United States District Court, E.D. Louisiana
LOGAN LANDRY, ET AL.
POSIGEN, INC., ET AL.
ORDER AND REASONS
PosiGen, Inc. et al filed a motion for summary judgment on
liability. Rec. Doc. 94. Plaintiffs filed a response in
opposition. Rec. Doc. 220. Defendants sought, and were
granted, leave to file a reply. Rec. Doc. 228.
reasons discussed below, IT IS ORDERED that
defendants' motion for summary judgment is
GRANTED in part and plaintiffs' federal
claims are DISMISSED.
IS FURTHER ORDERED that plaintiffs' remaining
state law claims are REMANDED to state court
for adjudication, including those sought to be urged by
recent late amendment.
IS FURTHER ORDERED that plaintiffs' motion to
expedite hearing (Rec Doc. 236) is GRANTED.
The magistrate judge's denial of plaintiffs' motion
for leave to amend complaint (Rec. Doc. 230) is
AFFIRMED, and plaintiffs' objections to
same (Rec. Doc. 235) are OVERRULED.
IS FURTHER ORDERED that plaintiffs'
“motion to expedite” (Rec. Doc. 232) and
defendants' “Motion in Limine to Exclude Certain
Evidence at Trial” (Rec. Doc. 241) are
DISMISSED as moot.
BACKGROUND AND PROCEDURAL HISTORY
case arises from an employment contract dispute between
plaintiff Logan Landry and defendants PosiGen Inc, et al over
whether defendants PosiGen violated plaintiff Landry's
employment contract by failing to pay him bonuses, award
stock options, and forcing him to commute to New Orleans for
work. In their amended complaint, plaintiffs bring federal
Racketeer Influenced and Corrupt Organizations (RICO) claims
against defendants, alleging that defendant Thomas Neyhart,
owner, president, and director of PosiGen of Louisiana LLC,
has been running a number of fraud schemes involving
submitting false tax credit requests to the federal
government, fraudulently inducing BLG to sell its customer
lists and assets to PosiGen La, and forcing Landry to
participate in the tax credit fraud scheme. Rec. Doc. 12. The
facts of defendants' alleged scheme are laid out in
greater detail in an earlier Order and Reasons issued by this
Court and are incorporated by reference here. Rec. Doc. 54.
claims remain in this lawsuit: plaintiffs' claim that
Neyhart violated RICO and caused them damages by operating
PosiGen LA through a pattern of mail and wire fraud; (2)
Landry's claim that defendants breached his employment
contract by requiring him to travel to New Orleans for work
and not awarding him stock options; and (3) Landry's
claim that he relied to his detriment on promises defendants
made to him relating to his office location, stock options,
and bonuses when deciding to accept employment with PosiGen
LA. Rec. Doc. 94 at 1.
Court recently granted in part and denied in part
defendants' motion for partial summary judgment on
damages. Rec. Doc. 221. The Court held that plaintiffs were
not entitled to recover damages for: the value of BLG's
assets they allege were lost when plaintiffs were
fraudulently induced to sell BLG's assets to PosiGen LA,
the value of Delta Sky Miles, and emotional distress damages
for fraud. Rec. Doc. 221. The Court also held that plaintiffs
may be entitled to recover damages for unpaid bonuses
pursuant to their detrimental reliance and RICO claims, and
attorneys' fees under RICO. Id.
filed the instant motion for summary judgment on liability,
arguing that they are entitled to summary judgment dismissing
plaintiffs' RICO claims, breach of contract claims, and
detrimental reliance claims because plaintiffs have no
evidence in support of their remaining claims. Rec. Doc. 94.
Plaintiffs filed a response in opposition asserting that they
have provided competent summary judgment evidence to
demonstrate a genuine dispute of material fact in support of
those claims. Rec. Doc. 220.
argue entitlement to summary judgment on the RICO claim
because plaintiff cannot prove that Neyhart or PosiGen LA
engaged in any racketeering activity, or a pattern of such
activity. Id. at 2. Defendants assert that plaintiff
has no evidence that Neyhart knowingly and intentionally
misrepresented the nonexistence of a prior battery by
fighting conviction on Green Grant LLC's application for
residential and commercial contractor licenses, with the
intent to obtain unjust advantage or as part of a scheme to
defraud. Rec. Doc. 94-1 at 11. Defendants also assert that
plaintiffs have no evidence to support their original claim
in the amended complaint that Neyhart, through PosiGen LA,
used interstate wires or the mail to file fraudulent tax
credit “requests, ” “packets, ” or
“submissions” with the IRS. They submit that
documents do not need to be assembled into
“packets” to obtain a federal tax credit and
defendants have attested that they are not aware of any
person transmitting any “tax credit packet” to
the IRS. Id. at 13- 15. Defendants assert that
plaintiffs have no evidence for the new claims, not alleged
in the amended complaint, that Neyhart directed contractors
to falsify the placed-in-service date on documents, or that
their accounting firm, Wegmann, relied on placed-in-service
dates to prepare federal tax returns claiming the ITC. Rec.
Doc. 228 at 5. Defendants further argue that plaintiffs have
no evidence that Neyhart made misrepresentations to Landry
about the terms of his employment or the purchase price
PosiGen LA would pay for BLG's assets during a phone call
while Landry was in Vegas. Neyhart has no recollection of
this phone call and plaintiffs cannot remember what was said
on the call or identify anything Neyhart said that was
untrue. Rec. Doc. 94-1 at 16-17. Defendants argue that
plaintiffs have not proven a pattern of racketeering activity
because they cannot show that the three predicate acts
described above are related and amount to, or prose a threat
of, continued criminal activity. Id. at 17-19.
to defendants, the breach of contract claim also fails
because plaintiffs cannot prove that PosiGen was obligated to
award Landry stock options, but only that it was obligated to
ensure a stock option program was established in which Landry
would be eligible to participate. Rec. Doc. 94-1 at 20.
Defendants state that plaintiffs cannot prove that defendants
breached Landry's employment contract by requiring him to
commute to New Orleans because PosiGen LA was entitled to
require him to travel outside of Houma for work and Landry
did not suffer compensable damages as a result of the alleged
breach relating to his commute. Additionally, defendants
argue that plaintiffs cannot prevail on the detrimental
reliance claim because they cannot show that defendants
promised Landry that he would be awarded stock options, be
allowed to work only in Houma, or receive bonuses.
Id. at 23. To the extent that plaintiff claims
defendants did make these promises, defendants aver that
Landry's reliance on the promises is unjustified
considering the language in his fully integrated employment
agreement does not provide that he will be awarded any stock
options, guarantee him the right to work exclusively in
Houma, or obligate PosiGen LA to pay him bonuses.
Id. at 24. Defendants note that plaintiffs cannot