Currier v. Entergy Services, Inc. et al

Filing 109

ORDER & REASONS denying 95 Motion for Judgment on the Pleadings. Signed by Judge Martin L.C. Feldman on 9/10/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROSEANNE M. CURRIER

CIVIL ACTION

v.

NO. 11-2208

ENTERGY SERVICES, INC., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is Steven Griffith's motion for judgment on
the pleadings. For the reasons that follow, the motion is DENIED.
Background
This litigation arises out of a corporate jet pilot's claims
that her employer, in retaliation for her stance on aviation
safety,

grounded

her

without

good

cause,

launched

a

sham

"independent" investigation into a decades-old minor injury, and
after FAA-certified physicians once again gave her a clean bill of
health, contrived a mental health issue that left her grounded
permanently.
On September 2, 2011 Roseanne Currier sued Entergy Services,
Inc.

(her

former

employer)

and

Oliver

Trowbridge

(Entergy's

corporate aviation manager), asserting claims for Title VII and ADA
violations,

retaliation,

intentional

infliction

of

emotional

distress, and abuse of right. Currier later added Steven Griffith
(the attorney Entergy hired to independently investigate and report
on

Currier's

internal

complaints)
1

as

a

defendant,

alleging

intentional infliction of emotional distress, fraud, invasion of
privacy, and civil conspiracy.1

The alleged facts of this case are

more completely set forth in this Court's March 14, 2014 Order and
Reasons, in which the Court granted in part and denied in part
Steven Griffith's Rule 12(b)(6) motion to dismiss. Currier v.
Entergy Services, Inc., No. 11-2208, 2014 WL 1093687 (E.D.La. Mar.
14, 2014). In granting the motion in part, the Court dismissed the
plaintiff's claims against Griffith for intentional infliction of
emotional

distress,

invasion of privacy.

fraud,

negligent

misrepresentation,2

and

The Court denied the motion with respect to

the plaintiff's civil conspiracy theory of recovery.

Griffith now

seeks judgment as a matter of law dismissing the civil conspiracy
theory of recovery.
I.
Rule 12(c) of the Federal Rules of Civil Procedure allows a

1

This case was previously assigned to two different Sections of
Court, one of which issued rulings on September 30, 2013 on
motions to dismiss filed by all three defendants. See Currier v.
Entergy Servs., Inc., No. 11-2208, 2013 WL 5506122 (E.D. La.
Sept. 30, 3013). After the plaintiff amended her complaint in
response to the September 30 Order and Reasons, Griffith filed a
second motion to dismiss, which was pending when this matter was
transferred to this Section of Court. Currier's remaining claims
against the Entergy defendants include abuse of right, ADA claims
for harassment and discrimination based on perceived disability,
Title VII claims for sex discrimination and retaliation,
intentional infliction of emotional distress, and civil
conspiracy.
2

Currier conceded that her negligent misrepresentation claim
against Griffith was not plausible.
2

party to seek judgment on the pleadings "[a]fter the pleadings are
closed – but early enough not to delay trial." Fed.R.Civ.P. 12(c).
A Rule 12(c) motion "is designed to dispose of cases where the
material facts are not in dispute and a judgment on the merits can
be rendered by looking to the substance of the pleadings and any
judicially noticed facts." Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)(citations
omitted).
The standard for deciding a motion for judgment on the
pleadings under Rule 12(c) is the same as the one for deciding a
motion under Rule 12(b)(6). Gentilello v. Rege, 627 F.3d 540, 54344 (5th Cir. 2010). "'[T]he central issue [in deciding a motion to
dismiss] is whether, in the light most favorable to the plaintiff,
the complaint states a valid claim for relief.'"
omitted).

Id. (citation

To survive a Rule 12 motion to dismiss or for judgment

on the pleadings, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949 (2009))(internal quotation marks omitted).

“A claim has

facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.
at 1949.

"We do not accept as true conclusory allegations,

3

unwarranted factual inferences, or legal conclusions."

Plotkin v.

IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)(citation omitted).
II.
A.
Griffith

(again)

seeks

dismissal

of

Currier’s

solidary

liability theory predicated on civil conspiracy.

Previously,

Griffith

allegations

targeted

the

sufficiency

of

the

factual

concerning the alleged agreement between him and Entergy.

This

time, Griffith contends that -- because the Court dismissed all
intentional tort claims against him -- Griffith can have no
conspiratorial

liability

as

a

matter

of

Louisiana

law.

Alternatively, Griffith contends that his status as Entergy's agent
precludes a theory of personal misconduct necessary to establish a
civil conspiracy.

The plaintiff counters that Louisiana law does

not require that Griffith commit each element of an underlying
intentional tort in order to have conspiracy liability.

As to

Griffith's alternative argument that he was an agent of Entergy
such that he could not conspire with Entergy under the single
entity doctrine, Currier points out that Griffith's briefing does
nothing to clarify the unclear state of Louisiana law on this
point.

And the Entergy defendants, for their part, do not oppose

Griffith's motion "provided that the Court does not ... render any
finding that would impair [their] defenses, including without
limitation that: (1) they are not vicariously liable for the acts

4

of Mr. Griffith and his acts cannot be imputed to Entergy and (2)
they

relied

on

Mr.

Griffith's

investigation

of

Plaintiff's

complaints in making employment decisions."3
B.
1.

Civil Conspiracy and Substantive Liability

Louisiana Civil Code Article 2324 provides that “[h]e who
conspires with another person to commit an intentional or willful
act is answerable, in solido, with that person, for the damage
caused by such act.” The Louisiana Supreme Court has explained that
Article 2324 “does not by itself impose liability for a civil
conspiracy,” for “‘[t]he actionable element in a claim under this
Article is not the conspiracy itself, but rather the tort which the
conspirators agreed to perpetrate and which they actually commit in
whole or in part.’” Ross v. Conoco, Inc., 828 So. 2d 546, 552 (La.
2002)(quoting Butz v. Lynch, 710 So.2d 1171, 1174 (La.App. 1st Cir.
1998)) (emphasis added).4

3

Unsurprisingly, Currier agrees that any determination regarding
an agency relationship should be avoided.
4

As this Court previously articulated the legal standard:
Louisiana does not recognize a distinct cause of
action for civil conspiracy, but “[h]e who conspires
with another person to commit an intentional and
willful act is answerable, in solido, with that person
for the damage caused by that act.” La. Civ. Code Ann.
art. 2324 (2008). The actionable element of a civil
conspiracy is the underlying intentional tort committed
pursuant to an agreement between the wrongdoers. Able
Sec. and Patrol, LLC v. State of Louisiana, 569 F.
Supp. 2d 617, 636 (E.D.La. 2008). In Louisiana, a
5

Griffith submits that, because Louisiana does not recognize an
independent

cause

independent

tort

of

action

claims

for

remain

civil

against

conspiracy
him,

he

and

cannot

no
have

conspiratorial liability as a matter of law. Currier counters that
nothing in the text of Article 2324 requires that the entirety of
the actionable element of civil conspiracy, the intentional tort,
must be committed by each co-conspirator for solidary liability to
attach.

The Court agrees.

Embracing Griffith's reading of Article 2324 would betray the
text of the code article and would render meaningless the Louisiana
Supreme Court’s carefully chosen words relative to conspiratorial
liability.

To be sure, Article 2324 is not itself the source of

liability; it is undisputed that an agreement to commit a tort,
without

more,

is

not

actionable

in

Louisiana.

Rather,

the

predicate for assigning solidary liability among those who conspire
to commit intentional torts is the underlying intentional tort that
co-conspirators agree to perpetrate and actually commit in whole or

conspiracy may be proven by circumstantial evidence, as
“conspirators rarely formulate their plans in ways
susceptible of proof by direct evidence.” Silver v.
Nelson, 610 F. Supp. 505, 517 (E.D.La. 1985)(quoting
Thomas v. City of New Orleans, 687 .2d 80, 83 (5th Cir.
1982)). A plaintiff must show an unlawful act and
assistance or encouragement that amounts to a
conspiracy to commit the underlying tort. Chrysler
Credit Corp. v. Whitney Nat. Bank, 51 F.3d 553, 557
(5th Cir. 1995).
See Order and Reasons dated March 14, 2014.
6

in part causing the plaintiff's injury.
Louisiana

Supreme

Court

simply

In other words, the

explained

what

is

logically

intuitive: to be liable, in solido, for civil conspiracy, it is not
sufficient to prove a mere agreement among co-conspirators to
commit

an

intentional

tort.

Something

more

is

required:

an

intentional tort must actually be committed by the co-conspirators,
who perpetuate the intentional tort by participating in some act or
acts in furtherance ("in whole or in part").

Most fundamental to

resolving the present dispute, nothing in Article 2324 or the case
literature requires that each co-conspirator equally participate
in, let alone wholly commit, each element of the underlying
intentional tort.
The Court's understanding of Article 2324 is bolstered by
Chrysler Credit Corp. v. Whitney Nat. Bank, 51 F.3d 553, 557 (5th
Cir. 1995).

There, at trial it was stipulated that the car

franchise, Toyota of Jefferson, and its owner, Louis Normand, were
liable for conversion of the proceeds of new car sales owed to the
floor plan finance company, Chrysler Credit Corp.

Id.

And the

jury had returned a verdict that Whitney Bank conspired with Toyota
of Jefferson to convert the proceeds of Toyota's new car sales.
Id.5

Notably, because it was undisputed that TOJ was liable for

5

Chrysler Credit, which provided floor plan financing for new
vehicles sold by Toyota of Jefferson, and Whitney Bank, which
made personal loans to TOJ's owners and was where TOJ had its
general operating account, were the two primary creditors for
Toyota of Jefferson. Id. at 554.
7

the intentional tort of conversion, the Fifth Circuit determined
that it "need not consider whether Whitney is also liable for
conversion." Id. "Instead," the Fifth Circuit noted that it "must
uphold the jury verdict, in toto, if we find that the evidence is
sufficient to support its determination that Whitney conspired with
TOJ to convert the proceeds."

Id. at 557.

Applying Article 2324,

the Fifth Circuit held that a reasonable jury could conclude that
Whitney

assisted

conversion.

or

encouraged

TOJ

to

commit

the

tort

of

Id. at 560-61. In short, the Fifth Circuit upheld

Whitney Bank's liability for conspiracy to commit conversion and,
based on the stipulation that TOJ was liable for conversion, there
was no need to consider whether Whitney also was independently
liable for the intentional tort of conversion (or any other
intentional tort).
Applying this interpretation of civil conspiracy in Louisiana,
Griffith's second attempt to dismiss this theory of liability must
fail.

Griffith's take on civil conspiracy is too cramped and

overlooks

the

intentional

tort

6

claims

that

remain

pending.6

There is a dearth of case literature directly on point, but it
is notable that the cases invoked by Griffith fail to support his
argument. See Crutcher-Tufts Res., Inc. v. Tufts, 992 So. 2d
1091, 1094 (La. App. 4 Cir. 2008)(holding that the plaintiff’s
allegation of conspiracy was not actionable without a claim that
an agreement existed to commit an actually-committed tortious
act); New Orleans Jazz & Heritage Found., Inc. v. Kirksey, 40 So.
3d 394, 408 (La. App. 4 Cir. 2010)(“Because the actionable
element of the Foundation's action against KEI is not an
intentional tort but rather contractual in nature, there is no
underlying intentional tort that would support a judgment
8

Currier's intentional tort claims as alleged against Griffith have
been dismissed, but it does not follow that the civil conspiracy
theory of solidary liability likewise fails where, as here, it is
alleged that Griffith conspired with the remaining defendants to
commit the intentional torts that remain viable as alleged against
his co-conspirators.

Stated another way, it is sufficient that

Currier has alleged that Griffith conspired to commit intentional
torts (such as abuse of rights) and acted, in whole or (here) in
part, with the remaining defendants in perpetuating the actionable
element of the conspiracy, which is the alleged intentional tort.

imposing liability upon Mr. Kirksey and KEI in solido.”);
Felder's Collision Parts, Inc. v. Gen. Motors Co., 960 F. Supp.
2d 617, 639-40 (M.D. La. 2013) (finding that a conspiracy claim
was not actionable on its own because the plaintiff failed to
specifically plead the existence of a conspiracy); Jefferson v.
Lead Indus. Ass'n, Inc., 930 F. Supp. 241, 248 (E.D. La. 1996)
aff'd, 106 F.3d 1245 (5th Cir. 1997) (“Plaintiff asserts that the
underlying tort here is fraudulent misrepresentation.... However,
plaintiff's conspiracy to commit fraudulent misrepresentation
claim is defective because the underlying fraudulent
misrepresentation claim is defective.”); Aronzon v. Sw. Airlines,
No. 03-394, 2004 WL 57079 (E.D. La. Jan. 9, 2004) (“Since [the
plaintiff] cannot establish the substantive offense, he cannot
maintain a cause of action for conspiracy to defame.”). On the
other hand, the plaintiff's position finds support in the case
literature as mentioned in Chrysler Credit Corp. v. Whitney Nat.
Bank, 51 F.3d 553 (1995). See also, e.g., Tabb v. Norred, 277
So.3d 223, 228 (La. App. 3d Cir. 1973)(a police deputy was shot
by one of three youths burglarizing a school, the trial court
held that one of the non-shooting co-conspirators was liable, and
the appellate court affirmed, holding that "[w]hen a tort is
perpetuated through the instrumentality of a combination or
conspiracy, the party ... injured may look beyond the actual
participants in committing the injury, and join with them, as
defendants, all who cooperated in, advised, or assisted in the
accomplishment of the common design, for co-trespassers are bound
in solido.").
9

Just like Whitney Bank, if it is proved or stipulated at trial that
Entergy is liable for abuse of rights, for example, or some other
intentional tort designed to harm Currier, and if it is also proved
that Griffith conspired with Entergy (and acted in part to further
the relevant intentional tort committed by Entergy), then Griffith
may be held liable in solido pursuant to Article 2324.7
2.

Single Enterprise Doctrine

Griffith advances an alternative argument for dismissing
Currier's conspiracy claim, apparently inspired by this Court's
March

14

Order

and

Reasons.8

He

invokes

the

intracorporate

7

Of course, if the intentional torts are dismissed later on
summary judgment, then there can be no solidary liability based
on Article 2324 because the actionable element of the conspiracy
(the intentional tort) will be absent.
8

The Court previously observed:
[C]ourts have held that employees or agents are legally
incapable of conspiring with their employers or
principals because in many cases the law considers
principals and their agents to be single entities
incapable of conspiring with each other. See Rhyce v.
Martin, 173 F. Supp. 2d 521, 532-533, 536 (E.D. La.
2001)(Clement, J.)(discussing the single entity theory
in the context of 42 U.S.C. § 1985, 42 U.S.C. § 1986,
and Sherman Antitrust claims). The question of whether
or not agents and related principals may conspire with
each other to create solidary liability under Louisiana
Civil Code article 2324 remains unsettled. Id. at 536.
...
And, the parties' papers have not assisted the Court
such that it might find as a matter of law whether
Griffith acting as Entergy’s agent is legally capable
of conspiring with Entergy under the Louisiana Civil
Code. But, just as the plaintiff cannot rest on
conclusory allegations unsupported by facts, the
defendant cannot, as he has done, merely suggest that
“the allegations do not add up to conspiracy to commit
10

conspiracy or single enterprise doctrine, which originated in the
context of federal antitrust law and simply combines two general
common law principles, positing: because (a) a conspiracy requires
an agreement between two separate persons and (b) a corporation is
capable of acting only through its agents, it follows that (c) a
corporation and agent (or parent and subsidiary) are generally
incapable of agreeing to conspire. See Hilliard v. Ferguson, 30
F.3d 649, 653 (5th Cir. 1994)(citation omitted).

Griffith argues

that the unity of interests between Entergy and its agent Mr.
Griffith precludes a finding of two separate persons necessary to
establish a conspiracy.
There are problems with this argument.

First, as this Court

previously observed in its March 14 Order and Reasons, and as
Griffith concedes, whether or not Louisiana has adopted the single
entity doctrine in this context remains, at best, unsettled.

See,

e.g., Haygood v. Dies, 127 So.3d 1008, 1013 (La. App. 2d Cir.
2013)(failing to address the doctrine but allowing to proceed a
conspiracy claim that alleged, among other things, that an owner

intentional torts designed to harm Ms. Currier.” In
light of the unsettled Louisiana law on the issue, the
volume of purported factual allegations in the
complaint and exhibits, and the generality with which
the defendant approached dismissal of this particular
theory of liability, the Court cannot determine as a
matter of law that the plaintiff has failed to allege
facts sufficient to sustain her theory of solidary
liability based on civil conspiracy.
See Order and Reasons 3/14/14 (footnotes omitted).
11

and his limited liability company had conspired together); St.
Landry Homestead Federal Sav. Bank v. Vidrine, 118 So.3d 470 (La.
App. 3d Cir. 2013)(explicitly declining to address the issue of
single enterprise conspiracy liability); Aucoin v. Kennedy, 335 F.
Supp. 2d 830, 845-46 (E.D. La. 2004)(Lemmon, J.)(differentiating
between federal civil rights conspiracy claims and Louisiana state
law claims, the court dismissed the federal claims under the single
enterprise doctrine but declined to dismiss the Louisiana state law
claims); Rhyce v. Martin, 173 F. Supp. 2d 521, 535-36 (E.D.La.
2001)(Clement, J)("[a]bsent adequate briefing", the Court was
unable to determine whether Louisiana had adopted the doctrine and
therefore declined to dismiss on that ground the conspiracy claim
alleged

by

a

firefighter

against

the

fire

district

and

its

employees). Griffith's briefing here does not advance a solution.9
Second, and more fundamental at this stage of the litigation,
resolving this issue as a matter of law in favor of Griffith would
require that the Court find facts (that Griffith was an agent or
employee of Entergy and, as such -- assuming Louisiana would adopt
the single entity doctrine -- could not as a matter of law conspire
with Entergy).

Ultimately, Griffith fails to persuade on both

9

This is not a criticism but more a function of the uncertainty
of Louisiana law and its encounter with the common law doctrine
Griffith seeks to invoke. Perhaps counsel will convince the U.S.
Fifth Circuit Court of Appeals to certify this question to the
Louisiana Supreme Court, which may in its discretion, of course,
decline to answer.
12

points.
Griffith underscores Currier's allegations that he acted as
Entergy's employee or agent, as well as her allegation that Entergy
is vicariously liable for Griffith's (among other employees')
tortious conduct; Griffith suggests that the "employee or agent"
labels erode any attempt by Currier to argue that Griffith had a
separation of identity and interests sufficient to have the legal
ability to conspire with Entergy to commit the alleged torts
designed

to

harm

Currier.

But

in

pouncing

on

the

agency

characterization,10 Griffith ignores the clear import of the many
other

allegations

concerning

Griffith

in

the

79-page

amended

complaint, as well as Entergy's and Trowbridge's defense that they
relied

on

Griffith's

employment complaints.11

independent

investigation

of

Currier's

Griffith has failed to persuade the Court

to exercise its Erie guess to resolve this issue of Louisiana law
at the pleading stage by cherry-picking labels that Currier uses in
her complaint.12

10

Notably, Entergy points out, realistically, that the term
"agent" can have various meanings depending on the context and
usage.
11

Indeed, beyond the conspiracy allegations, other factual
allegations seem inconsistent with the "agent" label Currier
attaches to the Griffith-Entergy relationship. See, e.g.,
paragraphs 33 - 35c of the second supplemental and amended
complaint.
12

To survive a Rule 12 motion to dismiss or for judgment on the
pleadings, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
13

Accordingly, Griffth's Rule 12(c) motion is DENIED.
New Orleans, Louisiana, September 10, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

its face.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949
(2009))(internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S.
Ct. at 1949. Currier has done so.
14