                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 9, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-30976
                         Summary Calendar



BANK OF ABBEVILLE & TRUST CO

                     Plaintiff - Appellant

     v.

COMMONWEALTH LAND TITLE INSURANCE CO

                     Defendant - Appellee



          Appeal from the United States District Court
              for the Western District of Louisiana
                         No. 6:05-CV-899


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     In this diversity action, plaintiff-appellant Bank of

Abbeville & Trust Co. appeals the district court’s dismissal of

its action for unjust enrichment against defendant-appellee

Commonwealth Land Title Insurance Co.   For the reasons stated, we

AFFIRM.

               I. FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff-appellant Bank of Abbeville & Trust Co. (“Bank”)



     *
       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this opinion should not be published and is not precedent except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.
alleged in its complaint that an account holder at the Bank,

Joseph Kosarek (“Kosarek”), defrauded the Bank of more than

$600,000.   According to the complaint, Kosarek was an approved

attorney and issuing agent of defendant-appellee Commonwealth

Land Title Insurance Co. (“Commonwealth”).    In connection with

various real estate transactions, Kosarek received from lenders

certain moneys that were to be held in trust in his account at

the Bank and then transferred to other parties.    The Bank alleges

that Kosarek fraudulently wrote checks that the Bank honored,

resulting in the account being overdrawn by more than $600,000.

The Bank now seeks to recover the overdrawn amount from

Commonwealth.

     The Bank brought an action against Commonwealth for unjust

enrichment under LA. CIV. CODE ANN. art. 2298 (1997).   Commonwealth

moved to dismiss under FED. R. CIV. P. 12(b)(6), contending that

the Bank had not alleged that it had no other remedy at law, a

requisite element of an unjust enrichment claim in Louisiana.

The district court dismissed the Bank’s action without prejudice,

and the Bank now appeals.

                            II. DISCUSSION

A.   Standard of Review

     This court reviews de novo the grant of a motion to dismiss

under Rule 12(b)(6).   Martin K. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (citing Gregson


                                 -2-
v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003)).        We

“accept all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.”      Jones v. Greninger, 188 F.3d

322, 324 (5th Cir. 1999) (per curiam) (citing Doe v. Hillsboro

Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)).      “[T]he

court should not dismiss the claim unless the plaintiff would not

be entitled to relief under any set of facts or any possible

theory that [it] could prove consistent with the allegations in

the complaint.”    Id. (citing Vander Zee v. Reno, 73 F.3d 1365,

1368 (5th Cir. 1996)).    “Dismissal is proper if the complaint

lacks an allegation regarding a required element necessary to

obtain relief . . . .”    Rios v. City of Del Rio, 444 F.3d 417,

421 (5th Cir. 2006) (omission in original) (quoting Campbell v.

City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)).

B.   Analysis

     The Bank first contends that the district court’s dismissal

of its unjust enrichment claim was improper because the complaint

complied with FED. R. CIV. P. 8(a), (e).    The Bank correctly

states Rule 8(a)’s pleading requirement for a claim: the

complaint must set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.”      FED. R.

CIV. P. 8(a)(2).   The Bank also accurately recites its obligation

under Rule 8(e) to make the complaint’s averments “simple,

concise, and direct.”    FED. R. CIV. P. 8(e)(1).   But the Bank



                                 -3-
incorrectly posits that its compliance with Rule 8 precludes

dismissal under Rule 12(b)(6).

     The Bank’s reliance on its conformance with Rule 8 is

misplaced.    On the one hand, a Rule 12(b)(6) motion to dismiss

for failure to state a claim may be a proper vehicle to challenge

the sufficiency of a pleading under Rule 8.             See 5 CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE   AND   PROCEDURE § 1203 (3d ed.

2004) (“[T]he form and sufficiency of a statement of a claim for

relief under Rule 8(a)(2) may be tested by a motion to dismiss

for failure to state a claim upon which relief can be granted,

Rule 12(b)(6) . . . .”).      But mere compliance with Rule 8 does

not itself immunize the complaint against a motion to dismiss.

See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041

(7th Cir. 1999).     The Bank “confuses form with substance.            Rule

8(a)(2) specifies the conditions of the formal adequacy of a

pleading.    It does not specify the conditions of its substantive

adequacy, that is, its legal merit.”           Id. (emphases added).

Thus, notwithstanding the Bank’s compliance with Rule 8's formal

requirements by pleading a short and plain statement of its

purported claim, dismissal is nevertheless proper if the Bank

would not be entitled to relief under any set of facts or any

possible theory that it could prove consistent with the

complaint’s allegations.      See Jones, 188 F.3d at 324 (citing

Vander Zee, 73 F.3d at 1368).

     Accepting the allegations in the complaint as true and

                                    -4-
viewing them in the light most favorable to the Bank, the Bank

would not be entitled to relief against Commonwealth under the

theory of unjust enrichment1 because it cannot prove the fifth

element of an unjust enrichment claim——a lack of other remedy at

law.       Under Louisiana law, a bank may honor a check written by

its customer and charge the amount of the check against the

customer’s account even if doing so would result in the account

being overdrawn.       LA. REV. STAT. ANN. § 10:4-401(a) (2003) (“A bank

may charge against the account of a customer an item that is

properly payable from that account even though the charge creates

an overdraft.”); see also McGuire v. Bank One, La., N.A., 744 So.

2d 714, 716-17 (La. Ct. App. 1999).         Once a bank honors a check

that results in an overdraft, the customer is liable to the bank

for the amount of the overdraft.          See Chrysler Credit Corp. v.

Whitney Nat’l Bank, 798 F. Supp. 1234, 1237 (E.D. La. 1992)

(“Whitney [National Bank] had covered TOJ’s overdrafts, which,

legally, functions as a loan from Whitney to TOJ.”); McGuire, 744


       1
       An action for unjust enrichment under LA. CIV. CODE ANN.
art. 2298 contains five elements: (1) enrichment on the part of
the defendant, (2) impoverishment on the part of the plaintiff,
(3) a causal connection between the defendant’s enrichment and
the plaintiff’s impoverishment, (4) an absence of justification
or cause for the enrichment and impoverishment, and (5) a lack of
other remedy at law. See Indus. Cos. v. Durbin, 837 So. 2d 1207,
1213-14 (La. 2003) (citing Hartmann v. Bank of La., 702 So. 2d
648, 658 (La. 1996)).
     In the present case, the parties do not dispute that the
complaint contains sufficient allegations regarding the first
four elements; rather, this appeal is focused on the fifth
element——a lack of other remedy at law.

                                    -5-
So. 2d at 717 (citing with approval City Bank of Honolulu v.

Tenn, 469 P.2d 816 (Haw. 1970), which “based its reasoning on

cases holding that payment of the check creating an overdraft

constitutes a loan for which the bank customer is liable for

repayment”); see also 9 C.J.S. Banks and Banking § 349 (1996).

Thus, the Bank has another remedy at law: it may pursue an action

against its customer, Kosarek, to recover the amount of the

overdraft.   Moreover, at the district court, the Bank conceded

that it had a remedy against Kosarek: “The Bank does not dispute

that another remedy was available under the law for its

impoverishment.   It has pursued available rights and remedies

against . . . Kosarek . . . and his wife.”      1 R. 58.   Because,

based on the complaint’s allegations, the Bank has another remedy

at law, dismissal of its unjust enrichment claim was proper.

     In the same vein as its argument regarding Rule 8, the Bank

next asserts that dismissal was improper because it complied with

Rule 9(c), which provides: “In pleading the performance or

occurrence of conditions precedent, it is sufficient to aver

generally that all conditions precedent have been performed or

have occurred.”   FED. R. CIV. P. 9(c).    The Bank contends that the

existence of another remedy is actually a defense that

Commonwealth must plead with particularity under Rule 9(c).       The

Bank’s argument is without merit for two reasons.      First, lack of

another remedy is an element of an unjust enrichment action, not

a condition precedent or a defense.       See Indus. Cos. v. Durbin,

                                 -6-
837 So. 2d 1207, 1213-14 (La. 2003) (citing Hartmann v. Bank of

La., 702 So. 2d 648, 658 (La. 1996)).   Second, even if lack of

another remedy were a condition precedent, meaning that Rule 9(c)

would apply, the Bank has not complied with the Rule because at

no point in the complaint does the Bank allege——not even

generally——that it has no other remedy at law or that all

conditions precedent to its claim have been satisfied.     Cf. EEOC

v. Klingler Electric Corp., 636 F.2d 104, 106 (5th Cir. Unit A

Feb. 1981) (per curiam) (“A general averment that ‘all conditions

precedent to the institution of this lawsuit have been fulfilled’

is quite adequate for pleading purposes.” (citing FED. R. CIV. P.

9(c); EEOC v. Standard Forge & Axle Co., 496 F.2d 1392 (5th Cir.

1974))).   And even had the Bank complied with Rule 9(c), its

argument is without merit for the same reason that its argument

with respect to Rule 8 is without merit: Rule 9(c) addresses

merely the form of the complaint, not the claim’s substance.

     The Bank additionally contends that the district court

should have converted Commonwealth’s motion to dismiss into a

motion for summary judgment and should have permitted discovery

because, in deciding the motion, it considered information

outside the scope of the complaint.   At the hearing before the

district court, Commonwealth advised the court that the Bank was

pursuing claims against Kosarek to recover its loss.   In making

its decision, the court did not exclude this information even

though it is not set forth in the complaint.   But in deciding a

                                -7-
Rule 12(b)(6) motion, the court is permitted to go beyond the

four corners of the complaint and consider matters of public

record without converting the motion into one for summary

judgment.2        Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.

1994) (citing Louisiana ex rel. Guste v. United States, 656 F.

Supp. 1310, 1314 n.6 (W.D. La. 1986), aff’d, 832 F.2d 935 (5th

Cir. 1987)); see also 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE   AND   PROCEDURE § 1356 (3d ed. 2004).   The district court

therefore did not commit error by failing to exclude from its

consideration the existence of the Bank’s actions against

Kosarek.

      Finally, the Bank opines that the issue of whether another

remedy exists is a fact question that is more appropriate for

summary judgment because at this point it is not clear that it

has an adequate remedy for its impoverishment.           But Kosarek’s

ability to pay any judgment the Bank may obtain against him is

not a factor for the court to consider.            See Hartmann v. Bank of

La., 702 So. 2d 648, 672 (La. 1996).         “The existence of a

‘remedy’ which precludes application of unjust enrichment does

not connote the ability to recoup [the] impoverishment by

bringing an action against a solvent person.           It merely connotes


      2
       In deciding this appeal, we do not rely on the existence
of the pending action against Kosarek by the Bank. Even if the
Bank were not seeking to recover its losses from Kosarek in a
separate lawsuit, this remedy would nonetheless be available to
the Bank, and dismissal would still be proper.

                                      -8-
the ability to bring the action or seek the remedy.”     Id.

Moreover, “unjust enrichment principles are only applicable to

fill a gap in the law where no express remedy is provided,”

Coastal Environmental Specialists, Inc. v. Chem-Lig International

Industries, Inc., 818 So. 2d 12, 19 (La. Ct. App. 2001), not to

shift responsibility to another party more able to pay.3       As it

conceded before the district court, the Bank has the ability to

bring an action against Kosarek.   Dismissal of the Bank’s unjust

enrichment claim against Commonwealth was therefore proper

regardless of whether it will successfully recover its

impoverishment from Kosarek.

                         III. CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




     3
       The Bank’s reliance on Carter v. Flanagan, 455 So. 2d 689
(La. Ct. App. 1984), is misplaced. The Carter court held that
the element of lack of other remedy at law had been satisfied
because the responsible party’s whereabouts were unknown, even
though she was being actively sought by law enforcement. Carter,
455 So. 2d at 692-93. The court concluded that the plaintiff’s
remedy against the fugitive party was impractical and that
therefore the fifth element was fulfilled. Id. Carter is
distinguishable because in this case there is no allegation in
the complaint that Kosarek’s whereabouts are unknown. And as the
Bank conceded before the district court, it is already pursuing
claims against Kosarek.

                               -9-
