United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON UNITED STATES DISTRICT JUDGE.
the Court is a 12(b)(6) motion to dismiss filed by Reel Pipe,
LLC and C-Logistics, LLC. R. Doc. 20. USA Comserv, Inc.
opposes. R. Doc. 23. Having considered the parties'
briefs and the applicable law, the Court now issues this
Order and Reasons.
dispute arises out of a time charter between Reel Pipe, LLC
(“Reel Pipe”) and USA Comserv, Inc. (“USA
Comserv”). In September 2017, USA Comserv chartered
Reel Pipe's vessel, the M/V CAROL CHOUEST (the
“Vessel”) to transport 850, 000 gallons of fuel
to Puerto Rico. Under the terms of the Charter, USA Comserv
was to pay (1) charter hire to Reel Pipe at a rate of $20,
000 per day, (2) $1, 200 per day for C-Logistics LLC, an
affiliate of Reel Pipe, to coordinate the receiving, loading,
and manifesting of all equipment, and (3) certain other
defined expenses. If Reel Pipe paid for any of the expenses
designated for USA Comserv's account, USA Comserv was
obligated to reimburse Reel Pipe at its cost plus 10%.
Vessel was delivered to USA Comserv on October 2, 2017 and
redelivered to Reel Pipe on October 30, 2017, for a total
charter period of 28.17 days. Reel Pipe invoiced USA Comserv
for a total of $303, 008.33 for daily charter hire and other
costs and expenses under the Charter, but has not been paid.
Accordingly, Reel Pipe sued USA Comserv for breach of the
Charter and under Louisiana's Open Account statute.
answer, USA Comserv asserts counterclaims against Reel Pipe
and third-party claims against C-Logistics, LLC
(“C-Logistics”). USA Comserv alleges that Reel
Pipe breached the Charter by delivering a vessel that was
unfit for its intended voyage and by failing to obtain
necessary certifications and regulatory permitting.
Specifically, USA Comesrv claims that Reel Pipe represented
that the Vessel could transport the required 850, 000 gallons
of fuel by storing additional fuel in its liquid mud tanks -
which required Coast Guard approval. According to USA
Comserv, Reel Pipe and C-Logistics indicated that the
Vessel's liquid mud tanks had already been inspected and
would easily obtain approval, and that the Coast Guard
permitting was merely a formality.
Pipe and C-Logistics never secured Coast Guard approval to
transport the fuel in the Vessel's liquid mud tanks,
limiting the amount of fuel that could be transported to
Puerto Rico. Additionally, USA Comserv was not allowed to
offload any fuel upon arrival in Puerto Rico because the
Vessel lacked the required certificates, and the fuel was
sold offshore at a loss. USA Comserv later learned that (1)
Reel Pipe did not apply for authorization to carry fuel in
the Vessel's liquid mud tanks until after the
Vessel returned from Puerto Rico, and (2) the Vessel's
liquid mud tanks did not meet the Coast Guard's
requirements and in fact never would have been approved to
Comserv further alleges that it entered into a separate
agency agreement with C-Logistics, in which C-Logistics
agreed to coordinate all logistics and related services under
the Charter. USA Comserv claims that C-Logistics failed to
perform these duties and, as a result, Reel Pipe has
attempted to double bill USA Comserv - once through its
affiliate C-Logistics for the $1, 200 per day logistics fee,
and again by seeking an additional 10% surcharge on services
that should have been performed by C-Logistics. Additionally,
USA Comserv avers that C-Logistics owed it a duty to obtain
all necessary permits and certificates for the Vessel's
voyage to Puerto Rico and for unloading and discharging fuel
in Puerto Rico. Finally, USA Comserv alleges that as its
agent, C-Logistics owed it a duty to use commercially
reasonable efforts to contract with suppliers of goods and
services at competitive market rates, but instead engaged in
self-dealing and contracted with affiliates of Reel Pipe and
C-Logistics at rates that were higher than other
USA Comserv brings claims against Reel Pipe and C-Logistics
for breach of contract (Counts 1 and 5), recognition of its
maritime lien on the Vessel (Count 2), negligent
misrepresentation (Count 3), violation of the Louisiana
Unfair Trade Practices Act (Count 6) and unjust enrichment
(Count 7). Reel Pipe and C-Logistics now move to
dismiss Counts 2, 5, 6, and 7 under Federal Rule of Civil
LAW AND ANALYSIS
Federal Rules of Civil Procedure permit a defendant to seek a
dismissal of a complaint based on the “failure to state
a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should not be dismissed for failure to
state a claim “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v.
Gibson, 355 U.S. 41, 47 (1957).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility 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. The district
court must construe facts in the light most favorable to the
nonmoving party and must accept as true all factual
allegations contained in the complaint. Iqbal, 556
U.S. at 678. A court “do[es] not accept as true
conclusory allegations, unwarranted factual inferences, or
legal conclusions.” Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005).
Pipe and C-Logistics move to dismiss Counts 2, 5, 6, and 7.