Martin et al v. American Midstream, Partners, LP et al, No. 2:2018cv08262 - Document 27 (E.D. La. 2019)
Court Description: ORDER AND REASONS: Defendant's 17 motion to dismiss for lack of subject matter jurisdiction is DENIED. Its 17 motion to dismiss for failure to state a claim is GRANTED. Plaintiffs' claims are DISMISSED WITH PREJUDICE, as set forth in document. Signed by Judge Sarah S. Vance on 5/15/2019. (jls)
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Martin et al v. American Midstream, Partners, LP et al Doc. 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA PERCY MARTIN ET AL. VERSUS CIVIL ACTION NO. 18-8262 AMERICAN MIDSTREAM PARTNERS, LP ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is defendant P3 Global Personnel, LLC’s motion to dism iss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 1 The Court grants the motion because plaintiffs’ com plaint does not allege facts that entitle them to relief. I. BACKGROU N D Plaintiffs Percy and Linda Martin bring this action against Percy Martin’s former employer for alleged workplace harassment. Percy Martin is a health, safety, and environm ental consultant. 2 Defendant P3 Global Personnel, LLC, a provider of skilled and professional personnel, allegedly hired Martin to do contract work for defendant Am erican Midstream, Partners, LP, on Am erican Midstream ’s natural gas Main Pass 260 1 2 R. Doc. 17. R. Doc. 1 at 2 ¶ 11. Dockets.Justia.com Platform . 3 According to plaintiffs, on February 7, 20 17, Percy Martin was inspecting fire extinguishers on the platform when he entered a tool room and found a hangm an’s noose resting on the work table. 4 Plaintiffs allege that the noose was placed in an open and obvious location so that he would see it upon entering the tool room . 5 Upon seeing the noose, Percy Martin allegedly photographed its location and reported the incident to his supervisor, David Cooper. 6 Cooper allegedly adm itted to Martin that he had seen the noose and taken it apart, and that he was hoping that Martin had not seen it. 7 Plaintiffs allege that defendants Global and Am erican Midstream subsequently failed to investigate the incident or take remedial steps to assure Percy Martin of his safety. 8 On August 30 , 20 18, plaintiffs filed a com plaint alleging assault, intentional infliction of em otional distress, negligent infliction of em otional distress, a hostile work environm ent in violation of Title VII of the Civil Rights Act of 1964, workplace harassment on the basis of sex and race under 3 4 5 6 7 8 Id. Id. at 3 ¶ 12. Id. Id. ¶ 13. Id. Id. ¶¶ 14-18. 2 Title VII, and constructive discharge under Title VII. 9 Percy Martin seeks dam ages for em otional distress and lost wages and benefits. 10 Linda Martin seeks damages for em otional distress for her vicarious fear for her husband’s life after the noose incident. 11 Defendant p3 Global Personnel, LLC has filed a m otion to dism iss plaintiffs’ claim s for lack of subject m atter jurisdiction and for failure to state a claim . 12 Plaintiffs oppose the m otion. 13 II. LEGAL STAN D ARD A. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 1) Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s subject m atter jurisdiction. “A case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Hom e Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (quoting N ow ak v. Ironw orkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “Courts m ay dism iss for lack of subject m atter jurisdiction on any one of 9 10 11 12 13 See generally R. Doc. 1. Id. See id. at 3 ¶ 20 , 5 ¶ 31, 6 ¶ 42. R. Doc. 17. R. Doc. 23. 3 three bases: (1) the com plaint alone; (2) the com plaint supplem ented by undisputed facts in the record; or (3) the com plaint supplem ented by undisputed facts plus the court’s resolution of disputed facts.” Clark v. Tarrant County , 798 F.2d 736, 741 (5th Cir. 1986) (citing W illiam son v. Tucker, 645 F.2d 40 4, 413 (5th Cir. 1981)). Furtherm ore, plaintiff bears the burden of demonstrating that subject m atter jurisdiction exists. See Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). B. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 6 ) To survive a Rule 12(b)(6) m otion, a party m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the party pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the nonm oving party. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the party’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal 4 conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the party’s claim . Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION A. Mo tio n to D is m is s u n d e r Ru le 12 ( b) ( 1) Defendant argues first that plaintiffs’ claim s under Title VII m ust be dism issed because Percy Martin failed to exhaust his adm inistrative remedies before filing this lawsuit. 14 Before proceeding with a civil action under Title VII, a plaintiff m ust file a tim ely adm inistrative charge with the EEOC. See Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 20 0 6). In Louisiana, a plaintiff has 30 0 days from the occurrence of the alleged discrim inatory practice to file a charge with the EEOC. See Conner v. La. Dep’t of Health 14 R. Doc. 17-2 at 2-3. 5 and Hosps., 247 F. App’x 480 , 481 (5th Cir. 20 0 7) (citing La. R.S. 51:2231 et seq.); 42 U.S.C. § 20 0 0 e-5(e)(1). Once the EEOC issues a right-to-sue letter, a Title VII plaintiff m ust sue within 90 days of receiving the letter. 42 U.S.C. § 20 0 0 e-5(f)(1); Tay lor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 20 0 2). Plaintiffs point to their right-to-sue letter from the EEOC as evidence of their com pliance with all adm inistrative requirements. 15 The right-to-sue letter indicates that plaintiffs filed this action within 90 days of receipt, 16 but it does not include an original filing date. Nor do plaintiffs provide the date on which they originally filed their claim with the EEOC. The Court therefore cannot conclusively determ ine whether plaintiffs tim ely filed their EEOC claim . 17 But, even assum ing that plaintiffs have properly exhausted their adm inistrative remedies, their claim s still m ust be dism issed because they have failed to state a claim upon which relief can be granted. 15 R. Doc. 20 -3. See id. at 1 (showing that the right-to-sue letter was m ailed on J une 6, 20 18, less than 90 days before plaintiffs filed this action). 17 There is some indication that the claim was tim ely filed. Plaintiffs m ake a general allegation in the com plaint that they com plied with all exhaustion requirem ents, see R. Doc. 1 at 8 ¶ 11, and the right-to-sue letter includes an option for the EEOC to close the case because the charge was not tim ely filed, which the EEOC did not do for plaintiffs’ charge. 6 16 B. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 6 ) 1. Hostile w ork environm ent Plaintiffs allege that Martin was subjected to unlawful harassm ent on the basis of his race. 18 For the reasons below, they have failed to state a claim under Title VII. Title VII prohibits an em ployer from discrim inating against any individual “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 20 0 0 e-2. To state a claim for hostile work environm ent under Title VII, a plaintiff m ust allege that he: “(1) belongs to a protected group; (2) was subjected to unwelcom e harassment; (3) the harassment com plained of was based on race; (4) the harassm ent complained of affected a term, condition, or privilege of employm ent; (5) the em ployer knew or should have known of the harassment in question and failed to take prom pt remedial action.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 20 12) (quoting Ram sey v. Henderson, 286 F.3d 264, 268 (5th Cir. 20 0 2)). 18 The com plaint m akes a single reference to discrim ination on the basis of sex. See R. Doc. 1 at 8 ¶ 54. But there are no factual allegations involving harassment on the basis of sex. The Court therefore finds that plaintiffs have failed to state a claim for a hostile work environment based on sex discrim ination. 7 An em ployee has a cause of action under Title VII “[w]hen the workplace is permeated with discrim inatory intim idation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim ’s em ploym ent and create an abusive working environm ent.” See Harris v. Forklift Sy s., Inc., 510 U.S. 17, 21 (1993) (internal citation om itted); see also Mendoza v. Helicopter, 548 F. App’x 127, 128-29 (5th Cir. 20 13). This standard requires extreme conduct, and “sim ple teasing, offhand com m ents, and isolated incidents (unless extrem ely serious) will not am ount to discrim inatory changes in the term s and conditions of em ploym ent.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation and quotation m arks om itted). In evaluating hostile work environm ent claim s, courts consider the totality of the circum stances, including “the frequency of the conduct, its severity, the degree to which the conduct is physically threatening or hum iliating, and the degree to which the conduct unreasonably interferes with an em ployee’s work perform ance.” Alaniz v. Zam ora-Quezada, 591 F.3d 761, 771 (5th Cir. 20 0 9) (internal citation om itted). A plaintiff m ust subjectively perceive the environment to be abusive, and the work environment m ust be objectively hostile or abusive. See Harris, 510 U.S. at 21-22. The “m ere utterance of an epithet which engenders offensive feelings 8 in an em ployee does not sufficiently affect the conditions of em ploym ent to im plicate Title VII.” Id. at 21 (internal citation and alterations om itted). Plaintiff’s factual allegations for his hostile work environm ent claim consist of his finding the alleged noose, reporting it to his supervisor, and the supervisor’s failure to investigate the incident further. A noose is a longstanding and invidious sym bol of violence toward African-Am ericans. W illiam s v. N.Y.C. Hous. Auth., 154 F. Supp. 2d 820 , 824 (S.D.N.Y. 20 0 1) (explaining that the sym bol of the noose is used to inspire fear in those at which it is directed) (quoting Vance v. S. Bell Tel. & Tel. Co., 983 F.3d 1573, 1583 (11th Cir. 1993) (Fay, J ., dissenting)). Display of a noose, even as a single incident, could potentially constitute the type of special circum stance that would create a hostile work environm ent. Hudson v. Cleco Corp., 539 F. App’x 615, 620 (5th Cir. 20 13) (“Under the proper circum stances, [displaying a noose] m ight constitute an extrem ely serious isolated event causing a discrim inatory change in the terms and conditions of one’s em ploym ent.” (internal quotation m arks om itted)). But here, plaintiffs have not alleged facts that connect the alleged noose to a threatening intent or racial anim us. Percy Martin m erely saw the noose laying on a table, and then it was quickly dism antled. The situations in which federal courts have found that a noose in the workplace created a hostile 9 work environm ent were m ore threatening and harassing to the plaintiff than the facts alleged in this case. See, e.g., Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir. 20 0 9) (plaintiff established a hostile work environment when there were m ultiple nooses on different occasions, a noose was displayed by his supervisor on a bulletin board visible to em ployees, and plaintiff was also subjected to verbal harassm ent and threats); Tadem y v. Union Pacific Corp., 614 F.3d 1132, 1139-40 (10 th Cir. 20 0 8) (reversing grant of sum m ary judgm ent when plaintiff’s co-workers hung a life-size noose at his workplace after graffitiing plaintiff’s locker with racist cartoons, threatening him, and repeatedly expressing racist sentiments toward him ). Plaintiffs do not allege that the noose was displayed or that Martin’s coworkers com m ented on the noose, and Martin’s supervisor quickly untied the rope as soon as he saw it. Plaintiffs do not allege any other incidents of harassm ent or race-based conduct. Plaintiffs’ single allegation that Percy Martin found a noose does not establish a hostile work environment by itself. “[D]istrict courts in the Fifth Circuit require m ore serious incidents for the display of a noose to am ount to a hostile work environm ent.” Davis v. Ochsner Med. Ctr., No. 15-88, 20 16 WL 1383638, at *4 (E.D. La. Apr. 7, 20 16); see also Jones v. Dallas County , 47 F. Supp. 3d 469, 490 (N.D. Tex. 20 14) (“The m ere presence of a noose in 10 the workplace is insufficient of itself to establish a racially hostile work environment.”); Carter v. Lum inant Pow er Servs. Co., No. 10 -1486, 20 11 WL 60 90 70 0 , at *31 (N.D. Tex. Dec. 6, 20 11) (holding that nooses in the workplace constitute race-based harassment, but plaintiff’s discovery of a noose did not create a hostile work environm ent because plaintiff “viewed the noose only once, and it was not displayed in such a m anner that was physically threatening to Plaintiff”); Brooks v. Firestone Poly m ers, LLC, 70 F. Supp. 3d 816, 861 (E.D. Tex. 20 14) (holding that an “isolated incident” in which a noose was anonymously placed in plaintiff’s belongings did not create a hostile work environm ent because it did not affect the terms and conditions of his em ployment), aff’d, 640 F. App’x 393 (5th Cir. 20 16). Plaintiffs have therefore failed to allege facts that give rise to a hostile work environment claim against defendants. 19 2. Constructive Discharge Title VII proscribes an employer from discharging an em ployee “because of” his or her “race, color, religion, sex, or national origin.” 42 U.S.C. § 20 0 0 e-2(a)(1). “In determ ining whether an em ployer’s actions 19 Count VI of plaintiffs’ com plaint is titled “Harassm ent.” See R. Doc. 1 at 8 ¶ 54. Allegations of workplace harassment are included in a claim of hostile work environm ent under Title VII. The Court therefore includes Count VI in its analysis of plaintiffs’ hostile work environm ent claim . 11 constitute a constructive discharge,” courts consider “whether ‘working conditions became so intolerable that a reasonable person in the employee’s position would have felt com pelled to resign.’” Ary ain v. W al-Mart Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 20 0 8) (alterations om itted) (quoting Penn. State Police v. Suders, 542 U.S. 129, 141 (20 0 4)). An em ployee m ay be constructively discharged in several ways, including by: (1) dem otion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignm ent to menial or degrading work; (5) badgering, harassm ent, or hum iliation by the em ployer calculated to encourage the em ployee’s resignation; or (6) offers of early retirem ent that would m ake the em ployee worse off whether the offer were accepted or not. Ary ain, 534 F.3d at 481. Plaintiffs fail to allege any of these circumstances, or any other circumstance that would com pel a reasonable person to resign. The complaint contains no allegation that defendants sought to fire plaintiff, took actions to reduce his responsibilities or pay after he reported the noose to his supervisor, or engaged in conduct calculated to encourage his resignation. Further, the required showing for constructive discharge is m ore stringent than the showing for a hostile work environm ent claim . Harvill v. W estw ard Com m c’ns, L.L.C., 433 F.3d 428, 440 (5th Cir. 20 0 5). The Court has already held that plaintiffs’ allegations did not sufficiently state a hostile 12 work environm ent claim . Thus, their constructive discharge claim fails as a m atter of law. 3. Assault Under Louisiana law, “[a]ssault is an attem pt to com m it a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36; see also Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1135 (5th Cir. 20 14) (defining assault as “the im minent threat of a battery” (citation om itted)). A battery, in turn, is defined as “harm ful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact.” Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987); see also La. R.S. 14:33 (defining battery as “the intentional use of force or violence upon the person of another”). Thus, to state a claim for assault, a plaintiff m ust allege: “(1) the intent-to-scare m ental elem ent (general intent); (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm ; and (3) the resulting apprehension on the part of the victim .” State v. Blaise, 50 4 So. 2d 10 92, 10 94 (La. App. 5 Cir. 1987). Martin claim s that the noose in the tool room constituted assault because it caused him a well-founded fear of imm inent peril and fear for his life. 20 But Martin has not pleaded facts indicating that som eone intentionally 20 R. Doc. 1 at 3 ¶ 19. 13 created the noose to scare him , m uch less facts that would indicate im m inent harm . While the display of a noose m ay in som e circumstances constitute a threat, here plaintiffs do not explain how they knew that the rope Percy Martin saw in the tool room was a noose intentionally created to threaten him , rather than a knotted rope that was being used for work on the platform. Even if there were evidence that the noose had been purposefully created and left with the intention of threatening him , Percy Marin alleges no reason for him to have perceived that the threatened violence was im m inent. The com plaint does not allege that anyone else was present in the room when Martin found the noose, 21 or any other circum stance suggesting a threat of im m ediate bodily harm. Groff v. Sw . Beverage Co., Inc., 997 So. 2d 782, 787 (La. App. 3 Cir. 20 0 8) (affirm ing sum m ary judgm ent on assault claim because, among other reasons, co-employee never m ade a verbal threat, “had no weapon,” and “did not m ove toward [plaintiff] in a m anner that would indicate a threat of im m inent harm ful or offensive contact”). Plaintiffs have therefore failed to state a claim for assault. 4. Intentional infliction of em otional distress To state a claim for intentional infliction of em otional distress, a plaintiff m ust allege that: (1) the defendant’s conduct was extrem e and 21 R. Doc. 1 at 3 ¶ 12. 14 outrageous; (2) the em otional distress suffered by the plaintiff was severe; and (3) the defendant intended to inflict severe em otional distress, or knew that such distress would be certain or substantially certain to result from his conduct. W hite v. Monsanto Co., 585 So.2d 120 5, 120 9 (La. 1991). To satisfy the first elem ent, the defendant’s conduct m ust “go beyond all possible bounds of decency, and . . . be regarded as atrocious and utterly intolerable in a civilized com m unity.” Id. Such conduct “does not extend to m ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons m ust necessarily be expected to be hardened to a certain am ount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” Id. The isolated incident in which Percy Martin found the noose, without other behavior, does not constitute extreme and outrageous behavior giving rise to a claim for intentional infliction of em otional distress. See Coles v. Carilion Clinic, 894 F. Supp. 2d 783, 786-87 (W.D. Va. 20 12) (plaintiff alleging display of a noose and shackles in addition to racial slurs and references to the Ku Klux Klan failed to state an IIED claim under a sim ilar Virginia statute because the behavior was not sufficiently outrageous and intolerable); see also Singleton v. St. Charles Parish, 833 So. 2d 486, 495 15 (La. App. 5 Cir. 20 0 2) (“W hite v. Monsanto established a high threshold for evidence of intentional infliction of em otional distress.”). Further, even if the conduct was extreme and outrageous, the standard for stating a claim of IIED against an em ployer requires that a plaintiff show m ore than a single failure to investigate. “An em ployer’s continued inaction” after receiving an em ployee’s com plaints of harassment “m ay give rise to a claim for intentional infliction of em otional distress.” Martin v. Bigner, 665 So. 2d 70 9, 712 (La. App. 2 Cir. 1995). But “in a workplace setting,” Louisiana courts have “lim ited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of time.” N icholas v. Allstate Ins. Co., 765 So. 2d 10 17, 10 26 (La. 20 0 0 ). Plaintiffs have alleged a single incident of harassment that Percy Martin’s supervisor failed to investigate, not a pattern of deliberate, repeated harassment over tim e. Martin does not allege that he was subjected to any further harassment after the noose incident, despite defendants’ alleged failure to investigate. Nor do plaintiffs allege that the failure to investigate was calculated to inflict em otional distress. Thus, plaintiffs have failed to allege facts sufficient to state a claim for IIED against any defendant. See Harper v. Boise Paper Holdings, L.L.C., 575 F. App’x 261, 265 (5th Cir. 20 14) (holding that plaintiff failed to state a claim for IIED when he alleged only a 16 single incident, rather than a pattern of repeated harassm ent, and he did not allege that his employer intended to inflict the em otional distress he suffered); Kell v. Iberville Bank, 352 F. Supp. 3d 650 , 663 (E.D. La. 20 18) (dism issing plaintiff’s claim for IIED because “the facts alleged do not perm it an inference of a pattern of abuse—which Louisiana courts require a plaintiff to prove in a workplace intentional infliction of em otional distress claim ”). 5. N egligent infliction of em otional distress Finally, plaintiffs claim negligent infliction of em otional distress. To the extent that Martin is an em ployee of Global or Am erican Midstream , this claim is barred by the Louisiana Workers’ Com pensation Act (LWCA). The LWCA provides the exclusive remedy for personal injuries caused by an em ployer’s or coworker’s negligence when those injuries arise out of and in the course of employm ent. La. R.S. 23:10 31, 10 32; see also Duncan v. W alMart La., L.L.C., 863 F.3d 40 6, 40 8 n.1 (5th Cir. 20 17). In m ost instances, Louisiana courts have found that this includes claim s for negligent infliction of em otional distress. See Tum bs v. W em co, Inc., 714 So. 2d 761, 764-65 (La. App. 4 Cir. 1998). Louisiana’s First Circuit has recognized an exception to this principle when an em ployer “knowingly, intentionally and deliberately require[s] the perform ance of duties, which because of circum stances known to the em ployer, exposes the employee to the imm inent danger of mental 17 breakdown.” Richardson v. Hom e Depot USA, 80 8 So. 2d 544, 550 (La. App. 1 Cir. 20 0 1) (quoting Sam son v. S. Bell T. & T. Co., 20 5 So. 2d 496, 50 2-0 3 (La. App. 1 Cir. 1967). But Martin does not allege a circum stance known to defendants that would trigger this exception to the general bar against NIED claim s in the employment context. Because Martin’s alleged injuries arise out of and in the course of his em ploym ent and are not within the exception articulated in Richardson, his claim for negligent infliction of em otional distress against his em ployer is barred. This bar extends to Linda Martin as well, because LWCA’s exclusive remedy provision includes claim s by the em ployee’s spouse. La. R.S. 23:10 32; Vallery v. S. Baptist Hosp., 630 So. 2d 861, 864 (La. App. 4 Cir. 1993) (wife bringing a claim against her husband’s em ployer that arose out of his workplace injury was barred by the LWCA). Even if plaintiffs’ claim s are not barred by the LWCA, the facts alleged in the com plaint do not give rise to a claim for NIED. As an initial m atter, Linda Martin cannot recover on an NIED claim because this claim does not extend to fear over the safety of others. Dum as v. Angus Chem . Co., 728 So. 2d 441, 449 (La. App. 2 Cir. 1999). As to Percy Martin, he has failed to show the type of “especial likelihood of genuine and serious m ental distress, arising from the special circum stances” that Louisiana courts require in order to recover em otional 18 distress dam ages for negligence in the absence of physical injury. Moresi v. State Through Dep’t of W ildlife & Fisheries, 567 So. 2d 10 81, 10 96 (La. 1990 ). Louisiana courts have allowed recovery on NIED claim s only in extremely lim ited circum stances. See 12 La. Civ. L. Treatise, Tort Law § 28:3 (2d ed.) (providing the following list of recoverable circum stances: “(1) the negligent transm ission of a m essage by a telegraph com pany, especially one announcing death; (2) m ishandling of corpses; (3) failure to install, m aintain, or repair consum er products; (4) failure to take photographs or develop film ; (5) the negligent dam age to one’s property while the plaintiff was present and saw their property destroyed; (6) where the plaintiff was actually in great fear for his personal safety”). Courts have interpreted these restrictions to lim it NIED claims to cases where the defendant’s conduct was extreme and outrageous absent other special circum stances. Covington v. How ard, 146 So. 3d 933, 940 (La. App. 2 Cir. 20 14); Kell, 352 F. Supp. 3d at 664 (“Louisiana courts applying the special circumstances exception recognized in Moresi have found that recovery for an NIED claim is lim ited to those cases where the defendant’s conduct was extreme and outrageous.”). The Court has already determ ined that defendants’ alleged actions do not qualify as extrem e and outrageous in evaluating plaintiffs’ IIED claim. Percy Martin’s fear of possible harm after the noose incident due to 19 defendants’ failure to investigate is not a special circum stance in which recovery for NIED is appropriate. Cf. Bonnette v. Conoco, Inc., 837 So. 2d 1219, 1235-36 (La. 20 0 3) (holding that plaintiffs’ fear of future harm from asbestos exposure was too speculative for NIED recovery); see also Givs v. City of Eunice, 512 F. Supp. 2d 522, 548 (W.D. La. 20 0 7), (holding that a workplace harassment case “d[id] not involve any of the circum stances or fall within any category recognized under Louisiana law as having an especial likelihood of genuine and serious mental distress”) aff’d, 268 F. App’x 30 5 (5th Cir. 20 0 8). Martin has therefore failed to state a claim for NIED. IV. CON CLU SION For the foregoing reasons, defendant’s m otion to dism iss for lack of subject m atter jurisdiction is DENIED. Its m otion to dism iss for failure to state a claim is GRANTED. Plaintiffs’ claim s are DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ 15th _ _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 20
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