Gomez v. Aardvark Contractors, Inc. et al

Filing 263

ORDER granting in part and denying in part 251 Motion to Dismiss for Lack of Jurisdiction. The Board of Supervisor's Motion to Dismiss Cross-Claims is DENIED AS MOOT with respect to Huntington Ingalls Incorporated's cross-claims and GRANTED with respect to the Jefferson Parish School Board's Cross Claims, as set forth in document. Signed by Judge Eldon E. Fallon on 12/13/19. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CAREY GOMEZ

CIVIL ACTION

VERSUS

NO. 18-4186

AARDVARK CONTRACTORS, INC. ET AL.

SECTION "L" (5)

ORDER
Before the Court is the Board of Supervisors for the Louisiana University System through
Nicholls State University at Thibodaux’s Motion to Dismiss Cross-Claims of Huntington Ingalls
Incorporated and the Jefferson Parish School Board. R. Doc. 251. Huntington Ingalls Incorporated
has dismissed its cross-claims against the Board of Supervisors for the Louisiana University
System through Nicholls State University at Thibodaux, R. Doc. 261, and the motion has not been
opposed by the Jefferson Parish School Board by the mandated filing deadline. Accordingly, the
Court now rules as follows.
I.

RELEVANT BACKGROUND
Plaintiff Carey Gomez filed this suit on March 7, 2018, alleging severe asbestos exposure

from a number of sources throughout his life. R. Doc. 1-2. Plaintiff claims he was exposed to
asbestos first as a consequence of his father’s employment at Avondale Shipyards in the 1960s,
and later as a result of Plaintiff’s work as a plumber for Aardvark Contractors, Inc. (“Aardvark”)
from 1988-2011. As a result of his repeated exposure to asbestos, Plaintiff was allegedly diagnosed
with malignant pleural mesothelioma. In his original Petition for Damages, Plaintiff included
Defendants Huntington Ingalls Incorporated (“Avondale”), Jefferson Parish School Board
(“JPSB), and the Board of Supervisors for the Louisiana University System through Nicholls State

University at Thibodaux (“Nicholls State”). R. Doc. 1-2. Plaintiff’s claims against Nicholls State
were subsequently dismissed. R. Doc. 159.
Meanwhile, in response to Plaintiff’s Petition, Avondale filed an Answer, Affirmative
Defenses, Cross-Claims, Third-Party Demands, and Request for Jury Trial (“Avondale’s CrossClaim”), naming all of the original defendants as cross-claim defendants, including Nicholls State.
R. Doc. 17-1. Thereafter, on June 1, 2018, JPSB filed its Answer, Affirmative Defenses, CrossClaims and Request for Trial by Jury naming all of the defendants as cross-claim defendants,
including Nicholls State. R. Doc. 62. On November 26, 2019, Nicholls State filed this Motion to
Dismiss Cross-Claims with respect to Avondale and JPSB’s cross-claims against it. R. Doc. 251.
On December 10, 2019, Avondale filed an Ex-Parte Motion to Dismiss its Cross-Claims against
Nicholls State, R. Doc. 256, which the Court granted. R. Doc. 261.
II.

PRESENT MOTION
Nicholls State filed a Motion to Dismiss Avondale and JPSB’s Cross-Claims. R. Doc. 251.

Because Avondale has since dismissed its cross-claims against Nicholls State, R. Doc. 256, this
Motion is only applicable to JPSB. Nicholls State argues it is entitled to a dismissal of these crossclaims because it is protected by the Eleventh Amendment to the United States Constitution, which
bars suits against individual states in federal court unless the state has waived its immunity. R.
Doc. 251 at 1. The State of Louisiana has declined to waive this immunity, so the cross-claim
against Nicholls State by JPSB should be dismissed. R. Doc. 251 at 1.
JPSB has not filed an opposition to this Motion.
III.

LAW AND ANALYSIS
“A case is properly dismissed for lack of subject matter jurisdiction when the court lacks

the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v.

City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “The Eleventh Amendment bars a state’s
citizens from filing suit against the state or its agencies in federal courts.” Cozzo v. Tangipahoa
Par. Council-President Gov’t, 279 F.3d 273, 280 (5th Cir. 2002) (citing Williams v. Dallas Area
Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001)). So, “[a]bsent a waiver or consent by the state
or an express negation of immunity by act of Congress, the [E]leventh [A]mendment prohibits a
federal court from awarding either legal or equitable relief against the state.” Neuwirth v. Louisiana
State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988) (citing Papasan v. Allain, 478 U.S. 265,
276 (1986)).
“By statute, Louisiana has refused any such waiver of its Eleventh Amendment sovereign
immunity regarding suits in federal courts.” Cozzo, 279 F.3d at 281. Therefore, “[n]o suit against
the state or a state agency or political subdivision shall be instituted in any court other than a
Louisiana state court.” La. Rev. Stat. § 13:5106(A)). Suits against the State of Louisiana, a state
agency, or a political subdivision must be brought pursuant to the Louisiana Governmental Claims
Act (“the Act”). See La. Rev. Stat. § 13:5101 et seq. Under the Act, a “state agency” includes
departments of a state agency and “suit” means civil actions instituted by either principal or
incidental demand. La. Rev. Stat. § 13:5102(A),(C).
In this case, in support of its argument that it is entitled to immunity under the Eleventh
Amendment, Nicholls State points to the fact that this Court has previously ruled, “Nicholls State
is an arm of the state.” R. Doc. 251-1 at 3 (citing R. Doc. 159). Moreover, the Fifth Circuit has
previously affirmed the dismissal of claims against Nicholls State as barred by the Eleventh
Amendment. R. Doc. 251-1 at 3 (citing Kooros v. Nicholls State Univ., 379 F. App’x 377, 379 (5th
Cir. 2010) (“This court has previously recognized that the Board of Trustees is an arm of the State

of Louisiana and thus entitled to Eleventh Amendment immunity from suit. The claims against
Nicholls State are thus subject to dismissal under Eleventh Amendment immunity.”)). Nicholls
State thus contends that the remaining cross-claim of JPSB against Nicholls State should be
properly dismissed because it is entitled to immunity under the Eleventh Amendment. R. Doc. 251 at 4.
The Court agrees with Nicholls State that as an “arm of the state,” it is entitled to immunity
under the Eleventh Amendment, which the State of Louisiana has not waived in this matter. JPSB
has not filed an opposition to this Motion explaining why Nicholls State would not be entitled to
this immunity.
IV.

CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the Board of Supervisors for the Louisiana University System

through Nicholls State University at Thibodaux’s Motion to Dismiss Cross-Claims, R. Doc. 251,
is hereby DENIED AS MOOT with respect to Huntington Ingalls Incorporated’s cross-claims
and GRANTED with respect to the Jefferson Parish School Board’s cross-claims.

New Orleans, Louisiana, this 13th day of December, 2019.

__________________________________
ELDON E. FALLON

UNITED STATES DISTRICT JUDGE