raise a right to relief above the speculative level, even if doubtful in fact).

b. Whether Fisk States a Claim for Unjust Enrichment under Louisiana Law

Federal jurisdiction in this case is premised on diversity of citizenship. Therefore, Louisiana substantive law applies, including its principles of contract interpretation. Bayou Steel Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 642 F.3d 506, 509 (5th Cir. 2011). The parties do not dispute the interpretation of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.