Leboeuf v. Texaco

• Decision Date: 01 July 1998
• Docket Number: No. Civ.A. 98-1508.,Civ.A. 98-1508.
• Parties: LEBOEUF, et al., v. TEXACO, et al.
• Court: U.S. District Court — Eastern District of Louisiana

9 F.Supp.2d 661

LEBOEUF, et al., v. TEXACO, et al.

No. Civ.A. 98-1508.

United States District Court, E.D. Louisiana.

July 1, 1998.

Michael X. St. Martin, Joseph G. Jevic, III, Michelle Mayne Davis, St. Martin, Lirette & Williams, Houma, LA, Joseph G. Kopfler, Kopfler & Hermann, Houma, LA, Philip Francis Cossich, Jr., Cossich, Martin & Sumich, LLC, Belle Chasse, LA, Calvin Clifford Fayard, Jr., Fayard & Honeycutt, Denham Springs, LA, Wendell H. Gauthier, James R. Dugan, II, Gauthier, Downing, LaBarre, Beiser & Dean, Metairie, LA, Carolyn A. McNabb, Richard P. Mire, McNabb & Mire, Houma, LA, for Edward J. Leboeuf, Norris Nettleton, Jr., Lawrence Boquet, Jr., Sandra Boquet, Miss Lori Lee Inc.

Michael X. St. Martin, Joseph G. Jevic, III, Michelle Mayne Davis, St. Martin, Lirette & Williams, Houma, LA, Philip Francis Cossich, Jr., Cossich, Martin & Sumich, LLC, Belle Chasse, LA, Calvin Clifford Fayard, Jr., Fayard & Honeycutt, Denham Springs, LA, Wendell H. Gauthier, James R. Dugan, II, Gauthier, Downing, LaBarre, Beiser & Dean, Metairie, LA, Carolyn A. McNabb, Richard P. Mire, McNabb & Mire, Houma, LA, for Percy Dardar.

Daniel L. Baboval, Eric J. Simonson, Gina M. Venezia, Chaffe, McCall, Phillips, Toler & Sharpy, LLP, New Orleans, LA, Jeffrey M. Baudier, Texaco Inc. Legal Dept., New Orleans, LA, L. Joseph Loveland, C. Thomas Kruse, Sashe D. Dimitroff, King & Spalding, Houston, TX, for Texaco Inc., Texaco Pipeline Inc.

Michael L. McAlpine, Franklin Hardy Jones, III, Richard Abelard Cozad, McAlpine, Peuler & Cozad, New Orleans, LA, for Cenac Environmental Services, Inc.

PORTEOUS, District Judge.

This cause came for hearing on a previous date upon the motion of the plaintiffs to remand this action to the 32nd Judicial District for the Parish of Terrebonne, State of Louisiana.

The Court, having heard the arguments of counsel and having studied the memoranda submitted by the parties, is fully advised in the premises and ready to rule.

ORDER AND REASONS

I. BACKGROUND

On July 23rd, 1997, the plaintiffs, Edward L. Leboeuf, Norris J. Nettleton, Jr. and Percy Dardar, individually and as representatives of those similarly situated, originally filed this action in the 32nd Judicial District Court for the Parish of Terrebonne, State of Louisiana, alleging damages suffered from an oil spill on Lake Barre. On July 31st, 1997, the defendants, Texaco, Inc., Texaco Pipeline, Inc., Cenac Environmental Services, Inc., Industrial Cleanup, Inc., Garner Environmental services, Inc., Oil Mop, Inc., L & L Environmental Services, Inc., Complete Environmental Products, Inc., U.S. Environmental, Inc., Abasco and American Pollution Control Corp. Removed this action to this court based upon diversity jurisdiction, alleging the environmental clean-up companies (all defendants except the Texaco entities) were fraudulently joined. See Leboeuf, et al v. Texaco, Inc., et al, CA No. 97-2392, Section "T." The plaintiffs filed a motion to remand, which this Court granted on October 2, 1997. This Court found that the defendants failed to establish no possibility that the plaintiffs would be able to establish a cause of action against the Louisiana defendants in state court. Specifically, this court found that La.R.S. 30:2466 is not an absolute liability and that plaintiffs alleged numerous claims of negligence. Whether they will prevail under the "gross negligence" standard imposed by La.R.S. 30:2466 was not for this Court to decide at that time.

Upon their return to state court, the plaintiffs subsequently dismissed all of the nondiverse defendants except Cenac Environmental Services, Inc. Plaintiffs also filed an amended petition for the sole purpose of substituting Lawrence Boquet, Jr., Sandra Boquet and Miss Lori Lee, Inc. as named plaintiffs in place of Percy Dardar.

On March 23rd, 1998, the plaintiffs filed a motion for class certification wherein they stated in their memorandum in support that, "Pursuant to the Oil Pollution Act ("OPA"), 33 U.S.C. § 2701, et seq.... Texaco is deemed the responsible party for the oil spill." However, the plaintiffs never amended their petition to assert claims pursuant to the OPA. Texaco then filed a declinatory exception of lack of subject matter jurisdiction and a dilatory exception of prematurity for hearing contending the plaintiffs failed to comply with mandatory administrative requirements of OPA.

On May 11th, 1998, the state district judge denied Texaco's exceptions. In adopting the argument of the plaintiffs, the district judge found that the letters sent by the plaintiffs to Texaco satisfied the requirements under the OPA.¹

On May 20th, 1998, Texaco removed this action, again, based upon federal question jurisdiction.² It is defendants' position that not until the state court determined the plaintiffs complied with the presentment requirements of 33 U.S.C. § 2713, did the defendants learn that plaintiffs' claims were viable and that this case was removable. In other words, the defendants argue 33 U.S.C. § 2713(c) deprives any court of subject matter jurisdiction over OPA claims where the plaintiff has not first complied with OPA's presentment and claims procedure. Thus, defendants conclude that removal of this case when they were contesting the justiciability of the OPA claims would have been improper.

On May 26th, 1998, the plaintiffs filed a motion to remand this action to state court arguing the removal was untimely. Plaintiffs argue defendants received notice of their intent to seek recovery under the OPA on three occasions. First, plaintiffs contend the general allegations contained within their First Supplemental and Amending Complaint filed on January 29th, 1998, placed Texaco on notice that they could make claims pursuant to the OPA. Thus, defendants time for removal expired on March 2nd, 1998.³ Second, plaintiffs contend defendants received notice of the OPA claim when, on March 2nd, 1998, plaintiffs responded to an interrogatory indicating their reliance upon OPA as a ground for recovery. According to the March 2nd date, plaintiffs argue, defendants time for removal expired on April 2nd, 1998. Finally, plaintiffs argue defendants also could have received notice of the federal claim when plaintiffs filed a motion for class certification on March 23rd, 1998. Thus, the plaintiffs represent the latest possible date for defendants to remove was April 23rd, 1998. Plaintiffs argue Texaco's delay in allowing the state court to rule on the exceptions changed nothing with regard to Texaco's knowledge of the grounds for removal.

A. Timeliness of Removal

"Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b).

Section 1446(b) sets forth the requirements for a timely removal. In pertinent part, § 1446(b) reads:

"The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after service of summons upon the defendant of such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion order or other paper from which it may first be ascertained that the case is one which is of has became removable, except that a case may not be removed on the basis of jurisdiction conferred by § 1332 of this title more that one year after commencement of the action."

The removal statute should be construed narrowly with doubt construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100 (5th Cir.1996); Carpenter v. Wichita Falls Independent School Dist., 44 F.3d 362 (5th Cir.1995).

1. Initial Pleading

This Court finds that neither the original petition nor the first supplemental and amending petition contain any reference to a federal claim so as to place defendants on notice for removal purposes. Plaintiffs' argument in this regard is without merit.

2. Other Paper

Plaintiffs argue defendants were "notified" of the federal question to trigger the time for removal when plaintiffs responded to an interrogatory on March 2nd, 1998.

Defendants propounded the following interrogatory to plaintiffs,

"Interrogatory Number 9

Please set forth with specificity each and every legal and factual issue which you assert if "common" to all putative class members, i.e., those issues which you claim would only have to be adjudicated once on behalf of, or with respect to, all putative class members."

See Plaintiffs' Exhibit "A."

Plaintiffs responded as follows to Texaco's Interrogatory Number 9,

"Answer to Interrogatory Number 9:

The common legal and factual issues to be determined by this class action include, but are not necessary limited to, the following:

. . . . .

2. Whether Texaco is liable as a responsible party pursuant to the Federal Oil Pollution Act, 33 U.S.C. § 2701, et seq.

. . . . .

4. Whether Texaco has any defend to liability as a responsible party pursuant to the Federal Oil Pollution Act, 33 U.S.C. § 2701, et seq.

5. Whether any claimants are required to first file individual claims with the responsible party (Texaco) 90 days prior to filing suit in a court of law pursuant to the Federal Oil Pollution Act, 33 U.S.C. § 2701, et seq. in light of written class claim previously submitted.

6. Whether any claimants are required to first file individual claims with the responsible party ...