Legeaux et al v. Borg-Warner Corporation et al

Filing 44

ORDER AND REASONS denying #37 Motion for Leave to File First Supplemental and Amended Complaint. Signed by Magistrate Judge Karen Wells Roby on 10/14/16. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NOLAN LEGEAUX, ET AL

CIVIL ACTION

VERSUS

NO:

BORG-WARNER CORPORATION, ET AL

SECTION: “I” (4)

16-13773

ORDER;
Before the Court is a Motion for Leave to File First Supplemental and Amended
Complaint (R. Doc. 37) filed by Plaintiffs Nolan and Susan Legeaux seeking an order from the
Court to allow the Plaintiffs to file a supplemental and amended complaint in order to add TaylorSeidenbach, Inc. as a defendant and to reflect additional facts and information. The motion is
opposed. R. Doc. 41. The motion was submitted on October 5, 2016. For the following reasons,
the motion is DENIED.
I.

Background
This action was removed from the Civil District Court for the Parish of Orleans on August

11, 2016 on the basis of 28 U.S.C. §§ 1332 diversity jurisdiction on the motion of Defendants
Puget Sound Commerce Center, Inc., Vigor Industrial LLC, and Vigor Shipyards, Inc. R. Doc. 1.
In particular, the Plaintiffs allege that Plaintiff Nolan Legeaux worked in construction, at industrial
plants, and at ship yards from 1965 through 1979 during which time he was exposed to asbestos.
R. Doc. 1-1, p. 6. Plaintiffs further allege that Nolan Legeaux suffered severe injuries and damages
as a result of his exposure to asbestos, particularly Lung Cancer. Id. at p. 6-7. Plaintiffs filed the
instant action originally against twenty-three Defendants who manufactured, sold, designed,
supplied, distributed, mined, milled, re-labeled, re-sold, processed, applied, or installed products
containing asbestos and five Defendants who employed or owned the premises where the Plaintiff
worked. The Plaintiffs seek damages from the Defendants under theories of negligence, product

1

liability, strict liability against premise owners, and strict liability against employers. R. Doc. 1-1,
p. 8-15.
At this time, the Plaintiffs seek to add non-diverse Taylor-Seidenbach, Inc. (“TaylorSeidenbach”) as a defendant. Defendants Puget Sound Commerce Center, Inc., Vigor Industrial
LLC, and Vigor Shipyards, Inc. oppose the motion, arguing that the motion is “simply a shot at
the Court’s diversity jurisdiction.” R. Doc. 41, p. 2.
II.

Standard of Review
Generally, Rule 15(a) allows a party to amend its pleadings “only with the other party’s

written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Moreover, the Rule urges that the
Court “should freely give leave when justice so requires.” Id. In taking this liberal approach, the
Rule “reject[s] the approach that pleading is a game of skill in which one misstep by counsel may
be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a
proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957).
“Rule 15(a) requires a trial court ‘to grant leave to amend freely,’ and the language of this
rule ‘evinces a bias in favor of granting leave to amend.’” Jones v. Robinson Prop. Grp., 427 F.3d
987, 994 (5th Cir. 2005) (internal quotations marks omitted) (quoting Lyn–Lea Travel Corp. v.
Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002)). When denying a motion to amend, the court must
have a “substantial reason” considering such factors as “‘undue delay, bad faith or dilatory motive
on the part of the movant, repeated failures to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party ...and futility of the amendment.’” Marucci Sports,
LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones, 427 F.3d
at 994). An amendment is deemed to be futile if it would be dismissed under a Rule 12(b)(6)
motion. Id. (citing Briggs v. Miss., 331 F.3d 499, 508 (5th Cir 2003)).

2

Nonetheless, the Court “should scrutinize an amended pleading naming a new nondiverse
defendant in a removed case ‘more closely than an ordinary amendment.’” Moore v. Manns, 732
F.3d 454, 456 (5th Cir. 2013) (quoting Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th
Cir.1987)). This increased scrutiny is rooted in 28 U.S.C. 1447(e), which states that “[i]f after
removal the plaintiff seeks to join additional defendants whose joinder would destroy the subject
matter jurisdiction, the Court may deny joinder or permit joinder and remand the action to the State
Court.” The Fifth Circuit has developed a four-part analysis for determining if the amendment
should be allowed: “[1] the extent to which the purpose of the amendment is to defeat federal
jurisdiction, [2] whether plaintiff has been dilatory in asking for amendment, [3] whether plaintiff
will be significantly injured if amendment is not allowed, and [4] any other factors bearing on the
equities.” Hensgens, 833 F.2d at 1182; see also, Priester v. JPMorgan Chase Bank, N.A., 708 F.3d
667, 679 (5th Cir. 2013) (noting that Hensgens factors are used “in determining whether to permit
joinder of non-diverse parties”).
III.

Analysis
Here, the Plaintiffs have filed a motion for leave to a file supplemental and amended

complaint. R. Doc. 37. The Plaintiffs seek to add the non-diverse Taylor-Seidenbach as a defendant
to the instant litigation. Id.
The Defendants have opposed the motion, arguing that the motion amounts to a thinly
veiled attempt to defeat the Court’s subject matter jurisdiction. Because the Plaintiffs are
attempting to add a non-diverse party through their amendment, the Hensgens factors are the
appropriate means of evaluating the Plaintiffs’ motion. See, Priester, 708 F.3d at 679. Applying
those factors to the instant motion, the Court finds that the factors weigh in favor of denying the
Plaintiffs’ request.

3

A. First Hensgens Factor
The first Hensgens factor, the extent to which the purpose of the amendment is to defeat
federal jurisdiction, weighs in favor of denying the motion to amend. “When analyzing the first
Hensgens factor, district courts have considered whether the plaintiffs knew or should have known
the identity of the non-diverse defendant when the state court complaint was filed.” Schindler v.
Charles Schwab & Co., Inc., No. 05-0082, 2005 WL 1155862, at *4 (E.D. La. May 12, 2005)
(Africk, J.); In re Norplant Contraceptive Prods. Liab. Litig., 898 F. Supp. 429, 431 (E.D. Tex.
1995) (“[I]n the cases in which it was apparent that the Plaintiff knew about the nondiverse
defendant's activities at the time the suit was originally brought in state court but still chose not to
include that party as a defendant, the courts have viewed the later attempt to add the nondiverse
defendant as nothing more than an attempt to destroy diversity.”). “However, courts have also
recognized that when a plaintiff states a valid claim against a defendant, it is unlikely that the
primary purpose of bringing those defendants into a litigation is to destroy diversity jurisdiction.”
Schindler, 2005 WL 1155862, at *3.
Here, it is unclear whether the Plaintiffs knew or should have known about TaylorSeidenbach’s involvement at the time the suit was filed in the state court. First, the Plaintiffs make
no indication in the instant motion as to when they learned of Taylor-Seidenbach’s alleged
involvement other than to say that they received “additional information.” R. Doc. 37-1, p. 1. This
presents two problems: 1) “additional information” sounds as if the Plaintiffs were potentially
aware of Taylor-Seidenbach to some extent; and 2) the Plaintiffs have not indicated what
information they have obtained demonstrating that Taylor-Seidenbach is only now a viable
defendant. Moreover, the amended and supplemental complaint offers little help to the analysis as
the Plaintiffs vaguely state that Taylor-Seidenbach “at various times, while Mr. Legeaux was
4

employed at Avondale Shipyards, Ingalls Shipyards, and/or Tenneco, Inc. from 1966 through
1972, Taylor-Seidenbach manufactured, sold, distributed, supplied, used or retained asbestos or
asbestos-contained products. . . .” R. Doc. 37-2, p. 1-2 (emphasis added).
Second, the Court notes that in a motion not before the undersigned the Plaintiffs have
offered a little more light on the potential addition of Taylor-Seidenbach. In that motion, the
Plaintiffs state that during another deposition and subsequent invesigation conducted by Plaintiffs’
counsel in another case that they became aware of Taylor-Seidenbach’s responsibility for the
“application and maintenance of the insulation material at Avondale Shipyard in New Orleans.”
R. Doc. 40-1, p. 5.
However, even if the Plaintiffs had made these arguments in its instant motion, the Court
would still be skeptical of the Plaintiffs’ request. First, the Court has concerns about the propriety
of considering the allegations and what if any credence to give them. The Plaintiffs in the instant
matter have only one counsel enrolled in the matter, Mr. Alex Dunn, Jr.; nonetheless, three other
attorneys—Mssrs. Randy Gori, James Ferrell, and Matthew Dillahunty (“Unenrolled Counsel”)
who are all members of the bar of states other than Louisiana —have signed onto the instant motion
as well as the original complaint but have not submitted applications to appear pro hac vice or
otherwise appear before this Court. There is also no indication on the record that Unenrolled
Counsel made any similar motion to appear before the state court.
Besides the obvious concerns of unenrolled counsel appearing on motions presenting
arguments before this Court, the Court is particularly concerned given that the attorney present at
the deposition wherein Taylor-Seidenbach’s involvement allegedly became known was Mr.
Dillahunty, an unenrolled counsel. The Court is not sure what credence if any to give the
allegations derived from an attorney not properly before this Court, and this strengthens the specter
of suspicion surrounding the motion.
5

Additionally, Defendants have supplied pages from that deposition that show that TaylorSeidenbach’s counsel merely noted on the record that Taylor-Seidenbach was not a party to the
litigation, that it reserved its right should it be made party to that litigation, and noted that it was
not appearing in the litigation. R. Doc. 41-1, p. 2, Tr. 73. From the pages of the deposition provided
to the Court, the Court is not convinced why the Plaintiffs would have learned that TaylorSeidenbach should be involved in the instant litigation at that time or even if the deposition was
even in connection to a similar time period or allegations as being made in this case. Moreover,
assuming arguendo that the deposition in the other case was connected to asbestos and related
claims, Taylor-Seidenbach’s presence there suggests to the Court that the Plaintiffs possibly should
have known of Taylor-Seidenbach’s involvement through due diligence because there must have
existed enough facts and information for Taylor-Seidenbach to decide to be present there. 1
Ultimately, this confusion as to what the Plaintiffs knew or should have known about
Taylor-Seidenbach’s involvement does not aid the Plaintiffs’ request to add Taylor-Seidenbach as
a party now. Rather, given this confusion and the surrounding circumstances of the instant
motion—namely that the amendment would likely defeat diversity jurisdiction, that the instant
motion was filed shortly before a motion to remand, that the Plaintiffs’ have not filed a response
to the allegations that the motion is to defeat jurisdiction, and that the original complaint explicitly
disavowed any federal cause of action (R. Doc. 1-1, p. 5)—the Court is highly suspicious of the
Plaintiffs’ motives.

1

The Court also expresses some skepticism that the Plaintiff could not have identified TaylorSeidenbach given that Taylor-Seidenbach is allegedly responsible for insulation and the Plaintiff’s
ability to identify over twenty other defendants involved with asbestos related products. Indeed,
the Court also notes that Taylor-Seidenbach has been a defendant in a number of asbestos related
cases in this circuit and even this district. See, e.g., Bourke v. Exxon Mobil Corp., No. 15-5347,
2016 WL 836872, at *6 (E.D. La. Mar. 4, 2016).
6

However, regardless of the Court’s concern about the Plaintiffs’ motive, “[w]ith regard to
the first Hensgens factor, the case law indicates that as long as the plaintiff states a valid claim
against the new defendants, the principal purpose of the amendment is not to destroy diversity
jurisdiction.” Herzog v. Johns Manville Prod. Corp., No. 02-1110, 2002 WL 31556352, at *2
(Nov. 15, 2002) (Fallon, J.); Bienaime v. Kitzman, No. 00-473, 2000 WL 381932, at *2 (E.D. La.
Apr. 12, 2000) (Africk, M.J.) (same). “To prevail in an asbestos case in Louisiana, a plaintiff must
establish by a preponderance of the evidence that (1) the clamant was exposed to asbestos from
the defendant's product and (2) the exposure substantially caused the claimant's injury.” Laurent
v. New Orleans City, No. 14-2022, 2015 WL 5254723, at *2 (E.D. La. Sept. 9, 2015) (citation
omitted). Here, the Plaintiffs allege “at various times, while Mr. Legeaux was employed at
Avondale Shipyards, Ingalls Shipyards, and/or Tenneco, Inc. from 1966 through 19972, TaylorSeidenbach manufactured, sold, distributed, supplied, used or retained asbestos or asbestoscontained products thereby exposing Mr. Legeaux to the inhalation of products causing irreparable
and progressive lung damage and which led to and directly resulted in Mr. Legeaux’s lung cancer
which was diagnosed on June 16, 2015.” R. Doc. 37-2, p. 1-2. While the allegations made in the
complaint are not perhaps as precise as possible, the Court finds that the allegations are enough to
state a valid claim against Talyor-Seidenbach under Louisiana in connection to the asbestos related
claims.
Ultimately, the Court finds that the first factor weighs slightly against granting the
amendment because of the highly suspicious circumstances surrounding the amendment. See
Schindler, 2005 WL 1155862, at *4 (finding first factor weighed slightly against granting
amendment where Court opined plaintiff’s motivation was likely to defeat jurisdiction although
plaintiff stated a valid claim). “However, the fact that one factor might weigh in favor of denying
the amendment is not dispositive of this Court's inquiry. . .” Id.
7

B. The Second Hensgens Factor
The second Hensgens factor, whether the Plaintiff has been dilatory in asking for
amendment, weighs in favor of granting the amendment. The request to amend comes
approximately one month after the Plaintiffs argue they learned of Taylor-Seidenbach’s
involvement and less than one month after the suit was removed. Moreover, there has not been a
scheduling order issued as of yet; nor has there been any significant steps taken in the proceeding.
See Schindler, 2005 WL 1155862, at *4 (finding Plaintiff not dilatory where “Plaintiff requested
the amendment a month and a half after she filed her state court petition and less than 30 days after
the case was removed to federal court.”); Herzog, 2002 WL 31556352, at *2 (“[T]he same cases,
when applying the second Hensgens factor, found that when no trial or pre-trial dates were
scheduled and no significant activity beyond the pleading stage has occurred, the Plaintiff was not
dilatory in seeking to amend the complaint.”). As such, the second factor weighs in favor of
allowing the amendment.
C. The Third Hensgens Factor
The third Hensgens factor, whether plaintiff will be significantly injured if amendment is
not allowed, weighs against granting the amendment. While the rule states “significant injury,” the
general approach in this District has been focused mostly on the inefficiency, waste of judicial
resources, danger of inconsistent results, and cost to the Plaintiff that results from forcing the
Plaintiffs to bring a separate suit on the valid claim. See id. (“[T]he third Hensgens factor favors
the Plaintiff because forcing the Plaintiff to file a separate suit on the same facts is inefficient and
a waste of judicial resources.”). 2 Given this emphasis, the Court feels that it must recognize these

2
See also Schindler, 2005 WL 1155862, at *4 (citation omitted) (“A plaintiff may be prejudiced
considering the financial burden imposed by forcing such a plaintiff to maintain two parallel
lawsuits arising out of the same facts in two different courts. District courts have also noted that
forcing a plaintiff to maintain two lawsuits in two different courts which arise out the same facts
wastes judicial resources and may lead to inconsistent results.”); Jade Marine, Inc. v. Detroit

8

concerns. By forcing the Plaintiffs to file an action in state court against Taylor-Seidenbach, the
Plaintiffs will likely incur costs for litigating in parallel proceedings in both state and federal court
on similar legal issues. However, the Court does not find these costs to necessarily be dispositive
of the issue nor necessarily significant.
The Defendants argue that the Plaintiffs will not be significantly injured by not allowing
the amendment because the Plaintiffs have not proffered any reason why they would be injured
and the potential liability of the Defendants would be solidary among liable Defendants if the
Plaintiffs recover. R. Doc. 41, p. 8. Indeed, courts have recognized that “[a]nother consideration
bearing on [the significant injury] factor is whether a plaintiff can be afforded complete relief
without the amendment.” Schindler, 2005 WL 1155862, at *4 (citing Jerido v. Am. Gen. Life and
Acc. Ins. Co., 127 F.Supp.2d 1322, 1325 (M.D.Ala.2001)); see also Anzures v. Prologis Texas I
LLC, 886 F. Supp. 555, 565 (W.D. Tex. 2012) (same). Moreover, the Court finds merit to the
Defendants’ argument. Because the Plaintiffs’ alleged exposure occurred prior to 1980, the
potential liability is solidary3 among the Defendants, such that the Plaintiff can be afforded
“complete relief” should his claim be successful. See Cole v. Celotex Corp., 599 So.2d 1058, 1068
(La. 1992) (“[W]e find that substantial injury producing exposures giving rise to plaintiffs' claims

Diesel Corp., No. 02-2907, 2002 WL 31886726, at *2 (E.D. La. 2002) (Vance, J.) (“Third, and
finally, the Court notes that denial of amendment would prejudice plaintiff by requiring plaintiff to
fight a two-front war, litigating against Detroit Diesel and S & S in federal court while litigating
against Marquette, on related claims, in state court.”); Bienaime, 2000 WL 381932, at *5 (“[I]f the
amendment is not allowed, [Plaintiff] will be forced to file a separate lawsuit against [Defendant]
in state court. To put [Plaintiff] in such a position, would be a waste of judicial resources.”);
Burton v. Mentor Corp., No. 96-2078, 1996 WL 751063, at *2 (E.D. La. Oct. 29, 1996)
(Wilkinson, M.J.) (“Substantively, plaintiff would suffer no real harm if the amendment were
denied since it appears that his claims against Touro could still be asserted in state court.
Procedurally, however, considerations of cost and efficiency militate in favor of not requiring
plaintiff to prosecute two separate claims in two forums when both arise generally from the same
set of facts and circumstances.”).
3
“An obligation is solidary for the obligors when each obligor is liable for the whole performance.
A performance rendered by one of the solidary obligors relieves the others of liability toward the
obligee.” La. Civ. Code art. 1794.
9

occurred before the August 1, 1980, effective date of Act 431, and, therefore, affirm the Third
Circuit's holding that the provisions of the Louisiana Comparative Fault Law are inapplicable and
that this case is governed by pre-Act law—contributory negligence and virile share principles.”);
See also, Blando v. Business Men’s Assur. Co. of America, No. 12-0559, 2012 WL 6699090, at *4
(W.D. Mo. Aug. 21, 2012) (citing Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7 (1990)) (finding no
significant injury where defendant joint tortfeasor in asbestos-exposure case was not added under
same Hengens-style test). Because the Plaintiffs can be afforded complete relief without the
amendment, the Court finds that there would be no “significant injury” in denying the amendment.
D. The Fourth Hensgens Factor
The fourth Hensgens factor, any other factors bearing on the equities, weighs in favor of
denying the amendment. As this Court has previously explained,
When determining “other factors,” the Court typically balances the competing
interests of the parties. Courts have noted that the defendant has a compelling
interest in maintaining the federal forum. The rationale behind removal statutes is
that diverse defendants have an option of selecting a state or federal forum.
However, there is also the danger of parallel federal/state proceedings with the
inherent dangers of inconsistent results and the waste of judicial resources.
Neely v. Scottsdale Ins. Co., No. 14-0048, 2014 WL 1572441 at *8 (E.D. La. Apr. 17, 2014) (Roby,
M.J.) (internal quotations and citations omitted). Here, the Defendants cite their “compelling
interest” in choosing the federal forum. R. Doc. 41, p. 8. While the Court notes that this is generally
not enough to keep the Defendants in the federal forum, the Court’s findings in relation to the first
and third Hengens factors—namely that the Plaintiff likely has an improper motive to the
amendment and that there is no significant injury to the Plaintiff in denying the amendment—
strengthens the weight of the Defendants’ interest in the federal forum. As such, the overall balance
weighs in favor of denying the amendment.

10

The Court thus finds that three of the four Hensgens factors weigh in favor of denying the
amendment. While the Plaintiffs have not been dilatory in seeking the amendment, timeliness is
not a panacea for the Court’s concerns with the diversity defeating addition of a non-diverse
defendant. Therefore, the motion for leave to file is denied.
IV.

Order
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion for Leave to File First Supplemental and

Amended Complaint (R. Doc. 37) is DENIED.
New Orleans, Louisiana, this 14th day of October 2016.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

11