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84 Lumber Co. v. Paschen

United States District Court, E.D. Louisiana

August 8, 2017


         SECTION “R” (5)



         Defendant and Third-Party Plaintiff F.H. Paschen, S.N. Nielsen & Associates, LLC (“Paschen”) moves for judgment on the pleadings on J & A Construction Management Resources Company Inc.'s (“J & A”) counterclaim against Paschen.[1] For the following reasons, the Court grants Paschen's motion.

         I. BACKGROUND

         This case arises out of two school construction projects in New Orleans, Louisiana, the Mildred Osborne Project and the South Plaquemines Project.[2]Paschen was the general contractor on both projects. Paschen subcontracted part of the work on the projects to J & A, and J & A subcontracted portions of its obligations to 84 Lumber Company.[3] The projects were backed by Continental Casualty Company, Safeco Insurance Company of America, and Fidelity and Deposit Company of Maryland as sureties.

         On July 5, 2012, 84 Lumber sued Paschen and the surety companies, alleging that it was not paid in full for work performed under its Master Service Agreement with J & A.[4] It also alleged that it was entitled to payment for materials and for additional work performed outside of the Master Service Agreement. Paschen answered 84 Lumber's complaint and added J & A as a third-party defendant.[5] J & A filed an answer asserting counterclaims against Paschen and 84 Lumber.[6]

         The case was stayed for nearly three years while the parties attempted to resolve their claims through arbitration.[7] On January 13, 2016, this case was reassigned from Judge Berrigan's chambers to this Court for all further proceedings.[8] On May 5, 2016, the Court granted 84 Lumber's motion to lift the stay in this case.[9]

         With the case reopened, Paschen now moves for judgment on the pleadings on J & A's breach of contract counterclaim.[10] J & A has not filed a response.


         A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is appropriate if the matter can be adjudicated by deciding questions of law rather than factual disputes. Brittan Commc'ns Int'l Corp. v. Sw. Bell Tel. Co., 312 F.3d 899, 904 (5th Cir. 2002). It is subject to the same standard as a motion to dismiss under Rule 12(b)(6). Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         A legally sufficient complaint must establish more than a “sheer possibility” that plaintiff's claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.


         Paschen moves for judgment on the pleadings to dismiss J & A's breach of contract counterclaim.[11] All of the breach of contract allegations against Paschen are located in paragraphs 67 through 71 under the breach of contract claim heading.[12]

         Under Louisiana law, a plaintiff must prove three essential elements to prevail on a claim for breach of contract: (1) the parties consented to be bound through offer and acceptance; (2) the obligor failed to perform a conventional obligation (the breach); and (3) the failure to perform resulted in damages to the obligee. La. Civ. Code arts. 1927, 1994; see also Hendrickson v. Meeks Disposal Co., No. ...

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