United States District Court, W.D. Louisiana, Lake Charles Division
BILLY JOE AYERS, individually and on behalf of his minor child, A.E.A.
PACKAGING CORPORATION OF AMERICA, ET AL
REPORT AND RECOMMENDATION
KATHLEEN KAY, MAGISTRATE JUDGE.
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.
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
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
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.
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.
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.
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).
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).
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.
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 ...