861 F. Supp. 2d 746
E.D. La.2012Background
- Harris Builders sues URS for damages on a Port of South Louisiana warehouse project; Harris was general contractor under the Owner contract and URS allegedly prepared plans and acted as engineer, consultant, construction manager, and Owner representative.
- Plaintiff alleges URS owed duties to manage the project, approve work, develop quality plans, avoid interference, and promptly review/approve additional time and compensation, resulting in damages including liquidated damages and extended overhead.
- The complaint contains three counts: Count I under Louisiana Civil Code articles 2315 et seq. (and others); Count II under La.Rev.Stat. § 9:2771; Count III for unjust enrichment; all framed as arising under Louisiana law.
- URS moves under Rule 12(c) to dismiss the complaint; Harris opposes, arguing Count I is negligent professional undertaking and Count II provides a basis under § 9:2771, while Count III seeks unjust enrichment.
- The court grants in part and denies in part: tortious interference with contract in Count I is dismissed, Count I may proceed as negligence with leave to amend, Count II § 9:2771 is dismissed, and Count III unjust enrichment is dismissed; plaintiff may amend Count I within 10 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I states tortious interference with contract | Harris argues Count I is negligent professional undertaking, not tortious interference. | URS argues no Louisiana tort of tortious interference exists here since no contract with Harris and no corporate officer interference. | Count I dismissed as tortious interference; negligence theory preserved with amendment allowed. |
| Whether Count I states a negligence claim (negligent professional undertaking) against URS | Harris contends URS’s negligent planning caused harm and foreseeably damaged Harris. | URS maintains no negligent undertaking claim under these facts or law. | Count I states a plausible negligence claim; allowed to amend. |
| Whether Count II under La. Rev. Stat. § 9:2771 creates a claim | Harris claims liability or at least immunity issues under § 9:2771. | Statute provides immunity defense, not a cause of action; Harris not held liable under the statute. | Count II dismissed as no liability claim under the statute. |
| Whether Count III unjust enrichment is viable given available legal remedies | Unjust enrichment is warranted if no other remedy exists and Harris has no contract remedy. | There is a legal tort remedy; unjust enrichment is not applicable when contract-based remedies exist. | Count III dismissed; another legal remedy exists. |
| Whether Harris should be allowed to amend Count I | Amendment clarifies negligence theory already pleaded. | Late amendment would prejudice URS; claim is untimely. | Leave to amend granted within 10 days. |
Key Cases Cited
- 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La. 1989) (recognizes narrow tortious interference with contract by corporate officer)
- Colbert v. B.F. Carvin Construction Co., 600 So.2d 719 (La. App. 5th Cir. 1992) (negligent professional undertaking recognized alongside tortious interference)
- S.K. Whitty & Co., Inc. v. Laurence L. Lambert & Assocs., 576 So.2d 599 (La. App. 4th Cir. 1991) (pre-construction negligence against engineer who prepared plans and specs)
- Amer. Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384 (5th Cir. 1991) (Spurney context discussed by Fifth Circuit)
- Westbrook v. Pike Elec., L.L.C., 799 F.Supp.2d 665 (E.D. La. 2011) (unjust enrichment not available where legal remedyexists)
- Nature Conservancy v. Upland Props., LLC, 48 So.3d 1257 (La. App. 1st Cir. 2010) (unjust enrichment limited when remedied by other law)