Opinion
Civil Action No. 04-2451, Section "N" (3).
February 22, 2005
ORDER AND REASONS
Before the Court is the Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted filed by defendant Pilot Travel Centers LLC ("Pilot") on September 2, 2004 (Rec. Doc. No. 4). For the reasons set forth herein, Defendant's motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
On July 24, 2004, Spillway Investments L.L.C. ("Spillway"), a Louisiana limited liability company, brought suit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, against three defendants: Pilot Travel Centers, LLC ("Pilot"); Harold L. Rosbottom, Jr. ("Rosbottom"); and "John Doe", a Pilot executive. See generally First Supplemental Petition for Damages and Injunctive Relief and Request for Expedited Consideration. (Ex. B to Pl.'s Opp'n (Rec.Doc. No. 6)). Spillway asserted claims for "actual and enhanced damages" suffered as a result of the defendants' "breach of contract, breach of a duty of good faith and fair dealing, unfair and deceptive trade practices pursuant to the Louisiana Unfair Trade Practices Act, La.R.S. 51:1401, et seq. ("LUTPA"), tortious interference with a contract and violations of Louisiana Civil Code Article 2315", as well as "a claim for attorney's fees in connection with defendant Rosbottom's violation of LUTPA." First Supplemental Petition at ¶ 3.Plaintiff Spillway is a wholly-owned subsidiary of Metro Gaming and Amusement Company ("Metro"). First Supplemental Petition at ¶ 5. Metro, in turn, is an owner and operator of video poker gaming devices and video poker parlors in the State of Louisiana. Id. In the original petition filed in state court, Spillway alleged that, in early March 2004, Arthur Lawson, Jr. ("Lawson"), an authorized Spillway representative, contacted representatives of Pilot to inquire about purchasing certain land, building and a commercial operation (the "truck stop") located in LaPlace, Louisiana, and owned and operated by Pilot. First Supplemental Petition at ¶ 5. On or about March 30, 2004, via facsimile, Lawson sent a written offer to purchase the truck stop to Pilot. Id. at ¶ 6. It is further alleged that, on or about April 5, 2004, Lawson spoke with Mark Hazelwood ("Hazelwood"), Pilot's Executive Vice President, by telephone, at which time Hazelwood offered to sell the truck stop to Spillway for $5.8 million. Id. at ¶ 8. Subsequent to this verbal offer, an in-person meeting between Spillway and Pilot representatives, including Lawson and Hazelwood, occurred on or about April 21, 2004. Id. It is alleged that, at that meeting, Hazelwood confirmed and agreed that the truck stop would be sold to Spillway for $5.8 million. Id. On the following day, Hazelwood confirmed the offer in writing, and Lawson accepted Pilot's offer to see the truck stop for $5.8 million. Id.
Spillway further alleges that, during the following weeks, the parties worked diligently towards finalizing the sale, which was to be completed on or before July 15, 2004. First Supplemental Petition at ¶ 12. For example, the attorneys for both Spillway and Pilot conferred to draw up the documents relative to the sale. Id. at ¶ 10. Also, as required by Pilot and with Pilot's approval, assistance and cooperation, Lawson applied, tested, qualified for and was approved as a Subway franchisee. Id. at ¶ 11.
According to plaintiff, a "Subway" restaurant franchise operates at the truck stop and was to be transferred as part of the sale.
Spillway then alleges that, on or about July 3, 2004, Harold Rosbottom, a business competitor of Spillway, contacted Lawson and expressed an interest in a joint venture with Spillway in purchasing and/or operating the truck stop and/or video poker devices at the truck stop. First Supplemental Petition at ¶¶ 13 and 15. Lawson refused Rosbottom's offer. Id. at ¶ 13. Spillway avers that Lawson thereafter began to experience difficulty in getting Pilot representatives to return his telephone calls. Id. at ¶ 14. Then, on or about July 8, 2004, it is alleged that Pilot's Sherry Blake initiated a conference call between Blake, Hazelwood, Lawson, and Manuel Licciardi (another Spillway representative). Id. at ¶ 16. During that conference call, Hazelwood allegedly advised Lawson and Licciardi that the truck stop was being sold to Rosbottom and not to Spillway. Id. Hazelwood further stated that Rosbottom had "gone over his head" to acquire the truck stop. Id.
This action for specific performance, damages and injunctive relief ensued soon thereafter. In support of its request for relief, Spillway asserts the following causes of action against Pilot in its complaint: (1) breach of contract to sell the truck stop; and (2) breach of duty of good faith and fair dealing. First Supplemental Petition at ¶ 18. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Pilot filed the motion presently before the Court, seeking dismissal of plaintiff's claims with prejudice.
II. LAW AND ANALYSIS
A. Rule 12(b)(6) Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." To satisfy this requirement, the statement must provide the defendant with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S.Ct. 992, 998 (2002) (internal citations omitted); see also Christopher v. Harbury, 536 U.S. 403, 416, 122 S.Ct. 2179, 2187 (2002) (the elements of the plaintiff's claim(s) "must be addressed by allegations in the complaint sufficient to give fair notice to a defendant").
Given this simplified notice pleading standard, Rule 12(b)(6) motions to dismiss are "viewed with disfavor and [are] rarely granted." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (internal citations omitted). Further, a Rule 12(b)(6) motion to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" in the complaint. Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 998 (internal citations omitted); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("dismissal will not be affirmed if the allegations support relief on any possibly theory") (internal citations omitted). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279 (1986). "All questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). Finally, if the complaint "fails to specify the allegations in a manner that provides sufficient notice", a motion for more definite statement, pursuant to Rule 12(e), is appropriate. Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 998.
A court should only consider the pleadings when deciding a 12(b)(6) motion to dismiss. See Fed.R.Civ.P. 12(b). When a court considers matters outside of the pleadings, Rule 12(b) generally requires the court to "treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56." Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234 (1972). See also Fed.R.Civ.P. 12(b). However, under a narrow exception to this rule, a court is allowed to consider exhibits attached to a defendant's motion to dismiss without converting that motion into one of summary judgment. See Sheppard v. Texas Dept. of Transp., 158 F.R.D. 592, 595-96 (E.D.Tex 1994). This exception is an extension of the concept set forth in Rule 10(c), which allows exhibits attached to a complaint to be considered as part of the pleadings. See id. Under this exception, a court can consider the defendant's attached exhibits if (1) they are referenced in the complaint, and (2) they are central to the plaintiff's claim." See Collins, 224 F.3d at 498-99.
Here, in arguing that the parties are not bound by any contract(s), defendant Pilot has attached two documents to its motion to dismiss: (1) an April 22, 2004 letter from Mark Hazelwood of Pilot to Arthur Lawson of Spillway (Ex. 1); and (2) an unsigned Contract of Purchase and Sale (Ex. 2). In opposing Pilot's motion, plaintiff has filed as exhibits the April 22, 2004 letter (Ex. D), the unsigned Contract (Ex. E), and an additional three documents from the state court record — Spillway's Petition (Ex. A), Spillway's First Supplemental Petition (Ex. B), and Pilot's Exception (Ex. C). Additionally, in a supplemental opposition, plaintiff has submitted an affidavit of Arthur Lawson, in which Mr. Lawson attests to certain representations made on behalf of Pilot during negotiations and upon which Spillway relied. See Aff. of Lawson attached to Spillway's Suppl. Opp'n (Rec. Doc. No. 27). Thus, the Court must decide, as an initial matter, whether Pilot's motion should be treated as a Rule 12(b)(6) motion to dismiss or as a Rule 56 motion for summary judgment.
A brief review of the Complaint and the allegations made therein compels the conclusion that the motion should not be converted to one seeking summary judgment. The documents attached as exhibits to the parties' submissions to the Court should be considered because (1) the April 22, 2004 letter and the Contract to Sell and Purchase are specifically referred to in the Complaint; and (2) the two documents are central to plaintiff's claims. Furthermore, in reviewing Pilot's motion to dismiss, the Court may also consider the pleadings contained in the state court record. See Davis v. Bayless, 70 F.3d 367, 372, n. 3 (5th Cir. 1995) (reviewing documents of public record does not convert a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56). Finally, in considering the merits of defendant's motion, the Court will not consider the Affidavit of Arthur Lawson, in which Lawson addresses certain alleged misrepresentations; the affidavit will be considered, however, with respect to whether plaintiff will be allowed to amend its complaint.
See, e.g., First Supplemental Petition, ¶¶ 8, 10, 12.
Spillway has alleged that Pilot is liable to it for having breached oral and written contracts to sell the truck stop at issue, and for having breached the duty of good faith and fair dealing which arise out of said contracts to sell. Presumably, the April 22, 2004 letter and the unsigned contract are the sources of the alleged written contractual obligations.
B. Breach of Contract
In its Complaint, plaintiff alleges that it and Pilot entered into oral and written agreements, in which Pilot agreed to sell its truck stop to Spillway for $5.8 million. In response, Pilot contends that no contract to sell was confected, because the parties intended to reduce their negotiations to a formal written contract and that such a written contract to sell was never executed. Pilot further contends that if a verbal contract did exist, which it denies, it would not be enforceable, because Louisiana law mandates that all contracts involving the sale or transfer of immovable property, including contracts to sell, must be in writing. See La. Civ. Code arts. 1839, 2440, 2620 and 2623. Plaintiff counters that the April 22, 2004 letter constitutes a written agreement between the parties, one which Pilot breached. Additionally, plaintiff argues that the contemplated sale involved both immovable property and movable property ( e.g., the business and its inventory), and that an enforceable contract to sell exists, at the very least, with respect to the movable property, as the writing requirement does not extend to movable property. See La. Civ. Code art. 1846.
While the First Supplemental Petition contains vague allegations of oral and written agreements, plaintiff does allege that, at an April 21, 2002 meeting, a Pilot representative did confirm and agree that the truck stop would be sold to Spillway for $5.8 million, and that, on April 22, 2004, a written confirmation of the offer followed, which plaintiff accepted. See First Supplemental Petition, ¶ 8. Moreover, plaintiff's memoranda support the conclusion herein that the April 2002 oral and written offers are the source of the alleged agreements to sell (or, at the very least, the alleged written agreements to sell) which form the basis of this lawsuit. See, e.g., Pl.'s Opp'n, p. 2.
Under Louisiana law, courts must enforce a contract to ratify the intent of the parties. See Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 484 (5th Cir. 1984) (citation omitted). Courts must also ascertain the intent of a contract by referring to the words of the contract, as long as the words are explicit and clear. See id. (citing Maloney v. Oak Builders, Inc., 235 So.2d 836 (La. 1970)). When the words are clear, the Court need not resort to any extrinsic evidence, and the question of whether a contract exists becomes a question of law, which the Court can decide in determining whether a complaint can survive a Rule 12(b)(6) challenge.
In the instant matter, Spillway contends that Pilot breached both written and oral agreements to sell the subject truck stop. Because of this contention, the Court must first address whether a written contract to sell exists, and if so, whether such would be enforceable. If a written contract does not exist, the Court must then determine whether plaintiff has adequately alleged an oral contract to sell, and, if so, whether such an oral contract to sell the truck stop is enforceable under Louisiana law.
1. Written Contract to Sell the Truck Stop
With respect to the first determination — the existence and enforceability of a written contract, plaintiff essentially concedes in its opposition memoranda that the April 22, 2004 letter is the only source of any written agreement to sell the truck stop. See Pl.'s Opp'n, p. 2. Having reviewed that document in plaintiff's favor and finding such document to be written in plain, clear and unequivocal terms, the Court concludes that the April 22, 2004 letter is not a legally binding enforceable contract. Rather, the April 22, 2004 letter constitutes only what is commonly known as a letter of intent.
Under applicable Louisiana law, agreements in principle or letters of intent referring to subsequent formal agreements to be executed are not binding on the parties, even where the instrument thoroughly details the proposed terms and conditions. I.H. Rubenstein Son, Inc. v. Sperry Hutchinson Co., 222 So.2d 329, 330-31 (La.App. 1 Cir.) (court maintaining exception of no cause of action with regard to alleged breach of contract to transfer corporate assets), cert. denied, 266 So.2d 521 (La. 1969). In this regard, article 1947 of the Louisiana Civil Code provides:
When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.
This rule has been consistently recognized by Louisiana courts. See, e.g. Breaux Bros. Constr. Co. v. Assoc. Contractors, Inc., 77 So.2d 17, 20 (1954) (observing that where negotiations between the parties contemplate a contract in writing, no party is bound until the writing is perfected and signed); Waldhauser v. Adams Hats, Inc., 20 So.2d 423, 425 (La. 1944); Landura Corp. of La. v. Lege, 418 So.2d 741 (La.App. 5 Cir. 1982).
A review of the terms of the April 22, 2004 letter in the instant case leads the Court to conclude that the parties did not intend to be bound until such time that a formal contract was later signed by the parties. Specifically, the letter drafted by Pilot, signed by Pilot's Vice-President Mark Hazelwood, and approved by Spillway's Arthur Lawson, began with a statement of the letter's purpose: to "serve as a letter of intent regarding Pilot's interest in selling the travel center. . . ." See April 22, 2004 Letter, p. 1. The letter thereafter contemplated "the execution of a mutually acceptable agreement." See id. Another indication that the parties did not intend to be bound is that execution of such an agreement was contingent on the happening of certain conditions, such as "prior approval of . . . accountants, attorneys, and board of directors." Id. The inclusion of such provisions further confirms the absence of a final contract between the parties. Thus, it is presumed the parties did not intend to be bound until a contract was executed in that form. Until such execution, either party was at liberty to withdraw from negotiations.
Most indicative of the parties' intent to not be bound by the letter is a statement in the last paragraph of the letter: "Obviously, neither of us will be bound until a contract is executed by both parties." See April 22, 2004 Letter, p. 2. The parties clearly anticipated entering into a written contract on a date subsequent to the April 22, 2004 letter. Indeed, both parties thereafter asked their lawyers to draft the agreement. See First Supplemental Petition, ¶ 10; April 22, 2004 Letter, p. 2. Where, as here, a letter agreement is made expressly contingent upon the fulfillment of certain conditions and the execution of a mutually-acceptable agreement, the terms of the agreement are obviously still subject to negotiation and not yet final.
Indeed, the April 22, 2004 letter is not two full pages in length; the draft Contract of Purchase and Sale is 25 pages long.
Under Civil Code article 1947, to be enforceable, the contract to sell had to be in writing. However, no such final written contract was confected. Thus, plaintiff has failed to state a cause of action for breach of contract, insofar as plaintiff has alleged the existence of a written contract to sell the truck stop.
2. Oral Contract to Sell the Truck Stop
Having found that there is no enforceable written contract to sell which can form the basis of plaintiff's breach of contract claim, the Court must determine whether plaintiff has adequately alleged an oral contract to sell the truck stop. A brief review of the First Supplemental Petition demonstrates that plaintiff has alleged that there was an oral contract to sell the truck stop. As outlined above, the next question for the Court is whether the alleged oral contract is enforceable. The enforceability of such an oral contract to sell depends on two issues. The first is whether, under Louisiana law, this general type of contract must be in writing. The second issue is whether this particular contract had to be written because the parties intended it to be in writing.
Presumably, the alleged oral contract was made at the April 21, 2004 meeting between Pilot and Spillway representatives, at which time Pilot representatives confirmed and agreed that the truck stop would be sold to Spillway for $5.8 million. See First Supplemental Petition, ¶ 8.
Here, with respect to the land, the physical structure thereon, and its component parts, plaintiff concedes that Louisiana law mandates that all such sales and contracts to sell must be in writing. See La. Civ. Code art. 1839 ("[a] transfer of immovable property must be made by authentic act or act under private signature"). See also La. Civ. Code arts. 2620, 2623. Thus, any alleged oral agreement to sell the land, structure and its component parts is not enforceable. Nevertheless, plaintiff contends that the oral contract to sell contemplated more than immovable property. Indeed, plaintiff contends that the alleged oral contract to sell also contemplated the sale of inventory and a business (an "ongoing concern," or an incorporeal movable), and further that such contracts to sell do not have a writing requirement. Pilot argues to the contrary that any contract to sell certain movables — if such a contract could be legally severed from the contract to sell the land and building — must be in writing because, to the extent the parties reached any agreement to sell certain movables (an allegation the defendant denies), they anticipated a written contract. See La. Civ. Code art. 1947 ("When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.").
In general, this contention is true. See La. Civ. Code art. 1846. All that would normally be required for the sale of such movable property would be an agreement as to "[t]he thing, the price, and the consent of the parties." La. Civ. Code art. 2439.
For the same reasons the Court found that there is no binding, enforceable written contract to sell the truck stop, the Court also finds that there can be no oral contract to sell the movable property upon which plaintiff can base its breach of contract claim. The clear and unambiguous terms of the April 22, 2004 letter of intent demonstrate that the parties did not intend to be bound until a mutually-acceptable agreement was signed by all the parties. See generally April 22, 2004 Letter. Moreover, referenced as the subjects of a future sale and/or transfer were both immovable property and movable property: (i) "the travel center" (which presumably included the land and physical structure thereon), (ii) "convenience store inventory", (iii) "gas and diesel inventory", and (iv) the "Subway Franchise." See id., p. 1.
Accordingly, because the Court finds that plaintiff has not and cannot allege the existence of an enforceable contract to sell the truck stop ( i.e., the land, the structure thereon, the inventory and the business), the Court grants defendant's motion to dismiss this claim. Further, because the Court believes that any efforts to amend its allegations would be futile, the Court will not grant plaintiff leave to amend its allegations regarding this breach of contract claim, i.e., insofar as any contract to sell is concerned.
On the other hand, the Court will allow plaintiff twenty (20) days to amend its Complaint to add any allegations of any other contracts, agreements, or contractual obligations which plaintiff believes were breached by Pilot. For example, in plaintiff's opposition memoranda, plaintiff appears to suggest that the April 22, 2004 letter was an agreement to agree or to negotiate, and further that Pilot breached its duty to negotiate in good faith. See generally Pl.'s Opp'n. Plaintiff, however, only alleged the breach of one contract — the contract to sell the truck stop. If plaintiff intends to pursue any other breach of contract claims, amendment of plaintiff's Complaint to provide sufficient allegations of such claims is necessary.
C. Breach of the Duties of Good Faith and Fair Dealing
As its second cause of action against Pilot, plaintiff alleges that Pilot "breached its duty of good faith and fair dealings." First Supplemental Petition, ¶ 18. Because Pilot argues that there was no contract between it and plaintiff, Pilot maintains that it did not owe a duty of good faith and fair dealing to plaintiff. Pilot further argues that plaintiff's Complaint does not state a claim for such a breach of the duty of good faith and fair dealing because plaintiff does not allege that defendant's actions were prompted by fraud, ill will or sinister motivation.
Louisiana recognizes an implied covenant of good faith and fair dealing in every contract. See La. Civ. Code art. 1983 ("Contracts must be performed in good faith."). See also Clark v. America's Favorite Chicken Co., 110 F.3d 295 (5th Cir. 1997); Brill v. Catfish Shaks of America, 727 F.Supp. 1035, 1039 (E.D. La. 1989). Conversely, where no enforceable contract exists, no covenant of good faith and fair dealing can be implied. See, e.g. Adams v. Autozoners, Inc., 1999 WL 744039, *7 (Sept. 23, 1999) (Vance, J.). Furthermore, Louisiana law is clear that the statutory good faith obligation, which arises only in the context of performance of a contract, cannot be used to create a contract where none exists. See, e.g. Domed Stadium Hotel, 732 F.3d at 485; Jones v. Honeywell Int'l Inc., 295 F.Supp.2d 652, 671-72 (M.D. La. 2003).
Accordingly, having found that Spillway has not and cannot allege the existence of a contract to sell the truck stop, the Court grants defendant's motion to dismiss plaintiff's claims for damages arising out of the alleged breach of the duty of good faith and fair dealing. Further, because the Court believes that any efforts to amend its allegations would be futile, the Court will not grant plaintiff leave to amend its allegations regarding the breach of duty of good faith and fair dealing, insofar as any contract to sell is concerned.
Nevertheless, should plaintiff amend its Complaint to add additional contractual claims (unrelated to the alleged contract to sell the truck stop), the Court will also allow plaintiff twenty (20) days to amend its Complaint to add any allegations of the breach of the implied duty of good faith and fair dealing. If plaintiff does intend to so amend its Complaint, plaintiff should be mindful that, to state a cause of action for breach of a duty of good faith and fair dealing, a plaintiff must allege that the defendant's actions were prompted by fraud, ill will or sinister motivation. See Commercial Nat'l Bank v. Audubon Meadow Partnership, 566 So.2d 1136 (La.App. 2 Cir. 1990); Barbe v. A.A. Harmon Co., 94-2423 (La.App. 4 Cir. Jan. 7, 1998), 705 So.2d 1210, writ denied, 98-0529 (La. May 15, 1998), 719 So.2d 462. See also Industrias Magromer Cueros Y Pieles, S.A. v. Louisiana Bayou Furs, Inc., 293 F.3d 912, 922 (5th Cir. 2002) (defining "bad faith" for purposes of evaluating a claim under the Louisiana Civil Code).
D. Fraud, Intentional Misrepresentation and/or Negligent Misrepresentation
In its First Supplemental Petition, plaintiff's stated causes of action against Pilot lie only in contract. However, in responding to Pilot's motion to dismiss, plaintiff contends that it has at least one additional cause of action against Pilot. Specifically, Spillway contends that Pilot is liable to it in tort for damages arising out of Pilot's fraudulent, intentional and/or negligent misrepresentations regarding Pilot's ability to sell the truck stop at issue. While plaintiff never argues that its allegations with respect to this claim are sufficient, plaintiff does reserve its right to amend its Complaint. In response, Pilot argues that the law does not support a cause of action for misrepresentation under the circumstances as alleged by plaintiff, and further that plaintiff cannot as a matter of law plead reasonable reliance on representations made in the incomplete, unsigned Contract of Purchase and Sale.
Construing plaintiff's Complaint in its favor, the Court finds that plaintiff has not provided defendant fair notice of the alleged misrepresentations regarding Pilot's ability to sell the truck stop and of plaintiff's reasonable reliance thereon. Nevertheless, the Court does not find dismissal of this claim to be appropriate at this juncture, as the Court remains uncertain that plaintiff can prove no set of facts in support of its claim that would entitle it to relief. See, e.g., Breaux v. Schlumberger Offshore Servs., 817 F.2d 1226, 1231 (5th Cir. 1987) (it was reasonable for plaintiff to believe, for purposes of detrimental reliance claim, that defendant ultimately would execute written agreement); see also Haring v. Stinson, 32,785 (La.App. 2 Cir. April 5, 2000), 756 So.2d 1201, 1204-05 (although plaintiff's reliance on representations, prior to written agreement being reached, arguably was premature, it was reasonable under the circumstances); Carter v. Huber Heard, Inc., 95-142 (La.App. 3 Cir. May 31, 1995), 657 So.2d 409, 412 (reasonableness of reliance, in absence of written contract contemplated by parties, was question of fact), cert. denied, 95-1662 (La. Oct. 6, 1995), 661 So.2d 471.
Accordingly, the Court will require plaintiff to amend its Complaint to provide sufficient allegations regarding this claim. If defendant believes it appropriate to do so, it may urge dismissal of this claim in a later, properly supported motion.
E. Vicarious Liability
In its opposition memoranda, plaintiff argues that it has a claim against Pilot arising out of Pilot's vicarious liability for the tortious conduct of its employee, John Doe. In response, Pilot correctly states that the term "vicarious liability" appears nowhere in the First Supplemental Petition. Indeed, as stated earlier, a review of the First Supplemental Petition reveals that the only claims made against Pilot relate to the contract and the alleged breach thereof. On the other hand, however, Spillway has alleged that John Doe, a Pilot executive, is liable to it for having interfered with the contract between Spillway and Pilot.
In Louisiana, "the test for an employer's liability is whether the tortious conduct of the employee is so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer's business." Lamkin v. Brooks, 498 So.2d 1068, 1070 (La. 1986). See also La. Civ. Code art. 2320. In the matter at hand, the tortious conduct alleged against Pilot's executive is tortious interference with contract. Louisiana courts do recognize a narrowly defined cause of action for the breach of duty by a corporate officer to refrain from intentionally and unjustifiably interfering with the contractual relationship between his employer and a third person. See 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La. 1989) (setting forth the five separate elements of a tortious interference with contract claim).
As presently stated, the allegations of plaintiff's Complaint, while placing defendant on notice of the claim(s) made against its employee, are not sufficient to provide defendant with fair notice of the grounds upon which its vicarious liability claim rests. Construing plaintiff's Complaint in its favor, the Court is not certain that plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Accordingly, the Court does not grant defendant's Rule 12(b)(6) motion to dismiss with respect to this claim. Because of the pleading deficiencies noted, however, the Court will require plaintiff, pursuant to Rule 12(e), to amend its Complaint to clarify its allegations.