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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 02-30432
_______________
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,
I.
Circuit Judges.
MacGREGOR contracted (the "prime con-
tract") with the United States Navy to build
JERRY E. SMITH, Circuit Judge:
and install large ramps on warships. The
prime contract did not oblige MacGREGOR
Kane Enterprises ("Kane"), a commercial
to post a performance or payment bond under
barge operator, appeals the dismissal, under
the Miller Act, 40 U.S.C. § 270a et seq.
FED. R. CIV. P. 12(b)(6), of its contract claims
MacGREGOR then subcontracted (the
against MacGREGOR (USA), Inc., a naval
"subcontract") with Halter Marine ("Halter"),
contractor. Finding no error, we affirm.
inter alia, to store the ramps and transport

them when the ships were ready for the ramps
F.2d 440, 442 (5th Cir. 1986). Moreover, the
to be installed. Halter, in turn, sub-
court may not dismiss the complaint under rule
subcontracted (the "sub-subcontract") with
12(b)(6) "unless it appears beyond doubt that
Kane, a commercial barge operator, for
the plaintiff can prove no set of facts in
delivery of the ramps.
support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46
The parties to these contracts by and large
(1957). At the same time, a plaintiff must
fulfilled their relevant obligations. The Navy
plead specific facts, not mere conclusional al-
received the ramps and paid MacGREGOR in
legations, to avoid dismissal for failure to state
full. MacGREGOR has paid Halter, except for
a claim. Collins v. Morgan Stanley Dean Wit-
a $150,000 retainage provided for by the
ter, 224 F.3d 496, 498 (5th Cir. 2000). "We
subcontract. Kane fully performed its
will thus not accept as true conclusory
contractual obligation by delivering the ramps.
allegations or unwarranted deductions of fact."
Unfortunately for Kane, however, Halter filed
Id. (citation omitted). Finally, the court may
for chapter 11 bankruptcy shortly after Kane
review the documents attached to the motion
had delivered the ramps; Halter therefore has
to dismiss, e.g., the contracts in issue here,
not paid Kane the approximately $85,000
where the complaint refers to the documents
owed to Kane under the sub-subcontract.
and they are central to the claim. Id. at 498-99
Kane sued MacGREGOR in Louisiana state
III.
court for contractual damages. MacGREGOR
The district court believed that Kane merely
removed to the United States District Court
sought to recover its contractual damages
for the Eastern District of Louisiana based on
from Halter by claiming against the retainage
diversity of citizenship and moved to dismiss
owed to Halter by MacGREGOR. This
for failure to state a claim upon which relief
interpretation of the complaint is
can be granted. The court granted the motion,
understandable. As Kane stated in the district
reasoning that Kane sought to recover from
court, "Kane is pursuing an equitable lien
the retainage, a right to payment that is
claim against MacGREGOR such that
property of the Halter bankruptcy estate and
MacGREGOR will be ordered to pay Kane
over which the United States District Court
from the $150,000 owed by MacGREGOR
for the Southern District of Mississippi, the
under the contract [with Halter]." The
court in which Halter filed its petition, has
retainage due to Halter from MacGREGOR,
exclusive jurisdiction under 28 U.S.C.
however, is property of the Halter bankruptcy
§ 1334(e).
estate. 11 U.S.C. § 541; In re Glover Constr.
Co., 30 B.R. 873 (W.D. Ky. 1983). The
II.
district in which a chapter 11 petition is filed
We review de novo a dismissal under rule
has exclusive jurisdiction over the property of
12(b)(6), applying the same standards as did
the estate. 28 U.S.C. § 1334(e). Thus, the
the district court. Ramming v. United States,
court properly dismissed the complaint,
281 F.3d 158, 161 (5th Cir. 2001). The court
because the Southern District of Mississippi
must construe the complaint liberally in favor
has exclusive jurisdiction over the retainage.
of the plaintiff and must take all facts pleaded
as true. Campbell v. Wells Fargo Bank, 781
Kane has not appealed this aspect of the
2

ruling, but it objects that the court did not
and liens cannot attach to government
consider its other claims against MacGREG-
property. Blue Fox, 525 U.S. at 264.
OR. Though we agree with MacGREGOR
that Kane's complaint primarily seeks recovery
Kane also argues for a lien against the mon-
from the retainage, we disagree that Kane's
ey already paid to MacGREGOR by the Navy,
complaint did not present its other claims. We
but Kane has not identified any legal or factual
construe the complaint liberally and
basis for such a lien. Kane cites only two
acknowledge that it fairly raises a claim for
cases, one of which, Quality Mech.
equitable lien, a third-party beneficiary claim
Contractors, Inc. v. Moreland Corp., 19 F.
under the prime contract, and a quantum
Supp. 2d 1169 (D. Nev. 1998), was effectively
meruit claim. Yet, none of these states a claim
overruled by Blue Fox. The other, Faerber
upon which relief can be granted. Thus, we
Elec. Co. v. Atlanta Tri-Com, Inc., 795 F.
affirm.1
Supp. 240 (N.D. Ill. 1992), stands for the
unremarkable proposition that the Miller Act
First, Kane has not stated a claim for an
is not the exclusive remedy for a sub-
equitable lien in any appropriate fund or prop-
subcontractor against a government contractor
erty. An equitable lien is a "right . . . to have
if other common law remedies exist.
a demand satisfied from a particular fund or
specific property." BLACK'S LAW DICTION-
Yet, Kane does not explain how it could
ARY 934 (7th ed. 1999) (emphasis added); see
possibly be entitled to an equitable lien against
also Dep't of the Army v. Blue Fox, Inc., 525
money paid to MacGREGOR by the Navy.
U.S. 255, 262-63 (1999) (describing the
Kane cites subcontract ¶ 2(e), but that
nature of an equitable lien). As we have ex-
paragraph merely allows MacGREGOR to
plained, Kane cannot claim an equitable lien
withhold the retainage from Halter; it does not
against the retainage in any court outside the
create a basis for an equitable lien. Kane also
Southern District of Mississippi, nor can it
cites subcontract ¶ 7(b), but that paragraph
claim an equitable lien in the ramps, because
obviously protects MacGREGOR from
they are now property of the United States,
Halter's breach of the subcontract, not Kane
from Halter's breach of the sub-subcontract.
Kane cursorily cites several other equally
1 MacGREGOR observed, in its opening brief,
irrelevant paragraphs to similar effect.
that the United States, which Kane attempted to
join as a defendant, might remain a party in the
Second, Kane has not stated a claim as a
district court. If true, this fact would have de-
third-party beneficiary to the prime contract.
prived us of appellate jurisdiction, because Kane
"A contract ing party may stipulate a benefit
did not obtain a certificate under FED. R. CIV. P.
for a third person called a third party
54(b). After supplemental briefing, however, we
beneficiary." LA. CIV. CODE ANN. art. 1978.2
conclude that Kane never properly served the
"Louisiana law is settled that for there to be a
United States under FED. R. CIV. P. 4(i). For
stipulation pour autrui there must be not only
purposes of appellate jurisdiction, we treat an im-
a third-party advantage, but the benefit derived
properly served defendant as never before the dis-
trict 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
2 The parties have assumed throughout that
which Kane did not need a rule 54(b) certificate.
Louisiana law governs this case.
3

from the contract by the third party may not
meruit claim against MacGREGOR.
merely be incidental to the contract." Davis
"Quantum meruit is an equitable remedy
Oil Co. v. TS, Inc., 145 F.3d 305, 311 (5th
founded upon the principle that no one who
Cir. 1998) (citation omitted). Further, the
benefits from the labor . . . of another should
stipulation "will be found only when the
be unjustly enriched at the other's expense.
contract clearly contemplates the benefit to
The doctrine operates, in the absence of a
the third person as its condition or
specific contract, to infer a promise on behalf
consideration." Id. (citation omitted). The
of the person to whom the benefit is conferred
contract need not expressly identify the third
to pay a reasonable sum for the services or
person, however, if the contract plainly
materials furnished." Brankline v. Capuano,
contemplates a benefit to a third person. Id.
656 So. 2d 1, 5 (La. App. 3d Cir. 1995);
accord McCarty Corp. v. Pullman-Kellogg,
Under these Louisiana standards, Kane
Div. of Pullam, Inc., 751 F.2d 750, 760 (5th
does not qualify as a third-party beneficiary to
Cir. 1985). In other words, quantum meruit
the prime contact's transportation clauses.
presupposes both the absence of an express
The prime contract simply states that Mac-
contract and unjust enrichment of the
GREGOR will ship the ramps via "commercial
defendant.
barge." This clause hardly manifests a plain
intent to make into a third-party beneficiary an
Neither element is present here. Kane has
unspecified barge operator several steps down
a specific contract with Halter. Kane may be
the contracting chain.
displeased that Halter filed for bankruptcy, but
its displeasure does not void the sub-
The clause does not even mention payment
subcontract, and does not allow it to sue
to the operator. The surrounding clauses,
MacGREGOR. Kane's remedy is a suit for
which state other modes of transportation for
breach of contract against Halter, not a
other goods, further support this reasoning. If
quantum meruit claim against MacGREGOR.
Kane is a third-party beneficiary under the
commercial barge clause, then other shipping
companies would become third-party
Also, MacGREGOR was not unjustly en-
beneficiaries to those clauses. Kane's
riched; it contracted with Halter, and both par-
implausible argument would erase Louisiana's
ties performed their obligations under the sub-
distinction between intended and incidental
contract. Halter may have been unjustly en-
benefits and would create dozens of third-
riched by its failure to pay Kane under the sub-
party beneficiaries under the prime contract.3
subcontract, but that cannot justify a quantum
meruit claim against MacGREGOR.
Finally, Kane has not stated a quantum
The judgment is AFFIRMED. All requests
for sanctions are DENIED.
3 Kane also argues that it is a third-party ben-
eficiary of the subcontract, but it does not specify
which clauses of the subcontract confer this pu-
tative benefit. We therefore deem this argument
waived for failure to brief it adequately. See FED.
R. APP. P. 28(a)(9)(A).
4