Opinion
Civil Action No. 00-1325, Section "N".
February 16, 2001.
ORDER AND REASONS
Before the Court is Defendant Lamarque Ford, Inc.'s Motion for Partial Dismissal. For the following reasons the Motion is DENIED.
A. BACKGROUND
This action arises out of Plaintiff Dana Mayer's July 29, 1999 purchase of a 1999 Ford Mustang from Defendant Lamarque Ford, Inc. in Kenner, Louisiana. Ms. Mayer filed suit in state court, alleging that she was harmed by Lamarque's various nefarious sales practices. Lamarque removed the suit to federal court, and this Court denied Ms. Mayer's motion to remand. Ms. Mayer then filed a supplemental and amending complaint. Lamarque now moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Ms. Mayer's claim for unjust enrichment and several claims stemming from the dealership's alleged failure to give her a copy of her consumer file.
B. LAW AND ANALYSIS
In determining whether the Court should grant a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the Court must "accept all well-pleaded facts as true, and, view them in the light most favorable to the plaintiff." Capital Parks, Inc. v. Southeastern Adver, Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir. 1994). Dismissal is justified "only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations." Id. (citation omitted). Conclusory allegations or legal conclusions appearing as factual conclusions are insufficient to prevent dismissal for failure to state a claim. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
1. Unjust Enrichment.
To support an action for unjust enrichment in Louisiana, a plaintiff must show (1) an enrichment; (2) an impoverishment; (3) a causal connection between the enrichment and the impoverishment; (4) an absence of justification or cause for the enrichment or impoverishment; and (5) no other remedy at law. See Schiro-del Bianco Enters., Inc. v. NSL, Inc., 765 So.2d 1087, 1092 n. 3 (La.App. 4th Cir. 2000). Lamarque argues that Ms. Mayer cannot state a claim for unjust enrichment because she has other legal remedies available to her as evidenced by her complaint. The Court disagrees with Lamarques reasoning.
Thus, only the fifth element is presently at issue.
A plaintiff has "no other remedy at law" when no other legal remedy exists which will allow her to recoup the amount of her impoverishment. See Gray v. McCormick, 663 So.2d 480, 487 (La.App. 3d Cir. 1995). However, a party cannot resort to an unjust enrichment claim after she failed to take advantage of a readily available legal remedy. See, e.g., Kilpatrick v. Kilpatrick, 660 So.2d 182, 187 (La.App. 2d Cir. 1995) ("Having failed to avail himself of an existing legal remedy, (plaintiff) cannot now resort to unjust enrichment to rectify his error.");McPhearson v. Shell Oil Co., 584 So.2d 373, 376 (La.App. 4th Cir. 1991) ("[P]laintiff had a legal remedy which he waived. Having done so, he cannot rescue himself from his predicament by resorting to the doctrine of unjust enrichment which has no application to a situation where there was a legal remedy.").
Unlike in Kilpatrick and McPhearson, Lamarque does not identify any remedy which Ms. Mayer has neglected to pursue. Indeed, as Lamarque notes, Ms. Mayer has alleged a claim for unjust enrichment in conjunction with numerous other claims for the same alleged wrong. Thus, Ms. Mayer clearly has pled her unjust enrichment claim in the alternative, not as her exclusive remedy, and her Memorandum correctly notes that the jury will be able to consider the unjust enrichment claim only if it rejects her other claims. In other words, the unjust enrichment claim will reach the jury only if the jurors find that Ms. Mayer has no other remedy at law. Accordingly, the Court DENIES Lamarque's Motion with respect to the unjust enrichment claim.
See FED. R. Civ. P. 8(a), 8(e)(2) and 18.
2. Consumer File Claims.
Ms. Mayer alleges that she forgot to bring home with her copies of the papers she signed while at the dealership. Ms. Mayer claims that Lamarque's subsequent failure to provide her with copies of these documents despite her repeated requests violates a whole host of Louisiana laws, including the Louisiana Motor Vehicle Sales Finance Act, LA. R.S. 6:969.1 et seq., and the Louisiana Unfair Trade Practices and Consumer Protection Law, LA. R.S. 51:1401 et seq. Without analysis, Lamarque argues that Louisiana does not recognize a cause of action for a business' refusal to produce its business records prior to litigation.
a. Louisiana Motor Vehicle Sales Finance Act.
Lamarque's argument appears to be incorrect to a certain extent in the motor vehicle sales finance arena. Pursuant to section 6:969.33 of the Louisiana Motor Vehicle Sales Finance Act (LMVSFA), a consumer is entitled to recover certain charges, treble damages, and attorney's fees if an extender of credit, in violation of section 6:969.18(F), "intentionally or as a result of an error not in good faith" fails to disclose to the consumer "the amount and identity of each item, fee or charge that is included in the cash price and the amount deferred under" a consumer credit sale. The right to recover this "civil penalty . . . accrues only after all of the following have occurred:
LA. R.S. 6:969.33(A)(l)(a) provides:
If the court finds that the extender of credit has intentionally or as a result of error not in good faith violated the provisions of Part II of this Chapter regulating loan finance charges, credit service charges, and other fees and charges, the affected consumer is entitled to a refund of all loan finance charges or credit service charges and has the right to recover three times the amount of such loan finance charge or credit service charge together with reasonable attorney fees.
LA. R.S. 6:969.18(F), which comes under Part II of the Act, provides:
The seller in a consumer credit sale shall disclose to the consumer the amount and identity of each item, fee or charge that is included in the cash price and the amount deferred under the transaction. Such disclosure shall be made in accordance with regulations issued by the commission and in conformity with 12 C.F.R 226.18 (c)(l). Disclosures maybe made either in the contract or in a separate writing.
(i) The affected consumer or his representative delivers written notice to the extender of credit by certified mail addressed to the extender of credit's place of business in which the motor vehicle credit transaction arose.
(ii) A copy of such notice is mailed to the extender of credit's agent for service of process. [and]
(iii) Thirty days have elapsed since receipt of such notice by the extender of credit and the violation has not been corrected."
LA. R.S. 6:969.33(A)(l)(b). Although fuzzy, Ms. Mayer's theory, at least in part, appears to be that Lamarque failed to disclose the post-signature changes it made in the amounts of the fees and charges by denying her requests for copies of the altered documents containing the changes.
In its reply memorandum, Lamarque merely argues that Ms. Mayer failed to follow the steps set forth in the statute. Of course, Ms. Mayer will have to prove that she fulfilled the requirements set forth in LA. R.S. 6:969.33(A)(l)(b) and that Lamarque failed to satisfy the requirements set forth in LA. R.S. 6:969.18(F), but those types of questions are not properly considered in the context of a motion to dismiss. Because Ms. Mayer appears to have stated a claim under section 6:969.33 of the LMVSFA, the Court DENIES Lamarque's Motion in this respect.
Lamarque's does not argue that the Act does not apply to this type of transaction or to these types of parties or to the types of documents Ms. Mayer requested, and the Court will not make these arguments for it.
b. Louisiana Unfair Trade Practices and Consumer Protection Law.
The Court similarly cannot conclude that Ms. Mayer has failed to state a claim under the Louisiana Unfair Trade Practices and Consumer Protection Law. To recover under LUTPCPL, "a plaintiff must prove fraud, misrepresentation or other unethical conduct." Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404 (5th Cir. 2000). "A trade practice is unfair under the statute only when it offends established public policy and is immoral, unethical, oppressive or unscrupulous." Id. (quoting Schenck v. Living Centers-East, Inc. 917 F. Supp. 432, 439 (E.D.La. 1996)); Laurents v. Louisiana Mobile Homes, Inc., 689 So.2d 536, 542 (La.App. 3d Cir. 1997). The statutory language delineating what is unfair or deceptive is very broad, and, as a result, Louisiana courts determine what constitutes a LUTPCPL violation on a case-by-vase basis. See Keith E. Andrews, Comment, Louisiana Unfair Trade Practices Act: Broad Language and Generous Remedies Supplemented by a Confusing Body of Case Law, 41 LOY. L. REV. 759, 762 (1996) (citingTurner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir. 1993)).Ms. Mayer contends that Lamarque's failure to provide her with copies of the documents she requested "frustrated her ability to ascertain her damages[,] . . . prevented her from being able to mitigate her damages[,] . . . (and) perpetuated the concealment of the violations" set forth in the rest of her complaint. Pl.'s Mem. p. 3. In light of the LMVSFA's established policy requiring disclosure of vehicle finance charges and the paucity of briefing on this point by Lamarque, the Court finds that these allegations could support a claim under the LUTPCPL. Cf. Marshall v. Citicorp Mortgage, 601 So.2d 669 (La.App. 5th Cir. 1992) (finding combination of two otherwise standard practices in joint sale of decreasing term life insurance and loan unfair and deceptive under LUTPCPL); Joseph v. Hendrix, 536 So.2d 448 (La.App. 1st Cir. 1988) (finding auto repair garage owner's attempt to charge customer twice for same problem unfair and deceptive under LUTPCPL); Vercher v. Ford Motor Co., 527 So.2d 995 (La.App. 3d Cir. 1988) (finding dealer's failure to disclose vehicle's hail damage deceptive under LUTPCPL). Accordingly, the Court DENIES Lamarque's Motion in this respect.
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant Lamarque Ford, Inc.'s Motion for Partial Dismissal is DENIED.