APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2017-10167, DIVISION "I-14"
Honorable Piper D. Griffin, Judge.
Stavros Panagoulopoulos Kellie Fox PELICAN LAW GROUP, LLC
COUNSEL FOR PLAINTIFF/RESPONDENT
K. Nieset James A. Holmes CHRISTOVICH & KEARNEY, LLP
COUNSEL FOR DEFENDANT/RELATOR
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Dale N. Atkins
Cossich Lobrano, Judge.
Otis Elevator Company ("Otis"), seeks review of the
district court's August 1, 2018 judgment denying its
declinatory exception of lack of subject matter jurisdiction
and dilatory exception of improper cumulation and/or
misjoinder. For the reasons that follow, we grant the writ
and reverse, in part, the district court's judgment; we
grant, in part, Otis' exceptions of lack of subject
matter jurisdiction and improper cumulation and/or
misjoinder; and we dismiss the claims against Otis arising
under the Federal Tort Claims Act ("FTCA").
However, we do not disturb the district court's denial of
the exceptions pertaining to claims against defendants
other than Otis.
October 20, 2017, plaintiff/respondent, Sandra Bone
("Bone"), filed a petition for damages in the
district court. In her petition, she alleged that she injured
while riding on an elevator at the Hale Boggs Federal
Building when the elevator dropped several floors. According
to Bone's petition, Homeland Security Federal Protective
Service provides security at the Hale Boggs Federal Building;
the Industrial Development Board of the City of New Orleans
owns the Hale Boggs Federal Building; and Otis manufactured
and maintained the elevator. In her petition, Bone raised
claims against these defendants under both state law
negligence and the FTCA.
addition to the petition filed in the district court, Bone
also filed a complaint in federal court under the FTCA. Bone
voluntarily dismissed the federal court suit because the
complaint was untimely; however, she maintained her state
court action. After dismissing the federal court action, Bone
did not amend the petition filed in the district court to
remove the federal court defendants nor federal law claims.
filed a declinatory exception of lack of subject matter
jurisdiction and a dilatory exception of improper cumulation
and/or misjoinder in the district court, seeking dismissal of
all claims in Bone's petition. Bone opposed both
exceptions. On July 20, 2018, the district court heard and
denied both exceptions. At the hearing, the district court
gave oral reasons that Otis lacked standing to seek dismissal
of FTCA claims against other defendants. On August 1, 2018,
the district court rendered a written judgment denying both
exceptions. This writ application followed.
writ application, Otis contends that the district court erred
by (1) failing to dismiss the lawsuit, even though it
contained FTCA claims, and (2) permitting Bone to cumulate
state law claims with the FTCA claims, over which the
district court lacks subject matter jurisdiction.
is a question of law subject to de novo review.
Cannizzaro ex rel. State v. American Bankers Ins.
Co., 2012-1455, p. 3 (La.App. 4 Cir. 7/10/13), 120 So.3d
853, 856. An exception of lack of subject matter jurisdiction
is a declinatory exception. La. C.C.P. art. 925(A)(6). If the
grounds pleaded in the declinatory exception cannot be
removed by amendment of the pleadings, "the action,
claim, demand, issue, or theory subject to the exception
shall be dismissed." La. C.C.P. art. 932(B). An
exception of improper cumulation of actions is a dilatory
exception. La. C.C.P. art. 926(A)(7). "When the court
lacks jurisdiction of … one of the actions cumulated,
that action shall be dismissed." La. C.C.P. art. 464.
U.S.C.1346(b)(1) vests exclusive jurisdiction over actions
arising under the FTCA to the federal court. The petition for
damages specifically raises claims against Otis
arising under the FTCA. Otis properly challenged the district
court's jurisdiction to adjudicate the FTCA claims
against Otis only. We find that the district court
erred in denying Otis' exceptions in their entirety.
we find no error in the district court's conclusion that
Otis lacked standing to bring exceptions seeking dismissal of
FTCA claims against other defendants. "An exception is a
means of defense, … used by the defendant, … to
retard, dismiss, or defeat the demand brought against
him." La. C.C.P. art. 921 (emphasis added). Under
the facts before us, these exceptions are not an available
method by which Otis can seek dismissal of claims against
for these reasons, we grant the writ and reverse, in part,
the district court's judgment; we grant, in part,
Otis' exceptions of lack of subject matter jurisdiction
and improper cumulation and/or misjoinder; and we dismiss the
claims against Otis arising under the FTCA. We do not disturb
the district ...