     Case: 18-31303      Document: 00515186524         Page: 1    Date Filed: 11/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                      No. 18-31303                           FILED
                                                                      November 5, 2019
                                                                        Lyle W. Cayce
BARRY J. BADEAUX,                                                            Clerk

              Plaintiff - Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; CB&I GROUP, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-6606


Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
       Barry Badeaux sued BP Exploration & Production, Inc.; BP America
Production Company (collectively, “BP”); and CB&I Group, Inc. (“CB&I”) for
unjust enrichment arising from the alleged use of his design to contain the flow
of oil released in the aftermath of the Deepwater Horizon oil spill. Badeaux
appeals the district court’s dismissal of his complaint for failure to allege



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-31303
sufficient factual information to state a plausible claim. We AFFIRM the
district court’s judgment.
                                        I
      This appeal involves one of the many disputes arising from the
Deepwater Horizon oil spill. On April 20, 2010, an explosion on the Deepwater
Horizon offshore drilling platform resulted in a massive oil spill in the Gulf of
Mexico. Oil spewed into the surrounding coastal waters for months as BP and
government authorities sought to stop it. When initial efforts to stop the flow
of oil failed, BP solicited input from the public and “offered cash payments for
useful ideas.” 1
      In response to that request, Badeaux devised a plan to prevent the oil
from entering local marshes and reaching the coastline by using “connected
barges with attached oil skimmers” as a barrier to stop the flow of oil. Badeaux
drew plans for his design, which “included the use of PVC pipe in a ‘bar bell
type’ configuration” to connect the barges and oil skimmers, and he built a
prototype at his own expense. On or about May 28, 2010, Badeaux presented a
drawing of his design to a member of the Jefferson Parish Council. The council
member submitted Badeaux’s drawing to the United States Coast Guard for
review and approval on Badeaux’s behalf.
      One week later, local officials from the parishes of Jefferson, St. Bernard,
and Plaquemines allegedly met with President Barack Obama and asked for
approval to use Badeaux’s design. Shortly thereafter, the President of St.
Tammany Parish indicated that St. Tammany would place “barges with
skimming devices on them” at the mouth of the Rigolets to stop the flow of oil
into Lake Pontchartrain. Similarly, a Jefferson Parish official “discussed the



      1  For purposes of this appeal, we assume the truth of Badeaux’s well-pleaded
allegations.
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                                  No. 18-31303
plan to use 60 barges to make a 7,000-foot barrier to block and channel the oil
at the entrance to Barataria Bay.” The Coast Guard allegedly approved
Badeaux’s “barge/oil skimmer plan,” and by June 18, 2010, local officials began
using his design to stop oil from flowing into the marshland.
      Once Badeaux noticed that his design was being used without his
consent, he “made several telephone calls to various BP representatives” to
inform them that his design “could not be used without his permission or
compensation,” and he sent correspondence to BP demanding payment. BP did
not respond. Badeaux then filed a claim under the Deepwater Horizon
Economic and Property Damage Settlement Agreement, which BP denied.
Badeaux never received any compensation for his design from BP.
      Badeaux filed suit against BP and CB&I on May 18, 2018, asserting a
single claim for unjust enrichment. Specifically, Badeaux alleges that BP paid
CB&I millions of dollars to construct the “barge/oil skimmer” using his design
without his permission. And the use of Badeaux’s design allegedly “saved BP
considerable amounts in damages.” On August 7, 2018, BP and CB&I filed a
motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The district court granted the motion and dismissed Badeaux’s complaint on
November 30, 2018. Badeaux timely appealed.
                                       II
                                        A
      The district court had jurisdiction under 43 U.S.C. § 1349(b)(1). We have
jurisdiction under 28 U.S.C. § 1291.
                                        B
      We review a district court’s dismissal of a complaint under Rule 12(b)(6)
de novo. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir.
2019). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
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its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Although
we accept all “well-pleaded facts” as true and construe the complaint in the
light most favorable to the plaintiff, we do not accept “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. Nor do “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557).
                                       III
      The district court held that Badeaux did not allege sufficient factual
information to state a plausible claim for unjust enrichment. Under Louisiana
law, unjust enrichment has five elements: (1) there must be an enrichment; (2)
there must be an impoverishment; (3) there must be a connection between the
enrichment and resulting impoverishment; (4) there must be an absence of
“justification” or “cause” for the enrichment and impoverishment; and (5) there
must be no other remedy at law. Richard v. Wal-Mart Stores, Inc., 559 F.3d
341, 345–46 (5th Cir. 2009); Baker v. Maclay Props. Co., 648 So. 2d 888, 897
(La. 1995).
      Badeaux’s unjust enrichment claim is, at best, speculative. As the
district court discussed, the complaint offers only a vague description of
Badeaux’s design—a series of connected “barges and specialized oil skimmers”
made with “PVC pipe in a ‘bar bell type’ configuration.” And Badeaux has never
provided any description of the device ultimately used to contain the oil spill
other than that it “was the very design [he] gave to [the Jefferson Parish
councilman] a few days earlier.” This is exactly the type of unsupported,
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conclusory assertion that we routinely reject. Even if the device ultimately
used involved “connected barges and oil skimmers,” without more detail, we
cannot reasonably infer that it was Badeaux’s invention.
      Badeaux also failed to allege any facts as to how BP obtained his design.
Although Badeaux claims he developed his design in response to BP’s offer to
pay for ideas used to address the oil spill, Badeaux never submitted his design
to BP. Instead, he gave a drawing of his design to a Jefferson Parish
councilman, who then gave it to the Coast Guard. At some point thereafter, BP
allegedly entered into a multi-million-dollar contract with CB&I to construct a
“barge/oil skimmer” barrier using Badeaux’s design. And within a matter of
weeks, Jefferson Parish officials allegedly began implementing Badeaux’s
plan. According to Badeaux, it is reasonable to infer that BP received his design
from the Coast Guard or local officials. We disagree.
      Badeaux failed to allege facts demonstrating above the speculative level
that his design was communicated to BP or CB&I, much less that BP or CB&I
used it. See Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of “entitlement to relief.”’”). Badeaux’s
allegations fail to establish that he conferred an actual benefit on BP or CB&I,
which is a necessary element of his unjust enrichment claim. See Richard, 559
F.3d at 346. As a result, the district court properly granted the motion to
dismiss Badeaux’s complaint under Rule 12(b)(6).
                                       IV
      In a single sentence at the end of his brief, Badeaux requests that we
remand his case for an opportunity to amend his complaint so that he can cure
any deficiencies. Although leave to amend should be freely given, Badeaux
never moved to amend his complaint in the district court. “A party who neglects
to ask the district court for leave to amend cannot expect to receive such a
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dispensation from the court of appeals.” United States ex rel. Willard v.
Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003). And
Badeaux has not indicated “specifically how he would amend his complaint to
overcome the 12(b)(6) dismissal.” Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir.
1994); see also Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per
curiam) (affirming dismissal without granting leave to amend where plaintiff
failed to “explain what facts he would have added or how he could have
overcome the deficiencies found by the district court” (quoting Goldsmith v.
Hood Cty. Jail, 299 F. App’x 422, 423 (5th Cir. 2008))). To the contrary,
Badeaux has repeatedly “declare[d] the adequacy of his complaint,” both in his
response to the motion to dismiss and in his brief to this court. Jacquez v.
Procunier, 801 F.2d 789, 793 (5th Cir. 1986). For these reasons, we deny
Badeaux’s request.
      Accordingly, we AFFIRM the district court’s judgment of dismissal.




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