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Oliver v. DISA Global Solution, Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

February 2, 2017


          KAY MAG. JUDGE.



         Before the court is "Defendant DISA Global Solutions, Inc.'s Memorandum in Support of Motion to Dismiss Pursuant to F.R.C.P. 12(B)(6)" (R. #14) wherein Defendant, DISA Global Solutions, Inc. ("DISA"), seeks to be dismissed from the instant lawsuit because Plaintiffs claims are prescribed.


         On October 12, 2010, Plaintiff, Joshua Oliver, reported to Drug Screens, Etc., for a pre-employment drug screen at the request of a company with whom he sought employment.[1] The test results showed positive for opiates.[2] Mr. Oliver alleges he spoke with someone and informed them he had a legal prescription that would account for the positive results, but instead of providing documentation as proof of the prescription, he sought employment elsewhere.[3]

         In September 2015, Mr. Oliver alleges he applied for a job but was "not hired ... because DISA sent the potential employer the same drug test results made subject in this lawsuit."[4] Plaintiff has filed the instant lawsuit asserting claims of negligence against DISA for failing to change his positive result, and for defamation for allegedly reporting to Plaintiff's potential employers that Plaintiff tested positive for opiates.[5]

         RULE 12(B)(6) STANDARD

         Fed. R. Civ. P. 8(a)(2) requires that pleadings which state one or more claims for relief must contain "...a short and plain statement of the claim showing that the pleader is entitled to relief..." This "notice pleading" requirement is balanced against Fed.R.Civ.P. 12(b)(6), which provides that a court may dismiss one or more claims when the pleader fails to state a claim upon which relief may be granted.

         For the purpose of considering a motion to dismiss pursuant to Rule 12(b)(6), the court must take all well-pled factual allegations as true and must view them in the light most favorable to the plaintiff.[6] The pleading must allege facts which, when taken as true, raise the pleader's claim. A motion to dismiss for failure to state a claim should be denied unless "it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts" alleged in the petition.[7]

         Only those facts which are well-pleaded and state a "plausible claim for relief" must be accepted.[8] A claim is plausible when the court can reasonably infer from the facts that the defendant is liable to the plaintiff; a claim is not plausible when it only states conclusions of a "formulaic recitation of the elements of a cause of action."[9] However, even those facts which are extremely doubtful are to be assumed correct.[10]


         In his opposition, Mr. Oliver complains that the motion to dismiss relies on evidence that DISA has submitted. He suggests that the court exclude the evidence or convert the motion to a motion for summary judgment and dismiss it because discovery has not yet taken place.[11]

         In response, DISA notes that it attached the following documents as exhibits: (1) a DISA Drug Test Result; (2) a letter from Plaintiffs Attorney to DISA regarding his claims; and (3) DISA's Membership Application Form signed by Plaintiff wherein he agreed to become a DISA member and authorized DISA to record his work-eligibility status.[12] DISA maintains that the Court can consider these documents without converting its motion to a motion for summary judgment because the documents are all of unquestioned authenticity, referred to in Plaintiffs Petition, and integral to Plaintiffs claims.[13] In General Retail Services, Inc. v. Wireless Tovz Franchise, LLC, citing Wright & Miller, the court provides us with guidance on how to treat exhibits attached to a motion to dismiss:

[m]ost federal courts... have viewed the words "matters outside the pleadings" as including any written or oral evidence introduced in support of or in opposition to the motion challenging the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings. Memoranda of points and authorities as well as briefs and oral arguments in connection with the motion, however, are not considered matters outside the pleadings for purposes of conversion. The same is true for various types of exhibits that are attached to the pleadings, matters of which the district court can take judicial notice, and items of unquestioned authenticity that are referred to in the challenged pleading and are "central" or "integral" to the pleader's claim for relief.[14]
And for our purposes, it is enough that submitting evidence in connection with a separate motion, involving different issues, does not constitute submission of evidence with a contemporaneously filed Rule 12(b)(6) motion to dismiss.[15]

         The DISA Drug Test Result is referred to as Plaintiffs positive drug test result in Paragraph 3 on page 1 of Plaintiffs Petition.[16] There is no doubt the positive drug test result which is the basis for Plaintiffs lawsuit is integral to Plaintiffs claims.

         The letter dated 9/25/15 from Plaintiffs first attorney to DISA is referred to in Paragraph 7, page 2 of Plaintiffs Petition wherein Plaintiff alleges he contacted DISA regarding the drug test results at issue.[17] Finally, Plaintiff's membership application is referenced tangentially in Paragraph 6 of the Petition wherein Plaintiff alleges that DISA sent a potential employer his drug test at issue in the lawsuit.[18] The membership application form is an integral document as it relates directly to DISA's alleged obligations to Plaintiff with respect to his drug test. Hence, DISA maintains that the authenticity of the three documents is not questioned, and therefore the court may consider them without converting the motion to dismiss into a motion for summary judgment. Plaintiff has not challenged the authenticity of the three documents submitted with the motion to dismiss.

         The first document - the Drug Test Result - was definitely referred to in the Petition and is certainly integral to this lawsuit. The letter from the attorney will not be considered by the court in this motion and the Membership Application signed by Mr. Oliver is tangentially referred to in the Petition and is also an integral part of this lawsuit. The court finds that it is not necessary to convert the motion to a motion for summary judgment.


         Plaintiff filed suit six (6) years after the drug test at issue. DISA moves to dismiss the instant lawsuit as untimely. The statute of limitations on Oliver's negligence claim is one year.[19]A court will look to "the time when a plaintiff knew or should have known that a cause of action arose or existed...."[20] Some courts have found that a plaintiffs cause of action stemming from an improper drug test analysis accrues when the plaintiff becomes aware or should have become aware of the potential effects on his employment.[21] DISA maintains that Mr. Oliver became aware of the potential adverse effect of his failed drug test when he received the positive results within a few days of taking it-somewhere around October 12, 2010. Mr. Oliver filed this lawsuit on November 15, 2016.

         Mr. Oliver argues that his claims have not prescribed because DISA continues to publish his "positive test results" and thus, commits a continuous tort each day. Mr. Oliver agrees that he cannot recover damages from any injury suffered over one year before the lawsuit was filed, but he argues that he can recover damages because of the continual destruction of his professional reputation created by DISA's continual defamatory conduct.

         The court finds that Mr. Oliver knew in October 2010 that the Drug Test showed a positive result. Therefore the one year statute of limitations for both the negligence claim and the defamation claim began in October 2010. Plaintiff filed his lawsuit on October 12, 2016. Accordingly, we find that DISA is entitled to dismissal with prejudice because this suit was filed outside the limitations period.

         Negligence claim

         Even though the court has concluded that Mr. Oliver's claims for negligence and defamation are prescribed, we will further address DISA's motion as to its proposed dismissal of the negligence and defamation claims, substantively. DISA maintains that plaintiff has not plead all of the elements of a negligence claim. Under Louisiana's duty-risk analysis, plaintiff must establish;

(1) Proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element), (4) proof that the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).[22]

         DISA maintains that Mr. Oliver has failed to plead facts to indicate that DISA owed a duty to change the results of his drug test, or that DISA breach a duty owed to Mr. Oliver. DISA maintains a database which continually lists whether a person has failed a DISA-based drug test or not. DISA does not perform drug screenings; DISA takes the drug screen results, translates those into a label they then place on each person in their database, and publicizes that database to employers who contract with DISA for such information.[23] As noted by DISA, only the medical review officer has the authority to change the ...

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