Boatner v. Excel Group, Inc. et al
Filing
43
RULING denying 37 Motion to Amend Complaint and Add a New Party and Claims. Signed by Magistrate Judge Stephen C. Riedlinger on 4/3/2012. (LSM) Modified on 4/4/2012 to change document type (LSM).
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 AMEND COMPLAINT
Before the court is the Plaintiff’s Motion to Amend Complaint
and Add a New Party and Claims.
Record document number 37.
The
motion is opposed by defendant Shintech Louisiana, LLC.1
Essentially for the reasons argued by defendant Shintech in
its opposition memorandum, and for the additional reasons which
follow, the plaintiff’s motion is denied.
Background
Plaintiff Chadwick Boatner filed this suit in state court
against defendant Shintech Louisiana, L.L.C. and Excel Group, Inc.,
his employer, alleging that he was injured when he fell from a
railroad
car
while
working
for
defendant
Excel
at
defendant
Shintech’s facility in Addis, Louisiana.
Defendant Shintech removed the case to this court based on
diversity jurisdiction under 28 U.S.C. § 1332(a), specifically
1
Record document number 38. Plaintiff filed a reply and an
amended reply memorandum.
Record document numbers 41 and 42,
respectively.
alleging
that
defendant
improperly joined.2
Excel,
a
Louisiana
corporation,
was
Defendant argued the plaintiff’s allegations
established that the claim against defendant Excel is covered under
the Louisiana Workers’ Compensation Act (LWCA), LSA-R.S. 23:1031,
et seq., and thus defendant Excel is immune from tort liability.
Defendant
also
argued
that
the
plaintiff’s
allegations
were
insufficient to invoke the intentional tort exception to defendant
Excel’s tort immunity.
Plaintiff filed a Motion to Remand, arguing, in part, that
defendant Shintech could not meet its burden of demonstrating that
he has no possibility of recovery against his employer.
The court
disagreed and the Plaintiff’s Motion to Remand was denied.3
Scheduling Order was issued and discovery proceeded.4
A
Defendant
Shintech was deposed February 6, 2012, through its designated
representatives Rick Gros and Rick Hill.5
Plaintiff’s
Louisiana
motion
citizen,
as
proposes
a
to
defendant
add
Ricky
based
on
Dean
the
Hill,
a
following
2
Defendant alleged that the plaintiff is a Louisiana citizen
and it is a Delaware limited liability whose only member is a
Delaware corporation which has its principal place of business in
Texas. Record document numbers 4 and 5.
3
Record document number 17, Magistrate Judge’s Report; record
document number 23, Ruling.
4
Record document number 24.
5
Record document number 38-1, Exhibit A, pp. 7-14 (deposition
pages 125-132, 145-148, 157-172, 189-192), excerpts from the
testimony Rick Hill.
2
allegation:
Defendant, Mr. Hill, who has testified that he was
in charge of the warehouse where the accident occurred
and that it was his responsibility to ensure that Excel,
which included Chadwick Boatner, was working safely and
followed Shintech’s work instructions, committed acts of
omission
and
commission,
which
collectively
and
severally, were either intentional and/or constituted
negligence, gross negligence and recklessness, which acts
were a proximate cause of the injuries sustained by
Chadwick Boatner and made it substantially certain that
the fall would occur.
Plaintiff goes on to make conclusory allegations about what
Hill failed to do, e.g. to provide a safe work place, and to ensure
that the plaintiff was working safely and following defendant
Shintech’s work instructions.6
Applicable Law
Because jurisdiction in this case is based on diversity of
citizenship, and the plaintiff proposes to join a defendant whose
citizenship would destroy diversity, the court must consider the
application of 28 U.S.C. § 1447(e), which provides, in relevant
part, as follows:
If after removal the plaintiff seeks to join
additional defendants whose joinder would
destroy subject matter jurisdiction, the court
may deny joinder, or permit joinder and remand
the action to the State court.
Hensgens v. Deere & Company, 833 F.2d 1179 (5th Cir. 1987),
6
Record document number 37, Exhibit 1, proposed Plaintiff’s
Amended Complaint for Damages.
3
appeal after remand, 869 F.2d 879 (5th Cir. 1989), directs this
court to consider several factors in deciding whether to grant a
motion for leave to amend when doing so will require remanding the
case.
In this situation, justice requires that the district
court consider a number of factors to balance the
defendant’s interests in maintaining the federal forum
with the competing interests of not having parallel
lawsuits. For example, the court should consider the
extent to which the purpose of the amendment is to defeat
federal jurisdiction, whether plaintiff has been dilatory
in asking for amendment, whether plaintiff will be
significantly injured if amendment is not allowed, and
any other factors bearing on the equities.
Hensgens at 1182; see, Depriest v. BASF Wyandotte Corp., 119 F.R.D.
639 (M.D.La. 1988).7
7
Plaintiff was not required to support his motion with a
memorandum. LR 7.3.1 . However, the local rule requires that the
motion must state the grounds for granting it and cite any
applicable rule, statute or other authority justifying the relief
sought. Plaintiff’s motion did not mention 28 U.S.C. § 1447(e) nor
cite Hensgens or a similar case.
Plaintiff’s reply memorandum
acknowledged Hensgens but argued that it is not applicable because
defendant Shintech’s citizenship is not diverse from the
plaintiff’s citizenship. This argument is based on the assertion
that defendant Shintech’s principal place of business is in
Louisiana.
Plaintiff’s no-diversity argument is frivolous.
Where a
limited liability company has its principal place of business does
not determine its citizenship. For the purpose of determining
diversity, the citizenship of a limited liability company is
determined by considering the citizenship of all its members.
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.
2008); Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015,
1021 (1990). This was previously explained in the Order to Amend
Notice of Removal. Record document number 3. Plaintiff cited no
statute or binding precedent which contradicts Harvey v. Grey Wolf
Drilling. Defendant Shintech has one member, C-K Tech, Inc., which
is a Delaware corporation with its principal place of business in
(continued...)
4
The state law governing the court’s analysis of the joinder
issue is Louisiana’s law setting forth the circumstances under
which a corporate officer or employee can be held individually
liable for injuries to third persons.
This law is explained in
Canter v. Koehring Co., 283 So.2d 716 (La. 1973).
In
Canter
the
court
adopted
the
following
criteria
for
imposing liability on individual employees for breaching a duty
arising solely because of the employment relationship:
1. The principal or employer owes a duty of care to the
third person ... breach of which has caused the damage
for which recovery is sought.
2. This duty is delegated by the principal or employer to
the defendant.
3. The defendant officer, agent, or employee has breached
this duty through personal (as contrasted with technical
or vicarious) fault.
The breach occurs when the
defendant has failed to discharge the obligation with the
degree of care required by ordinary prudence under the
same or similar circumstances–-whether such failure be
due to malfeasance, misfeasance, or nonfeasance,
including when the failure results from not acting upon
actual knowledge of the risk to others as well as from a
lack of ordinary care in discovering and avoiding such
risk of harm which has resulted from the breach of the
duty.
4. With regard to the personal (as contrasted with the
technical or vicarious) fault, personal liability cannot
be imposed upon the officer, agent, or employee simply
because of his general administrative responsibility for
performance of some function of the employment. He must
have a personal duty towards the injured plaintiff,
7
(...continued)
Texas.
Even assuming defendant Shintech’s principal place of
business is in Louisiana, defendant Shintech is a citizen of
Delaware and Texas for the purpose of § 1332.
5
breach of which specifically has caused the plaintiff’s
damages. If the defendant’s general responsibility has
been delegated with due care to some responsible
subordinate or subordinates, he is not himself personally
at fault and liable for the negligent performance of this
responsibility unless he personally knows or personally
should know of its non-performance or mal-performance and
has nevertheless failed to cure the risk of harm.
Id. at 721; Guillory v. PPG Industries, Inc., 434 F.3d 303, 312
(5th Cir. 2005).
The court may decide the question of whether the plaintiff has
a reasonable basis of recovery under state law either by employing
a
Rule
12(b)(6),
Fed.R.Civ.P.,
analysis,
or
pleadings and conducting a summary inquiry.
by
Id.
piercing
the
In resolving
questions of improper joinder, all disputed questions of fact and
ambiguities in the controlling state law are resolved in favor of
the non-removing party.
Carriere v. Sears, Roebuck and Co. 893
F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60
(1990)(addressing improper joinder in the context of removal).
Analysis
A
careful
review
of
defendant
Shintech’s
Rule
30(b)(6)
deposition testimony, particularly Hill’s, as well as the Service
Agreement between defendant Shintech and Excel,8 supports the
conclusion that the plaintiff has no claim against Hill based on
the
plaintiff’s
8
proposed
allegations.
Consideration
of
the
Record document number 38-1, Shintech deposition Exhibit 2.
6
Hensgens factors supports finding that the purpose for joining Hill
as a defendant is to destroy diversity jurisdiction and cause this
case to be remanded to state court.
Hill’s testimony is essentially that when he noticed an Excel
employee not properly following required safety procedures he took
some
appropriate
observations
inspections.
were
action.
the
Hill
result
of
did
not
scheduled
testify
or
that
routine
these
safety
For example, on occasions when he saw an Excel
employee loading PVC into a rail car and the employee was not
properly tied off with a safety line, he told the employee to get
off of the rail car and informed the employee’s supervisor.9
Hill explained that at the inception of the contract between
defendant
Shintech
and
Excel,
he
discussed
with
Excel
representatives defendant Shintech’s work instructions and the
training documents provided to Excel, and he actually showed Excel
representatives how to load the rail cars.10
Hill also testified
that he discussed production requirements daily with Excel’s site
manager.11
Hill described his overall responsibility as follows:
“It was my job to ensure that Excel was working safely and
following our work instructions according to the quality standards
9
Record document number 38-1, p. 10 (Hill testimony p. 159-
60).
10
Id. at 12 (deposition pp. 166-67.
11
Id. at 11 (deposition pp. 162-63).
7
we had set forth, ....”12
Hill then clarified that the way he does
this is through routine safety inspections, and by notifying the
Excel supervisors when work is not being done properly and telling
them to do the work pursuant to defendant Shintech’s policies and
procedures.13
There is no testimony from Hill that he regularly
works alongside Excel’s employees. There is no testimony from Hill
describing any ongoing or intermittent contact between him and the
plaintiff, that he trained the plaintiff, or that he spoke with the
plaintiff or in any manner directed how the plaintiff was to
perform his work duties on the day of the accident.
A fair reading of Hill’s deposition testimony supports the
finding that it describes general administrative duties assigned to
him by his employer, defendant Shintech, rather than any duty
personally owed to the plaintiff.
Hill performed his assigned
duties primarily by interacting with Excel’s supervisors, through
daily meetings and reporting violations to the supervisors.
On
occasions when Hill personally observed work not being done safely
by
an
Excel
employee,
he
took
direct
action
to
correct
the
situation and then reported the work rule violation to the Excel
supervisor. Acting directly on such random occasions to correct an
actual safety rule violation does not create a duty owed directly
12
Id. at 13 (deposition p. 169).
13
Id. at 10-11, 13 (deposition pp. 160-162, 170-71).
8
to the plaintiff.14
Defendant Shintech has not taken the position that it is not
responsible
employer.15
for
Hill’s
workplace
acts
or
omissions,
as
his
Consequently, defendant Shintech will be liable to the
plaintiff if the trier of fact determines that Hill breached an
employment duty assigned to him by defendant Shintech, which breach
caused the plaintiff injury.
Therefore, the plaintiff can obtain
complete relief without joining Hill as a defendant.
Plaintiff will not be significantly injured if he is not
allowed
to
join
Hill
as
a
defendant
because
it
appears
the
plaintiff does not have a viable claim against Hill.
Lastly, there is no apparent equitable reason to join Hill as
a defendant.
14
In Carroll v. Mobil Oil Corp. 1994 WL 665781, the court
determined that warning an independent contractor’s employees of a
safety hazard is not a basis for imposing liability on the
principal when the duty to provide a safe workplace is
contractually assigned to the contractor. “To find otherwise would
discourage ‘company men’ who notice potential safety hazards from
pointing them out to the independent contractor and his employees.”
Id. at *4. The Service Agreement in this case provides that “the
prevention of accidents to its [Excel’s] employees engaged upon or
in the vicinity of the Work is its [Excel’s] responsibility.”
Record document number 38-1, Exhibit , p. 25 (Service Agreement
section 8.2). Although defendant Shintech could order Excel to
stop work which defendant Shintech deems unsafe, it was not
required to do so, and the “[f]ailure on the part of Owner
[Shintech] to stop unsafe practices shall in no way relieve
Contractor [Excel] of its responsibility therefore.” Id. (Service
Agreement section 8.3).
15
In its opposition memorandum defendant Shintech stated that
it “absorbs any liability attributed to Mr. Hill, its employee.”
Record document number 38, p. 11.
9
Conclusion
The apparent reason to join Hill as a defendant is to destroy
diversity jurisdiction and cause the case to be remanded to state
court.
The foregoing findings warrant denying the plaintiff’s
motion to amend.
Accordingly, the Plaintiff’s Motion to Amend Complaint and Add
a New Party and Claims is denied.
Baton Rouge, Louisiana, April 3, 2012.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
10
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