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Tales IP, LLC v. Common-Camp, LLC

United States District Court, E.D. Louisiana

August 29, 2019

TALES IP, LLC
v.
COMMON-CAMP, LLC

         SECTION: “J” (4)

          ORDER & REASONS

          CARL J. BARBIER, UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion for Partial Judgment on the Pleadings (Rec. Doc. 16) filed by Defendant and Plaintiff-in-Counterclaim, Common-Camp, LLC (“Common Camp”), an opposition thereto by Plaintiff and Defendant-in-Counterclaim, Tales IP, LLC (“Tales”) (Rec. Doc. 25), and a reply by Common-Camp (Rec. Doc. 29). Having considered the motion and memoranda, the record, and the applicable law, the Court finds that Common-Camp's Motion should be DENIED.

         FACTS AND PROCEDURAL BACKGROUND

         This litigation arises out of a lease dispute between Tales, as lessee, and Common-Camp, as lessor, for the property at 129-133 Camp Street, New Orleans, Louisiana (the “Property”).[1] Beginning in 2009, the Property housed a restaurant named Le Foret. In January 2016, Common-Camp and Le Foret, LLC leased the Property to BRG La Provence, LLC.[2] Effective January 1, 2019, Tales assumed the lease under an amended lease.

         The lease provides that the Property would be used “as a restaurant and as a catering or event space that serves food and alcoholic beverages.”[3] The amended lease acknowledged that Tales would renovate the first floor to convert that area from a restaurant into a bar, and Tales and Common-Camp agreed to “work together in good faith to ensure that the renovations to the premises are mutually acceptable.”[4] The lease also provides that Tales would assume responsibility for obtaining all permits necessary to operate its business, and that Common-Camp would “cooperate and assist in obtaining permits as needed.”[5]

         In the process of renovating the first floor, Tales discovered several permitting and construction issues that prevented the Property from being used as a restaurant or event space and that should have prevented its use as such in the past. Further, the condition of the Property had been misrepresented to state officials for permitting purposes; Tales provides evidence that the Property was represented to be a one-story building in applications to the State Fire Marshal, even though it actually has four stories. Tales contends that Common-Camp knew of these issues and deliberately failed to disclose them.

         Tales notified Common-Camp of these issues, but Common-Camp refused to discuss these issues in detail or to discuss a resolution that would bring Common-Camp in compliance with its obligations under the lease. Instead, on May 31, 2019, Common-Camp sent Tales a five-day notice to vacate and threatened to initiate eviction proceedings if it refused to do so.

         Tales filed suit in Orleans Parish Civil District Court on June 6, 2019, seeking a declaratory judgment that it was entitled to diminution or abatement of the rent as well as damages resulting from the condition of the leased premises. It also sought leave to deposit rents for April, May, and June 2019 into the registry of the court, as well as future monthly rents when due, which the court granted on June 10, 2019.[6]

         Common-Camp removed the case to this Court on June 24, 2019, [7] and subsequently filed an answer and counterclaims against Tales and Gary Solomon, Sr., Tales's guarantor under the lease, seeking past-due rent, holdover rent, late fees, attorney's fees, and to evict Tales from the Property.[8] Common-Camp then filed the instant motion.

         LEGAL STANDARD

         Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A motion brought pursuant to Rule 12(c) “is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990). The Court must accept the facts in the pleadings as true and view them in the light most favorable to the non-moving party. Jebaco, Inc. v. Harrah's Operating Co., 587 F.3d 314, 318 (5th Cir. 2009).

         DISCUSSION

         Common-Camp has moved for judgment on the pleadings for its counterclaims against Tales. In its opposition, Tales does not address the merits of Common-Camp's counterclaims but insists that Common-Camp is liable to Tales for its failure to ...


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