Hernandez et al v. Dedicated TCS, LLC, et al

Filing 58

ORDER AND REASONS granting 35 Motion to Dismiss for Failure to State a Claim. For the above mentioned reasons, IT IS ORDERED that Defendant Dedicated TCS, LLC's Rule 12(b)(6) Motion to Dismiss is GRANTED. The Plaintiffs' claims against Defendant Dedicated TCS, LLC are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs' motion for leave to file a second amending complaint is DENIED. Signed by Judge Susie Morgan on 3/3/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOENDEL HERNANDEZ, ET AL.
Plaintiffs

CIVIL ACTION

VERSUS

NO. 16-3621

DEDICATED TCS, L.L.C., ET AL.
Defendants

SECTION: “E”(5)

ORDER AND REASONS
Before the Court is Defendant Dedicated TCS, LLC’s (“DTCS”) Rule 12(b)(6)
Motion to Dismiss. 1 Plaintiffs oppose this motion and alternatively request a second
opportunity to amend their complaint pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure. 2 For the following reasons, DTCS’ motion to dismiss is GRANTED.
BACKGROUND
On April 22, 2016, Plaintiffs Joendel Hernandez and Anthony Duckworth filed
their complaint against DTCS and Arkema, Inc. 3 Plaintiffs allege that on or about October
8, 2015, Plaintiffs, employees of DTCS, were assigned to clean a tank car at DTCS’ facility
in New Orleans. The Complaint alleges that DTCS was aware that the tank to be cleaned
contained hazardous and/or toxic chemical vapors and the employees would have to work
in a confined space without ventilation. Plaintiffs allege that DTCS did not test the air
quality prior to ordering plaintiffs to enter the tank car and failed to provide Plaintiffs
with breathing apparatus to ensure their ability to breathe upon entering the tank car.
Plaintiffs allege they immediately lost consciousness as a direct result of the exposure to
hazardous vapors in the tank and the lack of oxygen.

R. Doc. 35.
R. Doc. 42.
3 R. Doc. 1.
1

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Plaintiffs allege that the Occupational Safety and Health Administration conducted
an exhaustive investigation of the incident and concluded that the incident was caused by
the intentional acts of DTCS. 4 Plaintiffs allege that as a result of the incident Joenedel
Hernandez sustained injuries to his heart, lungs and head requiring medical treatment
and Anthony Duckworth sustained injuries to his heart, lungs, back, shoulder and head
requiring medical treatment. 5
On September 1, 2016, Defendant DTCS filed a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure alleging that the Louisiana Workers’
Compensation Act (“LWCA”) bars tort claims against employers by employees injured on
the job unless the employee can prove that the employer is liable for an intentional tort.6
On November 23, 2016, the Court issued an Order requiring Plaintiffs to amend their
complaint to address DTCS’ argument that they failed to plead facts demonstrating their
claims are not barred by the LWCA. 7 On December 7, 2016, Plaintiffs filed their First
Amended Complaint 8 and DTCS’ motion was dismissed as moot. 9 Shortly thereafter on
December 20, 2016, DTCS filed a motion to dismiss Plaintiffs’ supplemental and
amending complaint. 10 Pursuant to the Plaintiffs’ ex parte motion, DTCS’ motion was
continued to January 25, 2017. 11
In its motion to dismiss Plaintiffs’ supplemental and amending complaint, DTCS
argues “Plaintiffs’ Supplemental Complaint has the same defects as the original
Complaint.”

12

Although DTCS acknowledges the Plaintiffs now allege that DTCS

See R. Doc. 1 at 3, R. Doc. 32.
R. Doc. 1 at 4.
6 R. Doc. 13.
7 R. Doc. 25.
8 R. Doc. 32.
9 R. Doc. 33.
10 R. Doc. 35.
11 R. Doc. 40.
12 R. Doc. 35 at 1.
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“intentionally caused” their damages, DTCS contends “[t]hese cosmetic changes do not,
however, solve the problem with Plaintiffs’ claims.” 13 According to DTCS, even “if it is true
that Plaintiffs’ damages stem from [DTCS’] intentional failure to test air quality or provide
safety equipment in violation of OSHA so as to enable Plaintiffs to allege that [DTCS]
intentionally caused their injuries – Plaintiffs have still not asserted a valid intentional
tort claim against [DTCS].” 14
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief. 15 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 16
“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.” 17 The court, however, does not accept as true legal conclusions or mere
conclusory statements, and “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.” 18 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient. 19

Id. at 2.
Id. at 3 (emphasis in original).
15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
17 Id.
18 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
19 Iqbal, 556 U.S. at 663, 678 (citations omitted).
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In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” 20 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
show[n]’—that the pleader is entitled to relief.” 21 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 22
LAW AND ANALYSIS
I.

Plaintiffs Have Not Alleged a Claim Under The Intentional Act Exception to the
LWCA
Under Louisiana law, the exclusive remedy for an employee who is injured while

in the course and scope of his employment is the LWCA, unless the employee can prove
that the injury is the result of the employer’s “intentional act.” 23 As DTCS correctly
identifies, “The Louisiana Supreme Court has held that ‘intentional act’ in this context
means ‘intentional tort.’”24 As the Louisiana Supreme Court explained in Bazely, “The
meaning of intent in this context is that the defendant either desired to bring about the
physical results of his act or believed that they were substantially certain to follow from
what he did.” 25 Stated differently, “Intent is not, however, limited to consequences which
are desired. If the actor knows that the consequences are certain, or substantially certain,
to result from his act, and still goes ahead, he is treated by the law as if he had in fact
desired to produce the result.”26
Plaintiffs allege that despite numerous OSHA citations, including some identified
by OSHA as “willful” violations, DTCS sent the Plaintiffs in to clean the tank car

Twombly, 550 U.S. at 555.
Id. (quoting Fed. R. Civ. P. 8(a)(2)).
22 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).
23 See La. Rev. Stat. §§ 23:1032(A), (B) (1990).
24 R. Doc. 35-1 at 4 (quoting Bazely v. Tortorich, 397 So. 2d. 475, 482 (La. 1981).
25 Bazely, 397 So. 2d at 482.
26 Id. (citations omitted).
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containing hazardous chemicals without (1) testing the quality of the air, (2) supplying
lifelines, (3) ensuring that employees were provided necessary respiratory protection, (4)
following routine safety rules, (5) training employees regarding working in confined
spaces where chemicals are present; or (6) ensuring that adequately trained rescue
personnel could respond to the facility in a timely manner. 27 Plaintiffs allege that DTCS
intentionally caused injuries to the plaintiffs by engaging in a deliberate pattern of “failing
to test the air quality in the tankers prior to sending the workers into the tank cars to work
when they had absolute knowledge the cars might contain hazardous chemicals.” 28 The
Court finds that even accepting the allegations in the Plaintiffs’ Supplemental and
Amending Complaint as true, Plaintiffs have not sufficiently alleged a viable cause of
action against DTCS under the intentional act exception to the LWCA.
“The standard for prevailing on a claim of intentional tort under Louisiana law is
extremely high.” 29 As the Louisiana Supreme Court explained in Reeves v. Structural
Preservation Systems, Louisiana courts of appeal have “narrowly construed the
intentional act exception according to its legislative intent and have almost universally
held that employers are not liable under the intentional act exception for violations of
safety standards or for failing to provide safety equipment.” 30 As explained in Reeves,
“Believing that someone may, or even probably will, eventually get hurt if a workplace
practice is continued does not rise to the level of an intentional act, but instead falls within
the range of negligent acts that are covered by workers’ compensation.” 31

R. Doc. 32 at 1-2.
R. Doc. 32 at 1.
29 Roux v. Pinnacle Polymers, L.L.C., 2014 WL 129815, at *3 (E.D. La. Jan. 14, 2014).
30 731 So. 2d 208, 211-12 (La. 1999) (collecting cases).
31 Id. at 212.
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Establishing that a workplace injury resulted from an intentional act under the
LWCA requires evidence that the employer either (1) consciously desired the physical
result of his act, whatever the likelihood of that result happening from his conduct, or (2)
knew that result was substantially certain to follow from his conduct, whatever his desire
may have been as to the result. 32 Louisiana courts have explained that “[t]he phrase
substantially certain to follow means more than a reasonable probability that an injury
will occur.” 33 Other Louisiana courts have interpreted that “substantial certainty” is the
“equivalent to inevitable, virtually sure and incapable of failing.” 34 As the court in
Gardner explained:
Believing that someone may, or even probably will eventually get hurt if
workplace practice is continued does not rise to the level of an intentional
act, but instead falls within the range of negligent acts that are covered by
workers’ compensation. Neither knowledge and appreciation of a risk nor
reckless or wanton conduct by an employer constitutes an intentional
wrongdoing. Further, even if the alleged conduct goes beyond aggravated
negligence, and includes such elements as knowingly permitting a
hazardous work condition to exist, knowingly ordering a claimant to
perform an extremely dangerous job, or willfully failing to furnish a safe
place to work, this still falls short of the actual intention to injure that robs
the injury of accidental character. 35
The Plaintiffs do not allege that DTCS consciously desired that they sustain their
injuries. In Plaintiffs’ opposition, they argue that “[b]ecause the Defendant has been
reprimanded by OSHA multiple times for repeat violations directed to the identical safety
issues that led to the [P]laintiffs’ injuries, the Defendant was aware that such a result was
substantially certain to follow from [its] conduct.” 36 However, there is no allegation in
either the initial Complaint or the Supplemental and Amending Complaint that DTCS was

See Moreau v. Moreau’s Material Yard, L.L.C., 98 So. 3d 297 (La. 2012).
See Gardner v. Graft, 137 So. 3d 69, 75 (La.App. 2 Cir.2014) (internal quotations and citations omitted).
34 Roux, 2014 WL 129815, at *3 (quoting King v. Schulykill Metals Corp., 581 So. 2d 300, 302 (La.App. 1st
Cir.1991)).
35 Gardner, 137 So. 3d at 75 (citations omitted).
36 R. Doc. 42 at 6.
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aware that Plaintiffs’ injuries were substantially certain to follow from its conduct. Even
if this conclusory allegation or legal conclusion had been included, there are not sufficient
factual allegations to allow the Court to draw the reasonable inference that the Plaintiffs’
injuries were equivalent to inevitable, virtually sure, and incapable of failing to occur as a
result of Defendant’s actions or inactions.
Even accepting the allegations in their complaint as true, the Court finds the
Plaintiffs have not sufficiently alleged that DTCS knew that the Plaintiffs’ injuries were
substantially certain to follow as a result of the actions it did or did not take. Instead, the
Amended Complaint includes allegations of the kind Louisiana courts have found to be
insufficient to establish intentional tort liability under the LWCA. DTCS’ 12(b)(6) motion
to dismiss for failure to state a claim under the intentional act exception to the LWCA is
granted. 37
II.

Plaintiffs’ Alternative Motion for Leave to Amend Their Complaint
Alternatively, Plaintiffs request a second opportunity to amend their complaint

pursuant to Rule 15(a) of the Federal Rules of Civil Procedure if the Court finds that
Plaintiffs’ Supplemental and Amending Complaint fails to state a cause of action for an
intentional tort against DTCS. 38 The Plaintiffs were granted leave to file an amended
complaint following the filing of DTCS’s first motion to dismiss. 39 In its first motion to
dismiss, DTCS raised the LWCA bar to tort claims. Even though given the opportunity,
Plaintiffs Supplemental and Amending Complaint does not adequately set forth factual

Throughout their opposition, Plaintiffs argue the cases cited by Defendant are distinguishable, at least in
part, because the cases cited by DTCS were not decided at the pleadings stage. See, e.g., R. Doc. 42 at 6-7.
However, the Fifth Circuit has affirmed the granting of a defendant’s motion to dismiss when a plaintiff’s
complaint “fall[s] in line with the cases that held that violations of safety standards or failing to provide
safety equipment d[o] not demonstrate that the employer knew to a substantial certainty that an injury
would occur.” See Harper v. Boise Paper Holdings, L.L.C., 575 F. App’x 261, 264 (5th Cir. 2014).
38 R. Doc. 42 at 13.
39 R. Doc. 25.
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allegations to support this claim. In Great Plains Trust Company v. Morgan Stanley
Dean Witter & Company, the Fifth Circuit explained, “In view of the consequences of
dismissal on the complaint alone, and the pull to decide cases on the merits rather than
on the sufficiency of pleadings, district courts often afford plaintiffs at least one
opportunity to cure pleading deficiencies before dismissing a case.” 40 The Fifth Circuit
has also explained that one of the valid reasons for a district court to deny a plaintiff’s
request for leave to amend is because the party has failed to cure deficiencies by
amendments previously allowed. 41 The Plaintiff’s alternate motion for leave to file a
second amended complaint is not warranted.
CONCLUSION
For the abovementioned reasons, IT IS ORDERED that Defendant Dedicated
TCS, LLC’s Rule 12(b)(6) Motion to Dismiss 42 is GRANTED. The Plaintiffs’ claims
against Defendant Dedicated TCS, LLC are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to file a second
amending complaint 43 is DENIED.
New Orleans, Louisiana, this 3rd day of March, 2017.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

313 F.3d 305, 329 (5th Cir. 2002).
See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981).
42 R. Doc. 35.
43 See R. Doc. 42 at 13.
40
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