IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 02-30432

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KANE ENTERPRISES,

Plaintiff-Appellant,

VERSUS

MacGREGOR (USA) Inc., ET AL

 Defendants,

MACGREGOR (USA) INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________

February 27, 2003

Before SMITH, WIENER, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Kane Enterprises (“Kane”), a commercial

barge operator, appeals the dismissal, under

FED. R. CIV. P. 12(b)(6), of its contract claims

against MacGREGOR (USA), Inc., a naval

contractor. Finding no error, we affirm.

I.

MacGREGOR contracted (the “prime contract”) with the United States Navy to build

and install large ramps on warships. The

prime contract did not oblige MacGREGOR

to post a performance or payment bond under

the Miller Act, 40 U.S.C. § 270a et seq.

MacGREGOR then subcontracted (the

“subcontract”) with Halter Marine (“Halter”),

inter alia, to store the ramps and transport
2

them when the ships were ready for the ramps

to be installed. Halter, in turn, subsubcontracted (the “sub-subcontract”) with

Kane, a commercial barge operator, for

delivery of the ramps.

The parties to these contracts by and large

fulfilled their relevant obligations. The Navy

received the ramps and paid MacGREGOR in

full. MacGREGOR has paid Halter, except for

a $150,000 retainage provided for by the

subcontract. Kane fully performed its

contractualobligation by delivering the ramps.

Unfortunately for Kane, however, Halter filed

for chapter 11 bankruptcy shortly after Kane

had delivered the ramps; Halter therefore has

not paid Kane the approximately $85,000

owed to Kane under the sub-subcontract.

Kane suedMacGREGOR in Louisiana state

court for contractualdamages. MacGREGOR

removed to the United States District Court

for the Eastern District of Louisiana based on

diversity of citizenship and moved to dismiss

for failure to state a claim upon which relief

can be granted. The court granted the motion,

reasoning that Kane sought to recover from

the retainage, a right to payment that is

property of the Halter bankruptcy estate and

over which the United States District Court

for the Southern District of Mississippi, the

court in which Halter filed its petition, has

exclusive jurisdiction under 28 U.S.C.

§ 1334(e).

II.

We review de novo a dismissal under rule

12(b)(6), applying the same standards as did

the district court. Ramming v. United States,

281 F.3d 158, 161 (5th Cir. 2001). The court

must construe the complaint liberally in favor

of the plaintiff and must take all facts pleaded

as true. Campbell v. Wells Fargo Bank, 781

F.2d 440, 442 (5th Cir. 1986). Moreover, the

court maynot dismissthe complaint under rule

12(b)(6) “unless it appears beyond doubt that

the plaintiff can prove no set of facts in

support of his claimwhich would entitle himto

relief.” Conley v. Gibson, 355 U.S. 41, 45-46

(1957). At the same time, a plaintiff must

plead specific facts, not mere conclusional allegations, to avoid dismissalfor failure to state

a claim. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “We

will thus not accept as true conclusory

allegations or unwarranted deductions of fact.”

Id. (citation omitted). Finally, the court may

review the documents attached to the motion

to dismiss, e.g., the contracts in issue here,

where the complaint refers to the documents

and they are central to the claim. Id. at 498-99

III.

The district court believed that Kane merely

sought to recover its contractual damages

from Halter by claiming against the retainage

owed to Halter by MacGREGOR. This

interpretation of the complaint is

understandable. As Kane stated in the district

court, “Kane is pursuing an equitable lien

claim against MacGREGOR such that

MacGREGOR will be ordered to pay Kane

from the $150,000 owed by MacGREGOR

under the contract [with Halter].” The

retainage due to Halter from MacGREGOR,

however, is property of the Halter bankruptcy

estate. 11 U.S.C. § 541; In re Glover Constr.

Co., 30 B.R. 873 (W.D. Ky. 1983). The

district in which a chapter 11 petition is filed

has exclusive jurisdiction over the property of

the estate. 28 U.S.C. § 1334(e). Thus, the

court properly dismissed the complaint,

because the Southern District of Mississippi

has exclusive jurisdiction over the retainage.

Kane has not appealed this aspect of the
3

ruling, but it objects that the court did not

consider its other claims against MacGREGOR. Though we agree with MacGREGOR

that Kane’s complaint primarilyseeksrecovery

from the retainage, we disagree that Kane’s

complaint did not present its other claims. We

construe the complaint liberally and

acknowledge that it fairly raises a claim for

equitable lien, a third-party beneficiary claim

under the prime contract, and a quantum

meruit claim. Yet, none of these states a claim

upon which relief can be granted. Thus, we

affirm.1

First, Kane has not stated a claim for an

equitable lien in any appropriate fund or property. An equitable lien is a “right . . . to have

a demand satisfied from a particular fund or

specific property.” BLACK’S LAW DICTIONARY 934 (7th ed. 1999) (emphasis added);see

also Dep’t of the Army v. Blue Fox, Inc., 525

U.S. 255, 262-63 (1999) (describing the

nature of an equitable lien). As we have explained, Kane cannot claim an equitable lien

against the retainage in any court outside the

Southern District of Mississippi, nor can it

claim an equitable lien in the ramps, because

they are now property of the United States,

and liens cannot attach to government

property. Blue Fox, 525 U.S. at 264.

Kane also arguesfor a lien against the money already paid to MacGREGOR by the Navy,

but Kane has not identified any legal or factual

basis for such a lien. Kane cites only two

cases, one of which, Quality Mech.

Contractors, Inc. v. Moreland Corp., 19 F.

Supp. 2d 1169 (D. Nev. 1998), was effectively

overruled by Blue Fox. The other, Faerber

Elec. Co. v. Atlanta Tri-Com, Inc., 795 F.

Supp. 240 (N.D. Ill. 1992), stands for the

unremarkable proposition that the Miller Act

is not the exclusive remedy for a subsubcontractor against a government contractor

if other common law remedies exist. 

Yet, Kane does not explain how it could

possibly be entitled to an equitable lien against

money paid to MacGREGOR by the Navy.

Kane cites subcontract ¶ 2(e), but that

paragraph merely allows MacGREGOR to

withhold the retainage fromHalter; it does not

create a basis for an equitable lien. Kane also

cites subcontract ¶ 7(b), but that paragraph

obviously protects MacGREGOR from

Halter’s breach of the subcontract, not Kane

from Halter’s breach of the sub-subcontract.

Kane cursorily cites several other equally

irrelevant paragraphs to similar effect.

Second, Kane has not stated a claim as a

third-party beneficiary to the prime contract.

“A contracting party may stipulate a benefit

for a third person called a third party

beneficiary.” LA. CIV. CODE ANN. art. 1978.2

“Louisiana law is settled that for there to be a

stipulation pour autrui there must be not only

a third-partyadvantage, but the benefit derived

1

 MacGREGOR observed, in its opening brief,

that the United States, which Kane attempted to

join as a defendant, might remain a party in the

district court. If true, this fact would have deprived us of appellate jurisdiction, because Kane

did not obtain a certificate under FED. R. CIV. P.

54(b). After supplemental briefing, however, we

conclude that Kane never properly served the

United States under FED. R. CIV. P. 4(i). For

purposes of appellate jurisdiction, we treat an improperly served defendant as never before the district court. Ins. Co. of N. Am. v. Dealy, 911 F.2d

1096, 1099 (5th Cir. 1990). Thus, the district

court’s order was an appealable final judgment for

which Kane did not need a rule 54(b) certificate.

2 The parties have assumed throughout that

Louisiana law governs this case.
4

from the contract by the third party may not

merely be incidental to the contract.” Davis

Oil Co. v. TS, Inc., 145 F.3d 305, 311 (5th

Cir. 1998) (citation omitted). Further, the

stipulation “will be found only when the

contract clearly contemplates the benefit to

the third person as its condition or

consideration.” Id. (citation omitted). The

contract need not expressly identify the third

person, however, if the contract plainly

contemplates a benefit to a third person. Id.

Under these Louisiana standards, Kane

does not qualify as a third-party beneficiary to

the prime contact’s transportation clauses.

The prime contract simply states that MacGREGOR willship the ramps via “commercial

barge.” This clause hardly manifests a plain

intent to make into a third-party beneficiary an

unspecified barge operator severalsteps down

the contracting chain. 

The clause does not even mention payment

to the operator. The surrounding clauses,

which state other modes of transportation for

other goods, further support thisreasoning. If

Kane is a third-party beneficiary under the

commercial barge clause, then other shipping

companies would become third-party

beneficiaries to those clauses. Kane’s

implausible argument would erase Louisiana’s

distinction between intended and incidental

benefits and would create dozens of thirdparty beneficiaries under the prime contract.3

Finally, Kane has not stated a quantum

meruit claim against MacGREGOR.

“Quantum meruit is an equitable remedy

founded upon the principle that no one who

benefits from the labor . . . of another should

be unjustly enriched at the other’s expense.

The doctrine operates, in the absence of a

specific contract, to infer a promise on behalf

of the person to whom the benefit is conferred

to pay a reasonable sum for the services or

materials furnished.” Brankline v. Capuano,

656 So. 2d 1, 5 (La. App. 3d Cir. 1995);

accord McCarty Corp. v. Pullman-Kellogg,

Div. of Pullam, Inc., 751 F.2d 750, 760 (5th

Cir. 1985). In other words, quantum meruit

presupposes both the absence of an express

contract and unjust enrichment of the

defendant.

Neither element is present here. Kane has

a specific contract with Halter. Kane may be

displeased that Halter filed for bankruptcy, but

its displeasure does not void the subsubcontract, and does not allow it to sue

MacGREGOR. Kane’s remedy is a suit for

breach of contract against Halter, not a

quantum meruit claim against MacGREGOR.

Also, MacGREGOR was not unjustly enriched; it contracted with Halter, and both parties performed their obligations under the subcontract. Halter may have been unjustly enriched by itsfailure to payKane under the subsubcontract, but that cannot justify a quantum

meruit claim against MacGREGOR.

The judgment is AFFIRMED. All requests

for sanctions are DENIED.

3 Kane also argues that it is a third-party beneficiary of the subcontract, but it does not specify

which clauses of the subcontract confer this putative benefit. We therefore deem this argument

waived for failure to brief it adequately. See FED.

R. APP. P. 28(a)(9)(A).