United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY MAGISTRATE JUDGE
the court is a Motion to Dismiss for Failure to State a Claim
[doc. 26] filed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure by defendant Aerotek, Inc.
(“Aerotek”). Plaintiff Kevin Gibson opposes the
motion and Aerotek has filed a reply. Docs. 35, 36.
matter has been referred to the undersigned in accordance
with the provisions of 28 U.S.C. § 636. For the reasons
below, IT IS RECOMMENDED that the Motion to
Dismiss be GRANTED and that all claims
against Aerotek be DISMISSED WITHOUT
matter arises from injuries that Gibson allegedly suffered
after he was exposed to toxic chemicals while working as an
aircraft mechanic. Doc. 1, att. 1, pp. 1-2. He brought suit
against Northrop Grumman Systems Corporation and Northrop
Grumman Technical Services, Inc. (collectively
“Northrop Grumman”) in the 14th Judicial District
Court, Parish of Calcasieu, State of Louisiana. Id.
at pp. 1-4. After Northrop Grumman removed the suit to this
court [doc. 1], Gibson was granted leave to file an amended
complaint, by which he added as defendants Aerotek; AAR
Aircraft Services, Inc.; and Landlocked Industries, LLC.
Docs. 15, 16.
to Gibson, Northrop Grumman subcontracted staffing to
Aerotek, a staffing agency, which in turn employed Gibson as
an aircraft mechanic for Northrop Grumman. Doc. 1, att. 1, p.
1; doc. 16, p. 2. Gibson asserts that he was sent to work in
the presence of hazardous substances without any personal
protective equipment (“PPE”) or safety training,
both of which Northrop Grumman promised to provide before he
started. Doc. 1, att. 1, p. 2. Shortly thereafter, he
alleges, high levels of toxic chemicals were discovered in
his blood. Id. Thus, Gibson claims that he must
undergo periodic medical monitoring, faces an increased risk
of cancer, and has suffered nausea and psychological
distress. Id. at p. 3. Through his amended petition,
Gibson seeks to hold all of the defendants jointly liable for
his exposure. Doc. 16.
now moves to dismiss all claims against it. It alleges that,
as Gibson's employer, it is immune from suit under the
Louisiana Workers' Compensation Act, La. R.S. §
23:1020.1 et seq. (“LWCA”). Doc. 26, p.
1. Gibson opposes the motion. Doc. 35.
12(b)(6) of the Federal Rules of Civil Procedure allows for
dismissal of a claim when a plaintiff “fail[s] to state
a claim upon which relief can be granted.” When
reviewing such a motion, the court should focus exclusively
on the complaint and its attachments. Wilson v.
Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). Such
motions are also reviewed with the court “accepting all
well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Bustos v.
Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010).
However, “the plaintiff must plead enough facts
‘to state a claim to relief that is plausible on its
face.'” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 127 S.Ct.1955, 1974
(2007)). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor will a complaint suffice if it tends
naked assertions devoid of further factual
enhancement.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (cleaned up). Instead, the complaint must
contain enough factual matter to raise a reasonable
expectation that discovery will reveal evidence of each
element of the plaintiff's claim. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
Accordingly, the court's task in evaluating a motion to
dismiss under Rule 12(b)(6) is “not to evaluate the
plaintiff's likelihood of success, ” but instead to
determine whether the claim is both legally cognizable and
plausible. Billups v. Credit Bureau of Greater
Shreveport, 2014 WL 4700254, *2 (W.D. La. Sep. 22, 2014)
(quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
the exclusivity provisions of the LWCA, an employee is
generally forbidden from suing his employer work-related
injuries. La. R.S. § 23:1032(A)(1)(a). However, the
intentional act exception permits an employee to file suit
when an injury was the result of an intentional act by the
employer. Id. at § 23:1032(B). This exception
is to be narrowly construed, and intent may only be found if
the employer “knows that the consequences are certain,
or substantially certain, to result from his act.”
Reeves v. Structural Preserv. Sys., 731 So.2d 208,
211 (La. 1999); White v. Monsanto Co., 585 So.2d
1205, 1208 (La. 1991).. “An employer's mere
knowledge that [a condition] is dangerous and . . . creates a
high probability that someone will eventually be injured is
not sufficient to meet the ‘substantial certainty'
requirement, ” nor is his “mere knowledge and
appreciation of a risk.” Reeves, 731 So.2d at
213 (cleaned up).
asserts that Gibson's claims against it are barred under
the LWCA because they arise out of an accidental injury which
occurred during the course of his employment. It suggests
that Zuniga v. Masse Contracting, Inc., 290
F.Supp.3d 581 (E.D. La. 2017), is analogous to the present
case. There the plaintiffs alleged that “Defendants
knew or should have known that the working conditions . . .
would result in the injuries sustained and Defendants
consciously chose to place Plaintiffs in harms [sic]
way.” Zuniga, 290 F.Supp.3d at 585. The court
granted the defendants' Motion to Dismiss, holding that
these allegations did not “rise to the level of
substantially certain or inevitable” and noting that
under Louisiana law, “knowingly allowing employees to
be exposed to harmful work conditions does not constitute an
intentional act.” Id. Furthermore, the court
emphasized, “Louisiana courts have . . . ‘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.'”
Id. (quoting Reeves, 731 So.2d at 211). As
the Louisiana Supreme Court demonstrated in Reeves,
an employer's mere knowledge that failure to adhere to
safety standards is dangerous and creates a high risk of
injury is insufficient to show an intentional act. 731 So.2d
at 211-12 (collecting cases). Instead, for cases involving
violations of safety standards the intentional act exception
has been reserved for especially egregious circumstances,
such as where employers repeatedly expose an employee to a
hazard despite knowing that the hazard had already caused
that kind of injury. Id. at 212 (citing Trahan
v. Trans-Louisiana Gas Co., 618 So.2d 30 (La. Ct. App.
3d Cir. 1993) and Wainwright v. Moreno's, Inc.,
602 So.2d 734 (La. Ct. App. 3d Cir. 1992)).
has not alleged any facts relating to Aerotek's awareness
of the dangers of the alleged failure to provide him with
training or PPE. In his opposition he requests an opportunity
to conduct adequate discovery based on his “[belief]
that Aerotek knowingly and intentionally submitted him to
this toxic exposure that caused his injuries” and
asserts that the defense's motion is premature. Doc. 35,
pp. 1-2. On the contrary, Gibson's joinder of Aerotek was
premature, at best, based on his lack of any factual
allegations to support this belief. He does not show that he
can set forth a basis for Aerotek's liability beyond what
is precluded under the LWCA and related, well-established
jurisprudence. Accordingly, he should not be allowed to keep
a party in this suit while he conducts a fishing expedition
to uncover a ...