Opinion
No. 2:02-CV-3594
March 28, 2003
ORDER AND REASONS
Before the Court is Plaintiff's Motion to Remand (Doc. No. 5). Having considered the parties' pleadings and exhibits, together with the relevant law, the Court grants this motion.
I.
Plaintiff brought this survival and wrongful death action in Civil District Court, Parish of Orleans, against the Board of Commissioners of the Port of New Orleans (Dock Board) and Lockheed Martin Corp. (Lockheed), after her husband suffered a fatal fall from a surveillance tower at the Governor Nicholls Street Wharf.
The tower monitors vessel movements along the Mississippi River and is part of the U.S. Coast Guard's Vessel Traffic Service (VTS) for the port of New Orleans. In October 2001, the Coast Guard hired Lockheed to modernize the tower's radar equipment. Lockheed subcontracted with TANO Corp. to perform the actual installation. On October 25, 2001, Mr. Willard, a TANO employee, fell from the tower while conducting repairs associated with the Lockheed subcontract.
Plaintiff filed her Petition in state court on October 24, 2002, naming both the Dock Board and Lockheed as defendants. Plaintiff alleged that the Dock Board owned the Governor Nicholls Street Wharf and the tower, and that the tower was in numerous respects "unreasonably dangerous and defective." Pet. ¶ 2, 10. Plaintiff further alleged that the Dock Board and Lockheed were negligent in their inspection and maintenance of the tower, that they failed to warn Mr. Willard of the hazards associated with the tower, and that they failed to provide him with a reasonably safe workplace. Pet. ¶ 11. Plaintiff also charged both defendants with "[o]wnership and/or custody of a defective thing." Pet. ¶ 11(f).
Plaintiff and Lockheed are diverse. The Dock Board is a non-diverse "quasi government entity of the State of Louisiana/City of New Orleans." Pet. ¶ L.A. With the Dock Board's consent, Lockheed removed the case to this Court on December 6, 2002, on the basis of fraudulent joinder. On January 10, 2003, Plaintiff moved to remand.
II.
The face of the Petition requires remand: the Dock Board is an in-state defendant, and there is a lack of complete diversity. See 28 U.S.C. § 1441 (b); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69 (1996). Nevertheless, this action may proceed in federal court if the joinder of the Dock Board was fraudulent. Joinder of an in-state, non-diverse defendant is deemed fraudulent where there is no possibility of recovery against that defendant. Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002). A defendant invoking fraudulent joinder shoulders a heavy burden. Id. Where the plaintiff's claim against a resident defendant has even a possibility of success, joinder is proper and the case should be remanded. As the Fifth Circuit has explained:
In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned. We do not decide whether the plaintiff will actually or even probably prevail on the merits, but look only for a possibility that he may do so. If that possibility exists, then a good faith assertion of such an expectancy in a state court is not a sham and is not fraudulent in fact or in law.
Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42-43 (5th Cir. 1992) (quotations and citations omitted).
To assess whether joinder of a resident defendant is fraudulent, the Court may employ "summary judgment-like" procedures, and may consider evidence such as affidavits or deposition testimony. Great Plains Trust, 313 F.3d at 311. "[I]f the plaintiff's pleading is pierced and it is shown that as a matter of law there is no reasonable basis for predicting that the plaintiff might establish liability on [the state law] claim against the in-state defendant," the case may go forward in federal court. Badon v. RJR Nabisco Inc., 224 F.3d 382, 390 (5th Cir. 2000).
III.
Plaintiff's claims are based on negligence (La. Civ. Code arts. 2315, 2316, 2317, 2317.1, and perhaps 2322). To recover against the Dock Board, pursuant to La. Civ. Code art. 2317, Plaintiff under certain circumstances must prove, among other things, that the Dock Board had "custody" or "garde" of the VTS tower. See, e.g., Wiley v. Sanders, 796 So.2d 51, 55 (La.App. 2d Cir. 2001). Lockheed's position is that the Dock Board does not own or maintain the tower. The Court's task is to decide whether there is some possibility that the tower was in the Dock Board's custody or garde. If that possibility exists, Plaintiff's Motion to Remand must be granted.
Lockheed does not dispute Plaintiff's allegation that the Dock Board owns the wharf on which the tower is constructed.
A.
"[G]arde is the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others." King v. Louviere, 543 So.2d 1327, 1329 (La. 1989). Determining who has garde of an object is a fact-intensive task. Dupree v. City of New Orleans, 765 So.2d 1002, 1009 (La. 2000). A person with garde of a thing will have a "right of direction and control" over it, and will derive some benefit from it. Id.
Although ownership creates a rebuttable presumption of garde, Leaman v. Continental Cas. Co., 798 So.2d 285, 289 (La.App. 4th Cir. 2001), garde and ownership are not synonymous. Dupree, 765 So. 24 at 1009. One may have custody or garde of a thing without owning it. Loescher v. Parr, 324 So.2d 441, 449 n. 7 (La. 1976) (quoting Verlander, We are Responsible . . ., 2 Tulane Civil Law Forum, No. 2, p. 64 (1974)). Conversely, one may have an ownership interest in a thing and yet not be its custodian. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464-65 (La. 1991). Finally, more than one party may have garde of the same object. Dupree, 765 So.2d at 1009.
B.
At least two Louisiana state court decisions have addressed the concept of garde in situations similar to this one. In the first, Willis v. Cajun Electric Power Cooperative Inc., 484 So.2d 726 (La.App. 1st Cir. 1986), Babcock Wilcox (B W) was hired to build a new boiler at Cajun Electric's (CEPCO's) power plant. B W initially built a high steel framework to house the new boiler assembly and placed several pedestal cranes on top of the framework to assist in the project. One of these cranes was not bolted down properly and later separated from its pedestal, causing its operator, a B W employee, to fall some 250 feet to his death. The crane operator's survivors brought suit against CEPCO, the owner of the power plant, citing the former strict liability provision at La. Civ. Code art. 2317.
The Court of Appeal found that CEPCO had no garde of the crane:
The uncontested facts of this case show that the custody (garde) of the pedestal crane was not transferred from B W to CEPCO at the time of the accident. B W at all times was the owner of the pedestal cranes. B W brought the cranes to the work site, stored them, inspected them, installed them and, after the work was completed, removed them from the site. The cranes were operated by B W personnel.
Assuming for the purpose of argument that CEPCO was the owner of the steel framework . . . at the time of the accident, the attachment of the pedestal cranes to the framework did not transfer ownership of the cranes to CEPCO. The ownership, possession, supervision and control of the cranes remained in B W. The cranes were not intended to be component parts of (permanently attached to) [the boiler]; they were only used for construction purposes by B W. There is no evidence showing that CEPCO was a bailee, lessee, usufructuary, borrower or repairer of the cranes.Id. at 730.
The court took note of the contract between B W and CEPCO, which stated, in part, that the boiler project was to
be under the charge and control of [B W] and during such period of control by [B W] all risks in connection therewith and the materials, supplies and equipment to be used therein shall be borne by [B W]. . . . [B W] will hold [CEPCO] harmless from any and all claims and losses . . . for injuries to persons or for damage to property, occurring by reason of any negligence on the part of [B W] or any of [B W's] agents or employees, during the control by [B W] of the Project or any part thereof.Id. at 731.
The court further observed that "[a]lthough CEPCO contractually reserved the right to generally control the work and test and inspect all material and equipment, this right did not impose an obligation on CEPCO to do so." Id. at 730; see also Migliori v. Willows Apartments, 727 So.2d 1258, 1260-61 (La.App. 4th Cir. 1999) (explaining that apartment owner's periodic inspection to assure compliance with repair contract does not, without more, establish "operational custody" of premises).
In Parker v. Boise Southern Co., 570 So.2d 6 (La.App. 3d Cir. 1990), Boise Southern hired a roofing contractor, Williams, to repair the roof of a paper mill. Williams built a temporary enclosure high above the factory floor, allowing the repairs to go forward with a minimum of interference to Boise's paper production. One of Williams' employees fell through the enclosure, was seriously injured, and sued Boise on the basis of negligence and strict liability.
The Court of Appeal upheld a directed verdict in Boise's favor:
In the case sub judice, the record reflects that the enclosure system was owned by Williams and taken away by them upon completion of the job. There is no evidence that Boise instructed Williams on how to build, maintain or remove the system. Neither party ever intended for the system to become a permanent part of the Boise building and it was in fact removed when the repair work was completed. In addition, the repair work was done in sections and Williams moved their system along the roof as their work progressed. There is no evidence that Boise regulated, directed or helped in any movement of the system. Boise had the right to enter the enclosure system for inspection purposes to verify that Williams was working in compliance with contract requirements and without unnecessary risks to Boise's employees. However, Louisiana jurisprudence does not equate this right to inspect for contract compliance with "custody" as that term is contemplated in Article 2317. . . .
[A]ccording to the contract documents and the evidence presented at trial, Williams was responsible for the safety of its own employees. . . .
[W]hile Boise had the right to inspect for safety compliance, it did not have the obligation to do so. It was Williams who had the responsibility for implementing safety procedures for its employees. The testimony of the witnesses supports this conclusion.Id. at 9-10.
IV.
Lockheed has supplied the affidavits of Paul Zimmermann, an "authorized representative" of the Dock Board, and Commander Brian Judge, an attorney at the Coast Guard's Office of Claims and Litigation in Washington, D.C. Both affiants state that the Coast Guard owns the tower. According to Mr. Zimmerman, the tower "was not, and is not, owned by" the Dock Board. As Plaintiff has presented no evidence to contradict these statements, the Court is satisfied that the Dock Board does not own the tower.
The affidavits also indicate that the Coast Guard is responsible for maintaining the tower. Mr. Zimmerman adds that the Dock Board "is not responsible for making repairs to the tower," and "is not obligated to inspect and/or maintain [the] tower." Plaintiff has not come forward with any specific facts to the contrary. Instead, Plaintiff points to La. R.S. 34:21B, which requires the Dock Board:
(1) To have charge of, and administer the public wharves, docks, sheds, and landings of the port of New Orleans which are owned and operated, or which may be purchased, acquired, or operated by the board.
(2) To construct new wharves and other structures when necessary.
(3) To erect sheds and other structures on such wharves and landings.
(4) To place and keep these wharves and landings, sheds, and other structures in good condition. . . .
Initially, the parties submitted no evidence of any agreement between the Coast Guard and the Dock Board allocating responsibility for the tower's installation and upkeep. This left the Court ill-equipped to pass on the issue of garde. The Court therefore requested that Lockheed supplement the record with copies of any such agreements (permits, leases, conveyances, etc.) between the Coast Guard and the Dock Board.
Lockheed filed a Supplemental Memorandum, attaching three exhibits. The first, Exhibit A, is a letter from the Coast Guard to the Dock Board, dated April 21, 1977. This letter memorializes the Coast Guard's assuming control of the tower from the U.S. Army Corps of Engineers in 1977. The letter refers to two permits previously issued by the Dock Board to the Corps of Engineers, one from 1961 ("Permit for basic structure"), and one from 1971 ("Permit to raise traffic signal"). The letter concludes: "Effective September 1, 1977, [the Coast Guard] assumes all rights and responsibilities previously granted for the Governor Nicholls Traffic Light." The Court has not been furnished with the initial permits from 1961 and 1971, so it is unclear what these "previously granted . . . rights and responsibilities" were and how the provision may or may not affect garde.
The second document, Exhibit B, is the Dock Board's letter of May 17, 1977, confirming transfer of control of the tower from the Corps of Engineers to the Coast Guard.
The final document, Exhibit C, is a letter from the Dock Board to the Coast Guard, dated May 7, 1999. This letter approves the Coast Guard's proposal to install an electronics shelter on the existing tower structure. The Dock Board states that it reviewed the Coast Guard's plans for the proposed installation and approves them "subject to the terms and conditions" of the original permit issued to the Corps of Engineers in 1961 "as subsequently amended and formerly transferred to the U.S. Coast Guard." Additional conditions follow, which declare, among other things,
1. That the full and entire expense, cost, and risk in connection with the subject installation and maintenance of same shall be borne by the U.S. Coast Guard; and
2. That all work is accomplished in a neat and workmanlike manner to the satisfaction of this Board and in accordance with normally accepted construction standards as generally required by this Board for the type of work to be performed . . .; and
4. That, by approving the aforesaid submitted information, this Board assumes no responsibility for, and makes no representations or warranties concerning, the correctness or adequacy thereof and . . .
8. That the installation shall be maintained by the U.S. Coast Guard in good condition at all times and all at its sole cost, risk, and expense; and . . .
11. That . . . the Coast Guard . . . shall be liable for, and shall hold the Board harmless from all claims, demands, damages, losses, costs, and expenses, including but not limited to fire damage, loss of property, personal injury or death caused by the acts or omissions of the U.S. Coast Guard, its officers, invitees, employees and agents; and . . .
14. That [the Coast Guard] shall coordinate all work with Mr. Isaac Knightshead of the Board's general operations team . . . so that he may schedule the monitoring of such work by this Board's representative as required.
This permit does not seem to cover the installation and repairs being performed at the time of Mr. Willard's death and is not determinative standing alone. The letter approves only the initial installation of an electronics shelter and its connection to an electrical distribution center. The letter states that "[t]he antenna and electronics will be installed in the future by another U.S. Coast Guard department and will be permitted separately." There are no subsequent permits in the record.
While ownership and maintenance obligations are important to the concept of garde, and the mere right of inspection does not establish garde, the cases also consider such things as whether the party charged with garde took an active role in overseeing the project, and whether the object in question was to be permanently or only temporarily affixed to the surrounding property. See Parker v. Boise Southern Co., 570 So.2d 6, 9 (La.App. 3d Cir. 1990)
Lockheed has not presented any evidence of the Dock Board's involvement or lack of involvement in the electronics installation on October 25, 2001. Compare Dobbs v. Gulf Oil Co., 759 F.2d 1213, 1218 (5th Cir. 1985), with Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 551-52 (5th Cir. 1987), and Coulter v. Texaco, Inc., 117 F.3d 909, 913-14 (5th Cir. 1997). The Court does not know who was in charge on that date or whether a Dock Board representative was on the scene monitoring the project. Nor has Lockheed addressed the "benefit" aspect of garde, i.e., it has not shown that the Dock Board received no benefit by virtue of the tower being constructed and maintained on its wharf.
In order for Plaintiff to recover against the Dock Board under Civil Code article 2317, Plaintiff must prove that Dock Board had garde of the Tower. Determining who has garde of a thing is a question of fact. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La. 1981).
In order to recover under article 2315, the Plaintiff must show that there was an affirmative duty on the part of the Dock Board to the plaintiff, and that it violated that duty. Certainly, the owner of the immovable property has a duty to discover any unreasonably dangerous condition on its premises and warn potential victims of its existence. The difference in proof between articles 2317 and 2315 is that under 2315 it must be shown that the owner of the premises knew or should have known of the risk. Under 2317, garde must be shown. See Zeno v. Grady, Crawford Constr. Co. Inc., 625 So.2d 590, 940858 (La.App. 1 Cir. 3/3/95). In either event, there is a possibility that recovery under either article if plaintiff comes forward with sufficient evidence to establish garde under 2317 or negligence under 2315.
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Remand (Doc. No. 5) is GRANTED. This matter is REMANDED to the Civil District Court, Parish of Orleans, State of Louisiana.