Boudreaux v. Axiall Corp.
| Decision Date | 30 September 2021 |
| Docket Number | CIVIL ACTION NO. 18-0956 |
| Citation | 564 F.Supp.3d 488 |
| Parties | Robert Lee BOUDREAUX, et al. v. AXIALL CORP., et al. |
| Court | U.S. District Court — Western District of Louisiana |
J. Michael Veron, Alonzo P. Wilson, J. Rock Palermo, III, Jere Jay Bice, Julia Love Taylor, Turner Duvall Brumby, Veron Bice et al., Jamie B. Bice, Lake Charles, LA, Eulis Simien, Jr., Simien & Simien, Baton Rouge, LA, for Robert Lee Boudreaux.
Eric W. Roan, Plauche’ Smith & Nieset, Lake Charles, LA, for Sun LLC.
Ernest P. Gieger, Jr., John E.W. Baay, II, Michael D. Cangelosi, Gieger Laborde & Laperouse, New Orleans, LA, for Turner Industries Group LLC.
Luis A. Leitzelar, Colin Patrick O'Rourke, F. Charles Marionneaux, Bienvenu Bonnecaze et al., Baton Rouge, LA, Christopher P. Ieyoub, Plauche’ Smith & Nieset, Stephen Donald Polito, William B. Monk, Stockwell Sievert et al., Lake Charles, LA, for Axiall LLC.
Natasha Amber Corb, Glenn Lyle Maximilian Swetman, Mary Ann Reed, MG+M Law Firm, New Orleans, LA, Howard P. Goldberg, Pro Hac Vice, Manning Gross & Massenburg, Boston, MA, for Boeing Aircraft Holding Co.
MEMORANDUM RULING
Before the Court is a Motion to Dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), or alternatively, a Rule 12(e) Motion for More Definite Statement, and Plea of Discussion filed by Third-Party Defendants Parsons Government Services, Inc., Gilbane Building Company, and Gilbane Inc. ("Parsons-Gilbane"). See Record Document 110.1 Third-Party Plaintiffs Eagle US 2 LLC ("Eagle"), Axiall Corporation and Axiall, LLC (collectively "Eagle/Axiall") oppose the motion. See Record Document 126. For the reasons assigned herein, the motion is GRANTED IN PART and DENIED IN PART .
On May 21, 2014, Plaintiffs, Robert Lee Boudreaux and Shirley A. Boudreaux ("the Boudreauxs" or "Plaintiffs") filed a petition in state court against Axiall Corporation, Georgia Gulf Corporation, Georgia Gulf Lake Charles, LLC2 , and several other defendants unrelated to this motion, for damages allegedly caused by leaks from two pipelines traversing their immovable property near Sulphur, Louisiana. See Record Document 1-1 at 1. Axiall Corporation, Georgia Gulf Corporation, and Georgia Gulf Lake Charles, LLC removed the case alleging diversity jurisdiction pursuant to 28 U.S.C. § 1441(a). See Civil Action No. 14-cv-2283, Record Document 1. On February 5, 2015, Plaintiffs amended their petition to name Eagle as the owner and operator of the pipelines in question. See Civil Action No. 14-cv-2283, Record Documents 16 and 38. On September 16, 2016, this Court determined that diversity jurisdiction did not exist and the matter was remanded to state court. See Civil Action No. 14-cv-2283, Record Documents 85 and 86.
While this matter was remanded to state court, Eagle filed a Supplemental Answer to the Plaintiffs’ petition that asserted third-party claims against the Parsons-Gilbane companies as well as their alleged insurers, National Union Fire Insurance Company ("National Union"), Granite State Insurance Company, and Lexington Insurance Company (collectively "Third-Party Insurers"). See Record Document 1-2. On July 20, 2018, Parsons-Gilbane removed the case once again, alleging jurisdiction pursuant to 28 U.S.C. § 1442(a)(1) based on its purported status as a federal government contractor. See Record Document 1. Plaintiffs filed a motion to remand. See Record Document 13. On August 1, 2019, this Court adopted the Report and Recommendation of the Magistrate Judge denying Plaintiffs’ motion. See Record Document 47.
On August 30, 2019, the Third-Party Defendants each filed a motion to dismiss Eagle/Axiall's claims. See Record Documents 48 and 49. In response, on September 20, 2019, Eagle/Axiall filed a "First Supplemental and Amended Third Party Complaint" against the Third-Party Defendants and Third-Party Insurers. See Record Document 51. Thereafter, the Third-Party Defendants and Third-Party Insurers each filed a second motion to dismiss. See Record Documents 60 and 70. On October 26, 2019, Eagle/Axiall requested leave of the Court to file a Second Supplemental and Amended Third-Party Complaint, which was opposed by the Third-Party Defendants and Third-Party Insurers. See Record Documents 73, 83 and 84. On March 20, 2020, the Magistrate Judge granted the request, and the Second Supplemental and Amended Third-Party Complaint was filed into the record. See Record Documents 102 and 103. Of note, the Second Supplemental and Amended Third-Party Complaint added another Third-Party Defendant to the litigation, Boeing Petroleum Services, Inc. ("BPS"). See Record Document 103. In light of the revisions to the operative Third-Party complaint, this Court denied the previously filed motions to dismiss without prejudice and provided a deadline for resubmission. See Record Document 108. Thereafter, Parsons-Gilbane re-filed its motion to dismiss for failure to state a claim, or alternatively, motion for a more definite statement, which is the subject of this Memorandum Ruling. See Record Document 110.
At its heart, the third-party litigation concerns whether the Third-Party Defendants may be held liable for damage allegedly caused by the pipeline leaks upon the Boudreauxs’ land. Eagle/Axiall's Second Supplemental and Amended Third Party Complaint (henceforth "Complaint") sets forth theories of liability against the Parsons-Gilbane companies, their alleged insurers, and BPS that stem from the use of the salt dome mines in Sulphur, Louisiana by the federal government for oil storage in connection with the Strategic Petroleum Reserve ("SPR") program. See Record Document 103. During that time period the salt mines were owned by Allied Chemical Corporation ("Allied"), who leased the exclusive right to drill, mine, and produce salt brine to PPG Industries, Inc. ("PPG").3 See Record Document 103-1 (Exhibit 1).
It is alleged that the United States Department of Energy selected Parsons-Gilbane to construct and operate underground oil storage reserve facilities in Louisiana and Texas, including the Sulphur Mines at issue in this case. See Record Document 103 at ¶ 8.4 Thereafter, it is alleged that Parsons-Gilbane, as the primary contractors of the project, were responsible for, among other things, selecting subcontractors, reviewing construction designs, construction schedule control, construction and material inspection, environmental monitoring, the review of designs and contracts, construction planning estimates, scheduling and cost control, labor relations, and safety programs. See id. at ¶¶ 8-9.
In connection with the SPR project, it is alleged that the federal government executed an "Accommodation Agreement" dated February 2, 1979, with Allied and PPG setting forth the government's intention to acquire large portions of the mines through the use of eminent domain. See Record Document 103 at ¶ 10; Record Document 103-1 (Exhibit 1). The Accommodation Agreement also allegedly contains a provision requiring PPG to be kept whole and insured for any property damage as a consequence of the SPR construction and operations at the Sulphur Mines. See id. Further, it is alleged that the Accommodation Agreement required assurance that Allied and PPG would be held harmless for any activities at a level beyond what the Department of Energy could legally grant. See Record Document 103 at ¶ 11. This was allegedly resolved by the Department of Energy requiring Parsons-Gilbane to increase insurance coverage from $7,000,000 to $10,000,000, and to add Allied and PPG as additional named insureds. See id. This resolution is noted in a Department of Energy Stewardship Report dated January 25, 1979. See Record Document 103-2 (Exhibit 2) at 7.
The terms of the Accommodation Agreement allegedly provided for the careful coordination of all operations between the SPR, Allied, and PPG regarding the development of replacement salt brining caverns, which required sequential development of storage caverns in three phases and allowed the filling with oil of any cavern deemed necessary. See Record Document 103 at ¶ 12. Finally, it is further alleged that, pursuant to the Accommodation Agreement, it was required that Parsons-Gilbane install and connect piping and fittings in a workmanlike manner at no cost or liability to Allied or PPG so that PPG could resume brining operations. See id. On January 22, 2013, PPG assigned and conveyed all right, title, and interest in the Accommodation Agreement to Eagle and its related companies. See id. at ¶ 13.
Parsons-Gilbane allegedly entered into at least two contracts with the Department of Energy during its time serving as construction manager that provided direct and indirect benefits to Eagle/Axiall (as successors in interest to PPG). See Record Document 103 at ¶ 14; Record Document 1-4; Record Document 1-7. It is alleged that a contract dated March 18, 1977, ("Contract 1") contains provisions requiring Parsons-Gilbane to "protect the Government's property and all adjacent property from injury arising out of the furnishing of general condition items." Record Document 103 at ¶ 14; Record Document 1-4 at 35-36. "General condition items" are defined as "items which ... do not lend themselves readily to inclusion in one of the separate contracts ..." and may include "... general maintenance; subsoil exploration; refuse disposal; ... storage on-site or off-site of long lead procurement items; and miscellaneous minor construction work when it is not feasible for the Government to secure competitive bids or proposals thereon." Record Document 103 at ¶¶ 14-15. Finally, it is alleged...
To continue reading
Request your trial
-
Bustos v. Invierte EN Tex.
... ... to relief above the speculative level.” Bell Atl ... Corp. v. Twombly , 550 U.S. 544, 555 (2007). That is, a ... complaint must “contain sufficient ... referenced in the plaintiff's complaint and are central ... to the claims ... Boudreaux v. Axiall Corp. , 564 ... F.Supp.3d 488, 498 (W.D. La. 2021). “[I]t is clearly ... ...