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.

84 Lumber Co. v. Paschen

United States District Court, E.D. Louisiana

September 14, 2017


         SECTION “R” (5)



         Defendants F.H. Paschen, S.N. Nielsen & Associates, LLC (“Paschen”), Continental Casualty Company (“Continental”), Safeco Insurance Company of America, and Fidelity and Deposit Company of Maryland (collectively, “defendants”) move for judgment on the pleadings[1] as to Count Six of the second amended complaint.[2] For the following reasons, the Court grants in part and denies in part defendants' motion.

         I. BACKGROUND

         This case arises out of two school construction projects in Louisiana.[3]Paschen entered into an agreement with the Louisiana Department of Education to build a new elementary school at the Mildred Osborne School in New Orleans (“Osborne Project”).[4] Paschen also entered into a contract with the Plaquemines Parish School Board to build the South Plaquemines High School (“South Plaquemines Project”).[5] On both projects, Paschen was the general contractor.[6] Both projects were subject to the provisions of the Louisiana Public Works Act (“LPWA”), La. R.S. § 38:2241, et seq., and therefore each project required the general contractors to post payment bonds before construction could begin.[7] Continental, Safeco, and Fidelity (collectively, “Sureties”) issued the required bonds.[8]

         Paschen subcontracted a portion of both projects to J & A Construction Management Resources Company, Inc. (“J & A”).[9] J & A in turn subcontracted a portion of its work on both projects to 84 Lumber.[10] 84 Lumber alleges that Paschen and J & A have failed to compensate it for its work on the projects.[11] As relevant here, 84 Lumber filed three statements of claim under the LPWA. See La. R.S. § 38:2242(B). First, on November 2, 2011, 84 Lumber filed a statement of claim in the amount of $3, 507.16 for materials supplied on the Osborne Project.[12] Second, on June 13, 2012, 84 Lumber filed a statement of claim in the amount of $808, 520.39 for work performed on the Osborne Project.[13] Third, also on June 13, 2012, 84 Lumber filed a statement of claim in the amount of $1, 042, 080.09 for work performed on the South Plaquemines Project.[14] As the Court explained in an earlier order, 84 Lumber did not provide proper notice of the June 2012 statements of claim.[15] Specifically, although the statute required 84 Lumber to provide written notice by registered or certified mail to Paschen, see La. R.S. § 38:2247, 84 Lumber provided notice by email to Paschen's counsel.[16]Paschen and Continental deposited bonds as security for 84 Lumber's statements of claim to induce the project owners to release payment to Paschen.[17] See La. R.S. § 38:2242.2. Release bonds for the two Osborne Project statements of claim were deposited on June 27, 2012, and January 4, 2013.[18] The release bond for the South Plaquemines Project statement of claim was deposited on August 3, 2012.[19]

         On July 5, 2012, 84 Lumber sued Paschen and the Sureties, alleging that 84 Lumber was not paid in full for work performed on the Osborne and South Plaquemines Projects.[20] 84 Lumber sued under the LPWA, seeking payment on its June 2012 statements of claim from both Paschen and the Sureties (Counts One and Two).[21] 84 Lumber also brought a claim of unjust enrichment.[22] On February 5, 2013, 84 Lumber amended its complaint to add a breach of contract claim and to seek payment for materials provided and extra work performed on the projects.[23] 84 Lumber again amended its complaint on April 17, 2017, seeking recovery from the release bonds (Count Six).[24]

         The Court granted summary judgment against 84 Lumber on Counts One and Two, its initial LPWA claims, because its June 2012 statements of claim lacked proper notice.[25] The Court also granted summary judgment on the unjust enrichment claim.[26] Additionally, the Court dismissed 84 Lumber's claim for extra work performed on the projects.[27] Defendants now move for judgment on Count Six, 84 Lumber's release bond claim.[28] 84 Lumber responded, [29] defendants replied, [30] and 84 Lumber filed a sur-reply.[31]


         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., 313 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, plaintiffs must plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. 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, 244 (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. Twombly, 550 U.S. at 555. 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.


         Like Counts One and Two, which were subject to an earlier motion for summary judgment, Count Six seeks payment for the work performed and materials supplied by 84 Lumber on the Osborne and South Plaquemines Projects. Count Six alleges a right to payment from Paschen and Continental by virtue of the release bonds.[32] Defendants principally contend that the release bond claim is not viable in light of the Court's order granting summary judgment on 84 Lumber's LPWA claims in Counts One and Two.[33]

         Additionally, defendants argue that 84 Lumber's release bond claims are perempted by Section 2247's one-year limitation period.[34]

         A. 84 Lumber's Release Bond Claim Is Derivative of Its Earlier-Asserted LPWA Claims The purpose of the LPWA is “to protect those contributing to the construction, alteration, or repair of public works.” Pierce Foundations, Inc. v. Jaroy Constr., Inc., 190 So.3d 298, 306 (La. 2016). To accomplish this purpose, the LPWA first requires that the contractor for projects like the Osborne and South Plaquemines Projects post a bond “for the payment by the contractor or subcontractor to claimants as defined in R.S. 38:2242.” Id. at 301 (quoting La. R.S. § 38:2241(A)(2)). Section 2242 defines a “claimant” as:

any person to whom money is due pursuant to a contract with the owner or a contractor or subcontractor for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works . . . .

La. R.S. § 38:2242(A). The LPWA “further establishes a means for asserting a claim”:

Any claimant may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done.

Pierce, 190 So.3d at 301-02 (footnote omitted) (quoting La. R.S. § 38:2242(B)). But before a subcontractor not in privity with the general contractor may assert a right of action against the general contractor on the bond, the subcontractor must provide proper notice. La. R.S. § 38:2247; see also Elec. Supply Co., Inc. v. Great Am. Ins. Co., 973 So.2d 827, 830 (La.App. 2 Cir. 2007) (“[T]he notice referenced in [Section] 2247 is to be given to the contractor to preserve the right of action against the contractor or the surety.”).

         In effect, these provisions “give certain classes of persons not enjoying privity of contract with the general contractor or with the governing authority a claim nevertheless against the general contractor and his surety and in some instances a claim against the governing authority itself.” Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 71 (La. 1990); see also Pierce, 190 So.3d at 301 (noting that the LPWA grants subcontractors “a privilege against the unexpended fund in the possession of the public entity with whom the original contract had been entered into, ” instead of a lien on the public work itself (quoting Wilkin, 561 So.2d at 70)).

         The public authority that owns the project becomes liable for these claims if it “makes final payment to the contractor without deducting the total amount of all outstanding claims . . . or without obtaining a bond from the contractor to cover” that amount. La. R.S. § 38:2242(D). To avoid the public authority's liability, “any interested party may deposit” a bond, cash, certified funds, or a certificate of deposit up to 125% of the amount asserted in the claim. Id. § 38:2242.2(A). This deposit “guarantee[s] payment of the obligation secured by the privilege, ” and cancels the statement of claim in the mortgage records. Id. § 38:2242.2(A)-(B). According to 84 Lumber, Paschen and Continental deposited three release bonds under this provision to induce the project owners to release payment without incurring the risk of liability under Section 2242(D).[35]

         84 Lumber now seeks to recover from these release bonds instead of the payment bond. Count Six of the second amended complaint purports to assert an additional right of action arising out of the release bonds.[36] But 84 Lumber fails to cite any legal authority recognizing a right to recover from release bonds that is independent of its right of action under the LPWA.

         The statute itself does not provide an independent right of action for subcontractors to recover from release bonds. To the contrary, the LPWA describes only one process for filing a statement of claim. See La. R.S. § 38:2242(B). If such a statement is filed, Section 2242.2 permits a contractor (or any other interested party) to deposit a bond or other security in order “to guarantee payment of the obligation secured by the privilege.” Id. ยง 38:2242.2(A). Thus, the statutory framework suggests ...

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.