United States District Court, E.D. Louisiana
GLEN DIVINCENTI ET AL.
ERIC HARMON ET AL.
ORDER AND REASONS
JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss (Doc. 4). For
the following reasons, the Motion is GRANTED.
Glen Divincenti and Lloyd Green bring this suit against their
former employer, United Bulk Terminals Davant, LLC, and their
former supervisor, Eric Harmon, for the emotional distress
they allege they experienced after they were terminated.
Plaintiffs allege that they were fired when they refused
Harmon's orders to perform a crane maneuver that they
felt was dangerous. Shortly after their termination, a
“catastrophic” accident occurred while crews were
performing the same task in which Plaintiffs had refused to
participate. Plaintiffs allege that they have experienced
severe emotional distress since their terminations and the
accident, including flashbacks, nightmares, insomnia, and
now move for the dismissal of, or alternatively summary
judgment on, Plaintiff's claims arguing that (1) the
Longshore and Harbor Workers' Compensation Act is their
exclusive remedy and (2) they cannot, on the facts pled,
succeed on a claim for intentional infliction of emotional
distress. Plaintiffs oppose this Motion.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead enough facts “to state a claim for relief that is
plausible on its face.” A claim is “plausible on
its face” when the pleaded facts allow the court to
“draw reasonable inference that the defendant is liable
for the misconduct alleged.”A court must accept the
complaint's factual allegations as true and must
“draw all reasonable inferences in the plaintiff's
favor.” The court need not, however, accept as
true legal conclusions couched as factual
allegations. To be legally sufficient, a complaint must
establish more than a “sheer possibility” that
the plaintiff's claims are true. If it is apparent from the
face of the complaint that an insurmountable bar to relief
exists and the plaintiff is not entitled to relief, the court
must dismiss the claim. The court's review is limited to
the complaint and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
argue that Plaintiffs cannot succeed on their claim for state
law intentional infliction of emotional distress because
their exclusive remedy lies under the Longshore and Harbor
Workers' Compensation Act (LHWCA). Plaintiffs do not
appear to dispute the application of the LHWCA to this case
or the exclusivity provision contained therein. However, they
argue that concurrent jurisdiction exists between the LHWCA
and state statutory compensation schemes, creating a
“twilight zone” between state and federal
compensation schemes that allows them to bring this suit
under the intentional tort exception to the Louisiana
Workers' Compensation Act. In so arguing, Plaintiffs rely
on the Supreme Court's decision in Sun Ship, Inc. v.
Pennsylvania, decided in 1980, which held that the
availability of a remedy under the LHWCA did not preclude
concurrent state coverage.
1989, however, “the Louisiana legislature passed Act
Number 454 [creating Louisiana Revised Statutes §
23:1035.2] which effectively eliminated the workers'
choice of federal or state compensation, as had been set
forth in Sun Ship.” Section 23:1035.2 states,
“No compensation shall be payable in respect to the
disability or death of any employee covered by the . . .
Longshoremen's and Harbor Worker's Compensation
Act.” Section 23:1035.2 “now divests plaintiffs
of the concurrent state and federal
remedies.”Accordingly, Plaintiffs argument that
they should be allowed to bring a state law claim against
their former employer because of the concurrent jurisdiction
between state and federal compensation schemes
fails. Plaintiffs assert no other arguments to
support the maintenance of this action.
foregoing reasons, the Motion is GRANTED. Plaintiffs'