Zuniga v. Masse Contracting, Inc. et al

Filing 46

ORDER AND REASONS granting in part 28 Motion to Dismiss for Failure to State a Claim. All of Plaintiffs' claims against all Defendants are dismissed with prejudice, save their claim for race discrimination under 42 U.S.C. 1981. All claims a gainst Craig Masse are dismissed with prejudice. Plaintiffs were previously granted leave to amend the deficiencies of their Complaint and have failed to do so. Accordingly, additional leave is not granted. Signed by Judge Jane Triche Milazzo. (Reference: All Cases)(ecm)

Case 2:16-cv-13909-JTM-JVM Document 46 Filed 11/20/17 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LUIS ALBERTO ZERON ZUNIGA

CIVIL ACTION

VERSUS

NO: 16-13909 c/w 1613975

MASSE CONTRACTING, INC ET AL.

SECTION: “H”(1)
(Applies to all cases)

ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss (Doc. 28). For the
following reasons, the Motion is GRANTED IN PART.
BACKGROUND
Plaintiffs Luis-Alberto Zeron Zuniga and Ubence Meza-Orellana allege
that they were recruited by Defendant Four Star Enterprises, LLC in
Honduras under a visa program to be welders in the United States. After
paying for the visa and arriving in the United States, however, Plaintiffs allege
that they were trafficked to Defendant Masse Contracting, Inc. (“Masse”) to
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work as general laborers. They allege that they were housed by Masse and
that room, board, and transportation were deducted from their pay—bringing
their pay below minimum wage.

They also allege that they were paid

separately by subcontractors in order to avoid overtime pay.
In addition, Plaintiffs allege that they sustained physical injuries during
their time working for Masse. First, they allege that while demolishing a World
War II era Navy Destroyer at Defendant Bollinger Shipyards, LLC, they were
exposed to asbestos. They allege they were not given any protective gear while
doing this dangerous work and now fear contracting mesothelioma. Second,
each Plaintiff alleges that he was injured in separate accidents while working
on the destroyer. Zuniga alleges that he suffered an injury to his knee and
back on August 17, 2015. Meza-Orellana alleges that he suffered a head injury,
which resulted in a concussion and brain injury, while working aboard the
destroyer on August 21, 2015.
Plaintiffs bring claims under the Trafficking Victims Protection
Reauthorization Act of 2003 (“TVPA”), the Louisiana Victims of Human
Trafficking Act (“LVHTA”), and the Fair Labor Standards Act (“FLSA”).
Plaintiffs also bring claims for civil rights conspiracy under 42 U.S.C. §
1985(3), race discrimination under 42 U.S.C. § 1981, and state law negligence
and intentional torts. Defendants are Masse; Craig Masse; Bollinger
Shipyards, LLC; Bollinger Shipyards Lockport, LLC; Bollinger Calcasieu,
LLC; and Four Star Enterprises, LLC. This Court previously granted
Defendants’ first Motion to Dismiss on the record at oral argument and allowed
the Plaintiffs an opportunity to amend their Complaints, which were brought
in two separate but consolidated actions. Plaintiffs thereafter filed a joint First
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Amended Complaint on February 7, 2017, and Defendants’ Second Motion to
Dismiss, or alternatively Motion for a More Definite Statement, followed. This
Court will address each of Defendants’ arguments in turn.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.” 1 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw
reasonable inference that the defendant is liable for the misconduct alleged.” 2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 3 The court need not, however,
accept as true legal conclusions couched as factual allegations. 4 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true. 5 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim. 6

The court’s review is limited to the

complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint. 8

1Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
2 Id.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
4 Iqbal, 556 U.S. at 678.
5 Id.
6 Lormand, 565 F.3d at 255–57.
8 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
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LAW AND ANALYSIS
Defendants assert arguments for dismissal of each of Plaintiffs’ claims.
This Court will address each claim in turn.
A. State Law Negligence and Intentional Torts

First, Defendants argue that Plaintiffs cannot succeed on their claims

of workplace injury because the Louisiana Worker’s Compensation statute is
their exclusive remedy for negligence-based workplace injuries. 9

They

therefore argue that worker’s compensation law bars Zuniga’s claims
regarding his knee and back injury and Meza’s claims regarding his head
injury, as well as their claims regarding their fear of contracting mesothelioma,
an occupational disease.
Plaintiffs contend that their claims for workplace injury fall within the
intentional act exception of Louisiana’s worker’s compensation law. 10 The
Louisiana Supreme Court has held that in an act is intentional when “the
person who acts either (1) consciously desires the physical result of his act,
whatever the likelihood of that result happening from his conduct; or (2) knows
that the result is substantially certain to follow from his conduct, whatever his
desire may be as to that result.” 11 Plaintiffs argue that Defendants
intentionally trafficked them to an illegal job where they were injured. They
argue that by requiring Plaintiffs to work in an unreasonably dangerous
environment they knew that their injuries were substantially certain to follow.
See La. Rev. Stat. § 23:1032 (“Except for intentional acts provided for in Subsection
B, the rights and remedies herein granted to an employee or his dependent on account of an
injury, or compensable sickness or disease for which he is entitled to compensation under
this Chapter, shall be exclusive.”).
10 See id.
11 Reeves v. Structural Pres. Sys., 731 So. 2d 208, 211 (La. 1999).
4
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The Louisiana Supreme Court has stated that:
“Substantially certain to follow” requires more than a reasonable
probability that an injury will occur and “certain” has been defined
to mean “inevitable” or “incapable of failing.” [A]n employer’s mere
knowledge that a machine is dangerous and that its use creates a
high probability that someone will eventually be injured is not
sufficient to meet the “substantial certainty” requirement.
Further, mere knowledge and appreciation of a risk does not
constitute intent, nor does reckless or wanton conduct by an
employer constitute intentional wrongdoing. 12
Plaintiffs’ Complaint alleges that, “Defendants knew or should have known
that the working conditions at Bollinger would result in the injuries sustained
and Defendants consciously chose to place Plaintiffs in harms [sic] way.” 13
These allegations do not rise to the level of substantially certain or inevitable.
Indeed, courts have held that knowingly allowing employees to be exposed to
harmful work conditions does not constitute an intentional act. 14 Louisiana
courts have also “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.” 15 Accordingly, Plaintiffs’ claims for physical
injuries do not fall within the intentional tort exception of the worker’s

Id. (internal citations and quotations omitted).
Doc. 24.
14 See Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 850 (E.D. La. 2011), on
reconsideration in part, No. 11-871, 2012 WL 1230736 (E.D. La. Apr. 12, 2012) (“These
allegations do not demonstrate Shell was ‘substantially certain’ Mr. Frank would be
diagnosed with ALL Leukemia due to his exposure to benzene and benzene-related
substances, but rather indicate that Shell ‘knowingly permitt[ed] a hazardous work condition
to exist, knowingly order[ed] claimant to perform an extremely dangerous job, or willfully
fail[ed] to furnish a safe place to work,’ all of which the Louisiana Supreme Court holds is
insufficient for an intentional tort.”).
15 Reeves, 731 So. 2d at 211.
5
12
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compensation act and are therefore barred by the act’s exclusivity provision.
Plaintiffs’ claims for physical injuries are dismissed with prejudice.
B. FLSA
Defendants next argue that Plaintiffs’ Complaint fail to state an FLSA
claim. In order to state a claim for unpaid overtime or minimum wages under
the FLSA, a plaintiff must plead: “(1) that there existed an employer–employee
relationship during the unpaid . . . periods claimed; (2) that the employee
engaged in activities within the coverage of the FLSA; (3) that the employer
violated the FLSA’s overtime or minimum wage requirements; and (4) the
amount of overtime or minimum wage compensation due.” 16 Defendants
contend that Plaintiffs have not alleged an FLSA claim because they (1) have
not alleged an employee–employer relationship with three of the defendants,
(2) they do not allege that the defendants are subject to FLSA regulations, and
(3) they do not allege the amount of compensation owed.
“Allegations of a complaint must be sufficient to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” 17 This
notice requirement is satisfied in the FLSA context when the complaint
contains the “approximate date ranges, as well as the approximate number of
hours worked” for which the plaintiff claims he was under-compensated. 18

Mejia v. Brothers Petroleum, LLC, No. 12-2842, 2015 WL 3619894, at *2 (E.D. La.
June 9, 2015) (quoting Johnson v. Heckmann Water Resources, Inc., 758 F.3d 627, 630 (5th
Cir. 2014)).
17 Kidwell v. Dig. Intelligence Systems, LLC, No. 13-4064, 2014 WL 4722706, at *4
(N.D. Tex. Sept. 22, 2014) (quoting Twombly, 550 U.S. at 555).
18 England v. Adm’rs of the Tulane Educ. Fund, No. 16-3184, 2016 WL 3902595, *3
(E.D. La. July 19, 2016).
6
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Rule 8(a) does not require an FLSA complaint to be “replete with detailed
factual allegations” so long as it provides the defendant with fair notice. 19
Plaintiffs’ allegations, however, are insufficient to satisfy these
requirements. Plaintiffs do not allege a date range for which Plaintiffs worked,
an approximation of the hours for which they were not compensated, or any
instance in which they recall not being paid overtime. In Plaintiffs’ Complaint,
they allege both that they were paid $12.00 per hour and that they were paid
minimum wage. In addition, Plaintiffs’ Complaint does not allege which
Defendant they consider to be their employer and whether that entity is
subject to the provisions of the FLSA.

Accordingly, these allegations are

insufficient to put Defendants on notice regarding Plaintiffs’ FLSA claims, and
those claims are therefore dismissed.
C. Conspiracy under § 1985
Next, Defendants move for dismissal of Plaintiffs’ claims for conspiracy
under 42 U.S.C. § 1985. Section 1985(3) prohibits a conspiracy “for the purpose
of depriving either directly or indirectly, any person or class of persons of the
equal protection of the laws or of equal privileges and immunities under the
laws.” In order to prevail on a conspiracy claim under § 1985, Plaintiffs must
show:
(1) a conspiracy involving two or more persons;
(2) for the purpose of depriving, directly or indirectly, a person or
class of persons of the equal protection of the laws; and
(3) an act in furtherance of the conspiracy;

19

8, 2009).

See Hoffman v. Cemex, Inc., No. 09-3144, 2009 WL 4825224, at *3 (S.D. Tex. Dec.
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(4) which causes injury to a person or property, or a deprivation of
any right or privilege of a citizen of the United States. 20
“In doing so the plaintiff must show that the conspiracy was motivated by a
class-based animus.” 21
Defendants argues that Plaintiffs have failed to adequately plead a claim
of conspiracy under 42 U.S.C. § 1985 because the Complaint fails to allege with
particularity specific facts indicating that the Defendants reached an
agreement to deprive plaintiffs of their rights.

Instead, they argue, the

Complaint makes conclusory allegations that Defendants formed a conspiracy.
Plaintiffs’ Complaint states that, “Defendants formed a conspiracy to
solicit individuals of Hispanic Descent . . . to use them in an illegal forced labor
scheme.” 22 It also alleges that, “Defendants conspired to create a facility where
illegal demolition of asbestos ships can be demolished by trafficked labor who
have no recourse years from now for the intentional exposure.” 23 Plaintiffs’
allegations that Defendants “formed a conspiracy” or “conspired” are
conclusory. “The essence of a conspiracy is an understanding or agreement
between the conspirators.” 24 Plaintiffs’ Complaint does not include any
allegations regarding any agreement between the defendants to join in a
conspiracy to these ends. “[T]he operative facts of an alleged conspiracy under
§ 1985(3) must be pled with specificity; conclusory allegations . . . lack the

Randle v. Tregre, 147 F. Supp. 3d 581, 591–92 (E.D. La. 2015), aff’d, No. 15-31078,
2016 WL 6541575 (5th Cir. Nov. 3, 2016).
21 Id.
22 Doc. 24.
23 Doc. 24.
24 Holdiness v. Stroud, 808 F.2d 417, 425 (5th Cir. 1987).
8
20

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requisite specificity to support a conspiracy claim.” 25 It is well settled in the
Fifth Circuit that “mere conclusory allegations of conspiracy cannot, absent
reference to material facts, state a substantial claim of federal conspiracy.” 26
Accordingly, Plaintiffs’ claim for a civil rights conspiracy under § 1985 is
dismissed.
D. Race Discrimination under 42 U.S.C. § 1981
Next, Defendants allege that Plaintiffs’ Complaint fails to state a claim
under 42 U.S.C. § 1981. Plaintiffs’ Complaint purports to bring a claim for
racial and national origin discrimination under § 1981. It states that,
“Plaintiffs are of Hispanic descent and their national origin is from Latin
America.” 27
As Defendants correctly point out, a claim for national origin
discrimination is not cognizable under § 1981. 28 Section 1981 prohibits racial
discrimination in the making and enforcement of contracts and is designed to
include a federal remedy against discrimination in employment on the basis of
race. A plaintiff must establish three elements to successfully allege a viable
claim under § 1981: “(1) he or she is a member of a racial minority; (2) the
defendant had an intent to discriminate on the basis of race; and (3) the
discrimination concerned one or more of the activities enumerated in the
statute.” 29

Mays v. Bd. of Comm’rs Port of New Orleans, No. 14-1014, 2015 WL 1245683, at *9
(E.D. La. Mar. 18, 2015).
26 McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989).
27 Doc. 24.
28 See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987).
29 Pisharodi v. Valley Baptist Med. Ctr., 393 F. Supp. 2d 561, 575 (S.D. Tex. 2005).
9
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Defendants argue that Plaintiffs have failed to state a claim for racial
discrimination under § 1981 because they do not allege any specific acts of
discrimination. The allegations of the Complaint, when read in a light most
favorable to Plaintiffs, are that Plaintiffs were targeted because of their
Hispanic descent and brought to the United States under false pretenses to be
used as forced labor and placed in dangerous working conditions. These
allegations are sufficient to state a claim for racial discrimination under §
1981, however, Plaintiffs’ claims for national origin discrimination are
dismissed.
E. Trafficking Victims Protection Act
Defendants next seek dismissal of Plaintiffs’ claims under the TVPA
because they fail to allege sufficient facts to show involuntary servitude or
forced labor.

Plaintiffs bring suit under 18 U.S.C. § 1595, which allows an

individual who is a victim of a violation under the TVPA to bring a civil action
against the perpetrator or anyone who knowingly benefits from the violation. 30
Section 1590 of the TVPA makes it a crime to knowingly recruit, harbor,
transport, provide, or obtain by any means, any person for labor or services in
violation of the TVPA. Section 1589 makes it a crime to knowingly provide or
obtain the labor or services of a person:
(1) by means of force, threats of force, physical restraint, or threats
of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that
person or another person;
(3) by means of the abuse or threatened abuse of law or legal
process; or
30

18 U.S.C. § 1595.

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(4) by means of any scheme, plan, or pattern intended to cause the
person to believe that, if that person did not perform such labor or
services, that person or another person would suffer serious harm
or physical restraint.
Plaintiffs’ Complaint does not contain an allegation of force, threats,
restraint, or fear that they believed they would suffer retribution of any kind
for their failure to perform labor. Accordingly, Plaintiffs have failed to state a
necessary element to maintain an action under the TVPA, and those claims
are dismissed.
F. Louisiana Victims of Human Trafficking Act
Defendants next move for dismissal of Plaintiffs’ claims under the LVHTA.
Louisiana Revised Statutes § 46:2163 provides a state law cause of action for
victims of human trafficking. Louisiana Revised Statutes § 14:46.2 makes it
unlawful “[f]or any person to knowingly recruit, harbor, transport, provide,
solicit, receive, isolate, entice, obtain, or maintain the use of another person
through fraud, force, or coercion to provide services or labor.” Defendants argue
that Plaintiffs fail to assert a claim under this statute because they do not
allege that they were recruited under “fraud, force, or coercion” as required by
the statute. The statute defines “fraud, force, or coercion” as including the
following:
(a) Causing or threatening to cause serious bodily injury.
(b) Physically restraining or threatening to physically restrain
another person.
(c) Abduction or threatened abduction of an individual.
(d) The use of a plan, pattern, or statement with intent to cause
an individual to believe that failure to perform an act will result in
the use of force against, abduction of, serious harm to, or physical
restraint of an individual.
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(e) The abuse or threatened abuse of law or legal process.
(f) The actual or threatened destruction, concealment, removal,
confiscation, or possession of any actual or purported passport or
other immigration document, or any other actual or purported
government identification document, of another person.
(g) Controlling or threatening to control an individual’s access
to a controlled dangerous substance as set forth in R.S. 40:961 et
seq.
(h) The use of an individual’s physical or mental impairment,
where such impairment has substantial adverse effects on the
individual’s cognitive or volitional functions.
(i) The use of debt bondage or civil or criminal fraud.
(j) Extortion as defined in R.S. 14:66. 31
Plaintiffs’ Complaint does not allege that Defendants engaged in any of
the aforementioned acts in soliciting them to come to the United States to
work. Rather, Plaintiffs contend that they were solicited to the United States
under a legal work visa program to work as welders. Although Plaintiffs allege
that upon their arrival they worked as general laborers, solicitation under false
pretenses does not rise to the level of “fraud, force, or coercion” as defined in
the LVHTA. Accordingly, Plaintiffs have failed to state a claim under the
LVHTA, and those claims are dismissed.
G. Craig Masse
Finally, Defendants move for dismissal of the claims against Defendant
Craig Masse. Plaintiffs have not alleged any acts taken personally by Craig
Masse or that Craig Masse is a member or officer in any of the defendant
entities. Accordingly, Plaintiffs have not pled a claim against Craig Masse,
and he is dismissed from this action.

31

La. Rev. Stat. § 14:46.2.

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CONCLUSION
For the foregoing reasons, all of Plaintiffs’ claims against all Defendants
are dismissed with prejudice, save their claim for race discrimination under 42
U.S.C. § 1981. All claims against Craig Masse are dismissed with prejudice.
Plaintiffs were previously granted leave to amend the deficiencies of
their Complaint and have failed to do so. Accordingly, additional leave is not
granted. 32

New Orleans, Louisiana this 20th day of November, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

“[U]nless futile, courts generally allow one chance to amend deficient pleadings
before dismissing with prejudice.” Buc-ee’s, Ltd. v. Bucks, Inc., No. 17-818, 2017 WL 4381418,
at *10 (S.D. Tex. Aug. 2, 2017).
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32