United States District Court, E.D. Louisiana
ORDER & REASONS
BARBIER UNITED STATES DISTRICT JUDGE
the Court are a Motion for Reconsideration
(Rec. Doc. 36) filed by Defendant and
Plaintiff-in-Counterclaim Common-Camp, LLC
(“Common-Camp”), which seeks reconsideration of
the Court's Order & Reasons denying its motion for
judgment on the pleadings on its counterclaims (Rec. Doc.
31), and an Alternative Motion to Certify Questions
under 28 U.S.C. § 1292(b) (Rec. Doc.
38). Having considered the motion and memoranda, the
record, and the applicable law, the Court finds that
Common-Camp's motions should be DENIED.
AND PROCEDURAL BACKGROUND
litigation arises out of a lease dispute between Tales IP,
LLC (“Tales”), as lessee, and Common-Camp, as
lessor, for the property at 129-133 Camp Street, New Orleans,
Louisiana (the “Property”). Effective January
1, 2019, Tales assumed the lease from the prior tenant under
an amended lease. The amended lease contained a non-abatement
clause, which provides: “The monthly rent shall be paid
with no previous demand therefore and without any delay,
defense, set-off, abatement or deduction, suspension or
purposes of the instant motion, Common-Camp acknowledges that
the Court may assume it breached its obligation to deliver
the Property in a condition suitable for Tales's intended
use and that the Property is in need of repair. Tales paid rent
through March 2019, but after Common-Camp refused to work
with Tales in good faith to make the necessary repairs, Tales
withheld rent for April and May 2019. On May 31, 2019,
Common-Camp sent Tales a letter notifying Tales that it was
terminating the lease because of Tales's failure to pay
rent and that if Tales did not vacate the Property within
five business days, Common-Camp would initiate eviction
6, 2019, Tales initiated this action in state court and
sought an ex parte order allowing it to deposit the unpaid
rent for April, May, and June 2019 as well as future rent
into the court's registry, which the state court
granted. Common-Camp removed the case to this Court
and then filed counterclaims against Tales and its guarantor
under the lease, seeking unpaid rent and damages as provided
in the lease as well as to evict Tales from the Property.
After the Court denied Common-Camp's motion for judgment
on the pleadings on its counterclaims and allowed Tales to
deposit the rents in this Court's registry, Common-Camp
filed the instant motion for reconsideration and an
alternative motion to certify the Court's interlocutory
order for appeal.
party seeks reconsideration of an interlocutory order,
Federal Rule of Civil Procedure 54(b) controls. Austin v.
Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017).
Rule 54(b) allows the Court “‘to reconsider and
reverse its decision for any reason it deems sufficient, even
in the absence of new evidence or an intervening change in or
clarification of the substantive law.'”
Id. (citation omitted). Rule 54(b) is “less
stringent” than Rule 59(e) and reflects a more flexible
approach to the presentation of new arguments. Id.
examining matters of state law, the Court will employ the
principles of interpretation used by the state's highest
court. Am. Int'l Specialty Lines Ins. Co. v. Rentech
Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010). Mindful of
Louisiana's distinction between primary and secondary
sources of law, the Court will begin its analysis with
reliance on the Louisiana Constitution and statutes before
looking to “‘jurisprudence, doctrine,
conventional usages, and equity, [which] may guide the court
in reaching a decision in the absence of legislation and
custom.'” Shaw Constructors v. ICF Kaiser
Eng'rs, Inc., 395 F.3d 533, 546 (5th Cir. 2004)
(quoting La. C.C. art. 1 rev. cmt. b). If the Court must make
an “Erie guess” on an issue of Louisiana law, the
Court will decide the issue the way that it believes the
Supreme Court of Louisiana would decide it. Id. The
Court is not strictly bound by the decisions of the state
intermediate courts and will disregard them if the Court is
“convinced that the Louisiana Supreme Court would
decide otherwise.” In re Katrina Canal Breaches
Litig., 496 F.3d 191, 206 (5th Cir. 2007).
prior order, the Court held that Common-Camp could not put
Tales in default because it failed to deliver the Property in
a condition suitable for Tales's intended use, relying on
Civil Code article 1993. Common-Camp first contends that article
1993 is inapplicable in the current context because the more
specific provisions of Title IX (“Lease”) are
2669 provides: “In all matters not provided for in this
Title, the contract of lease is governed by the rules of the
Titles of ‘Obligations in General' and
‘Conventional Obligations or Contracts.'” La.
C.C. art. 2669. Thus, article 1993 may apply only if the
articles on leases do not resolve the issue. See Id.
rev. cmt b. Because there are particular rules for leases
that govern the instant dispute, as explained below, the
Court agrees that its prior holding was in error.
further argues that the non-abatement clause in the lease
prevents Tales from withholding rent, even if Common-Camp is
in breach of the lease, regardless of the default provisions
of the Civil Code. “The Civil Code . . . while defining
and governing the relationship of the parties to a lease,
still leaves the parties free to contractually agree to alter
or deviate from all but the most fundamental provisions of
the Code which govern their lease relationship.”
Carriere v. Bank of La., 95-3058, p. 13 (La.
12/13/96), 702 So.2d 648, 666. “In other words, the
lease contract itself is the law between the parties; it
defines their ...