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Harrison v. Sasol North America

United States District Court, W.D. Louisiana, Lake Charles Division

January 3, 2020

GREG HARRISON ET AL
v.
SASOL NORTH AMERICA ET AL

          MAGISTRATE JUDGE KAY

          MEMORANDUM RULING

          JAMES D. CAIN, JR., UNITED STATES DISTRICT JUDGE

         Before the Court is a “Motion to Dismiss on Prescription” (Rec. 25) filed by Defendant Westlake Chemical Corporation (“Westlake”) wherein the mover seeks to dismiss the claims of Plaintiffs, Greg Harrison, Brian Thomas and Skipper Thomas, Jr. on the grounds that Plaintiffs' claims are prescribed pursuant Federal Rule of Civil Procedure 12(b)(6) and Louisiana Civil Code article 3492. For the reasons that follow, the motion will be granted.

         FACTUAL ALLEGATIONS

         This lawsuit involves an alleged explosion and emission of chemicals which occurred on August 22, 2018. Plaintiffs filed suit on August 20, 2019, against Defendants, Sasol North America (“Sasol”), Turner Industries Group, LLC (“Turner”), Phillips 66, and Westlake alleging liability under Louisiana Civil Code article 2315. Plaintiffs seek damages for the alleged exposure to hazardous and toxic chemicals as a result of the explosion.

         The lawsuit, filed in this Court, was based on complete diversity pursuant to 28 U.S.C. § 1332. Defendants, Westlake and Phillips, filed motions to dismiss[1] for lack of jurisdiction because Defendant, Turner Industries, a Louisiana limited liability company destroyed complete diversity. Shortly thereafter, Plaintiffs filed a voluntary motion to dismiss[2] Sasol and Turner, showing that these two Defendants did not release chemicals on August 22, 2018. The motion was granted, and Sasol and Turner were dismissed without prejudice.[3]

         LAW AND ANALYSIS

         Defendant, Westlake, now files the instant motion to dismiss Plaintiff's claims as prescribed because Plaintiffs failed to serve any of the defendants within the prescriptive period as required under Louisiana Civil Code article 3492. That article provides, in relevant part, the following:

         Delictual actions

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. . . .

         Prescription is interrupted by the filing of a lawsuit as long as that suit is filed in a competent court. Louisiana Civil Code article 3462 provides as follows:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

         Westlake argues that when Plaintiffs filed suit on August 22, 2019, against the four (4) above named defendants, there was not complete diversity, meaning that this Court was not a court of competent jurisdiction. A competent court or court of competent jurisdiction is defined under Louisiana Code of Civil Procedure article 5251(4) as “a court which has jurisdiction over the subject matter of, and is the proper venue for, the action or proceedings.”

         Therefore, if the lawsuit was filed in a court of incompetent jurisdiction, a defendant would have to have been served by process within the prescriptive period. Westlake asserts and the record reflects that it was ...


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