Nolan et al v. Exxon Mobil Corporation et al

Filing 190

RULING: The 167 Second Motion for Leave of Court to File Third Supplemental and Amending Complaint and the 166 Motion to Intervene are GRANTED. Signed by Magistrate Judge Erin Wilder-Doomes on 3/22/2016. (BLR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TONGA NOLAN, ET AL.
CIVIL ACTION
VERSUS
NUMBER 13-439-JJB-EWD
EXXON MOBIL
CORPORATION, ET AL.

RULING ON SECOND MOTION FOR LEAVE OF COURT TO FILE THIRD
SUPPLEMENTAL AND AMENDING COMPLAINT (REC. DOC. 167) AND MOTION
TO INTERVENE (REC. DOC. 166)
Before the court is Plaintiffs’ Second Motion for Leave of Court to File Third Supplemental
and Amending Complaint (Rec. Doc. 167) and a Motion to Intervene (Rec. Doc. 166). Both
motions are opposed (Rec. Docs. 180 & 182) and movants have filed Replies (Rec. Docs. 187-1
& 185). For the reasons set forth herein the Second Motion for Leave of Court to File Third
Supplemental and Amending Complaint (Rec. Doc. 167) and the Motion to Intervene (Rec. Doc.
166) are GRANTED.
I.

PROCEDURAL HISTORY
On or about June 13, 2013, Plaintiffs filed a Class Action Petition for Damages in state

court. The action was subsequently removed to this court on the basis of 28 USC § 1332 and the
Class Action Fairness Act (“CAFA”), 28 USC §§ 1332(d)(1)-(d)(10), 1453.

(Rec. Doc. 1).

Plaintiffs allege that the ExxonMobil Baton Rouge Facility (the “Facility”) repeatedly failed to
meet regulatory standards resulting in numerous leaks causing personal injury and property
damage. (Rec. Doc. 81).
In their Second Restated and Superseding Class Action Complaint (Rec. Doc. 81, the
“Second Restated Complaint”), Plaintiffs allege that ongoing releases and exposure to pollutants
caused “frequent headaches, nausea, vomiting, chronic fatigue, skin rash and disease, eye and

throat irritation, memory loss, shortness of breath, chronic coughing, sinus issues, and other
respiratory issues,” “foul and offensive odors emanating from the Facility, resulting in nuisance
and trespass,” and property contamination

(Rec. Doc. 81, ¶¶ 31, 37 & 40). In addition, Plaintiffs

specifically allege that on June 14, 2012, the bleeder plug of Tank 801 at the Facility’s Aromatics
Production Unit began leaking steam cracked naptha, resulting in Plaintiffs and putative class
members suffering health effects including but not limited to “headaches, nausea, vomiting,
fatigue, and other respiratory issues” and causing injury to their property. (Rec. Doc. 81, ¶¶ 10,
18 & 25).1 Plaintiffs also specifically allege that “during the week of May 22, 2013, as a result
of Defendants’ deferred maintenance of a combustor at the Facility’s sulfur recovery unit”
significant amounts of sulfur dioxide, hydrogen sulfide, and particulate matter “among other
hazardous substances” were released. (Rec. Doc. 81, ¶ 30).
In their Second Restated Complaint, Plaintiffs proposed to proceed on behalf of the
following class:
All persons who are residents, domiciliaries, and/or located in East
Baton Rouge Parish, State of Louisiana, who have suffered damage
to their persons and/or property from the ExxonMobil Facility
located in East Baton Rouge Parish (“Facility”), the initial
boundaries of which are reported as that area from the Facility to a
two mile radius into the surrounding area.
(Rec. Doc. 81, ¶ 44).
On November 17, 2014, Plaintiffs moved for class certification.

(Rec. Doc. 124).

In their

Memorandum in Support of Class Certification, Plaintiffs asserted that between June 14, 2012 and
April 15, 2014, “a total of 145 incidents were identified in which an operations failure led to a

Per Plaintiffs’ Second Restated Complaint, they “are making no claims regarding or based on any release or
discharge from the Facility prior to June 12, 2012.” (Rec. Doc. 81, ¶ 43).
1

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release of one or more contaminants to the air….” (Rec. Doc. 124-1, p. 4). In addition, Plaintiffs
asserted that they had “thus far identified 3 unpermitted releases of particular interest”: (1) the
June 14, 2012 naptha leak; (2) a November 30, 2012 HC1 release; and (3) a May 23, 2013 sulfur
dioxide leak. (Rec. Doc. 124-2, pp. 5-6).2
On May 13, 2015, the court denied Plaintiffs’ Motion to Certify Class. (Rec. Doc. 159).
While the court found that Plaintiff’s proposed class met the numerosity, commonality, typicality,
and adequacy requirements set out in Fed. R. Civ. P. 23(a)(1)-(4), class certification was denied
based on Plaintiffs’ failure to establish that common questions of law or fact predominated over
individual questions of causation and damages. (Rec. Doc. 159, p. 13).
A. The Third Supplemental and Amending Complaint
On the same day Plaintiffs’ Motion to Certify Class was denied, Plaintiffs filed their first
Motion for Leave of Court to File Third Supplemental and Amending Complaint.
160).

(Rec. Doc.

Plaintiffs’ proposed Third Supplemental and Amending Complaint re-adopted and re-

alleged “all allegations from the second supplemental and amended complaint as if copied in
extenso.” Additionally, the proposed Third Supplemental and Amending Complaint sought to
add more than 100 new plaintiffs by simply amending paragraph 1 of the Second Restated
Complaint to name them (by name and citizenship) as plaintiffs.

(Rec. Doc. 160).

On June 5, 2015, the court denied Plaintiffs’ Motion for Leave without prejudice,

Plaintiffs argued in their Memorandum in Support of Class Certification that “[a]s a result on Exxon’s ongoing and
episodic emissions, Plaintiffs and putative class members suffer increased health risks and have suffered adverse
exposure related health effects including frequent headaches, nausea, vomiting, chronic fatigue, skin rash and disease,
eye and throat irritation, memory loss, shortness of breath, chronic coughing, sinus issues, and other respiratory issues.
They are also regularly subjected to noxious odors emanating from the Facility. The nuisance created by Exxon’s
Facility prevents Plaintiffs and putative class members from the full use and enjoyment of their homes.” (Rec. Doc.
124-1, p. 7).
2

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explaining that “because class certification was denied, all claims now proceed as individua l
claims.

But neither the existing plaintiffs nor the proposed new plaintiffs make any specific

allegations as to which release(s) they were exposed.” (Rec. Doc. 162, p. 2). As the court
explained, “the proposed amended complaint simply lumps all plaintiffs together as to all alleged
releases. Allowing this would mean the factual basis for each individual plaintiff’s claims would
have to be determined through discovery – which will likely be protracted and contentious – rather
than by pleading facts in the complaint.”

(Rec. Doc. 162, p. 3). Rather than permitting Plaintiffs’

proposed amendment, the court reasoned that “the better course is to have the plaintiffs make
specific exposure allegations as to each plaintiff….”.

(Rec. Doc. 162, p. 4). Accordingly, the

court denied Plaintiffs’ Motion for Leave “without prejudice to the plaintiffs moving for leave to
join additional plaintiffs and to amend the complaint to include specific factual allegations as to
each plaintiff’s exposure to a particular release, and which proposed amended complaint does not
simply adopt and re-allege the existing class allegations from the Second Restated and Superseding
Class Action Complaint.”

(Rec. Doc. 162, p. 5).

On September 11, 2015, Plaintiffs filed a Second Motion for Leave of Court to File Third
Supplemental and Amending Complaint.

(Rec. Doc. 167).3 Defendants responded to Plaintiffs’

Second Motion for Leave to File the Third Supplemental and Amending Complaint by arguing
that: (1) Plaintiffs’ “exposure allegations remain threadbare” such that Plaintiffs’ failure to comply
with the court’s instructions regarding amendment should result in dismissal (Rec. Doc. 180, p.

3

In addition to naming the proposed individual plaintiffs, the proposed Third Supplemental and Amending Complaint
amends the “Areas of Concern” to be “the communities surrounding” the Facility (as opposed to the original definition
setting the initial boundaries of the area to the two-mile radius surrounding the Facility, see Rec. Doc. 81, ¶ 6) and
“withdraw[s] all class allegations.” (Rec. Doc. 167-1, II & III). Defendants do not raise any concerns regarding
these aspects of the proposed pleading.

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1); and (2) in the event the court allows Plaintiffs’ proposed amendment, it should do so subject to
a Lone Pine order “requiring evidence of exposure, injury, and causation and ‘just terms’ necessary
to remedy undue prejudice to Exxon, including severance of any remaining individual cases for
trial following consolidated discovery.” (Rec. Doc. 180, p. 2).4 In response, Plaintiffs assert that
the proposed Third Supplemental and Amending Complaint is sufficiently specific, and oppose
the entry of a Lone Pine order. (Rec. Doc. 187-1).
B. The Motion to Intervene
On September 8, 2015, a Motion to Intervene was filed by 20 proposed intervenors. (Rec.
Doc. 166). Proposed intervenors assert that they “would have been members of the class for
which certification was denied” and allege they were “employees of the Entergy LA Station who
were exposed on or about June 14-15, 2012.” (Rec. Doc. 166, ¶ 3 & Rec. Doc. 169-3, ¶ 1).5
Proposed intervenors assert that they may intervene of right in the current proceedings pursuant to
Fed. R. Civ. P. 24(a). Alternatively, proposed intervenors assert that this court should permit their
intervention pursuant to Fed. R. Civ. P. 24(b).

Although proposed intervenors assert that

intervention is authorized pursuant to either Fed. R. Civ. P. 24(a) or (b), they do not discuss

4

As outlined more fully below, Defendants argue that this court should order each plaintiff to provide sworn expert
affidavits establishing a prima facie showing of personal injury and/or property damage, and assert that the order
should protect Defendants from prejudice by consolidating the case only through completion of fact and expert
discovery, Daubert motions, and multi-plaintiff dispositive motions. (Rec. Doc. 180, pp. 7-8 & 9).
5

The Intervention Complaint alleges that the proposed intervenors were employees of the Entergy LA Station who
were exposed “on or about June 14-15, 2012.” (Rec. Doc. 169-3, ¶ 1). Despite this allegation – which seems to
indicate would-be intervenors are alleging only exposure stemming from the June 14, 2012 naptha release – proposed
intervenors also include factual allegations regarding the May 23, 2013 sulfur release (see Rec. Doc. 169-3, ¶ 31) and
assert that the basis of certain of their claims are the June 14, 2012 and May 22, 2013 incidents and the ongoing
release. (Rec. Doc. 169-3, ¶¶ 48, 52-57). In any event, the proposed Intervention Complaint makes clear that
proposed intervenors are alleging injuries stemming from releases at the Facility previously put at issue by the original
plaintiffs. Further, proposed intervenors’ briefing in support of the Motion to Intervene asserts in response to
Defendants’ concerns regarding the lack of specifically alleged dates of exposure that “the Intervention Complaint
does provide specific dates, which are June 14-15.” (Rec. Doc. 185, p. 2).

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applicability of either subsection in their original Memorandum in Support.

Instead, proposed

intervenors focus on Fed. R. Civ. P. 15(c)(1), which addresses when an amended pleading is
deemed to relate back to the date of the original pleading.

(Rec. Doc. 166-2). In a supplemental

memorandum in support of the motion to intervene, proposed intervenors assert that this court
retains jurisdiction under CAFA 6 and provide some argument that intervention of right pursuant
to Fed. R. Civ. P. 24(a) is warranted. (Rec. Doc. 174). 7
Defendants do not set forth any objections to or even discuss the potential applicability of
Fed. R. Civ. P. 24 in response to the Motion to Intervene. Instead, Defendants assert that, like the
current Plaintiffs’ Third Supplemental and Amending Complaint, the Intervention Complaint fails
to make specific factual allegations about each claimants’ exposure to a particular release and
therefore the Motion to Intervene should be denied.

(Rec. Doc. 182, p. 2).

Alternatively,

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CAFA provides original jurisdiction, determined at the time of removal. Louisiana v. American Nat. Property Cas.
Co., 746 F.3d 633, 639 (5th Cir. 2014) (explaining that CAFA “defines class action as any civil action filed under
Rule 23 or a state class action statute. Thus, federal jurisdiction under the statutory provision of CAFA is explicitly
concerned with the status of an action when it is filed – not how it subsequently evolves.”). See also, Rivers v.
Chalmette Medical Center, Inc., 805 F.Supp.2d 291, 295 (E.D. La. 2011) (denying motion to remand and explaining
that “denying class certification had no effect at all on the facts as they existed at the time of removal and the Court
continues to have jurisdiction over this case.”). Accordingly, despite the denial of class certification, this court
continues to have subject matter jurisdiction pursuant to 28 USC § 1332(d)(1)-(10).
Proposed intervenors’ original Intervention Complaint named non -diverse individual defendants this court had
previously dismissed. (Rec. Doc. 76 [Stipulation for Dismissal]; Rec. Doc. 82 [Order dismissing without prejudice
defendants Reese, Stratford, Leinweber, and Wong]). The dismissal left only the diverse Exxon defendants, and no
lingering question about diversity jurisdiction under § 1332(a). Accordingly, the court requested proposed
intervenors submit a supplemental memorandum addressing: (1) whether Rule 24 permits the proposed intervenors to
simultaneously move to intervene as plaintiffs and move to join defendants; (2) whether joining Reese, Stratford,
Leinweber, and Wong as defendants would divest the court of subject matter jurisdiction under § 1332(a); (3) whether
joining Reese, Stratford, Leinweber, and Wong as defendants would divest the court of sub ject matter jurisdiction
under CAFA; and (4) whether joining the proposed intervenors as plaintiffs under Rule 24 “would be inconsistent
with the jurisdictional requirements of section 1332” and therefore barred by § 1367(b). (Rec. Doc. 168, pp. 3-4).
Following the court’s order, proposed intervenors filed a motion to substitute the original Intervention Complaint with
a complaint that did not name the non-diverse individual defendants. In granting the motion to substitute, the court
instructed proposed intervenors that they no longer needed to file a supplemental memorandum addressing subjects
(1)-(3) but a supplemental memorandum addressing subject (4) was still required. (Rec. Doc. 170).
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Defendants again assert that in the event this court allows the intervention, it should do so subject
to a Lone Pine order. (Rec. Doc. 182, p. 2). In response, proposed intervenors assert that the
Intervention Complaint is sufficiently specific and that Defendants have not met their burden of
establishing that this case is appropriate for a Lone Pine order. (Rec. Doc. 185).
II.

ANALYSIS
A. Sufficiency of the Proposed Third Supplemental and Amending Complaint
and Proposed Intervention Complaint
Fed. R. Civ. P. 8(a) requires “a short and plain statement of the claim showing that the

pleader is entitled to relief.” “Pursuant to Rule 8(a), a complaint will be deemed inadequate on ly
if it fails to (1) provide notice of the circumstances which give rise to the claim, or (2) set forth
sufficient information to outline the elements of the claim or permit inferences to be drawn that
these elements exist.” Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999).
See also, Cashman Equipment Corp. v. Rozel Operating Co., 2010 WL 3385117, at *4 (M.D. La.
April 30, 2010) (same). A complaint “which contains a ‘bare bones’ allegation that a wrong
occurred and which does not plead any of the facts giving rise to the injury, does not provide
adequate notice.” Id. As discussed above, this court previously denied Plaintiffs’ motion to file
a Third Supplemental and Amending Complaint following denial of class certification and
instructed Plaintiffs that they could move for leave to join additional plaintiffs and amend the
complaint to “include specific factual allegations as to each plaintiff’s exposure to a particular
release….” (Rec. Doc. 162, p. 5).
In the currently-proposed Third Supplemental and Amending Complaint, Plaintiffs name
257 plaintiffs (including current plaintiffs).

(Rec. Doc. 167-1). For each named plaintiff, the

proposed pleading provides the time period/dates that the Plaintiff was in the vicinity of the
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Facility;8 states whether the named plaintiff was present for the June 14, 2013, November 30,
2012, and/or May 23, 2013 releases; and lists the named plaintiff’s alleged symptoms. 9 In the
proposed Intervention Complaint, proposed intervenors specifically allege they were exposed “on
or about June 14-15, 2012,” where they were working on the date of the alleged incident, and the
specific physical symptoms they allegedly experienced. (Rec. Doc. 169-3).10
Despite Defendants’ assertion that Plaintiffs’ and proposed intervenors’ exposure
allegations “remain threadbare,” the court finds that the proposed Supplemental and Amending
Complaint and proposed Intervention Complaint comply with this court’s previous instruction to
include specific allegations regarding each plaintiffs’ exposure to a particular release, and provides
Defendants with sufficient notice to outline each plaintiff’s claim.
B. Intervention Pursuant to Fed. R. Civ. P. 24
“Intervention is intended to prevent multiple lawsuits if common questions or law or fact
are involved.

It is not, however, intended to allow entirely new lawsuits by intervenors.”

Stewart v. City of Houston, 2009 WL 783319, at *3 (March 24, 2009) (citing Deus v. Allstate Ins.

8

The majority of the proposed plaintiffs reside in the two-mile radius surrounding the Facility. However, at least
one proposed plaintiff, Carles Rowley, is alleged to have worked as a meter reader in the area approximately .72 miles
to the east of the Facility. (Rec. Doc. 167-1, p. 27). Similarly, proposed plaintiff Joseph B. Eaglin is alleged to have
“frequently visited” a home in the vicinity of the Facility. (Rec. Doc. 167-1, p. 21). Proposed plaintiffs Cherry
Hilton, J.R., C.R., C.H., C.H., F.H., and Diondra Rhymes are alleged to have been “present at a party” in the vicinity
of the Facility on June 14, 2012. (Rec. Doc. 167-1, p. 49). While almost all of the proposed plaintiffs allege with
specificity the distance of their home from the Facility, proposed plaintiffs Rosie Stevens and Calvin Stevens, Sr.
simply allege they own a home “located to the north of Exxon’s facility” without specifying that the home is within
the two-mile radius surrounding the Facility. (Rec. Doc. 167-1, p. 30).
The vast majority of the proposed plaintiffs allege specific “nuisance irritation effects” such as sinus issues, eye
irritation, nausea, rashes, headaches, coughing, etc. However, a few of the proposed plaintiffs simply allege they
“regularly suffered noxious odors, as well as persistent irritation effects” or “nuisance exposure symptoms” without
further detail. (Rec. Doc. 167-1, pp. 9, 21, 27, 31, 33, 42).
9

10

Certain of the proposed intervenors also state specific treatment providers. For example, Rebecca Anderson
alleges she was “treated at Lake After Hours on Coursey Blvd, Baton Rouge, LA.” Sylvester Tilley alleges he was
“treated at Baton Rouge General where he was hospitalized for a couple of days.” (Rec. Doc. 169-3).

8

Co., 15 F.3d 506, 525 (5th Cir. 1994)). “It is well established that an intervention should generally
be granted if no one would be prejudiced and if greater justice would be achieved.” Stewart v.
City of Houston, 2009 WL 783319, at *3 (March 24, 2009) (citing Ross v. Marshall, 426 F.3d 745,
753 (5th Cir. 2005) (“Intervention should generally be allowed where ‘no one would be hurt and
greater justice could be attained.’”)). As noted above, Defendants’ response to the Motion to
Intervene is two-fold: (1) that the allegations set forth in the proposed Intervention Complaint are
deficient; and (2) that this court – if inclined to grant the intervention – should do so in conjunction
with entry of a Lone Pine order. (Rec. Doc. 182). Accordingly, while Defendants do not present
any direct response to the proposed-intervenors’ ability to intervene pursuant to Fed. R. Civ. P. 24,
the court considers the applicability of those requirements below.
1. Timeliness of the Motion to Intervene
“Whether leave to intervene is sought under section (a) or (b) of Rule 24, the application
must be timely.”

Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977). The timeliness

of a motion to intervene is a matter committed to the sound discretion of the trial court. McDonald
v. E.J. Lavino, 430 F.2d 1065, 1071 (5th Cir. 1970). Timeliness “is not limited to chronological
considerations but ‘is to be determined from all the circumstances.’” Stallworth v. Monsanto Co.,
558 F.2d 257, 263 (5th Cir. 1977). The Fifth Circuit has set forth four factors to consider when
evaluating whether a motion to intervene is timely: (1) the length of time during which the
proposed intervenor should have known of his interest in the case before he petitioned to intervene;
(2) the extent of prejudice that those parties already in the litigation would suffer “as a result of
the would-be intervenor’s failure to apply for intervention as soon as he actually knew or
reasonably should have known of his interest in the case;” (3) the extent of prejudice to the

9

proposed intervenor if he is not allowed to intervene; and (4) the existence of “unusual
circumstances militating either for or against a determination that the application is timely.”

Ross

v. Marshall, 426 F.3d 745, 754 (5th Cir. 2005) (citing Stallworth v. Monsanto Co., 558 F.2d 257,
264-266 (5th Cir. 1977)). While the above factors “give structure” to the timeliness analysis, the
analysis “remains ‘contextual’ and should not be used as a ‘tool of retribution to punish the tardy
would-be intervenor, but rather [should serve as] a guard against prejudicing the original parties
by the failure to apply sooner.’” Ross v. Marshall, 426 F.3d 745, 754 (5th Cir. 2005) (citing
Sierra Club v. Epsy, 18 F.3d 1202, 1205 (5th Cir. 1994)).
Proposed intervenors assert that they moved to intervene “shortly after certification was
denied” and point out that this court did not “require that a notice issue of the denial of class
certification.”

(Rec. Doc. 174).

Proposed intervenors assert that they “would have been

members of the class for which certification was denied,” and Defendants have not disputed that
claim.

(Rec. Doc. 166-2 & Rec. Doc. 182).

As outlined above, this court denied class

certification on May 13, 2015 and proposed intervenors filed their Motion to Intervene on
September 8, 2015. Until denial of class certification, proposed intervenors had no reason to
believe their rights would not be protected via the proposed class action. Moreover, given the
relatively recent denial of class certification, and the recent efforts by plaintiffs to amend the
operative complaint to name additional plaintiffs, the court fails to see how the parties already in
the suit would be prejudiced by the timing of this intervention.

Further, given the fact that would-

be intervenors allege they would have been part of the proposed class, and their claims arise out
of an alleged release already at issue in this suit, there is the distinct possibility that proposed
intervenors would be prejudiced if not allowed to intervene here. Finally, the court sees no (and

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Defendants have not pointed out) circumstances militating against a determination that this
intervention is timely.

Accordingly, given the current procedural posture of this matter

(especially in light of the recent denial of class certification and current Plaintiffs’ pending Third
Supplemental and Amending Complaint), the court finds that this intervention should be
considered timely pursuant to Fed. R. Civ. P. 24(a) or (b).
However, in addition to the timeliness factors set forth above, the court is faced with a
situation in which it appears that the proposed-intervenors’ claims are time-barred. As recognized
by the Fifth Circuit, “the filing of the motion for intervention, and not the later approval of the
motion and actual filing of the complaint, determines the commencement of the action for purposes
of the statute of limitations.

U.S. for the use and benefit of Canion v. Randall & Blake, 817 F.2d

1188, 1192 (5th Cir. 1987). The law is clear that “the commencement of a class action suspends
the applicable statute of limitations as to all asserted members of the class who would have been
parties had the suit been permitted to continue as a class action.” American Pipe and Construction
Co. v. Utah, 414 US 538, 554 (1974). “Once the statute of limitations has been tolled, it remains
tolled for all members of the putative class until class certification is denied. At that point, class
members may choose to file their own suits or to intervene as plaintiffs in the pending action.”
Crown, Cork & Seal Co., Inc. v. Parker, 462 US 345, 354 (1983). See also, Taylor v. United
Parcel Service, Inc., 554 F.3d 510, 519 (5th Cir. 2008) (“if the district court denies class
certification under Rule 23, tolling of the statute of limitations ends.”).
Pursuant to these precepts, proposed intervenors had one year from the alleged June 14,
2012 naptha release to bring their tort claims. 11 Plaintiffs filed their state court suit on June 13,

11

See, La. CC article 3492 (“Delictual actions are subject to a liberative prescription period of one year. This

11

2013 – one day before expiration of the limitations period.

Pursuant to American Pipe, the

limitation period was tolled until May 13, 2015, the date class certification was denied.
Accordingly, it appears that proposed intervenors complaint is time-barred.12
Recognizing this issue, proposed intervenors assert that pursuant to Fed. R. Civ. P.
15(c)(1), the Intervention Complaint “relates back” to plaintiffs’ original filing.

(Rec. Doc. 166-

2).13 Several courts outside the Fifth Circuit “have held that a complaint-in-intervention filed
under Rule 24 may relate back to the date of an earlier complaint, provided there is no prejudice
to the defendant.” U.S. ex rel. Wilkins v. North American Constr. Corp., 2001 WL 34109383, at
*13 (S.D. Tex. Sept. 26, 2001) (citing Cummings v. U.S., 704 F.2d 437, 439-40) (9th Cir. 1983);
Ross v. Patrusky, Mintz & Semel, 1997 WL 214957, at *8 (S.D.N.Y. April 29, 1997)). See also,
ACORN v. County of Nassau, 270 F.R.D. 123, 125 (E.D.N.Y. 2010) (“Rule 24 does not explicit ly
provide that an intervenor’s claim may relate back to the case’s original complaint for purposes of

prescription commences to run from the day the injury or damage is sustained….”).
12

The court is aware of Fifth Circuit cases which indicate that intervention to assert a time-barred claim is not allowed.
However, these cases do not discuss the potential applicability of the relation back doctrine. See, Atkins v. General
Motors Corp., 701 F.2d 1124, n. 5 (5th Cir. 1983) (stating that district court’s refusal to allow intervention of plaintiffs
whose claims were barred by statute of limitations was proper). Moreover, the cases are distinguishable to the extent
they deal with claims extinguished by a statute of repose (as opposed to barred by the statute of limitations) or a strictly
construed limitation period. See, Hall v. Variable Annuity Life Ins., 727 F.3d 372, 377 (5th Cir. 2013) (finding that
once class certification was vacated, tolling of the statute of repose ceased and putative class members who brought
action after the statute of repose expired could not intervene); Crowley Maritime Corp. v. Panama Canal Com’n, 849
F.2d 951 (5th Cir. 1988) (denying intervention based on expiration of limitation period established by Congress in the
Panama Canal Act).
13

Fed. R. Civ. P. 15(c)(1)(C) provides that an amendment to a pleading relates back to the date of the original pleading
when “the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending
the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake
concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(B) requires that the “amendment assert[] a claim or
defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original
pleading.”

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the statute of limitations.

However, courts in this circuit have generally interpreted Rule 24 to

provide for relation back when ‘(1)…there is a ‘community of interest’ between the proposed
intervenor’s and plaintiff’s claims; (2) intervenor’s motion is timely within the meaning of Rule
24; and (3) no prejudice to the defendant would result.’” (internal citations omitted)); Weber v.
Mobil Oil Corp., 506 F.3d 1311, 1315 (10th Cir. 2007) (explaining that while some jurisdictions
will not allow an intervening plaintiff to “piggyback” on the claims of an earlier plaintiff to escape
the statutory bar, that rationale does not apply where defendants “are not subject to new liabilit ies
by way of the intervening plaintiffs because the new plaintiffs all appear to fall within the original
class definition and because they do not assert any additional claims” against defendants). While
the Fifth Circuit has not addressed the issue, at least one district court has applied the doctrine to
a proposed intervention.

U.S. ex rel. Wilkins v. North American Constr. Corp., 2001 WL

34109383, at *13 (S.D. Tex. Sept. 26, 2001) (declining to relate back government’s intervention
complaint where “[t]he prerequisite to the relation back doctrine, notice to the defendant, was not
satisfied…”). Although the proposed intervenors do not provide, and this court has been unable
to locate, Fifth Circuit precedent applying the relation back doctrine to intervention complaints,
the court finds that the doctrine may apply here – where proposed intervenors were presumably
members of the putative class against whom Defendants were already defending claims.
“The doctrine of relation back under Rule 15(c) is liberally applied…especially if no
disadvantage will accrue to the opposing party.” Williams v. U.S., 405 F.2d 234, 236 (5th Cir.
1968). Although Rule 15(c) “does not address the relation back of amendments that propose to
add or substitute plaintiffs, the Fifth Circuit has looked to Rule 15(c) when faced with such
situations.

In re Mike’s, Inc., 2002 WL 1767425, at *2 (E.D. La. July 30, 2002) (citing Summit

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Office Park v. United States Steel Corp., 639 F.2d 1278, 1282 (5th Cir. 1981); Williams, 405 F.2d
at 236). The Fifth Circuit has instructed that “notice is the critical element involved in Rule 15(c)
determinations.”

Williams v. U.S., 405 F.2d 234, 236 (5th Cir. 1968).

While a fair notice

determination may generally focus on whether a new claim arises out of the same conduct,
transaction, or occurrence, “when it comes to a late effort to introduce a new party, something else
is added. Not only must the adversary have had fair notice about the operational facts, but it must
have had fair notice that a legal claim existed in and was in effect being asserted by, the party
belated brought in.” Id. at 238. See also, Pappion v. Dow Chemical Co., 627 F.Supp. 1576, 1581
(W.D. La. 1986) (refusing to allow time-barred claim of new plaintiff to relate back and explaining
that in order to relate back, “the additional plaintiff must have in some manner already been
involved in the action, so that the defendant was on notice that it was in effect already defending
the action against the new plaintiff who seeks to be added by the late amendment.”).
To the extent proposed intervenors seek to be added as party plaintiffs in this matter, and
in light of their unopposed allegation that they would have been members of the class for which
certification was denied, the court finds that Defendants had fair notice that the proposed
intervenors were already involved in the action and that Defendants were “in effect already
defending the action” against these proposed intervenors.

Accordingly, because proposed

intervenors are part of what would have been the class had it been certified (i.e., there is an identity
of interest between the intervenors and the current plaintiffs), the proposed intervenors’ claims
arise out of the same conduct, transaction or occurrence that is already at issue in this suit (the
alleged June 14, 2012 release), and because Defendants had notice of these potential claims such
that they will not be prejudiced by the intervention, the court finds that the claims set forth in the

14

Intervention Complaint relate back to Plaintiffs’ original filing pursuant to Fed. R. Civ. P. 15(c). 14
2. Intervention of Right
Pursuant to Fed. R. Civ. P. 24(a), a party is entitled to intervene in a pending lawsuit when:
(1) the motion to intervene is timely; (2) the potential intervenor asserts an interest that is related
to the property or transaction that is the subject of the action in which he seeks to intervene; (3)
the potential intervenor is so situated that disposition of the case may as a practical matter impair
or impede his ability to protect his interest; and (4) the parties already in the action do not
adequately protect the potential intervenor’s interest. Ford v. City of Huntsville, 242 F.3d 235,
239 (5th Cir. 2001).
“A potential intervenor asserts an interest that is related to the property or transaction that
forms the basis of the controversy in the case into which she seeks to intervene, if the potential
intervenor has a ‘direct, substantial, [and] legally protectable’ interest in the property or
transaction….” John Doe No. 1. V. Glickman, 256 F.3d 371, 379 (5th Cir. 2001) (citing Sierra
Club v. Epsy, 18 F.3d 1202, 1207 (5th Cir. 1994) & Edwards v. City of Houston, 78 F.3d 983,
1004 (5th Cir. 1996)).

When considering this factor, the Fifth Circuit has cautioned against

defining “property or transaction” too narrowly. See, Ford v. City of Huntsville, 242 F.3d 235,

14

This result is in keeping with the underlying purpose of limitation periods to ensure a defendant is put on timely
notice of the need to defend a claim. See, American Pipe and Construction Co. v. Utah, 414 US 538, 554-55 (1974)
(explaining that limitation periods are designed to “‘promote justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have
disappeared….The policies of ensuring essential fairness to defendants and of barring a plaintiff who ‘has slept on his
rights,’ are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit
and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the
number and generic identities of the potential plaintiffs who may participate in the judgment.” (internal citations
omitted)); Crown, Cork & Seal Co., Inc. v. Parker, 462 US 345, 353 (1983) (explaining that based on the class
complaint a defendant “will be aware of the need to preserve evidence and witnesses respecting the claims of all the
members of the class.”).

15

240 (5th Cir. 2001); Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992). The “interest
test” is “primarily a practical guide to disposing of lawsuits by involving as many apparently
concerned persons as is compatible with efficiency and due process.” Sierra Club v. Espy, 18
F.3d 1202, 1207 (5th Cir. 1994).
Here, proposed intervenors assert that they were exposed on or about June 14-15, 2012 to
fumes from the June 14, 2012 naptha release.15 Because the proposed intervenors raise claims
arising out of an alleged release that was already at issue in the case, the court finds that intervenors
have asserted an interest related to the property or transaction that forms the basis of the
controversy.
Likewise, “[w]hether a would-be intervenor is able to protect his interests outside the
underlying suit is…governed by a liberal, practical standard.” Stewart v. City of Houston, 2009
WL 783319, at *3 (March 24, 2009) (citing Edwards v. City of Houston, 78 F.3d 983, 1004-1005
(5th Cir. 1996)). Here, the proposed intervenors’ assert that “[t]he Seventh Amendment may
prohibit trying liability multiple times to different juries.” (Rec. Doc. 174). While not entirely
clear from proposed intervenors’ memorandum in support, it appears proposed intervenors are
attempting to raise a concern regarding potential bifurcation of the liability and damage phases of
this suit. The court recognizes that “[t]he Seventh Amendment does not prohibit bifurcation of
trials as long as the ‘the judge [does] not divide issues between separate trials in such a way that
the same issue is reexamined by different juries.’” Mullen v. Treasure Chest Casino, LLC, 186
F.3d 620, 628 (5th Cir. 1999). However, a fair reading of proposed intervenor’s briefing in this

15

As noted above, the proposed Intervention Complaint also references the alleged May 23, 2013 release. See, n. 5,
supra.

16

regard does not provide any basis for finding a risk of infringing upon their Seventh Amendment
rights, and this court is hesitant to base its decision on such a nebulous and unarticulated concern.
However, setting this issue aside, the court recognizes that a proposed intervenor’s interest may in
some circumstances be impaired by adverse stare decisis effects. Sierra Club v. Espy, 18 F.3d
1202, 1207 (5th Cir. 1994). Given the fact that proposed intervenors assert they would have been
part of the class had it been certified, as well as the fact that their proposed complaint alleges
claims arising from an alleged release already at issue in this suit, the court finds that there is a risk
that the proposed intervenors would be unable to protect their interests outside of this suit.
Finally, the proposed intervenors have the “minimal” burden of demonstrating that their
interest will be “inadequately represented by the existing parties to the suit.” Sierra Club v. Epsy,
18 F.3d 1202, 1207 (5th Cir. 1994). “The applicant need only show that representation ‘may’ be
inadequate.”

Id. Although the proposed intervenors raise claims based on the same factual

allegations already set forth in the suit, they do so in the hopes of recovering individual damages.
Accordingly, the court finds this weighs in favor of intervention.

See, Stewart v. City of Houston,

2009 WL 783319, at *5 (March 24, 2009) (“This case is not a class action and Plaintiffs have filed
suit to secure their own damages. The court is persuaded that [proposed intervenor’s] interest is
not adequately represented by the current parties.”).
Because the court finds the proposed intervention was timely filed and that the
requirements of Fed. R. Civ. P. 24(a) are satisfied, proposed intervenors are permitted to intervene
into this action by right. 16

16

Because the court finds proposed intervenors have satisfied the requirements of Fed. R. Civ. P. 24(a), the court does
not need to engage in an exhaustive analysis of permissive intervention pursuant to Fed. R. Civ. P. 24(b). However,
the court notes that the same issues of timeliness, lack of prejudice to the parties in the suit, and common questions of

17

C. Request for Entry of a Lone Pine Order
Defendants assert that motions for leave to file the Third Supplemental and Amending
Complaint and to intervene should be granted only if accompanied by a Lone Pine order. (Rec.
Docs. 180 & 182).17 Specifically, Defendants argue that this court should enter an order requiring
each plaintiff to provide sworn affidavits to make a prima facie showing in support of their claims.
With regard to personal injury claims, Defendants assert that a plaintiff’s affidavit should set forth:
(1) the identity, exposure date, and exposure dosage for each chemical to which plaintiff was
exposed; (2) the precise disease or illness from which the plaintiff suffers; (3) evidence supporting
the contention that exposure to Exxon’s emissions caused the injury in question; and (4) the
underlying facts or data relied on in forming an opinion that exposure to the alleged chemical(s)
at the alleged level or dose was sufficient to cause the alleged injury or illness.

(Rec. Doc. 180,

pp. 7-8; Rec. Doc. 182, p. 7). With regard to property damage claims, Defendants assert that a
plaintiff’s affidavit should set forth: (1) that the plaintiff’s property and the alleged migration
pathway have been sampled by a scientifically reliable method; (2) the samples have been analyzed
by a qualified laboratory; (3) lab analysis detected constituents consistent with emissions from the
Exxon facility; (4) lab analysis confirmed the existence of a migration pathway between the site
and the property; and (5) reports from real estate experts supporting diminution of property value
claims. (Rec. Doc. 180, p. 8). Both current Plaintiffs and proposed intervenors oppose the entry

fact and law would lead the court to exercise its discretion in this instance to allow permis sive intervention. See, SEC
v. Stanford Intern. Bank, Ltd., 429 Fed. Appx. 379, 382 (5th Cir. 2011) (“[a] court may allow permissive intervention
if the movant can demonstrate that it ‘has a claim or defense that shares with the main action a common question of
law or fact’ and that it will not ‘unduly delay or prejudice the adjudication of the original parties’ rights.’” ).
17

This name comes from Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super., Nov. 18, 1986). There, the court
approved a pre-trial order which required plaintiffs (who had instituted suit against some 464 defendant landfill
operators) to provide some basic facts in the form of expert affidavits or run the risk of having their case dismissed.

18

of a Lone Pine Order. (Rec. Docs. 185 & 187-1).
“Lone Pine orders are designed to handle the complex issues and potential burdens on
defendants and the court in mass tort litigation.

In the federal courts, such orders are issued under

the wide discretion afforded district judges over the management of discovery under Fed. R. Civ.
P. 16.” Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000). In Acuna, the Fifth
Circuit affirmed entry of a Lone Pine order where “approximately one thousand six hundred
plaintiffs” sued “over one hundred defendants for a range of injuries occurring over a span of up
to forty years.” Id. The court explained that “[n]either the defendants nor the court was on notice
from plaintiffs’ pleadings as to how many instance of which diseases were being claimed as
injuries or which facilities were alleged to have caused those injuries.”

Id. Accordingly, the

district court required each plaintiff provide an expert affidavit specifying “the injuries or illnesses
suffered by the plaintiff that were caused by the alleged uranium exposure, the materials or
substances causing the injury and the facility though to be their source, the dates or circumstances
and means of exposure to the injurious materials, and the scientific and medical bases for the
expert’s opinion.”

Id. at 338. Following Acuna, other courts in this circuit have entered similar

case management orders. See, In re Vioxx Products Liability Litigation, 557 F.Supp.2d 741 (E.D.
La. 2008) (granting entry of Lone Pine order at late stage of MDL litigation);

In re 1994 Exxon

Chemical Plant Fire Litigation, 2005 WL 6252312 (M.D. La. April 7, 2005) (granting Lone Pine
order in consolidated toxic tort suit where state court petitions “did not identify the particular
injury, illness, loss or harm sustained by each individual named,” “did not identify which
contaminant caused which injury or damage,” and instead “broadly alleged that substances were
released, they were exposed to the substances, and they were injured or otherwise suffered

19

damages from the exposure.”).
In determining the appropriateness of issuing a Lone Pine order, courts may consider
several factors: “including: (1) the posture of the action; (2) the peculiar case management needs
presented; (3) external agency decisions impacting the merits of the case; (4) the availability and
use of other procedures explicitly sanctioned by federal rule or statute; and (5) the type of injury
alleged by plaintiffs and its cause.” Smith v. Atrium Medical Corp., 2014 WL 5364823, at *1
(E.D. La. Oct. 21, 2014) (citing In re Digitek Product Liability Litigation, 264 F.R.D. 249, 256
(S.D. W. Va. 2010)).

Defendants assert that a Lone Pine order is appropriate here because

Plaintiffs’ exposure allegations are conclusory such that “distinguishing potentially plausible
claims from frivolous ones will require extensive and burdensome discovery – including
depositions of hundreds of plaintiffs and healthcare providers” and argue that because some
discovery has already taken place in the context of attempted class certification, “requiring
Plaintiffs to produce prima facie evidence of exposure, injury and causation before further
discovery commences will not prejudice Plaintiffs because they have already conducted extensive
discovery regarding Exxon’s Baton Rouge operations.” (Rec. Doc. 180, p. 5).
In response, Plaintiffs assert that the allegations as set forth in the Third Supplemental and
Amending Complaint, as well as the discovery related to class certification, are sufficient to put
Defendants on notice of each plaintiff’s claims. (Rec. Doc. 187-1, pp. 1-2). Further, Plaintiffs
assert that they have already put forth evidence establishing a prima facie case, and cite the
testimony and expert reports of Dr. Sawyer and Mr. Auberle.

(Rec. Doc. 187-1, p. 2). 18

At the hearing on class certification, Plaintiffs’ experts focused on hydrogen sulfide, and asserted that they
compared models of exposure to a particular study indicating at what level exposure to hydrogen sulfide could produce
effects for most individuals, also known as its “odor threshold.” According to Mr. Auberle, the modeling data
18

20

Plaintiffs further argue that analysis of the Digitek factors weighs against entry of a Lone Pine
order. (Rec. Doc. 187-1, pp. 5-9).19
This court agrees with Plaintiffs that entry of a Lone Pine order is an “extraordinary
procedure” that should be used “where existing procedural devices explicitly at the disposal of the
parties by statute and federal rule have been exhausted or where they cannot accommodate the
unique issues of this litigation.”

In re Digitek Product Liability Litigation, 264 F.R.D. 249, 259

(S.D. W. Va. 2010). See also, Simeone v. Girard City Bd. Of Edn., 872 N.E.2d 344, 352 (Ohio
Ct. App. 2007) (“In most of the Lone Pine cases we have reviewed…the Lone Pine order was
issued only after one party was refusing to comply with discovery requests or when the plaintiffs
failed to set forth a prima facie claim.”). Here, while Defendants may disagree with Plaintiffs’
expert’s current assertions regarding general causation, level of exposure, or migration pathways,
the court finds such generalized evidence, especially in light of the more particularized allegations
set forth in the Third Supplemental and Amending Complaint, fairly give Defendants notice of
Plaintiffs’ particularized claims. Moreover, given that class certification was recently denied, the
court does not find that this suit is in a procedural posture warranting an extreme remedy such as

accounted for other factors, such as terrain and atmospheric conditions – though he did acknowledge that he did not
account for other possible sources of the chemicals, he still claimed that at least 80% came from Exxon. These
exposure levels, according to Plaintiffs, are also sufficient to invoke nuisance issues, such as offensive odors, within
the area.
19

Specifically, Plaintiffs point out that discovery to date has been focused on class certification; therefore, Plaintiffs
need to conduct additional discovery to determine the full extent of emissions and Plaintiffs’ exposure. Plaintiffs
argue that this is not an exceptionally large or overly complex mass tort case, and point to World Health Studies relied
upon by Dr. Sawyer in support of his general causation analysis. Plaintiffs assert that the established discovery rules
have not been shown to be inadequate here and that in any event, Plaintiffs’ non-health nuisance claims (about which
Plaintiffs assert their claims are primarily focused) do not require medical expert testimony or proof of formal medical
treatment such that requiring “individualized expert affidavits, especially at this early stage, is excessive and
unwarranted.” (Rec. Doc. 187-1, pp. 5-9). Plaintiffs argue that the level of detail Exxon is requesting would be
impossible to provide because “the day to day emissions data that would be required either does not exist or has not
been produced.” (Rec. Doc. 187-1, pp. 9-10).

21

a Lone Pine order. While the court recognizes the potential logistical difficulties inherent in
utilizing traditional discovery methods in a case involving over 200 plaintiffs, Defendants have
not shown that such methods have been exhausted or cannot accommodate the parties’ needs. 20
D. Trial Management Plan
In addition to a Lone Pine order, Defendants assert that: (1) the case should remain
consolidated only through completion of fact and expert discovery, Daubert motions, and multiplaintiff dispositive motions; (2) following the close of discovery and ruling on Daubert or multiplaintiff dispositive motions, each remaining plaintiff’s (or household’s) claims shall be severed
for any remaining individual pretrial proceedings, motions practice, and individual trial before a
separate jury; and (3) at trial, each plaintiff shall bear the burden of production and proof, using
admissible evidence, on each element of each cause of action pursued. (Rec. Doc. 180, p. 9; Rec.
Doc. 182, p. 9). Plaintiffs do not spend much time addressing this request, other than to state that
if the court is concerned with potential burdens associated with mass discovery, it is within the
court’s discretion to “create a trial management plan with trial groups and/or phased bellwether
trials, and narrow the scope of discovery to discrete groups.” (Rec. Doc. 187-1, pp. 8-9). To the
extent such a case management plan becomes necessary later in these proceedings, the court will
consider same at the request of a party and with sufficient briefing to support and explain the option
they think most appropriate here.

III.

CONCLUSION

20

This case is significantly less complex than Acuna, where over 1600 plaintiffs were suing over 100 defendants for
alleged injuries occurring over a 40 year span. Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000).

22

For the reasons set forth herein the Second Motion for Leave of Court to File Third
Supplemental and Amending Complaint (Rec. Doc. 167) and the Motion to Intervene (Rec. Doc.
166) are GRANTED.

Signed in Baton Rouge, Louisiana, on March 22, 2016.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

23