## IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 02-30432

_______________



### K ANE 

### E NTERPRISES



### ,

Plaintiff-Appellant,

VERSUS

M ac GREGOR (USA) I nc., ET AL

Defendants,



### M AC 

### GREGOR (USA) I NC



### .,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________

February 27, 2003

Before S MITH , W IENER , and D E M OSS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Kane Enterprises (“Kane”), a comme rcial

barge operator, appeals the dismissal, under

F ED

. R. C IV

. 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 warshi ps. The

prime contr act did not oblige MacGREGOR

to post a performance or payment bond under

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

MacGREGOR then

subcontracted (the

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

inter alia

, to store the ram ps and transport2

them when the ships were ready for the ramps

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

Kane, a commercial barge o perator, f or

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 t he

subc o nt ract. Kane fully performed its

contractual obligation by delivering the ramps.

Unfortunately for Kane, however, Halter filed

for chapter 11 bankru pt cy shortly after Kane

ha d delivered the ramps; Halter therefore has

not paid Kane the approximately $85,000

owed to Kane under the sub-subcontract.

Kane sued MacGREGOR i n Louisiana state

court for contractual damages. 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 f rom

the retainage, a right to payment that is

property of the Halter bankruptcy estate and

over which the United States Distric t Court

for the Southern District of Mis sissippi, the

c o urt in which Halter filed its petition, has

exclusive jurisdiction unde r 28 U.S.C.

§ 1334(e).

II.

We review d e novo a dismissal under rule

12(b)(6), appl

ying 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. C

ampbell v. Wells F

a rgo Bank

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

court may not dismiss the complaint under rule

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

the plaint iff can prove no set of facts in

support of his claim which would entitle him to

relief.” C onley v. Gibson

, 355 U.S. 41, 45-46

(1957). At the same time, a plaint iff must

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

a claim. C

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

will thus not accept as true conclusory

allegati ons or unwarranted deductions of fact.”

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

review the documents attached to the motion

to dis miss, e.g., the contracts in issue here,

where the complain t refers to the docum ents

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

III.

The district court believed that Kane merely

sought to recover its contractual damages

from Halter by claiming a gainst the retainage

owed to Halter by MacGREGOR. This

interpretation of the complaint is

understandable. As Kane stated in the district

co urt, “Kane is pursuing an equitable lien

claim against MacGREGOR such that

MacGREGOR will be o r dered 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; I n 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 esta te. 28 U.S.C. § 1334(e). Thus, the

c ourt properly dismissed the complaint,

because the Southern District of Mississippi

has exclusive jurisdiction over the retainage.

Kane has not ap pealed this aspect of the3

ruling, but it ob

jects that the court di d not

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

that Kane’s complaint primarily seeks reco v ery

from the retainage, we disagree that Kane’s

complaint did not present its other claims. We

construe the complaint liberally and

acknowledge that it fairl

y raises a claim for

equitable lien, a third-party benefici ary claim

under th e prime contract, and a q uantum

meruit claim. Yet, none of these states a claim

upon w hich relief can be granted. Thus, we

affirm. 1

F irst, 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 fro m a particular fund or

specific property .” B L ACK ’ S L AW D ICTION

ARY 934 (7th ed. 1999) (emphasis added); see

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

U.S. 255, 262- 6 3 (1999) (describing the

nature ofan equitable lien). As we have explained, Kane cannot cla i m an equitable lien

against the retainage in any court outs ide the

Southern D ist rict of Mississippi, nor can it

claim an equitable li en 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 argues for 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 cit es o nly two

ca ses, one of which, Q uality Mech.

Contractors, Inc. v. Moreland Corp.

, 19 F.

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

overruled by Blue F

ox . The other, F

aerber

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

, 795 F.

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

u nremarkable proposition that the Miller Act

is not the excl

usive remedy for a subsubcontractor aga i

nst a government contractor

if other common law remedies exist.

Yet, Kane does not explain ho w it coul d

possibly be entitled to an equitable lien against

mo ney paid to MacGREGOR by the Navy.

Kane cites subcontract ¶ 2(e), but that

paragra ph merely allows MacGREGOR to

withhold the retainage from Halter; it does not

create a basis for an equitable lien. Kane also

cite s subcontract ¶ 7(b), but that paragraph

o bviously protects MacGREGOR fro m

Halter’s breach of the subcontract , not Kane

from Halt er’s breach of the s ub-subcontract

. Kane c u rsorily cites several other equally

irrelevant paragraphs to similar effect.

Second, Kane has not stat ed a claim as a

third-part y beneficiary to the prime contract.

“A cont ract ing party may stipulate a benefit

for a third person

called a third party

beneficiary.” L A

. C IV

. C ODE A NN

. art. 1978. 2

“Louisiana law is settled that for there to be a

stipulation pour autrui there must be not only

a third-party advantage, but the benefit derived 1 MacGREGOR observed, in its opening brief,

that the United States, w h ich Kane attempted to

join as a defendant, might r e main 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 F ED

. R. C IV

. P.

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

conclude that Kane never pr operly served the

United States under F ED

. R. C IV

. 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 as sumed throughout that

Louisiana law governs this case.4

from the contract by the third party may not

merely be incidental to the con tract.” D avis

Oil Co. v. TS, Inc.

, 145 F.3d 305, 311 (5th

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

sti p ulation “will be found only when the

contract clearly c o ntemplates the benefit to

the third person as its condi tion or

consideration.” I

d. (citation omitted). The

contract need n o t expressly identify the third

person, however, i f t he contract plainly

contemplates a benefit to a third person. Id.

Under these Louisiana s t andards, Kane

does not qualify as a third-party beneficiary to

the prime contact’s transportati on clauses.

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

barge.” This clause hardly manifests a plain

intent to make into a third-party beneficiary an

unspecified barge operator several steps 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 this reasoning. If

Kane is a third-party beneficia ry under the

commercial barge clause, then other ship p ing

com pani es woul d becom e third-party

beneficiaries to t h ose clauses. Kane’s

implausible argument would erase Louisiana’s

distinction between inten ded and incidental

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

Finally, Kane has not stated a q uantum meruit claim against MacGREGOR.

“Quantum meruit is an equitable remedy

founded u po n the principle that no one who

benefits from the labor

. . . of another shoul d

b e unjustly enriched at the other’s expen se.

The doctrine opera t es, 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.” B rank l ine v. Capuano

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

accord McCarty Corp. v. Pu llman-Kellogg,

Div. of Pullam, Inc.

, 751 F.2 d 750, 760 (5th

Cir. 1985). In other words, q uantum meruit

pre supposes 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 disple asure does not void the subsu bcontract, and does not al l ow i t to sue

MacGREGOR. Kane’s remedy is a suit for

breach of contract against Halter , not a

quantum meruit claim against MacGREGOR.

A lso, MacGREGOR was not unjustly enriched; it contracted with Halter, and both parties performed their obligations under the subcontra ct . Halter may have been unjustly enriched by its failure to pay Kane 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 puta t ive benefit. We therefore deem this argument

waived for failure to brief it adequately. S ee F ED

. R. A PP

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