Hernandez et al v. Dedicated TCS, LLC, et al, No. 2:2016cv03621 - Document 58 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 35 Motion to Dismiss for Failure to State a Claim. For the above mentioned reasons, IT IS ORDERED that Defendant Dedicated TCS, LLC's Rule 12(b)(6) Motion to Dismiss is GRANTED. The Plaintiffs' claims against Defendant Dedicated TCS, LLC are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs' motion for leave to file a second amending complaint is DENIED. Signed by Judge Susie Morgan on 3/3/2017. (cg)
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Hernandez et al v. Dedicated TCS, LLC, et al Doc. 58 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEN D EL H ERN AN D EZ, ET AL. Plain tiffs CIVIL ACTION VERSU S N O. 16 -3 6 2 1 D ED ICATED TCS, L.L.C., ET AL. D e fe n d an ts SECTION : “E”( 5) ORD ER AN D REAS ON S Before the Court is Defendant Dedicated TCS, LLC’s (“DTCS”) Rule 12(b)(6) Motion to Dism iss. 1 Plaintiffs oppose this m otion and alternatively request a second opportunity to am end their com plaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. 2 For the following reasons, DTCS’ m otion to dism iss is GRAN TED . BACKGROU N D On April 22, 20 16, Plaintiffs J oendel Hernandez an d Anthony Duckworth filed their com plaint against DTCS and Arkem a, Inc. 3 Plaintiffs allege that on or about October 8 , 20 15, Plaintiffs, em ployees of DTCS, were assigned to clean a tank car at DTCS’ facility in New Orleans. The Com plaint alleges that DTCS was aware that the tank to be clean ed contained hazardous and/ or toxic chem ical vapors and the em ployees would have to work in a confined space without ventilation. Plaintiffs allege that DTCS did not test the air quality prior to ordering plaintiffs to enter the tank car and failed to provide Plaintiffs with breathing apparatus to ensure their ability to breathe upon entering the tank car. Plaintiffs allege they im m ediately lost consciousness as a direct result of the exposure to hazardous vapors in the tank and the lack of oxygen. 1 R. Doc. 35. R. Doc. 42. 3 R. Doc. 1. 2 1 Dockets.Justia.com Plaintiffs allege that the Occupational Safety and Health Adm inistration conducted an exhaustive investigation of the incident and concluded that the incident was caused by the intentional acts of DTCS. 4 Plaintiffs allege that as a result of the incident J oenedel Hernan dez sustained injuries to his heart, lungs and head requirin g m edical treatm ent and Anthony Duckworth sustained injuries to his heart, lungs, back, shoulder and head requiring m edical treatm ent. 5 On Septem ber 1, 20 16, Defendant DTCS filed a m otion to dism iss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure alleging that the Louisiana Workers’ Com pensation Act (“LWCA”) bars tort claim s against em ployers by em ployees injured on the job unless the em ployee can prove that the em ployer is liable for an intentional tort. 6 On Novem ber 23, 20 16, the Court issued an Order requiring Plain tiffs to am end their com plaint to address DTCS’ argum ent that they failed to plead facts dem onstrating their claim s are not barred by the LWCA. 7 On Decem ber 7, 20 16, Plaintiffs filed their First Am ended Com plaint 8 and DTCS’ m otion was dism issed as m oot. 9 Shortly thereafter on Decem ber 20 , 20 16, DTCS filed a m otion to dism iss Plaintiffs’ supplem ental and am ending com plaint. 10 Pursuant to the Plaintiffs’ ex parte m otion, DTCS’ m otion was continued to J anuary 25, 20 17. 11 In its m otion to dism iss Plaintiffs’ supplem ental and am en ding com plaint, DTCS argues “Plaintiffs’ Supplem ental Com plain t has the sam e defects as the original Com plaint.” 12 Although DTCS acknowledges the Plaintiffs now allege that DTCS 4 See R. Doc. 1 at 3, R. Doc. 32. R. Doc. 1 at 4. 6 R. Doc. 13. 7 R. Doc. 25. 8 R. Doc. 32. 9 R. Doc. 33. 10 R. Doc. 35. 11 R. Doc. 40 . 12 R. Doc. 35 at 1. 5 2 “intentionally caused” their dam ages, DTCS contends “[t]hese cosm etic changes do not, however, solve the problem with Plaintiffs’ claim s.”13 According to DTCS, even “if it is true that Plaintiffs’ dam ages stem from [DTCS’] intentional failure to test air quality or provide safety equipm ent in violation of OSHA so as to enable Plaintiffs to allege that [DTCS] intentionally caused their injuries – Plaintiffs have still not asserted a valid intentional tort claim against [DTCS].”14 LEGAL STAN D ARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 15 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”16 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” 17 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.” 18 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 19 13 Id. at 2. Id. at 3 (em phasis in origin al). 15 Bell Atl. Corp. v . Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 17 Id. 18 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 19 Iqbal, 556 U.S. at 663, 678 (citations om itted). 14 3 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”20 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not show[n]’—that the pleader is entitled to relief.” 21 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”22 LAW AN D AN ALYSIS I. Plaintiffs Have Not Alleged a Claim Under The Intentional Act Exception to the LWCA Under Louisiana law, the exclusive rem edy for an em ployee who is injured while in the course and scope of his em ploym ent is the LWCA, unless the em ployee can prove that the injury is the result of the em ployer’s “intentional act.” 23 As DTCS correctly identifies, “The Louisiana Suprem e Court has held that ‘intentional act’ in this context m eans ‘intentional tort.’”24 As the Louisiana Suprem e Court explain ed in Bazely , “The m eaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did.”25 Stated differently, “Intent is not, however, lim ited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”26 Plaintiffs allege that despite num erous OSHA citations, including som e identified by OSHA as “willful” violations, DTCS sent the Plaintiffs in to clean the tank car 20 Tw om bly , 550 U.S. at 555. (quotin g Fed. R. Civ. P. 8(a)(2)). 22 Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 23 See La. Rev. Stat. §§ 23:10 32(A), (B) (1990 ). 24 R. Doc. 35-1 at 4 (quotin g Bazely v. Tortorich, 397 So. 2d. 475, 482 (La. 1981). 25 Bazely , 397 So. 2d at 48 2. 26 Id. (citations om itted). 21 Id. 4 containing hazardous chem icals without (1) testing the quality of the air, (2) supplying lifelines, (3) ensuring that em ployees were provided necessary respiratory protection, (4) following routine safety rules, (5) training em ployees regarding working in confined spaces where chem icals are present; or (6) ensuring that adequately trained rescue personnel could respond to the facility in a tim ely m anner. 27 Plaintiffs allege that DTCS intentionally caused injuries to the plaintiffs by engaging in a deliberate pattern of “failing to test the air quality in the tankers prior to sending the workers into the tank cars to work when they had absolute knowledge the cars m ight contain hazardous chem icals.”28 The Court finds that even accepting the allegations in the Plaintiffs’ Supplem ental and Am ending Com plaint as true, Plaintiffs have not sufficiently alleged a viable cause of action against DTCS under the intentional act exception to the LWCA. “The standard for prevailing on a claim of intentional tort under Louisiana law is extrem ely high.” 29 As the Louisiana Suprem e Court explained in Reeves v. Structural Preservation Sy stem s, Louisiana courts of appeal have “narrowly construed the intentional act exception according to its legislative intent and have alm ost universally held that em ployers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipm ent.”30 As explained in Reeves, “Believing that som eone m ay, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ com pensation.”31 27 R. Doc. 32 at 1-2. R. Doc. 32 at 1. 29 Roux v. Pinnacle Poly m ers, L.L.C., 20 14 WL 129815, at *3 (E.D. La. J an. 14, 20 14). 30 731 So. 2d 20 8, 211-12 (La. 1999) (collecting cases). 31 Id. at 212. 28 5 Establishing that a workplace in jury resulted from an intentional act under the LWCA requires eviden ce that the em ployer either (1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct, or (2) knew that result was substantially certain to follow from his conduct, whatever his desire m ay have been as to the result. 32 Louisiana courts have explained that “[t]he phrase substantially certain to follow m eans m ore than a reasonable probability that an in jury will occur.”33 Other Louisiana courts have interpreted that “substantial certainty” is the “equivalent to inevitable, virtually sure and incapable of failing.” 34 As the court in Gardner explain ed: Believing that som eone m ay, or even probably will eventually get hurt if workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ com pensation. Neither knowledge and appreciation of a risk nor reckless or wanton conduct by an em ployer constitutes an intentional wrongdoing. Further, even if the alleged con duct goes beyond aggravated negligence, and includes such elem ents as knowingly perm itting a hazardous work condition to exist, knowingly ordering a claim ant to perform an extrem ely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the actual intention to injure that robs the injury of accidental character. 35 The Plaintiffs do not allege that DTCS consciously desired that they sustain their injuries. In Plaintiffs’ opposition, they argue that “[b]ecause the Defendant has been reprim an ded by OSHA m ultiple tim es for repeat violations directed to the identical safety issues that led to the [P]laintiffs’ injuries, the Defendant was aware that such a result was substantially certain to follow from [its] conduct.”36 However, there is no allegation in either the initial Com plaint or the Supplem ental and Am ending Com plaint that DTCS was 32 See Moreau v. Moreau’s M aterial Yard, L.L.C., 98 So. 3d 297 (La. 20 12). See Gardner v. Graft, 137 So. 3d 69, 75 (La.App. 2 Cir.20 14) (internal quotations and citations om itted). 34 Roux, 20 14 WL 129815, at *3 (quotin g King v . Schuly kill Metals Corp., 581 So. 2d 30 0 , 30 2 (La.App. 1st Cir.1991)). 35 Gardner, 137 So. 3d at 75 (citations om itted). 36 R. Doc. 42 at 6. 33 6 aware that Plaintiffs’ injuries were substantially certain to follow from its conduct. Even if this conclusory allegation or legal conclusion had been included, there are not sufficient factual allegations to allow the Court to draw the reasonable inferen ce that the Plaintiffs’ injuries were equivalen t to inevitable, virtually sure, and incapable of failing to occur as a result of Defendant’s actions or inactions. Even accepting the allegations in their com plaint as true, the Court finds the Plaintiffs have not sufficiently alleged that DTCS knew that the Plaintiffs’ injuries were substantially certain to follow as a result of the actions it did or did not take. Instead, the Am ended Com plaint includes allegations of the kind Louisiana courts have found to be insufficient to establish intentional tort liability under the LWCA. DTCS’ 12(b)(6) m otion to dism iss for failure to state a claim under the intentional act exception to the LWCA is granted. 37 II. Plaintiffs’ Alternative Motion for Leave to Am end Their Com plaint Alternatively, Plaintiffs request a second opportunity to am end their com plaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure if the Court finds that Plaintiffs’ Supplem ental and Am ending Com plaint fails to state a cause of action for an intentional tort against DTCS. 38 The Plaintiffs were granted leave to file an am en ded com plaint following the filing of DTCS’s first m otion to dism iss. 39 In its first m otion to dism iss, DTCS raised the LWCA bar to tort claim s. Even though given the opportunity, Plaintiffs Supplem ental and Am ending Com plaint does not adequately set forth factual 37 Throughout their opposition, Plaintiffs argue the cases cited by Defendant are distinguishable, at least in part, because the cases cited by DTCS were not decided at the pleadin gs stage. See, e.g., R. Doc. 42 at 6-7. However, the Fifth Circuit has affirm ed the grantin g of a defendant’s m otion to dism iss when a plaintiff’s com plaint “fall[s] in line with the cases that held that violations of safety standards or failin g to provide safety equipm ent d[o] not dem onstrate that the em ployer knew to a substantial certainty that an injury would occur.” See Harper v . Boise Paper Holdings, L.L.C., 575 F. App’x 261, 264 (5th Cir. 20 14). 38 R. Doc. 42 at 13. 39 R. Doc. 25. 7 allegations to support this claim . In Great Plains Trust Com pany v. Morgan Stanley Dean W itter & Com pany , the Fifth Circuit explain ed, “In view of the consequences of dism issal on the com plaint alone, and the pull to decide cases on the m erits rather than on the sufficiency of pleadings, district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dism issing a case.”40 The Fifth Circuit has also explained that one of the valid reasons for a district court to deny a plaintiff’s request for leave to am end is because the party has failed to cure deficiencies by am endm ents previously allowed. 41 The Plaintiff’s alternate m otion for leave to file a second am ended com plaint is not warranted. CON CLU SION For the abovem entioned reasons, IT IS ORD ERED that Defendant Dedicated TCS, LLC’s Rule 12(b)(6) Motion to Dism iss 42 is GRAN TED . The Plaintiffs’ claim s against Defen dant Dedicated TCS, LLC are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Plaintiffs’ m otion for leave to file a second am ending com plaint 43 is D EN IED . N e w Orle a n s , Lo u is ian a, th is 3 rd d ay o f March , 2 0 17. ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 40 313 F.3d 30 5, 329 (5th Cir. 20 0 2). Dussouy v . Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). 42 R. Doc. 35. 43 See R. Doc. 42 at 13. 41 See 8
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