St. Bernard Parish v. Lafarge North America, Inc. et al

Filing 61

ORDER AND REASONS denying 9 MOTION to Dismiss Case filed by Lafarge North America, Inc. Signed by Judge Stanwood R. Duval, Jr on 4/25/2012.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PARISH OF ST. BERNARD
THROUGH THE ST. BERNARD
PARISH GOVERNMENT
VERSUS

CIVIL ACTION

NO. 11-2350

LAFARGE NORTH AMERICA, INC., ET AL.

SECTION “K”(2)

ORDER AND REASONS
Before the Court is Lafarge North America Inc.’s Motion to Dismiss (Doc. 9). Defendant
Lafarge North America Inc. (“Lafarge”) contends that all claims alleged against it by plaintiff
Parish of St. Bernard Through the St. Bernard Parish Government (“the Parish”) should be
dismissed. As the basis for this motion, Lafarge contends that it did not owe the Parish a duty to
prevent harm to it because the alleged harm was not foreseeable, given the alleged events that
gave rise to that harm, sustained miles away from Lafarge’s cement terminal as the result of an
unforeseeable chain reaction of events.
As this Court has previously noted “To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). While this Court has peculiar
knowledge concerning the facts and circumstances surrounding the Barge and has found in
another trial that the Barge in question did not cause the breaches at issue, In re Katrina
Consolidated Canal Breaches (BARGE), 2011 WL 1792542 (Jan. 20, 2011), that knowledge
cannot be the basis for a Motion to Dismiss.
Indeed, the Court will not and cannot dismiss this case based on the theory that Lafarge
owed no duty to prevent the Barge from coming loose and allegedly causing the cataclysmic

breaches of the floodwall protecting the Ninth Ward and Chalmette. This case is in no way
analogous to the dredging case In re Great Lakes, 624 F.3d 201 (5th Cir. 2010) where suit was
brought against the dredgers by persons who were harmed by flooding from the MRGO. In this
instance, Lafarge brought in a barge to a waterway that was in the direct path of one of the
largest hurricanes. That waterway was immediately adjacent to a floodwall that protected a
major urban area. Lafarge unloaded that Barge and allegedly did not take proper precautions to
protect that floodwall. There are allegations in the Petition concerning the defalcations that
Lafarge allegedly committed in securing the barge.
Clearly, it was foreseeable that an empty barge in the Industrial Canal during a
catastrophic hurricane that was coming up the Mississippi River with the attendant storm surge
could break loose, destroy the floodwall and cause devastating flooding from 2.3 to 5.3 miles
away. At a minimum, the Court cannot and will not dismiss this case on those grounds.
Accordingly,
IT IS ORDERED that Lafarge North America Inc.’s Motion to Dismiss (Doc. 9) is
DENIED.
New Orleans, Louisiana, this 25th day of April, 2012.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE

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