Opinion
CIVIL ACTION NO: 02-3166 SECTION "T" (3)
March 26, 2003
ORDER AND REASONS
Before the Court is plaintiffs' Motion for Leave to Supplement and Amend Original Petition [Rec. Doc. # 21], which is considered in tandem with substantially similar motions for leave to amend to add non-diverse defendants filed in three other related cases, to wit: 1) Kieta Alexander, et al v. Southern Norfolk Southern Railway Systems, et al, Dkt. # 02-3134 "T"(3); 2) Larry A. Cager, et al v. Norfolk Southern Railway Systems, et al, Dkt. #02-3167 "T"(3); and 3) Michael Noble, et al v. Norfolk Southern Corporation, et al Dkt. # 02-3233 "T"(3). The removing defendants in all four lawsuits are identical and together they jointly filed an opposition memorandum in each of the four related but not consolidated cases arising from the incident involving the alleged leak of toxic chemical vapors railroad tank cars on September 18, 2001. The motions were the subject of an oral hearing conducted before the undersigned on Wednesday, March 12, 2003 at 11:00 a.m. The Court, having considered the memoranda filed, the Court record, the argument of counsel and the applicable law, GRANTS the plaintiffs' Motion to Amend to Add Non-Diverse Defendants.
The defendants include Norfolk Southern Railway Company ("NRSC") (improperly named "Norfolk Southern Corporation", "Southern Norfolk", and/or "Norfolk Southern Railroad Company"), Celanese, Ltd., Noveon, Inc., The Commercial Traffic Company, and Union Tank Car Company. In addition, the plaintiff groups in Cager, et al v. Norfolk Southern, Dkt # 02-3167 "T"(3) and Noble, et al v. Norfolk Southern, Dkt. #02-3233 "T"(3) name non-diverse individual employees of NRSC, Ron Bible and David Patterson, allegedly citizens of the State of Louisiana.
I. BACKGROUND
Plaintiffs' claims in the four lawsuits arise out of an incident which occurred on September 18, 2002, involving the alleged leak of toxic chemical vapors from tank cars located on a stretch of track in Norfolk Southern's train yard near 2300 N. Broad Street in New Orleans, Louisiana. Union Tank Cars designated UTLX 202515 and UTLX 202365 bearing ethyl acrylate were being transported by Norfolk Southern Railway Company ("NRSC") en route from Atlanta, Georgia to Bayport, Texas. Plaintiffs allege that the tank cars were improperly loaded, inspected, and/or sealed. Plaintiffs seek to amend their pleadings to add the following non-diverse defendants: (1) The City of New Orleans, through its agencies; (2) the New Orleans Police Department; (3) the New Orleans Fire Department; (4) New Orleans Emergency Medical Services; (5) the Louisiana State Police; (6) Ron Bible, an employee of NRSC, on the scene at the time of the incident, who allegedly participated in maintaining the perimeter so as to limit the public's contact with the toxic chemical vapors. Essentially, the plaintiffs claim that, having assumed the duty to maintain the perimeter and limit the contact of various individuals at or near the scene with the potentially harmful chemical, the non-diverse defendants participating in the investigation and patrol of the scene of the incident performed their duties recklessly or negligently, failed to evacuate the immediate vicinity and failed to divert vehicular and pedestrian traffic out of harms way.
New Orleans Police Department (NOPD) Officer Gregory Clay was on patrol in the area of the 2300 block of N. Broad St. on Tuesday September 18, 2001 at approximately 1600 hours, when he observed a large crowd of pedestrians gathering and holding their noses. Upon exiting his patrol car, he noted the strong smell of chlorine type odor. The New Orleans Fire Department ("NOFD") was already at the scene when NOPD Officer Clay exited his patrol car. Norfolk Southern had been contacted to secure the stretch of tracks. The NOFD Hazardous Materials Team was able to tighten valves, vapor plugs and liquid plugs. NRSC's representative Ron Bible provided the shipping documents for both railcars. New Orleans Health Department EMS Team was on the scene, handling the medical complaints of residents. According to the NOFD Form 41 Hazardous Materials Incident Report, approximately 20 individuals complained of various ailments, all were treated on the scene by EMS personnel and there was no report of transport of individuals to the hospital. The Louisiana Department of Environmental Quality (DEQ) representative responding to the incident was Luke Perrineo. Also on the scene responding to the emergency was Louisiana State Police Hazardous Materials Officer Arrid Hansell, who cleared the railcars for further transport. Thereafter, the incident was secured and all units responding to the incident were released by 1733 hours.
The plaintiffs claim that the non-diverse defendants negligence or reckless performance of their duties exacerbated their injuries by allowing for their increased exposure to the allegedly toxic vapors. In particular, the plaintiffs claim that the non-diverse entities and individuals were negligent in the following respects: (1) failing to secure the perimeter and the I-610 which passed over the scene of the chemical vapor leak so as to prevent the plaintiffs from coming into contact with hazardous fumes; (2) allowing pedestrians to gather on scene and to increase their risk of exposure and injury; (3) failing to warn of the risk of exposure to toxic chemical vapors; (4) failing to divert pedestrians and vehicular traffic via alternate routes out of harms way; and (5) such other acts that may be determined through discovery.
The proposed joinder of all of the aforesaid non-diverse defendants also forms the basis of the plaintiffs' motions to remand which shall be noticed for hearing before the district judge, along with any appeal from this Court's ruling on the motions seeking leave to amend. For their part, defendants contend that the plaintiffs have failed to state a colorable claim against the non-diverse defendants. More to the point, defendants argue that the sole purpose for joining the non-diverse individual Ron Bible, the Louisiana State Police and City of New Orleans and its various agencies as defendants is to destroy diversity, the basis of the Court's removal jurisdiction. Defendants argue that "the Cager and Noble plaintiffs' improper motive of fraudulent joinder is exposed by the fact that once they learned that Norfolk Southern's employee Patterson was in fact a diverse party, they abandoned any pretense of articulating a claim against him. . . ." See Defendants' Memorandum in Opposition at p. 19-20. Finally, the defendants contend that the Municipal and State emergency response agencies are immune from liability under the discretionary acts doctrine and the Eleventh Amendment, respectively.
II. DISCUSSION A. Fraudulent Joinder and 28 U.S.C. § 1447 (e)
Federal Rule of Civil Procedure 15(a) requires that leave to amend "shall be freely given where justice so requires." The Fifth Circuit closely adheres to this rule. See, e.g., Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996); Robertson v. Plano City of Texas, 70 F.3d 21, 22 (5th Cir. 1995).
In Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), the Fifth Circuit said:
The denial of a Rule 15(a) motion to amend is reviewed for abuse of discretion. Likewise, whether to grant such motion is committed to the sound discretion of the district court, but, that discretion is limited by Rule 15(a), which states that leave shall be given when justice so requires. In sum, the motion should not be denied unless there is substantial reason to do so.Id. at 318.
28 U.S.C. § 1447 (e) provides that "[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." Id. The Fifth Circuit has advised district courts to closely scrutinize an amendment which would destroy subject matter jurisdiction and that justice requires the consideration of a number of factors to determine if the amendment should be permitted. Hensgens v. Deere Co., 833 F.2d 1179, 1182 (2th Cir. 1987), cert. denied, 493 U.S. 51 (1989); see also Doleac v. Michalson, 264 F.3d 470, 474 (5th Cir. 2001) and Cobb v. Delta Exports, Incorporated, 186 F.3d 675, 677 (5th Cir. 1999). In this situation, the federal district judge has two options; the Court must either deny joinder or permit joinder and remand the action to state court. 28 U.S.C. § 1447 (e). However, a court should never grant a request to join a party "against whom recovery is not really possible and whose joinder would destroy subject matter jurisdiction." Cobb, 186 F.3d at 677.
In Hensgens, the Fifth Circuit identified the criteria to consider in balancing the original defendants' interest in maintaining a federal forum against the plaintiffs interest in avoiding multiple and parallel litigation. 833 F.2d at 1182. The four factors are: (1) the extent to which joinder of the non-diverse defendant is sought to defeat diversity; (2) whether the plaintiff has been dilatory in seeking to add the party; (3) whether the plaintiff will be significantly injured if the requested amendment is not allowed; and (4) any other factor bearing on the equities, such as the futility of the amendment. Id.
As long as the plaintiff states a valid claim against the new defendants, the principal purpose is not to destroy diversity jurisdiction. See Jade Marine, Inc. v. Detroit Diesel Corporation, 2002 WL 31886726, at * 2 (E.D. La.) (granting motion to amend to add non-diverse salesman, noting that Louisiana recognizes a cause of action for intentional fraudulent misrepresentation); Herzog v. Johns Manville Products Corp., 2002 WL 31556352, at * 2 (E.D. La.) (Fallon J.); Biename v. Kitzman, 2000 WL 381932, at * 2 (E.D. La.); see also George v. Home Depot USA, Inc., 2001 WL 766967 (E.D. La.) (Porteous, J.) (a case involving allegations of negligence against the non-diverse employees other than as agents of their employer, Home Depot).
In George, the plaintiff alleged alternate theories of liability, first that the non-diverse parties were negligent as drivers of Home Depot's truck, or secondly, that they were negligent in their attempt to extricate the plaintiff from her vehicle. Id. at * 5.
Essentially, the defendants contend that: (1) non-diverse defendant Bible was "fraudulently joined" by the plaintiff groups in Cager, et al v. Norfolk Southern, Dkt # 02-3167 "T" and Noble, et al v. Norfolk Southern, Dkt. #02-3233 "T"; and (2) that the plaintiff groups in Alexander, et al v. Norfolk Southern, Dkt. #02-3134 "T" and Colin, et al v. Norfolk Southern, Dkt. #02-3166 "T" fail to state a colorable claim against Bible, but rather seek to join him for the sole purpose of destroying subject matter jurisdiction. The standard for determining "fraudulent joinder" is well-established in the Fifth Circuit i.e., whether there is even a possibility of recovery against a non-diverse defendant.
In Badon v. R J R Nabisco, Inc., 224 F.3d 382 (5th Cir. 2000), the Court restated the applicable law, noting that:
[W]e have consistently recognized that diversity removal may be based on evidence outside of the pleadings to establish that the plaintif has no possibility of recovery on the claim or claims asserted against the named resident defendant and that hence the defendant is fraudulently joined and his citizenship must be disregarded for jurisdictional purposes. Thus it is clear that although a state Court complaint on its face may allege a state law claim against an in-state defendant that does not preclude it from being removable (by a non-resident defendant), when filed, if the plaintiffs 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 that claim against the in-state defendant.Id. at 390 (citations omitted and emphasis added). In Burden v. Dynamics Corp., 60 F.3d 213 (5th Cir. 1995), the Fifth Circuit succinctly stated: "If the plaintiff has any possibility of recovery under state law against the party whose joinder is questioned, then the joinder is not fraudulent in fact or in law." Id. at 216 (emphasis added). The focus of the inquiry is whether there is "any possibility of recovery under state law" or "a reasonable basis for predicting that plaintiff might establish liability on that claim." Burden v. Dynamics, 60 F.3d at 216.
The burden upon the removing party is indeed a heavy one:
If, having assumed all of the facts set forth by the plaintiff to be true and having resolved all uncertainties as to the state substantive law against the defendants, the district Court should find that there is no possibility of a valid cause of action being set forth against the in-state defendant(s), only then can it be said that there has been a "fraudulent joinder." However, if there is even a possibility that a state Court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff, then the federal Court must find that the in-state defendant(s) have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state Courts.B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549-50 (5th Cir. 1981) (citation omitted).
In Brown v. Toyota Motor Sales, U.S.A., Inc., 1999 WL 983828 (E.D. La.) (Barbier, J.), the court considered the joinder of employee salesmen and whether they had a duty to inspect the defective vehicle and its safety equipment. Suit was originally filed against the automobile manufacturer, the dealership and three non-diverse salespersons. The district judge pointed out that, once the a person undertakes a task which he has no duty to perform, he must perform the task in a reasonable and prudent manner. Id. at * 2. The Brown court highlighted the Louisiana Supreme Court's holding in Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991), i.e., that the particular facts and circumstances of each individual case determine the extent of the duty and the resulting degree of care necessary to fulfill that duty. Brown, 1999 WL 983828, at * 2 (citing Socorro, supra).
Removing defendants in the cases at bar argue that, under well-settled Louisiana law, employees of a company are not individually liable for negligence during the course and scope of their employment. The court in Brown, supra, rejected that argument as a "gross oversimplification of the general legal principal that personal liability may not be premised upon an employee's general responsibility in the course and scope of his or her employment." Id. Judge Barbier explained:
See also Johnson v. Missouri Pacific Railroad Co., 792 So.2d 892, 893 (La.App. 3rd Cir. 2001) (suit filed against Union Pacific Railroad and the train engineer Nathan Krig prosecuted through trial on the merits); Lejeune v. Union Pacific Railroad, 712 So.2d 491, 492 (La. 1998) (Although both were ultimately exonerated, plaintiff prosecuted his claims of negligence against both the railroad and the train's engineer Jack Buckner.).
[T]here are clearly instances under Louisiana law when an employee may be held liable. For example, if the employee had a personal duty to the plaintiff, the breach of which causes damage, the employee may be individually liable. Canter v. Koehring Co., 283 So.2d 716 (La. 1973) (superseded by statute on other grounds). Canter requires that the employer delegate a duty of care to the employee and that the employee breach this duty through his own personal fault. Id. at 721. It follows that if an employee voluntarily assumes this duty and then breaches the duty through his personal fault, that liability may result.
Brown, 1999 WL 983828, at * 2.
Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1St Cir.), cert. denied, 386 So.2d 359 (La. 1980) (acknowledging that LA. REV. STAT. § 23:1032 supersedes the Canter rule insofar as it extends to a duty owed to a co-employee).
Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1St Cir.), cert. denied, 386 So.2d 359 (La. 1980) (acknowledging that LA. REV. STAT. § 23:1032 supersedes the Canter rule insofar as it extends to a duty owed to a co-employee).
See also Harang v. Taylor Machine Works, Inc., 1995 WL 33092 (E.D. La.) (Berrigan, J.) (finding the amendment not aimed at defeating federal jurisdiction, where the plaintiff has shown facts that would indicate the non-diverse defendants may have been involved in the maintenance of the forklift which allegedly caused the plaintiffs injuries).
B. Plaintiffs' Claims against Non-Diverse Defendant/Potential Defendant Bible
Regarding the facts and circumstances of this particular case, discovery has not even commenced in earnest and the Court is faced with affidavits which do not obviate the possibility of recovery as against Ron Bible under Louisiana law. At this stage of the proceedings, the Court simply cannot say that there is no possibility that the Cager and Noble plaintiffs can prevail on their state law claims against non-diverse defendant Ron Bible or that the Alexander and Colin plaintiffs were either dilatory or have failed to state a colorable claim against Bible.
Bible's affidavit [Exhibit "A" to Defendants' Joint Memorandum in Opposition to Motion to Amend] states that on September 18, 2001 he responded to the incident allegedly involving leaking ethyl acrylate from the railroad tank cars situated on railroad track near the 2300 block of North Broad Street in New Orleans, La., arrived on scene at approximately 4:45, consulted with the NOFD personnel upon his arrival, then established and maintained a patrol perimeter in the vicinity of the incident.
The most recent statement of the Fifth Circuit in Travis v. Irby, Illinois Central Railroad Co., and John Does, 2003 WL 23102 (5th Cir. (Miss.)) decided January 17, 2003 gives the Court reason to seriously consider the premises of the instant motions very carefully. Regarding the issue of "fraudulent joinder," the Fifth Circuit observed that the burden of persuasion was indeed a heavy one and stated: "To establish that a non-diverse defendant has been fraudulently joined for the purpose of defeating diversity jurisdiction, the removing party must prove either that there has been actual fraud in the pleading of jurisdictional facts or that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against that party in state court." Travis v. Irby, 2003 WL 23102 at ** 1-2 ("Stated differently, our task is to determine whether there is any reasonable basis for predicting that Travis might be able to establish Irby's liability for negligence as pleaded under Mississippi law."). Reversing the district court, Judge Davis explained:
[T]he district court erred in concluding that Travis had no reasonable basis of establishing Irby's liability for negligence. Clearly, under Mississippi law, Irby owed a duty to exercise reasonable care to avoid injuring Michael Travis at the railroad crossing.
Id., at *3. Just as Mississippi law did not foreclose on personal liability on Irby's part for negligent acts committed within the scope of his employment for Illinois Central, in the case at bar, Louisiana law does not preclude personal liability for negligence in form of acts or omissions allegedly perpetrated by Bible either in the performance of his duty or assumed duties at the site of the incident. Where, as here, it appears on this record that it was Bible's duty to maintain the perimeter, whether in the course and scope of his employment or because he assumed the duty, such duty was owed to and performed to ensure the safety of individuals in the vicinity of the incident to prevent them from coming into contact with potentially harmful chemical vapors. There is no fraud in the Cager and Noble plaintiffs' pleading because Bible was and is in fact a resident of Louisiana. Moreover, the defendants have not demonstrated that Bible cannot be found liable under Louisiana law based on the plaintiffs' allegations of negligence.
In Travis, the plaintiff alleged that the defendants were liable for failing to make proper and timely application of the brakes, failing to keep a proper lookout, failing to the adopt and enforce adequate policies and procedures relating to the train operating under similar circumstances, failing to take proper precautions under the circumstances existing, failing to properly mark, warn of, and restrict access to its crossing under dangerous circumstances where the defendants knew or should have known that the crossing was unreasonably dangerous, and any other acts or omissions of negligence which will be shown at trial on the merits. 2003 WL 23102, at *1.
In Travis, the plaintiff alleged that the defendants were liable for failing to make proper and timely application of the brakes, failing to keep a proper lookout, failing to the adopt and enforce adequate policies and procedures relating to the train operating under similar circumstances, failing to take proper precautions under the circumstances existing, failing to properly mark, warn of, and restrict access to its crossing under dangerous circumstances where the defendants knew or should have known that the crossing was unreasonably dangerous, and any other acts or omissions of negligence which will be shown at trial on the merits. 2003 WL 23102, at *1.
"Whereas `fraudulent joinder' is properly addressed by the federal District Court, the issue of `misjoinder' is more properly addressed to the state District Court." See, e. g., Alman v. Glaxosmithkline Corp., 2002 WL 465202 * 3 (E. D. La.) (Engelhardt, J.).
As to the second factor, the Court is not persuaded by the defendants' arguments that the plaintiffs were dilatory in seeking to amend their complaints to add defendants, non-diverse or otherwise. These related consolidated cases were only recently filed in Civil District Court for the Parish of Orleans and removed to this Court. No scheduling order has been entered in any one of the cases and discovery has yet to commence. Temporal proximity between removal of this action and the plaintiffs' recent efforts to join additional non-diverse defendants does not suggest defeating subject matter jurisdiction as the true purpose, where, as here, non-diverse defendant Ron Bible was named in two of the removed suits at the outset. Moreover, more recent affidavits, including that of Bible's, provided some key information which fueled the impetus to seek leave to amend to add the claims against him and other non-diverse defendants.
As to the third Hensgens factor, the plaintiffs' arguments that they will suffer prejudice if their motions to amend to add non-diverse parties have merit. In addition to suffering "the `empty chair' defense," they will be required to bear the added expense of parallel federal and state court proceedings. Filing duplicate proceedings in state court would prove inefficient and a waste of judicial resources in a case such as this, where plaintiffs' claim that the fault on the part of proposed non-diverse defendants and the original defendants combined to jointly cause the damages. Skepticism as to whether the plaintiffs will prosecute and succeed in state court may be tested at the outset in the state court proceeding via motion for summary judgment or exceptions of no cause or right of action.
See Reply filed on behalf of the Alexander Group of Plaintiffs, at pp. 6-7 (noting that every effort has been made by the Alexander plaintiffs to preserve their claims against the non-diverse defendants and fend off the serious prejudice that would enure to their detriment should they not be permitted to amend their Complaint).
C. Eleventh Amendment Immunity
Turning to the defendants' claim of Eleventh Amendment Immunity against the state of Louisiana, such immunity precludes actions brought against a state in federal court by its own citizens or citizens of another state, absent consent, waiver or abrogation of the state's sovereign immunity. See U.S. CONST. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662-62 (1974); Hans v. Louisiana, 134 U.S. 1, 13-16 (1890). Because a state agency such as the Louisiana State Police ("LSP") is in essence an alter ego of the State of Louisiana, it is also immune from suit in this Court. See Tillman v. CSX Transportation, Inc., 929 F.2d 1023, 1025 n. 1 (5th Cir 1991). Plaintiffs do not dispute this, but contend that the proper remedy is to remand the entire case to state court under 28 U.S.C. § 1447 (e). The Court notes that the rule of the Fifth Circuit is that claims barred by sovereign immunity are properly dismissed with out prejudice for want of subject matter jurisdiction under Rule 12(b)(1), rather than with prejudice for failure state a claim under Rule 12(b)(6). In summary, defendants are correct in that this Court would have no subject matter jurisdiction over the plaintiffs' claims against the LSP, an arm of the State. However, that does not mean that the plaintiffs' have either failed to state a colorable claim or that they have no possibility of recovering as against it in state court.
See United States v. Texas Tech University, 171 F.3d 279, 286 n. 9 (5th Cir. 1999) (citing Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996) for the proposition that claims barred by Eleventh Amendment sovereign immunity can be dismissed only under Rule 12(b)(1) and not with prejudice.)
See, e.g., Brown v. Foti, 1996 WL 271639 (E.D. La.) (Vance J.). In Brown, the district judge noted that even if it resulted in remand, there were clear grounds to permit the amendment adding non-diverse defendants. The court observed that the plaintiffs would have had to try the case twice, emphasizing prejudice in the form of attendant additional expense, the waste of judicial resources and the risk of inconsistent results. The Brown court concluded that judicial economy would be served by having the case tried once in a single forum and held that remand would accomplish that result, citing Hensgen v. Deere, 833 F.2d at 1182. Id., at ** 4-5.
D. Immunity for Discretionary Functions
The Louisiana Supreme Court's discussion of the Public Duty Doctrine in Hardy v. Bowie, 744 So.2d 606 (La. 1999) is noteworthy. At the outset, the court noted two recognized exceptions to the doctrine, to wit: (1) where the statute or ordinance setting forth the duty indicates by its language that the duty is designed to protect a particular class of individuals; and (2) where the officer's general duty has been transformed into duty owed to an individual through closeness or proximity in time. Id. at 611. The Hardy court credited the appellate court in that it had identified a crucial issue (i.e., whether the police officers owed a duty to Hardy), but reversed the lower court's ruling affirming summary judgment, finding that the court's reliance on the public duty doctrine was misplaced. The Louisiana Supreme Court explained:
The public duty doctrine has never been adopted by this Court, and we have criticized and rejected it as a categorical rule. See Stewart v. Schmieder, supra and Fowler v. Roberts, 556 So.2d 1 (La. 1989). In Stewart, we held that "under the jurisprudence of the state, the mere fact that a duty is of a public nature, and benefits the general public, does not require a conclusion that the city cannot be liable for the breach of duty." 386 So.2d at 1358. In Fowler, we held that the rejection of the public duty doctrine in Stewart did not mean that a governmental body will be liable any time a person's injury could have been prevented by a public official's proper performance of his duty. "The existence of a duty and the scope of liability resulting from a breach of that duty must be decided according to the facts and circumstances of the particular case." 556 So.2d at 7. Accordingly, cases involving allegations of liability on the part of police officers or other employees of public entities that have come before this Court have not resulted in an application of the public duty doctrine, but rather have involved the application of a duty-risk analysis to the facts of the particular case. See Stroik v. Ponseti, 96-2897 (La. 9/9/97), 699 So.2d 1072; Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So.2d 318; Berry v. State Through Dept. of Health and Human Resources, 93-2748 (La. 5/23/94, 637 So.2d 412; Roberts v. Beniot, 605 So.2d 1032 (La. 1991).Id. at 612.
Regarding LA. REV. STAT. § 9:2798.1, the Louisiana Supreme Court observed that the "legislature attempted to adopt the traditional public duty doctrine by statute in 1985," but instead "the legislature adopted La. R.S. 9:2798.1, which exempts public entities from liability for their employees' discretionary or policy-making acts." Id. at ¶ 12-13 (emphasis added). The Court observed:
"Under [the discretionary function] doctrine, governmental decisionmakers exercising discretionary functions are immune from suit, because the courts should not chill legislative discretion in policy formation by imposing tort liability for discretionary decision." Ferdinand F. Stone and Andrew Rinker, Jr., Governmental Liability for Negligent Inspections, 57 Tul. L. Rev. 328, 346 (1982).
However, where liability is based on a public entity's non-discretionary acts, liability will be judged under the traditional duty-risk analysis. Fowler v. Roberts, supra, (holding on rehearing that La. R.S. 9:2798.1 did not apply to immunize DPS for its negligence, and reinstating the original majority opinion, as supplemented by the plurality opinion). In Fowler, we applied the two-step test enunciated in Berkovitz v. United States, 486 U.S. 531 (1988) for determining whether the discretionary function exception applies in specific fact situations. A court must first consider whether the government employee had an element of choice. "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536. If the employee had no discretion or choice as to the appropriate conduct, there is no immunity. When discretion is involved, the court must then determine whether that discretion is the kind which is shielded by the exception, that is one grounded in social, economic or political policy. If the action is not based on public policy, the government is liable for any negligence, because the exception insulates the government from liability only if the challenged action involves the permissible exercise of a policy judgment. Fowler v. Roberts, supra at 15.Hardy, 744 So.2d at 613. Because the City did not articulate any social, economic or political policy considerations surrounding the police officers actions handling the crowd at the McKinley Strip or in attempting to locate the person who fired the first shot, the Court held that the City was not immune under La. R.S. § 9:2798.1, and that the court was constrained to analyzing the police officers' conduct under the duty-risk analysis. Id.; see also Surgical Care Center of Hammond v. Hospital Service District No. 1 of Tangipahoa, 309 F.3d 836, 842 (5th Cir. 2002) (noting in dicta that under Louisiana law § 9:2798.1(c)(1) public entities are not entitled to discretionary immunity when challenged acts "are not reasonably related to a governmental objective for which the policy-making or discretionary power exists").
In Commerce Industry Insurance Co. v. Grinnell Corporation, 280 F.3d 566 (5th Cir. 2002), the Fifth Circuit had the occasion to consider Louisiana's law regarding discretionary immunity of City of New Orleans. The case involved subrogated insurers claims against the City of New Orleans doing business as the New Orleans Fire Department ("NOFD"). The insurers brought suit to recover payments made to their insured for losses incurred in connection with MacFrugal's five-alarm warehouse fire in New Orleans East. Without inspecting the upper levels of the 65-foot fixed racks, the NOFD returned responsibility for the facility to WCL employees and departed leaving the premises with one fire engine, a company of four firefighters, the large bay doors left open to ventilate the warehouse, albeit in high winds, and the automatic sprinkler system for the facility shut-off. The fire later rekindled, spread and completely destroyed the warehouse and its contents. Id. at 568.
The district court entered summary judgment in favor of the City of New Orleans, finding that the discretionary function immunity theory shielded the City from liability for property damage in the action brought by the warehouse operator's insurers. The subrogated insurers argued that the district court erred in concluding on summary judgment, that (1) the firefighters were not subject to directives, and (2) their discretionary actions were in fact grounded in policy. The Fifth Circuit agreed that there was a genuine issue of fact as to whether the firefighters' conduct was dictated by statute or fire department procedural policy. The Fifth Circuit concluded that "the summary judgment stage of the litigation is simply too early to determine whether the City is entitled to discretionary function immunity under La. Rev. Stat. 9:2798.1." Id. at 573 and 575 n. 18.
The Louisiana Third Circuit's decision in Shepard v. Bradford, 721 So.2d 1049 (La.App. 3rd Cir. 1998) is inapposite. In Shepard, the appellate court affirmed summary judgment in favor of the city of DeRidder in a case involving the police department's alleged failure to prevent a fight in a public park. However, city police in the Shepard case had absolutely no contact with the plaintiff prior to his being attacked. The allegations of negligence against the city of DeRidder were that there were no police patrols on the north side of the park, where the altercation occurred. Indeed, the patrol practices of the City of DeRidder were a matter of choice as no statute, regulation, or policy proscribed times or locations for patrol and such determinations were within the realm of discretionary functions grounded in social, economic and political policy, and therefore the city was shielded from liability for decisions under LA. REV. STAT. § 9:2798.1.
It is noteworthy that the court's decision in Kniepp v. City of Shreveport, 609 So.2d 1163 (La.App. 2nd Cir.), cert. denied, 613 So.2d 976 (La. 1993) exonerating the Shreveport Police Department (SPD) followed full trial on the merits. The Kniepp case involved the SPD's conduct at the scene of a homicide that presaged and allegedly triggered "the Cedar Grove riot." After trial on the issue of liability, the trial court found that: (1) the acts or omission of police at the scene were not a cause of the plaintiffs damages; and (2) Chief Charles Gruber's decision to redeploy the officers to the perimeter of the crime scene was a discretionary act which rendered the City of Shreveport immune under LA. REV. STAT. § 9:2798.1.
Clearly, city law enforcement and fire department officials responding to the scene of an emergency, whether due to suspected hazardous emissions or other potential threat to the public safety, have some discretion to make choices in their reaction to such an emergency situation. Immunity extends only to those choices narrowly defined as policy-making or planning. Operational choices once on the scene which involve the implementation of policy are not immune. See Berkovitz v. U.S., 486 U.S. 531 (1988). Distinguishing between the boundary of policy-making and operational choices appears neither consistent nor clear in the case law, as each case turns on its own particular facts.
The case at bar is not ripe for summary determination as to whether the city and state and any of the municipal agencies actively involved with the alleged hazardous vapor leak as it occurred at the scene of the incident are shielded from liability by the qualified immunity afforded by LA. REV. STAT. § 9:2798.1. Allegations against these entities include operational negligence of representatives present at the scene of the September 18, 2001 toxic vapor leak incident. The plaintiffs have not had the opportunity to conduct discovery necessary to determine whether the defense of qualified immunity afforded by the discretionary acts doctrine, by all accounts a fact-intensive inquiry, is applicable in the case of the proposed state and city non-diverse defendants.
E. CONCLUSION
In summary, having considered both the construct of the doctrine of "fraudulent joinder" as it applies to defendant Ron Bible in the Cager and Noble cases, as well as the application of the tri-plus Hensgens analysis regarding all of the proposed non-diverse defendants, the Court finds that the balance favors the plaintiffs' position. Regarding the issue of Eleventh Amendment Immunity, defendants have failed to establish the absence of the possibility of recovery against the state of Louisiana or that the plaintiffs have failed to state a colorable claim against the state. Finally, the issue immunity for discretionary functions is simply not ripe for summary determination. Accordingly,
In these particular cases even scrutinizing motive closely as the Court should in recognition of the removing defendants right to a federal forum, the tri-plus Hensgens analysis ( i.e., colorable claim, delay in amending, prejudice, plus anything else), leads to the same result. That is because the court discerns no delay and great prejudice. Moreover, the plaintiffs have stated colorable claims against the non-diverse defendants.
IT IS ORDERED that the plaintiffs' Motion to Amend and Supplement their Complaints to add non-diverse defendant Ron Bible, together with the various State of Louisiana and the City of New Orleans, be and hereby is GRANTED.
A party's failure to written objections to the findings and conclusions of the magistrate judge within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).