United States District Court, E.D. Louisiana
WARREN LESTER, ET AL.
EXXON MOBIL CORP., ET AL.
ORDER & REASONS
E. FALLON U.S. DISTRICT COURT JUDGE.
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.
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.
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.
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.
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. R. Doc. 572-3 at 1. Of the nine defendants
in the state court action, seven are also defendants before
this Court in Lester.
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.
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.
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.
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 ...