Boudreaux v. Axiall Corp

KAY, MAGISTRATE JUDGE

MEMORANDUM RULING

DONALD E. WALTER UNITED STATES DISTRICT JUDGE

Before the Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the Alternative, a More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e) filed by Boeing Aircraft Holding Company f/k/a Boeing Petroleum Services, Inc. (“BPS”). See Record Document 164.^[1] Third-Party Plaintiffs, Eagle U.S. 2 LLC, Axiall Corporation, and Axiall, LLC (collectively “Eagle/Axiall”) oppose the motion. See Record Document 176. For the reasons assigned herein, the motion is DENIED.

BACKGROUND INFORMATION

This motion relates to the third-party litigation in the above-captioned matter filed by Eagle/Axiall against BPS and other Third-Party Defendants, including Parsons Government Services Inc., Gilbane Building Company, and Gilbane Inc. (“Parsons-Gilbane”). The Court has previously provided a detailed recitation of the procedural and factual history associated with

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this case in its ruling on Parsons-Gilbane's motion to dismiss. See Record Document 243. As such, the Court will not repeat itself in this ruling.

With regard to BPS, the following information is alleged in Eagle/Axiall's Second Supplemental and Amended Third-Party Complaint (herein “Complaint”). See Record Document 103. Eagle/Axiall allege that BPS was the primary contractor for decommissioning the SPR site and returning the Sulphur Mines back to private control. See id. at ¶¶ 41-42. Eagle/Axiall state that BPS also provided contract management services of the SPR site for the Department of Energy pursuant to contracts that were similar to the SPR contracts by which Parsons-Gilbane were bound. See id. at ¶ 43. It is alleged that BPS constructed and operated the SPR site negligently and in breach of contractual obligations to perform work in a workmanlike manner by introducing microbial agents into the brine caverns resulting in microbiologically influenced corrosion, which ultimately led to the pipeline leaks upon the land of the Plaintiffs in the underlying litigation. See id. at ¶ 45.

Eagle/Axiall allege that during the decommissioning of the SPR site BPS chose to use untreated surface water from the Sabine River Diversion Canal rather than purchasing brine water for use in effectuating a drawdown of crude oil levels at the SPR site. See id. at ¶¶ 46-47. Eagle/Axiall assert that the untreated raw water was left inside the cavern until the site was reacquired by PPG^[2] a year later. See id. at ¶ 48. The abandonment of the untreated raw water in the cavern is alleged to have allowed sulfate-reducing bacteria to proliferate and exacerbate the corrosion experienced in the caverns and brine pipelines. See id. at ¶ 49. This environmental threat of the use of untreated water was allegedly known to the federal contractors and to BPS, but was not communicated or reasonably known to Eagle/Axiall or PPG. See id. at ¶ 50.

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Eagle/Axiall have raised claims against BPS under theories of negligence, strict liability pursuant to the pre-1996 version of Louisiana Civil Code article 667 and Louisiana Civil Code article 2317, breach of contract, and indemnity. See id. at ¶¶ 112-142. BPS argues that Eagle/Axiall's claims are untimely, fail to establish sufficient fact or viable legal theories, and fail as a matter of law because it is immune from liability as a government contractor. See Record Document 164-1 at 13-14. Alternatively, BPS requests that the Court require Eagle/Axiall to provide a more definite statement of their claims pursuant to Federal Rule of Civil Procedure 12(e). See id. at 14.

LAW AND ANALYSIS

I. Federal Rule of Civil Procedure 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the requirements for pleadings that state a claim for relief, requiring that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The standard for the adequacy of complaints under Rule 8(a)(2) changed from the old, more plaintiff-friendly “no set of facts” standard to a “plausibility” standard found in Bell Atlantic v. Twombly and its progeny. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). Under this standard, “factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555-556, 127 S.Ct. at 1965. If a pleading only contains “labels and conclusions” and “formulaic recitation of the elements of a cause of action, ” the pleading does not meet the standards of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citation omitted). Courts do not have to accept legal conclusions as facts. See id. “Motions to dismiss under Rule 12(b)(6) are rarely granted and generally disfavored.” Rodriguez v. Rutter, 310 Fed.Appx. 623, 626 (5th Cir. 2009) (citing

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Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). However, courts considering a motion to dismiss under Rule 12(b)(6) are only obligated to allow those complaints that are facially plausible under the Iqbal and Twombly standard to survive such a motion. See Iqbal, 556 U.S. at 678-679, 129 S.Ct. at 1949-1950.

In deciding a Rule 12(b)(6) motion to dismiss, a court generally “may not go outside the pleadings.” Colle v. Brazos County, Tex., 981 F.2d 237, 243 (5th Cir. 1993). However, the court may consider documents outside of the complaint when they are: (1) attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to the plaintiff's claims. See Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011) (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 n. 10 (5th Cir. 2007)); Lone Star Fund V (U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

BPS refers to a report allegedly prepared by Eagle/Axiall's expert, Dr. Srdjan Nesic, to support its motion to dismiss. See Record Document 164-1 at 18, 21, 23. Eagle/Axiall object to the use of the report, arguing that it is a matter outside of the pleadings. See Record Document 176 at 20-22. Dr. Nesic's report is not attached to Eagle/Axiall's Complaint, but the Complaint does refer to a report by Dr. Nesic. See Record Document 103 at ¶ 39. However, the Court has examined Dr. Nesic's report and finds that while relevant to Eagle/Axiall's claims, it is not “central” to their claims. See Lone Star Fund, 594 F.3d at 387. The primary questions of the third-party litigation concern (a) whether Eagle/Axiall is a beneficiary of any contract or insurance policy involving Parsons-Gilbane or BPS, and (b) whether Parsons-Gilbane and/or BPS introduced the surface water despite a known environmental threat or potential for bacterial contamination such that liability should attach. The Court is also concerned about the use of an unsworn expert report offered by a defendant in the context of a motion to dismiss when, if

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considered in the context of a motion for summary judgment, a party offering such an exhibit would be required to provide a method for admissibility. See Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017). As such, the Court will not examine the report.

II. Whether Eagle/Axiall's claims are perempted by Louisiana Revised Statute 9:2772

Consistent with its fellow Third-Party Defendants, Parsons-Gilbane, BPS asserts that Eagle/Axiall's claims must be dismissed because they are perempted by Louisiana Revised Statute 9:2772. See Record Document 164-1 at 16-19. The Court is once again faced with the question of which version of the frequently amended statute applies to Eagle/Axiall's claims against BPS. Attached to Eagle/Axiall's Complaint is a document entitled “Plan for Transfer of Sulphur Mines Oil to Big Hill, ” which appears to be a plan developed for the eventual transfer of crude oil out of the Sulphur Mines. See Record Document 103-6. The plan indicates a date of December 31, 1991, as the deadline to complete the transfer. See id. at 3. The plan also indicates that the Sulphur Mines site would be sold and the buyer's requirements would need to be communicated to BPS so that BPS could implement the final configuration of the site to meet the (still unknown) buyer's specifications. See id. at 4. Because peremption begins to run at the time set forth in the relevant statute, the Court finds that the 1990 version of the statute is applicable to BPS. See Wilson v. Martco Ltd. P'ship., No. 07-1082, 2003 WL 11393109, at *3 (W.D. La. July 17, 2008). The 1990 version of the statute contained a ten-year peremptive period. See La. R.S. 9:2772 (1964) as amended by 1990 La. Acts 712.

BPS argues that its work at the site terminated on or about December 31, 1991, as noted in the transfer plan discussed above, and that all of its work had been accepted by the federal government at that time. See Record Document 164-1 at 18. Moreover, BPS relies on the previously excluded report of Dr. Nesic to argue that the government transferred the Sulphur

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Mines to PPG in 1994. See id. BPS contends that the peremptive period of the statute was triggered on December 31, 1991, when BPS completed decommissioning the Sulphur Mines site. See id. at 19.

After a review of the transfer plan, the Court is of the opinion that it cannot rely on the December 31, 1991, date contained therein to trigger the peremptive period. The document indicates “the Project Management Office was given until December 31, 1991, to complete the transfer.” See Record Document 103-6 at 3. This is not a record of the actual date that BPS concluded its activities at the site, which remains uncertain....