Kane Enterprises v. MacGregor (USA) Inc.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 02-30432 _______________ KANE ENTERPRISES, Plaintiff-Appellant, VERSUS MacGREGOR (USA) Inc., ET AL Defendants, MACGREGOR (USA) INC., Defendant-Appellee. _________________________ Appeal from the United States District Court for the Eastern District of Louisiana _________________________ February 27, 2003 Before SMITH, WIENER, and DEMOSS, I. Circuit Judges. MacGREGOR contracted (the “prime con- tract”) with the United States Navy to build JERRY E. SMITH, Circuit Judge: and install large ramps on warships. The prime contract did not oblige MacGREGOR Kane Enterprises (“Kane”), a commercial to post a performance or payment bond under barge operator, appeals the dismissal, under the Miller Act, 40 U.S.C. § 270a et seq. FED. R. CIV. P. 12(b)(6), of its contract claims MacGREGOR then subcontracted (the against MacGREGOR (USA), Inc., a naval “subcontract”) with Halter Marine (“Halter”), contractor. Finding no error, we affirm. inter alia, to store the ramps and transport them when the ships were ready for the ramps F.2d 440, 442 (5th Cir. 1986). Moreover, the to be installed. Halter, in turn, sub- court may not dismiss the complaint under rule subcontracted (the “sub-subcontract”) with 12(b)(6) “unless it appears beyond doubt that Kane, a commercial barge operator, for the plaintiff can prove no set of facts in delivery of the ramps. support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 The parties to these contracts by and large (1957). At the same time, a plaintiff must fulfilled their relevant obligations. The Navy plead specific facts, not mere conclusional al- received the ramps and paid MacGREGOR in legations, to avoid dismissal for failure to state full. MacGREGOR has paid Halter, except for a claim. Collins v. Morgan Stanley Dean Wit- a $150,000 retainage provided for by the ter, 224 F.3d 496, 498 (5th Cir. 2000). “We subcontract. Kane fully performed its will thus not accept as true conclusory contractual obligation by delivering the ramps. allegations or unwarranted deductions of fact.” Unfortunately for Kane, however, Halter filed Id. (citation omitted). Finally, the court may for chapter 11 bankruptcy shortly after Kane review the documents attached to the motion had delivered the ramps; Halter therefore has to dismiss, e.g., the contracts in issue here, not paid Kane the approximately $85,000 where the complaint refers to the documents owed to Kane under the sub-subcontract. and they are central to the claim. Id. at 498-99 Kane sued MacGREGOR in Louisiana state III. court for contractual damages. MacGREGOR The district court believed that Kane merely removed to the United States District Court sought to recover its contractual damages for the Eastern District of Louisiana based on from Halter by claiming against the retainage diversity of citizenship and moved to dismiss owed to Halter by MacGREGOR. This for failure to state a claim upon which relief interpretation of the complaint is can be granted. The court granted the motion, understandable. As Kane stated in the district reasoning that Kane sought to recover from court, “Kane is pursuing an equitable lien the retainage, a right to payment that is claim against MacGREGOR such that property of the Halter bankruptcy estate and MacGREGOR will be ordered to pay Kane over which the United States District Court from the $150,000 owed by MacGREGOR for the Southern District of Mississippi, the under the contract [with Halter].” The court in which Halter filed its petition, has retainage due to Halter from MacGREGOR, exclusive jurisdiction under 28 U.S.C. however, is property of the Halter bankruptcy § 1334(e). estate. 11 U.S.C. § 541; In re Glover Constr. Co., 30 B.R. 873 (W.D. Ky. 1983). The II. district in which a chapter 11 petition is filed We review de novo a dismissal under rule has exclusive jurisdiction over the property of 12(b)(6), applying the same standards as did the estate. 28 U.S.C. § 1334(e). Thus, the the district court. Ramming v. United States, court properly dismissed the complaint, 281 F.3d 158, 161 (5th Cir. 2001). The court because the Southern District of Mississippi must construe the complaint liberally in favor has exclusive jurisdiction over the retainage. of the plaintiff and must take all facts pleaded as true. Campbell v. Wells Fargo Bank, 781 Kane has not appealed this aspect of the 2 ruling, but it objects that the court did not and liens cannot attach to government consider its other claims against MacGREG- property. Blue Fox, 525 U.S. at 264. OR. Though we agree with MacGREGOR that Kane’s complaint primarily seeks recovery Kane also argues for a lien against the mon- from the retainage, we disagree that Kane’s ey already paid to MacGREGOR by the Navy, complaint did not present its other claims. We but Kane has not identified any legal or factual construe the complaint liberally and basis for such a lien. Kane cites only two acknowledge that it fairly raises a claim for cases, one of which, Quality Mech. equitable lien, a third-party beneficiary claim Contractors, Inc. v. Moreland Corp., 19 F. under the prime contract, and a quantum Supp. 2d 1169 (D. Nev. 1998), was effectively meruit claim. Yet, none of these states a claim overruled by Blue Fox. The other, Faerber upon which relief can be granted. Thus, we Elec. Co. v. Atlanta Tri-Com, Inc., 795 F. affirm.1 Supp. 240 (N.D. Ill. 1992), stands for the unremarkable proposition that the Miller Act First, Kane has not stated a claim for an is not the exclusive remedy for a sub- equitable lien in any appropriate fund or prop- subcontractor against a government contractor erty. An equitable lien is a “right . . . to have if other common law remedies exist. a demand satisfied from a particular fund or specific property.” BLACK’S LAW DICTION- Yet, Kane does not explain how it could ARY 934 (7th ed. 1999) (emphasis added); see possibly be entitled to an equitable lien against also Dep’t of the Army v. Blue Fox, Inc., 525 money paid to MacGREGOR by the Navy. U.S. 255, 262-63 (1999) (describing the Kane cites subcontract ¶ 2(e), but that nature of an equitable lien). As we have ex- paragraph merely allows MacGREGOR to plained, Kane cannot claim an equitable lien withhold the retainage from Halter; it does not against the retainage in any court outside the create a basis for an equitable lien. Kane also Southern District of Mississippi, nor can it cites subcontract ¶ 7(b), but that paragraph claim an equitable lien in the ramps, because obviously protects MacGREGOR from they are now property of the United States, Halter’s breach of the subcontract, not Kane from Halter’s breach of the sub-subcontract. Kane cursorily cites several other equally 1 MacGREGOR observed, in its opening brief, irrelevant paragraphs to similar effect. that the United States, which Kane attempted to join as a defendant, might remain a party in the Second, Kane has not stated a claim as a district court. If true, this fact would have de- third-party beneficiary to the prime contract. prived us of appellate jurisdiction, because Kane “A contract ing party may stipulate a benefit did not obtain a certificate under FED. R. CIV. P. for a third person called a third party 54(b). After supplemental briefing, however, we beneficiary.” LA. CIV. CODE ANN. art. 1978.2 conclude that Kane never properly served the United States under FED. R. CIV. P. 4(i). For “Louisiana law is settled that for there to be a purposes of appellate jurisdiction, we treat an im- stipulation pour autrui there must be not only properly served defendant as never before the dis- a third-party advantage, but the benefit derived trict court. Ins. Co. of N. Am. v. Dealy, 911 F.2d 1096, 1099 (5th Cir. 1990). Thus, the district 2 court’s order was an appealable final judgment for The parties have assumed throughout that which Kane did not need a rule 54(b) certificate. Louisiana law governs this case. 3 from the contract by the third party may not meruit claim against MacGREGOR. merely be incidental to the contract.” Davis “Quantum meruit is an equitable remedy Oil Co. v. TS, Inc., 145 F.3d 305, 311 (5th founded upon the principle that no one who Cir. 1998) (citation omitted). Further, the benefits from the labor . . . of another should stipulation “will be found only when the be unjustly enriched at the other’s expense. contract clearly contemplates the benefit to The doctrine operates, in the absence of a the third person as its condition or specific contract, to infer a promise on behalf consideration.” Id. (citation omitted). The of the person to whom the benefit is conferred contract need not expressly identify the third to pay a reasonable sum for the services or person, however, if the contract plainly materials furnished.” Brankline v. Capuano, contemplates a benefit to a third person. Id. 656 So. 2d 1, 5 (La. App. 3d Cir. 1995); accord McCarty Corp. v. Pullman-Kellogg, Under these Louisiana standards, Kane Div. of Pullam, Inc., 751 F.2d 750, 760 (5th does not qualify as a third-party beneficiary to Cir. 1985). In other words, quantum meruit the prime contact’s transportation clauses. presupposes both the absence of an express The prime contract simply states that Mac- contract and unjust enrichment of the GREGOR will ship the ramps via “commercial defendant. barge.” This clause hardly manifests a plain intent to make into a third-party beneficiary an Neither element is present here. Kane has unspecified barge operator several steps down a specific contract with Halter. Kane may be the contracting chain. displeased that Halter filed for bankruptcy, but its displeasure does not void the sub- The clause does not even mention payment subcontract, and does not allow it to sue to the operator. The surrounding clauses, MacGREGOR. Kane’s remedy is a suit for which state other modes of transportation for breach of contract against Halter, not a other goods, further support this reasoning. If quantum meruit claim against MacGREGOR. Kane is a third-party beneficiary under the commercial barge clause, then other shipping companies would become third-party Also, MacGREGOR was not unjustly en- beneficiaries to those clauses. Kane’s riched; it contracted with Halter, and both par- implausible argument would erase Louisiana’s ties performed their obligations under the sub- distinction between intended and incidental contract. Halter may have been unjustly en- benefits and would create dozens of third- riched by its failure to pay Kane under the sub- party beneficiaries under the prime contract.3 subcontract, but that cannot justify a quantum meruit claim against MacGREGOR. Finally, Kane has not stated a quantum The judgment is AFFIRMED. All requests for sanctions are DENIED. 3 Kane also argues that it is a third-party ben- eficiary of the subcontract, but it does not specify which clauses of the subcontract confer this pu- tative benefit. We therefore deem this argument waived for failure to brief it adequately. See FED. R. APP. P. 28(a)(9)(A). 4