Cole et al v. P S C Industrial Outsourcing L P et al

Filing 88

MEMORANDUM RULING re 80 MOTION for New Trial MOTION for Reconsideration re 79 Order filed by Marie Cole, David Cole. Signed by Chief Judge S Maurice Hicks, Jr on 3/1/2021. (crt,McDonnell, D)

Case 6:16-cv-00648-SMH-PJH Document 88 Filed 03/01/21 Page 1 of 7 PageID #: 2316

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
DAVID COLE, ET AL.

CIVIL ACTION NO. 16-0648

VERSUS

JUDGE S. MAURICE HICKS, JR.

PSC INDUSTRIAL OUTSOURCING, LP,
ET AL.

MAGISTRATE JUDGE HANNA
APPLIES TO:
16-cv-00649, 16-cv-00650,
16-cv-00651, 16-cv-00652,
16-cv-00653, 16-cv-00654,
16-cv-00657, 16-cv-00791,
16-cv-00792, 16-cv-00793,
16-cv-00794, 16-cv-00795,
16-cv-00796, 16-cv-00797,
16-cv-00798, 16-cv-00799,
16-cv-00800, 16-cv-00801,
16-cv-00802, 16-cv-00804,
16-cv-00805, 16-cv-00806,
16-cv-00807, 16-cv-00808,
16-cv-01039, 16-cv-01221,
16-cv-01223, 16-cv-01485,
17-cv-00267, 17-cv-00284,
17-cv-00292, 18-cv-01574,
18-cv-01575, 18-cv-01576

MEMORANDUM RULING
Before the Court is a Motion for New Trial/Reconsideration (Record Document 80)
filed by Plaintiffs David and Marie Cole (the “Coles”). The Motion stems from the Court’s
adoption of a Report and Recommendation denying the Coles’ Motion to Remand
(Record Document 79), and the Coles’ argument is rooted in new evidence that also
supplements outstanding motions to remand in a series of related cases (the “Bayou

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Teche cases”). 1 For ease of administration, the Court has considered issues in these
related matters together and will continue to do so for purposes of the instant Motion. For
the foregoing reasons, the Coles’ Motion for Reconsideration is hereby DENIED and the
pending motions to remand in the related Bayou Teche cases are also DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
This matter centers on a March 2016 oil spill in St. Mary Parish near Bayou Teche.
Defendant PSC Industrial Outsourcing, LP (“PSC”) operated a crude oil reclamation and
saltwater disposal facility, and the Coles are nearby landowners who allegedly suffered
pollution of their property from the spill. See Record Document 45. The Coles originally
filed their lawsuit in Louisiana state court before PSC removed to this Court on the basis
of diversity subject matter jurisdiction. See Record Document 1. The suit did not include
a prayer for a specific sum of damages, as Louisiana law does not permit such
enumeration in certain instances, but PSC argued that in light of the allegations made,
the threshold jurisdictional amount was likely to be satisfied. See id.
Following removal, the Coles added Lawrence Segura, a PSC employee, as a
Defendant in the suit. See Record Document 8-1 at 33. As a fellow Louisiana citizen,
Segura destroyed diversity with the Coles, who moved to remand based on this newfound
lack of diversity. See Record Document 31. PSC opposed the Coles’ Motion to Remand,
arguing Segura’s citizenship should be ignored pursuant to the improper joinder doctrine.
See Record Document 40. In reply, the Coles argued for the first time that the amount in

Pursuant to Court order, the Bayou Teche cases have been consolidated for purposes of discovery only.
See Record Document 14. All pleadings have been directed to be filed in the Cole case by virtue of it being
the lowest case number. See Record Document 15.
1

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controversy prong of diversity subject matter jurisdiction was also unmet. See Record
Document 42. Considering these arguments, Magistrate Judge Hornsby denied the
Motion to Remand, concluding (1) Segura had been improperly joined and (2) PSC had
met its burden with respect to the amount in controversy. See Record Document 45. The
Court agreed with Magistrate Judge Hornsby’s Report and Recommendation and ordered
the Motion denied and all claims against Segura dismissed with prejudice. See Record
Document 79.
The Report and Recommendation and the Court’s order adopting its findings were
filed only in the instant suit. The Court issued a separate order in Chitimacha Trail, LLC
v. PSC Industrial Outsourcing, LP, 16-cv-0649, announcing the denial of the Coles’
motion to remand and providing the plaintiffs in the related Bayou Teche cases twentyone days to file supplemental memoranda detailing why their motions to remand should
not also be denied. See Record Document 71. All of the plaintiffs made such filings. These
memoranda argued the amount in controversy threshold was not met in their specific
cases because no soil or groundwater contamination had occurred. Each included
homeowner affidavits detailing the exact amount of damages suffered according to
recently conducted environment impact assessments. The Coles filed a supplemental
memorandum mirroring their neighbors, but did so without court approval, leading to a
finding of deficiency. See Record Document 82. The instant Motion for Reconsideration
was filed by the Coles “in an effort to prevent manifest injustice… in the event the Court
is inclined to grant remand in the remaining cases.” Record Document 80.

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LAW AND ANALYSIS
I. Legal Standard
The Federal Rules of Civil Procedure do not explicitly recognize a motion for
reconsideration; however, such motions are typically analyzed under Rule 59(e) as
motions to alter or amend a judgment when they are made within twenty-eight (28) days
of the entry of judgment. See Leonard v. Louisiana, 2013 WL 5755676 at *1 (W.D. La.
Oct. 23, 2013). A Rule 59(e) motion “calls into question the correctness of a judgment.”
In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). Accordingly,
“reconsideration of a judgment after its entry is an extraordinary remedy that should be
used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Motions
for reconsideration “serve the narrow purpose of allowing a party to correct manifest
errors of law or fact or to present newly discovered evidence.” Waltman v. Int’l Paper Co.,
875 F.2d 468, 473 (5th Cir. 1989).
II. Analysis
The Coles’ Motion for Reconsideration focuses on the amount in controversy prong
of diversity subject matter jurisdiction and argues new evidence in the form of
environmental property assessments demonstrates the $75,000 threshold cannot be met.
See Record Document 80. PSC argues the law is clear that such “post-removal events”
should not factor into the Court’s jurisdictional analysis. See Record Document 87. The
Court agrees with PSC.
The Fifth Circuit has held that “once the district court’s jurisdiction is established,
subsequent events that reduce the amount in controversy to less than $75,000 generally
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do not divest the court of diversity jurisdiction.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d
880, 883 (5th Cir. 2000) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289-90, 58 S.Ct. 586 (1938)). In Gebbia, a plaintiff alleged slip-and-fall damages in
the form of medical expenses, physical pain and suffering, mental anguish and suffering,
loss of enjoyment of life, loss of wages, and permanent disability. See id. at 881. The
plaintiff did not state a specific sum of damages, and the defendant removed based on
diversity, alleging the amount in controversy would exceed the threshold amount. 2 See
id. Following discovery, the plaintiff produced documentation that her damages would not
exceed $75,000 and moved to remand, but was denied by the district court. See id. at
882. The Fifth Circuit agreed with the district court, holding that jurisdictional facts must
be judged at the time of removal, and that if it is facially apparent from the complaint that
the amount-in-controversy exceeds $75,000 at the time of removal, post-removal
affidavits and documentation reducing that amount do not divest the court of jurisdiction.
See id. at 883.
There have been instances where courts do accept post-removal evidence
destroying jurisdiction; however, this is limited to situations where the removing defendant
failed to show it was facially apparent from the complaint that damages would exceed the
threshold amount. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850-51 (5th Cir.
1999). In Simon, the defendants’ mere conclusory statement in its notice of removal that
damages would likely exceed $75,000 was not enough for the court to find the threshold

This removal was in accordance with the Luckett framework established by the Fifth Circuit for evaluating
jurisdiction for cases filed in Louisiana state courts with no monetary damages asserted. In such cases,
removing defendants may remove based on diversity by demonstrating that it is “facially apparent” that the
claims are likely to exceed $75,000. See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
2

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was likely to be eclipsed when the plaintiff had only claimed minor injuries such as a
shoulder strain, cuts, and bruises. See id. at 850-51.
As detailed in Magistrate Judge Hornsby’s Report and Recommendation, the
Coles enumerated several types of damages as a result of the oil spill, including (1)
punitive and exemplary damages; (2) contamination to property, groundwater and
aquifers; (3) contamination to wildlife, plants, ground and trees; (4) devaluation of
property; (5) attorney’s fees; (6) loss of enjoyment of life; (7) physical pain and suffering,
including pulmonary, sinus and allergy injuries; (8) mental and psychological injury; (9)
expert fees, cost of remediation and court costs; (10) loss of use of property; and (11)
loss of peaceful enjoyment, possession and view. See Record Document 45 at 10-11.
This extensive list equates more closely with the claimant in Gebbia than the plaintiff in
Simon. Considering the types of damages sought, coupled with nature of the event giving
rise to suit, the $75,000 jurisdictional threshold appeared as though it would easily be met
at the time of removal. The fact that later discovery proved this not to be the case has no
bearing on the Court’s jurisdiction. Accordingly, the Motion for Reconsideration is hereby
DENIED.
III. Remaining Bayou Teche Cases 3
Outstanding motions to remand remain in the nearly three dozen related Bayou
Teche oil spill cases. As explained, these motions mirror the argument made by the Coles
in the instant matter. The Court afforded the landowners in these cases an opportunity to
supplement their motions, and each did so. They explain that damages do not exceed

3

The applicable cases are listed in the caption of the instant ruling.

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$75,000 and include plaintiff affidavits detailing the exact amount of loss suffered
according to environmental impact assessments. For the same reasons the Court has
denied the Coles’ Motion for Reconsideration, the motions to remand in these related
cases must also be DENIED.
CONCLUSION
At the time of removal, it was facially apparent that the $75,000 jurisdictional
threshold would be satisfied in this case. Post-removal discovery evidence has no effect
on this determination. As such, the Court retains subject matter jurisdiction over the
present matter and all remaining Bayou Teche cases. The instant Motion for New
Trial/Reconsideration (Record Document 80) is hereby DENIED. Similarly, motions to
remand in the related captioned cases are also DENIED. An order consistent with these
terms shall issue in this case and all related matters.
THUS DONE AND SIGNED in Shreveport, Louisiana on this 1st day of March,
2021.

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