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Lester v. Exxon Mobil Corp.

United States District Court, E.D. Louisiana

April 5, 2019


         SECTION “L” (2)

          ORDER & REASONS


         Before the Court are two motions to dismiss without prejudice filed by Plaintiffs Herman LeBlanc, R. Doc. 569, and Donnie Beasley, R. Doc. 572. The motions are opposed. R. Doc. 579. Plaintiffs have filed a reply. R. Doc. 590. Having heard oral argument on the motions on April 3, 2019, R. Doc. 594, considered the applicable law, and the arguments of the parties, the Court is now ready to rule.

         I. BACKGROUND

         Plaintiffs in the instant Lester action were allegedly exposed to naturally occurring radioactive material (“NORM”) associated with the cleaning of used oilfield pipe at pipe yards in Harvey, Louisiana, including the “Grefer Tract, ” nearby tracts of land, and tracts of land in other locations in Louisiana, Texas, Mississippi, and Oklahoma. These Plaintiffs are individuals residing in several states who either worked at, or lived near, these facilities. The Lester Plaintiffs, a number of whom allege to have contracted cancer from NORM, seek damages for personal injury, medical monitoring, property damage, and punitive damages.

         Lester has a lengthy procedural history. In 2002, over 600 Plaintiffs filed a single petition (the “Lester petition”) seeking damages in Civil District Court for the Parish of Orleans, State of Louisiana. Since 2002, the state court proceedings have disposed of various Plaintiffs' claims through “trial flights, ” settlements, or other dismissals, such that just over 500 Plaintiffs now remain. The state court has systemically grouped up to twelve Plaintiffs' like-claims together for trial flights. According to Plaintiffs, none of the completed trial flights have had preclusive effect on subsequent trial flights.

         One of the Plaintiffs included in the Lester petition was Cornelius Bottley, who died from esophageal cancer in 2012. On July 16, 2014, three members of his surviving family filed a separate Bottley action, also in Civil District Court in Orleans Parish. On July 31, 2014, with an upcoming trial flight, these Bottley Plaintiffs moved the state court to transfer and consolidate their case with the Lester state action. Based on this motion for consolidation, Bottley Defendant Exxon Mobil Oil removed both Lester and Bottley to this Court under the Class Action Fairness Act (“CAFA”). Plaintiffs moved to remand the cases to state court. This Court, however, denied remand on October 23, 2014, and consolidated Lester and Bottley. R. Docs. 45, 46. The Court explained that Plaintiffs' motion to consolidate in state court constituted a “proposal for joint trial, ” particularly where over 500 plaintiffs remained at the time the motion to consolidate was filed. Thus, CAFA bestowed federal “mass action” jurisdiction. Plaintiffs appealed this decision, and in June 2018, the Fifth Circuit upheld this Court's denial of the motion to remand. R. Doc. 383. Subsequently, on January 31, 2019, Shell moved for summary judgment; however, after finding there were still significant issues of material fact regarding Shell's contribution to Plaintiffs' injuries, the Court denied Shell's motion. R. Doc. 566.

         The instant motions relate to two Lester Plaintiffs-Donnie Beasley and Herman LeBlanc. These Plaintiffs' claims have been pending in this action since 2005. R. Doc. 569-1 at 1; R. Doc. 572-3 at 1. On December 19, 2016, Beasley was diagnosed with a bone tumor on his spine, which was subsequently determined to be multiple myeloma. R. Doc. 572-3 at 2. On July 30, 2018, LeBlanc was diagnosed with bladder cancer. R. Doc. 569-1 at 2. Rather than amending their claims in the instant matter to include additional defendants, Beasley and LeBlanc filed separate suits in Louisiana State Court.[1] R. Doc. 572-3 at 1. Of the nine defendants in the state court action, seven are also defendants before this Court in Lester.[2]


         Both Beasley and LeBlanc filed motions pursuant to Federal Rule of Civil Procedure 41(a)(2) seeking dismissal of their claims before this Court without prejudice. R. Doc. 569-1 at 1; R Doc. 572-3 at 1. In their motions, Plaintiffs assert they filed their claims in state court to avoid naming additional defendants in the Lester mass action. R. Doc. 569-1 at 1; R Doc. 572-3 at 1. Next, Plaintiffs contend Defendants will not suffer any legal prejudice if the claims currently before this Court are dismissed. Id. Finally, Plaintiffs argue the state forum offers them an opportunity to have their cases tried more quickly in light of the recent developments in their cancers, which they contend could become more severe “quickly[, ] without warning.” R. Doc. 569-1 at 5; R Doc. 572-3 at 5.

         In opposition, Defendants argue they will suffer legal prejudice should the Court dismiss Plaintiffs and their claims without prejudice. R. Doc. 579 at 4. In support of their argument, Defendants point to two factors the Fifth Circuit has identified as constituting legal prejudice that Defendants contend are present in this case. R. Doc. 579 at 4. First, Defendants argue Plaintiffs' motions to dismiss are a way to escape an adverse ruling from this Court and circumvent to an expected adverse result in state court. R. Doc. 579 at 4-5. Specifically, Defendants submit Plaintiffs merely seek to avoid this Court's denial of the motion to remand Lester, which has been affirmed by the Fifth Circuit. R. Doc. 579 at 4; R. Doc. 383. With respect to their pending claims in state court, Defendants argue Plaintiffs' motions for voluntary dismissal are a means to circumvent a potentially adverse ruling in the state court proceeding-namely, a stay of their state court cases under the exception of lis pendens. R. Doc. 579 at 6. Second, Defendants contend the far stage at which this litigation has reached cautions against dismissal. Defendants assert they have expended substantial amounts of time, money, and effort litigating this case over sixteen years, five of which have been before this Court following removal. R. Doc. 579 at 7. Defendants also argue judicial efficacy supports denial of Plaintiffs' motions. R. Doc. 579 at 8.

         In their reply, Plaintiffs contend Defendants' claim that they will be prejudiced by a dismissal without prejudice is “legally insignificant.” R. Doc. 590 at 1. Because granting the motion would not prejudice Defendants as to “some legal interest, some legal claim, some legal argument, ” such as “the loss of an affirmative defense . . . [or a] statute of limitations [defense], ” Plaintiffs argue Defendants will not suffer any legal prejudice. Id. at 1-2. Plaintiffs further contend that the discovery undergone so far in the Lester action would be applicable to the case whether Plaintiffs' claims proceed in this Court or in state court. Id. at 2. Thus, Plaintiffs argue, “There will be no additional expense, work or other prejudice if LeBlanc and Beasley are permitted to proceed in state court.” Id. at 3.


         Federal Rule of Civil Procedure 41(a)(2) provides that, in certain circumstances, an action may be voluntarily dismissed without prejudice “at the plaintiff's request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). In general, motions for voluntary dismissal under Rule 41(a)(2) should be freely granted “unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.” Manshack v. Sw. Elec. PowerCo., 915 F.2d 172, 174 (5th Cir. 1990). As the Fifth Circuit has explained, a defendant may suffer plain, legal prejudice from a plaintiff's voluntary dismissal without prejudice if any of the following factors are present: (1) the plaintiff seeks dismissal after an adverse ruling or to circumvent an expected adverse result; (2) the case has proceeded far in the litigation; or (3) dismissal would strip the defendant of an otherwise available defense. Id. The mere fact that a plaintiff “may obtain some tactical advantage over the defendant in future litigation is not ordinarily a bar to dismissal.” Ikospentakis v. Thalassic Steamship Agency, 915 F.2d 176, 177 (5th Cir. 1990). Further, the Fifth Circuit has noted “that additional expense will be incurred in relitigating issues in another forum will not generally support a finding of ‘plain legal prejudice' and denial of a Rule 41(a)(2) motion to dismiss.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 n.3 (5th ...

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