Nussli United States, LLC v. Nola Motorsports Host Comm., Inc.

• Decision Date: 03 November 2016
• Docket Number: c/w NO. 15-2372 SECTION: "G"(3),CIVIL ACTION NO. 15-2167 SECTION: "G"(3)
• Parties: NUSSLI US, LLC v. NOLA MOTORSPORTS HOST COMMITTEE, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

NUSSLI US, LLC v. NOLA MOTORSPORTS HOST COMMITTEE, INC., et al.

CIVIL ACTION NO. 15-2167 SECTION: "G"(3)

c/w NO. 15-2372 SECTION: "G"(3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

November 3, 2016

ORDER

In this litigation, Plaintiff NUSSLI (US), LLC ("NUSSLI") alleged that it is owed money under a contract it entered into with NOLA Motorsports Host Committee, Inc. ("NMHC"), NOLA Motor Club, LLC ("NOLA Motor"), and Motor Realty, L.L.C. ("Motor Realty").¹ NUSSLI also alleged that Defendants NOLA Motor, Motor Realty, Laney C Racing, L.L.C. ("Laney C Racing"), Laney C, L.L.C. ("Laney C"), and Laney Chouest ("Chouest") are liable to it under Louisiana's single business enterprise, alter ego, unjust enrichment, conversion, and fraud doctrines.² On July 29, 2016, this Court granted two motions to dismiss filed by Defendant NMHC³ and Defendants NOLA Motor, Motor Realty, Laney C. Racing, Laney C, and Chouest (collectively "Chouest Defendants").⁴ Pending before the Court is NUSSLI's "Motion to Revise, Reconsider, Alter, or Amend Judgment, or For New Trial," seeking reconsideration of both Orders dismissingNUSSLI's Louisiana Private Works Act against the Chouest Defendants and NMHC.⁵ Having reviewed the motion, the memoranda in support, the memorandum in opposition, the record, and the applicable law, the Court will deny the motion.

I. Background

A. Factual Background

In its first amended complaint, NUSSLI alleges that it entered into a Lease Agreement on or about November 4, 2014 with NMHC, NOLA Motor, and Motor Realty (collectively "Lessee Parties").⁶ NUSSLI alleges that, pursuant to the Lease Agreement, the Lessee Parties agreed to lease grandstands from NUSSLI and NUSSLI agreed to supply, install, and thereafter remove the grandstands that were to be used in connection with the 2015 Indy Grand Prix of Louisiana (the "Racing Event").⁷ NUSSLI alleges that the Lessee Parties initially agreed to pay NUSSLI $871,763.97, but later requested that NUSSLI make additions and deductions to its services, bringing the total contract price for 2015 to $652,008.54.⁸ NUSSLI also alleges that, pursuant to the Lease Agreement, the Lessee Parties also agreed to pay NUSSLI $884,840.43 for a Racing Event to take place in 2016 and $898,113.04 for a Racing Event to take place in 2017.⁹ NUSSLI alleges that, to date, it has only received $293,404.04 for the 2015 Racing Event, which, it asserts,is less than the $374,000 in funds that were designated by the State of Louisiana for the "Grandstand Build."¹⁰

NUSSLI further alleges that the Chouest Defendants committed fraud by misrepresenting to Andretti Sports Marketing Louisiana, LLC ("Andretti") and, by extension NUSSLI, that the State of Louisiana's $4.5 million appropriation, along with Laney Chouest's investment, would cover expenses incurred by the Indy Grand Prix of Louisiana, including NUSSLI's fees.¹¹

B. Procedural Background

NUSSLI filed a complaint in this matter on June 29, 2015.¹² On January 8, 2016, NUSSLI filed an amended complaint, alleging claims of breach of contract, unfair and deceptive trade practices pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law ("LUTPA"), Louisiana Revised Statute § 51:1401 et seq., fraud, conversion, unjust enrichment, failure to pay an open account, and claims pursuant to the Louisiana Private Works Act ("PWA"), Louisiana Revised Statute § 9:4801 et seq.¹³ On January 27, 2016, this case was consolidated with Andretti Sports Marketing Louisiana v. NOLA Motorsports Host Committee for discovery purposes only.¹⁴ On January 27, 2016, Defendants NOLA Motor Club, LLC, Motor Realty, L.L.C., Laney C. Racing, L.L.C., Laney C, L.L.C., and Laney Chouest filed a "Rule 12(b)(6) Motion to Dismiss, and Alternative Rule 12(e) Motion for More Definite Statement."¹⁵ On January 27, 2016,Defendant NMHC also filed a "Motion to Dismiss Under Rule 12(b)(6) for Failure to State a Claim."¹⁶ On July 29, 2016, the Court granted both motions.¹⁷

On August 26, 2016, NUSSLI filed the instant motion requesting that this Court revise, reconsider, alter, or amend the Court's Orders granting the motions dismissing NUSSLI's PWA cause of action.¹⁸ On September 20, 2016, the Chouest Defendants filed an opposition.¹⁹ On September 30, 2016, NUSSLI filed a reply²⁰ and the Chouest Defendants filed a surreply.²¹

II. Parties' Arguments

A. NUSSLI's Arguments in Support of its Motion for Reconsideration

In its motion, NUSSLI requests that this Court reconsider its prior Orders granting the Chouest Defendants' and NMHC's motions to dismiss NUSSLI's PWA cause of action.²² NUSSLI argues that reconsideration is proper under Rule 54(b) or Rule 59 of the Federal Rules of Civil Procedure on two grounds: first, that NUSSLI recently received new evidence that further supports its PWA cause of action, and second, that the Court erred in denying NUSSLI leave to amend its complaint.²³ In the alternative, NUSSLI requests that the Court "direct entry of a partial, final andimmediately appealable judgment with respect to all of NUSSLI's claims against the Chouest Defendants."²⁴

NUSSLI argues that reconsideration is proper under either Rule 54(b), which permits the Court to reconsider any prior interlocutory order at any time,²⁵ or Rule 59, which permits reconsideration when new evidence comes to light or a manifest injustice is shown.²⁶ NUSSLI avers that in its complaint and other filings, NUSSLI had asserted that the Grandstand Lease described the grandstand installation as a "Work," and had repeatedly alleged the "erection" of the grandstands on the property in connection to other track improvements and safety upgrades.²⁷ NUSSLI states that the Court found that NUSSLI had not sufficiently alleged that the grandstands constituted a "physical change of the immovable or its component parts" or that it was part of a broader project of tract improvements and safety upgrades.²⁸

NUSSLI argues that it has received new evidence of relevant emails that demonstrate that the grandstands construction was subject to Jefferson Parish's permitting process and building code regulations.²⁹ NUSSLI asserts that the emails show that the president and representative of NMC and NMHC, Kristen Engeron, had arranged for necessary building permits that were required before the grandstands could be installed, including electrical inspections, buildinginspections, and approval of occupancy of the structures.³⁰ NUSSLI avers that the applicable codes and provisions referenced in email correspondence between the Jefferson Parish Office of Inspection and Code Enforcement and representatives of NMHC and Andretti include "structural design requirements, load-bearing specifications, and other foundation, roof, and accessibility requirements all as required by the applicable building code."³¹ Thus, NUSSLI argues that this email correspondence further demonstrates that installing and erecting grandstands constitutes a "physical change of the immovable or its component parts," and thus qualifies as a "Work" under the Public Works Act.³²

Second, NUSSLI avers that the Court should reconsider its decision because it denied NUSSLI a reasonable opportunity to amend the allegations in its complaint.³³ NUSSLI represents that the Court found that it had already granted Andretti leave to amend claims that NUSSLI also had alleged, which the Court subsequently dismissed anyway, and thus refused to grant NUSSLI leave to amend.³⁴ However, NUSSLI asserts that Andretti never plead a claim under the PWA, and thus the Court's reasoning for limiting NUSSLI's right to amend on other claims pleaded byAndretti does not apply here.³⁵ Thus, NUSSLI requests leave to amend its complaint as to the PWA cause of action.³⁶

Finally, in the alternative, NUSSLI requests that the Court find there is no just reason for delay and enter a partial, final and immediately appealable judgment to all of NUSSLI's claims against the Chouest Defendants.³⁷

B. The Chouest Defendants' Arguments in Opposition to the Motion for Reconsideration

In response, the Chouest Defendants assert that NUSSLI's arguments for reconsideration do not present sufficient grounds for the Court to reverse its prior Orders.³⁸ The Chouest Defendants aver that (1) the evidence involving permits, building codes, and a parish inspection was not "recently discovered" by NUSSLI and (2) such evidence still does not support NUSSLI's PWA claim.³⁹

First, the Chouest Defendants assert that NUSSLI has not presented any new evidence that would merit reconsideration under Rule 59(e)(2).⁴⁰ The Chouest Defendants contend that the Lease Agreement drafted and signed by NUSSLI contained "very clear language" regarding permits; for example, the Agreement specifically states that the Lessee is responsible for "obtaining all governmental and third party authorizations and permits necessary for the Work" and explicitlyexcludes the price of "Permitting" from the total price charged by NUSSLI.⁴¹ The Chouest Defendants further aver that NUSSLI's plans for grandstands "acknowledged Jefferson Parish building codes and permitting" apply and the documents produced in the Initial Disclosures "revealed the omnipresence of the Jefferson Parish permitting and code enforcement process."⁴² The Chouest Defendants assert that the documents previously produced to NUSSLI revealed email discussions involving, among other related topics, an expedited permitting process, compliance with building codes, and electrical inspections.⁴³ The Chouest Defendants also point to "innumerable communications" with NUSSLI that the Chouest Defendants assert shows NUSSLI "was aware of and actively participated in the permitting and code enforcement process in 2014.⁴⁴ In fact, the Chouest Defendants contend that NUSSLI's Exhibit B of additional evidence are all "connected to, and even identical copies of," the documents provided in the March 7, 2016 Initial Disclosures.⁴⁵ Thus, the Chouest Defendants argue that NUSSLI's own files show...