United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY JUDGE
the court are a Motion for Leave to File Second Amended
Complaint (“Motion to Amend”) [doc. 69], filed by
plaintiff Lake Charles Harbor & Terminal District
(“the Port”) under Federal Rule of Civil
Procedure 15, a Motion to Dismiss and Motion for Oral
Argument [doc. 42] filed under Rule 12(b)(2) by defendant
Lonza Group, Ltd. (“Lonza Group”), and a Motion
to Strike [doc. 47] by Lonza Group relating to the Port's
original opposition to the Motion to Dismiss. All motions are
Motion to Dismiss has been referred to the undersigned for
review, report, and recommendation, in accordance with 28
U.S.C. § 636 and the standing orders of this court, and
the Motions to Amend and Strike relate to it. Accordingly, we
consider them together. For reasons stated below, IT
IS RECOMMENDED that the Motion to Strike [doc. 47]
be GRANTED IN PART and DENIED IN
PART, and that the Motion to Dismiss [doc. 42] be
GRANTED and the Motion for Oral Argument
[id.] DENIED, with all claims
raised by the Port against Lonza Group DISMISSED
WITHOUT PREJUDICE for lack of personal jurisdiction.
Upon acceptance of that recommendation, it is further
RECOMMENDED that the Motion to Amend [doc.
69] be DENIED.
litigation began with a complaint filed in this court by the
Port against Reynolds Metal Company, LLC
(“Reynolds”) on September 5, 2017. Doc. 1. The
Port claims that Reynolds is liable for restoration of
premises it formerly leased from the Port, which allegedly
contained a 55-acre solid waste dump built by Consolidated
Aluminum Corporation (“Consolidated”), from whom
Reynolds assumed leases over that property in 1983.
Id. The solid waste dump was allegedly closed by
order of the Louisiana Department of Natural Resources in
1984, but in 2005 the Louisiana Department of Environmental
Quality (“LDEQ”) allegedly issued an
administrative order, without notice to the Port, regarding
the deteriorating condition of the dump. Id. at pp.
4-5, ¶¶ 10-13. Litigation was also commenced in the
United States District Court for the Middle District of
Louisiana between Consolidated and Reynolds, and various
related parties, relating in relevant part to the condition
of the solid waste dump (“Consolidated/Reynolds
Action”). Id. at p. 5, ¶ 14. The Port
was not a party to this action, which resolved with a
settlement agreement in October 2010. Id. at p. 5,
¶¶ 15-16. The Port alleges that it did not consent
to the settlement and that the solid waste dump remains on
the premises. Id. at p. 5, ¶¶ 17-18.
September 7, 2016, the Port and Reynolds entered into a
partial release of leased property. Id. at p. 6,
¶ 19; see doc. 4, pp. 82-86. The Port alleges
that the solid waste dump is on the released premises. Doc.
1, p. 6, ¶ 20. On May 10, 2017, the Port issued a repair
and remediation demand to Reynolds, pursuant to the terms of
the lease. Doc. 1, p. 6, ¶ 21; see doc. 4, pp.
88-90. The Port then filed the instant suit, invoking this
court's jurisdiction under 28 U.S.C. § 1332 and
claiming that Reynolds is liable for damages and restoration
of the leased premises. See doc. 1, pp. 1, 6-9,
¶¶ 2, 23-27.
filed a third party complaint against Lonza Group, a Swiss
company, noting that Lonza Group had been a party to the
Consolidated/Reynolds action. Doc. 10, p. 4, ¶¶
14-15. As a result of the settlement in that action, Reynolds
alleged, Lonza Group “assume[d] all past, present, and
future liabilities” with respect to the solid waste
dump and related hazards, and had also agreed to indemnify,
hold harmless, and defend Reynolds from any claims arising
out of those areas. Id. at pp. 5-6, ¶¶
16-20 (alteration in original). It further alleged that Lonza
Group had been given notice of the Port's claims but
failed to act. Id. at p. 6, ¶¶ 21-23.
Accordingly, it filed claims for declaratory relief, breach
of contract, indemnity, and contribution against Lonza Group.
Id. at pp. 6-13, ¶¶ 24-46. The Port then
filed an amended complaint, alleging that Lonza Group was
liable to it as successor in interest of Swiss Aluminum Ltd.,
a/k/a Alusuisse, a/k/a Alusuisse Holding Ltd.
(“Alusuisse”) because Alusuisse had operational
and administrative control over operations at the leased
premises between 1967 and 1983 under an agreement with
Consolidated and as parent company of Consolidated and its
predecessor, Gulf Coast Aluminum. Doc. 12.
Group then filed a motion to dismiss all claims raised
against it in the Port's first amended complaint,
alleging that the court lacks personal jurisdiction over it
with respect to those claims. Doc. 42. Specifically, it
alleges that it is not the successor in interest to Alusuisse
and has no connection to any lease or claim made by the Port.
Doc. 42, att. 1. The Port opposed the motion and Lonza Group
moved to strike certain exhibits from its opposition as
irrelevant, unauthenticated, and unfairly prejudicial. Doc.
47. The Port also sought jurisdictional discovery, which the
court granted. Docs. 46, 55, 68. The period fixed for that
discovery has now concluded and both parties have filed
supplemental memoranda regarding the Motion to Dismiss. Docs.
70, 72. The Port also brings the instant motion to amend.
Doc. 69. Lonza Group opposes amendment based on alleged undue
delay, dilatory motive, undue prejudice, and futility. Doc.
Motion to Strike
Motion to Strike [doc. 47], Lonza Group seeks to exclude
certain exhibits attached to the Port's original
opposition [doc. 46] to the Motion to Dismiss as
“incomplete, irrelevant, unauthenticated, unverified,
and hearsay.” Doc. 47, att. 1, p.
1. These exhibits are 1. Exhibit A, Lonza Group's
Proposed Findings of Fact and Conclusions of Law,
regarding a motion to dismiss for lack of personal
jurisdiction that Lonza Group filed in the
2. Exhibit B, Consolidated's Supplemental Responses
and Objections to Alcoa Inc.'s First Set of
Interrogatories, also drawn from the
3. Exhibit C, Alcoa Inc.'s Proposed Findings of Fact
and Conclusions of Law, relating to Lonza Group's
motion to dismiss in the ...