Gardemal v. Champion Technology Offshore Co et al

Filing 45

MEMORANDUM RULING re 17 First MOTION to Amend/Correct Complaint with opposition filed by Chad J Gardemal. IT IS ORDERED that the plaintiffs 17 motion for leave to supplement and amend his original complaint is DENIED but without prejudice to the plaintiffs right to file a subsequent motion for leave to file an amended complaint if appropriate. Signed by Magistrate Judge Patrick J Hanna on 2/25/2014. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CHAD J. GARDEMAL

CIVIL ACTION NO. 6:13-CV-02643

VERSUS

JUDGE HAIK

CHAMPION TECHNOLOGIES, INC.
ET AL.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Currently pending before the Court is the plaintiff’s motion for leave to
supplement and amend his original complaint. (Rec. Doc. 17). The motion is
opposed. Oral argument was heard on February 25, 2014. For the reasons explained
below, the motion is denied.
BACKGROUND
According to his original complaint (Rec. Doc. 1-1 at 3-6), the plaintiff was
“working at Ted Gardemal Welding Service” on September 16, 2011 and was injured
when he was standing on a small step ladder welding the legs of a tank that was
suspended from a cable, and the tank suddenly exploded. He sued Champion
Technologies, Inc. (incorrectly named in the petition as Champion Technology
Offshore Company) and Hoover Groups, Inc. (incorrectly named in the petition as
Hoover Materials Handling Group). He alleges that Champion shipped the tank to

the welding service so that the work could be performed, and he alleges that Hoover
was responsible for cleaning the tank prior to shipment.
Hoover filed a cross-claim against Champion seeking contractual defense and
indemnity. (Rec. Doc. 15). Hoover also asserted third-party demands against Ace
American Insurance Company and Nalco Company, alleging that Ace insures
Champion and Hoover and alleging that Nalco is the successor to Champion’s
liabilities and obligations. (Rec. Doc. 15). Therefore, Ace and Nalco are already
parties to this litigation.
The plaintiff now seeks to add Ace, Nalco, and Ted Gardemal Welding Service
as direct defendants in the lawsuit. Champion opposes the motion, but only to the
extent that the plaintiff proposes asserting a claim against Ted Gardemal Welding
Service. There is no opposition to the plaintiff’s motion for leave to assert claims
against Ace and Nalco.
ANALYSIS
Champion articulates several reasons why the plaintiff should not be permitted
to add a claim against Ted Gardemal Welding Service. The undersigned finds one
of them to be particularly persuasive and pretermits discussion of the others.
Fed. R. Civ. P. 15(a)(2) states that, when more than twenty-one days have
elapsed after service of the original complaint, “a party may amend its pleading only
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with the opposing party's written consent or the court's leave. The court should freely
give leave when justice so requires.” The court has discretion to grant or deny leave
to amend.1 In particular, a court may deny leave to amend when the proposed
amendment is futile.2 An amendment is futile if “the amended complaint would fail
to state a claim upon which relief could be granted.”3 In evaluating the futility of an
amendment, the court applies the same standard of legal sufficiency that applies under
Fed. R. Civ. P. 12(b)(6).4
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough
facts to state a claim for relief that is plausible on its face.5 A claim is plausible on
its face when the plaintiff pleads facts from which the court can “draw the reasonable
inference that the defendant is liable for the misconduct alleged.”6

“Factual

allegations must be enough to raise a right to relief above the speculative level, on the

1

Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013); Addington v. Farmer's Elevator
Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981).
2

Stripling v. Jordan Production Co., L.L.C., 234 F.3d 863, 872-73 (5th Cir. 2000);
Marti’s Herend Imports, Inc. v. Diamond & Gem Trading United States of America Co, 195 F.3d
765, 771 (5th Cir. 1999).
3

Stripling v. Jordan Production Co., L.L.C., 234 F.3d at 873.

4

Stripling v. Jordan Production Co., L.L.C., 234 F.3d at 873.

5

In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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assumption that all the allegations in the complaint are true (even if doubtful in
fact).”7 The court “must accept all well-pleaded facts as true and view them in the
light most favorable to the non-moving party.”8 “This standard simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of
the necessary claims or elements.”9
In the original petition, the plaintiff alleges that he was working for Ted
Gardemal Welding Service when the injury occurred. (Rec. Doc. 1-1 at 3). After the
accident, the plaintiff sought to recover workers’ compensation benefits, alleging that
he was the employee of Ted Gardemal Welding Service. (Rec. Docs. 25-1, 25-2). In
the proposed amending complaint, the plaintiff avers that “Gardemal Welding was
also the employer of plaintiff Chad Gardemal.” (Rec. Doc. 17-2 at 1).
Under the exclusivity provision of the Louisiana’s workers’ compensation law,
an employee cannot sue his employer in tort and is, instead, limited to recovering
workers’ compensation benefits if he is injured while working unless the injury
resulted from an intentional act. La. R.S. 23:1032(B). In this case, there is no

7

Bell Atlantic Corp. v. Twombly, 550 U.S. at 545.

8

In re Southern Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008).

9

In re Southern Scrap Material Co., LLC, 541 F.3d at 584, 587 (internal quotation

omitted).
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allegation that the plaintiff was injured due to an intentional act by his employer or
a coworker and, consequently, no basis for invoking the exception to the exclusivity
rule. Therefore, accepting the plaintiff’s allegations as true, the plaintiff cannot state
a plausible claim against Ted Gardemal Welding Service. Therefore, it would be
futile to permit the plaintiff to amend his complaint in order to add Ted Gardemal
Welding Service as a defendant in the action. Accordingly, to the extent that the
plaintiff seeks leave to amend his complaint in order to add a claim against Ted
Gardemal Welding Service, the motion will be denied.
At the hearing on February 25, 2014, the plaintiff’s counsel explained that
discovery revealed that the plaintiff was not the employee of Ted Gardemal Welding
Service but was, instead, an independent contractor. The current motion for leave to
amend must, however, be decided on the facts alleged in the proposed amending
complaint submitted along with the motion for leave. However, the plaintiff is free
to file another motion for leave to amend, alleging that the plaintiff was an
independent contractor. The plaintiff is cautioned, however, that an amendment that
destroys diversity might result in remand of the lawsuit to state court.
Although there is no opposition to the plaintiff’s motion to the extent that it
seeks to add Ace and Nalco as direct defendants, the motion will also be denied with
regard to those proposed defendants. This action was originally filed in Louisiana
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state court and was removed to this court by the defendants on the basis that the
amount in controversy exceeds the jurisdictional threshold and the parties are diverse
in citizenship. The party invoking subject matter jurisdiction in federal court has the
burden of establishing the court’s jurisdiction.10 Since the plaintiff seeks to add
Nalco and Ace as defendants, the plaintiff must bear that burden. But the information
set forth in the proposed amended complaint does not establish that Nalco and Ace
are diverse in citizenship from the plaintiff. It appears that both Nalco and Ace are
corporations, and a corporation’s citizenship is determined by its state of
incorporation and the state of its principal place of business.11 Neither the state of
incorporation nor the principal place of business of Nalco or Ace is stated in the
proposed amending complaint. Accordingly, the undersigned finds that the plaintiff
has not satisfied his burden of establishing that the addition of the proposed
defendants would not destroy diversity.
This Court has discretion to permit or deny the joinder of Ace and Nalco. “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

10

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir. 1998).

11

28 U.S.C. § 1332(c)(1).
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remand the action to the State court.”12 Since the undersigned cannot determine
whether the addition of Ace and Nalco as defendants in this lawsuit would destroy
diversity, the plaintiff’s motion to add them will be denied but without prejudice to
the plaintiff’s right to add them in the future if they are in fact diverse in citizenship
from the plaintiff.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the plaintiff’s motion for leave to supplement and amend
his original complaint (Rec. Doc. 17) is DENIED but without prejudice to the
plaintiff’s right to file a subsequent motion for leave to file an amended complaint if
appropriate.
IT IS FURTHER ORDERED that, should the plaintiff decide to file a
subsequent motion for leave to supplement and amend his original complaint, the
proposed complaint shall allege with particularity the citizenship of all parties
(including but not limited to the state of incorporation and principal place of business
of all corporations) and the memorandum in support of the motion for leave shall
address the factors set forth in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th

12

28 U.S.C. § 1447(e).
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Cir. 1987).
Signed at Lafayette, Louisiana on February 25th, 2014.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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