322 F.3d 371 (5th Cir. 2003), 02-30432, Kane Enterprises v. MacGregor (USA) Inc.

Docket Nº:02-30432.
Citation:322 F.3d 371
Party Name:KANE ENTERPRISES, Plaintiff-Appellant, v. MacGREGOR (USA) INC., et al., Defendants, MacGregor (USA) Inc., Defendant-Appellee.
Case Date:February 27, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 371

322 F.3d 371 (5th Cir. 2003)

KANE ENTERPRISES, Plaintiff-Appellant,

v.

MacGREGOR (USA) INC., et al., Defendants,

MacGregor (USA) Inc., Defendant-Appellee.

No. 02-30432.

United States Court of Appeals, Fifth Circuit

Feb. 27, 2003

Page 372

[Copyrighted Material Omitted]

Page 373

Simeon B. Reimonenq, Jr., Stewart F. Peck, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Plaintiff-Appellant.

Joseph N. Mole, Michael H. Pinkerton, Frilot, Partridge, Kohnke & Clements, New Orleans, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, WIENER, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Kane Enterprises ("Kane"), a commercial barge operator, appeals the dismissal, under FED.R.CIV.P. 12(b)(6), of its contract claims against MacGregor (USA), Inc., a naval contractor. Finding no error, we affirm.

I.

MacGregor contracted (the "prime contract") with the United States Navy to build and install large ramps on warships. The prime contract did not oblige MacGregor to post a performance or payment bond under the Miller Act, 40 U.S.C. § 270a et seq. MacGregor then subcontracted (the "subcontract") with Halter Marine ("Halter"), inter alia, to store the ramps and transport them when the ships were ready for the ramps to be installed. Halter, in turn, sub-subcontracted (the "sub-subcontract") with Kane, a commercial barge operator, for delivery of the ramps.

The parties to these contracts by and large fulfilled their relevant obligations. The Navy received the ramps and paid MacGregor in full. MacGregor has paid Halter, except for a $150,000 retainage provided for by the subcontract. Kane fully performed its contractual obligation by delivering the ramps. Unfortunately for Kane, however, Halter filed for chapter 11 bankruptcy shortly after Kane had delivered the ramps; Halter therefore has not paid Kane the approximately $85,000 owed to Kane under the sub-subcontract.

Page 374

Kane sued MacGregor in Louisiana state court for contractual damages. MacGregor removed to the United States District Court for the Eastern District of Louisiana based on diversity of citizenship and moved to dismiss for failure to state a claim upon which relief can be granted. The court granted the motion, reasoning that Kane sought to recover from the retainage, a right to payment that is property of the Halter bankruptcy estate and over which the United States District Court for the Southern District of Mississippi, the court in which Halter filed its petition, has exclusive jurisdiction under 28 U.S.C. § 1334(e).

II.

We review de novo a dismissal under rule 12(b)(6), applying the same standards as did the district court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). The court must construe the complaint liberally in favor of the plaintiff and must take all facts pleaded as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). Moreover, the court may not dismiss...

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