Scott v. Istar Real Estate Services, Inc.

Full title: DEBRA SCOTT, et al. v. ISTAR REAL ESTATE SERVICES, INC., et al

Court: United States District Court, E.D. Louisiana

Date published: Feb 3, 2005

Civil Action No. 04-0175, Section I/1 (E.D. La. Feb. 3, 2005)

Opinion

Civil Action No. 04-0175, Section I/1.

February 3, 2005

ORDER AND REASONS

LANCE AFRICK, Magistrate Judge

Before the Court is a motion to dismiss filed on behalf of defendant, Otis Elevator Company ("Otis").¹ Specifically, Otis seeks to have certain claims for damages asserted by plaintiff, Debra Scott, dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion is DENIED.

1 Rec. Doc. No. 24.

BACKGROUND

Plaintiff Debra Scott's husband, Matthew Scott, alleges that he was injured while delivering items to an office building in New Orleans when the elevator unexpectedly dropped six floors. Mr. Scott alleges that he suffered substantial muscle and tissue injuries. In connection with her husband's alleged injuries, Debra Scott alleges that she suffered derivative injuries, including loss of her husband's support and loss of consortium.²

The Scotts filed a petition for damages in Orleans Parish Civil District Court on July 25, 2003.³ Invoking this Court's diversity jurisdiction, Otis removed the Scotts' lawsuit on January 21, 2004.⁴

3 Rec. Doc. No. 1, plaintiffs' petition for damages.

4 Rec. Doc. No. 1, notice of removal.

On December 28, 2004, Otis filed this motion to dismiss some of Ms. Scott's loss of consortium claim pursuant to Rule 12(b)(6), arguing that certain claims for damages asserted by Mrs. Scott arise out of injuries unrelated to Mr. Scott's accident and not allowed by Louisiana law. Otis also argues that Mrs. Scott intends to introduce evidence of these noncompensable injuries at trial.⁵ Mrs. Scott opposes Otis's Rule 12(b)(6) motion, arguing that her loss of consortium claim was properly pleaded.⁶

5 In addition to Otis's motion to dismiss, Otis filed a motion in limine, seeking to exclude evidence that is allegedly unrelated to the loss of consortium claim. The Court only addresses the Rule 12(b)(6) motion to dismiss. Otis's motion in limine will be addressed in a separate Order of this Court. Otis filed a single reply memorandum in support of both its motion to dismiss and its motion in limine. See Rec. Doc. No. 32.

6 Rec. Doc. No. 29. Mrs. Scott also argues that all the evidence she intends to introduce at trial to prove her loss of consortium claim is admissible.

LAW AND ANALYSIS

A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). A court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all well-pleaded facts in the complaint as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowry v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997). "However, `[i]n order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations. . . .'" Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (quoting Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989)) (alteration in original). "`[C]onclusory allegations and unwarranted deductions of fact are not admitted as true' by a motion to dismiss." Id. (quoting Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1994)). Moreover, "`legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Blackburn, 42 F.3d at 931 (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (internal quotation and citation omitted).

Because the Court's subject matter jurisdiction is predicated on the diversity of citizenship of the parties, Louisiana tort law applies to plaintiffs' claims. See Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 750 (5th Cir. 1995) (stating " Erie [ Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938)] requires that diversity courts follow state law on substantive matters not governed by the Constitution or by federal law."). It is well-settled that Louisiana law recognizes a cause of action for loss of consortium. See Ferrell v. Fireman's Fund Ins. Co., 696 So. 2d 569, 573 (La. 1997). Specifically, article 2315 of the Louisiana Civil Code provides: "[d]amages may include loss of consortium, service, and society. . . ." La. Civ. Code Ann. art. 2315 (B).

The Louisiana Supreme Court has expressly held that a loss of consortium claim is "derivative" of the predicate tort claim. Id. at 570. In other words, it is not an injury to the person who was directly injured by the defendant's negligence, but rather a secondary layer of tort liability inuring to the benefit of a person whose relationship with the primary victim has been diminished as a result of the defendant's negligence. Id. at 574. The compensable elements of a spouse's loss of consortium claim include (1) loss of love and affection; (2) loss of companionship; (3) loss of material services; (4) loss of support; (5) impairment of sexual relations; and (6) loss of felicity. Ferrell, 696 So. 2d at 573 n. 4.

In the petition, Mrs. Scott alleges that "[a]s a direct result of the negligence of Defendants, [she] suffered losses including, but not limited to loss of support (past and future) and loss of consortium (past and future)."⁷ Otis does not suggest that there is no cause of action for a spouse's loss of consortium in Louisiana, but rather that certain damages of Mrs. Scott's claim are not supported by Louisiana law. Otis argues that Mrs. Scott is not entitled to claim her own physical and emotional pain and suffering, her own lost income, and her own medical complications as part of her loss of consortium claim.

7 Rec. Doc. No. 1, plaintiffs' petition for damages ¶ XVI.

The Court finds Ms. Scott's allegations sufficient to state a claim pursuant to Louisiana law. Plaintiffs' pleadings include detailed factual allegations relating to Mr. Scott's injury. Taking these factual allegations as true, and recognizing that Mrs. Scott's claim derives from her husband's injury, this Court cannot say that Mrs. Scott would not be able to prove any set of facts which would entitle her to damages for loss of support and loss of consortium. See Piotrowski, 51 F.3d at 514.

As noted above, Otis does not take issue with Mrs. Scott asserting a loss of consortium claim. Instead, Otis is attacking the breadth of her claim and the evidence that she allegedly intends to introduce to prove that claim. Otis's evidentiary arguments will be addressed upon consideration of its motion in limine.

For the above and foregoing reasons, defendant's motion to dismiss certain claims asserted by plaintiff, Debra Scott, pursuant to Rule 12(b)(6) is DENIED.