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CMP, LLC v. Railway Spine Productions, LLC

United States District Court, E.D. Louisiana

April 5, 2017


         SECTION F



         Before the Court is a motion for summary judgment filed by defendants, Railway Spine Productions, LLC (“RSP”), Seven Curses Productions, LLC (“SCP”), Abel Meet Cain Productions, LLC (“AMCP”), and Home Box Office, Inc. (“HBO”) in which they seek judgment as a matter of law dismissing the remaining claims of the plaintiff, CMP, LLC (“CMP”). For the reasons that follow, the motion is GRANTED in part and DENIED in part.


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

         CMP owns rural property, consisting of federally-designated wetlands, 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 a portion of 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.” 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 is the manager of CMP, which owns the Jean Lafitte property.[1] Carrere admits that he requested the language of these provisions be included in the Location Agreement.

         Also at Carrere's request, Paragraph 2 of the Location Agreement obliges RSP to acquire “all necessary permits” before using the property.[2] 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 property 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.[3]

         To complete preparation and construction tasks for the shoot, RSP enlisted Barrier Resources LLC, a construction company managed by Carrere and of which he is a member. 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.[4] RSP paid a total of $117, 886.76 to Barrier Resources for all of its work during filming.

         On or around July 20, 2015, in accordance with its contractual obligations, RSP had removed most of its personnel and equipment. However, RSP had left behind refuse, construction materials, equipment, and portions of temporary sets and props. The river sand also remained behind on the property. 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 because the parties never agreed in writing to transfer ownership of the hut. According to CMP, the hut, the river sand, and remnants from RSP's sets remained 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. During the negotiations surrounding clean up, according to RSP, CMP never demanded that RSP remove the river sand.[5] On July 31, 2015, CMP submitted its contractor's (Barrier Resource'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 was concerned 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.[6] 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. The defendants later filed a third party complaint against Thomas Carrere and Barrier Resources.[7]

         The defendants first moved to dismiss CMP's defamation claim and its claim to recover income from Quarry. In an October 6, 2016 Order and Reasons, this Court granted the motion, dismissing the plaintiff's defamation claim and its claim seeking a percentage of income derived from the production of Quarry. In early November, the parties agreed to settle CMP's claim for 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.

         Meanwhile, CMP moved for partial summary judgment. CMP claimed that it demonstrated, 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 filed a cross-motion for partial summary judgment, asserting that the record supported dismissal of the overage fee, site representative, and attorney's fees claims. On February 9, 2017, the Court denied the plaintiff's motion for partial summary judgment and granted in part and denied in part the defendants' motion. The Court determined that the plaintiff was not entitled to overage fees, but that factual controversies precluded summary judgment on the issues of the plaintiff's entitlement to site representative fees and legal fees. See Order and Reasons dtd. 2/9/17.

         Now the defendants seek summary relief on the plaintiff's remaining claims.



         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative, " summary judgment is appropriate. Id. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must "resolve factual controversies in favor of the nonmoving party, " it must do so "only where there is an actual controversy, that is, when both parties have submitted evidence ...

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