Sheppard v. Liberty Mutual Insurance Company et al, No. 2:2016cv02401 - Document 108 (E.D. La. 2016)

Court Description: ORDER & REASONS denying 68 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Sarah S. Vance on 10/26/2016. (mmm)

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Sheppard v. Liberty Mutual Insurance Company et al Doc. 108 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ESSE FRANK SHEPPARD CIVIL ACTION VERSUS NO. 16-240 1 LIBERTY MUTUAL INSURANCE COMPANY, ET AL. SECTION “R” (3) ORD ER AN D REAS ON S Before the Court is plaintiff J esse Frank Sheppard’s m otion for appeal and review 1 of Magistrate J udge Knowles’ order 2 denying Sheppard’s m otion to file a First Am ended Com plaint. 3 The Court denies Sheppard’s m otion because Sheppard has failed to show that Magistrate J udge Knowles’ order is clearly erroneous or contrary to law. I. BACKGROU N D This suit was origin ally filed in the Civil District Court for the Parish of Orleans. 4 Defendant Mosaic Global Holding Inc. rem oved to this Court on March 22, 20 16. 5 In his com plaint, Sheppard alleges that he was exposed to asbestos “[o]n a daily basis” as an em ployee of Mosaic’s predecessor com pany, Freeport Sulphur Com pany. 6 This exposure allegedly caused Sheppard to develop asbestos-related cancer, lung cancer, an d/ or 1 2 3 4 5 6 R. Doc. 68. R. Doc. 60 . R. Doc. 5. R. Doc. 1 at 1. Id. R. Doc. 1-1 at 5. Dockets.Justia.com m esotheliom a. 7 Although Sheppard stopped working for Freeport in the early- to m id1990 s, 8 Sheppard’s asbestos-related ailm ents were first diagnosed in October 20 15. 9 In addition to Freeport/ Mosaic, Sheppard sues several defendants in volved in the m anufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work. 10 Sheppard also brings claim s again st insurance com panies that allegedly provided coverage to defendants for asbestos-related claim s and withheld inform ation from Sheppard about the danger of asbestos. 11 Sheppard brings claim s for “negligen ce, inten tional tort, fraud, and strict liability,” and alleges that all defendants are “jointly, severally, and in solidio liable.”12 He seeks dam ages for, am ong other things, physical and m ental pain, loss of life, loss of incom e, and m edical expenses. 13 According to his com plaint, Sheppard worked at several Freeport facilities, including Freeport’s Cam inada facility. 14 In its notice of rem oval, Mosaic asserts that the Cam inada facility was located on the Outer Continental Shelf, and that jurisdiction in this Court is therefore proper under the Outer Continental Shelf Act (OCSLA). 15 Shortly after rem oval, Sheppard m oved to am end his com plaint to rem ove any allegations regarding 7 Id. at 6. Sheppard’s com plaint is inconsistent on this point. Sheppard alleges variously that his tenure at Freeport, and exposure to asbestos, ran from “approxim ately 1967 through 1992,” from “approxim ately 1967 through 1994,” and “from 1967 through 1976.” R. Doc. 1-1 at 5, 6. 9 R. Doc. 1-1 at 6. 10 Id. at 6, 7. 11 Id. at 3, 4, 8 . 12 Id. at 29. 13 Id. 14 R. Doc. 1-1 at 5. 15 R. Doc. 1 at 2. 8 2 the Cam in ada facility. 16 Magistrate J udge Knowles denied Sheppard’s m otion, and found that Sheppard’s proposed am endm ents are both futile and sought in bad faith. 17 Sheppard now seeks appellate review of the Magistrate J udge’s order. 18 II. LEGAL STAN D ARD A m agistrate judge’s ruling on a non-dispositive civil m otion m ay be appealed to the district court. Fed. R. Civ. P. 72(a). When a tim ely objection is raised, the district judge m ust review the Magistrate J udge’s ruling and “m odify or set aside any part of the order that is clearly erroneous or contrary to law.” Id. Under this highly deferential standard, a m agistrate judge’s ruling “should not be rejected m erely because the court would have decided the m atter differently.” Ordem ann v. Unidentified Party , No. 0 64796, 20 0 8 WL 695253, at *1 (E.D. La. Mar. 12, 20 0 8) (internal quotations om itted). Instead, the decision m ust be affirm ed unless “on the entire record [the court] is left with a defin ite and firm conviction that a m istake has been com m itted.” United States v. United States Gy psum Co., 333 U.S. 364, 395 (1948) (discussing the “clearly erroneous” standard). III. D ISCU SSION After reviewing the applicable law, the Magistrate J udge’s order, and the parties’ argum ents, the Court finds no error in Magistrate J udge Knowles’ order. Sheppard’s attem pt to am end under Rule 15(a) is unavailing because “[a] party m ay not em ploy Rule 16 17 18 R. Doc. 5. R. Doc. 60 at 5. R. Doc. 68. 3 15(a) to interpose an am endm ent that would deprive the district court of jurisdiction over a rem oved action.” W hitw orth v. TN T Bestw ay Transp. Inc., 914 F. Supp. 1434, 1435 (E.D. Tex. 1996) (quoting 6 Wright, Miller & Kane, Federal Practice & Procedure, § 1447 at 562 (2d ed. 1990 ). Furtherm ore, as noted by the Magistrate J udge, the Fifth Circuit has specifically upheld denial of a m otion for leave to am end when the district court found: (1) “bad faith on the part of [plaintiff] for forum shopping, noting that [plaintiff’s] intention was to defeat federal jurisdiction,” and (2) “that the am endm ent would be futile because a court looks at the claim s in the state court petition as they existed at the tim e of rem oval when determ ining whether federal jurisdiction is present for purposes of rem oval.” Bouie v. Equistar Chem icals LP, 188 F. App’x 233, 238 -39 (5th Cir. 20 0 6). The Court finds no m istake in the Magistrate’s finding that the am endm ent at issue here is both futile and m ade in bad faith. IV. CON CLU SION For the foregoing reasons, J esse Franks Sheppard’s Motion to Review and Objections to Magistrate’s Ruling on Plaintiff’s Motion for Leave of Court to File First Am ending Com plaint as a Matter of Course Pursuant to Federal Rule of Civil Procedure 15(A)(1) is DENIED. New Orleans, Louisiana, this _26th_ day of October, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 4

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