United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is the Motion for Summary Judgment (Doc.
50) filed by Defendants Morel G. Lemoine
Distributors, Martin G. Lemoine, and Veronica Lemoine. The
Motion seeks the dismissal of all claims brought against
these Defendants by Plaintiff due to the expiration of the
applicable prescriptive period. (Doc. 50). Plaintiff filed a
response, Defendants filed a reply, and Plaintiff filed a
sur-reply. (Doc. 54; Doc. 55; Doc. 60). Oral argument is not
necessary. For the following reasons, the Motion is
alleges that from 1995 through 1998, Defendants Martin G.
Lemoine, Veronica Lemoine, and Keith James Glaser defrauded
Plaintiff of up to $2 million through Plaintiffs dealings
with Defendants' company, Moral G. Lemoine Distributors
("MGLD"), which is also named in the Complaint.
(See Doc. 1 at pp. 1-4; Doc. 54 at p. 1). From 1995
to 1998, Martin G. Lemoine served as the president and CEO of
MGLD. (Doc. 1 at p. 3). His wife, Defendant Veronica Lemoine,
was also employed by MGLD. (M)Defendant Keith James
Glaser was employed by MGLD as a supervisor of
the drivers that transport fuel. (See Id. at pp.
3-6; Doc. 54 at p. 2).
alleged fraud stemmed from a contract that Plaintiff entered
into with Defendants whereby MGLD agreed to purchase,
deliver, and provide fueling services to Plaintiff at its
Livonia, Louisiana railyard. (Doc. 1 at p. 2). As part of the
agreement, Plaintiff agreed to reimburse the costs of
purchasing and transporting the fuel. (Id.).
Pursuant to the agreement, "field tickets, " a type
of receipt, would indicate the amount of fuel that was
provided to a particular vehicle and the cost to be paid by
Plaintiff. (Doc. 54 at pp. 1-2). An invoice would be
generated by Defendants based on the field tickets.
(Id. at p. 2).
alleges that MGLD's drivers were instructed by company
officials to write the actual amount fueled in a manifest
that was separate from the field tickets. (Id.).
Defendant Keith Glaser would then allegedly prepare
fraudulent field tickets containing phantom amounts of fuel
that "padded" the field tickets so that MGLD
received more money from Plaintiff than what was due.
(Id.). The invoices would be prepared according to
the phony numbers, rather than the genuine numbers written in
the manifests. (Id.). In response to this scheme,
Plaintiff filed suit against Defendants on July 12, 2004,
almost six years after the alleged scheme had occurred. (See
Doc. 1 at p. 3).
Plaintiff first received a tip about the scheme in 1998 from
District Attorney Ricky Ward of the 18th Judicial District of
Louisiana. (Doc. 50-5 at p. 2). District Attorney Ward
contacted Jim Watson, who was employed by Plaintiff as a
Union Pacific Railroad Police Officer  working at the Livonia
facility. Ward claimed that Defendant Martin G. Lemoine was
"ripping off Plaintiff by "padding" the fuel
bills. (Id. at pp. 1-2). After receiving this
information, Watson and Union Pacific Railroad Company
Supervisory Police Officer Paul Miller Spoke with Paul
Crocker, the Plaintiffs director of Locomotive Management in
Livonia. (See id.) Crocker informed the officers
that it would be very difficult to continue to steal from
Plaintiff with the new process Plaintiff implemented since
that time. (Id.).
receiving the information in 1998, Plaintiffs officers did
nothing. (See Doc. 50-6 at p. 29:24-25; Id.,
30:1-8). Plaintiff did not attempt to investigate the matter.
(Id.). Nor did Plaintiff invoke its contractual
right to inspect the books of MGLD. (See Id.; Doc.
50-3 at p. 7).
in July of 2003, Plaintiff initiated an investigation of the
alleged fraudulent activity. (Doc. 54 at p. 1). At this time,
Rex Averill, a former employee of MGLD, provided Plaintiff
with documents that revealed the scheme. (Doc. 54 at pp.
1-2). In July of 2004, almost a year after Averill presented
additional evidence of the fraud, Plaintiff filed suit. (Doc.
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and that the
movant is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(a). "[W]hen a properly supported motion
for summary judgment is made, the adverse party must set
forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986) (quotation marks and footnote
determining whether the movant is entitled to summary
judgment, the Court "view[s] facts in the light most
favorable to the non-movant and draw[s] all reasonable
inferences in [its] favor." Coleman v. Rous. Indep.
Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). At this
stage, the Court does not evaluate witness credibility, weigh
evidence, or resolve factual disputes. Int'l
Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263
(5th Cir. 1991). However, if the evidence in the record is
such that a reasonable jury, drawing all inferences in favor
of the non-moving party, could arrive at a verdict in that
party's favor, the motion for summary judgment must be
denied. Id. On the other hand, the non-movant's
burden is not satisfied merely upon a showing of "some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a
scintilla of evidence." Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
summary judgment is appropriate if, "after adequate time
for discovery and upon motion, [the non-movant] fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 411 U.S. 317, 322 (1986). Summary
judgment will lie only "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits if any, show that there is no genuine issue
as to any material fact, and that the moving party is
entitled to judgment as a matter of law." Sherman v.
Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).