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Zuniga v. Masse Contracting, Inc.

United States District Court, E.D. Louisiana

November 20, 2017


         SECTION: “H” (1) (Applies to all cases)



         Before the Court is Defendants' Motion to Dismiss (Doc. 28). For the following reasons, the Motion is GRANTED IN PART.


         Plaintiffs Luis-Alberto Zeron Zuniga and Ubence Meza-Orellana allege that they were recruited by Defendant Four Star Enterprises, LLC in Honduras under a visa program to be welders in the United States. After paying for the visa and arriving in the United States, however, Plaintiffs allege that they were trafficked to Defendant Masse Contracting, Inc. (“Masse”) to work as general laborers. They allege that they were housed by Masse and that room, board, and transportation were deducted from their pay-bringing their pay below minimum wage. They also allege that they were paid separately by subcontractors in order to avoid overtime pay.

         In addition, Plaintiffs allege that they sustained physical injuries during their time working for Masse. First, they allege that while demolishing a World War II era Navy Destroyer at Defendant Bollinger Shipyards, LLC, they were exposed to asbestos. They allege they were not given any protective gear while doing this dangerous work and now fear contracting mesothelioma. Second, each Plaintiff alleges that he was injured in separate accidents while working on the destroyer. Zuniga alleges that he suffered an injury to his knee and back on August 17, 2015. Meza-Orellana alleges that he suffered a head injury, which resulted in a concussion and brain injury, while working aboard the destroyer on August 21, 2015.

         Plaintiffs bring claims under the Trafficking Victims Protection Reauthorization Act of 2003 (“TVPA”), the Louisiana Victims of Human Trafficking Act (“LVHTA”), and the Fair Labor Standards Act (“FLSA”). Plaintiffs also bring claims for civil rights conspiracy under 42 U.S.C. § 1985(3), race discrimination under 42 U.S.C. § 1981, and state law negligence and intentional torts. Defendants are Masse; Craig Masse; Bollinger Shipyards, LLC; Bollinger Shipyards Lockport, LLC; Bollinger Calcasieu, LLC; and Four Star Enterprises, LLC. This Court previously granted Defendants' first Motion to Dismiss on the record at oral argument and allowed the Plaintiffs an opportunity to amend their Complaints, which were brought in two separate but consolidated actions. Plaintiffs thereafter filed a joint First Amended Complaint on February 7, 2017, and Defendants' Second Motion to Dismiss, or alternatively Motion for a More Definite Statement, followed. This Court will address each of Defendants' arguments in turn.


         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim for relief that is plausible on its face.”[1] A claim is “plausible on its face” when the pleaded facts allow the court to “draw reasonable inference that the defendant is liable for the misconduct alleged.”[2]A court must accept the complaint's factual allegations as true and must “draw all reasonable inferences in the plaintiff's favor.”[3] The court need not, however, accept as true legal conclusions couched as factual allegations.[4] To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiff's claims are true.[5] If it is apparent from the face of the complaint that an insurmountable bar to relief exists and the plaintiff is not entitled to relief, the court must dismiss the claim.[6] The court's review is limited to the complaint and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.[8]


         Defendants assert arguments for dismissal of each of Plaintiffs' claims. This Court will address each claim in turn.

         A. State Law Negligence and Intentional Torts

         First, Defendants argue that Plaintiffs cannot succeed on their claims of workplace injury because the Louisiana Worker's Compensation statute is their exclusive remedy for negligence-based workplace injuries.[9] They therefore argue that worker's compensation law bars Zuniga's claims regarding his knee and back injury and Meza's claims regarding his head injury, as well as their claims regarding their fear of contracting mesothelioma, an occupational disease.

         Plaintiffs contend that their claims for workplace injury fall within the intentional act exception of Louisiana's worker's compensation law.[10] The Louisiana Supreme Court has held that in an act is intentional when “the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.”[11] Plaintiffs argue that Defendants intentionally trafficked them to an illegal job where they were injured. They argue that by requiring Plaintiffs to work in an unreasonably dangerous environment they knew that their injuries were substantially certain to follow.

         The Louisiana Supreme Court has stated that:

“Substantially certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” [A]n employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the “substantial certainty” requirement. Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.[12]

         Plaintiffs' Complaint alleges that, “Defendants knew or should have known that the working conditions at Bollinger would result in the injuries sustained and Defendants consciously chose to place Plaintiffs in harms [sic] way.”[13]These allegations do not rise to the level of substantially certain or inevitable. Indeed, courts have held that knowingly allowing employees to be exposed to harmful work conditions does not constitute an intentional act.[14] Louisiana courts have also “almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment.”[15] Accordingly, Plaintiffs' claims for physical injuries do not fall within the intentional tort exception of the worker's compensation act and are therefore barred by the act's exclusivity provision. Plaintiffs' claims for physical injuries are dismissed with prejudice.

         B. FLSA

         Defendants next argue that Plaintiffs' Complaint fail to state an FLSA claim. In order to state a claim for unpaid overtime or minimum wages under the FLSA, a plaintiff must plead: “(1) that there existed an employer-employee relationship during the unpaid . . . periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime or minimum wage requirements; and (4) the amount of overtime or minimum wage compensation due.”[16] Defendants contend that Plaintiffs have not alleged an FLSA claim because they (1) have not alleged an employee-employer relationship with three of the defendants, (2) they do not allege that the defendants are subject to FLSA regulations, and (3) they do not allege the amount of compensation owed.

         “Allegations of a complaint must be sufficient to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'”[17] This notice requirement is satisfied in the FLSA context when the complaint contains the “approximate date ranges, as well as the approximate number of hours worked” for which the plaintiff claims he was under-compensated.[18] Rule 8(a) does not require an FLSA complaint to be “replete with detailed factual allegations” so long as it provides the defendant with fair notice.[19]

         Plaintiffs' allegations, however, are insufficient to satisfy these requirements. Plaintiffs do not allege a date range for which Plaintiffs worked, an approximation of the hours for which they were not compensated, or any instance in which they recall not being paid overtime. In Plaintiffs' Complaint, they allege both that they were paid $12.00 per hour and that they were paid minimum wage. In addition, Plaintiffs' Complaint does not allege which Defendant they consider to be their employer and whether that entity is subject to the provisions of the FLSA. Accordingly, these allegations are insufficient to put Defendants on notice regarding Plaintiffs' FLSA claims, and those claims are therefore dismissed.

         C. Conspiracy under § 1985

         Next, Defendants move for dismissal of Plaintiffs' claims for conspiracy under 42 U.S.C. § 1985. Section 1985(3) prohibits a conspiracy “for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws.” In order to prevail on a conspiracy claim under § 1985, Plaintiffs must show:

(1) a conspiracy involving two or more persons;
(2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and
(3) an act in furtherance of the conspiracy;
(4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of ...

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