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Roussell v. PBF Consultants, LLC

United States District Court, M.D. Louisiana

November 22, 2019

JEPRECE ROUSSELL
v.
PBF CONSULTANTS, LLC, ET AL.

          TELEPHONE CONFERENCE REPORT AND ORDER

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         A telephone conference was held before Magistrate Judge Erin Wilder-Doomes on November 20, 2019 with the following participants:

PRESENT: Roland T. Christensen Counsel for Plaintiff, Jeprece Roussell
Lori D. Barker Counsel for Defendant, Clean Harbors Environmental Services, Inc.
Charles T. Buthod Benjamin E. Gonsoulin Counsel for Defendants, PBF Holding Company, LLC, et al.

         The parties discussed Plaintiff's Renewed Motion for Leave to Amend Her Complaint (the “Motion to Amend Complaint”), [1] PBF Defendants' Opposed Motion for Leave to File First Amended Answer (the “PBF Motion to Amend Answer”), [2] and the Opposed Motion for Leave to File First Amended Answer of Clean Harbors Environmental Services, LLC (the “Clean Harbors Motion to Amend Answer”).[3]

         This Court previously denied a motion to remand based on the improper joinder of two individual defendants, John Sprafka (“Sprafka”) and Wayne Lacomb (“Lacomb”).[4] In recommending a finding that Sprafka and Lacomb were improperly joined, this Court set forth the standard for improper joinder, [5] as well as the standard for holding a corporate employee individually liable for injuries to third persons.[6] In finding that Sprafka and Lacomb were improperly joined, the Court explained that Plaintiff had not alleged that either individual defendant “personally walked through the tanks with Decedent, provided Decedent with a permit to access the tanks, or provided any instructions to Decedent, ” or “was personally responsible for inspecting the tanks or for supervising Clean Harbor's work.”[7]

         By the proposed amended complaint, Plaintiff seeks to re-allege claims against Sprafka and Lacomb and bring claims against a new individual defendant, Guy Swinford. Although the proposed First Amended Complaint does not adequately set out the citizenship of these individual defendants because Plaintiff only alleges residency, the Court confirmed during the November 21, 2019 telephone conference that the parties agree Mr. Swinford is a Louisiana citizen.

         The Court explained that, based on a review of the proposed First Amended Complaint, [8] Plaintiff's proposed allegations against Swinford appear to state a claim and appear to be in keeping with the standards set forth in the Court's previous denial of the motion to remand.[9] Per the proposed pleading, Plaintiff alleges:

Guy Swinford was a safety representative for the PBF Defendants and Eric was an operator for the PBF Defendants. Together, they were responsible for and had been delegated the task of evaluating the proposed work and approving permits for the specific work project at issue. Guy Swinford and Eric looked into the pressure vessel prior to work beginning on the day in question and personally saw the dangerous condition that existed-i.e., the remaining buildup of silica sand that was still caked in the pressure vessel. However, on behalf of the PBF Defendants, both Guy Swinford and Eric did nothing to address the hazard and instead personally approved the necessary permits. They instructed the Clean Harbors/Veolia crew to proceed with entering the pressure vessel to start cleaning out the silica sand despite the dangerous conditions both Guy Swinford and Eric were actually aware of.[10]

         The proposed First Amended Complaint additionally sets forth that:

Defendant Swinford was a Health and Safety Representative at the Chalmette Refinery at the time of the incident. Defendant Swinford had direct responsibility for and had been delegated the duty of overseeing the permitting process for confined spaces such as where the incident occurred. Defendant Swinford physically walked the unit and personally looked inside the pressure vessel in question before authorizing the permits to enter the pressure vessel. Defendant Swinford actually saw the silica build up and, based on his training, would have understood the risks with sending individuals inside the pressure vessel with the caked silica sand. Despite his actual and constructive knowledge of the dangerous conditions, Defendant Swinford authorized the work to go forward.[11]

         “The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper.”[12] “‘[A]ny contested issues of fact and any ambiguities of state law must be resolved' in favor of remand, ”[13] and “[a]ny doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”[14] Considering the Court's preliminary review of the sufficiency of Plaintiff's proposed allegations against Mr. Swinford, the Court asked defendants whether they intend to oppose the Motion to Amend Complaint. While any defendant is entitled to file an opposition to the Motion to Amend Complaint within the deadline set herein, the Court reminded the parties that the Fifth Circuit has “frequently cautioned the district courts against pretrying a case to determine removal jurisdiction....”[15] Accordingly, the Court will not conduct a “mini-trial” on the truth of Plaintiff's proposed allegations against Mr. Swinford when analyzing the Motion to Amend Complaint. Further, the parties were advised that if the claims against Mr. Swinford were allowed, the undersigned would sua sponte recommend remand of this action.[16] Finally, counsel were reminded of their obligation pursuant to FRCP 11(b)(2) to ensure that “claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”

         Counsel for the PBF Defendants stated that the PBF Defendants would like additional time to consider the issues raised during the telephone conference to decide whether the PBF Defendants will file an opposition memorandum to the Motion to Amend Complaint. Plaintiff did not object. Defendants were granted an extension of time through Monday, December 2, 2019 to file a response to the Motion to Amend Complaint. The Court instructed counsel that at this time, briefing regarding the Motion to Amend Complaint should be limited to the issue of the individual defendants' joinder.[17] At the request of Plaintiff's counsel, the Court also extended the deadline for opposition to the PBF ...


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