United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
the Court is third-party defendant MLU Services, Inc.'s
motion to dismiss BKW, Inc.'s third-party complaint. For
the reasons that follow, the motion is GRANTED.
litigation is fall-out from a cancelled hurricane disaster
recovery project in the U.S. Virgin Islands.
Services, Inc. provides disaster recovery and relief
services, including demolition, right of way clearing,
hazardous tree removal, construction, workforce management,
logistics, temporary housing, and related services to
governments and private citizens. MLU successfully bid on a
project to provide hurricane emergency response assistance
services to St. John Island after Hurricane Irma; Virgin
Islands Waste Management Authority entered into a prime
contract with MLU to provide disaster relief services. To
fulfill its obligations under the prime contract, MLU
subcontracted with WTL Corporation; MLU and WTL memorialized
their agreement in a Master Subcontractor Agreement on
December 12, 2017, as well as a Task Order, as contemplated
by the MSA, signed the next day.
Inc. specializes in land clearing, earth moving, underground
utilities, erosion control, storm drainage, debris
management, and trucking. Effective January 23, 2018, BKW
agreed to lease certain equipment to MLU pursuant to a
Vehicle/Equipment Lease. BKW, in turn, contracted with
Louisiana Environmental Concepts, LLC (LEC), which agreed to
lease roll-off boxes on an open account basis. MLU separately
contracted with barge operators to transport equipment to St.
was completed under the MSA or the Task Order. MLU's
participation in the project was cancelled by the U.S. Virgin
Islands Waste Management Authority when the barge
transporting the equipment took 30 (instead of five) days to
arrive to St. John. By then, the U.S. Virgin Islands Waste
Management Authority deemed its contract with MLU
“expired” and hired a different company to
provide disaster relief services.
October 4, 2018, Louisiana Environmental Concepts, LLC sued
BKW, LLC in state court, alleging that BKW owes $77, 860
under BKW's open account with LEC. LEC alleges that BKW
contracted with LEC for the rental of roll-off boxes on an
open account basis; between January 1, 2018 and March 10,
2018 LEC leased roll-off boxes to BKW. BKW removed the
lawsuit to this Court, invoking the Court's diversity
jurisdiction under 28 U.S.C. § 1332. BKW answered
LEC's state court petition and filed a third-party
complaint against MLU Services, Inc., alleging that: MLU
subcontracted with BKW for “services” (including
loading, hauling, separation, and unloading) in relation to
the “Work” identified in the Master Subcontractor
Agreement; BKW sub-contracted with LEC for the rental of
roll-off boxes to be used in relation to the Work in the
Virgin Islands; BKW caused its and LEC's property,
machinery, and materials, including LEC roll-off boxes, to be
loaded onto a barge provided by MLU for transport to the
Virgin Islands; upon the barge's arrival in the Virgin
Islands, MLU informed BKW that it no longer needed BKW's
work and refused to allow it to complete the work; MLU did so
without first sending written notice of its intention to
terminate the contract as required by the Master
Subcontractor Agreement at Section 5.2; MLU breached the Task
Order and the Master Subcontractor Agreement; and BKW sent
two invoices to MLU, neither of which have been paid, thus
leaving $227, 554.18 due and owing to BKW “pursuant to
the Task Order and Master Subcontractor Agreement.” BKW
also seeks indemnification from MLU for any amounts BKW owes
to LEC because BKW's sub-contract with LEC was terminated
due to MLU's breach of the Task Order and Master
moves to dismiss the third-party complaint for failure to
state a claim upon which relief may be granted.
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Such a motion
is rarely granted because it is viewed with disfavor. See
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d
242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading
standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an
accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
considering a Rule 12(b)(6) motion, the Court
“accept[s] all well-pleaded facts as true and view[s]
all facts in the light most favorable to the
plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe
ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But,
in deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at
survive dismissal, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and footnote
omitted). “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.” Iqbal, 556 U.S.
at 678 (“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.” Id. at 678 (internal
quotations omitted) (citing Twombly, 550 U.S. at
557). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief'”, thus, “requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (alteration in original) (citation omitted).
“[w]hen reviewing a motion to dismiss, a district court
‘must consider the complaint in its entirety, as well
as other sources ordinarily examined when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Funk v.
Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)(quoting
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)). If the Court considers materials
outside of the pleadings, the motion to dismiss must be
treated as a motion for summary judgment under Rule 56.
See Causey v. Sewell Cadillac-Chevrolet, Inc., 394
F.3d 285, 288 (5th Cir. 2004); see also Fed.R.Civ.P.
federal court sitting in diversity applies the substantive
law of the forum state; here, Louisiana. See Wisznia Co.,
Inc. v. General Star Indm. Co., 759 F.3d 446, 448 (5th
Cir. 2014). MLU moves to dismiss BKW's third-party
claims for breach of contract and indemnity. “The
essential elements of a breach of contract claim are (1) the
obligor's undertaking an obligation to perform, (2) the
obligor failed to perform the obligation (the breach), and
(3) the failure to perform resulted in damages to the
obligee.” Favrot v. Favrot, 68 So.3d 1099,
1108-09 (La.App. 4 Cir. ...