United States District Court, W.D. Louisiana
DAVID M. WELLS
DISA GLOBAL SOLUTIONS, INC.
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
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.
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.
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
those reasons set out below, it is recommended that the
Motion to Dismiss be denied.
to Dismiss Standard
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).
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).
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).
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.
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.
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 ¶ 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",