United States District Court, W.D. Louisiana, Lake Charles Division
MICKLEY McDANIEL, ET AL.
PACKAGING CORPORATION OF AMERICA, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Dismiss filed by defendant James
Machine Works, LLC (“JMW”). Doc. 7. Plaintiffs
oppose dismissal. Doc. 11. Also before the court is a Motion
to Remand filed by plaintiffs Mickly McDaniel, Jimmel
Baptiste, Cecil Ray Collins, Jr., Ernest David Collins, David
Allan Martin, Adrian M. Phillips, Samuel Rogers, Ira Shane
Welch, Sr., and Ira Shane Welch, Jr. Doc. 10. Defendant,
Packaging Corporation of America (“PCA”) opposes
remand. Doc. 14. These motions have been referred to the
undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636.
reasons stated below, IT IS RECOMMENDED that the Motion to
Dismiss be GRANTED, the Motion to Remand be DENIED and that
all claims against defendants Raymond Lester and Floyd J.
LeBleu, be DISMISSED WITHOUT PREJUDICE.
case arises from injuries plaintiffs allegedly suffered on
February 8, 2017, when they were performing their duties as
part of a welding/pipefitting crew at a paper mill owned by
PCA in DeRidder, Louisiana, when a Foul Condensate tank
(“FC tank”) exploded at the facility. Doc. 1,
att. 7, p. 4. On April, 17, 2018, plaintiffs, citizens of
Oklahoma, North Carolina, and Texas, filed suit in the 36th
Judicial District Court, Beauregard Parish, Louisiana. Doc.
1, att. 7, p. 3. They named as defendants, PCA, a corporation
with citizenship in Delaware and Illinois, Floyd J. LeBleu
(“LeBleu”) and Raymond Lester
(“Lester”), both residents of Louisiana; and JMW,
“a Louisiana limited liability company with its
principal place of business located in the Parish of
Ouachita, State of Louisiana.” Doc. 1, att. 7, p. 4.
13, 2018, PCA removed the action to this court on the basis
of diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Doc. 1. PCA maintains that LeBleu, Lester, and JMW are
improperly joined because plaintiff fails to state a valid
cause of action against them, therefore, their citizenship
should be ignored for purposes of determining diversity
jurisdiction. Doc. 1, pp. 3-10.
Motion to Dismiss [Doc. 7]
filed a Motion to Dismiss it from plaintiff's claim
pursuant to Fed.R.Civ.P. 12(b)(6), failure to state a claim
upon which relief can be granted. Doc. 7. It argues
plaintiffs' claim against it is merely a recitation of
the Louisiana Products Liabilities Act, Louisiana Revised
Statute §. 9:2800.51, et seq.
(“LPLA”), and that plaintiffs have failed to
provide any factual allegations to support a claim under the
LPLA. Doc. 7, att. 1, pp. 1-2. Plaintiffs oppose the motion
arguing that dismissal would be premature as there is no
dispute that the FC tank was the epicenter of the explosion
and issues of notice, warning, and design are likely to be
argued by parties as the case progresses. Doc. 11.
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)). 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)).
petition, plaintiffs name JMW as the manufacturer of the FC
tank and allege that JMW's fault or negligence injured
plaintiffs. Doc. 1, att. 7, p. 8. In Louisiana, the LPLA is
the exclusive theory of liability for a manufacturer whose
product is said to have cause harm to another. See
La. R.S. 9:2800.52. In order to recover under LPLA the damage
must have arisen “from a reasonably anticipated use of
the product” and the product must be
“unreasonably dangerous” based on its: (1)
“construction or composition, ” (2)
“design, ” (3) “inadequate warning, ”
or, (4) “nonconformity to an express warranty of the
manufacturer.” La. R.S. 9:2800.54.
have failed to allege anything about the FC tank that would
render it unreasonably dangerous by a standard outlined by
the LPLA. They suggest in opposition that possibly the
parties may discover issues of notice, warning, or design
that would ultimately be “argued.” Doc. 11, p. 4.
Insofar as these potential arguments do not form any part of
the pleadings then they are not to be considered. In short
plaintiffs have failed to state any facts that would satisfy