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Wells v. DISA Global Solutions, Inc.

United States District Court, W.D. Louisiana

February 6, 2017





         Pending before the undersigned for Report and Recommendation is the Motion to Dismiss filed by DISA Global Solutions, Inc. ("DISA") [rec. doc. 6]. Plaintiff David M. Wells ("Wells") has filed opposition to the Motion. [rec. doc. 14].

         By this Motion, DISA seeks dismissal of Wells' Louisiana state law negligence action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted because the complaint does not allege that DISA owed Wells a duty and does not allege that any such duty was breached.

         By opposition, Wells contends that he has stated a cause of action for negligence under Louisiana law. More specifically, Wells contends that he has plead sufficient facts, taken as true, from which a duty owed to him by DISA may be inferred, and which duty was breached, causing him damages. The court agrees.

         For those reasons set out below, it is recommended that the Motion to Dismiss be denied.

         Motion to Dismiss Standard

         In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a district court must limit itself to the contents of the pleadings, including attachments thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); F.R.C.P. 12(b)(6).

         Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotations omitted) quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). In other words, a motion to dismiss an action for failure to state a claim “admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts.” Ramming, 281 F.3d at 161-162 quoting Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992).

         “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 its face.'” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

         “A claim for relief is plausible on its face ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Harold H. Huggins Realty, Inc., 634 F.3d at 796 quoting Iqbal, 129 S.Ct. at 1949. This includes the basic requirement that the facts plausibly establish each required element for each legal claim. Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014) citing Iqbal, 129 S.Ct. at 1949 and Twombly, 550 U.S. at 557. However, a complaint is insufficient if it offers only “labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action.” Id. at 763-764 quoting Iqbal, 556 U.S. at 678 quoting Twombly, 550 U.S. at 555.

         “Factual allegations must be enough to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555; Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013). Thus, “the pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Twombley, 127 S.Ct. at 1965 citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004); Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 at fn. 27 (5th Cir. 2009). If a plaintiff fails to allege facts sufficient to “nudge[] his claims across the line from conceivable to plausible, his complaint must be dismissed.” Twombley, 127 S.Ct. at 1974; Malik v. Continental Airlines, Inc., 305 Fed.Appx. 165, 167 (5th Cir. 2008); Mitchell v. Johnson, 2008 WL 3244283, *2 (5th Cir. 2008).

         Factual Background

         The facts, as asserted in the Complaint, are as follows. Wells was employed as a diver, an occupation in which he has extensive training and years of experience. [rec. doc. 1, ¶ 11, 12(a) and (c)]. Wells alleges that on June 22, 2016, an "employee or agent of [DISA] collected a hair sample from [Wells]" to perform a test for the use of illegal drugs by Wells. [Id. at, ¶ 2]. DISA "carried out the testing on the hair sample, either directly or through its agents." [Id. at ¶ 3]. Wells has never used cocaine in his entire life. [Id. at ¶ 5]. In its reporting of the drug test results, DISA "falsely claimed that [Wells] was positive for the use of . . . cocaine." [Id. at ¶ 4]. The "false results reported by [DISA] are the result of its negligence . . . in one or more of the following regards": "failing to properly take and identify the hair sample, including . . . the failure to take a sufficient amount of hair", "allowing contamination of the hair sample", "failing to ensure that the hair [sample] tested and on which the results were reported was the same hair sample taken from [Wells]", "failing to conduct the test properly to produce correct results", "failing to establish procedures and guidelines that would ensure tests yield accurate results", "failing to follow procedures and guidelines that were in effect" and "incorrectly reporting the results of the test." [Id. at ¶ 6]. Wells further alleges that he contested the results of the drug test and sought a retest. [Id. at ¶ 7]. Although the contest "procedure calls for a retest of a second sample by a different laboratory", Wells was told that because there was an insufficient amount of hair taken in the initial test, the retest would be conducted on the same sample by the same laboratory. [Id. at ¶ 8]. The retest under these conditions was inadequate to correct the results of the initial test, the retest "would not have eliminated contamination of the sample and would not have corrected a mix-up of the sample with that of another person." [Id. at ¶ 9]. "After learning of the test performed by [DISA] ", Wells had another drug test performed by a third party; the results of that test were negative for illegal drugs including cocaine. [Id. at ΒΆ 10]. Wells further alleges that "[DISA's] negligence regarding the drug testing damaged [Wells]" in the following ways: by "causing [Wells] to be terminated from his employment as a diver resulting in lost wages and other compensation", "irreparably damaging [Wells'] sterling reputation . . . in the industry", "preventing [Wells] from being able to gain or maintain employment . . . as a diver, an occupation in which [Wells] has extensive training and years of experience", "causing ...

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