Opinion
Civ. No. 99-3077, SECTION: "D" (3).
March 1, 2000.
Before the court are the following motions:
(1) "Motion to Re-Remand" filed by Plaintiffs, Barbara Winningkoff, et al;
(2) "Motion to Dismiss and Alternative Motion for Summary Judgment and Alternative Motion to Strike" filed by Defendants, Murphy Oil U.S.A., Inc., Murphy Oil Corp., and Jim Anderson;
(3) "Motion to Dismiss for Failure to State a Claim as to Plaintiffs' Claims for Exemplary/Punitive Damages and Attorney Fees and Motion for a More Definite Statement" filed by Defendant Monsanto Company;
(4) "Motion to Dismiss" filed by Defendant EPEC Oil Company;
(5) "Rule 12(b)(6) Motion to Dismiss or Alternative Motion for Summary Judgment" filed by Defendants, Chevron U.S.A. Inc., Shell Oil Company, Hubert Miller, Jeff Messer, and Pete Landry; and
(6) "Motion to Dismiss for Failure to State a Claim" filed by Defendants, Dow Chemical Company, Mortimer Currier, Charlie Halphen, and Lester Poirrier;
(7) "Motion to Dismiss for Failure to State a Claim upon which Relief Can Be Granted, or Alternatively, Motion to Strike and Motion for More Definite Statement" filed by American Cyanamid Company.
Motion Nos. 1-6 are subject of this court's reconsideration. ( See Minute Entry, Doc. No. 38). Motion No. 7, filed by American Cyanamid (ACC), is a "new" motion. In this motion, ACC seeks dismissal of Plaintiffs' claims for exemplary damages, survival damages and attorney's fees.
Finally, the court notes that Associated Indemnity Incorporation (the alleged insurer of Dow Chemical Company and its alleged executive officers) has joined and adopted "The Dow Chemical Company's Motion to Dismiss for Failure to State a Claim" and the memorandum submitted in support of that motion. ( See Doc. No. 42).
These motions were set for hearing on February 23, 2000, on which date the court heard oral argument from counsel. Now, having considered the memoranda and argument of counsel, the court rules.
Background
John Winningkoff, Plaintiffs' decedent, was diagnosed with acute myelogenous leukemia on June 2, 1992. On May 7, 1993, Winningkoff filed suit in Texas state court against Chevron U.S.A., Inc. and Shell Oil Company, the premise owners of the facilities at which Winningkoff claimed exposure to toxic substances which allegedly caused his illness. Winningkoff subsequently amended his Petition to name numerous other Defendants. On August 27, 1994, Winningkoff died, and on July 10, 1995, a Second Amended Petition was filed with the Texas state court, naming Winningkoff's wife and children as heirs to his survival claim and to assert their own claim for his wrongful death.
On September 24 and October 9, 1997, Plaintiffs' suit in Texas was voluntarily dismissed against Defendants, Union Carbide, Dow, Mobil, Texaco, Chevron, Shell, Tenneco, Monsanto and American Cyanamid. Additionally, Defendant Dupont was granted summary Judgment by the trial court in Texas, but this was reversed by the Texas Court of Appeals and the Texas Supreme Court denied review.
On April 8, 1997, Plaintiffs filed this action for survival and wrongful death in the 34th Judicial District Court, Parish of St. Bernard, State of Louisiana. Plaintiffs sued the following Defendants as alleged "premise owners" of the facilities where Winningkoff worked as an insulator:
(1) American Cyanamid Company;
(2) Chevron U.S.A. Inc.;
(3) Dow Chemical Company;
(4) E.I. Dupont De Nemours and Company;
(5) Hooker Chemical Company;
(6) Mobil Oil Corporation;
(7) Monsanto Company;
(8) Murphy Exploration Production Company;
(9) Murphy Oil Corporation;
(10) Murphy Oil U.S.A. Inc.;
(10) Shell Oil Company;
(11) Tenneco Oil Company;
(12) Texaco, Inc.; and
(13) Union Carbide Corporation.
( See Plaintiffs' state-filed Petition, ¶ 3).
Additionally, Plaintiffs sued the following Defendants as alleged "executive officers" of certain premise owners:
(1) Jim Anderson, Ernest Hanberry and Melvin Schmidt, alleged executive officers of the Murphy entities;
(2) Dean Blackwell, Ray Brooks, Ed Megison and Larry Hess, alleged executive officers of Tenneco;
(3) Hubert Miller, Ernie Martin, Pete Landry and Jeff Messer, alleged executive officers of Shell.
( See Plaintiffs' state-filed Petition, ¶ 4).
Plaintiffs also named as Defendants various insurers who allegedly provided the comprehensive general liability insurance for the premise owners and executive officers. ( See Petition, ¶ 5).
Plaintiffs allege that these executive officers "were delegated the responsibility of protecting the health and safety of John Winningkoff during his employment as an insulator at the [respective premise owners' facilities] where he was routinely exposed to dangerous levels of benzene and other carcinogenic chemicals." (Id.).
On November 5, 1997, within 30 days of service of the state-court petition, the Defendants removed the matter to this court based on diversity jurisdiction and upon the grounds that Plaintiffs fraudulently joined the following non-diverse Defendants in an effort to defeat complete diversity: Murphy Exploration Production Company; Ernest Hanberry; Melvin Schmidt; Ed Megison; Dean Blackwell; Ray Brooks; Ernie Martin; Pete Landry; Mortimer Currier; Charlie Halphen and Lester Poirrier. ( See Record No. 97-3452, Notice of Removal, ¶¶ 30 36).
In its memorandum in opposition to Plaintiff's Motion to Remand, EPEC Oil Company (formerly Tenneco) represents that Dean Blackwell is a resident of Texas.
With regard to those executive officers who are diverse, the Defendants stated upon removal that Jim Anderson, Hubert Miller, Jeff Messer, Larry Hess and Robert Vaughn "are not executive officers as that term is construed under Louisiana law and that they cannot be held for plaintiffs' alleged damages" and "plaintiffs have no possibility of recovery against these defendants for negligence, intentional tort or punitive damages". ( See Record No. 97-3452, Notice of Removal, ¶ 38).
Defendants represent in their first Notice of Removal that Robert Vaughn is now deceased. ( See Record No. 97-3452, Notice of Removal, ¶ 24). No motion has been filed to dismiss this Defendant.
In its memorandum in opposition to Plaintiff's Motion to Remand, EPEC Oil Company represents that Larry Hess is a resident of Louisiana.
Plaintiffs then filed a Motion to Remand, and on July 30, 1998, this court (Judge Lemmon) granted Plaintiffs' Motion to Remand stating that:
Because of the ambiguity in the controlling state law [i.e., the application of LSA-R.S. 23:1032 to wrongful death claims] in light of the Supreme Court of Louisiana's granting the writ of certiorari in Walls, this court concludes that there is a possibility that the Winningkoff plaintiffs may recover against some of the non-diverse executive officers.
( See Reasons for Judgment, p. 5).
On September 8, 1999, the Louisiana Supreme Court issued its opinion in the Walls case. Walls v. American Optical Corp., 740 So.2d 1262 (La. 1999). Walls established that LSA-R.S. 23:1032 which was in effect at the time of Winningkoff's death (i.e., LSA-R.S. 23:1032, as amended by Act 147 of the 1976 Louisiana Legislative Session), and not the law in effect at the time of his alleged exposure to toxic substances and carcinogens, governs the wrongful death claims asserted in this action against the executive officers.
Tort recovery against executive officers was legislatively overruled by Act 147 of 1976, which amended the Louisiana Worker's Compensation Act to extend an employer's immunity from tort suits to principals, executive officers and directors, partners, stockholders, and employees, who at the time of injury, were engaged in the normal course and scope of their employment. The effective date of Act 147 of 1976 was October 1, 1976. See, Owens v. Martin, 449 So.2d 448, 450 (La. 1984); Bazley v. Tortorich, 397 So.2d 475 (La. 1981).
In Walls, the Court found that the plaintiffs had no cause of action for wrongful death against the alleged executive officers of the deceased's employer for the silicosis the deceased allegedly contracted in the 1960's from his work as a sandblaster, because at the time of his death in 1995, such claims were barred by the exclusivity provision of LSA-R.S. 23:1032.
Here, John Winningkoff died on August 27, 1994. Thus, at the time of his death, as in Walls, the Plaintiffs have no wrongful death action against the alleged executive officers of John Winningkoff's employer(s).
On October 8, 1999, Defendants filed a Notice of Re-Removal contending that as to Plaintiffs' wrongful death claims, the Walls decision established that Plaintiffs had no possibility of recovery against the non-diverse executive officers and thus, their joinder was fraudulent. Defendants reason that the Walls decision eliminated the stated basis for the original remand by Judge Lemmon and authorized Defendants' re-removal of the case.
Plaintiffs' Motion to Re-Remand
Plaintiffs move to re-remand this case on three grounds:
(1) since this case was commenced in the 34th JDC more than a year ago, re-removal was improper;
(2) re-removal was improper because there is no different factual basis to support a second removal; and
(3) since this case involves a survival (as well as a wrongful death) cause of action, this court's first remand ruling is as valid today as it was when made.
As discussed below, the court finds that each of these grounds is without merit.
1. The re-removal was timely .
Plaintiffs contend that the re-removal was untimely because of the limitation in 28 U.S.C. § 1446(b) which states that:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than one year after commencement of the action . (emphasis added)
This one-year limitation for removal of diversity cases was added to § 1446(b)(2), by the Judicial Improvements and Access to Justice Act of November 19, 1988. ( See Pub. Law 100-702, § 1016(b)(2)(B), 102 Stat. 4642, 4669 (1988)). The Fifth Circuit has held that the one year rule is procedural, not jurisdictional, and can be waived. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir. 1992).
Thus, courts in this and other jurisdictions have recognized that equitable considerations may justify diversity-based removals more than one year after commencement of an action. See e.g., Kinabrew v. Emco-Wheaton, Inc., 936 F. Supp. 351, 352 n. 2 (M.D. La. 1996). See also, Doe v. Kerwood, 969 F.2d 165, 169 (5th Cir. 1992) (upon considering the unanimous consent rule applicable to removals, the court recognized that it is "within the equitable power of the court to consider such exceptional circumstances on a case-by-case basis"); Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986) (equitable considerations may override out of time removals).
Here, Defendants have removed this case on both occasions within thirty days from knowledge of the grounds for removal. When Defendants first removed the case, the one-year removal delay lapsed while plaintiff's first Motion to Remand was under advisement by Judge Lemmon.
Plaintiffs filed their Petition in state court on April 8, 1997, and Defendants first removed the matter on November 3, 1997. Judge Lemmon granted Plaintiff's Motion to Remand on July 29, 1998.
When Defendants re-removed this case, it was within thirty days of the Walls decision and before any further proceedings in state court. Nothing has been done to prejudice the trial date because no trial date has been set, and no discovery or other pre-trial cut-off dates have been established. Plaintiffs themselves agreed to defer all further proceedings until after the ruling in Walls.
Quoting form the legislative history of § 1446(b), the Fifth Circuit has pointed out that "the one-year limit on removal establishes 'a means of reducing the opportunity for removal after substantial progress has been made in state court.'" New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 886 (5th Cir. 1998). Thus, here where all proceedings in state court were essentially stayed pending issuance of the Walls decision, the Congressional purpose behind the one-year limitation is not implicated.
Under these unique circumstances, the court declines to apply the one-year rule in a rigid, mechanical manner. Rather, the court exercises its equitable power to conclude that the re-removal was timely since it was done within thirty days of the Walls decision, a decision which eliminated the stated reason for the original remand by Judge Lemmon.
2. The Walls decision authorizes re-removal under 28 U.S.C. § 1446(b) .
The Fifth Circuit recognizes a defendant's right to seek subsequent removals after remand. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996). However, Plaintiffs argue that "there have been no factual changes in plaintiffs' claims since the remand and plaintiffs have been unable to locate any authority for the proposition that a subsequent legal decision by a state court on a state law issue would support a second removal petition." (Plaintiffs' Memo., p. 7).
The court rejects Plaintiffs' argument that subsequent events must involve "factual changes in plaintiffs' claims". 28 U.S.C. § 1446(b) provides that:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . (emphasis added)
Here, the Louisiana Supreme Court's decision in Walls, which eliminated the basis of the original remand, was an "order" from which the Defendants first ascertained that the case was re-removable. Compare, Doe v. American Red Cross, 14 F.3d 196 (3rd Cir. 1993) (re-removal was authorized because an intervening decision by the United States Supreme Court which resolved an unsettled area of law in Red Cross litigation was an "order" as contemplated by § 1446(b)).
Further, Defendants' re-removal which is not based upon the same grounds as the first removal, but rather based upon the intervening Walls decision, does not circumvent 28 U.S.C. § 1447(d)'s bar against review of the first remand order. Doe, 14 F.3d at 199-200.
Under Walls, the instant Plaintiffs' cause of action for the wrongful death of John Winningkoff did not accrue until the date he died, August 27, 1994. Because this date was after the 1976 amendments to the Louisiana Worker's Compensation Act's exclusivity provision which extended immunity to executive officers of the statutory employer, Plaintiffs are barred from asserting their wrongful death claims against John Winningkoff's statutory employers and their executive officers.
(a) Which Defendants are statutory employers and executive officers who must be dismissed from Plaintiffs' wrongful death claims based on Walls?
A principal who hires a contractor to perform work that is part of its trade, business, or occupation is a statutory employer of the contractor's employees. LSA-R.S. 23:1061. Here, the central question is whether the contract work performed by John Winningkoff was part of the "trade, business or occupation" of those Defendants who contend that they were his "statutory employers". Stephens v. Witco Corp., 198 F.3d 539, 541 (5th Cir. 1999).
Among those factors to be considered in determining whether a statutory employment relationship exists are:
(1) The nature of the business of the alleged principal;
(2) Whether the work was specialized;
(3) Whether the contract work was routine, customary, ordinary or usual;
(4) Whether the alleged principal customarily used his own employees to perform the work, or whether he contracted out all or most of such work;
(5) Whether the alleged principal had the equipment and personnel capable of performing the contract work;
(6) Whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work;
(7) Whether the direct employer of the claimant was an independent business enterprise who insured his own workers and included that cost in the contract; and
(8) Whether the principal was engaged in the contract work at the time of the incident.Stephens, 198 F.3d at 541, quoting, Kirkland v. Riverwood Intern. USA, Inc., 681 So.2d 329, 336-37 (La. 1996).
In their various memoranda in opposition to Plaintiffs' Motion to Re-Remand and/or their various Motions to Dismiss, the following Defendants have argued, with supporting summary judgment-type evidence, that they were the statutory employers of John Winningkoff: Shell Oil Company; Murphy Oil U.S.A., Inc./Murphy Oil Corp.; and Dow Chemical Company. Thus, these Defendants maintain that under Walls, Plaintiffs' wrongful death claims asserted against them, and their executive officers to which tort immunity is extended, must be dismissed and that any of these Defendants who were non-diverse were fraudulently joined to defeat diversity jurisdiction. (The executive officers of Shell include the non-diverse Pete Landry, and diverse Hubert Miller and Jeff Messer; the executive officers of Murphy include the non-diverse Ernest Hanberry and Melvin Schmidt, and the diverse Jim Anderson; and the executive officers of Dow include the non-diverse Mortimer Currier, Charlie Halphen and Lester Poirrier).
The Shell Defendants supported their statutory employer argument with the deposition of John Winningkoff and his co-workers. ( See Exhibit A, pp. 8-13, attached to Shell's Memo. in Support of its Motion for Reconsideration). Further, the Shell Defendants attached the Affidavit of William B. Powe, Jr. as Exhibit A to their Supplemental Memo., Doc. No. 44.
The Murphy Defendants attached to their Motion to Dismiss John Winningkoff's employment records, social security earnings, deposition testimony, and the deposition testimony of Arthur Quick and Melvin Schmidt.
The Dow Defendants attached to their Motion to Dismiss the deposition testimony of John Winningkoff, Bernard D'Arcangelo, Glenn Hoffman, Hebert Anderson and Joseph Schneck.
In their papers submitted to this court, Plaintiffs failed to controvert these Defendants' positions that they were Winningkoff's statutory employers, and Plaintiffs also "appear" to concede that Walls forecloses their wrongful death claims against these Defendants. Further, during oral argument Plaintiffs counsel conceded the foreclosure of Plaintiffs' wrongful death claims against all Defendants, but that he did not know if Shell, Murphy and Dow were Winningkoff's statutory employers, and that he was relying on Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992), to maintain Plaintiffs' survival claims.
In their single memorandum in opposition to the various Defendants' Motions to Dismiss, Plaintiffs "concede that Walls appears to foreclose their wrongful death claims." (Plaintiffs' Opp. Memo. filed on November 23, 1999, p. 2).
Further, in their opposition to the Shell Defendants' Motion for Reconsideration, the Plaintiffs made the following nebulous statements: "Defendants' Statutory Employer Status Does Not Immunize Its Executive Officers For Negligent Acts Which Occurred Prior to September 1, 1976"; "Defendants' argument that their alleged "statutory employer" status immunizes their executive officers from liability in this case is misplaced"; and "defendants (sic) reliance on their "statutory employer" argument is a red herring." (Plaintiffs' Opp. Memo. filed on December 21, 1999, pp. 2-3).
In any event, the court finds that Plaintiffs have failed to refute the summary judgment-type evidence submitted by Shell, Murphy and Dow regarding their status as statutory employers of John Winningkoff. Thus, under Walls, the following Defendants are immune from Plaintiffs' wrongful death claims: Shell Oil Company and its executive officers (including the non-diverse Pete Landry, and diverse Hubert Miller and Jeff Messer); Murphy Oil U.S.A., Inc./Murphy Oil Corp. and its executive officers (including the non-diverse Ernest Hanberry and Melvin Schmidt, and the diverse Jim Anderson); and Dow Chemical Company and its executive officers (including the non-diverse Mortimer Currier, Charlie Halphen and Lester Poirrier).
The Fifth Circuit has endorsed a summary judgment-like procedure for disposing of fraudulent joinder claims, and it has expressly authorized consideration' of evidence outside the pleadings:
In support of their removal petition, the defendants may submit affidavits and deposition transcripts; and in support of their motion for remand, the plaintiff may submit affidavits and deposition transcripts along with the factual allegations contained in the verified complaint.Carriere v. Sears, Roebuck Company, 893 F.2d 98, 100 (5th Cir. 1990), quoting, B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1980).
Further, the Fifth Circuit approved "piercing the pleadings" to determine controlling state law for purposes of resolving fraudulent joinder questions. Carriere, 893 F.2d at 100, citing, Keating v. Shell Chemical Co., 610 F.2d 328, 333 (5th Cir. 1980).
In short, this circuit treats fraudulent joinder claims as capable of summary determination. Carriere, 893 F.2d at 100. Such a procedure was followed here.
Although Plaintiffs' counsel conceded in pleadings and at oral argument, the foreclosure of Plaintiffs' wrongful death claims against all Defendants, the court cannot dismiss the wrongful death claims against the Defendants (other than Shell, Murphy and Dow) based upon statutory employer status without a showing by the other Defendants, through summary judgment evidence, that these other Defendants were indeed John Winningkoff's statutory employers.
Accordingly, the court concludes that: Plaintiffs have no possibility of recovery against these Defendants on Plaintiffs' wrongful death claims; and any of these Defendants who are non-diverse were fraudulently joined to defeat diversity jurisdiction.
(b) Do Plaintiffs have the possibility of recovery against the other non-diverse Defendants?EPEC Oil Company (formerly Tenneco Oil Company) argues in its Motion to Dismiss that the wrongful death claims against its executive officers should be dismissed based on the Walls decision. However, EPEC has not shown the court that EPEC (Tenneco) was John Winningkoff's statutory employer.
Plaintiffs fail to allege or argue that these Defendants are not entitled to tort immunity because they committed an intentional act.
The court does note that in their single memorandum in opposition to all of the Defendants' Motions to Dismiss, Plaintiffs do not argue that EPEC was not John Winningkoff's statutory employer and they actually "concede that Walls appears to foreclose their wrongful death claims." (Opposition, p. 2). However, in the absence of substantive support from EPEC, the court cannot conclude as a matter of law that EPEC (Tenneco) was John Winningkoff's statutory employer based merely on Plaintiffs' nebulous concession.
The court has also reviewed the original record in this matter (generated upon the first removal), No. 97-3452 S, and find that none of EPEC's motions filed in that case make and support the argument that EPEC (Tenneco) was John Winningkoff's statutory employer. ( See No. 97-3452 S, Doc. No. 23, EPEC's Motion to Dismiss (re: punitive damages); Doc. No. 32, EPEC's Amended and Supplemented Motion to Dismiss (re: survival damages and attorney's fees); Doc. No. 48, EPEC's Opposition to Plaintiff's [First] Motion to Remand, making the executive officer immunity argument, but offering no evidence that EPEC (Tenneco) was Winningkoff's statutory employer; Doc. No. 56, EPEC's Supplemental Memorandum in Opposition to Plaintiff's [First] Motion to Remand).
Nevertheless, in its opposition to Plaintiff's Motion to Remand, EPEC argues that none of its non-diverse executive officers (Larry Hess, Thomas E. Megison and Ray Brooks) were assigned the responsibilities attributed to them by the Plaintiffs in their Petition. EPEC supports this argument with the Affidavits of each of these executive officers, and Plaintiffs have failed to refute these Affidavits with any type of summary judgment type evidence. ( See Affidavits of Hess, Megison and Brooks attached to EPEC's Opposition Memo.). See, Canter v. Koehring, 283 So.2d 716 (La. 1973), Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994) (applying the Canter criteria, the court found that a corporate officer's liability turned on factual issues such as whether he or others were delegated with due care the responsibility of safe maintenance and operation, and whether he was aware, or should have been aware, of a risk of harm and failed to respond to that risk in the manner in which a reasonably prudent corporate officer or employee would respond in similar circumstances); Cf., Brown v. Toyota Motor Sales, U.S.A., Inc. 1999 WL 983828 (E.D. La. 1999) (Barbier, J.) (applying Canter to find that non-diverse defendants were not fraudulently joined).
EPEC also attaches the Affidavit of its remaining executive officer, Dean Blackwell, who is named as a Defendant in this matter. In his Affidavit, Blackwell only attests that he is a resident and domiciliary of Texas; unlike Hess, Megison and Brooks, he does not attest to his responsibilities as an executive officer.
While superseded by the 1976 amendment to LSA-R.S. 23:1032 to the extent that executive officers of a plaintiff's direct or statutory employer cannot be individually liable for the plaintiff's injuries, Canter is still applicable in determining when an executive officer of merely a premise owner is individually liable for injuries to a third person.
Thus, while the court is unable to conclude from the record that EPEC (Tenneco) was John Winningkoff's statutory employer and that its executive officers enjoy immunity from Plaintiffs' wrongful death claims under Walls, the court does conclude that Plaintiffs' claims against EPEC's non-diverse executive officers must nevertheless be dismissed because as executive officers of a premise owner, Hess, Megison and Brooks did not owe John Winningkoff the type of duty sued upon in this suit. Accordingly, Plaintiffs' have no possibility of recovery from these non-diverse executive officers.
Finally, with regard to the last non-diverse Defendant, Murphy Exploration Production Company, Plaintiffs allege that Murphy Exploration is liable for damages as an owner of premises where John Winningkoff was allegedly exposed to toxic chemicals. However, John Winningkoff's union and employment records, and the Affidavit of James Baine (in-house counsel for Murphy Oil Corporation) reflect that he did not work for Murphy Exploration or at any facility owned by Murphy Exploration. ( See Exhibits attached to Murphy's memorandum in Opposition to Plaintiffs' Motion to Re-Remand).
Plaintiffs have failed to refute this argument and summary judgment type evidence, and Plaintiffs do not even raise the citizenship of Murphy Exploration as a ground for re-remand in its Motion to Re-Remand. Thus, the court concludes that Plaintiffs have no possibility of recovery against Murphy Exploration and Plaintiffs claims against Murphy Exploration should be dismissed.
3. Plaintiffs cannot obtain remand by relying on their survival claims .
Plaintiffs maintain that the Walls case does not foreclose their potential for recovery on their survival claims. However, the court finds that Plaintiffs' survival claims are untimely.
Louisiana Civil Code Article 2315.1(A) provides that:
If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children. . . .
La.Civ. Code Art. 2315.1(A).
"Since the article which creates the survival action also provides the time period within which the right is to be executed, the time period is one of peremption rather than prescription." McClendon v. State, Through Dept. of Corrections, 357 So.2d 1218, 1233 (La.App. 1st Cir. 1978). Under Louisiana law, peremptive periods may not be interrupted or suspended. Ayo v. Johns-Mansville Sales Corp., 771 F.2d 902, 907-08 (5th Cir. 1985). See also, Woods v. Monroe Manor Nursing Homes, 530 So.2d 1221, 1222-23 (La.App. 2nd Cir. 1988).
McClendon and Ayo predate the 1986 enactment of Article 2315.1. However, Act 1986, No. 211 adding Article 2315.3 (which was later redesignated Article 2315.1) merely separated out the survival action from the general tort provision found in Article 2315. It did not change the law, thus the basis for the "peremption" holdings in McClendon and Ayo remains.
Here, John Winningkoff died on August 27, 1994, and Plaintiffs filed their Petition for Damages asserting their survival claims nearly three years later on April 8, 1997. Plaintiffs argue that prescription of their survival claims (asserted under Louisiana Civil Code Article 2315.1) in this suit was interrupted when Plaintiffs amended their Texas lawsuit on July 10, 1995 seeking to be substituted on John Winningkoff's survival claim (asserted under the Texas survival statute) and to assert their own claim for his wrongful death.
However, this argument is misplaced because Louisiana's survival statute sets forth a peremptive period which may not be interrupted. Simply put, because Plaintiffs survival claim under Louisiana Civil Code Article 2315.1 was not asserted within one year of John Winningkoff's death, it could not be "kept alive" by Plaintiffs' survival claim which was asserted under the Texas survival statute in the Plaintiffs' Texas lawsuit.
Plaintiffs reliance on Taylor v. Mutual Ins. Co., 579 So.2d 443 (1991) is misplaced. In Taylor, a Louisiana resident was involved in an automobile accident in Arkansas with a Texas driver on July 22, 1985. The Louisiana plaintiff timely sued the Texas tortfeasor under Arkansas law in an Arkansas federal court on May 11, 1987. During the pendency of the Arkansas suit, the plaintiff filed a suit in Louisiana against his uninsured motorist carrier on April 18, 1988. The Louisiana Supreme Court found that the Louisiana action had not "prescribed" because it was filed during an interruption of prescription created by the Arkansas suit against the tortfeasor with whom the uninsured motorist carrier was solidarily bound.
However, while Taylor involves a period of prescription, the Plaintiffs' survival claims in this suit involve a period of peremption, which "may not be renounced, interrupted, or suspended." Louisiana Civil Code Article 3461.
Further, Plaintiffs admit that the non-diverse individuals sued as executive officers were not named in the Texas suit. While Plaintiffs argue that interruption of prescription against one joint tortfeasor is effective against all tortfeasors, again in this case Plaintiffs's survival claims must meet the peremptive deadline of Article 2315.1. And they do not. Thus, Plaintiffs' survival claims are time-barred and must be dismissed.
Because the court finds that Plaintiffs' survival claims are perempted, the court need not reach the issue of whether or not Walls forecloses Plaintiffs' survival claims, or whether or not the survival claims are governed by the law in effect prior to September 1976.
Defendants' Motions to Dismiss, et al
In their single memorandum in opposition to the various Motion to Dismiss, Plaintiffs state that they " do not oppose defendant's (sic) motions to dismiss their claims for punitive damages, loss of consortium and attorney's fees. . . ." (Plaintiffs' Opp. Memo., p. 2). Thus, the court will dismiss these claims against all Defendants.However, Plaintiffs do oppose dismissal of their survival claims and Monsanto's motion for a more definite statement, and they request discovery on the issue of the status of the Dow executive officers. (Id.). For reasons stated above in ruling on Plaintiffs' Motion to Re-Remand, the court finds that Plaintiffs' survival actions are perempted and Defendants' Motions to Dismiss Plaintiffs' survival claims should be granted.
Regarding other arguments made individually by the various Defendants, the court makes the following findings and conclusions:
(1) John Winningkoff was the statutory employee of Murphy Oil U.S.A., Inc./Murphy Oil Corp. (Murphy), and thus Murphy and its executive officers are immune from the wrongful death claims asserted in this litigation. Walls v. American Optical Corp., 740 So.2d 1262 (La. 1999); LSA-R.S. 23:1032; LSA-R.S. 23:1061; Stephens v. Witco Corp., 198 F.3d 539 (5th Cir. 1999); Harris v. Murphy Oil U.S.A., Inc., 980 F.2d 991 (5th Cir. 1992); Thompson v. Georgia Pacific Corp., 993 F.2d 1166 (5th Cir. 1993); Kirkland v. Riverwood Int'l U.S.A., Inc., 681 So.2d 329 (La. 1996);
(2) Similarly, John Winningkoff was the statutory employee of the Dow Chemical Company, and thus Dow and its executive officers are immune from the wrongful death claims asserted in this litigation;
(3) Similarly, John Winningkoff was the statutory employee of Shell Oil Company, and thus Shell and its executive officers are immune from the wrongful death claims asserted in this litigation;
(4) Monsanto Company's request for a more definite statement should be denied because plaintiff's allegations (as stated in the Petition) against Monsanto sufficiently comply with Federal Rule of Civil procedure 8. Further, Monsanto is no virgin to this controversy as it actively participated in discovery (including 36 depositions) in the Texas lawsuit. Thus, Monsanto should be able to properly frame a responsive pleading;
(5) Similarly, American Cyanamid's alternative motion for a more definite statement should be denied; and
(6) In a Supplemental Memorandum filed on February 2, 2000 (Doc. No. 44), Defendant Chevron U.S.A. Inc. (who is diverse) argues that "it is not necessary to reach the statutory employer issue because Chevron U.S.A. Inc. . . ., at no time owned or operated the Chevron facility where the decedent, John Winningkoff, allegedly worked." In support of this argument, Chevron attached the deposition testimony of John Winningkoff and the Affidavit of H.P Walker, Assistant Secretary of Chevron U.S.A. Inc. and the Assistant Secretary of Chevron Chemical Company L.L.C. Thus, Chevron U.S.A. Inc. requests that the claims against it be dismissed.
Plaintiffs did not file an opposition to Chevron U.S.A's request. Thus, the court DISMISSES Chevron U.S.A. Inc.; however, the court will allow Plaintiffs to amend their Complaint to name Chevron Chemical Company L.L.C.
The court treats Murphy's Motion as a Motion for Summary Judgment on the issue of statutory employee. Having considered the uncontroverted evidence submitted with this motion, the court concludes that there are no genuine issues of material fact and Murphy is entitled to Judgment as a matter of law on this issue.
The court also treats Dow's Motion as a Motion for Summary Judgment regarding the issue of statutory employee. Having considered the uncontroverted evidence submitted with this motion, the court concludes that there are no genuine issues of material fact and Dow is entitled to Judgment as a matter of law on this issue.
Further, while Plaintiffs made a bland request for "discovery on the issue of the status of the Dow executive officers" (Plaintiffs' Opp. at 2), the court finds that such discovery would only be pertinent to refute Dow's alternative argument that Currier, Halphen and Poirrier were not executive officers subject to "executive officer" liability under Ford, 32 F.3d 931 and Canter, 283 So.2d 716.
However, the court has found, based upon the unrefuted summary judgment type evidence submitted by Dow and the concessions made by Plaintiffs' counsel in pleadings and at oral argument, that Dow was John Winningkoff's statutory employer and that under Walls, Dow and its executive officers (Currier, Halphen and Poirrier) are immune from Plaintiffs' wrongful death claims. Thus, Plaintiff's requested discovery involving Dow's executive officers (under a premise liability/executive officer theory) is moot.
Conclusion
For the reasons set forth above,IT IS ORDERED that Plaintiffs' Motion to Re-Remand be and is hereby DENIED because the court finds that there is no possibility that Plaintiffs may recover from the non-diverse Defendants. The non-diverse Defendants were fraudulently joined in this matter to defeat diversity jurisdiction; thus, the court DISMISSES all non-diverse Defendants (Murphy Exploration Production Company, Pete Landry, Ernest Hanberry, Melvin Schmidt, Larry Hess, Thomas E. Megison, Ray Brooks, Mortimer Currier, Charlie Halphen and Lester Porrier) and exercises diversity jurisdiction over this matter;
IT IS FURTHER ORDERED that Defendants' Motions to Dismiss be and are hereby GRANTED to the following extent:
(1) Plaintiffs' wrongful death claims against the the statutory employers of John Winningkoff (Shell Oil Company, Murphy Oil U.S.A., Inc./Murphy Oil Corp., and Dow Chemical Company) and their executive officers, both non-diverse and diverse, (Shell — Pete Landry, Jeff Messer, Hubert Miller; Murphy — Ernest Hanberry, Melvin Schmidt, James Anderson; Dow — Mortimer Currier, Charlie Halphen, Lester Poirrier) are dismissed based on the Walls decision;
(2) the EPEC/Tenneco non-diverse executive officers (Ray Brooks, Ed Megison and Larry Hess) are DISMISSED from this litigation based on no duty owed to Plaintiffs;
(3) Plaintiffs' survival claims asserted against all Defendants are DISMISSED as perempted;
(4) Plaintiffs' claims against all Defendants for punitive damages, loss of consortium and attorney's fees are DISMISSED as unopposed;IT IS FURTHER ORDERED that Monsanto's Motion for a More Definite Statement be and is hereby DENIED.
Counsel for the Shell Defendants represents that Defendant E.L. "Ernie" Martin has never been served with citation and process in this proceeding. Thus, the court DISMISSES this Defendant for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
EPEC's remaining executive officer who is sued in this case is Dean Blackwell, who is diverse. Nothing herein prejudices the right of EPEC and Defendant Blackwell to move for summary judgment if EPEC can substantiate that it was John Winningkoff's statutory employer or if Dean Blackwell can substantiate that he did not owe Plaintiffs the duties upon which they have sued him.
IT IS FURTHER ORDERED that American Cyanamid's alternative Motion for a More Definite Statement be and is hereby DENIED.
IT IS FURTHER ORDERED that Chevron U.S.A. Inc.'s request to be dismissed (as contained in Chevron's Supplemental Memorandum, Doc. No. 44) be and is hereby GRANTED, but Plaintiffs will be allowed to amend their Complaint to name Chevron Chemical Company L.L.C.