Leslie v. Shell Chemical LP et al
Filing
21
ORDER & REASONS: ORDERED that Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) (Rec. Doc. 15 ) is GRANTED in part and DENIED in part. FURTHER ORDERED that Plaintiff's survival action, brought under Louisiana Civil Code Article 2315. 1, is DISMISSED with prejudice. FURTHER ORDERED that Defendants' Motion for a More Definite Statement Pursuant to Rule 12(e) is DENIED. FURTHER ORDERED that Plaintiff's request for leave to amend is DENIED. Signed by Judge Carl Barbier on 8/23/13. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELISE LESLIE
CIVIL ACTION
VERSUS
NO: 13-4791
SHELL CHEMICAL LP, ET AL.
SECTION: "J” (4)
ORDER AND REASONS
Before the Court is Defendants' Motion to Dismiss Pursuant
to Rule 12(b)(6) (Rec. Doc. 15), Plaintiff's opposition thereto
(Rec. Doc. 16), and Defendants' reply (Rec. Doc. 20). Defendants'
motion was set for hearing on August 14, 2013, on the briefs. The
Court, having considered the motions and memoranda of counsel,
the record, and the applicable law, finds that Defendants' motion
should be GRANTED in part and DENIED in part for the reasons set
forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This matter arises out of wrongful death, survival, and
1
product liability claims under Louisiana state law.1 Elise Leslie
("Ms.
Leslie")
brought
this
action
both
individually
and
on
behalf of her father, Bruce W. Leslie, ("Mr. Leslie") against
Defendants
Shell
Oil
Company
and
Shell
Chemical,
LP
("Defendants"). Ms. Leslie alleges that from 1946 through 1985,
during
the
course
of
Mr.
Leslie's
employment
at
Automotive
Service in New Orleans, he was exposed to benzene and benzenecontaining products while performing his duties, which included
pumping
gas
and
performing
various
maintenance,
repair,
and
cleaning services. (Complt., Rec. Doc. 1, ¶ 6-7) Ms. Leslie
alleges that the benzene-containing products were manufactured,
supplied, distributed, and sold by Defendants. (Complt., Rec.
Doc. 1, ¶ 8)
Ms. Leslie alleges that over the course of Mr. Leslie's
employment, he sustained tissue damage that resulted in "distinct
bodily injuries in each year from 1946 through 1985." (Complt.,
Rec. Doc. 1, ¶ 10). Ms. Leslie alleges that, in 2005, Mr. Leslie
was diagnosed with myelodysplastic syndrome ("MDS"), and that he
died from this disease in December 2005 without knowing the
1
Plaintiff alleges, and Defendants do not challenge, that the Court has
diversity jurisdiction over these state law claims pursuant to 28 U.S.C. §
1332. Defendants are incorporated in Delaware with their principal place of
business in Texas, and Plaintiff is a Louisiana resident. Plaintiff pleads
damages in excess of $75,000.
2
cause. (Complt., Rec. Doc. 1, ¶ 37) Ms. Leslie alleges that she
learned that her father's MDS was connected to benzene exposure
in May 2013. (Complt., Rec. Doc. 1, ¶ 37)
Ms.
Leslie
alleges
that
"Industry
Groups
in
Petroleum
refining and manufacturing and Medical groups have recognized the
health
hazards
of
benzene
for
over
one
hundred
years,"
but
failed to communicate "this information to the average worker."
(Complt.,
industry
Rec.
and
Doc.
1,
medical
¶
11)
studies
In
light
of
concerning
the
the
longstanding
ill
effects
of
benzene, Ms. Leslie alleges that Defendants "knew or should have
known
of
the
health
hazards
inherent
in
the
products
they
manufactured, distributed, sold, supplied, owned, transported, or
used." (Complt., Rec. Doc. 1, ¶ 12) Ms. Leslie alleges that,
because
of
actions
and
this
actual
inactions
or
constructive
give
rise
to
knowledge,
numerous
Defendants
bases
for
her
wrongful death and survival claims, including: negligence; gross
negligence;
negligent
misrepresentation;
and
concealment,
suppression, and/or omission of material information about the
health hazards associated with benzene. Ms. Leslie also asserts a
product
liability
claim.
Ms.
Leslie
prays
damages in connection with her tort claims.
3
for
compensatory
Ms. Leslie alleges that the prescriptive period on her tort
claims did not begin to run until she knew or should have known
that
Mr.
Leslie's
illness
was
caused
by
benzene
exposure.
(Complt., Rec. Doc. 1, ¶ 37) Ms. Leslie claims that, as is common
withe benzene related illnesses, Mr. Leslie's disease took years
to develop, and that, when it did develop, not even physicians
linked the disease to benzene exposure. (Complt., Rec. Doc. 1, ¶
37) Ms. Leslie alleges that, because she first learned of the
connection in May 2013, the prescriptive period on all of her
claims began to run at that time. (Complt., Rec. Doc. 1, ¶ 37)
PARTIES’ ARGUMENTS
A. Defendant's Motion
Defendants
seek
dismissal
of
Ms.
Leslie's
complaint
for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), or, in the alternative, Defendants seek a more definite
statement pursuant to Federal Rule of Civil Procedure 12(e).
1. Motion to Dismiss Pursuant to FED. R. CIV. PRO. 12(b)(6)
Defendants argue that this case must be dismissed because
the complaint was filed more than seven years after Mr. Leslie's
death, rendering all of Ms. Leslie's claims time-barred on their
face.
Defendants
argue
that
Ms.
Leslie's
survival
action
is
perempted because case law, including the opinion in Winningkoff
4
v. American Cyanamid, 99-3077, 2000 WL 235648 (E.D. La., Mar. 1,
2000), indicates that the one year period to bring a survival
action is a peremptive period, not a prescriptive period. As
such, Defendants argue that once the one year peremptive period
ends,
the
substantive
extinguished.
Citing
rights
to
associated
Louisiana
Civil
with
Code
the
claim
Article
are
3461,
Defendants argue that, unlike a prescriptive period, a peremptive
period cannot be interrupted, renounced, or suspended, and that
in Ayo v. Johns-Manville Sales Corportation, 771 F.2d 902, 907-08
(5th Cir. 1985), the Fifth Circuit upheld the district court's
decision that contra non valentem does not apply to peremptive
periods.
Defendants assert that Ms. Leslie's product liability and
wrongful death claims are subject to a one year prescriptive
period, and that Ms. Leslie does not
meet her burden of proving
that such claims have not prescribed. Defendants argues that,
pursuant to Bailey v. Khoury, 04-0620 (La. 1/20/05); 891 So. 2d
1268, 1275, when a claim is facially prescribed, as is the case
here, the plaintiff bears the burden of proving that the period
was suspended or interrupted and that her claims have survived.
Defendants allege that "generic, self-serving, and unsupported
allegations
regarding
contra
non
5
valentem"
do
not
meet
this
burden of proof. (Def.'s Mot., Rec. Doc. 15, p. 10) Defendants
further argue that contra non valentem will not apply in this
case because (a) it should be applied sparingly, and (b) Ms.
Leslie had constructive knowledge of her cause of action long
before
she
filed
her
complaint.
Defendants
contend
that
Ms.
Leslie's claim that she did not know about the link between her
father's illness and benzene exposure is contradicted by her
allegations that the ill effects of benzene were widely published
and known. Defendants argue that Ms. Leslie cannot argue that the
facts were concealed if such concealment "is contradicted by
published documents which expressly set forth the very facts
allegedly concealed." In re Ford Motors Co. Bronco II Prod. Liab.
Litig., 982 F. Supp. 388, 396-97 (E.D. La. 1997).
2. Motion for a More Definite Statement Pursuant to FED. R.
CIV. PRO. 12(e)
Defendants
argue
that,
if
Ms.
Leslie's
claims
are not
dismissed, they are at least entitled to have the Court order Ms.
Leslie to provide a more definite statement pursuant to Federal
Rule of Civil Procedure 12(e). Defendants argue that Ms. Leslie
does not provide the "who, what, where, when, and why" that they
need to properly respond. Defendants assert that Ms. Leslie does
not provide: (a) the full legal name of Mr. Leslie's employer,
but
rather
refers
to
"Automotive
6
Service",
(b)
the
specific
location of the employer, (c) any of the products connected to
Defendants to which Mr. Leslie was allegedly exposed, (d) the
type of injuries Mr. Leslie suffered while working, or (e) when
these injuries were diagnosed and treated.
Defendants further
allege that the Plaintiff's complaint does not allege sufficient
information with which to determine (a) what duty they allegedly
breached, (b) what the breaching conduct is, (c) which law to
apply,
and
(d)
whether
Ms.
Leslie
is
allowed
to
assert
her
claims. Defendants assert that in Verret v. North Star Marine,
09-3442, 2009 WL 3614502 (E.D. La., Oct. 28, 2009) (Roby, Mag.
J.), the court granted such a motion where the complaint only
alleged that the plaintiff was electrocuted at work two years
prior,
determining
that
the
complaint
needed
more
facts
concerning how he was electrocuted and what products he was
using.
Defendants
urge
the
Court
to
find
that
the
instant
complaint alleges far less. Defendants also cite to Bitte v.
United Companies Lending Corp., 06-5658, 2006 WL 3692754 (E.D.
La., Dec. 11, 2006) (Englehardt, J.), which required a pro se
plaintiff to amend her complaint to allege the "who, what, where,
when, why, and how."
B. Plaintiff's Opposition
Plaintiffs
oppose
the
instant
7
motion,
arguing
that
(a)
Defendants
erroneously
determined
that
survival
actions
are
subject to a peremptive period rather than a prescriptive period,
(b) fraud and misrepresentation tolls the one year prescriptive
period, (c) contra non valentem applies to Ms. Leslie's wrongful
death claim, and (d) Ms. Leslie's fraud claims are alleged with
sufficient particularity.
1. Motion to Dismiss Pursuant to FED. R. CIV. PRO. 12(b)(6)
Ms. Leslie cites to many cases in support of her contention
that the authority relied upon by Defendants to argue that her
survival action is subject to a peremptive period are based on
old law; and, that since a 1986 amendment, survival actions are
subject to a prescriptive period, as evidenced by the recent
decision
in
Watkins
v.
Exxon
Mobil
Corp.,
12-0477,
2013
WL
2353804 (La. App. 4 Cir. 5/29/13). Moreover, even if her survival
claim is subject to a peremptive period, Ms. Leslie contends that
it may still be tolled by fraud as was the case in Evans v.
Canadianoxy Offshore Production Co., 98-0835 (La. App. 3 Cir.
12/09/98), 730 So. 2d 466, wherein the court determined that
contra non valentem applied to interrupt peremption on a survival
action when plaintiffs delayed filing until 16 years after the
decedent's
death
because
they
alleged
that
the
defendant
concealed information and because they did not know they had a
8
claim until they heard about a lawyer who handled carcinogenic
chemical cases. Ms. Leslie argues that her allegations of fraud
are sufficiently pleaded, claiming that under U.S. ex rel Mary
Jane Stewart v. The Louisiana Clinic, 99-1767, 2002 WL 257690, *2
(E.D. La. 2002), Rule 9 "requires a plaintiff to plead with
particularity the circumstances constituting fraud, but allows
knowledge, intent, and malice to be averred generally."
Ms.
Leslie
misrepresentation
alleges
also
tolls
that
the
Defendants'
prescriptive
fraud
period
on
and
her
wrongful death claim. Additionally, Ms. Leslie contends that,
under Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La. 1993),
mere knowledge of a disease does not commence the prescriptive
period, but rather it begins to run when it was reasonable for
the plaintiff to suspect tortious conduct. Ms. Leslie argues
that, taking the facts alleged in her complaint as true, there is
sufficient proof that Ms. Leslie did not have reason to believe
that Defendants engaged in tortious activity until May 2013.
Finally, Ms. Leslie argues that if the motion to dismiss is
granted, she should be granted leave to amend her complaint.
2. Motion for a More Definite Statement Pursuant to FED. R.
CIV. PRO. 12(e)
Ms. Leslie contends that Defendants' 12(e) motion must be
denied because her complaint alleges sufficient facts under the
9
Twombly
plausibility
standard.
Ms.
Leslie
contends
that
Defendants' reliance on Ashcroft v. Iqbal is misplaced because
that
case
involved
a
heightened
pleading
standard
for
cases
involving qualified immunity.
In regards to the specific deficiencies claimed, Ms. Leslie
argues that Mr. Leslie was a self-employed mechanic at a location
whose legal name was "Automotive Service," however the service
station no longer exists. Moreover, Ms. Leslie argues that she
pleaded enough information regarding Mr. Leslie's injuries to put
Defendants on notice of her claims, and that further information
is best reserved for discovery.
C. Defendants' Reply
In
their
opposition
reply,
erroneously
Defendants
discussed
assert
fraud
that
claims
Ms.
that
Leslie's
were
not
discussed in the motion to dismiss and that were never alleged in
Ms. Leslie's complaint. Defendants also contend that Ms. Leslie's
argument that her complaint should not be held to plausibility
pleading
standards
complaints
are
is
flawed
subject
to
because,
the
in
federal
Twombly/Iqbal
court,
all
plausibility
standards.
Defendants re-assert their argument that survival actions
are subject to a peremptive period and contend that (a)
10
Ms.
Leslie failed to explain federal precedent that holds the same,
and (b) relies solely on Waktins, which is being appealed and is
in
direct
contravention
of
jurisprudence
in
other
Louisiana
circuits. Defendants then argue for the first time that, pursuant
to Frank v. Shell Oil Co., 11-871, 2012 WL 1230736 (E.D. La.,
Apr. 12, 2012) (Fallon, J.), the court held that the law in
effect
at
exposure
the
time
applies,
of
the
meaning
decedent's
that
in
significant
this
case,
causative
pre-1985
law
applies. Defendants further argue that it is clear, and that Ms.
Leslie concedes that, survival actions were subject to peremptive
periods prior to 1986, thus her survival action is barred.
Defendants also re-assert that Ms. Leslie's wrongful death
action is prescribed and that she fails to meet the heavy burden
of proving that prescription was interrupted. Defendants assert
that contra non valentem will not apply because there was no
fraud
on
the
part
of
Shell
and
because
Ms.
Leslie
had
a
reasonable opportunity to learn of the connection between Mr.
Frank's illness and his benzene exposure.
Finally,
Defendants
re-assert
that
they
are
entitled
to
relief under Federal Rule of Civile Procedure 12(e), arguing that
inserting key information into an opposition, such as the fact
that
Mr.
Leslie
was
self-employed,
11
does
not
remedy
the
insufficiencies of the complaint.
LEGAL STANDARD
A. Motion to Dismiss Pursuant to FED. R. CIV. PRO. 12(b)(6)
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo,
544
U.S.
336,
346
(2005).
The
allegations
“must
be
simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
12
factual allegations. Iqbal, 556 U.S. at 678.
B. Motion for a More Definite Statement Pursuant to FED. R. CIV.
PRO. 12(e)
Federal Rule of Civil Procedure 12(e) permits a party to
move for a more definite statement when “a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a
party
cannot
reasonably
be
required
to
frame
a
responsive
pleading.” FED. R. CIV. P. 12(e). A party, however, may not use a
Rule 12(e) motion as a substitute for discovery. See Mitchell v.
E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959). As a
result of the liberal pleading standard set forth in Rule 8, Rule
12(e) motions are disfavored. See id. Rule 12(e) is ordinarily
restricted
to
situations
where
a
pleading
suffers
from
“unintelligibility rather than want of detail.” 2A MOORE’S FED’L
PRAC. ¶ 12.18[1], at 2389 (2d ed. 1985).
DISCUSSION
A. Motion to Dismiss Pursuant to FED. R. CIV. PRO. 12(b)(6)
The determination of whether to grant Defendants' motion to
dismiss hinges on two main issues: (1) whether a survival action
is
subject
to
a
prescriptive
or
peremptive
period,
and
(2)
whether contra non valentem will apply to interrupt prescription.
The
parties
cite
to
a
litany
of
cases
in
support
of
their
positions on these two issues; however, counsel for both sides of
13
this
matter
ignore
one
very
important,
and
hopefully
very
familiar, case: Lois Frank v. Shell Oil Company, 828 F.Supp.2d
835
(E.D.
La.
2011).2 While this Court is not bound by the
decisions of other district courts, the Court finds the opinion
in Frank to be instructive and well-reasoned.
The facts and issues in Frank are nearly identical to the
instant matter. The plaintiff in Frank was the surviving spouse
of a Shell Norco employee who was allegedly exposed to benzene
and who died from ALL Leukemia without knowing the cause of his
disease.Frank, 828 F.Supp.2d at 840-41 His wife, also unaware of
the
connection
between
Mr.
Frank's
benzene
exposure
and
his
illness, did not file suit against Shell until nearly eight years
after
his
death.
Id.
at
841.
In
addition
to
these
factual
similarities, large sections of the Frank complaint, including
the parts of the complaint relevant to the issues before the
Court today, are identical to Ms. Leslie's complaint. Id. at 842.
Therefore, the Court will analyze the instant motion though the
lens of Frank.
2
Counsel for all parties in this case should be well aware of the
ruling in this case, as the parties in Frank were represented by the
substantially the same attorneys as are Ms. Leslie and the Shell Defendants in
the instant matter.
14
1. Limitations on Survival Actions
"As a threshold matter, the Court recognizes that “Louisiana
law controls ... a federal court sitting in diversity." Frank,
828 F. Supp. 2d at 841. Following an amendment of Louisiana's
code provision governing survival actions, whether a survival
action is subject to a prescriptive or preemptive period presents
a
very
murky
issue
in
Louisiana.
Both
sides
in
this
matter
present copius case law supporting their respective arguments;
and, an independent review of the case law reveals that there
simply is not a consensus on this issue in either state or
federal court. This precise issue need not be determined today,
however,
as
Frank
determined
just
last
year
that
pre-1986
amendment law applies to cases such as the instant matter.
On original hearing, the Frank court determined that, though
older case law basing its opinion on a pre-1986 version of the
Code article at issue held that a survival action is subject to a
peremptive period, the statute now uses the words "prescriptive
period"
and
modern
jurisprudence
recognizes
that
it's
a
prescriptive period. Frank, 828 F.Supp. at 845-846. Following
this ruling, however, Shell filed a motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure Rule 59(e),
and the motion was granted in part. Frank v. Shell Oil Co., 11-
15
871, 2012 WL 1230736 (E.D. La., Apr. 12, 2012) (Fallon, J.)
("Frank Reconsideration"). In this motion, Shell argued for the
first time that the law at the time of the decedent's exposure
must be applied to survival actions, meaning that the prior
version
of
the
Louisiana
Civil
Code
article
that
created
a
survival action, and it was clear that the older version was
subject to a peremptive period. Frank Reconsideration, 2012 WL
1230736 at *3. Accepting this reasoning as valid, the Frank court
determined
that
the
plaintiff's
survival
action
was
barred
despite the validity of plaintiff's contra non valentem argument
because peremptive periods may not be interrupted or suspended.
Id. at *4; see also
Ayo, 771 F.2d 902, 907-08.
In their reply to the instant motion, Defendants urge the
Court to consider pre-1986 law to bar Ms. Leslie's survival
claim, and the Court, finding the reasoning in Frank to be sound,
agrees. Therefore, because Mr. Leslie was exposed to benzene from
1946 until 1985, and because the Court must apply the law in
effect at the time of his exposure, it is clear that any survival
action brought on behalf of Mr. Leslie is subject to a peremptive
period of one year that cannot be interrupted or suspended. Thus,
Ms. Leslie was required to have brought her survival action
within one year of Mr. Leslie's death. Because the survival
16
action was brought outside of this one year period, the survival
action is untimely and must be dismissed. Ms. Leslie's argument
that Evans will apply even if the limiting period is peremptive
also
fails
as
the
Court
determines
below
that
Evans
is
distinguishable and does not apply to the instant facts.
Ms. Leslie requested leave to amend her complaint in the
event
that
the
Court
found
merit
in
the
instant
motion.
It
appears that there are no facts that could be added to the
complaint
that
would
be
able
to
save
Ms.
Leslie's
survival
action, making an amendment futile. Ms. Leslie's request for
leave to amend is therefore denied.
2. Contra non valentem
Even though the Ms. Leslie's survival action is barred by
peremption, her wrongful death and product liability claims are
subject
to
a
one
year
period
of
prescription
that
may
be
interrupted by contra non valentem. Again, the Frank court ruled
on this issue, and the Court finds its analysis instructive. The
Frank court outlined the law as follows:
The Louisiana Supreme Court has
recognized four
instances in which the doctrine applies to prevent the
running of prescription. Plaintiff urges two of these
instances in opposition to Shell's Motion. The first
type is where the debtor himself has done some act
effectually to prevent the creditor from availing
himself of his cause of action. The second is where the
cause of action is not known or reasonably knowable by
17
the plaintiff, even though this ignorance is not
induced by the defendant. The Court is to weigh the
equitable
nature
of
the
circumstances
in
each
individual case to determine whether prescription will
be tolled.
Frank, 828 F. Supp. 2d at 842-43 (internal citation omitted).
In Frank, the court reasoned that contra non valentem based
on fraud did not apply because there was no affirmative action
taken
to
valentem
hide
the
effects
of
benzene,
but
that
contra
non
based on ignorance of the plaintiff did apply. Id. at
843-45. The Frank court found that there was no evidence in the
complaint
proving
that
(a)
the
plaintiff
had
access
to
the
information about benzene's effects, (b) that she was given a
warning, or (c) that a lay person from outside of the medical or
science field would make the connection between the decedent's
death and his exposure to benzene. Id. at 845. Therefore, contra
non valentem would apply to interrupt prescription, making the
plaintiff's wrongful death and product liability claims timely.3
Id. at 844-45.
The court finds that the same logic applies to the instant
matter. Ms. Leslie's complaint does not allege any facts that
would allow her to avail herself to the doctrine of contra non
3
Note that the Frank plaintiff's complaint was dismissed on other
grounds not at issue in this case (specifically that the plaintiff's claims
were barred by the Louisiana Worker's Compensation Act).
18
valentem based on fraud because there is no indication in the
complaint that Shell lied to Mr. Leslie or
deliberately hid
information. Ms. Leslie urges the Court to analogize the instant
matter to
Evans, 730 So. 2d at 467. In Evans, the allegation of
fraud was that the employer
"notified its employees that it was
having
by
a
study
performed
the
Memorial
Sloan
Kettering
Institute to study cancers in the workplace of petrochemical
workers and that [the employer] would contact them when results
were obtained." Id. at 467. The family assumed that, because they
were never contacted, there was no connection, and alleged that
the employer concealed the results of the study. The Evans court
found that the plaintiffs "pleaded and demonstrated by affidavits
that
the
defendants
affirmatively
and
deliberately
withheld
knowledge they had promised to reveal that plaintiffs possessed a
cause of action and that this fraud prevented the exercise of
their rights." Id. Ms. Leslie does not allege similar facts, but
rather she generally states that Shell failed to inform and
educate employees about the effects of benzene, or that they
failed to take precautions to prevent illness and injury among
those members of the public exposed to their benzene-containing
products. Therefore, as was the case in Frank, this type of
contra non valentem will not apply to interrupt prescription.
19
Though Ms. Leslie has not persuaded the court that the
doctrine of contra non valentem on the basis of fraud applies,
the Court finds that contra non valentem based on ignorance of
the plaintiff does apply.4 As was determined in Frank, using
nearly the same complaint that this Court is faced with, Ms.
Leslie alleges (1) that she never heard or saw anything that
would connect Mr. Leslie's disease to benzene exposure, (2) that
reports about the effects were circulated in certain groups of
which she was not a part, and not among the general public, and
(3)
that
not
even
her
father's
physician
made
the
link.
Therefore, it is not reasonable to expect Ms. Leslie to have
known that she had a claim from the moment of diagnosis, and the
Court sees no reason to discredit her assertion that she did not
know about the connection until May 2013. Therefore, contra non
valentem will serve to interrupt prescription on Ms. Leslie's
wrongful death and product liability claims. Prescription began
to run in May 2013 when Ms. Leslie discovered the connection
between benzene and MDS, making her June 2013 complaint timely.
Therefore, Defendants' motion to dismiss must be denied as to Ms.
4
Because Ms. Leslie
fraud, Defendants argument
existant, and Ms. Leslie's
particularity are moot and
of either argument.
need not rely on contra non valentem based on
that Ms. Leslie's fraud allegations are nonargument that she pleaded fraud with sufficient
the Court will not render an opinion on the merits
20
Leslie's wrongful death and product liability claims.
B. Motion for a More Definite Statement Pursuant to FED. R. CIV.
PRO. 12(e)
Defendants assert that Ms. Leslie does not provide enough
information in her Complaint to allow them to file an answer;
thus the Court should order Ms. Leslie to provide a more definite
statement pursuant to Federal Rule of Civil Procedure 12(e).
Rule 12(e), however, is reserved for pleadings that suffer
from “unintelligibility rather than want of detail.”
2A MOORE’S
FED’L PRAC. ¶ 12.18[1], at 2389 (2d ed. 1985). Ms. Leslie has
answered
the
"who,
what,
where,
when,
why,
and
how,"
that
Defendants demand. Ms. Leslie alleges that Shell knew about the
risks of benzene and failed to inform Mr. Leslie about these
while he worked at Automotive Service in New Orleans from 19461985, which conduct amounted to negligence for which Shell is
liable.
The
Court
finds
that
the
answers
to
Defendants'
questions, listed above, may be just as well answered, if not
better answered, in discovery than they would be through an
amendment of the complaint. See Mitchell, 269 F.2d at 132 (A
party
may
not
discovery.).
use
a
Rule
Therefore,
the
12(e)
motion
Defendants'
definite statement is denied.
21
as
a
substitute
motion
for
a
for
more
Accordingly,
IT IS ORDERED that Defendants' Motion to Dismiss Pursuant to
Rule 12(b)(6) (Rec. Doc. 15) is GRANTED in part and DENIED in
part.
IT IS FURTHER ORDERED that Plaintiff's survival action,
brought under Louisiana Civil Code Article 2315.1, is DISMISSED
with prejudice.
IT IS FURTHER ORDERED that Defendants' Motion for a More
Definite Statement Pursuant to Rule 12(e) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's request for leave to
amend is DENIED.
New Orleans, Louisiana this 23rd day of August, 2013.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
22
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