Elizabeth Sewell, et al v. Sewerage & Water Board of N.O.

Filing

UNPUBLISHED OPINION FILED. [17-30089 Affirmed ] Judge: TMR , Judge: ECP , Judge: JEG Mandate pull date is 09/18/2017 [17-30089]

Case: 17-30089

Document: 00514133655

Page: 1

Date Filed: 08/28/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 17-30089
Summary Calendar

August 28, 2017
Lyle W. Cayce
Clerk

ELIZABETH SEWELL, wife of; WILLIAM SEWELL; JAMES FENNER;
BETH DUESSING, wife of; GEORGE DUESSING; ET AL,
Plaintiffs–Appellees,
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Third Party Plaintiff–Appellant,
v.
BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.; CAJUN
INDUSTRIES, L.L.C.; CAJUN CONSTRUCTORS, L.L.C.; B&K
CONSTRUCTION COMPANY, L.L.C.; LINFIELD, HUNTER AND JUNIUS,
INCORPORATED; BLUE IRON FOUNDATION AND SHORING, L.L.C.;
JAY DISPOSAL, INCORPORATED; LEXINGTON INSURANCE
COMPANY; RSUI INDEMNITY COMPANY; ARCH INSURANCE GROUP,
improperly named Arch Insurance Company; BRIDGEFIELD CASUALTY
INSURANCE COMPANY; CANAL INDEMNITY INSURANCE; BARRIERE
CONSTRUCTION COMPANY, L.L.C.; AMERICAN GUARANTEE &
LIABILITY INSURANCE COMPANY; HALLMARK SPECIALTY
INSURANCE COMPANY, improperly named Hallmark Specialty Insurance;
BELLA TRUCK SERVICE, INCORPORATED, also known as Jay Trucks
Service, Incorporated,
Third Party Defendants–Appellees.
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LEON GREENBLATT,
Plaintiff–Appellee,

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v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.
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ANNE LOWENBURG; JUDITH LOWENBURG, wife of/and; TOM
LOWENBURG; SARAH LOWMAN; JACK STOLIER; WILLIAM B.
TAYLOR, III, M.D.; BARBARA WEST; NANETTE COLOMB; ANA KURT,
Wife of; CHARLOTTE LINK, Wife of; PARKE ELLIS; JERRY OSBORNE;
NANCY ELLIS, Wife of; MARK KURT; ROBERT LINK; JOSEPHINE S.
BROWN, M.D.; LAURIE MCDIARMID, Wife of; ROSS MCDIARMID; MARK
HAMRICK,
Plaintiffs–Appellees,
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.
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ARIYAN, INCORPORATED, doing business as Discount Corner,
Plaintiff–Appellee,
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.
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AMERICAN INSURANCE COMPANY,
Plaintiff–Appellee,
v.
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SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.
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K&B LOUISIANA CORPORATION, doing business as Rite Aid Corporation,
Plaintiff–Appellee,
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.
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M. LANGENSTEIN & SONS, INCORPORATED; PRYTANIA LIQUOR
STORE, INCORPORATED; WEST PRYTANIA, INCORPORATED, doing
business as Prytania Mail Service; BARBARA H. WEST; FINE ARTS
MANAGEMENT, L.L.C., doing business as Prytania Theatre; PASCAL’S
MANALE RESTAURANT, INCORPORATED; SUPERIOR SEAFOOD &
OYSTER BAR, L.L.C.; SUPERIOR BAR & GRILL, INCORPORATED;
FRESH MARKET, INCORPORATED; BRITISH ANTIQUES, L.L.C.;
BENNETT POWELL; MAGIC BOX, LIMITED; DAT DOG ENTERPRISES,
L.L.C.; DAT DOG PROPERTIES, L.L.C.,
Plaintiffs–Appellees,
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.
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ELIZABETH CASEY; THOMAS CASEY,
Plaintiffs–Appellees,
v.
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No. 17-30089
SEWERAGE AND WATER BOARD OF NEW ORLEANS,
Defendant–Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-3117
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
This case arises out of the Southeast Louisiana (“SELA”) Drainage
Project, a federally funded enterprise cosponsored by the Sewerage and Water
Board of New Orleans (“SWB”) and the United States Army Corps of Engineers
(“Corps”). The SELA Project involves extensive construction at multiple sites
in Southeast Louisiana and is intended to improve flood control and drainage
in these areas. The instant case involves eight consolidated lawsuits
implicating seven phases of the SELA Project in Uptown New Orleans, where
the Plaintiffs own of homes and businesses. Each Plaintiff sued SWB alleging
various forms of damage resulting from the construction. SWB then filed thirdparty claims against three contractors who were selected to construct SELA
projects in Uptown New Orleans: B&K Construction Company, LLC; Boh Bros.
Construction Company, LLC; and Cajun Constructors, LLC (collectively, the
“Contractors”). The Contractors removed to federal court pursuant to the
federal officer removal statute. See 28 U.S.C. § 1442(a)(1).

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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In September 2016, the Contractors moved for summary judgment,
raising government contractor immunity as a defense to all remaining claims.
The district court heard oral argument on the Contractors’ motions for
summary judgment on September 28, 2016. At that time, the district court
“believed the Contractors had established their immunity defense, at least in
part, on six of the [SELA Project] phases and, in whole, on the seventh phase.”
Nevertheless, pursuant to SWB’s motion under Federal Rule of Procedure
56(d) and in the interest of fairness, the district court granted SWB an
additional thirty days of discovery “to persuade the Court that there . . . exist[s]
a genuine dispute of fact concerning the second and third prongs of the Boyle
test.” SWB was unable to convince the court, however, and in December 2016,
the district court granted summary judgment in favor of the Contractors on
the basis of government contractor immunity. On January 5, 2017, the district
court issued an order declining to exercise supplemental jurisdiction over the
state law claims remaining in the litigation and remanding the case to state
court. This appeal followed. 1
“We review a summary judgment de novo, ‘using the same standard as
that employed by the district court under Rule 56.’” In re Katrina Canal
Breaches Litig., 620 F.3d 455, 459 (5th Cir. 2010) (quoting Kerstetter v. Pac.
Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000)). Summary judgment is appropriate
“if the movant shows that there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We use an abuse of discretion standard, however, when reviewing a district
court’s discovery-related rulings, such as a denial of a Rule 56(d) motion or a
decision to limit discovery. Fed. Ins. Co. v. Singing River Health Sys., 850 F.3d

Cases removed pursuant to 28 U.S.C. § 1442 are expressly excepted from the general
rule that a remand order is not reviewable on appeal. See 28 U.S.C. § 1447(d).
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187, 194 (5th Cir. 2017); Crosby v. La. Health Serv. & Indem. Co., 647 F.3d
258, 261 (5th Cir. 2011); see also Fed R. Civ. P. 56(d) (allowing a court to defer
a motion or grant additional discovery when the movant can show, “by affidavit
or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition”).
Contractors hired by the federal government are shielded from liability
subject to certain conditions. This defense is “derived from the government’s
immunity from suit where the performance of a discretionary function is at
issue.” Kerstetter, 210 F.3d at 435 (citing Boyle v. United Techs. Corp., 487 U.S.
500, 511 (1988)). To establish government contractor immunity, a contractor
must meet the test set out by the U.S. Supreme Court in Boyle: “(1) the
government must have approved ‘reasonably precise’ specifications; (2) the
equipment must have conformed to these specifications; and (3) the
supplier/contractor must have warned of those equipment dangers that were
known to the supplier/contractor, but not to the government.” Id. (citing Boyle,
487 U.S. at 512). Although this appeal is nominally about whether the district
court erred in applying government contractor immunity, SWB’s argument on
appeal relates mainly to discovery. Specifically, SWB argues that its due
process rights were violated by the brevity of the pre-trial discovery process,
that the district court should have afforded it more time to conduct discovery
pursuant to Rule 56(d), and that the district court’s summary judgment ruling
was premature in light of SWB’s specific requests for further discovery.
The district court did not abuse its discretion in issuing or making its
discovery rulings. This case was first removed to federal court on July 30, 2015.
In January 2016, SWB declined to participate in a discovery conference with
the Plaintiffs, contending that a conference would be premature. From April
through August 2016, the magistrate and district court judges held a series of
discovery scheduling and status conferences, eventually extending the
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deadline for the Contractors’ motions for summary judgment to September 6,
2016. Following oral argument on September 28, the district court granted
SWB an additional thirty days to conduct discovery on the second and third
prongs of the Boyle test.
It appears that the district court reasonably responded to SWB’s
discovery requests while also trying to move the case along and accommodate
the numerous parties in the litigation. From the time the case was removed to
federal court, SWB had fourteen months to conduct discovery relating to the
Contractors’ government contractor immunity defense. The district court
ultimately made its summary judgment ruling with the benefit of hundreds of
pages of detailed designs and specifications produced by the Corps regarding
all of the SELA projects at issue, as well as the deposition testimony of John
Fogarty, the Corps’s resident engineer and administrative contracting officer.
Even without addressing the Contractors’ arguments that SWB was dilatory
in performing discovery, we find that the district court did not abuse its
discretion in setting discovery deadlines, nor did it rule prematurely.
Regarding the substantive issue of government contractor immunity,
SWB only meaningfully challenges summary judgment on the first Boyle
prong. “The first Boyle step requires that the government approved reasonably
precise specifications. That entails both the existence of reasonably precise
specifications and the approval of those specifications by the government.” In
re Katrina, 620 F.3d at 461. “The requirement that the specifications be precise
means that the discretion over significant details and all critical design choices
will be exercised by the government.” Trevino v. Gen. Dynamics Corp., 865 F.2d
1474, 1481 (5th Cir. 1989). While the “government need not prepare the
specifications to be considered to have approved them,” Kerstetter, 210 F.3d at
435, government approval requires more than a “rubber stamp”; the first Boyle
prong requires “substantive review or evaluation” of the design specifications
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by the government, Trevino, 865 F.2d at 1480. The crux of the first prong is
that the contractor cannot have been delegated all discretionary design
decisions and reap the benefit of the immunity defense. See id. at 1480–81; In
re Katrina, 620 F.3d at 465 (“The relevant inquiry . . . is whether the Corps
approved sufficiently precise specifications, such that it is evident that the
government was the primary agent of decision over the compaction method.”).
The district court did not err in determining that the plans and
specifications for each construction feature implicated by the plaintiffs’ claims
were reasonably precise and approved by the government. According to the
district court, the Corps “considered each offending feature and had in place
specifications that effectively removed all critical design choices from the
Contractors’ discretion.” The district court further determined that the Corps
“meaningfully reviewed and approved the specifications prior to construction,”
a process that “typically began with a years-long design period, during which
design firms retained by the government developed hundreds of pages of plans
and specifications.” And the Corps’s involvement was such that the district
court was convinced that the Corps “was the agent of decision on all critical
features of the work.” We agree that the government’s level of participation
and the specificity of the plans satisfies the first Boyle prong. SWB argues that
the specifications lacked detail regarding the composition of materials on
certain construction features, and that its own consultants’ involvement in the
design process indicates that the Corps “may have abdicated some or all of” the
review of the specifications to SWB. We find these arguments meritless in light
of the record evidence supporting the district court’s decision. Accordingly, we
affirm the district court’s grant of summary judgment on the basis of
government contractor immunity.
Lastly, “a federal district court has discretion to remand a properly
removed case to state court when all federal-law claims have been eliminated
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and only pendent state-law claims remain.” Jones v. Roadway Express, Inc.,
936 F.2d 789, 792 (5th Cir. 1991). The district court thoughtfully expressed its
reasoning for remanding the case, and the decision to remand was not an abuse
of discretion.
We AFFIRM.

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