Genusa v. Asbestos Corp.

• Decision Date: 08 May 2014
• Docket Number: Civil Action No. 13–794–JJB–RLB.
• Citation: 18 F.Supp.3d 773
• Court: U.S. District Court — Middle District of Louisiana
• Parties: Louis GENUSA v. ASBESTOS CORPORATION LIMITED, et al.

18 F.Supp.3d 773

Louis GENUSA

v.ASBESTOS CORPORATION LIMITED, et al.

Civil Action No. 13–794–JJB–RLB.

United States District Court, M.D. Louisiana.

Signed May 8, 2014.

John F. Dillon, John F. Dillon, PLC, Folsom, LA, Frank J. Swarr, David Ryan Cannella, Mickey P. Landry, Philip Charles Hoffman, Landry, Swarr & Cannella, LLC, New Orleans, LA, for Louis Genusa.

Kay Barnes Baxter, Swetman Baxter Massenburg, Kaye N. Courington, Jeffrey M. Burg, William J. Sommers, Jr., Courington, Kiefer & Sommers LLC, New Orleans, LA, for Defendants.

RULING AFFIRMING AND ADOPTING MAGISTRATE JUDGE RECOMMENDATIONS

JAMES J. BRADY, District Judge.

This matter is before the court on the PlaintiffLouis Genusa's Motion (doc. 9) to Sever and Remand.In his Report and Recommendations (doc. 80), the Magistrate Judge found that the motion to sever and remand should be granted, with this Court retaining jurisdiction over the DefendantBaton Rouge Marine Contractors, Inc.'s claims against International Longshoreman's Association(“ILA”), AFL–CIO, South Atlantic & Gulf Coast District, ILA, AFL–CIO, and Local 3033, ILA, AFL–CIO.Subsequently, multiple objections were filed.(Docs. 82, 83, 85, 88).

After reviewing the Report and Recommendations and the parties' respective briefings on the matter, the Court hereby AFFIRMS and ADOPTS the Magistrate Judge's Report and Recommendations (doc. 80).Consistent with it, the Court declines to exercise supplemental jurisdiction over the relevant claims pursuant to 28 U.S.C. § 1367(c).Accordingly, the CourtGRANTSthe PlaintiffLouis Genusa's Motion (doc. 9) to Sever and Remand.The CourtSEVERS all of PlaintiffLouis Genusa's claims against the defendants, as well as Baton Rouge Marine Contractors, Inc.'s third-party claims against McKoin Trucking.Furthermore, the Clerk of Court's office shall TERMINATE Documents 19, 20, 32, 38, 42, 43, and 52, as they are now moot.

NOTICE

RICHARD L. BOURGEOIS, JR., United States Magistrate Judge.

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

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been accepted by the District Court.

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

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This matter is before the court on referral from the district judge of the plaintiff's motion to sever and remand.This action was removed by International Longshoreman's Association(“ILA”), AFL–CIO, South Atlantic & Gulf Coast District, ILA, AFL–CIO, and Local 3033, ILA, AFL–CIO (collectively, the “Unions”) after the defendantBaton Rouge Marine Contractors, Inc.(“BRMC”) filed a Third Party Demand against the Unions.(R. Doc. 1).The Unions removed this action under 28 U.S.C. § 1441(c), which provides for removal of a civil action where federal and state law claims are joined.The Unions allege that removal of the entire action is proper because BRMC's Third Party Demand raises federal questions under 28 U.S.C. § 1331.

PlaintiffLouis Genusa, Jr.(“Genusa”) filed a motion to sever and remand under 28 U.S.C. § 1441(c)(2) on the basis that his tort claims do not raise any federal questions.(R. Doc. 9).Genusa's motion is opposed by some of the defendants in the original action on various grounds.(R. Docs. 30, 31, 32, 33, 35, 36, 37, 49).The Unions filed a motion in support of Genusa's motion.(R. Doc. 34).Genusa replied to the defendants' oppositions.(R. Doc. 51).

I.Background and Procedural History

Genusa worked as a longshoreman, truck loader, warehouse worker, and in other positions from 1963 to 1998 for various transportation companies at the Port of Baton Rouge in Port Allen, Louisiana.He allegedly contracted malignant mesothelioma from asbestos exposure while conducting such work.On June 19, 2013, Genusa filed suit against the miners, manufacturers, sellers, suppliers and distributors of asbestos products,¹ as well as his employers, their executive owners, and owners of the premises on which he worked,² in the 18th Judicial District Court, West Baton Rouge Parish, Louisiana.(R. Doc. 1–2at 18–30, “Petition”).The following employer and premise defendants have submitted briefs regarding the pending motion to remand:

• Baton Rouge Marine Contractors (“BRMC”), n/k/a Ports America Baton Rouge, Inc.

• Port of Greater Baton Rouge a/k/a Greater Baton Rouge Port Association(“GBRPA”)

• SSA Gulf, Inc. f/k/a Ryan Walsh(“SSA/Ryan”)

• Ramsay Scarlett & Company(“Ramsay”)

• Louisiana Insurance Guaranty Association(“LIGA”), liability insurer for insolvent employer Louisiana Stevedores

In the Petition, Genusa alleges claims for negligence, failure to warn, strict liability, breach of express and implied warranty, and negligent infliction of emotional distress based on Louisiana law.(R. Doc. 1–2at 18–27).

On October 23, 2013, BRMC filed a Third Party Demand seeking contribution or indemnity from the Unions on the theory that they breached contractual duties to warn Genusa and BRMC of the dangers of asbestos exposure.(R. Doc. 1–2at 10–17, “TPD”).In the Third Party Demand, BRMC alleges that the Unions had a “contractual relationship” with Genusa, and in consideration for Genusa's dues, the Unions promised him better working conditions and to promote his health.(TPD, ¶ V).BRMC further alleges that the Unions had a duty to warn Genusa about the dangers of asbestos, a duty to warn BRMC about the dangers of asbestos, and a duty to protect Genusa's health and safety.(TPD, ¶ V).The Third Party Demand also includes allegations against McKoin Trucking Company, L.L.C. f/k/a McKoin trucking Company, Inc.(“McKoin Trucking”) for indemnity and contribution.(TPD, ¶ VII).BRMC alleges that McKoin Trucking exposed Genusa to asbestos cargo and is liable to both Genusa and BRMC “in the event BRMC is liable to plaintiff for any sum pursuant to the same theories of liability asserted against BRMC and other defendants.”(TPD, ¶¶ VII–X).

On November 12, 2013, the Unions timely removed the action under 28 U.S.C. § 1441(c).(R. Doc. 1).In the Notice of Removal, the Unions allege that BRMC's third-party demand requires interpretation of both collective bargaining agreements and labor organization constitutions under Section 301(a) of the Labor Management Relations Act(“LMRA”), 29 U.S.C. § 185(a).The Unions allege that Section 301(a) completely preempts BRMC's claims under state law, providing this court with federal question jurisdiction under 28 U.S.C. § 1331.

On December 16, 2013, Genusa filed a motion to sever and remand his state law claims in accordance with 28 U.S.C. § 1441(c)(2) on the ground that his claims are separate and independent from the third-party claims removed by the Unions and they do not raise any questions of federal law.(R. Doc. 9).The Unions filed a memorandum in support of severance and remand of Genusa's claims.(R. Doc. 34).Repeating their position in the Notice of Removal, the Unions argue that Genusa's claims are separate and independent from BRMC's third-party claims against them.

BRMC opposes Genusa's motion to sever and remand on the basis that Genusa's claims are not “separate and independent” from the third-party claims.As discussed above, BRMC argues that the entire action should be remanded.(R. Doc. 35).GBRPA adopts the opposition of BRMC, and further requests the court to defer on ruling on Genusa's motion to sever and remand until after consideration of BRMC's motion to remand the entire action.(R. Doc. 36).In reply, Genusa argues that BRMC wrongly asserts that its third-party demands are inseparable from Genusa's claims.

LIGA, SSA/Ryan, and Ramsay oppose Genusa's motion to sever and remand on the basis that the court should retain jurisdiction over Genusa's claims, which they argue falls under this court's admiralty jurisdiction and are governed by the procedures and remedies of the Longshore and Harbor Workers' Compensation Act(“LHWCA”), 33 U.S.C. § 901 et seq.In particular, LIGA argues that Genusa's employment with Louisiana Stevedores (for which LIGA is legal successor) occurred on vessels situated over navigable waters.LIGA argues that although Genusa's admiralty action was not independently removable, now that it has been removed, the court should exercise jurisdiction over Genusa's claims as they relate to his employment for Louisiana Stevedores.(R. Doc. 30–31).In the alternative, LIGA requests that the plaintiff's claims against it be dismissed prior to remand on the basis that the state court lacks subject matter jurisdiction over claims governed exclusively by the LHWCA.Similarly, SSA/Ryan opposes Genusa's motion to remand, relying on arguments found in its motion for partial summary judgment, which claims that the stevedore employers have immunity from Genusa's state tort claims under the LHWCA.(R. Doc. 32–33).Ramsay Scarlett joined in the opposition filed by SSA/Ryan.(R. Doc. 37, 49).In reply, Genusa argues that LHWCA exclusivity does not apply because (1) the LHWCA does not apply to pre–1972 land-based injuries sustained by longshoremen, (2) Genusa's state law tort claims accrued in the 1960s when he was first exposed, and (3) Genusa's work was not exclusively on floating vessels.(R. Doc. 51).

On December 19, 2013, the Unions moved to dismiss BRMC's Third Party Demand.(R. Doc. 19, 20).In response, on January 9, 2014, BRMC filed an Amended Third Party Demand that purportedly removes allegations that could be...