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Ayers v. Packaging Corporation of America

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

August 30, 2018

BILLY JOE AYERS, individually and on behalf of his minor child, A.E.A.



         Before the court are a Motion to Remand [doc. 8] and Motion to Amend [doc. 11] filed by plaintiff Billy Joe Ayers. The motion was filed in response to a Notice of Removal [doc. 2] filed by defendant Packaging Corporation of America (“PCA”). Defendant opposes the motion to remand [doc. 10] and the motion to amend. Doc. 14.

         These motions were referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For the reasons stated below, IT IS RECOMMENDED that the Motion to Remand and Motion to Amend [docs. 8, 11] be DENIED, and that all claims against Elite Industrial Services, Inc., and Elite Specialty Welding, LLC, be DISMISSED WITHOUT PREJUDICE.



         On February 1, 2018, Ayers, a Texas resident, filed suit in the 36th Judicial District Court, Beauregard Parish, Louisiana. Doc. 1, att. 7, p. 2. He named as defendants PCA, a corporation with its citizenship in Illinois and Delaware; Elite Industrial Services, Inc., “believed to be a Texas corporation, ” and Elite Specialty Welding, LLC (“Elite, ” collectively with Elite Industrial Services), “a Delaware limited liability company, with its principal place of business in the State of Louisiana.” Id.[1]

         According to the petition, Ayers was employed as a boilermaker by Elite, which had been contracted by PCA to perform maintenance work, including cutting and welding, at PCA's paper mill in DeRidder, Louisiana. Id. at pp. 2-3. On the day of the incident, Ayers was on site at the mill in DeRidder while an Elite welder was doing “hot work” above a foul condensate tank (“FC tank”) that had not been fully purged of flammable gases. Id. at pp. 3-4. The gases formed a vapor cloud that exploded as a result of the welding work, resulting in severe injuries to Ayers and killing or injuring several of his coworkers. Id. at p. 4. Ayers asserts that PCA and Elite are liable because they were negligent and knew or should have known that the accident was substantially certain to occur. Id. at pp. 6-7.

         On March 7, 2018, PCA removed the action to this court, alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332. Doc. 2, p. 2. PCA maintains that Elite was improperly joined to defeat diversity because Louisiana law bars suits by an employee against his employer for work-related injuries. Id. at pp. 3-4.

         Ayers filed the instant motion to remand on April 4, 2018. Doc. 8. He argues that the “intentional act exception” to the Louisiana workers' compensation statute applies in this case and thus he has a reasonable basis for recovery in tort under the Fifth Circuit's “substantially certain test” because Elite “‘consciously subject[ed him] to a hazardous or defective work environment.'” Doc. 8, att. 1, p. 8 (quoting Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1327 (5th Cir. 1996)). PCA opposes remand. Doc. 10. Ayers has also filed a Motion to Amend [doc. 11], seeking to add claims against James Machine Works, LLC (“JMW”), manufacturer of the FC tank, and PCA employees Raymond Lester, Floyd LeBleu, and Timothy Wohlers. Doc. 11. PCA opposes the motion. Doc. 14.


         Law & Analysis

         Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions where the amount in controversy exceeds $75, 000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. § 1332(a)(1). The diversity provisions of 28 U.S.C. § 1332(a)(1) require complete diversity among the parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The removing party bears the burden of showing that removal was procedurally proper and that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

         A. Improper Joinder

         If removal is based on a claim that an in-state defendant has been improperly joined, the removing party must establish either “actual fraud in the pleading of jurisdictional facts” or an “inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004) (citing Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). Only the latter method is relevant here, because no fraud is alleged. Thus the relevant question is “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Id. The movant is therefore required to put forth evidence “that would negate a possibility of liability on the part of [the nondiverse defendant].” Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, 767 (5th Cir. 2016) (quoting Travis, 326 F.3d at 650) (alterations in original). All contested issues of substantive fact and ambiguities in the controlling state law must be resolved in the plaintiff's favor. Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995).

         In order to assess the plaintiff's possibility of recovery against the non-diverse defendant, the court conducts “a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether [it] states a claim under state law against the in-state defendant.” Smallwood, 385 F.3d at 574. This inquiry “depends upon and is tied to the factual fit between the [plaintiff's] allegations and the pleaded theory of recovery.” Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999). “Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.” Smallwood, 385 F.3d at 574.

         Ayers asserts that Elite knew or was substantially certain that flammable gases had built up in the FC tank and an explosion was likely to result if any hot work was done nearby. Doc. 8, att. 1, p. 5. Louisiana law generally forbids an employee from suing his employer for work-related injuries. La. R.S. § 23:1032(A)(1)(a). However, the intentional act exception permits an employee to file suit when his injury was the result of an intentional act by the employer. Id. at § 23:1032(B). The Louisiana Supreme Court has cautioned that the intentional act exception is to be narrowly construed. Reeves v. Structural Pres. Sys., 731 So.2d 208, 211 (La. 1999). Under Louisiana jurisprudence, intent may be found if the employer “knows that the consequences are certain, or substantially certain, to result from his act.” White v. Monsanto, 585 So.2d 1205, 1208 (La. 1991). Accordingly, the Fifth Circuit has held that “the substantially certain test is satisfied when an employer consciously subjects an employee to a ...

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