4884 Highway 1, LLC v. Tobacco Plus, Inc., et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
4884 HIGHWAY 1, LLC CIVIL ACTION
VERSUS NO. 24-2810
TOBACCO PLUS, INC. ET AL. SECTION “O”
ORDER AND REASONS
Before the Court in this breach of contract and guarantor action is the Federal
Rule of Civil Procedure 12(b)(6) motion1 of Defendants Tobacco Plus, Inc. and Shop
Rite Inc. to dismiss Plaintiff 4884 Highway 1, LLC’s claims for breach of the parties’
lease agreement. Plaintiff opposes the motion. For the following reasons, the motion
is DENIED.
I. BACKGROUND
This breach of contract action arises from Plaintiff 4884 Highway 1, LLC’s
claim that Defendant Tobacco Plus, Inc., and Defendant Shop Rite as guarantor, have
breached their obligations owed under the operative lease between the parties.
Because this case comes to the Court on Defendants’ Rule 12(b)(6) motion to dismiss,
the facts that follow are drawn from the well-pleaded allegations of Defendants’
complaint and attached exhibits, which are incorporated by reference.2 See generally
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 190 (5th Cir. 2009).
1 ECF No. 12.
2 The Lease agreement and its amendments are considered incorporated into the pleadings
because Plaintiff attached the documents to its complaint, Plaintiff relies on them in its complaint,
and they are central to Plaintiff’s claims. See Ware v. Irving Place Assocs., L.P., 2025 WL 3022311, at
*2 n.6 (5th Cir. Oct. 29, 2025).
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On June 17, 1988, Wilbur Marvin, landlord, and Shop Rite, lessee, entered
into a Shopping Center Lease (the “Lease”).3 The Lease provided for a fifteen-year
initial term that automatically renewed for three additional terms of five years.4 On
June 17, 2009, Shop Rite assigned the Lease to Tobacco Plus and was added as a
guarantor of the Lease.5 On December 5, 2014, Mathews, LA., Commercial Properties
Development Company, L.L.C. (“CPDC”), successor to Wilbur Marvin, sold the leased
premises and assigned the Lease to Plaintiff.6
The Lease called for both a fixed rent payment by the lessee and a “percentage
rent” payment of 3% of the lessee’s gross annual sales volume (excluding gasoline
sales).7 The lessee was also required to submit to the lessor an annual sales report
showing gross sales receipts for the year.8
On September 23, 2009, CPDC and Tobacco Plus entered into an amendment
(“Amendment 1”) that adjusted the fixed rent amount. It also removed, for five years,
the Lease’s requirement that Tobacco Plus pay a percentage rent of its annual sales.
But it maintained the requirement that Tobacco Plus provide an annual sales report
showing its annual gross sales volume.9
Several years later, on November 5, 2013, CPDC and Tobacco Plus entered into
the “Letter Agreement,” which further modified the terms of the Lease. Relevant
3 ECF No. 1 ¶ 6.
4 Id. ¶ 7.
5 Id. ¶ 9.
6 Id. ¶ 14.
7 ECF No. 1-1 at 2 (Exhibit A – Lease). The Lease provided that the lessee would pay to the
lessor $0.01 per gallon of annual gross sales volume of gasoline sales. Id.
8 Id.
9 ECF No. 1-3 (Ex. C – Amendment 1).
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here, the Letter Agreement reinstated the requirement that Tobacco Plus pay an
“additional rent (overage) based upon 3% of annual gross sales volume excluding only
gasoline sale[.]” The Letter Agreement maintained the requirement that Tobacco
Plus provide an annual sales report with gross receipts during the prior lease year.10
As noted, in 2014 CPDC sold and assigned the lease to Plaintiff.11 In May 2019,
Plaintiff and Tobacco Plus entered into an “Amendment to Lease,” which renewed
Tobacco Plus’s Lease and incorporated “all provisions included in the prior renewal
dated November 5, 2013[.]”12
Despite the terms of the November 5, 2013 Letter Agreement, Tobacco Plus
never provided Plaintiff with its annual sales reports showing its gross receipts. Nor
did it pay Plaintiff the percentage rent of its annual sales.13 In 2023, Plaintiff and
Tobacco Plus began renegotiating the terms of the Lease. In connection with those
renegotiations, Plaintiff demanded that Tobacco Plus provide its gross sales receipts
to allow Plaintiff to calculate past due rent owed.14
On August 4, 2023, Tobacco Plus provided Plaintiff with its gross receipts from
2014 through 2022. From these gross sales receipts, Plaintiff calculated that it is
owed approximately $270,000.00 in additional rent from Tobacco Plus for fiscal years
2014 through 2022. Further, despite multiple requests from Plaintiff, Tobacco Plus
failed to provide gross sales receipts for fiscal years 2023 and 2024. 15
10 ECF No. 1 ¶ 13; ECF No. 1-4 (Ex. D – Letter Agreement).
11 ECF No. 1 ¶ 14.
12 Id. ¶ 16; ECF No. 1-7 (Ex. G – Amendment).
13 ECF No. 1 ¶ 18.
14 ECF No. 1 ¶¶ 19-20.
15 Id. ¶¶ 21-23.
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Plaintiff now seeks reimbursement for the $270,000 it is allegedly owed in past
due rent. Plaintiff brings two claims: (1) breach of contract for Tobacco Plus’s breach
of the lease agreement; and (2) an action against Shop Rite as guarantor.
Tobacco Plus and Shop Rite move to dismiss Plaintiff’s complaint under Rule
12(b)(6) for failure to state a claim.16 Plaintiff opposes.17
II. LEGAL STANDARD
Rule 8(a)(2) requires that any “pleading that states a claim for relief” contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CI V. P. 8(a)(2); see also FE D. R. CIV. P. 7(a) (defining “[p]leadings”
to include “third-party complaint[s]”). A complaint that does not satisfy Rule 8(a)(2)’s
pleading standard fails to state a claim upon which relief can be granted. See
generally FE D. R. CI V . P. 12(b)(6). “[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(quoting Twombly, 550 U.S. at 557).
“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
16 ECF No. 12.
17 ECF No. 14.
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plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). “Although ‘[courts] accept all well-pled
facts as true, construing all reasonable inferences in the complaint in the light most
favorable to the plaintiff, conclusory allegations, unwarranted factual inferences, or
legal conclusions are not accepted as true.’” Hodge v. Engleman, 90 F.4th 840, 843
(5th Cir. 2024) (quoting Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023)).
III. ANALYSIS
Defendants do not dispute that Plaintiff has adequately pled the elements of a
claim for breach of contract under Louisiana law.18 Instead, Defendants contend that
Plaintiff’s claim fails as a matter of law because the parties modified the written
Lease agreement by course of conduct. According to Defendants, since 2014 the
parties have been operating under the terms of the September 2009 Amendment—
which does not require a percentage of sales rent payment—and not the November
2013 Letter Agreement, which does require a percentage of sales rent payment. In
support, Defendants point to the fact that Plaintiff has not taken issue with either
their failure to pay the percentage rent payment or their failure to provide gross
annual sales receipts for nearly two decades.
It is true that under Louisiana law, “written contracts may be modified by oral
contracts and the conduct of the parties, even when the written contract contains a
18 Both agree Louisiana law applies to the Lease.
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provision that change orders must be in writing.” Aqua Pool Renovations, Inc. v.
Paradise Manor Cmty. Club, Inc., 04-119 (La. App. 5 Cir. 7/27/04), 880 So. 2d 875,
880. It is also true that “[m]odification of a written agreement can be presumed by
silence, inaction, or implication.” Id. But whether an agreement has modified the
written contract is a question of fact. Alonso v. Westcoast Corp., 920 F.3d 878, 886
(5th Cir. 2019) (citing Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49,375 (La.
App. 2 Cir. 10/1/14), 150 So. 3d 492, 501, writ denied, 2014-2304 (La. 1/23/15), 159 So.
3d 1058). The party asserting modification of an obligation must prove “by a
preponderance of the evidence facts or acts giving rise to the modification.” Driver
Pipeline, 150 So. 3d at 501. And factual disputes cannot be resolved on a motion to
dismiss. See Ottemann v. Knights of Columbus, 36 F.4th 600, 608–09 (5th Cir. 2022)
(“[R]esolving this dispute precipitates a question of fact which cannot be resolved as
a matter of law on a motion to dismiss.”). Therefore, in this posture, the Court
cannot resolve the question of whether the parties modified by their conduct the
Lease and its amendments.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Rule 12(b)(6) motion19 to dismiss
Plaintiff’s complaint is DENIED.
19 ECF No. 12.
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New Orleans, Louisiana, this 30th day of March, 2026.
BRANDON S. LONG
UNITED STATES DISTRICT JUDGE
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