United States District Court, E.D. Louisiana
ORDER AND REASONS NATURE OF MOTION AND RELIEF
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss Counterclaim
(Rec. Doc. 21) filed by California First
National Bank (“CalFirst”). Boh Bros.
Construction Company (“Boh Bros.”) opposes the
motion. (Rec. Doc. 24) CalFirst submitted a reply in response
to the opposition. (Rec. Doc. 27.) Having considered the
motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be
GRANTED in part and DENIED
AND PROCEDURAL BACKGROUND
litigation arises from Boh Bros.' allegedly unpaid
invoices for work performed for Noranda Alumina, LLC
(“Noranda”). According to Boh Bros., on September
17, 2015, Boh Bros. and Noranda entered into an agreement
whereby Boh Bros. would provide labor, supervision,
equipment, and materials to procure, fabricate, and install
two breasting dolphin pile and fender assemblies as well as
three mooring buoys and anchor piles (“Noranda
Project”) at Noranda's Gramercy, Louisiana facility
(“Noranda facility”). (Rec. Doc. 20 at 9.) Boh
Bros. alleges that shortly after commencing work at the
Noranda facility it was advised by Noranda that CalFirst was
obligated to pay for Boh Bros.' invoices on the Noranda
Project and specifically instructed Boh Bros. to
send its invoices to CalFirst. Boh Bros. allegedly requested
written confirmation of this arrangement and received an
email from CalFirst confirming that CalFirst would pay Boh
Bros.' invoices for the Noranda Project. Boh Bros.
submitted its first two invoices to CalFirst, and CalFirst
paid them. Boh Bros. alleges that it mobilized its labor
force to Noranda's facility to complete the Noranda
Project after receipt of the payment. Thereafter, Boh Bros.
submitted additional invoices to CalFirst, but CalFirst did
not pay them. Noranda has since filed for bankruptcy, and a
number of its vendors with contracts to work on Noranda's
facility went unpaid, including Boh Bros.
15, 2017, CalFirst filed the present motion to dismiss Boh
Bros.' counterclaim. The counterclaim asserts three
causes of action against CalFirst: breach of contract,
negligent misrepresentation, and detrimental reliance. In
total, Boh Bros. seeks $778, 636.14 for work it performed.
CalFirst argues that it is not contractually obligated to pay
Boh Bros.' unpaid invoices, that it did not owe a duty to
Boh Bros. to disclose Noranda's financial situation, and
that Boh Bros. did not detrimentally rely on CalFirst's
alleged representations and actions. (Rec. Doc. 21-1.) In
response, Boh Bros. argues that it has adequately alleged all
three of its claims, and CalFirst's motion to dismiss
should be denied. CalFirst's motion is now before the
Court on the briefs and without oral argument.
the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005) (internal citations
omitted). The allegations “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1).
Rule 12(b)(6), a claim may be dismissed when a plaintiff
fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books
A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(citing McConathy v. Dr. Pepper/Seven Up Corp., 131
F.3d 558, 561 (5th Cir. 1998)). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting 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.” Id. 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, 232 (5th Cir. 2009);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The court is not, however, bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
556 U.S. at 678. “[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.”
Taylor, 296 F.3d at 378.
Breach of Contract
Louisiana law the formation of a contract requires capacity,
consent, a certain object, and a lawful cause. La Bo J.
P'ship v. La. Lottery Corp., 2008-1279 (La.App. 1
Cir. 1/30/09), 6 So.3d 191, 194. Consent requires a meeting
of the minds between the parties through offer and
acceptance. Id. Unless the law prescribes a certain
formality as to form, a contract through offer and acceptance
may be perfected orally, in writing, or by action or inaction
that under the circumstances is clearly indicative of
consent. Jarreau v. Quackenbush, 687 F.Supp.2d 606,
611 (M.D. La. Feb. 2, 2010) (citations omitted); Wilson
v. Two SD, LLC, 2015-0959 (La.App. 1 Cir. 12/23/15), 186
So.3d 103, 109. Further, “[w]hen consent is not
express, or when the law creates no presumption of consent,
the trial judge is to ascertain, from the facts and
circumstances, whether the parties' consent is to be
implied from them.” Knect v. Bd. of Trs. for State
Colls. & Univs. & N.W. State Univ., 591 So.2d
690, 694 (La. 1991).
Bros.' counterclaim alleges that Noranda advised Boh
Bros. that CalFirst would be contractually obligated to pay
Boh Bros.' invoices for the Noranda Project. Boh
Bros.' further alleges that it was instructed to send all
of its invoices directly to CalFirst. (Rec. Doc. 20 at 10.)
Boh Bros. alleges that it sought and received written
confirmation of this arrangement from CalFirst. Id.
at 10-11. Boh Bros. further alleges that CalFirst reconfirmed
this agreement by actually paying the first two invoices Boh
Bros. submitted. Id. Thus, Boh Bros. has alleged
that it asked CalFirst who was responsible for paying Boh
Bros. invoices, CalFirst told Boh Bros. to send its invoices
to CalFirst, and CalFirst subsequently paid these invoices.
Accepting the allegations in Boh Bros.' counterclaim as
true, it is at least plausible that CalFirst confirmed, in
writing and by payment of Boh Bros.' first two invoices,
that it was contractually obligated to pay Boh Bros.'
invoices. CalFirst argues that the email exchange containing
this alleged agreement demonstrates that it was only
responsible for paying the first two invoices, which were
apparently attached to the email, and that it in fact paid
these invoices. While this may ultimately be true, the Court
finds that as alleged and accepted as true, Boh Bros.'
counterclaim contains a plausible claim for breach of