Opinion
No. 01-3778; SECTION "L" (4)
August 15, 2002
ORDER and REASONS
Before the Court are the following motions: (1) Plaintiffs Motion to Remand (Doc. No. 18) and (2) Defendant LESCO Inc.'s Motion to Dismiss or, in the alternative, Motion for a More Definite Statement (Doc. No. 3). For the following reasons, the motions are DENIED.
I. BACKGROUND
In this suit, originally filed in Civil District Court for the Parish of Orleans, Plaintiff Daniel Fanguy, seeks damages for injuries allegedly sustained as a result of exposure to certain herbicides and other chemicals while working as a groundskeeper at Eastover Country Club in New Orleans. Plaintiff filed suit against the out of state manufacturers of the chemicals, as well as Eastover Country Club, L.L.C., a Louisiana resident. Plaintiff claims that Eastover required that he spray chemicals, both herbicides and insecticides, on the golf course without protective equipment or other safety precautions. Plaintiff alleges that "Eastover personnel knew these chemicals were very hazardous to human health and further knew that occupational safety regulations required that Mr. Fanguy wear protective equipment while he was applying the chemicals . . . they refused to provide Mr. Fanguy with the required protective gear." See Petition at ¶ V. According to Plaintiff, "Eastover's conduct . . . falls within the intentional act exception to the Louisiana Worker's Compensation Act because Eastover knew to an absolute certainty that injury was certain to occur when [plaintiff] was exposed to these poisons without the required equipment." See Petition at ¶ VIII. Plaintiff alleges that as a result of his exposure to various chemicals at Eastover, he contracted Parkinson's Disease. Plaintiff's wife and children also allege that they were exposed to the chemicals through Daniel Fanguy's clothing and seek damages for their own injuries and for loss of consortium.
Defendant, Southern Agricultural Insecticides, Inc., removed the case to this Court on December 17, 2001 invoking diversity jurisdiction. Southern Agricultural and the other Defendants, all non-Louisiana residents, claim that Plaintiff has no viable tort claim against Eastover and that Eastover, a Louisiana resident, was fraudulently joined to defeat diversity jurisdiction. Plaintiffs now move to remand.
II. LAW AND ANALYSIS
A. Fraudulent Joinder
28 U.S.C. § 1441 (a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . to the district court." See 28 U.S.C. § 1441 (a) (1994). District courts have original jurisdiction of all civil actions between citizens of different states in which the matter in controversy exceeds S75,000.00. See 28 U.S.C. § 1332 (a)(1). It is axiomatic that "for diversity jurisdiction to exist, no plaintiff may be a domiciliary of the same state as any defendant." See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).
The removing party bears the burden of proving that a district court has jurisdiction over a matter. See Jernigan, 989 F.2d at 815. In cases of alleged "fraudulent joinder," this burden is a "heavy one." See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The removing party must demonstrate either that "there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court," or "that there has been outright fraud in the plaintiffs pleading of jurisdictional facts." See id.
In assessing claims of fraudulent joinder, a court "must evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of plaintiff." See id. at 549. Courts are expressly authorized to "pierce the pleadings," and consider affidavits and deposition testimony in a summary judgment-type fashion. See Carriere v. Sears, Roebuck, Co., 893 F.2d 98, 100 (5th Cir. 1990). However, a "district court must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." See id. (emphasis added). "If there is arguably a reasonable basis for predicting that state law might impose liability on the facts involved, then there is no fraudulent joinder." See Jernigan, 989 F.2d at 816 (quoting Bobby Jones Garden Apts. v. Suleski, 391 F.2d 172, 177 (5th Cir. 1968)). Courts are not to "determine whether the plaintiff will actually or even probably prevail on the merits of the claim," but should "look only for a possibility that the plaintiff might do so." See Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995).
B. Plaintiffs Claims Against Eastover
Plaintiff claims that while "[i]t is axiomatic that worker's compensation is the exclusive remedy for an employee injured on the job as a result of the negligence of his employer," his claims fall within "the significant statutory exception" for intentional acts. See Motion to Remand, at 5. Plaintiff does not claim that his employer, Eastover, "consciously desired the physical result of his act," but rather that by concealing warning labels and refusing protective equipment, it was "inevitable that Fanguy would be exposed to the chemicals." See id.
Under Louisiana law, worker's compensation is the exclusive remedy for an employee injured on the job. See La. Rev. Stat. § 23:1032. However, an "employee is not limited to worker's compensation and may pursue any other remedy where his compensable injury resulted from an intentional act." See Reeves v. Structural Preservation Sys., 731 So.2d 208, 210 (La. 1999); see also La. Rev. Stat. § 23:1032 (B)("Nothing in this Chapter shall affect the liability of the employer . . . resulting from an intentional act."). The Louisiana Supreme Court has consistently interpreted the meaning of "intent" narrowly, requiring that the actor either "[1] consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct, or [2] knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result." See Carrier v. Grey Wolf Drilling Co., 776 So.2d 439, 441 (La. 2001); Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981). The present case involves only the second of these definitions, i.e., whether Eastover knew the result was substantially certain to follow from its conduct.
"Substantially certain to follow requires more than a reasonable probability that an injury will occur." See Reeves, 731 So.2d at 213. Louisiana courts have "almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failure to provide safety equipment." See Reeves, 731 So.2d at 211; see also Landry v. Uniroyal Chem. Co., 653 So.2d 1199, 1203 (La.Ct.App. 1st Cir. 1995) (noting that "allegations of failure to provide a safe place to work" and "failure to provide specifically requested safety equipment" are not sufficient to invoke the intentional act exception without proof of either "defendant's desire to harm plaintiff or defendant's knowledge that his conduct would nearly inevitably cause injury to plaintiff"); Williams v. Gervais, 573 So.2d 533, 541 (La.Ct.App. 4th Cir. 1991) (finding that disregard of OSHA safety provisions does not constitute intentional act). Moreover, the Louisiana Supreme Court has expressly held that "[b]elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act. . . ." See Reeves, 731 So.2d at 212.
In this case, Plaintiff alleges that Eastover personnel "knew these chemicals were hazardous to human health," and knew that safety regulations required protective equipment, but refused to provide the proper equipment. See Petition at § V. Plaintiff also alleges that Eastover received manufacturer warnings of various dangers yet failed to communicate these warnings to Plaintiff. See id. ¶ VI. Plaintiff reasons that "Eastover knew to an absolute certainty that injury was certain to occur when an unprotected worker was exposed to these poisons without the required equipment." See id. ¶ VIII. For these reasons, Plaintiff maintains that it is "impossible" to conclude that "there is `no possibility' that Plaintiff states a cause of action against his employer under the intentional acts exception to workers' compensation." See Plaintiffs Response, at 4.
The Court finds that Plaintiffs allegations in this case, considered in the light most favorable to the Plaintiffs do not constitute an "intentional act" under the narrow exception to workers' compensation. Although Plaintiff asserts that "Eastover knew to a substantial certainty that injury was certain to occur," there is nothing in Plaintiffs petition, or in the affidavit accompanying his motion, which substantiates this claim or demonstrates that Eastover knew that injury was "substantially certain to follow" from its action or inaction. The bare assertion that injury was an "absolute certainty" does not "automatically raise allegations of negligence to the level of intentional tort so that the . . . exclusive remedy in compensation does not apply." See Chrakian v. Nat. Envir. Testing, Inc., 907 F. Supp. 961, 965 (M.D. La. 1995). Mere assertions of intentional acts are insufficient to establish intent. See id.
While Plaintiffs allegations, if true, are quite serious, Eastover's alleged conduct falls within categories of gross negligence, violations of OSHA and other safety standards, failure to provide requested safety equipment, and disregarding a known safety risk. Louisiana courts have repeatedly held that these claims do not fall within the intentional act exception to Louisiana workers' compensation law. See Micele v. CPC of Louisiana, Inc., 709 So.2d 1065, 1068 (La.Ct.App. 4th Cir. 1998) (explaining that "the following acts do not fall within the intentional tort exception: (1) allegations of failure to provide a safe place to work; (2) poorly designed machinery and failure to follow OSHA safety provisions; (3) failure to provide requested safety equipment; and (4) failure to correct unsafe working conditions") (internal citations omitted). Thus, there is no reasonable basis for predicting that state law might impose liability on the resident defendant, Eastover, in this case. In short, the Court finds that Eastover was fraudulently joined. Accordingly, Plaintiffs motion to remand is denied.
Neither of the recent cases cited by Plaintiff affects the result in this case. In Swope v. Columbian Chem. Co., 281 F.3d 185 (5th Cir. 2002), the United States Fifth Circuit Court of Appeals reversed summary judgment in favor of the employer in light of compelling evidence of intent. Among the litany of examples of cited were the deposition testimony of the Defendant's plant manger and maintenance supervisor, who testified that the Defendant "knew during [Plaintiffs] employment that inhalation of ozone could be fatal to workers and damaging to their lungs," and the reports of two industrial hygienists who had previously warned of serious health risks and other dangers at the job site. See id. at 197.
In Rayford v. Angelo Iafrate Const., L.L.C., 806 So.2d 898 (La.Ct.App. 4th Cir. 2002), the Louisiana Fourth Circuit Court of Appeal found only that the Plaintiff had sufficiently stated a cause of action, such that dismissal of Plaintiffs intentional act claim was inappropriate. In ruling on peremptory exceptions of no cause of action, however, Louisiana courts are limited to the "face of the petition" and "no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action." See id. at 899 (citing La. Code Civ. P. art. 931)). See, e.g., Bourque v. Nan Ya Plastics Corp., Am., 906 F. Supp. 348, 354 (M.D. La. 1995) (noting that while "Plaintiffs conclusory statements in his affidavit might be enough to survive an exception of no cause of action in a Louisiana state court . . . [f]ederal district courts are not bound by conclusory allegations of `intentional tort' on federal motions to remand").
C. Defendant LESCO's Motion to Dismiss or for a More Definite Statement
Defendant, LESCO, Inc., moves to dismiss Plaintiffs complaint for failure to comply with Federal Rule of Civil Procedure 10(b) or, in the alternative, for a more definite statement. Defendant complains that "Plaintiffs' complaint sets forth general or group allegations against all of the twelve defendants" and does not separate each alleged act into separately numbered paragraphs as required by Rule 10(b).
Federal Rule of Civil Procedure 10 governs the form of pleadings. Under the rule, "[e]ach claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth." See Fed.R.Civ.P. 10(b). The rule also provides that the contents of each paragraph "shall be limited as far as practicable to a statement of a single set of circumstances." See id.
The Court finds that Plaintiffs' complaint satisfies these basic requirements and is "sufficiently clear to apprize [the Defendants] of the claims against [them]." See Plohocki v. Chicago Sch. Reform Bd. of Trustees, No. 99 C 6710, 2000 WL 150748, at *6 (N.D. Ill. Feb. 4, 2000) (noting that courts generally do not dismiss a claim for failure to comply with Rule 10(b) unless the complaint is not understandable and does not provide defendants with fair:notice of the claims). While the Defendants may need additional information to prepare a defense, this can be obtained through discovery and other pretrial procedures. See Roberts Schaeffer Co. v. Hardaway Co., No. 95-590, 1995 WL 447799, at *1-2 (M.D. Fla. July 25, 1995) (noting that "in the federal system, the rules of civil procedure employ the concept of notice pleading and motions for a more definite statement are not favored in light of the liberal discovery practice").
Accordingly, Defendant's motion to dismiss or for a more definite statement is DENIED.
III. CONCLUSION
For the foregoing reasons, Plaintiffs motion to remand is DENIED and Defendant's motion to dismiss or for more definite statement is DENIED.