The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARCHER WESTERN CONTRACTORS, LLC CIVIL ACTION
VERSUS NO. 22-5323
THE MCDONNEL GROUP, LLC SECTION: D (5)
ORDER AND REASONS
Before the Court is a Motion to Dismiss Pursuant to Rule 12(b)(6) filed by the
Defendant, The McDonnel Group, LLC.1 The Plaintiff, Archer Western Contractors,
LLC, opposes the Motion.2 The Defendant filed a Reply in support of its Motion3 and,
with leave of Court, the Plaintiff filed a Sur-Reply.4 The Motion is fully briefed. After
careful consideration of the parties’ memoranda, the record, and the applicable law,
the Court DENIES the Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This Court has previously detailed the factual background of the events
germane to this lawsuit in the Court’s prior Order denying the Defendant’s motion to
dismiss for failure to join a Rule 19 required party.5 Accordingly, the Court
summarizes the relevant background only as it relates to the instant Motion to
Dismiss.
This case concerns the alleged failure of Defendant The McDonnel Group, LLC
1 R. Doc. 17.
2 R. Doc. 18.
3 R. Doc. 25.
4 R. Doc. 28.
5 R. Doc. 50.
(“TMG”) to abide by certain agreements and commitments made in a Joint Venture
Agreement with Plaintiff Archer Western Contractors, LLC (“AWC”). On May 2,
2011, TMG and AWC entered into a Joint Venture Agreement (the “Agreement”)
establishing the McDonnel Group, LLC/Archer Western Contractors, Ltd. Joint
Venture (the “Joint Venture”) for the purpose of submitting a bid and obtaining a
contract for the construction of the Orleans Parish Sheriff’s Office Inmate Processing
Center/Templeman III & IV Replacement Administration building (the “Project”)
from the Law Enforcement Division of Orleans Parish, State of Louisiana (the
“Owner”).6 Not long thereafter, on July 28, 2011, the Joint Venture entered into a
contract with the Owner to construct the Project for a sum of $144,929,000.00 (the
“Contract”).7
According to the terms of the Agreement, AWC and TMG are to share any
profits and any losses accruing to the Joint Venture from performance of the Contract
in accordance with their proportional interest in the Joint Venture; at the outset,
AWC held a seventy percent share of the Joint Venture while TMG held the other
thirty percent.8 The Agreement establishes that a party cannot “assign, transfer,
pledge or hypothecate its interest . . . in the Joint Venture or in the Contract or in
this Agreement or in any property or monies of the Joint Venture except with prior
written consent of the other party[.]”9 AWC is designated as the Managing Party of
the Joint Venture, giving AWC “charge and supervision over the timely and
6 R. Doc. 42 at ¶¶ 19–20.
7 Id. at ¶ 21.
8 Id. at ¶ 22.
9 Id. at ¶ 35 (Article 16).
satisfactory performance of the Contract, subject, however, to the superior authority
and control of the Executive Committee.”10 The Executive Committee is also largely
controlled by AWC; the representatives of each party on the Executive Committee
have “a vote equal to his party’s Proportionate Share.”11
The Joint Venture’s need for working capital to perform the Contract
necessitates that TMG and AWC “shall” make certain capital contributions “in
accordance with their proportionate share.”12 Per the Agreement, the Managing
Party, i.e., AWC, determines the need for capital contributions and the date on which
the capital is to be furnished to the Joint Venture.13 All working capital contributions
are to be deposited in the Joint Venture bank account opened by AWC.14 Article 7(e)
of the Agreement provides that:
Should any party (the “Defaulting Party”) be unable or fail
or neglect to contribute its Proportionate Share of the
working capital within 7 calendar days after the date set
for the contribution thereof by the Managing Party, the
other Party (the “Non-Defaulting Party”) may, at their
option, pay the share of the Defaulting Party (the
“Defaulting Party’s Contribution”). If the Non-Defaulting
Party pays all or part of the Defaulting Party’s
Contribution, such payments shall be deemed to be
demand loans made by the Non-Defaulting Party to the
Defaulting Party. Such loans shall be immediately
repayable by the Defaulting Party without notice and shall
bear interest at a rate per annum equal to 3% above the
Prime Lending Rate, determined on a day to day basis.15
10 Id. at ¶ 26 (Article 5(a)).
11 Id. at ¶ 28 (Article 4).
12 Id. at ¶ 30 (Article 7(a)).
13 Id.
14 Id. at ¶ 32 (Article 8(a)).
15 Id. at ¶ 31 (Article 7(e)).
In the event of a default by one party, the voting strength of the Executive Committee
representatives of the non-defaulting party is “increased to the proportion that its
actual contributions to working capital (including loans therefore to the Defaulting
Party) bear to the total contribution made to working capital by the parties,” while
the strength of the defaulting party is decreased proportionally.16 Further, Article
15(e) of the Agreement specifies that the defaulting party must pay any legal
expenses required by the non-defaulting party “to protect their interests or defend
any action arising out of the Defaulting Party’s breach.”17
As alleged by AWC, several disputes arose during the performance of the
contract between the Joint Venture and the Owner.18 Although those disputes and
accompanying litigation are not directly relevant here, AWC claims (and TMG does
not dispute) that by May 2015, the Owner’s “wrongful failure to properly compensate
the [Joint Venture] created critical cash flow issues for the [Joint Venture].”19 These
cash flow problems required the Joint Venture to obtain additional capital
contributions from its constituent parties—AWC and TMG—in order to continue its
work on the Project and to compensate subcontractors.20
It is at this point, May 2015, that the disputes within the Joint Venture
relevant to the instant litigation started to take hold. AWC claims that for the first
time in May 2015, TMG indicated that it refused to contribute additional capital
16 Id. at ¶ 25 (Article 7(f)(i)).
17 Id. at ¶ 35 (Article 15(e)).
18 Id. at ¶¶ 38–45.
19 Id. at ¶ 46.
20 Id. at ¶ 47.
funding to the Joint Venture. AWC further claims that at no point did TMG deny
that additional funding was necessary to complete the Project.21 On September 3,
2015, AWC issued correspondence to TMG requesting additional capital
contributions approved by the Executive Committee and identifying past failures of
TMG to satisfy contribution requests.22 On September 16, 2015, TMG responded to
AWC that it refused to provide any additional capital funding.23 Again on December
2, 2015, during an Executive Committee meeting, TMG advised that it would not
provide any further funding to the Joint Venture.24
On January 20, 2016, AWC sent correspondence to TMG advising TMG of its
default on past-due capital contributions of $1,650,00.00 and that, pursuant to Article
7(e) of the Agreement, TMG’s past-due contributions “will be deemed to be an on-
demand loan made by [AWC] to [TMG] . . . immediately repayable by [TMG] with
notice and shall bear interest at a rate per annum equal to 3% above the Prime
Lending Rate, determined on a day to day basis.”25 Throughout 2016, the Executive
Committee continued to approve required capital contributions which TMG refused
to pay.26 AWC advised TMG that TMG’s increasingly large past-due amounts were
deemed on-demand loans payable to AWC under the terms of the Agreement.27
This pattern of TMG refusing to contribute capital to the Joint Venture despite
the decisions of the Executive Committee and AWC subsequently advising TMG that
21 Id. at ¶¶ 48–49.
22 Id. at ¶¶ 50–52.
23 Id. at ¶ 54.
24 Id. at ¶ 55.
25 Id. at ¶¶ 57–58.
26 Id. at ¶¶ 61–65.
27 Id. at ¶ 62.
the past-due amounts would be deemed interest-bearing loans continued throughout
2017 and 2018 and beyond.28 TMG also failed to attend the weekly Joint Venture
and Executive Committee meetings throughout this period.29 AWC again notified
TMG on July 31, 2019 that as of July 11, 2019, AWC had loaned $4,092,144.63 to
TMG, comprising “$3,194,250.00 in capital loans and $897,894.63 in interest.”30
AWC avers that as of the date of the filing of this lawsuit, “AWC has loaned TMG
$6,096,407.00 comprised of $3,811,500.00 in capital loans and $2,284,907.00 in
interest.”31 Due to TMG’s increasing indebtedness to AWC as a result of its default
on the capital contributions, AWC’s voting strength has increased in proportion to its
contribution to total working capital.32 Likewise, TMG’s voting strength has
proportionally shrunk.33
Besides TMG’s alleged failure to provide necessary capital contributions to the
Joint Venture, AWC also alleges that TMG breached the Agreement by entering into
a “secret TMG-Owner settlement.”34 AWC avers that on November 11, 2022, it first
became aware of an April 29, 2022 document styled “Agreement of Compromise,
Release, Assignment, and Settlement, Agreement” entered into by TMG and the
Owner (the “Settlement Agreement”) in which TMG purportedly assigned its
interests in the Joint Venture’s claims against the Owner to the Owner in exchange
28 Id. at ¶¶ 67–71.
29 Id. at ¶ 72.
30 Id. at ¶ 73.
31 Id. at ¶ 75.
32 Id. at ¶ 76.
33 Id. at ¶ 77.
34 Id. at ¶ 80.
for a “final payment” of $2,700,000.00.35 The Settlement Agreement directs the
Owner to send the “final payment” to The McDonnel Group, Inc. (“TMG, Inc.”) and
not to The McDonnel Group, LLC—the member of the Joint Venture and current
Defendant—and not to the Joint Venture itself.36 AWC claims to have no prior
knowledge of or relationship with TMG, Inc.37 AWC claims that neither the Joint
Venture nor AWC approved the Settlement Agreement, as is required under Article
4(c)(vi) of the Agreement.38 The Settlement Agreement states that TMG “has a
fiduciary duty to the [Joint Venture]” and that the Joint Venture “has NOT agreed to
the settlement proposal.”39
AWC filed the present lawsuit against TMG on December 16, 2022, alleging
Breach of Contract in Count I, Breach of Fiduciary Duty in Count II, and Enrichment
Without Cause in Count III.40 In Count I, AWC alleges that TMG breached the Joint
Venture Agreement by (1) failing to provide necessary working capital contributions
to the Joint Venture; (2) failing to pay back the $6,096,407.00 in loans to AWC,
representing capital contributions which AWC paid due to TMG’s default plus
applicable interest; (3) failing to act in good faith in its participation in the Joint
Venture Executive Committee by refusing to approve necessary requests for capital
35 Id. at ¶¶ 80–82.
36 Id. at ¶¶ 83–86.
37 Id. at ¶ 85.
38 Id. at ¶ 93.
39 Id. at ¶¶ 91–92.
40 R. Doc. 1. The Court ordered AWC to file an Amended Complaint properly alleging the citizenship
information of the parties to ensure that the Court has subject-matter jurisdiction over this action. R.
Doc. 4. AWC subsequently filed an Amended Complaint. R. Doc. 6. Several months later, AWC filed
a Second Amended Complaint clarifying certain factual allegations made in its Amended Complaint.
R. Doc. 42. The Court only considers the Second Amended Complaint here.
contributions and by refusing to attend and participate in Executive Committee
meetings; (4) unilaterally assigning its interest in the Joint Venture’s claims against
the Owner to the Owner via the Settlement Agreement without the consent of either
AWC or the Joint Venture; and (5) directing $2,700,000.00 in settlement funds from
the Owner to TMG or TMG, Inc. otherwise due to the Joint Venture itself and the
Joint Venture’s subcontractors without the approval of either the Joint Venture or
AWC.41 As to Count I, AWC seeks damages, interest, attorney’s fees, and costs,
including the repayment of the full amount of the monies deemed to be loaned by
AWC to TMG.42
As for Count II, Breach of Fiduciary Duty, AWC alleges that TMG owes AWC
a fiduciary duty as its sole partner in the Joint Venture and that TMG breached that
duty by acting in a manner contrary and prejudicial to AWC’s interests, for many of
the same reasons discussed above. Specifically, AWC contends that TMG breached
its fiduciary duty to AWC by (1) failing to act in good faith in its participation in the
Executive Committee; (2) failing to make the required working capital contributions
to the Joint Venture; (3) failing to repay the loan amounts to AWC created via AWC’s
funding of TMG’s share of capital contributions; (4) secretly negotiating and entering
into the Settlement Agreement with the Owner; (5) directing the $2,700,000.00 in
settlement funds to TMG or TMG, Inc. without the knowledge or approval of the Joint
Venture or AWC; and (6) damaging the Joint Venture and AWC’s litigation and
41 R. Doc. 42 at ¶¶ 100–16.
42 Id. at ¶¶ 117–18.
settlement positions with the Owner.43 AWC seeks damages interest, attorney’s fees,
and costs for Count II as well.44
In Count III, AWC alleges that TMG improperly enriched itself by secretly
settling with the Owner for a payment of $2,700,00.00 in exchange for assigning
TMG’s interest in the Joint Venture’s claims against the Owner.45 AWC contends
that TMG had no right to receive these funds and that TMG improperly enriched
itself at the expense of the Joint Venture, the subcontractors of the Joint Venture,
and AWC.46 AWC requests that the Court (1) order TMG to disclose the location of
the $2,700,00.00 of settlement funds paid by the Owner to TMG or TMG affiliates; (2)
disgorge any sums received by TMG or TMG affiliates as part of the Settlement
Agreement; (3) place any sums received by TMG or TMG affiliates as part of the
Settlement Agreement in escrow pending the resolution of the lawsuits between the
Joint Venture and the Owner; and (4) award attorney’s fees and costs to AWC.47
TMG filed two separate motions to dismiss in this case.48 As noted above, this
Court has already considered and denied TMG’s motion to dismiss for failure to join
a Rule 19 required party, finding that the Joint Venture is a required yet dispensable
party to this litigation.49 Presently before the Court is a Motion to Dismiss Pursuant
to Rule 12(b)(6).50 TMG seeks to dismiss AWC’s claims to recover more than six
43 Id. at ¶¶ 119–29.
44 Id. at ¶¶ 130–31.
45 Id. at ¶¶ 132–39.
46 Id.
47 Id. at ¶¶ 142–43.
48 R. Doc. 17; R. Doc. 29.
49 R. Doc. 50.
50 R. Doc. 17.
million dollars in loans to TMG as well as AWC’s claims for attorney’s fees. In brief,
TMG argues that AWC’s claim to recover the money which AWC contributed to the
Joint Venture on TMG’s behalf due to TMG’s alleged failure to make required capital
contributions has prescribed.51 TMG contends that because AWC’s claims are
properly classified as an “action on money lent,” the three-year prescription under
Louisiana Civil Code article 3394 applies instead of the default ten-year prescription
that otherwise applies to breach of contract actions.52 With a three-year prescription,
TMG argues, AWC’s claims have prescribed because the last demand letter from
AWC referenced in the Complaint is from July 31, 2019, more than three years prior
to the filing of this lawsuit.53 Accordingly, TMG asks the Court to dismiss AWC’s
claims to recover the money loaned to TMG. As for AWC’s claim for attorney’s fees,
TMG contends that that claim must be dismissed as well because AWC has failed to
cite either a statutory or contractual provision allowing for the recovery of attorney’s
fees.54
AWC opposes the Motion, disputing both that its claims have prescribed and
that it failed to sufficiently plead its claim for attorney’s fees.55 AWC argues that a
ten-year prescription period under Louisiana Civil Code article 3499 applies because
the true nature of its claims to recover the amounts that it contributed to the Joint
Venture on account of TMG’s default is an action for breach of contract, not an “action
51 R. Doc. 17-2 at p. 1.
52 Id. at pp. 5–7.
53 Id. at p. 7.
54 Id. at pp. 7–8.
55 R. Doc. 18.
on money lent.”56 According to AWC, “where loans or payment obligations arise
within the broader context of a partnership agreement, an action for breach of the
underlying obligation is properly characterized as a breach of contract.”57 AWC
maintains that the Court cannot separate TMG’s failure to repay the money which
AWC contributed to the Joint Venture due to TMG’s default from TMG’s underlying
breaches of the Joint Venture Agreement.58 Further, AWC argues that the loans are
simply an “enforcement mechanism for TMG’s obligations” under the Joint Venture
Agreement and do not independently exist outside the scope of the Joint Venture
Agreement.59 Finally, AWC, citing Fifth Circuit and Louisiana state court case law,
argues that the joint venture relationship between the parties precludes the
application of the shorter three-year prescription period due to the ongoing nature of
the relationship.60 Regarding TMG’s arguments concerning attorney’s fees, AWC
contends that Article 15(e) of the Joint Venture Agreement provides a contractual
basis for attorney’s fees sufficient to survive a motion to dismiss.61
TMG filed a reply in support of its Motion,62 largely reiterating its argument
that because AWC repeatedly refers to the money it contributed to the Joint Venture
on TMG’s behalf as a “loan,” AWC’s claims for recovery of that money is an “action on
money lent” subject to a three-year prescription. Relying on a case from another
section of this court, TMG contends that even though the “default prescriptive period
56 Id. at pp. 2–3.
57 Id. at p. 4.
58 Id. at pp. 4–8.
59 Id. at pp. 6–7.
60 Id. at pp. 8–11.
61 Id. at pp. 11–12.
62 R. Doc. 25.
for claims arising out of a joint venture is 10 years, shorter periods still apply to
certain types of claims that arise within the context of a joint venture,” such as AWC’s
loan-related claims.63 TMG concedes that the ten-year prescriptive period might
apply to some of AWC’s claims, but contests that that period applies to AWC’s claims
to recover monies lent.64 TMG also attempts to downplay the case law cited by AWC
in its response in opposition, arguing that intervening case law has rendered the
decisions cited by AWC out-of-date and that, pursuant to the doctrine of jurisprudence
constante, the Court should not rely on the cases cited by AWC.65 Further,
throughout its Reply, TMG contends that AWC incorrectly relies too strongly on
Louisiana partnership law, arguing that the Court should differentiate between joint
ventures and partnerships for purposes of the relevant analysis.66 Lastly, TMG
repeats its argument that AWC failed to properly plead a claim to recover attorney’s
fees.67
This Court granted AWC leave to file a Sur-Reply responding to the arguments
raised by TMG in its Reply.68 AWC mostly focuses on TMG’s attempt to differentiate
between partnerships and joint ventures. AWC states that it “is not seeking to
establish that a general partnership exists between AWC and TMG, [but] only that
the joint venture relationship is afforded the same protections under principles of
63 Id. at pp. 5–6 (citing Norris v. Causey, No. CIV 14-1598, 2016 WL 311746 (E.D. La. Jan. 26, 2016)
(Barbier, J.)).
64 Id. at p. 6.
65 Id. at pp. 6–9.
66 Id. at p. 3 n.3; id. at p. 8.
67 Id. at p. 10.
68 R. Doc. 27.
Louisiana law.”69 AWC also chides TMG for ignoring on-point Louisiana case law
previously cited by AWC holding that actions between partners to recover amounts
lent by one partner to another are subject to a ten-year prescription.70 Furthermore,
AWC contends that the inclusion of a loan component in its action for breach of
contract does not transform AWC’s action into an “action on money lent.”71 As AWC
puts it, “[t]his is not an action for delinquent loans based on a segregable loan
document, but a lawsuit founded upon TMG’s multiple breaches of the obligations at
the very heart of the JV agreement.”72 Accordingly, AWC maintains that the ten-
year prescriptive period provided by Louisiana Civil Code article 3499 applies to their
action, necessitating the denial of TMG’s motion.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal
of a complaint, or any part of it, for failure to state a claim upon which relief may be
granted.73 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”74 “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
69 R. Doc. 28 at p. 3.
70 Id.
71 Id. at pp. 3–5.
72 Id. at p. 4.
73 Fed. R. Civ. P. 12(b)(6).
74 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
liable for the misconduct alleged.”75 But, no matter the factual content, a claim is not
plausible if it rests on a legal theory that is not cognizable.76
In ruling on a motion to dismiss, the Court accepts all well-pleaded facts as
true and views those facts in the light most favorable to the non-moving party.77 The
Court, however, is not bound to accept as true conclusory allegations, unwarranted
factual inferences, or legal conclusions.78 “Dismissal is appropriate when the
complaint on its face shows a bar to relief.”79 Dismissal under Rule 12(b)(6) may also
be appropriate “where it is evident from the plaintiff’s pleadings that the action” has
prescribed under the applicable prescription statute.80 In deciding a Rule 12(b)(6)
motion to dismiss, a court is generally prohibited from considering information
outside the pleadings, but may consider documents outside of the complaint when
they are: (1) attached to the motion; (2) referenced in the complaint; and (3) central
to the plaintiff’s claims.81
III. ANALYSIS
A. Prescription
Defendant TMG moves to partially dismiss, as prescribed, Plaintiff AWC’s
claims for damages relating to TMG’s alleged breach of the Joint Venture Agreement
75 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678) (quotation
marks omitted).
76 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).
77 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
78 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
79 Cutrer v. McMillan, 308 Fed. Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks
omitted).
80 Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (citing Taylor v. Books A Million, Inc., 296
F.3d 376, 378–79 (5th Cir. 2002)); see also Anderson v. City of New Orleans, No. CIV.A. 03-3010, 2004
WL 1396325, at *3 (E.D. La. June 18, 2004) (“A complaint is subject to dismissal for failure to state a
claim upon which relief can be granted if the prescriptive period has run.”).
81 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed. Appx. 336, 340–41 (5th Cir. 2011).
between the parties. The parties disagree over the prescription statute applicable to
AWC’s claims—the three-year period pursuant to Louisiana Civil Code article 3494
(“article 3494”) or the ten-year period pursuant to Louisiana Civil Code article 3499
(“article 3499”). Article 3494 provides that:
The following actions are subject to a liberative
prescription of three years:
(1) An action for the recovery of compensation for services
rendered, including payment of salaries, wages,
commissions, professional fees, fees and emoluments of
public officials, freight, passage, money, lodging, and
board;
(2) An action for arrearages of rent and annuities;
(3) An action on money lent;
(4) An action on an open account; and
(5) An action to recover underpayments or overpayments of
royalties from the production of minerals, provided that
nothing herein applies to any payments, rent, or royalties
derived from state-owned properties.82
Conversely, article 3499 dictates that “[u]nless otherwise provided by legislation, a
personal action is subject to a liberative prescription of ten years.”83 Actions sounding
in breach of contract are generally subject to the ten-year period of article 3499,
unless a specific statute supplies a different prescriptive period.84
Resolution of the instant Motion requires the Court to determine whether the
cause of action advanced by AWC for recovery of the capital contributions paid to the
Joint Venture by AWC on behalf of TMG is properly classified as an “action on money
lent,” as TMG insists, or as a breach of contract, as AWC maintains. If the former,
then the applicable prescription period is three years pursuant to article 3494,
82 La. C.C. art. 3494 (emphasis added).
83 La. C.C. art. 3499.
84 See Johnson v. Kennedy, 235 La. 212, 225, 103 So. 2d 93, 98 (1958).
meaning that AWC’s claims have since prescribed given that the last date alleged in
the Complaint regarding loans is July 31, 2019;85 this suit was not filed until over
three years later on December 16, 2022.86 However, if AWC’s action is not an “action
on money lent” and is instead construed as a breach of the Joint Venture Agreement,
then the applicable prescription period is the default ten-year period for personal
actions pursuant to article 3499.
1.
The Louisiana Supreme Court has not directly considered whether an action
to recover money lent by one joint venture member to another (or from one partner
to another) is subject to a three-year prescription as an “action on money lent” or to a
ten-year prescription. Accordingly, the Court must make an Erie guess as to how the
Louisiana Supreme Court would rule on this issue were it to be before them.87 An
Erie guess requires this Court to “employ Louisiana’s civilian methodology, [and] first
examine primary sources of law: the constitution, codes, and statutes.”88
At the outset, the Court notes that it is TMG’s burden as the party invoking
prescription to demonstrate that AWC’s claims have prescribed.89 “Statutes
providing for prescriptive periods are to be strictly construed in favor of maintaining
85 R. Doc. 42 at ¶ 73.
86 R. Doc. 1.
87 Weyerhaeuser Co. v. Burlington Ins. Co., 74 F.4th 275, 284 (5th Cir. 2023).
88 Id. (quoting Apache Deepwater, L.L.C. v. W&T Offshore, Inc., 930 F.3d 647, 654 (5th Cir. 2019)).
89 State v. Louisiana Land & Expl. Co., 2020-00685 (La. 6/30/21), 347 So. 3d 684, 688 (“The party
pleading an exception of prescription bears the burden of proving that the action has prescribed.”),
reh’g granted, 2020-00685 (La. 10/19/21), 326 So. 3d 257, and aff’d on reh’g, 2020-00685 (La. 6/1/22),
339 So. 3d 1163.
a cause of action.”90 Indeed, “[t]hose provisions of the Code which establish lesser
terms of prescription should be restrained to the particular cases which they regulate,
and to what is expressly included in their dispositions.”91 That being said, “the clear
words of the statute cannot be disregarded for the purpose of maintaining the
action.”92
TMG argues that the Court should reject AWC’s attempt to “save its expired
claim for money lent by contorting it into a general breach of contract claim” subject
to the ten-year prescriptive period because to do so would be to effectively ignore the
specific prescriptive period for “action[s] on money lent” provided in article 3494.93
Indeed, the Louisiana Supreme Court has explicitly rejected the view that the ten-
year period of article 3499 applies anytime an action sounds in contract. In Starns v.
Emmons, the Louisiana Supreme Court explained that because all of the actions
described in article 3494 “essentially arise from contractual relationships,” to apply
the ten-year period of article 3499 to all contractual actions would be to “render[]
article 3494 useless.”94 As that court stated, “[a]rticle 3494 does not present a choice
between a contract remedy and some other remedy; it merely provides exceptions to
the general rule stated in article 3499 that a personal action prescribes in ten
years.”95 Because the specific action in that case fell under a provision of article 3494,
90 David v. Our Lady of the Lake Hosp., Inc., 2002-2675 (La. 7/2/03), 849 So. 2d 38, 47 (citing Lima v.
Schmidt, 595 So.2d 624, 629 (La. 1992)) (emphasis added).
91 Lacoste v. Benton, 3 La. Ann. 220, 221 (1848).
92 David, 849 So. 2d at 47 (citing Ruiz v. Oniate, 97–2412, p. 5 (La. 5/19/98), 713 So. 2d 442, 444–45).
93 R. Doc. 25 at p. 3.
94 538 So. 2d 275, 278 (La. 1989); accord Grabert v. Iberia Par. Sch. Bd., 93-2715 (La. 7/5/94), 638 So.
2d 645, 647.
95 Starns, 538 So. 2d at 278.
the court found that that prescription statute applied instead of the default period of
article 3499, even though the action was contractual in nature.96
To determine whether article 3494 or 3499 applies to an action, the Louisiana
Supreme Court has instructed that “[t]he character of an action disclosed in the
pleadings determines the prescriptive period applicable to that action.”97 Because
breach of contract under Louisiana law is “a legal premise, or principle, which gives
rise to the right to claim some substantive remedy at law” and “not a free standing
cause of action[,]”98 the Court considers the precise nature of the action and relief
sought as pled by AWC in its Complaint. For the following reasons, the Court
determines that AWC’s claims are not for an “action on money lent” and, thus, not
subject to article 3494’s three-year prescription period.
The Louisiana Supreme Court has made clear that an action’s superficial
resemblance to the actions listed in article 3494 is insufficient to bring an action
outside the ambit of the ten-year period provided by article 3499. That is, the terms
of article 3494 are not to be stretched so as to cover every possible action that could
conceivably fall within them. “[P]rescription is stricti juris and the statutes on the
subject cannot be extended from one action to another, nor to analogous cases beyond
the strict letter of the law.”99 The Louisiana Supreme Court’s opinion in Duer &
96 Id.
97 Id. at 277 (citations omitted); accord Fishbein v. State ex rel. Louisiana State Univ. Health Scis. Ctr.,
2004-2482 (La. 4/12/05), 898 So. 2d 1260, 1265 (“The prescriptive period applicable to an action is
determined by the character of the action disclosed in the pleadings.” (citing Starns, 538 So. 2d at
277)).
98 Grabert, 638 So. 2d at 646.
99 Duer & Taylor v. Blanchard, Walker, O’Quin & Roberts, 354 So. 2d 192, 194 (La. 1978) (citing Gulf
Oil Corporation v. State Mineral Board, on rehearing, 317 So.2d 576 (La. 1975); State v. Stewart Bros.
Cotton Co., Inc., 193 La. 16, 190 So. 317 (1939); Garland v. Estate of Scott, 15 La. Ann. 143 (1860)).
Taylor v. Blanchard, Walker, O’Quin & Roberts is particularly instructive.100 There,
the court confronted whether a ten year or three year prescription applied to an action
by one attorney against another attorney to recover, pursuant to a fee sharing
agreement, a portion of the fees collected by the attorney from the client.101 In that
case, the defendants argued that such an action was one for attorney’s fees and thus
subject to the three-year prescriptive period provided by the then-existing Louisiana
Civil Code article 3538.102 The Louisiana Supreme Court disagreed, explaining that
a suit between attorneys to recover “a portion of the fee collected by the latter party
from the client is not one for the recovery of attorney’s fees, but rather is one for
breach of the agreement to share in the fund resulting from the payment of the fee.”103
Simply because the action involved a dispute over attorney’s fees did not transform
it into an action to recover attorney’s fees as that term is used in the prescription
statute. Accordingly, the court found that a ten-year prescription applied.104
Analogously to Duer and Taylor, that AWC’s claim involve monies that it lent
to TMG does not thereby make it an “action on money lent” as that term is used in
article 3494.105 Rather, AWC’s entire action stems from and is wholly dependent on
100 Id.
101 Id. at 194.
102 Id. Article 3538 is the predecessor to current article 3494.
103 Id. at 195.
104 Id.
105 The term “action on money lent” is not defined in article 3494 and the Court has found no Louisiana
caselaw providing an explicit definition. The parties have not provided any definition either. At first
blush, it would seem to describe any action in which one party seeks to recover monies lent to another
party. That is, an action by a creditor against a debtor for money loaned by the creditor to the debtor.
But an examination of other prescription statutes shows that to be too broad of a definition. For
example, actions on negotiable and nonnegotiable instruments and on promissory notes are subject to
a five-year liberative prescription. La. C.C. art. 3498. Although a suit to recover on a promissory note
would fall under a general definition of an “action on money lent,” the Louisiana Legislature has
clearly and explicitly sought to exclude certain types and forms of loans from the three-year
the underlying Joint Venture Agreement. In its claim for “Breach of Contract,” AWC
alleges, inter alia, that TMG breached the parties’ Joint Venture Agreement by (1)
failing to provide necessary working capital contributions approved by the Joint
Venture’s Executive Committee, (2) failing to pay back over $6 million in loans to
AWC, (3) refusing to attend and participate in Joint Venture Executive Committee
meetings and refusing to approve necessary requests for capital contributions, and
(4) secretly negotiating with Owner without the approval of either the Joint Venture
or AWC.106 AWC urges the Court to view its attempt to recover the money loaned to
TMG as inextricably linked to its other breach of contract allegations such that a ten-
year prescription period is applicable across the board.107 To answer that question,
the Court considers the nature and circumstances of the loans to TMG and their
connection to the broader Joint Venture Agreement.
Under the Joint Venture Agreement between TMG and AWC, the parties
agreed to furnish working capital to the Joint Venture in accordance with their
proportionate share in the Joint Venture whenever a need for additional working
capital is determined by the Managing Party, i.e., AWC.108 In the event that a party
fails to contribute its share of working capital to the Joint Venture, Article 7(e) of the
Joint Venture Agreement provides that the non-defaulting party “may, at their
prescription period. Thus, the types of actions which fall under the definition of an “action on money
lent” are fewer than the definition might otherwise provide for. Moreover, the Court is cognizant of
the Louisiana Supreme Court’s instruction that prescription statutes are to be strictly construed in
favor of maintaining an action and that prescription statutes “cannot be extended from one action to
another.” Duer & Taylor, 354 So. 2d at 194 (citations omitted).
106 R. Doc. 42 at ¶¶ 100–16.
107 R. Doc. 18 at pp. 5–8.
108 R. Doc. 42 at ¶ 30 (Article 7(a)).
option, pay the share of the Defaulting Party,” and that “[i]f the Non-Defaulting Party
pays all or part of the Defaulting Party’s Contribution, such payments shall be deemed
to be demand loans made by the Non-Defaulting Party to the Defaulting Party.”109
The Agreement continues that “[s]uch loans shall be immediately repayable by the
Defaulting Party without notice . . . .”110
Importantly, the loans at issue here are not freestanding and independent of
the Joint Venture Agreement; AWC did not simply loan money to TMG for TMG’s
own use separate from the Joint Venture.111 The loans here arise only if one party to
the Joint Venture defaults on its obligation to provide required capital contributions
to the Joint Venture. That is, the loans only spring into existence if there is an
underlying breach of the Joint Venture Agreement. Effectively, Article 7(e) of the
Joint Venture Agreement serves as a contractual remedy agreed to by the parties in
the event of a default on the obligation to contribute working capital. In this sense,
Article 7(e) functions as a contractual means in enforcing compliance with the Joint
Venture Agreement and encourages the parties to make required capital
contributions.
AWC alleges that, beginning in 2015, Joint Venture partner TMG refused to
contribute its share of working capital to the Joint Venture, in violation of the Joint
Venture Agreement.112 It is only due to this antecedent breach that the loans to TMG
109 Id. at ¶ 31 (Article 7(e)) (emphasis added).
110 Id.
111 Moreover, although styled as a “demand loan” by the Joint Venture Agreement, the Court notes
that, unlike a typical loan, no money is actually transferred from the non-defaulting party to the
defaulting party. Rather, the non-defaulting party may, on its own volition, pay the share of the
defaulting party’s capital contributions to the Joint Venture. Id.
112 Id. at ¶ 48.
at issue here came into fruition. Thus, AWC is correct that the loan amounts and the
underlying breach of the Joint Venture Agreement are inextricably linked; TMG may
defend against AWC’s loan claims by arguing that it never defaulted on its obligations
under the Joint Venture Agreement in the first place. Again, the loans owe their very
existence to a breach of the Joint Venture Agreement. Yet, TMG does not contest
that a ten-year prescription period applies to AWC’s claim regarding the underlying
breach.113 The Court finds it absurd to conclude that AWC’s claim for breach of the
Joint Venture Agreement for failing to contribute working capital has not yet
prescribed but that the contractual provision regarding the remedy for such a breach
has prescribed. Accepting TMG’s argument at face value would allow AWC to recover
the damages it sustained from TMG’s failure to make capital contributions but not in
the form of the agreed-upon Article 7(e) loan arrangement. That is, AWC could still
recover under TMG’s argument but under a different label. The Court finds no reason
to pick every aspect of AWC’s claim apart, completely divorced from the contractual
scheme, the Joint Venture, underlying this dispute. Such a mechanistic and artificial
process is not in line with the command that “[s]tatutes providing for prescriptive
periods are to be strictly construed in favor of maintaining a cause of action.”114
Norris v. Causey,115 a decision from another section of this court relied on by
TMG, is not to the contrary. In that case, the plaintiffs argued that because they had
entered into a joint venture agreement with the defendants, all of their claims—
113 R. Doc. 25 at p. 6.
114 David, 849 So. 2d at 47 (citing Lima, 595 So.2d at 629).
115 No. CV 14-1598, 2016 WL 311746 (E.D. La. Jan. 26, 2016) (Barbier, J.)).
including breach of contract, unjust enrichment, and fraud—were subject to the ten-
year prescription period of article 3499.116 Although the court agreed with the
plaintiffs that “claims arising out of a joint venture agreement, such as breach of
fiduciary duty, are subject to the default ten-year period[,]”117 the court nevertheless
held that a five-year prescriptive period applied to plaintiffs’ fraud claims because
“[a]rticle 2032 specifically provides that a claim for rescission of a contract for fraud
is subject to a five-year prescriptive period.”118 The court further noted that
“Plaintiffs’ argument ignores the fact that different claims asserted in the same
complaint may be subject to different prescriptive periods.”119
The facts of Norris are distinguishable from the facts of this case. In Norris,
the plaintiffs did not dispute that they were alleging a fraud claim against the
defendants. The issue there was whether the existence of a joint venture relationship
modified the otherwise applicable prescription statute for fraud claims. The sole
question here is whether AWC’s claims are properly classified as an “action on money
lent” or not. That is, the parties dispute the nature of the underlying action. Such
was not the case in Norris where the plaintiffs agreed that they alleged a claim for
fraud. That different causes of action in a complaint may have different prescriptive
periods is not disputed by AWC here. Accordingly, Norris has no bearing on the
instant action.
116 Id. at *5.
117 Id. (citing Henley v. Haynes, 376 So. 2d 1030, 1031 (La. App. 1 Cir. 1979)).
118 Id.
119 Id.
2.
Louisiana caselaw also supports the Court’s determination that the three-year
prescription period of article 3494 for actions on money lent is not applicable to AWC’s
claim. Several Louisiana state courts, as well as the United States Court of Appeals
for the Fifth Circuit, have addressed the applicable prescription period for actions
against one partner (or joint venture member) against another to recover monies lent,
finding a ten-year prescription applicable.
The most directly analogous case to the instant action that AWC cites is Bevpac
Properties v. Stakelum, a Louisiana Fourth Circuit Court of Appeal case.120 In that
matter, the plaintiffs—a Louisiana partnership and one of the partners—filed suit
against one of the other partners for failure to abide by the terms of a partnership
agreement.121 The sole purpose of the partnership was to own and manage an office
building in downtown New Orleans and each partner was obligated under the
partnership agreement to lease a certain amount of space on the first floor of the
office building.122 The plaintiffs claimed that the defendant breached the terms of
the partnership agreement by failing to make the required rental payments to the
partnership.123 In response, the defendant claimed an exception of prescription
arguing that because the plaintiffs’ action sought arrearages in rent, the action was
subject to the three-year prescription period of article 3494.124 The Louisiana First
120 Bevpac Properties v. Stakelum, 94-0395 (La. App. 4 Cir. 9/29/94), 645 So. 2d 1170, writ denied, 95-
0107 (La. 3/10/95), 650 So. 2d 1185.
121 Id. at 1171.
122 Id.
123 Id.
124 Id. at 1172.
Circuit disagreed, finding that the plaintiffs’ lawsuit was for breach of the
partnership agreement, not for arrearages of rent, and thus subject to the ten-year
period of article 3499.125 The court found that the plaintiffs’ action had only a
superficial resemblance to an “action for arrearages of rent” because the defendant
did not actually have a lease, “only an obligation to lease and make specified rental
payments to the partnership,” as set forth in the partnership agreement.126 The court
further explained that the “rental payments” were simply a part of the defendant’s
required contribution to the partnership “to enable it to pay the mortgage on the
building” and that the defendant, “as a partner in the partnership which owns the
building, is more than a mere tenant.”127
The clear import of Bevpac is that, similar to Duer & Taylor, merely because
an action may resemble one of those enumerated in article 3494, a court must look
past labels and determine the character of the action in the broader context. Further,
Bevpac emphasizes the importance of the partnership relationship to the applicable
prescription period, suggesting that when actions arise within the confines of a
partnership agreement, the action is properly considered one for breach of contract.128
Just as the Bevpac court found that the action to collect the money owed by the
125 Id.
126 Id.
127 Id.
128 TMG attempts to distinguish Bevpac on the grounds that the lease obligations in that case were set
out explicitly in the partnership agreement while the “alleged loans by AW[C] are not specifically set
forth within the Joint Venture agreement” and “were subsequently created and deemed ‘an on-demand
loan’ by AW[C].” R. Doc. 25 at pp. 8–9. This is a distinction without a difference. The existence of the
loans here are wholly dependent on the Joint Venture Agreement. That they come into fruition only
upon the occurrence of a condition precedent, i.e., breach of the Joint Venture Agreement, does not
separate them from the Joint Venture Agreement.
defendant for his failure to pay his lease obligations under the partnership agreement
was not an “action for arrearages of rent,” this Court finds that AWC’s action to
recover the money it advanced to the Joint Venture on TMG’s behalf pursuant to the
Joint Venture Agreement is not an “action on money lent.”
Next, the Court finds the United States Court of Appeals for the Fifth Circuit’s
opinion in First National Bank of Commerce v. de Lamaze129 to be persuasive. That
case involved a suit by one partner against his co-partner to recover money that the
plaintiff partner advanced on behalf of the defendant co-partner for the purchase of
partnership property due to the co-partner’s lack of the necessary funds.130 The
defendant co-partner argued that the five-year prescription period for promissory
notes set forth in Louisiana Civil Code article 3498 applied because the plaintiff’s
action was an action on a promissory note.131 The Fifth Circuit, applying Louisiana
law, rejected the defendant’s argument, finding that “a loan from one partner to
another for partnership purposes . . . is governed by the 10-year prescriptive period
for personal actions provided by Civil Code article 3499.”132 Importantly, the court
distinguished actions on loans between partners from actions on loans in the routine
business context. Citing article 3494, the court explained that “[a] loan between
parties dealing at arm’s length in a mercantile context is subject to a three-year
prescriptive period.”133 But, the court continued, where the loan arises in the context
129 First Nat. Bank of Com. v. de Lamaze, 7 F.3d 1227 (5th Cir. 1993).
130 Id. at 1228.
131 Id.
132 Id. at 1229. Specifically, the court found that even if the plaintiff’s action on the promissory note
had prescribed, the underlying obligation had not prescribed because the debt was not extinguished
by the note. Id.
133 Id. (citing Reddick v. White, 46 La. Ann. 1198, 15 So. 487 (La. 1894)).
of a partnership and is made for partnership purposes, a ten-year prescription period
applies. As the court explained:
Partners deal with each other in an ongoing relationship.
They routinely document and retain records of their
dealings during the life of the partnership and accomplish
settlement thereafter. These continuing circumstances
warrant the allowance of more time for the assertion of
claims arising from the partnership relationship than
ordinarily would be accorded claims on debts arising in the
course of transient commercial encounters.134
The Court finds the reasoning of the de Lamaze court to be equally applicable to the
joint venture at issue in this matter.135
In support of its holding, the Fifth Circuit in de Lamaze relied on several
Louisiana state court cases discussing the applicable prescription period for suits
between partners. Perhaps most important to that decision, and to the decision of
this Court, is the Louisiana Supreme Court’s 1894 opinion in Reddick v. White.136
There, the court found that in an action between partners over partnership debts the
three year prescription period “has no application” to such an action because “[t]hat
prescription refers to accounts for goods sold, and merchants’ accounts against their
customers, and generally to those business or other relations in which accounts are
134 Id. (citing Jones v. Butler, 346 So. 2d 790, 792 (La. App. 1 Cir. 1977)).
135 Throughout its Reply brief, TMG futilely attempts to differentiate between partnerships and joint
ventures and disclaims the import of de Lamaze as that case concerns partnerships. The very caselaw
cited and emphasized by TMG undercuts its argument. Under Louisiana law, “[w]hile a joint
adventure is not identical with a partnership, it is analogous to a partnership and is controlled largely
by the principles or rules applicable to partnerships.” Ault & Wiborg Co. of Canada v. Carson Carbon
Co., 181 La. 681, 688 (1935). “[I]n general, joint ventures are governed by the law of partnership.”
Latiolais v. BFI of Louisiana, Inc., 567 So. 2d 1159, 1161 (La. App. 3d Cir. 1990) (quoting Cajun Electric
Power Cooperative, Inc. v. McNamara, 452 So.2d 212, 215 (La. App. 1st Cir. 1984)). Joint ventures
and partnerships are legally distinct entities, but it does not follow that the legal principles applicable
to one are not largely applicable to the other. The distinctions that do exist between partnerships and
joint ventures are not relevant here.
136 46 La. Ann. 1198, 15 So. 487 (La. 1894).
usually rendered.”137 Instead, the court found a ten-year prescription to be applicable
because “prescription against the action for moneys advanced or debts paid by one for
another, or for the settlement of a partnership, is ten, not three or five, years.”138
Similarly, in Henley v. Haynes, the First Circuit Court of Appeal of Louisiana held
that suits based on a partnership agreement and the obligations of one partner to
another are subject to a ten-year prescription period.139 Likewise, the Third Circuit
Court of Appeal of Louisiana, in Broussard v. Crocher, Broussard & Co., held than an
action by one partner against another partner to recover amounts advanced from the
partnership is prescribed by ten years, citing Reddick.140
TMG unpersuasively attempts to distinguish this string of cases primarily on
the grounds that more recent caselaw supports TMG’s position, and, further, that the
Court should not feel itself bound to follow the above cases under the doctrine of
jurisprudence constante.141 The two cases cited by TMG as allegedly calling into
question the above caselaw are not helpful to TMG. Discussed above, Norris v.
Causey concerns a different issue than that relevant here and does not contradict any
of the above cases.142 Likewise, Minor v. Monroe Surgical Hospital, LLC, does not
undermine any case cited by AWC in support.143 In Minor, the court rejected the
plaintiff’s attempt to classify his relationship with the defendant as akin to a joint
137 Id. at 1207–08.
138 Id. at 1208.
139 Henley v. Haynes, 376 So. 2d 1030 (La. App. 1 Cir. 1979).
140 Broussard v. Crochet, Broussard & Co., 477 So. 2d 166 (La. App. 3 Cir. 1985).
141 See R. Doc. 25 at pp. 6–7.
142 Moreover, Norris is a decision from another section of this court, not from a Louisiana state court.
143 49,367 (La. App. 2 Cir. 11/19/14), 154 So. 3d 665, writ denied, 2014-2667 (La. 3/13/15), 161 So. 3d
641.
venture and thus subject his action to a longer prescriptive period.144 TMG focuses
on dicta from the court’s opinion stating that “regardless of the denomination given
to the relationship between” the plaintiff and defendant, a three-year prescription
applies due to the nature of the underlying action.145 That holding is not in tension
with de Lamaze, Bevpac, or any other case cited by AWC. Those cases do not, as TMG
suggests, stand for the proposition that a ten-year prescription period applies any
time a joint venture or partnership is implicated; rather, they more narrowly provide
that actions between partners to recover money loaned or advanced from one partner
to another for partnership purposes is subject to a ten-year prescription rather than
a shorter period for an “action on money lent.” That is, they focus on the nature of
the underlying claim in the context of the parties’ relationship vis-à-vis one another.
Moreover, Minor does not cite to any of the above partnership-specific caselaw and
by no means overrules those prior cases.146
In sum, the Court finds that TMG has not met its burden of proving that AWC’s
claims have prescribed. The loans at issue here are sufficiently intertwined with and
dependent upon the underlying Joint Venture Agreement such that the court finds
that this action is one for breach of that agreement and not an “action on money lent.”
Moreover, TMG has failed to distinguish the Louisiana caselaw holding that an action
by one partner against another partner for recovery of monies loaned or advanced to
144 Id. at *5–7.
145 Id. at *6.
146 It is not lost on the Court that TMG argues at length that the civil law doctrine of jurisprudence
constante counsels against relying on de Lamaze and the other cases cited by AWC due to the alleged
paucity of caselaw while simultaneously relying on a single Louisiana intermediate appellate court
decision.
the other partner for partnership purposes has a ten-year prescription period.
Louisiana caselaw is clear that prescription statutes should be strictly construed so
as not to unnecessarily deprive a litigant of their right of action through open-ended
and expansive interpretations of the prescription statutes. Accordingly, the Court
holds that the ten-year period provided by Louisiana Civil Code article 3499 applies
to AWC’s claim to recover money loaned to TMG pursuant to the Joint Venture
Agreement. The Court denies TMG’s motion.
B. Attorney’s Fees
TMG also contends that AWC’s claims for attorney’s fees must be dismissed
because AWC failed to cite to any statutory or contractual basis providing for
attorney’s fees.147 Further, TMG argues that although the Joint Venture Agreement
contains a provision allowing for attorney’s fees, AWC failed to reference that
provision in its Complaint.148 The Court finds that TMG’s arguments have been
mooted by AWC’s filing of its Second Amended Complaint which explicitly cites to
Article 15(e) of the Joint Venture Agreement as a basis for recovery of attorney’s
fees.149 That article provides, in relevant part, that “[t]he Defaulting Party further
agrees to pay all legal expenses required of or by the Non-Defaulting Party to protect
their interests or defend any action arising out of the Defaulting Party’s breach,
including court costs and disbursements and fees on a solicitor and his own client
basis.”150 Indeed, in its motion for leave to file its Second Amended Complaint, which
147 R. Doc. 17-2 at pp. 7–8.
148 R. Doc. 25 at p. 10.
149 See R. Doc. 42 at ¶¶ 34, 117, 130, 142.
150 Id. at ¶ 34.
TMG did not oppose, AWC explained that its amendment addressed “the specific
contractual basis for AWC to recover its attorneys’ fees|.]”15! Accordingly, the Court
finds that AWC has adequately pleaded a claim for attorney’s fees and, thus, denies
TMG’s Motion.
IV. CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Dismiss Pursuant to Rule
12(b)(6)152 is DENIED.
New Orleans, Louisiana, September 14, 2023.
WENDY ‘hit at
United States District Judge
151 R, Doc. 40 at p. 2.
152 R, Doc. 17.