Garcia v. Westlake Chem. Corp.

HUGO GARCIA v. WESTLAKE CHEMICAL CORPORATION, WESTLAKE CHEMICAL ENERGY, LLC, AND TURNER INDUSTRIES, LLC

CIVIL ACTION NO. 18-764-BAJ-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

August 21, 2019

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on August 21, 2019.

/s/_________

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is a Motion to Remand ("Motion")¹ filed by Hugo Garcia ("Plaintiff"). The Motion is opposed by defendants Westlake Chemical Corporation and Westlake Chemical Energy, LLC (the "Westlake Defendants").² Plaintiff has filed a Reply.³

Also, before the Court is the Motion for Leave to Supplement the Record ("Motion to Supplement")⁴ filed by Plaintiff, which was referred to the undersigned.

For the reasons set forth herein, the undersigned RECOMMENDS⁵ that the Motion to Remand⁶ be DENIED. In the event this recommendation is adopted, the undersigned FURTHER RECOMMENDS that this matter be referred for a scheduling conference.⁷ The Motion to Supplement⁸ is DENIED.

I. Background

On July 3, 2018, Plaintiff filed his Original Petition (the "Petition") against the Westlake Defendants and his employer, Turner Industries, LLC ("Turner"). Per the Petition, Plaintiff alleges that on May 24, 2018, he was performing "hydro-blasting" work for Turner at the Westlake Defendants' chemical plant in Plaquemine, Louisiana.⁹ Plaintiff alleges that he suffered severe injuries to his hand, back, and other body parts when the hose to the pressure washer he was using exploded (the "Accident") as the result of negligence, negligence per se, and gross negligence on the part of all Defendants.¹⁰ Plaintiff also specifically alleges that Turner was "substantially certain" that Plaintiff's injuries would result from these "failures."¹¹

On August 13, 2018, the Westlake Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1332 based on the assertion that the amount in controversy exceeds $75,000 exclusive of interest and costs and that the properly joined parties are completely diverse.¹² In the Notice ofRemoval and the Petition, Plaintiff is alleged to be a citizen of Louisiana.¹³ Westlake Chemical Corporation is alleged to be a Delaware corporation with a principal place of business in Texas. Westlake Chemical Entergy, LLC is alleged to be a limited liability company with one member, Westlake NG I Corporation, which is a Delaware corporation with its principal place of business in Texas.¹⁴ Therefore, these parties are diverse. The Notice of Removal states that Turner, which is alleged to be a "Louisiana limited liability company"¹⁵ in the Petition and therefore not diverse from Plaintiff, was improperly joined in an attempt to defeat this Court's diversity jurisdiction.¹⁶ After setting forth the applicable legal standards governing the analysis of the second test for improper joinder, i.e., whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against the in-state defendant either through a Fed. R. Civ. P. 12(b)(6)-type analysis or a summary inquiry, the Westlake Defendants contend that Plaintiff's claims fail to meet the Fed. R. Civ. P. 12(b)(6) standard and Turner is improperly joined because "plaintiff does not have a reasonable basis for recovering against Turner."¹⁷ The Westlake Defendants contend that Plaintiff's exclusive remedy against Turner, his employer, is pursuant to Louisiana's Worker's Compensation Act ("LWCA"), La. R.S. 23:1032, et seq., and that Plaintiff's attempt to invoke the intentional act exception in La. R.S. 23:1032(B) fails because Plaintiff's allegations are "patently insufficient" to state a claim that Turner committed an intentional tort.¹⁸ Therefore,according to the Westlake Defendants, Plaintiff cannot establish a cause of action against Turner, who was improperly joined. The Westlake Defendants further contend that Turner's citizenship should be ignored, and once ignored, complete diversity exists among the remaining parties.¹⁹ On September 12, 2018, Plaintiff responded to the Notice of Removal with the instant Motion,²⁰ which was opposed by Defendants.²¹ Plaintiff then filed his Reply Memorandum.²²

The question before the Court is whether Turner²³ is properly joined as a defendant in this matter. If Turner is properly joined as Plaintiff contends, then, as an alleged citizen of Louisiana, Turner's presence in this action destroys diversity jurisdiction and the Motion should be granted.²⁴ If Turner is improperly joined, as the Westlake Defendants assert, then the claims against Turner will be dismissed, complete diversity of citizenship will exist as to the remaining parties, and the Motion should be denied.

II. Law and Analysis

A. Standard for Remand

A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction."²⁵ When original jurisdiction is based ondiversity of citizenship, the cause of action must be between "citizens of different States" and the amount in controversy must exceed the "sum or value of $75,000, exclusive of interest and costs."²⁶ Remand is proper if at any time the court lacks subject matter jurisdiction.²⁷ The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.²⁸

B. Standard for Improper Joinder

"The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper."²⁹ "'[A]ny contested issues of fact and any ambiguities of state law must be resolved' in favor of remand,"³⁰ and "[a]ny doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction."³¹

The Fifth Circuit has "recognized two ways to establish improper joinder: '(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'"³² As to the second method, the test is "whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant."³³ The Westlake Defendants do not assert that there has been fraud in the pleading of jurisdictional factsrelated to Turner. Accordingly, the undersigned considers whether there is a reasonable basis to predict that Plaintiff might be able to recover against Turner, the non-diverse defendant, and/or whether there is some possibility that Plaintiff can establish a cause of action against Turner, as Plaintiff urges.³⁴

A court may resolve the issue of whether a plaintiff has a reasonable basis of recovery under state law in one of two ways. "The court may conduct a Rule 12(b)(6) analysis, looking at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry."³⁵ The Fifth Circuit has cautioned that such summary inquiry "is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant."³⁶

C. Turner is Improperly Joined

1. The generalized and conclusory allegations in the Petition against Turner are insufficient to establish a basis for recovery

In order to establish fraudulent joinder, the Westlake Defendants must prove there is no possibility Plaintiff can recover against Turner in this tort action under applicable state law.³⁷ The Westlake Defendants argue that Turner, as Plaintiff's employer, is immune from Plaintiff's tort suit pursuant to the LWCA.³⁸ Louisiana Revised Statute §23:1032 provides that workers' compensation benefits are the exclusive remedy of an employee against an employer for injuries arising out of and in the course and scope of his employment, which Plaintiff acknowledges.³⁹ This immunity from tort actions, however, does not apply when the employee's injuries are the result of an intentional act of the employer.⁴⁰

It is undisputed that Plaintiff was an employee working in the course and scope of his employment with Turner at the Westlake Defendants' facility when the Accident occurred.⁴¹ However, Plaintiff contends that the LWCA does not bar this suit against Turner because Plaintiff's injuries were caused by an intentional tort committed by Turner.⁴² Thus, this Court must determine whether there is any possibility that Plaintiff can recover from Turner for an intentional tort.

The Louisiana Supreme Court defines an intentional tort as occurring when "the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his...