Cook & Nichol, Inc. v. The Plimsoll Club, Leo S. Weil
451 F.2d 505
5th Cir.
1971
Check Treatment

*2 BROWN, Chiеf R. Before JOHN RONEY, Judge, and INGRAHAM Judges. Judge: BROWN, Chief R. JOHN over heated This cooling of New Orleans’ the members again that com proves Plimsoll Club not Plimsoll line be above the state a claim. for failure to dismissed periodic us of the need for It reminds again exercise, and over for over and over enough apparently not often —but —this reiterated, explained, stated, has Court stressed, emphasized one rephrased, and long-established, well-publicized simple, practice: a motion to dis rule Federal miss for failure to state a claim should granted appears to a unless it be certainty plaintiff that the be entitled to recover under state of proved support could be his claim.1 Webb v. Oil Standard 320; 2 Millet Cir., 1969, 414 F.2d v. God Hay good, Jones, Walker, John W. Cir., ;3 Sugars, 241 F.2d 264 Waechter, Poitevent, Denegre, Carrere & Harper, Arthur Richland H. Cо. v. Orleans, La., plaintiff-appellant. New ;4 Motor Barber v. Harvey Koch, Cat”, Cir., Kullman, C. Frederick A. Vessel “Blue Harvey Lewis, Beard, ;5 Blue, J. 626 Pred Schmitt & v. Board of Public Instruction Treen, Orleans, County, Gainsburgh, Florida, Kierr of Dade La., defendants-appellees. -just F.2d 851 to name five of the more 6-— Although 1. The Court hard to it seems enunciation understand. is, course, Conley affectation, repeat Gibson, rule now tо be an though again, citation of case names U.S. L.Ed. S.Ct. symbol principle 2d 80. shorthand enough.” ought to be mortality ‘high 2. “In this Circuit rate’ 302 F.2d at 325. plead- dismissals the ‘barebones ings’ prejudice well-publicized is with 5. “To dismiss the libel fact.” go with too fast too As near- soon. ly every situations, one of principle, repeated 3. “A with remarkable require par- Trial failed to Court frequency plainest terms of di- exрloit the marvelous tools now ties to simplicity, carrying rect with it a summary judgment or oth- available compelling emphasis, sense of has whether erwise to demonstrate misread, misunderstood, misap- been distinguished facts, from what plied, requiring republica- lawyers be, would said the facts would tion.” ex- a claim and if so to what bear out F.2d at 265. v. Peel tent. year half Now a and a proving 4. “This is another case final go later, back to decide the case must disposition of a'civil action on the ba- to a claim facts exist as whether pleadings sis of barebones is a tortuous that arose 1963.” thing. simply How a standard so ex- pressed, repeated, apparent- so often ly so often overlooked without so monument to needless even 6. “This is another lawyer аnd, Judge much as a time deferential of it mention waste upon sixty cases than Court alone whch relief can be granted, (iii) a judgment has reversed since after a Trial dismissing suit, preju- complaint (preceded had dismissed the dice Court by a pur- memorandum upon porting to state a claim which relief Findings of Fact and Con- granted.7 Still, regularity, clusions of Law), and understandably after case comes before Court (iv) a appeal. notice of pro- With this where a has been dismissed on logue, an announcement of a reversal and *3 alone, pleadings” and the “barebones remand is superfluous. almost casualty count continues to soar.8 All of highlighted this is by the fact is the case here. For Such “without present (as case will be dis- 9 mention” even much as a deferential so cussed in later) more detail there is an above, of the rule recounted allegation of the subsequent existence and following skeleton reaches us on the breach of a While that contract. asser- among (i) complaint alleging a record: may prove tion nothing more than a fu- counts, two a contract between other tile, desperate attempt bring to pay party to a of one recognized legal this case within some (ii) party price, a the contract the other doctrine, nothing elementary in motion, is more as a so much defendants’ without single allegation, to dismiss law of a than that a denial breach of contract a claim complaint failure to state actionable.10 important, money. perhaps Thorpe, Cir., 1970, client more Orr v. later, now, 1129; Land, Sky, the case 14 months For Merlite Sea & Inc. v. proc- go Properties, the normal Inc., back to start must Palm Beach Investment leading produc- discovery Herpich Cir., 495; ess of 5 Wallace, v. lack Cir., 1970, 792; or the demonstrated of facts tion 430 F.2d which, Westinghouse Supply either before them Electric v. Co. , trial, Wesley real a conventiоnal after Construction 1969 1280; Equity Capital will be determined. merits the case 414 F.2d v. Co. prelude Cir., 1969, 317; Sponder, a different This is but 414 F.2d mortality high Shipyards, on the common refrain Williams Avondale v. Inc., F.R.Civ.P. rate to a dismissal under 12(b) To state a claim. ‍‌​‌‌‌​‌​​​​‌‌​​‌​​​‌‌​​​​‌​‌​​‌​‌​‌​‌​​‌​​​‌‌‌​‌‍for failure to busy standpoint 8. From the of a trial perils should be added the usual naturally judge anxious to clear who is administratively and unsoundness —both necessarily case, it is not аs bad out substantively trying, in the orbital —of care, it used When seems. dynamic era, atmosphere re- 12(b) place motions a time and a new, serious, questions of solve See, g., Jaeger Free- e. to dismiss. v. plead- constitutional ings. law on barebones 528; man, Inter- * * * ordinarily should Courts Erectors, Wilhoit Steel national v. Inc. problems grapple fac- with these on a Service, Cir., Rental Erectors & tual record.” F.2d 465. at rigid that that our test is so We disavow safely dismiss a com- trial court can Godchaux, supra, 7. In Millet we set v. only 12(b) record if the catalogue out an initial of some thirteen insufficiency to the extent establishes such cases which this Circuit had from Judge prompted exclama- Huston’s been remanded to that time. 241 F.2d Solomon, accentu- “The tion: wisdom at In Barber 265 n. 1. v. Motor Vessel legal Mans- of Coke and lore ated Cat,” supra, supplemented “Blue we judgment field, devise could not twenty-two list with additional an such support.” Wilson cases. F.2d at n. Thompson, 1896, 4 Idaho updated adding the list another P. fourteen in Pred v. cases Board Pub- County, Florida, lic Instruction of Dade Harper, su- Co. H. Richland 9. Arthur supra. 415 F.2d at 852 n. 1. pra, note 4. keeping computer Now with our ori is frivolous statistics, aсtion ented interest we add these 10. “It likely quite Singleton and it is merit as the fourth Foreman, and without installment. personal judge had the district arose, ironically, dispute Joint Venture it was not This heated benefit, that, in entitled a contract to install central air out language, conditioning equipment. Codal “he what is Cook & who receives him, brought against due to whether he receives it Inc. suit through obliges claiming knowingly, him- error or Orleans Club unjustly (or it self restore to him from whom he enriched latter had been unduly centrally cooled) has received it.” Article at the Plaintiff’s least petition expense. Alternatively, Code. al- LSA-Civil leged in fact the existence of difficulty theory, with this contract between Plimsoll and a Joint course, is that since Plimsoll contracted Venture,11 non-payment the Club of heat installation under the contract. ing conditioning equipment, if it and air count, alleged the first it was On paid every him under cent due orally Plimsoll had contracted with God- got nothing more than heating chaux to install and air condi- obligated paid for and was for. *4 tioning equipment the Plimsoll in Club’s payment Mere could not un Godchaux premises on the floor of the Inter- 30th justly Plimsoll, un enrich and without Building in New Trade Mart national just quasi- no enrichment cost-plus a on basis. Orleans obligation Nichol contractual to Cook & building being of the was air remainder arising Thompson under Louisiana law. by the Joint Venture. God- conditioned C.A.La., Taylor, So.2d charged and labor bills materials Bozeman, C.A.La., Martin v. arising his with from individual contract stated, Alternatively So.2d 382. and these Plimsoll to Joint of law is “the substance Louisianа by paid subsequently Godchaux were bills unjust in lies a action for enrichment funds of Venture. Be- with the Joint by law, re promise, will that one Moses, supervising Plimsoll’s cause person store entitled thereto engineer, approved knew and these of good equity be and conscience which in payments, construction knowl- interim Bozeman, longs supra, him.” Martin v. imputed Likewise, edge is to Plimsoll. merely рaid God If Plimsoll Moses, acting Plimsoll, accepted the for chaux, provisions in with accordance payment by approved final work and only of its and these were price of the to God- Plimsoll contract allegations complaint, it be of the would named, along Moses also with chaux. good equity and difficult to conclude that firm, in his as defendant this suit. pay for demand that Plimsoll conscience adjudicated subsequently was conditioning equip heating and having paid bankrupt the bills without that state of ment a time. Under second repaid the Joint for its funds Venture to state a facts dismissal he used in his individual contract cognizable proper. claim would have been Plimsoll. Cook & succes- Venture, seeks interest to the Joint sor in right end But the case does ‍‌​‌‌‌​‌​​​​‌‌​​‌​​​‌‌​​​​‌​‌​​‌​‌​‌​‌​​‌​​​‌‌‌​‌‍not for the Joint from Plimsoll to recover alleges that there, Nichol also &Cook ulti- Plimsoll funds Venture knowledge of God direct Plimsoll had enjoyed mately the benefits. funds in misuse of chaux’s Joint Venture theory contract his individual execution of Nichol’s first Cook & accepted Plimsoll, nonetheless easily just as and can be stated count misconduct Godchaux’s readily from Plaintiff claims dismissed. benefits taking steps to assure effect, the use of without Plimsoll, received Beach, F. knowledge Sanders which would sustain of facts however, is, 2d There conclusion. effect, nothing in to that the record Cook petition allegations consisted Venture 11. The Joint must and and Godchaux. Nichol taken as true.” &.

5QQ protected they he being or reim- have discovered—that Venture were not Though repaid? the com- the words of bursed. terms, specifically use never light being With the Erie this case allegation introduces elements principles equitable the noble senti- taking property another. willful Rule,13 ment of the Golden we cannot true, accepted Liberally construed for Louisiana that the outcome would not squarely to fit would seem these facts likely be affected оne or more or all of 2301, supra, the maxim Article within these considerations. So until companion Article 1965.12 if not within resolved, factual issues are or at least depends on the But that determination faced, squarely and it is demonstrated the subtle nuances of the facts equitably appealing facts do not shape response equity’s which so often proven, exist or cannot be dismissal of actually partici- Did and relief. premature count thereby pate scheme, in Godchaux’s impermissible.14 securing for which it itself benefits to justly (the was not entitled use toAs Cook second & Nichol’s funds) Important factors ? counts, seeking and third those to hold determination include (not Plimsoll) Moses and his firm liable Plimsoll, actual relation Moses “assisting” in Godchaux’s tortious concerning аuthority especially Moses’ authorizing pay conduct Plimsoll to Plimsoll, requirements, if act for any, despite knowledge that God prior action him as a condition unlawfully misappropriating chaux was way payment by Plimsoll. what part Joint Venture funds to finance his *5 positively that how did Moses know Joint of contract, the Plimsoll a funda being Venture funds used? were What question mental fact Did controls: any communication of such facts was any duty contractual, quasi- Moses owe — management responsible to the made contractual, express, implied, or other—to Assuming in Plimsoll ? Moses knew fact by Cook & Nichol virtue the relation- Godehaux’s current misuse Joint ship Moses, ‍‌​‌‌‌​‌​​​​‌‌​​‌​​​‌‌​​​​‌​‌​​‌​‌​‌​‌​​‌​​​‌‌‌​‌‍Plimsoll, between Ven- Venture he ture, did know—or should &Cook and Godchaux? Apparently 12. rigid Article 1965 of the Louisi- than the of the formalism common nothing law, ana Code is intended to be Civil or civil thereof. codifications less a modern of the than codification 12, supra. 13. See note Rule, provides: Biblical Golden it equity by “The rule is intended unlikely at all It is not that the facts principle in founded the Christian not equitable will also reveal an defense. to do unto others that which we would flexible, examplе, given equitable For us; wish not should do others unto may controlling principles, develop that and on maxim the the moral law duty-bound Cook & Nichol was to audit ought that no one enrich himself at to the of the Joint Venture of which affairs expense of law the another. When the partner, it was a failed to land, that which the discharge responsibility properly. have made for themselves their con- circumstances, equity might Under tract, silent, apply are courts must dictate & Nichol not Cook should principles to determine what recover, negligence its own irre- if ought to be to a incidents sponsibility the loss. occasioned required equity.” are Although legal duty inaccurate from an historical The was conclusion (this upon perspective depends disentаnglement “Rule” traced owed can be nearly complex setting teaching in back Rabbi Hillel’s the rather factual years Christ, arose. before birth of which this From earlier, sayings briefs, was even we understand Moses Confucius approximately supervisory years before) in ca- this ar- also involved some unjust pacity ticle the installation of the heat- demonstrates cases on conditioning equipment upon ing enrichment are to be decided and air principles justice good flexible of the International Trade remainder Building. so, equity, have conscience embodied rather If that fact Mart support certainly

Moses cites two authorities to that Cook & Nichol would not, proposition his that he could lose. facts, held state of liable Cook Finally, Cook & Nichol offers inapposite. Both of these & Nichol. are theory. alternаtive Since the Joint Day v. National U. Radiator S. paid Venture all the bills—and Plimsoll 1961, 241 La. So.2d knew this—and the Joint Venture was plaintiff was killed when a hot water conditioning building, the rest of the exploded prior to its boiler final instal really contract was between Plimsoll and lation. Defendant architects had con not and God design tracted with the owner to chaux. Here an in fact contract system approve its installation. The alleged, asserted, and, is it is the Joint apparently resulted, accident at least paid was not as due under part, from the architects’ failure to contract.

supervise during properly installation and Whether or not the facts will sustain completion job. before final pleading completely is irrelevant to Louisiana decidеd the Court disposition surely our here. For case on the basis of the fact that interim plain vanilla, simple count sets forth a supervision required under the breach of contract cause of action. It is opposite architects’ contract—which is imagine straight- difficult a more the situation at bar.16 well-recognized claim, forward and but Engineers, Thomas v. Fromherz C.A. defendants still moved to dismiss for La., 1964, 159 So.2d ref’d [Mar. writ upon failure ‍‌​‌‌‌​‌​​​​‌‌​​‌​​​‌‌​​​​‌​‌​​‌​‌​‌​‌​​‌​​​‌‌‌​‌‍to state a claim which relief 11, 1964], the second case relied on granted. Moses, similarly distinguishable, since It suppose unwarranted to injury it rests on the fact that the result- objection Plimsoll’s real to this count is equipment ed from faults in over which not that it fails to state claim, apparent the architect had “no contrac- “ rather that it is a ‘bucketfull of steam tual or actual control.” 159 So.2d -x- -x- * allegations billowing are But, might of the instant ** vapor, without substance *.’ complete, show Moses had actual control over financial deal- Godchaux’s repeat again “But we ings, because *6 alone he could authorize again: this is not the test. Whether this payment by Plimsoll to steam, is all or whether some knowledge the misuse deрends proof substance on the offered he could have refused to either on a trial or on a motion for sum- approve payment to until the mary judgment demonstrating that there Joint Venture was the genuine On reimbursed. is no as to this pleadings alone, basis of the we cannot critical, applicable decisive issue under bearing question duty, safety some on the stipulated specifica- devices in the partners since Cook & in the tions. Under circumstances we were the they sub-contractors should not hesitate performing duty they work. breached and that reason- ably should have foreseen that this breach 16. The Louisiana Court went damage.” (emphasis sup- would cause way out of its to stress that “we should plied) point out that we do not have here a 128 So.2d at 666. inspected case where [the architects] suggest supervising This approved installation, or even where engineer knowledge possi- who has they knowledge had of the installation bility injury resulting to third permitted and stood the boiler to from his failure to act area re- having safety proper be tested without particular lated course of his em- devices; they or a case where visited ployment, duty does owe a to such third completion the site after in- party to take such action as he reason- and, knowing stallation the boiler ably prevent tested, can or should to was to be harm failed to observe that equipped party. the boiler was not with the the third

5]1 1964, 770, legal principles. v. Outboard 334 F.2d Carss 773.” v. 690; Cir., 1958, Corp., Cir., 1967, Corp., 788, Peel 5 5 252 F.2d Marine 371 F.2d Kellogg quotеd Spencer 791-792, Camilla Cotton Oil Co. v. v. Webb Standard 162; Co., Sons, supra, (foot- Inc., 5 257 Oil F.2d Ferry, omitted). *7 Indeed, 534. once the matter No. 26858. gets beyond lawyers Appeals, United legalese States Court of the facts are and the Court Ninth Circuit. are, may sees what the real .facts well Nov. summary out wash on judgment, Bruce Corp. States, Cir., Constr. v. United Rehearing Denied Dec. then, or if not then later motion for direсted verdict plaintiff’s

after the or all of the evi- Mills,

dence is in. River Brand Rice Corp.,

Inc. General Foods Hospital supra; 17. Mizell v. North Peel Barber Broward supra. Dist., Civ., 1968, Cat,” Motor Vessel “Bine notes Braniff v. Jackson Ave.-Gretna Inc., Cir., 1960, F.2d 523.” Arthur So once we must send the case Harper, supra, H. v. F. Richland Co. back the Trial Court to determine 2d at 326. what facts are, merely and not lawyers say they will be.18 Now, as to the final of this outcome Reversed and remanded. suggеst slight- case, do “even whisper possible pre- opinion est aof RONEY, Judge (concurring); judgment.” Once we sound caveat: I concur decision to reverse be- appears alleges cause that Count IV all—we have deter- “What —and facts sufficient to state a cause of action. mined here states Inconsistent as these facts be with can- claim [Louisiana law] complaint, they the rest of the ‍‌​‌‌‌​‌​​​​‌‌​​‌​​​‌‌​​​​‌​‌​​‌​‌​‌​‌​​‌​​​‌‌‌​‌‍must be disposed of on therefore accepted alleged on a motion to dis- pleadings. Oil Camilla Cotton unnecessary miss. This makes Kellogg Sons, Spencer v. Co. sufficiency decide the other counts 167; 162, 1958, Carss 257 F.2d because when one count “if made in- Outboard Marine dependently sufficient, would be 1; 690, 1958, 252 F.2d n. pleading is not made insufficient Navigazione Alta Itаlia v. Columbia insufficiency of one or more of the 33; Cas. alternative statements.” F.R.Civ.P. Sugars, Inc., Cir., Millet v. Godchaux 8(e) (2). Rule especially cases p. 265, cited n. We do not even at- tempt to intimate what will be the final outcome on remand to District Chagas Berry, Court. 5 Cir., 637, 642; Garrett v. Ameri- Inc., Cir., can Airlines 3 A.L.R.2d Millet v. God- INTERSTATE COMMERCE COMMIS- Sugars, supra, 241 F.2d at 267. SION, Plaintiff-Appellee, Nor for that do we matter even fore- get, cast how far the case will BIG SKY AND FARMERS RANCHERS certainly necessity not that there is MARKETING COOPERATIVE OF trial, a full-blown Smoot v. State Farm al., Defendants-Appel- MONTANA et Co., Cir., 1962, Mut. Auto Ins. lants.