Boatner v. Excel Group, Inc. et al

Filing 22

RULING denying 19 MOTION for Reconsideration of 17 REPORT AND RECOMMENDATIONS regarding 7 MOTION to Remand, treated as a motion under 59.. Signed by Magistrate Judge Stephen C. Riedlinger on 9/12/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHADWICK BOATNER

CIVIL ACTION

VERSUS

NUMBER 11-409-BAJ-SCR

ABC INSURANCE COMPANY, ET AL
RULING ON MOTION TO RECONSIDER
Before the court is the Plaintiff’s Motion to Reconsider
Denial of Plaintiff’s Motion to Remand. Record document number 19.
A

Magistrate

Judge’s

Report

was

issued

August

25,

2011

recommending that the Plaintiff’s Motion to Remand be denied.
Record document number 17.
September 2, 2011.

Plaintiff’s filed this motion on

The Federal Rules of Civil Procedure do not

provide for a motion to reconsider as such.

Such a motion is

treated as either a motion for new trial under Rule 59 or a motion
for relief from judgment under Rule 60, depending on whether it is
filed within the time allowed for a Rule 59 motion or the longer
time allowed for a Rule 60 motion.

See Lavespere v. Niagara Mach.

& Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), rev'd on
other grounds, 20 F.2d 259 (5th Cir. 1990).
Since this motion was filed less than 28 days after the
Magistrate Judge’s Report, it will be treated as a Rule 59 motion
seeking reconsideration of the report by the magistrate judge.1

1

Plaintiff filed an objection to the Magistrate Judge’s
Report after this motion was filed. Record document number 21.

Treating the motion as seeking reconsideration under Rule 59,
the plaintiff has not offered any factual basis nor made any
persuasive argument warranting a different recommendation.
As

explained

in

the

Magistrate

Judge’s

Report,

workers’

compensation benefits are the exclusive remedy of an employee
against an employer for injuries arising out of and in the course
and scope of his employment. LSA-R.S. 23:1032. But for certain
exceptions enumerated by the statute, an employer is immune from
tort liability resulting from any claim covered under the Louisiana
Workers Compensation Act (LWCA).
To recover from his employer, defendant Excel Group, Inc., in
tort the plaintiff must demonstrate that the Excel’s conduct falls
within the intentional tort exception to the exclusive remedy rule
of the LWCA. The LWCA provides that “[e]xcept for intentional acts
... 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 of all other rights, remedies, and
claims for damages....” LSA-R.S. 23:1032A(1)(a).
Under § 1032 of the LWCA the words “intentional act” mean the
same as “intentional tort” as used in determining civil liability.
Observing that the word “intent” has a generally accepted meaning
in the fields of tort and criminal law, the court held that “[t]he
meaning

of

‘intent’

is

that

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 result is substantially certain to follow from his conduct,
whatever his desire may be as to that result.”

Id.;

Guillory v.

Domtar Industries, Inc., 95 F.3d 1320, 1327 (5th Cir. 1996),
citing, Bazley, 397 So.2d at 482.

To meet the “substantially

certain” test requires more than a reasonable probability that an
injury

will

occur.

The

term

has

been

interpreted

as

being

equivalent to circumstances where injury to the employee is nearly
inevitable, i.e, almost certain, virtually sure to occur, incapable
of being avoided. Id.; King v. Schuylkill Metals Corp., 581 So.2d
300, 302 (La.App. 1 Cir. 1991), writ denied, 584 So.2d 1163 (La.
1991).

Facts showing mere knowledge and appreciation of a risk,

reckless or wanton conduct, gross negligence, disregard of safety
regulations

or

the

failure

constitute intentional acts.

to

use

safety

equipment,

do

not

Id., Suarez v. American Pecco Corp.,

608 So.2d 294, 297 (La.App. 4 Cir. 1992), writ denied, 613 So.2d
997 (La. 1993).
Plaintiff’s reliance on the defendant Shintech Louisiana,
LLC’s answer is unavailing because the answer was filed after the
removal and it does not clarify any ambiguity about the basis for
removal, i.e. the citizenship of the parties or the amount in
controversy. When improper joinder of a defendant is the issue, as
it is in this case, the court must focus on the factual allegations
in the state court petition.

But even assuming that defendant

Shintech did not direct the work of the plaintiff, as it alleged in

its answer,2 and defendant Excel did (even though this is contrary
to what the plaintiff alleged in his Petition for Damages), the
petition simply does not contain specific factual allegations
sufficient to invoke the intentional tort exception.
Regarding the plaintiff’s alternative request to conduct
discovery, in his neither Plaintiff’s Motion to Remand nor in this
motion did the plaintiff cite any applicable statute, rule or case
which allows him to conduct discovery before the court determines
whether he improperly joined his employer as a defendant.3
Nonetheless, when improper joinder is the issue, discovery may
be allowed by the court in its discretion.
Industries, Inc., 434 F.3d 303, 311

Guillory v, PPG

(5th Cir. 2005), citing

Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th
Cir.2004) (en banc).

Smallwood cautioned that “[d]iscovery by the

parties should not be allowed except on a tight judicial tether,
sharply tailored to the question at hand, and only after a showing
of its necessity.”

As Guillory recognized, “this language sharply

limits, but does not eliminate, discovery.”

Guillory, supra at

311.
But rather than limited discovery tailored to the improper
joinder issue, the plaintiff proposed broad discovery consisting of
“an inspection of the plant and railcar, ... as well as depositions

2

Record document number 5, Answer to Petition for Damages and
Jury Demand, ¶ VII.
3

Record document number 7-1,
Support of Motion to Remand, p. 6.

Plaintiff’s

Memorandum

in

of Excel’s company representatives, employees, and work release
prisoners.”4

Such discovery is not “sharply tailored” to the

determination of improper joinder, and is not necessary for the
court to determine whether defendant Excel was improperly joined.
Accordingly, the Plaintiff’s Motion to Reconsider Denial of
Plaintiff’s Motion to Remand, treated as a motion under Rule 59, is
denied.
Baton Rouge, Louisiana, September 12, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

4

Record document number 7-1, p. 6.