Opinion
Civil Action No. 04-580 SECTION "K" (5).
August 12, 2004
Before the Court is a Motion to Dismiss Counter-Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rec. Doc. 11) filed by plaintiff/counter-claim defendant, Central Healthcare Services, Inc. ("Central"). Having reviewed the pleadings, memoranda, and relevant law, the Court GRANTS the motion, for reasons stated below.
I. BACKGROUND
This matter arises out of a dispute regarding unpaid hospital bills. On February 12, 2004, plaintiff Central filed a Petition for Breach of Contract in state court against defendants Eterna Peterburg, Inc. ("Eterna"), Dowa Line America Co., Ltd. ("Dowa"), and Britannia Steamship Insurance Association, Ltd. ("Britannia") under the General Maritime Law of the United States and/or alternatively under the laws of Louisiana. See Rec. Doc. 1.
Epifanio A. Ybo was a Filipino member of the crew of the M/V BALSA 59 serving as Second Engineer. Ybo was employed by defendant Dowa, the charterer and operator of said vessel. While on board the M/V BALSA, Ybo experienced chest pains, fever, chills and other physical problems. Upon arrival at the Port of New Orleans in September of 2003, an agent for defendants contacted Central and requested that plaintiff provide medical services to Ybo. Thereafter, Central arranged for Ybo to be medically examined at Touro Infirmary on September 25, 2003. The next day, the captain of the M/V BALSA submitted a written and signed document requesting and authorizing medical treatment for Ybo.
In its suit, plaintiff alleges that defendants are liable for the cost of drugs, supplies, and medical services rendered to Ybo and for other damages arising out of breach of contract. Central's Petition for Breach of Damages prayed, in the alternative, for damages of $192,403.51 or $163,542.98, plus costs and interest.
On February 27, 2004, defendants Dowa and Eterna removed plaintiffs lawsuit to this Court under 28 U.S.C. § 1441. See Rec. Doc. 1. In their Notice of Removal, defendants contend that this Court has original jurisdiction over this matter pursuant to 28 U.S.C. §§ 1332 and 1333.
On May 4, 2004, defendants answered the suit and filed an unfair trade practice counter-claim. The Counter-claim was filed pursuant to Louisiana's Unfair Trade Practices and Consumer Protection Law, La.Rev.Stat. 51:1401 et seq.
Thereafter, plaintiff/counter-claim defendant Central filed the instant Motion to Dismiss pursuant to Rule 12(b)(6) on July 6, 2004. The Court took the aforementioned motion under submission on August 4, 2004.
II. LAW ANALYSIS
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." To determine whether a motion to dismiss has merit, Jefferson Parish v. Lead Ind. Ass'n. Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) instructs that "[t]he standard to be applied to a motion to dismiss under Federal Rule 12(b)(6) is a familiar one." When considering a motion to dismiss under Rule 12(b)(6), district courts should construe the complaint liberally in favor of the plaintiff, assuming all factual allegations to be true and resolving any ambiguities and doubts in favor of the plaintiff. Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th Cir. 1993); see Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999). A complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); Fernandez-Montes, 987 F.2d at 284-85. However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
The Louisiana Unfair Trade Practices and Consumer Protection Law, ("the Act" or "LUTPA"), La.Rev.Stat. § 51:1401 et seq., provides a private cause of action for any person who suffers damage as a result of unfair or deceptive acts or practices in the conduct of any trade or commerce. A trade practice is deemed unfair "when it offends established policy and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers and consumers include business competitors." A trade practice is "deceptive" when it amounts to "fraud, deceit, or misrepresentation." Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1332 (5th Cir. 1994); Roustabouts, Inc. v. Hamer, 447 So.2d 543, 548 (La.App. 1st Cir. 1984); Monroe Med. Clinic, Inc. v. Hosp. Corp. of Am., 622 So.2d 760, 763 (La.App. 2d Cir. 1993). In the instant matter, defendants claim that plaintiff Central engaged in unfair trade practices by charging uninsured persons a rate for medical services provided three times greater than the rate charged to insured persons.
LUTPA provides a cause of action only for direct consumers and business competitors. See, e.g., Tubos de Acero de Mexico, S.A., v. American International Investment Corp., Inc., 292 F.3d 471, 479 (5th Cir. 2002); Delta Truck Tractor, Inc. v. J.I. Case Company, 975 F.2d 1192, 1205 (5th Cir. 1992); Bollinger v. Tanner Companies, LP, 2003 WL 1824836 (E.D. La. 2003); see also Intra-Operative Monitoring Services, Inc. v. Blue Cross/Blue Shield of Alabama, 2004 WL 42635 (E.D. La. 2004) ("Courts have narrowly interpreted LUTPA to provide a private right of action only for 'consumers and business competitors.'"). As stated in KFC Ventures, L.L.C. v. Metairie Medical Equipment Leasing Corp., 2000 WL 1252596 (E.D. La. 2000), notwithstanding the disparate treatment accorded the LUTPA in the state courts, the federal courts in this circuit have been consistent in denying a right of action to "business consumers." See, e.g., Gardes Directional Drilling v. U.S. Turnkey Exploration Co., 98 F.3d 860, 868 (5th Cir. 1996); Orthopedic Sports Injury Clinic v. Wang Laboratories, Inc., 922 F.2d 220 (5th Cir. 1991); Towery Publishing v. Community Communications, 1997 WL 204920 (E.D.La.); Hamilton v. Business Partners, Inc., 938 F. Supp. 370 (E.D.La. 1996); Surface Preparation Coating Enters., Inc. v. Martin Marietta Manned Space Sys., 1992 WL 193478 (E.D.La.), aff'd, 1 F.3d 1236 (5th Cir. 1993).
In the Wang case, a medical clinic attempted to pursue a LUTPA claim against a computer retailer. In holding that the clinic was not protected by the LUTPA, the Fifth Circuit held that the act only applied to consumer transactions, "the subject of which transaction is primarily intended for personal, family, or household use." Wang, 922 F.2d at 226 (quoting La.R.S. 51:1402(3)). Here, plaintiff moves to dismiss defendants' LUTPA claims on the grounds that defendants do not qualify as consumers under LUTPA. The Court agrees.
In the case at bar, defendants do not qualify as direct consumers under the Act because they are business entities. The contract between defendants and plaintiff for Ybo's medical treatment was a commercial transaction between businesses, not a consumer transaction as defined under LUTPA. Thus, the Act does not apply and defendants' counter-claim must be dismissed pursuant to Rule 12(b)(6). See Bollinger, 2003 WL 1824836.
Defendants argue that the contract in question qualifies as a LUTPA "consumer transaction" because the underlying transaction involves commerce to a natural person (Ybo), the subject of which is primarily intended for personal use. Although novel, their contention is not persuasive. The Court notes that defendants have failed to offer any legal authority in support of their position. Moreover, the transaction was between the defendants and Touro, not Touro and Ybo. Accordingly, the Court finds that the agreement in dispute does not qualify as a "consumer transaction" under LUTPA or the federal jurisprudence interpreting the Act. See Wang, 922 F.2d 220; KFC Ventures, 2000 WL 1252596; Bollinger v. Tanner, LP, 2003 WL 1824836. Thus, for reasons stated supra, IT IS ORDERED that plaintiff's Motion to Dismiss Counter-Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rec. Doc. 11) is hereby GRANTED. IT IS FURTHER ORDERED that defendants' Counter-claim is hereby DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 12(b)(6).