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Ashland LLC v. Ameriglobe LLC

United States District Court, W.D. Louisiana, Lafayette Division

April 4, 2019

ASHLAND LLC ET AL
v.
AMERIGLOBE LLC ET AL

          JUNEAU Judge

          REPORT AND RECOMMENDATION

          PATRICK J HANNA, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the Motion to Dismiss Third Party Complaint [Rec. Doc. 26], which was filed by Third Party Defendant DanChem Technologies, Inc. (“DanChem”). AmeriGlobe, LLC (“AmeriGlobe”) does not oppose the motion. [Rec. Doc. 33]. The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. For the following reasons, it is recommended that the motion be GRANTED.

         Background

         On October 2, 2018, Plaintiffs Ashland LLC and Ashland Industries Europe GMBH (collectively, “Ashland” or “Plaintiffs”) commenced this lawsuit by filing a complaint against AmeriGlobe.[1] At all relevant times, Ashland manufactured a dry, flowable, powdery and/or granular product known as Gantrez, which was poured into Flexible Intermediate Bulk Containers (“FIBCs”) prior to shipment to overseas customers.[2] One of Ashland's customers required that the Gantrez it purchased be shipped to Ireland and/or Belgium.[3] At some point, this customer reported to Ashland that it had received FIBCs from which Gantrez had spilled, leaked and/or was leaking and/or otherwise had been damaged, resulting in lost or unusable Gantrez and related damages.[4] Ashland alleges that AmeriGlobe was the vendor and manufacturer of the defective FIBCs, and therefore seeks damages, pursuant to Louisiana law, arising out of redhibition, breach of contract, and products liability.[5]

         On January 16, 2019, AmeriGlobe filed a Third Party Complaint against DanChem and Grayling Industries, Inc. (“Grayling”).[6] Grayling is alleged to have manufactured and provided a component part of the relevant FIBCs, specifically the liner, while DanChem is alleged to have improperly positioned and/or filled the bags of Gantrez, leading to a failure of the top tabs of the liner of the FIBCs.[7] In the event that AmeriGlobe is found liable, AmeriGlobe alleges that DanChem and/or Grayling are negligent or at fault, such that AmeriGlobe is entitled to tort indemnity or contribution from DanChem “commensurate with the degree of responsibility assigned whatsoever for all damages awarded to Ashland.”[8]

         In the instant motion, DanChem argues that AmeriGlobe's Third Party Complaint is essentially an allegation of comparative or alternative fault, which is properly asserted as an affirmative defense, if at all, and is insufficient to state a claim for tort indemnity or contribution under Louisiana law.[9] As to tort indemnity DanChem argues that neither Ashland nor AmeriGlobe have alleged that AmeriGlobe is liable to Ashland due solely to constructive or derivative fault for DanChem's actions, such that AmeriGlobe has failed to state a claim for tort indemnity under Louisiana law. As to contribution, DanChem argues that AmeriGlobe cannot assert such a claim, as a matter of law, because DanChem and AmeriGlobe are not solidary obligors. As recognized above, AmeriGlobe does not oppose the motion. As such, and for the following reasons, the motion should be granted.

         Applicable Law and Analysis

         I. Standards applicable to DanChem's Motion

          A motion to dismiss for failure to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, is properly granted when a defendant attacks the complaint because it fails to state a legally cognizable claim.[10] When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a district court must limit itself to the contents of the pleadings, including any attachments thereto.[11]The court must accept all well-pleaded facts as true, and it must view them in the light most favorable to the plaintiff or non-moving party.[12] However, conclusory allegations and unwarranted deductions of fact are not accepted as true, [13] and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”[14]

         In this case, AmeriGlobe impleaded DanChem pursuant to Federal Rule of Civil Procedure 14.[15] Rule 14(a)(1) provides that “[a] defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.”[16] Rule 14(a) “exists to bring in third parties who are derivatively liable to the impleading party.”[17] “The secondary or derivative liability notion is central and thus impleader has been successfully utilized when the basis of the third-party claim is indemnity, subrogation, contribution, express or implied warranty, or some other theory.”[18] Under Rule 14, impleader is only proper “when a right to relief exists under the applicable substantive law; if it does not, the impleader claim must be dismissed. If, for example, the governing law does not recognize a right to contribution or indemnity, impleader for these purposes cannot be allowed.”[19]

         II. DanChem is Entitled to Dismissal

         “It has long been held in Louisiana that a party not actually at fault, whose liability results from the faults of others, may recover by way of indemnity from such others.”[20] “The obligation to indemnify may be express, as in a contractual provision, or may be implied in law, even in the absence of an indemnity agreement.”[21] Here, AmeriGlobe has no contract with DanChem, and hence no basis for contractual indemnity, such that any claim for indemnity would have to arise by operation of law. However, as DanChem correctly notes, AmeriGlobe has failed to state a claim for indemnity under Louisiana law.

         “Indemnity ‘is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss.'”[22] “A claim for legal indemnity ‘arises only where the liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed.'”[23] “Indemnity . . . finds its basis in the concept of unjust enrichment[.]”[24] “Accordingly, a party ‘who is actually negligent or actually at fault cannot recover [legal] indemnity.'”[25]

         Here, Ashland has sued AmeriGlobe as the manufacturer and vendor of allegedly defective FIBCs. DanChem did not manufacture or sell the FIBCs. AmeriGlobe, not Ashland, has alleged that DanChem improperly positioned and/or filled the bags of Gantrez, leading to a failure of the top tabs of the liner of the FIBCs. Further, neither Ashland nor AmeriGlobe has alleged that any finding of liability against AmeriGlobe would be constructive liability for any alleged act or failure to act by DanChem. As this Court has previously stated: “There is no foreseeable combination of findings that could result in [AmeriGlobe] being cast in judgment for mere technical or passive fault. To the contrary, [AmeriGlobe] will either be held responsible or not responsible for [Ashland's] claims.”[26] Accordingly, DanChem is correct that AmeriGlobe has failed to state a claim for tort indemnity against DanChem.[27]

         In addition, AmeriGlobe has failed to state a claim for contribution. “Contribution permits a tortfeasor who has paid more than his share of a solidary obligation to seek reimbursement from the other tortfeasors for their respective shares of the judgment, which shares are proportionate to the fault of each.”[28] Thus, “[u]nder Louisiana law, ‘the substantive basis for the right to claim contribution is subrogation to the plaintiff's rights against the remaining tortfeasors.'”[29] “However, in 1996, Louisiana Civil Code Article 2324 was amended to eliminate solidary liability, except where the tortfeasors conspire to commit an intentional or willful act.”[30] “In contrast, ‘non-intentional tortious acts are now considered joint and divisible, and each joint tortfeasor is liable only for the degree of fault attributed to his actions.'”[31] Here, there are no allegations that DanChem ...


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