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Breaux v. Rosemont Realty

United States District Court, W.D. Louisiana, Lafayette Division

June 24, 2015

ORAY BREAUX, JR
v.
ROSEMONT REALTY, ET AL

RULING

RICHARD T. HAIK, Sr., District Judge.

Before the Court is a Partial Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). Under a 12(b)(6) inquiry, the Court is limited to the face of the pleadings and must accept the facts pled as true, focusing on the sufficiency of the pleadings. The defendants seek to dismiss the following claims arguing the plaintiff has failed to state a cause of action:

A. A violation of the Louisiana Whistleblower's Act, LA R.S. 30:967, as the claim is superceded by his claim under the Louisiana Environmental Whistleblower Act.

Defendants' cite Collins v. State ex rel. Dep't of Natural Res. 118 So.3d 43 (LA App 1. Cir., 5/30/13) wherein the appellate court found a plaintiff had no cause of action as the Environmental Whistleblower Statute superceded the Whistleblower Statute for claims alleging retaliation for claims disclosing alleged violations of environmental laws. The Court noted, "As stated under well-established principles of statutory construction, where there is a general statute and a specific statute addressing the same subject matter, such as LA R.S. 30:2027 and LA R.S. 23:967, the more specific statute should govern." Here, the claims under both statutes arise out of the same set of facts and circumstances.

The plaintiff argues he has sufficiently stated separate claims, but, in the event the court disagrees, seeks a period of time to amend his Complaint to cure the defects.

The Court will reserve ruling on this issue and allow the plaintiff ten (10) days to amend his Complaint to cure the deficiencies. The defendants may file any motions they deem necessary following the amendment and the court will take them up on an expedited basis.

B. Violations of the Clean Air Act, 42 U.S.C. 7401, et seq.

The plaintiff does not contest dismissal of these claims. A plain reading of the filings supports the defendants' contentions. Plaintiff's claims for violations of the Clean Air Act, 42 U.S.C. 7401, are DISMISSED WITH PREJUDICE.

C. A Breach of the General Duty Clause of the Occupational Safety Health Administration

The plaintiff does not contest dismissal of these claims. Further, the defendants are correct in their assertion that the general duty clause of OSHA does not create a private right of action for plaintiffs. Plaintiff's claims for a breach of the General Duty Clause of the Occupational Safety Health Administration is DISMISSED WITH PREJUDICE.

D. Violations of the Louisiana Department of Environmental Quality Regulations

The plaintiff does not contest dismissal of these claims and does not allege he gave the required notice. Consequently, plaintiff's claims under the Louisiana Department of Environmental Quality regulations are DISMISSED WITH PREJUDICE.

E. Breach of Duty to Provide a Safe Workplace, LA R.S. 23:13

The defendants argue the plaintiff's claims under this statute are excluded by the Louisiana Workers' Compensation Act. Defendants contend the LWCA is the exclusive remedy for an ...


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