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Garcia v. Westlake Chemical Corporation

United States District Court, M.D. Louisiana

August 21, 2019

HUGO GARCIA
v.
WESTLAKE CHEMICAL CORPORATION, WESTLAKE CHEMICAL ENERGY, LLC, AND TURNER INDUSTRIES, LLC

          NOTICE

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the Court is a Motion to Remand (“Motion”)[1] filed by Hugo Garcia (“Plaintiff”). The Motion is opposed by defendants Westlake Chemical Corporation and Westlake Chemical Energy, LLC (the “Westlake Defendants”).[2] Plaintiff has filed a Reply.[3]

         Also, before the Court is the Motion for Leave to Supplement the Record (“Motion to Supplement”)[4] filed by Plaintiff, which was referred to the undersigned.

         For the reasons set forth herein, the undersigned RECOMMENDS[5] that the Motion to Remand[6] be DENIED. In the event this recommendation is adopted, the undersigned FURTHER RECOMMENDS that this matter be referred for a scheduling conference.[7] The Motion to Supplement[8] is DENIED.

         I. Background

         On July 3, 2018, Plaintiff filed his Original Petition (the “Petition”) against the Westlake Defendants and his employer, Turner Industries, LLC (“Turner”). Per the Petition, Plaintiff alleges that on May 24, 2018, he was performing “hydro-blasting” work for Turner at the Westlake Defendants' chemical plant in Plaquemine, Louisiana.[9] Plaintiff alleges that he suffered severe injuries to his hand, back, and other body parts when the hose to the pressure washer he was using exploded (the “Accident”) as the result of negligence, negligence per se, and gross negligence on the part of all Defendants.[10] Plaintiff also specifically alleges that Turner was “substantially certain” that Plaintiff's injuries would result from these “failures.”[11]

         On August 13, 2018, the Westlake Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1332 based on the assertion that the amount in controversy exceeds $75, 000 exclusive of interest and costs and that the properly joined parties are completely diverse.[12] In the Notice of Removal and the Petition, Plaintiff is alleged to be a citizen of Louisiana.[13] Westlake Chemical Corporation is alleged to be a Delaware corporation with a principal place of business in Texas. Westlake Chemical Entergy, LLC is alleged to be a limited liability company with one member, Westlake NG I Corporation, which is a Delaware corporation with its principal place of business in Texas.[14] Therefore, these parties are diverse. The Notice of Removal states that Turner, which is alleged to be a “Louisiana limited liability company”[15] in the Petition and therefore not diverse from Plaintiff, was improperly joined in an attempt to defeat this Court's diversity jurisdiction.[16]After setting forth the applicable legal standards governing the analysis of the second test for improper joinder, i.e., whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against the in-state defendant either through a Fed.R.Civ.P. 12(b)(6)-type analysis or a summary inquiry, the Westlake Defendants contend that Plaintiff's claims fail to meet the Fed.R.Civ.P. 12(b)(6) standard and Turner is improperly joined because “plaintiff does not have a reasonable basis for recovering against Turner.”[17] The Westlake Defendants contend that Plaintiff's exclusive remedy against Turner, his employer, is pursuant to Louisiana's Worker's Compensation Act (“LWCA”), La. R.S. 23:1032, et seq., and that Plaintiff's attempt to invoke the intentional act exception in La. R.S. 23:1032(B) fails because Plaintiff's allegations are “patently insufficient” to state a claim that Turner committed an intentional tort.[18] Therefore, according to the Westlake Defendants, Plaintiff cannot establish a cause of action against Turner, who was improperly joined. The Westlake Defendants further contend that Turner's citizenship should be ignored, and once ignored, complete diversity exists among the remaining parties.[19] On September 12, 2018, Plaintiff responded to the Notice of Removal with the instant Motion, [20] which was opposed by Defendants.[21] Plaintiff then filed his Reply Memorandum.[22]

         The question before the Court is whether Turner[23] is properly joined as a defendant in this matter. If Turner is properly joined as Plaintiff contends, then, as an alleged citizen of Louisiana, Turner's presence in this action destroys diversity jurisdiction and the Motion should be granted.[24]If Turner is improperly joined, as the Westlake Defendants assert, then the claims against Turner will be dismissed, complete diversity of citizenship will exist as to the remaining parties, and the Motion should be denied.

         II. Law and Analysis

         A. Standard for Remand

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[25] When original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed the “sum or value of $75, 000, exclusive of interest and costs.”[26] Remand is proper if at any time the court lacks subject matter jurisdiction.[27] The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.[28]

         B. Standard for Improper Joinder

         “The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper.”[29] “‘[A]ny contested issues of fact and any ambiguities of state law must be resolved' in favor of remand, ”[30] and “[a]ny doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”[31]

         The Fifth Circuit has “recognized two ways to establish improper joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'”[32] As to the second method, the test is “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an instate defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.”[33] The Westlake Defendants do not assert that there has been fraud in the pleading of jurisdictional facts related to Turner. Accordingly, the undersigned considers whether there is a reasonable basis to predict that Plaintiff might be able to recover against Turner, the non-diverse defendant, and/or whether there is some possibility that Plaintiff can establish a cause of action against Turner, as Plaintiff urges.[34]

         A court may resolve the issue of whether a plaintiff has a reasonable basis of recovery under state law in one of two ways. “The court may conduct a Rule 12(b)(6) analysis, looking at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.”[35] The Fifth Circuit has cautioned that such summary inquiry “is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant.”[36]

         C. Turner is Improperly Joined

         1. The generalized and conclusory allegations in the Petition against Turner are insufficient to establish a basis for recovery

         In order to establish fraudulent joinder, the Westlake Defendants must prove there is no possibility Plaintiff can recover against Turner in this tort action under applicable state law.[37] The Westlake Defendants argue that Turner, as Plaintiff's employer, is immune from Plaintiff's tort suit pursuant to the LWCA.[38] Louisiana Revised Statute §23:1032 provides that workers' compensation benefits are the exclusive remedy of an employee against an employer for injuries arising out of and in the course and scope of his employment, which Plaintiff acknowledges.[39]This immunity from tort actions, however, does not apply when the employee's injuries are the result of an intentional act of the employer.[40]

         It is undisputed that Plaintiff was an employee working in the course and scope of his employment with Turner at the Westlake Defendants' facility when the Accident occurred.[41] However, Plaintiff contends that the LWCA does not bar this suit against Turner because Plaintiff's injuries were caused by an intentional tort committed by Turner.[42] Thus, this Court must determine whether there is any possibility that Plaintiff can recover from Turner for an intentional tort.

         The Louisiana Supreme Court defines an intentional tort as occurring when “the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.”[43] “[T]he substantially certain test is satisfied when an employer consciously subjects an employee to a hazardous or defective work environment where injury to the employee is nearly inevitable-that is, injury is ‘almost certain' or ‘virtually sure' to occur or is incapable of being avoided.”[44] The parties agree that these are the applicable legal standards.[45]

         Per the Petition, Plaintiff generally alleges that Turner was “substantially certain”[46] that Plaintiff's injuries would result based on sixteen generally-described “failures” that are attributed to all Defendants, including the failure to adequately supervise and train employees and implement adequate safety policies.[47] Plaintiff also alleges in support of this Motion that Turner committed an intentional tort by its alleged failure to properly maintain and inspect its equipment, which created a dangerous condition that Turner knew was substantially certain to cause harm to Plaintiff.[48] Plaintiff contends that he pled factual allegations “sufficient to show at least the possibility of establishing a cause of action against Turner under La. R.S. 23:1032(B)”[49] through Plaintiff's allegation that Turner “committed basic failures in keeping its employees safe, including failing to ensure equipment's safety and maintenance, and failures to inspect its equipment. And Plaintiff has further alleged that these failures created a dangerous and/or hazardous condition.”[50] Plaintiff lastly contends that Turner knew of the dangerous condition it created because it knew it failed to properly maintain and inspect equipment, which failure created “an inevitability of injury.”[51]

         The Westlake Defendants argue that Plaintiff has not pled, and cannot prove, facts implicating the intentional act exception to the LWCA's bar on Turner's tort liability because Plaintiff has not alleged any specific facts that Turner consciously desired to harm him.[52] The Westlake Defendants contend that Plaintiff has only alleged, in a conclusory fashion, that Turner knew with substantial certainty that Plaintiff would be injured as a result of Turner's negligence, negligence per se, and gross negligence. The Westlake Defendants further argue that, to state a cause of action, Plaintiff must allege facts supporting each element of his claim, not mere legal conclusions, as “conclusory and general allegations are insufficient to overcome a showing that a non-diverse defendant was improperly joined.”[53] According to the Westlake Defendants, Plaintiff's claims are “completely devoid of any factual allegations. Plaintiff merely sets out a formulaic recitation of the standard for a cause of action for an ‘intentional' act under the [LWCA]…, ” which fails to state a claim against Turner. The Westlake Defendants assert that Plaintiff fails to allege any facts to show that Turner had reason to know that the hose to the pressure washer Plaintiff was using would “explode” or that Plaintiff would be injured as a result.[54]

         Plaintiff bears the burden of demonstrating that a work-related injury resulted from an intentional act.[55] In Guillory v. Domtar Industries Inc., [56] the Fifth Circuit noted that “[c]ourts narrowly interpret the intentional act loophole to the workers' compensation system.”[57] In Guillory, an employee was injured after being struck on the head by a fork that fell from a forklift. When ruling on a motion for summary judgment, the Court found that the employer did not intend to injure the employee and, therefore, the exclusivity provisions of the LWCA prevented the employee from recovering against the employer in tort. The Guillory court concluded that, even if the falling fork created a “ ‘high probability' of injury, this would not establish ‘intent' sufficient to bypass the workers' compensation system.”[58] The Guillory court further noted that, even if it could be established that the employers' acts or omission constituted “gross negligence, ” “intent” still would be lacking.[59] The Fifth Circuit found that an employer's prior knowledge that forks could fall off the forklifts, including prior knowledge that one of the forks usually fell off the forklift used by the plaintiff, was not enough to establish intent on the part of the employer.[60]

         Plaintiff's allegations fail to state a claim against Turner. As noted, the Petition's assertions of sixteen general “failures” of all Defendants, e.g., their failure to properly inspect and implement adequate safety policies, are not supported by any specific facts sufficient to show that Turner acted intentionally to harm Plaintiff. Plaintiff's allegations are similar to the ones considered and rejected by this Court in Pate v. Adell Compounding, Inc.[61] In that case, the plaintiff employee was injured when his sleeve got caught in a roller of a strand puller and, like Plaintiff herein, the Pate plaintiffs named the employer on the basis of the employer's alleged intentional tort. To establish an intentional tort, the Adell plaintiffs alleged in their petition that: the supervisors “knew of the dangerous propensity of the strand puller…, but made a conscious decision not to perform the necessary safety alterations to the machine; and, further, made a conscious decision to continue to require its employees to operate the machine in its obviously unsafe condition;” the employer “intentionally caused the injuries” and “is held to have known of the dangerous propensities and defective design of the strand puller, and knew that an accident resulting in the nature of the [plaintiff's] injuries was substantially certain to occur;” and finally, the employer's “total disregard for [plaintiff's] safety and its conscious decision to not provide any safety guards on the strand puller constitute an intentional act under the provisions under La. R.S. 23:1032(B).”[62] This Court found that the plaintiffs “have failed to point to any specific facts or offer any evidence which even hints of any specific facts which support their intentional tort claim against Adell, ” and squarely held:

Viewing the facts most favorable to the plaintiffs, this Court finds an employer's knowledge of a work place risk to an employee does not constitute “intent” under the intentional act exclusion. Therefore, this Court finds there is no reasonable basis for predicting that a Louisiana state court might impose liability on Adell on the plaintiffs' intentional tort theory.[63]

         The same reasoning applies to Plaintiff's claims here. Plaintiff has failed to come forward with any specific facts to support his intentional tort claim against Turner.

         Furthermore, it is notable that, although Plaintiff has stated in a conclusory manner that Turner was substantially certain his injuries would result from Turner's “failures, ” Plaintiff has also alleged generally that all Defendants' caused the Accident through “negligence, negligence per se and gross negligence.”[64] This Court recognized in Williams v. Syngenta Corp. that pleading an employer's gross negligence (and/or an employer's failure to provide a safe place to work or faulty equipment) does not state a claim for an intentional tort:

Generally, Louisiana courts recognize that “mere knowledge and appreciation of a risk does not constitute intent; reckless or wanton conduct, gross negligence, [65] disregard of safety regulation or the failure to use safety equipment by an employer does not constitute intentional wrongdoing. DelaHoussaye v. Morton Intern. Inc., 300 Fed.Appx. 257, 258 (5th Cir. 2008) (citing Micele v. CPC of La., Inc., 709 So.2d 1065, 1068 (La.App. 4 Cir.1998)); see also Rosales v. Bunzzy's Enter. Realty LLC, No. 06-11149, 2008 WL 754856, at *2 (E.D. La. Mar. 19, 2008) (identifying certain situations that Louisiana courts have determined “almost universally do not form the basis of an intentional tort: failure to provide a safe place to work, poorly designed machinery, failure to follow OSHA safety provisions, failure to provide requested safety equipment, and failure to correct unsafe working conditions.”)[66] (citing Zimko v. American Cyanamid, 905 So.2d 465, 477 (La.App. 4 Cir. 2005)) (emphasis added).[67]

         In Reeves v. Structural Preservation Systems, [68] the Louisiana Supreme Court noted that the state appellate courts have narrowly construed the intentional act exception and have “almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment, ”[69] and, when addressing the plaintiff's contention that the supervisor's fear that someone would get hurt if a 350 to 400 pound sandblasting pot was moved manually met the “substantial certainty” test, held: “[b]elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation.”[70]

         Moreover, while the Petition claims that Turner was “substantially certain” Plaintiff's injuries would result, this Court has also recognized that “a plaintiff cannot merely include the word ‘intentional' or the phrase ‘substantially certain' in a complaint to avoid application of the exclusive remedy provision of Louisiana's workers' compensation law.”[71] Plaintiff's allegations are insufficient because there are no supporting facts to show that Turner “knowingly subjected” Plaintiff to risks or failures of the equipment or that Turner was “substantially certain” that harm would come to Plaintiff because of the defective equipment Plaintiff used. The Petition does not allege any facts to that show, for example, that similar accidents had occurred in the past using the equipment in question.[72]

         Plaintiff's briefing on this Motion merely reiterates the allegations of the Petition, without providing any additional factual support or persuasive legal authority.[73] Plaintiff's allegation that Turner was “substantially certain” his injuries would result because Turner failed to properly maintain its equipment and created a dangerous condition[74] is the type of conclusory allegation that the Court is not required to accept.[75] “[U]nder Louisiana law, the intentional tort exception to the exclusive remedy provision of the workers' compensation statute is to be given a narrow interpretation. As such, the standard for prevailing on a claim of intentional tort under Louisiana law is ‘extremely high.'”[76] Plaintiff's allegations against Turner are not enough to meet this standard and Plaintiff's claims against Turner should be dismissed without prejudice.[77]

         2. It is not necessary to pierce the pleadings and consider summary-judgment type evidence

         The Westlake Defendants urge the Court to “pierce the pleadings, ” as they contend that the “evidence before the Court conclusively establishes that Plaintiff cannot maintain a claim against Turner.”[78] One piece of evidence to which the Westlake Defendants refer is the affidavit of Kenneth Little, Sr., who was Plaintiff's former supervisor and Turner's foreman.[79] Essentially Little's affidavit attests that he was not substantially certain the Accident would occur. Eight months after Plaintiff filed his Reply Memorandum, Plaintiff filed the pending Motion to Supplement, asking to supplement the record with the affidavit of Plaintiff's former co-worker, Levy Jackson, to contradict Little's affidavit.[80]

         Plaintiff's Motion to Supplement will be denied. When a plaintiff's allegations can survive a Rule 12(b)(6) challenge, the district court may, in some circumstances, “‘pierce the pleadings and conduct a summary inquiry' before slamming the door on a claim of improper joinder.”[81] Here, because Plaintiff's allegations cannot survive a Fed R. Civ P. 12(b)(6)-type analysis, it is not necessary to consider “summary-judgment type” evidence, i.e., the affidavits submitted by the Westlake Defendants or Plaintiff.

         D. Turner's Consent Was Not ...


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