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CMP, LLC v. Railway Spine Productions, LLC

United States District Court, E.D. Louisiana

February 8, 2017

CMP, LLC
v.
RAILWAY SPINE PRODUCTIONS, LLC, ET AL.

         SECTION F

          ORDER AND REASONS

          MARTINI L.C. FELDMAN U.S. DISTRICT JUDGE

         Before the Court are the parties' cross motions for summary judgment on three issues. The plaintiff, CMP, claims that it is owed “Overage Fees, ” “Site Representative Fees, ” and reasonable attorney's fees and expenses pursuant to a contract entered into by the parties. The defendants, Railway Spine Productions, LLC (“RSP”), Seven Curses Productions, LLC (“SCP”), Abel Meet Cain Productions, LLC (“AMCP”), and Home Box Office, Inc. (“HBO”), seek summary judgment in their favor on the same issues. For the reasons that follow, the plaintiff's motion is DENIED. The defendants' motion is GRANTED in part and DENIED in part.

         Background

         This litigation arises out of a production company's use of private property to film scenes for a television series.

         CMP owns rural property in the Town of Jean Lafitte, located in Jefferson Parish, Louisiana. RSP, a television production company, entered into a Location Agreement with CMP to use its property from June to July 2015 to film scenes for a television series entitled Quarry. According to the Location Agreement dated May 12, 2015, the filming would occur from June 9, 2015 to July 28, 2015. This time period consisted of set preparation, shooting, and wrap periods. During set preparation, from June 9, 2015 to July 6, 2015, RSP was to prepare the “Vietnam Village, ” “Marine Barracks, ” and “Heroin Dock” sets. RSP would then shoot the scenes on July 7, 8, 9, and 13, 2015. The wrap period, during which property and personnel would be removed from CMP's property, was slated to last from July 14, 2015 to July 28, 2015. The Agreement obligated RSP to pay CMP $8, 000 for prep, another $8, 000 for wrap, and $7, 500 for each day of shooting.

         The Agreement also provided for CMP to receive additional fees if certain contingencies came to pass. According to the Agreement, RSP would owe CMP $1, 500 a day in “Overage” for “each day property is occupied beyond the term.” In no other section of the Agreement or its addendum was this “Overage Fee” provision further clarified, or even referenced. The Agreement also bound CMP to pay $100 per day for each day CMP's “site representative” assisted in opening and closing the property. This representative, per the Agreement, functioned as a “liaison between [CMP] and [RSP] and its designees.” Thomas A. “Tac” Carrere, the sole officer of CMP and owner of the Jean Lafitte property, admits that he requested the language of these provisions be included in the Location Agreement.

         Paragraph 2 of the Location Agreement empowered RSP to, “after acquiring any necessary permits, bring any personnel, equipment, props and temporary sets onto the Property” it deemed necessary or beneficial to the filming. However, Paragraph 2 also provided that RSP “shall completely remove” all such property upon the project's culmination (emphasis in Agreement). All sets, props, and equipment, the Agreement further stipulated, were to remain RSP's property “unless otherwise agreed to in writing.”

         Aside from its duty to completely remove anything it brought onto CMP's property by the expiration of the term, RSP further agreed to “provide all clean up” and “return the Property as received (reasonable wear and tear and hidden and latent defects excepted)” pursuant to Paragraph 7 of the Agreement. That paragraph additionally obligated RSP to supply any repair costs in an amount mutually agreed upon by RSP and CMP.

         An addendum to the Agreement later permitted RSP to clear and burn brush, weeds and trees on the property as part of its creation of a “Vietnam Village” set, provided RSP remove its set pieces and any resultant burnt debris by the end of the term. RSP also agreed to lay down up to three loads of gravel on the property's existing roads to counteract any wear and tear its activity would inflict.

         To complete preparation and construction tasks for the shoot, RSP enlisted Barrier Resources LLC, a construction company wholly owned by Carrere. In early July, just days before filming began, Barrier Resources deposited river sand on a small tract of the property which heavy rains had rendered impassable.

         On or around July 20, 2015, in accordance with its contractual obligations, RSP had removed most its personnel and equipment. However, RSP had left behind refuse, construction materials, equipment, and portions of temporary sets and props, as well as river sand. RSP additionally left intact on the property a small hut erected for the shooting, allegedly at the behest of Carrere for his children. Carrere admits suggesting that RSP leave the hut, but he nevertheless suggests that it remains RSP's property, since the parties never agreed to transfer ownership of the hut in writing. According to CMP, the hut, the river sand and remnants from RSP's sets remain on the property.

         CMP submitted to RSP its contractor's invoice in the amount of $32, 145.74 for remaining clean up and damage repair. Mickey Lambert, on behalf of RSP, agreed with the scope of the work contemplated by the invoice, but not the price; he countered with changes amounting to a total of $19, 214.50. On July 31, 2015, CMP submitted its contractor's revised invoice for clean up in the amount of $19, 400.

         The parties mutually agreed on that amount for cleanup. Lambert, however, told CMP that CMP must first execute a release before RSP paid the $19, 400. CMP fretted that the release might shield RSP from mitigating any penalties imposed by regulatory authorities for the failure to acquire the necessary regulatory permits before the deposit of river sand onto CMP's property in early July. As a result, CMP refused to sign the release.[1] The parties reached an impasse.

         On April 22, 2016, CMP sued RSP, SCP, AMCP, and HBO in state court for breach of contract, defamation, and trespass. In its petition, CMP listed five breaches of the Agreement: (1) a failure to obtain necessary permits prior to occupying CMP's property, in particular, before depositing river sand on CMP's wetlands; (2) a failure to completely remove RSP's property from the site and failure to restore CMP's property to its pre-work condition; (3) a failure to pay the Site Representative Fee ($100/day) since June 18, 2015; (4) a failure to pay the Overage Fee ($1, 500/day) from July 29, 2015 due to RSP's continuing occupation of the property; and (5) an attempt to impose unauthorized and overreaching conditions on CMP in return for their obligation to pay for the cleanup of CMP's property. CMP also sought to recover a portion of the income generated by Quarry. On May 23, 2016, the defendants removed the case to this Court, invoking the Court's diversity jurisdiction.[2] The defendants moved to dismiss CMP's defamation claim and its claim to recover income from Quarry. In its October 6, 2016 Order and Reasons, this Court granted the motion, dismissing the plaintiff's defamation claim and claim seeking a percentage of income derived from the production of Quarry. In early November, the parties agreed to settle CMP's claim for a breach of the obligation to clean and restore its property. The settled claim entails only RSP's alleged duty of

removing debris and partial sets and props left behind on CMP's Property, removal of dead and burned trees on CMP's Property caused by RSP's activities thereon, levelling grading and applying limestone to roads on CMP's Property damaged by RSP's equipment, and repairing a levee damaged by RSP's equipment on CMP's Property.

         CMP now seeks partial summary judgment. CMP claims that it has established, as a matter of law, that: (1) pursuant to the Location Agreement RSP is liable for $1, 500 a day in “Overage Fees” for every day since July 28, 2015 during which RSP has failed to “completely remove” its property from CMP's property and to complete its repair and refurbishment obligations; (2) pursuant to the Agreement, RSP owes CMP $100 a day in “Site Representative Fees” for every day between June 18, 2015 and July 28, 2015; and (3) RSP is liable for reasonable attorney's fees and expenses incurred by CMP in the enforcement of RSP's obligation to pay the aforementioned Overage and Site Representative Fees under the Location Agreement. The defendants, in their cross motion, assert that the record supports dismissal of all three claims.

         I.

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