# Mayer Electric Supply Company Inc v. Chester Electric LLC

> District Court, E.D. Louisiana · August 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10188170

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10188170

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MAYER ELECTRIC SUPPLY CIVIL ACTION
COMPANY, INC.

VERSUS CASE NO. 21-372
CHESTER ELECTRIC, LLC SECTION: “G”

ORDER AND REASONS
Plaintiff Mayer Electric Supply Company, Inc. (“Plaintiff”) brings this suit against Chester
Electric, LLC (“Defendant”).1 Plaintiff seeks to recover payment for materials allegedly owed
under a contract with Defendant.2 Before the Court is Plaintiff’s “Motion for Partial Summary
Judgment as to Defendant’s Affirmative Defenses and Counterclaims.”3 Defendant opposes the
motion.4 Having considered the motion, the memoranda in support and opposition, the record, and
the applicable law, the Court grants the motion.
I. Background
On February 19, 2021, Plaintiff filed a complaint against Defendant in this Court, asserting
diversity jurisdiction pursuant to 28 U.S.C. § 1332.5 On February 25, 2021, Plaintiff filed an

1 Rec. Doc. 1.
2 Id.
3 Rec. Doc. 50.
4 Rec. Doc. 53.
5 Rec. Doc. 1.
1
amended complaint.6 Plaintiff alleges that it entered into an agreement with Defendant through
which Plaintiff agreed to sell electrical materials to Defendant on credit.7 Plaintiff claims that it
abided by the terms of the agreement and sold materials on credit to Defendant, but Defendant
refused to pay for the materials.8 Accordingly, Plaintiff brings claims under Louisiana law for (1)
open account; (2) breach of contract; (3) unjust enrichment; and (4) attorney’s fees.9

On June 28, 2022, Plaintiff filed the instant “Motion for Partial Summary Judgment as to
Defendant’s Affirmative Defenses and Counterclaims.”10 On July 5, 2022, Defendant opposed the
motion.11
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
Plaintiff moves for summary judgment on each of Defendant’s affirmative defenses,
including (1) Accord and satisfaction; (2) Payment; (3) Waiver; (4) Estoppel; (5) Duress; (6)
Failure of consideration; (7) Laches; (8) Contributory negligence; (9) Breach of contract by Mayer;
and (10) Failure to mitigate damages. Plaintiff also moves for summary judgment on Defendant’s

counterclaims for (11) Breach of contract; and (12) Unjust enrichment.

6 Rec. Doc. 7.
7 Id. at 1–2.
8 Id.
9 Rec. Doc. 1, 7.
10 Rec. Doc. 50.
11 Rec. Doc. 53.
2
1. Accord and Satisfaction
Plaintiff argues that “accord and satisfaction occurs ‘when the claimant of a disputed or
unliquidated claim, regardless of the extent of his claim, accepts a payment that the other party
tenders with the clearly expressed written condition that acceptance of the payment will extinguish
the obligation.’”12 Plaintiff argues that there is no evidence that Plaintiff accepted any such

payment, and thus the Court should grant summary judgment for Plaintiff on this affirmative
defense.
2. Payment
Plaintiff argues that “payment is a special or affirmative defense in a suit on open
account.”13 Plaintiff contends that “the record contains no evidence that [Defendant] paid
[Plaintiff]’s claim in full,” and thus the Court should grant summary judgment for Plaintiff on this
affirmative defense.14
3. Waiver
Plaintiff contends that the elements of waiver are “the existence, at the time of the alleged

waiver, of a right, advantage, or benefit, the knowledge, actual or constructive, of the existence
thereof, and an intention to relinquish such right, advantage or benefit.”15 Plaintiff argues that there
is “no evidence that [Plaintiff] knowingly relinquished a right, advantage, or benefit,” and thus the
Court should grant summary judgment for Plaintiff on this affirmative defense.16

12 Rec. Doc. 50-2 at 2.
13 Id. at 3.
14 Id.
15 Id. (quoting Michel v. Efferson, 65 So. 3d 115, 119-20 (La. 1952)).
16 Id.
3
4. Estoppel
Plaintiff contends that to show that Plaintiff is estopped from asserting a claim, Defendant
must show (1) Plaintiff knew of the facts relied upon, (2) Defendant was induced to change its
position in reliance upon the conduct of Plaintiff and (3) Defendant’s own good faith and
diligence.17 Plaintiff argues that the record contains no evidence that (1) Plaintiff knew of any facts

upon which Defendant relied to its detriment; or (2) Defendant acted with good faith and
diligence.18 Therefore, Plaintiff argues that the Court should grant summary judgment for Plaintiff
on this affirmative defense.19
5. Duress
Plaintiff argues that “[c]onsent is vitiated when it has been obtained by duress of such a
nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property,
or reputation.”20 Plaintiff contends that there is “no evidence that [Defendant] had a reasonable
fear of unjust and considerable injury of any sort.”21 Thus, Plaintiff argues that the Court should
grant summary judgment for Plaintiff on this affirmative defense.22

6. Failure of consideration
Plaintiff argues that “the defense of failure of consideration concedes that there was
consideration for the instrument in its inception, but alleges that the consideration has wholly or

17 Id. at 3–4.
18 Id. at 4.
19 Id.
20 Id.
21 Id.
22 Id.
4
partially ceased to exist.”23 Plaintiff contends that there is “no evidence that the consideration
underlying the agreement between [Defendant] and [Plaintiff] ceased to exist, either partially or
wholly.”24 Thus, Plaintiff argues that the Court should grant summary judgment for Plaintiff on
this affirmative defense.25

7. Laches
Plaintiff argues that the defense of laches requires that (1) there was a delay in asserting a
right or claim; (2) the delay was inexcusable; and (3) undue prejudice resulted from the delay.26
Plaintiff argues that there is “no evidence that [Plaintiff] delayed in asserting any right or claim
against [Defendant],” and thus argues that the Court should grant summary judgment for Plaintiff
on this affirmative defense.27
8. Contributory Negligence
Plaintiff argues that because it has not asserted a negligence claim, the doctrine of
contributory negligence does not apply.28 Plaintiff contends that “[t]o the extent [Defendant]
invokes Louisiana Civil Code article 2323, which governs comparative fault, the record contains
no evidence that [Plaintiff] has any fault or caused or contributed to its own injury.”29

23 Id. at 4 (quoting Smith v. La. Bank & Tr. Co., 272 So. 2d 678, 683 (La. 1973)).
24 Id. at 5.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
5
9. Breach of Contract by Plaintiff
Plaintiff notes that it addresses this affirmative defense more fully in its briefing on
Defendant’s counterclaim for breach of contract.30 However, Plaintiff contends that there is “no
evidence of any agreement other than the written agreement proffered by [Plaintiff],” and that
Defendant alleges “breaches of terms that do not exist in the written agreement.”31 Thus, Plaintiff

argues that the Court should grant summary judgment for Plaintiff on this affirmative defense.32
10. Failure to Mitigate Damages
Plaintiff argues that although an “oblige must make reasonable efforts to mitigate the
damage caused by the obligor’s failure to perform,” there is “no evidence that [Plaintiff] failed to
make reasonable efforts to mitigate the damages caused by [Defendant]’s failure to perform under
their agreement.33 Thus, Plaintiff argues that the Court should grant summary judgment for
Plaintiff on this affirmative defense.34
11. Counterclaim for Breach of Contract
Plaintiff argues that under Louisiana law, the elements of a breach of contract are: (1) the

obligor’s undertaking an obligation to perform; (2) the obligor failed to perform the obligation,
and (3) the failure to perform resulted in damages to the obligee.35 Plaintiff notes that Defendant
claims it violated the agreement by: (1) closing the Harahan warehouse (2) requiring Defendant to

30 Id. at 5–6.
31 Id. at 6.
32 Id.
33 Id.
34 Id.
35 Id. at 7.
6
accept delivery of materials earlier than anticipated; (3) delivering incorrect materials; and (4)
failing to deliver all of the ordered materials.36 Plaintiff argues that the agreement requires all
modifications to be in writing, and that there is no evidence of such a writing modifying their
written agreement.37 Plaintiff argues that the written agreement “says nothing about the amount of

time [Plaintiff]’s Louisiana warehouse would remain open or any obligation on [Plaintiff]’s part
to store materials for [Defendant].”38 Plaintiff further argues that there is “no evidence that
[Plaintiff] delivered incorrect materials or failed to deliver all the materials [Defendant]
requested.”39 Thus, Plaintiff argues the Court should grant summary judgment for Plaintiff on
Defendant’s counterclaim for breach of contract.40
12. Counterclaim for Unjust Enrichment
Plaintiff argues that Defendant’s unjust enrichment counterclaim is based on “the same
reasons [Defendant] claims [Plaintiff] breached the contract between them.”41 Plaintiff contends
that there is “no evidence that [Plaintiff] was enriched at [Defendant]’s expense.”42 Additionally,
Plaintiff argues that because Defendant “claims it has legal remedies in the form of a breach of

36 Id.
37 Id. at 7–8.
38 Id.
39 Id. at 8.
40 Id.
41 Rec. Doc. 50-2 at 8.
42 Id.
7
contract claim, [] it has no remedy for unjust enrichment.”43 Thus, Plaintiff argues that the Court
should grant summary judgment for Plaintiff on this counterclaim.44
B. Defendant’s Arguments in Opposition to the Motion
1. Accord and satisfaction

Defendant argues that an “accord and satisfaction” occurs when “there is a disputed claim
between the parties, an amount tendered towards a certain amount to settle the disputed claim, and
an acceptance of the tender.45 Defendant argues that it paid a series of checks totaling $58,311.70
to Plaintiff in accord and satisfaction of Plaintiff’s disputed claim for $106,545.17.46 Defendant
argues that because Plaintiff accepted these payments, “there is a dispute of material fact that
accord and satisfaction exists at least regarding $58,311.70.”47
2. Payment
Defendant argues that Plaintiff’s motion ignores the fact that Defendant paid $58,311.70
toward Plaintiff’s claim for $106,545.17.48 Therefore, Defendant argues that “there is a genuine
dispute of material fact that should prevent summary judgment on this claim of payment.”49

43 Id.
44 Id.
45 Rec. Doc. 53 at 5.
46 Id. at 6.
47 Id.
48 Id.
49 Id.
8
3. Waiver
Defendant argues that Plaintiff “waived its right to payment by knowingly breaching its
contract with Defendant through accelerating delivery and payment for electrical materials and
forcing Defendant to warehouse said materials.”50 Therefore, Defendant argues that Plaintiff

“cannot request payment because it failed to perform its obligation in the contract that would
justify such payment.”51 Furthermore, Defendant argues that because Plaintiff has received
payment in the amount of $58,311.70, “[i]t has thus waived its claim to payment for the full sum
of [$]106,545.17.”52
4. Estoppel
Defendant argues that Plaintiff “made a representation that they would warehouse all
construction materials and allow Chester to order and pay for these materials on an as-needed
basis.”53 Defendant contends that it was justifiable for Defendant to rely on this representation
because “the initial course of dealings between the parties saw [Defendant] request delivery of and
pay for them as he needed them, rather than have them delivered all at once.”54 Defendant

contends that it relied on this representation to its detriment, because these “misrepresentations
caused [Defendant] to suffer losses in having to pay for extra storage containers and in paying for
broken and unnecessary supplies on an accelerated basis.”55

50 Id. at 7.
51 Id.
52 Id.
53 Id. at 8.
54 Id.
55 Id.
9
5. Duress
Defendant further argues that it was “a victim of economic duress when [Plaintiff]
unexpectedly accelerated delivery of all materials to Defendant,” as “Defendant had no option,
despite [Plaintiff]’s breach and Defendant’s loss of profit, because it needed the materials from
[Plaintiff] or else it would have lost its construction job with general contractor B&L.”56

6. Failure of Consideration
Defendant argues that consideration “initially existed on the premise that [Plaintiff] would
warehouse construction materials for [Defendant] and allow [Defendant] to order and pay for them
on an as-needed basis.”57 However, Defendant argues that consideration “ceased to exist when
[Plaintiff] closed their Harahan warehouse and accelerated delivery and payment of materials.”58
According to Defendant, Defendant had to warehouse and pay for the materials immediately,
“which was a violation of the parties’ original consideration.”59
7. Laches
Defendant makes no argument as to its affirmative defense of laches.

8. Contributory Negligence
Defendant makes no argument as to its affirmative defense of contributory negligence.

56 Id. at 8–9.
57 Id. at 9.
58 Id.
59 Id.
10
9. Breach of contract by Mayer
Defendant argues that because the contract is silent as to Plaintiff’s duty to warehouse and
deliver materials on an as-needed basis, the contract must be “interpreted by ‘the conduct of the
parties before and after the formation of the contract.”60 Defendant argues that the parties emails

and conduct proves “that the parties initially understood, in accordance with their agreement, that
[Plaintiff] was to warehouse and deliver goods to [Defendant] on an as-needed basis, and that
[Defendant] would be invoiced for materials as [it] purchased them individually.”61 Defendant
argues that Plaintiff breached this agreement by accelerating delivery and payment and requiring
Defendant to warehouse the materials.62
10. Failure to Mitigate Damages.
Defendant argues that Plaintiff “failed to mitigate damages by sitting on monies for
payment that had been tendered via checks in order to establish federal jurisdiction and justify an
award for attorney’s fees.”63 Defendant contends that Plaintiff “acknowledged and received
payment for significant amounts of the $106,545.17 they were alleged to have been owed,” but

“[r]ather than cash these checks, [Plaintiff] sat on them to create the impression they were owed
$106,545 in order to justify an award for attorney’s fee[s] and to artificially generate the amount
in controversy needed for federal jurisdiction.”64 Defendant argues that the emails demonstrating

60 Id. at 10.
61 Id.
62 Id. at 10–11.
63 Id. at 11.
64 Id.
11
that Defendant sent checks to Plaintiff “create a genuine dispute of material fact over whether
[Plaintiff] failed to mitigate its damages.”65
11. Breach of contract counterclaim
Defendant argues that the parties’ “course of dealings alone creates a genuine dispute of
material fact regarding a breach of contract.”66 Defendant contends that because the “credit

agreement is silent on how [Plaintiff] is supposed to deliver and store the goods for [Defendant],”
the Court must “view the agreement in terms of ‘the conduct of the parties before and after the
formation of the contract.”67 Defendant contends that the “email correspondence between the
parties during the agreement . . . clearly evidence that the parties’ intent was to have [Plaintiff]
warehouse all job-specific materials for [Defendant], and then deliver them to [Plaintiff] at the job
site on an as-needed basis.”68 According to Defendant, it would “simply be invoiced for only the
materials actually requested and delivered for needs that arose during the project.”69 Defendant
argues that the parties’ “conduct immediately after the contract was signed makes it clear that
[Plaintiff] had an obligation to keep [the materials] warehoused until Defendant requested them.”70

Defendant argues that Plaintiff “breached its obligation to Defendant when it unilaterally decided

65 Id.
66 Rec. Doc. 53 at 13.
67 Id.
68 Id.
69 Id. at 13–14.
70 Id.
12
to accelerate the delivery of materials to Defendant, accelerate the demand for payment of
materials, and by forcing [Defendant] to warehouse all construction materials.”71
Lastly, Defendant argues that Plaintiff is liable for the costs Defendant incurred for storage
because, under Louisiana law, any contractual provision that waives consequential damages is
“null and void.”72 Therefore, Defendant contends that Plaintiff is not entitled to summary judgment

on this defense.
12. Unjust enrichment counterclaim
Defendant argues that unjust enrichment “is being pleaded in the alternative to Defendant’s
breach of contract claim, not alongside it.”73 Defendant contends that Plaintiff was unjustly
enriched by “forcing [Defendant] to warehouse electrical supplies and materials, accelerating said
materials delivery, and demanding pre-payment of all said materials.”74 Defendant contends that
it was “impoverished by this decision as it had to obtain a secure storage facility at their own cost
and forced to pay in advance for as of yet unneeded, incorrect and defective electrical materials
and supplies.”75 Defendant asserts that “a claimant can plead for unjust enrichment in the
alternative in case their pleadings for other contractual remedies do not succeed.”76 Defendant

71 Id. at 14.
72 Id.
73 Id.
74 Id. at 15.
75 Id.
76 Id.
13
argues that its “unjust enrichment claim will stand in the event its breach of contract counterclaim
is unsuccessful, as it will at that point be the only legal remedy left to Defendant.”77
III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and affidavits

demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”78 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrain[s] from making credibility determinations
or weighing the evidence.”79 All reasonable inferences are drawn in favor of the nonmoving
party.80 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”81
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.82 The nonmoving party may not rest upon the pleadings.83 Instead, the nonmoving

77 Id.
78 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
79 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
80 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at
150).
81 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
82 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of
Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)).
83 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
14
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.84
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.85 “To satisfy this burden, the movant may either (1) submit evidentiary

documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”86 If the moving party satisfies its initial burden, the burden shifts to
the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how
that evidence supports the nonmoving party’s claims.87 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”88
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied

merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,

84 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
85 Celotex, 477 U.S. at 323.
86 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).
87 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v.
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
88 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
15
by unsubstantiated assertions, or by only a scintilla of evidence.”89 Moreover, the nonmoving party
may not rest upon mere allegations or denials in its pleadings.90
IV. Analysis91
Plaintiff moves for summary judgment on each of Defendant’s affirmative defenses,

including (1) Accord and satisfaction; (2) Payment; (3) Waiver; (4) Estoppel; (5) Duress; (6)
Failure of consideration; (7) Laches; (8) Contributory negligence; (9) Breach of contract by Mayer;
and (10) Failure to mitigate damages. Plaintiff also moves for summary judgment on Defendant’s
counterclaims for (11) Breach of contract; and (12) Unjust enrichment. The Court will address
each in turn.
1. Accord and satisfaction
“The doctrine of accord and satisfaction estops a creditor from suing on a compromised
debt.”92 “For there to be a valid accord and satisfaction of a debt or claim, there must be:
(1) a disputed claim; (2) a tender of a check for less than the amount of the claim by the debtor,
and (3) an acceptance of the tender by the creditor.”93 However, [e]ssential to finding that a valid

accord and satisfaction occurred is a showing that the creditor understood that the payment was
tendered in full settlement of the dispute.”94 Therefore, “an accord and satisfaction is not present

89 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).
90 Morris, 144 F.3d at 380.
91 Because Defendant has asserted both an affirmative defense and a counterclaim based on Plaintiff’s alleged
breach of contract, and the claims are identical, the Court will analyze them together.
92 Complete Med. Sys., LLC v. Health Net Fed. Servs., LLC, No. 13-0367 (La. App. 1 Cir. 11/1/13); 136 So.
3d 807, 810–11.
93 Id. (citing Harrington v. Aetna Life & Cas. Co., 441 So. 2d 1255, 1256 (La. App. 1 Cir. 1983)).
94 Id. (citing Ryan v. State Farm Mut. Auto. Ins. Co., 2010-0961, 2010-0962 (La. App. 1 Cir. 12/22/10); 68
So. 3d 563, 569).
16
if there is no evidence that the creditor was fully informed of the nature of the compromise offer
by the debtor.”95
Here, although there is evidence that Defendant sent Plaintiff several checks for amounts
less than the total allegedly owed, Defendant provides no evidence that Plaintiff “understood that
the[se] payment[s] w[ere] tendered in full settlement of the dispute.”96 In other words, there is no

evidence that Plaintiff’s acceptance of these partial payments was intended to satisfy the entire
debt. Therefore, Plaintiff is entitled to summary judgment on this defense.
2. Payment
Defendant asserts the defense of “payment,” which is “a special or affirmative defense in
a suit on open account.”97 Defendant has the burden of proving that it has made a payment.98
Plaintiff argues that there is no evidence that Defendant paid Plaintiff’s claim in full.99 Defendant
responds that Plaintiff “ignores that Defendant’s [affirmative defense] was regarding [Plaintiff]’s
claim for the entire $106,545.17 of the original credit agreement. This was despite Defendant
paying [Plaintiff] $58,311.70 of this fee through check.”100 Defendant contends that Plaintiff

accepted this payment, and that Plaintiff’s “failure to amend their pleading to reflect this does not
suddenly make this counterclaim moot.”101

95 Id. (citing Harrington, 441. So. 2d at 1256).
96 Id. (citing Ryan, 68 So. 3d at 569).
97 Paul Piazza and Son, Inc v. Sider, 427 So.2d 672, 673 (La. App. 4 Cir. 1983); see also La. Code Civ. P.
art. 1005 (listing the “extinguishment of the obligation in any manner” as an affirmative defense).
98 Nat’l Cash Reg. Co. v. Benoit, 228 So. 2d 319 (La. App. 3 Cir. 1969).
99 Rec. Doc. 50-2 at 3.
100 Rec. Doc. 53 at 6.
101 Id. at 6–7.
17
It is undisputed that Plaintiff originally claimed damages in the amount of $106,545.17,
and that Defendant has since paid $58,311.70 of it by check. Defendant does not explain why its
payment of $58,311.70 creates a dispute of fact as to its liability for the remaining balance. Of
course, Plaintiff cannot recover twice for the amounts already paid. However, because it is

undisputed that Defendant has not paid the full amount of the claim, Plaintiff is entitled to summary
judgment on this defense.
3. Waiver
Defendant’s answer asserted the affirmative defense of waiver.102 “The essential elements
of a waiver . . . are the existence, at the time of the alleged waiver, of a right, advantage, or benefit,
the knowledge, actual or constructive, of the existence thereof, and an intention to relinquish
such right, advantage, or benefit. Voluntary choice is of the very essence of waiver.”103 “Waiver
involves both knowledge and intention and it follows that ignorance of a material fact negatives
waiver. Waiver can result only from the intentional relinquishment of a known right.”104
Defendant argues that Plaintiff “waived its right to payment by knowingly breaching its

contract with Defendant through accelerating delivery and payment for electrical materials and
forcing Defendant to warehouse said materials.”105 Defendant further argues that because Plaintiff
has already accepted several checks from Defendant, “[i]t has thus waived its claim to payment

102 Rec. Doc. 32.
103 Hogan Exploration, Inc. v. Monroe Engineering Associates, Inc., 430 So. 2d 696 (La. App. 2nd Cir (1983)
(quoting Michel, 65 So. 2d at 115).
104 Michel, 65 So.2d at 120.
105 Rec. Doc. 53 at 7.
18
for the full sum of $106,545.17.”106 However, Defendant has not provided any evidence that
Plaintiff intentionally relinquished the right to collect the remaining sum of money by accepting
the partial payment. Furthermore, Defendant offers no evidence that Plaintiff knowingly
relinquished its right to recover the outstanding sum when it closed the warehouse and accelerated

delivery and payment. Therefore, Plaintiff is entitled to summary judgment as to Defendant’s
affirmative defense of waiver.
4. Estoppel
Defendant asserts the affirmative defense of estoppel. Estoppel is the “effect of the
voluntary conduct of a party whereby [it] is barred from asserting rights against another party
justifiably relying on such conduct and who has changed [its] position to [its detriment] as a result
of such reliance.”107 “Estoppels are not favored [under Louisiana] law; therefore, a party cannot
avail himself of that doctrine unless he proves all essential elements of the plea.”108 “[T]he three
essential elements of estoppel are: (1) a representation; (2) justifiable reliance on the
representation; and (3) a change in position to one’s detriment as the result of such reliance.”109

Defendant argues that Plaintiff “made a representation that they would warehouse all
construction materials and allow [Defendant] to order and pay for these materials on an as-needed
basis.”110 However, Defendant does not provide evidence about the nature of any representation
made by Plaintiff. Defendant appears to rely on the affidavit of Kara Williams, who declares as

106 Id.
107 Wilkinson v. Wilkinson, 323 So. 2d 120, 126 (1975).
108 Hansen v. River Cities Disposal Co., 51,700 (La. App. 2 Cir. 11/15/17); 245 So. 3d 213, 223.
109 Zimeri v. Citizens and Southern Intern. Bank of New Orleans, 664 F.2d 952, 955 (5th Cir. 1981).
110 Rec. Doc. 53.
19
follows:
6. [Plaintiff] had a warehouse in Harahan, Louisiana, which would order and
segregate materials and supplies for [Defendant], on a project-specific basis.

7. [Plaintiff] would deliver as-needed portions of the materials and supplies to the
particular job site, in the normal course of the project.

8. [Plaintiff] would then invoice [Defendant], on an ongoing basis, for each partial
delivery of the materials and supplies, until a job was completed.

9. As each partial delivery occurred, [Defendant] would then drop off a check at
[Plaintiff]’s Harahan facility to pay for said partial delivery.111

However, Defendant does not point to evidence that a representation was made, who it was made
by, when it was made, or whether the representation contemplated that this arrangement was
indefinite.
In any event, even assuming a representation was made, Defendant fails to demonstrate
that it was justifiable for Defendant to rely on any such representation. Defendant contends that “it
was justifiable for Defendant to rely on this representation because the initial course of dealings
between the parties saw [Defendant] request delivery of and pay for [the materials] as [Defendant]
needed them.”112 However, the Fifth Circuit has explained that under Louisiana law, a party’s
“reliance on promises made outside of an unambiguous, fully-integrated agreement [is]
unreasonable as a matter of law.”113 Because the parties’ fully integrated contract says nothing
about any duty to store materials, Defendant’s reliance on any representation that Plaintiff would
do so was unreasonable as a matter of law. Therefore, Plaintiff is entitled to summary judgment

111 Rec. Doc. 19-2.
112 Rec. Doc. 53 at 8.
113 Drs. Bethea, Moutsoukas and Weaver, LLC v. St .Paul Guardian Ins. Co., 376 F.3d 399, 403–04 (5th Cir.
2004).
20
on this defense.
5. Duress
Louisiana Civil Code article 1959 provides that consent to a contract “is vitiated when it
has been obtained by duress of such a nature as to cause a reasonable fear of unjust and

considerable injury to a party’s person, property, or reputation. Age, health, disposition, and other
personal circumstances of a party must be taken into account in determining reasonableness of the
fear.”114 Defendant argues that “Defendant became a victim of economic duress when Mayer
unexpectedly accelerated delivery of all materials to Defendant. Defendant had no option, despite
Mayer’s breach and Defendant’s loss of profit, because it needed the materials from Mayer or else
it would have lost its construction job with general contractor B&L.”115 However, even assuming
that Plaintiff’s conduct was sufficient to create a reasonable fear of unjust and considerable injury,
this conduct necessarily occurred after Defendant consented to the contract. However, “[d]uress
results when ‘a person makes an improper threat that induces a party who has no reasonable
alternative to manifest his assent.’”116 Defendant offers no evidence, and provides no argument,

that its consent to the contract was obtained through duress. Therefore, Plaintiff is entitled to
summary judgment as to this defense.
6. Failure of consideration
In its answer, Defendant asserted the affirmative defense of “failure of consideration.”117

114 La. Civ. Code Art. 1959.
115 Rec. Doc. 53.
116 Wolf. v. Louisiana State Racing Com’n, 88-C-3064, 545 So. 2d 976, 980 (La. 1989).
117 Rec. Doc. 32 at 6.
21
Louisiana Code of Civil Procedure Article 1005 lists “failure of consideration” as an affirmative
defense.118 However, it is well established that consideration is not required under Louisiana law.
Louisiana does not follow the common law tradition that requires consideration to
effect an enforceable contract. Rather, the mere will of the parties will bind them,
without what a common law court would consider to be consideration to support a
contract, so long as the parties have a lawful “cause.”119

Furthermore, ‘“cause’ is not ‘consideration.’ The reason why a party binds [itself] need not be to
obtain something in return or to secure an advantage for [itself].”120 Therefore, although the
Louisiana Code of Civil Procedure still lists “failure of consideration” as an affirmative defense,
Louisiana courts have explained that this article “at the time of its enactment was in accordance
with the terminology of the former Civil Code articles addressing ‘cause.’ However, when those
Civil Code articles were amended in 1983 to remove the term ‘consideration’ from the explanation
of ‘cause,’ the legislature failed to likewise amend [the Louisiana Code of Civil Procedure].”121
Defendant argues that “consideration initially existed on the premise that Mayer would
warehouse construction materials for [Defendant] and allow [Defendant] to order and pay for them
on [an] as-needed basis”122 and that such consideration failed when Plaintiff closed the Harahan
warehouse and accelerated delivery and payment of the materials.123 However, even assuming that
to be true, as explained above, consideration is not required under Louisiana law. Therefore,

118 La. Code Civ. P. art. 1005.
119 Aaron & Turner, LLC v. Perret, No. 07-1701 (La. App. 1 Cir. 5/4/09); 22 So. 3d 910, 915.
120 La. Civ. Code art 1967, cmt. c.
121 Mapp Constr., LLC v. Southgate Penthouses, LLC, No. 09-0850 (La. App. 1 Cir. 10/23/09); 29 So. 3d
548, 565 n. 14.
122 Rec. Doc. 53 at 9.
123 Id.
22
Plaintiff is entitled to summary judgment on this defense.
7. Laches
Plaintiff moved for summary judgment on Defendant’s affirmative defense of laches.124
Defendant makes no argument in response, and thus appears to concede that summary judgment

on this defense is proper. Because Defendant bears the burden of proof of its affirmative defense
at trial and has failed to respond to Plaintiff’s arguments as to this defense,125 the Court will grant
summary judgment for Plaintiff on this defense.
8. Contributory negligence
Plaintiff moved for summary judgment on Defendant’s affirmative defense of contributory
negligence because Plaintiff did not assert a negligence claim.126 Defendant makes no argument
in response, and thus appears to concede that summary judgment on this defense is proper. Because
Defendant bears the burden of proof of its affirmative defense at trial and has failed to respond to
Plaintiff’s arguments as to this defense,127 the Court will grant summary judgment for Plaintiff on
this defense.

9. Breach of contract by Mayer
Because this affirmative defense is identical to Defendant’s counterclaim for breach of
contract, the Court addresses them together below.

124 Rec. Doc. 50-2 at 5.
125 See Duplantis, 948 F.2d at 190; Forsyth, 19 F.3d at 1537; see also Morris, 144 F.3d at 380.
126 Rec. Doc. 50-2 at 5.
127 See Duplantis, 948 F.2d at 190; Forsyth, 19 F.3d at 1537; see also Morris, 144 F.3d at 380.
23
10. Failure to mitigate damages
Plaintiff moves for summary judgment on Defendant’s affirmative defense of failure to
mitigate damages because, according to Plaintiff, there is no evidence that Plaintiff failed to make
reasonable efforts to mitigate damages.128 Rather, Plaintiff argues that the record shows that

Plaintiff “attempted to recover the losses through the contractors and owners for whom Chester
was working, and that [Plaintiff] successfully mitigated some of those losses” as it was able to
recover $67,906.61.129 Defendant responds that Plaintiff failed to mitigate damages “by sitting on
monies for payment that had been tendered via checks in order to establish federal jurisdiction and
justify an award for attorney’s fees.”130 Defendant argues that Plaintiff waited to cash the checks
in order to “artificially generate the amount in controversy needed for federal jurisdiction.”131
Defendant points to evidence in the record demonstrating that Plaintiff was informed on February
12, 2021, seven days prior to the filing of the lawsuit, that Defendant was sending several checks
to Plaintiff.132
Louisiana Civil Code Article 2002 provides that “[a]n obligee must make reasonable

efforts to mitigate the damage caused by the obligor’s failure to perform. When an obligee fails to
make these efforts, the obligor may demand that the damages be accordingly reduced.”133

128 Rec. Doc. 50-2 at 6.
129 Id.
130 Id. at 11.
131 Id.
132 Rec. Doc. 19-2 at 3, 5; Rec. Doc. 19-3 at 3–7.
133 La. Civ. Code art. 2002.
24
“Reasonable efforts” are “such efforts as do not place an excessive burden on the obligee.”134
Defendant does not argue that Plaintiff failed to mitigate its damages from Defendant’s alleged
breach of contract. Rather, Defendant contends that Plaintiff failed to mitigate attorney’s fees by
filing the lawsuit despite knowledge that Defendant had mailed checks to satisfy a substantial
amount of the debt allegedly owed to Plaintiff.135 Defendant argues that “[r]ather than cash these

checks, [Plaintiff] sat on them to create the impression they were owed $106,545 in order to justify
an award for attorney’s fee and to artificially generate the amount in controversy needed for federal
jurisdiction.”136 Defendant cites no authority for the application of the mitigation rule in such a
context. Rather, it seems more prudent to consider Plaintiff’s litigation conduct in the context of a
motion for attorney’s fees, rather than a motion for summary judgment. Thus, the Court will grant
summary judgment as to this affirmative defense. However, the Court will consider Plaintiff’s
litigation conduct in resolving any subsequent motion for attorneys’ fees.
11. Breach of Contract Affirmative Defense and Counterclaim
Defendant has asserted both an affirmative defense and a counterclaim regarding Plaintiff’s

alleged breach of the contract. Plaintiff moves for summary judgment on both. However, because
the claims are identical whether characterized as an affirmative defense or a counterclaim, the
Court will consider them together.
Plaintiff argues that it is entitled to summary judgment on Defendant’s affirmative defense
and counterclaim for breach of contract because there is no evidence that Plaintiff breached the

134 La. Civ. Code art. 2002, cmt. c (quoting Unverzagt v. Young Builders, Inc., 215 So. 2d 823 (1968)).
135 Rec. Doc. 53 at 11.
136 Id.
25
contract. Specifically, Plaintiff argues that the contract says nothing about an obligation for
Plaintiff to keep the Harahan warehouse open or to store materials for Defendant, and that there is
no evidence that the contract was modified.137 Plaintiff further argues that Defendant’s damages
for storage costs are consequential damages, which are not recoverable under the terms of the
parties’ agreement.138 Lastly, Plaintiff argues that there is no evidence that Plaintiff delivered the

wrong materials to Defendant.139 In response, Defendant argues that because the agreement is
“silent on how [Plaintiff] is supposed to deliver and store the goods for [Defendant],” the Court
must “view the agreement in terms of ‘the conduct of the parties before and after the formation of
the contract.”140 Defendant contends that the “initial course of dealings” demonstrate that “the
parties intent was to have [Plaintiff] warehouse all job-specific materials for [Defendant], and then
deliver them to [Plaintiff] at the job stie on an as-needed basis.”141 Lastly, Defendant argues that
under Louisiana law, any contractual provision waiving consequential damages is null and void.142
Under Louisiana law, the “essential elements of a breach of contract claim are (1) the
obligor’s undertaking an obligation to perform, (2) the obligor failed to perform the obligation (the
breach), and (3) the failure to perform resulted in damages to the oblige.”143 “Interpretation of a

137 Rec. Doc. 50-2 at 7–8.
138 Id.
139 Id.
140 Rec. Doc. 53 at 13.
141 Id. at 13–14.
142 Id.
143 Denham Homes, LLC v. Teche Fed. Bank, No. 14-1576 (La. App. 1 Cir. 9/18/15); 182 So. 3d 108, 119
(citing La. Civ. Code art. 1994 and Favrot v. Favrot, No. 10-0986 (La. App. 4 Cir. 2/9/11); 68 So. 3d 1099, 1108–
09.)
26
contract is the determination of the common intent of the parties.”144 “When the words of a contract
are clear and explicit and lead to no absurd consequences, no further interpretation may be made
in search of the parties’ intent.145 “The words of a contract must be given their generally prevailing
meaning.”146

The terms of the parties’ written contract are silent as to any obligation for Plaintiff to store
the materials at its warehouse. The terms of the contract do provide as follows:
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN
THE PARTIES. AND MAY NOT BE ALTERED EXCEPT IN WRITING
SIGNED BY A CORPORATE OFFICER OF MAYER AND THE BUYER. AND
SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE IN
WHICH VENUE IS PROPER AND AS PROVIDED HEREIN.147

Citing Louisiana Civil Code article 2053, Defendant argues that the parties’ “course of dealings”
“clearly evidence that the parties’ intent was to have [Plaintiff] warehouse all job-specific materials
for [Defendant,] and then deliver them to [Defendant] at the job site on an as-needed basis.”148
Louisiana Civil Code article 2053 provides as follows:
A doubtful provision must be interpreted in light of the nature of the contract,
equity, usages, the conduct of the parties before and after the formation of the
contract, and of other contracts of a like nature between the same parties.149

However, Defendant does not explain why article 2053 applies where the Court is not
“interpret[ing]” “[a] doubtful provision.” Indeed, the comments to article 2053 make clear that it

144 La. Civ. Code art. 2045.
145 La. Civ. Code art. 2046.
146 La. Civ. Code art. 2047.
147 Rec. Doc. 39-3 at 8.
148 Rec. Doc. 53 at 13.
149 La. Civ. Code art. 2053.
27
was intended to “clarif[y] the law by providing that courts may resort to equity for guidance only
when the meaning of a provision is in doubt. They may not do so in order to enlarge or restrict the
scope of a contract whose meaning is apparent.”150 Defendant does not point to any provision of
the parties’ contract that is ambiguous as to whether Plaintiff had an obligation to store materials

and provide them on an as-needed basis. Rather, Defendant concedes that the contract is silent on
this topic. Instead, Defendant argues that “[t]he parties’ conduct immediately after the contract
was signed makes it clear that [Plaintiff] had an obligation to keep [the materials] warehoused until
Defendant requested them.” However, Defendant provides no authority for the proposition that the
parties’ conduct added terms to the parties’ written agreement. In fact, as to Defendant’s claim that
Plaintiff breached the contract by accelerating delivery and payment, Louisiana Civil Code Article
2550 provides that “[p]ayment of the price is due at the time and place stipulated in the contract,
or at the time and place of delivery if the contract contains no such stipulation.”151 Because the
parties’ agreement does not specify when payment is due, payment was due upon delivery absent
sufficient evidence of some other agreement. The Court notes that each invoice to Defendant had
a specific due date, each of which were at least 30 days after the materials were shipped.152

Therefore, Defendant has not carried its burden of demonstrating that Plaintiff breached any
obligation owed to Defendant.153 Accordingly, Plaintiff is entitled to summary judgment on this

150 La. Civ. Code art 2053, cm’t. a.
151 La. Civ. Code. art 2550.

152 Rec. Doc. 39-3 at 9–14.

153 Defendant also states that Plaintiff delivered “incorrect and defective electrical materials and supplies.”
Rec. Doc. 53 at 15. However, Defendant has not provided any evidence that Plaintiff delivered incorrect or defective
materials.

28
counterclaim and affirmative defense.
12. Unjust Enrichment Counterclaim
Plaintiff moves for summary judgment on Defendant’s counterclaim for unjust enrichment.
Plaintiff argues that there is no evidence that Plaintiff was enriched at Defendant’s expense, and

that Defendant “has legal remedies in the form of a breach of contract claim,” precluding any claim
for unjust enrichment.154 Defendant responds that this counterclaim “is being pleaded in the
alternative to Defendant’s breach of contract claim, not alongside it.”155 Defendant argues that
Plaintiff was unjustly enriched by forcing Defendant to warehouse materials, and by accelerating
delivery and payment for such materials.156 Defendant contends that it was impoverished by these
actions because it had to pay for storage of the materials and pay in advance for materials it did
not yet need.157 Defendant argues that it can assert unjust enrichment “in the alternative in case
[its] pleadings for other contractual remedies do not succeed.”158 Thus, Defendant contends that
its unjust enrichment claim is cognizable “in the event its breach of contract counterclaim is
unsuccessful.”159

The following five elements are required to establish an unjust enrichment claim under
Louisiana law:
(1) there must be an enrichment, (2) there must be an impoverishment, (3) there
must be a connection between the enrichment and resulting impoverishment,

154 Rec. Doc. 50-2 at 8.
155 Rec. Doc. 53 at 15.
156 Id.
157 Id.
158 Id.
159 Id.
29
(4) there must be an absence of “justification” or “cause” for the enrichment
and impoverishment, and finally (5) the action will only be allowed when there
is no other remedy at law, i.e., the action is subsidiary or corrective in nature.160

“Louisiana law provides that no unjust enrichment claim shall lie when the claim is based on a
relationship that is controlled by an enforceable contract.”161 “The important question is whether
another remedy is available, not whether the party seeking a remedy will be successful.”162
Here, Defendant’s unjust enrichment counterclaim is precisely what Louisiana law
prohibits. An unjust enrichment claim does not become available merely because a party’s other
claims have been unsuccessful. Defendant cites “We the People” Paralegal Services LLC v.
Watley and Baker v. Maclay Properties Co. for the proposition that “a claimant can plead for unjust
enrichment in the alternative in case their pleadings for other contractual remedies do not
succeed.”163 However, both of those cases involve unjust enrichment claims where a contract has
been rendered null and unenforceable.164 Where the “claim is based on a relationship that is
controlled by an enforceable contract,” as it is here, “[n]o unjust enrichment claim shall lie.”165
Thus, Defendant’s unjust enrichment counterclaim cannot succeed as an “alternative” should the
breach of contract counter claim fail. Therefore, Plaintiff is entitled to summary judgment on this
counterclaim.

160 Drs. Bethea, Moustouskas and Weaver LLC, 376 F.3d at 407 (quoting Minyard v. Curtis Products, Inc.,
251 La. 624, 205 So. 2d 422, 432 (1967)).
161 Id. (citing Edwards v. Conforto, 636 So. 2d 901, 907 (La. 1993)).
162 Ferrara Fire Apparatus, Inc. v. JLG Industries, Inc., 581 F. App’x 440, 443–44 (5th Cir. 2014).
163 Rec. Doc. 53 at 15.
164 “We The People” Paralegal Services, LLC v. Watley, 33,480 (La. App. 2 Cir. 8/25/00); 766 So. 2d 744,
748; Baker v. Maclay Properties Co., 94-1529 (La. 1/17/95); 648 So. 2d 888, 896.
165 Drs. Bethea, Moutsoukas and Weaver LLC, 375 F.3d at 408.
30
V. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs “Motion for Partial Summary Judgment as to
Defendant’s Affirmative Defenses and Counterclaims”!®° is GRANTED.
NEW ORLEANS, LOUISIANA, this! 6thday of August, 2022.

NANNETTEQOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

166 Rec. Doc. 50.
31

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188170. Public record. Not legal advice.