Mclin v. H & H Lure Co., CIV.A. 99-347-B-M1.

• Decision Date: 02 June 2000
• Docket Number: No. CIV.A. 99-347-B-M1.,CIV.A. 99-347-B-M1.
• Parties: Cynthia MCLIN, et al. v. H & H LURE CO., et al.
• Court: U.S. District Court — Middle District of Louisiana

102 F.Supp.2d 341

Cynthia MCLIN, et al. v. H & H LURE CO., et al.

No. CIV.A. 99-347-B-M1.

United States District Court, M.D. Louisiana.

June 2, 2000.

Harold Dean Lucius, Jr., Miller, Lucius & Hampton, Baton Rouge, LA, for Cynthia Mclin, Charles Mclin, Jr., plaintiffs.

Jeffrey John Warrens, Egan, Johnson & Stiltner, Baton Rouge, LA, Bradley Charles Myers, Glenn Michael Farnet, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, for defendants.

ORDER

POLOZOLA, Chief Judge.

The defendants removed this diversity case alleging that Cynthia Mclin's employer was fraudulently joined to defeat the Court's diversity jurisdiction under 28 U.S.C. § 1332. Because the Court finds that the defendant William O. Humphrey's, Inc. (Humphrey's) was fraudulently joined, the Court has subject matter jurisdiction to hear this case. Accordingly, the defendant Humphrey's motion to dismiss¹ under Federal Rule of Civil Procedure 12(b)(6) is Granted.

I. Background

The plaintiffs originally filed this suit in a Louisiana state district court. The petition alleges that Mclin sustained a collapsed lung and other ailments caused by sustained and prolonged exposure to paints while working for one of the defendants as a lure painter. Three defendants, including Mclin's employer, were sued. It is clear that Mclin's employer is a Louisiana Corporation. Thus, complete diversity does not exist between the parties.

The case was timely removed to federal court by the two diverse defendants on the grounds that H & H had been fraudulently joined. Thereafter, Humphrey's, Mclin's actual employer, filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.² The plaintiffs then amended their petition to add a single sentence allegation that H & H committed an intentional tort. The Court, on its own motion, ordered the plaintiffs to again amend their petition to name the correct parties and set forth the citizenship of each named party. The plaintiffs amended their petition to correctly name Humphrey's as Mclin's employer. Thus, the Court must determine whether Humphrey's was fraudulently joined to defeat this Court's subject matter jurisdiction.³

II. ANALYSIS

A. Statement of the Law of Fraudulent Joinder

The removing party bears the heavy burden of demonstrating that the joinder of a non-diverse party is fraudulent and that the district court has subject matter jurisdiction to hear the suit.⁴ Although it is not within the Court's province to attempt to resolve factual disputes regarding matters of substance,⁵ the Court is empowered to "pierce the pleadings" to determine whether the plaintiff has a legitimate claim against the non-diverse party under the governing state law.⁶ In addition, because claims of fraudulent joinder in the Fifth Circuit are disposed of in a summary judgment-like procedure, the Court is authorized to consider evidence outside the pleadings, such as affidavits and depositions accompanying the notice of removal or the motion to remand.⁷ The standard is clear: "After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the non-removing party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned."⁸

The Court now turns to the issue of whether Humphrey's was fraudulently joined in this case.⁹

B. Was Humphrey's Fraudulently Joined?

In order to prove fraudulent joinder, the defendants must prove there is no possibility the plaintiffs can recover against Humphrey's in this tort action. The defendants claim Humphrey's, as the plaintiff's employer, is immune from the plaintiffs' tort suit pursuant to the Louisiana Workers' Compensation Act.¹⁰ Louisiana Revised Statutes § 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. This immunity from tort actions, however, does not apply when the employee's injuries are the result of an intentional act.¹¹

It is apparently undisputed that Mclin was an employee working in the course and scope of employment at the Humphrey's facility when the injury occurred. However, the plaintiffs contend that the Louisiana Workers' Compensation Act does not bar this suit against Mclin's employer because Mclin's injury was caused by an intentional tort committed by Humphrey's.¹²

Thus, this Court must determine whether there is any possibility that the plaintiffs can recover from Humphrey's for an intentional tort. In Guillory v. Domtar Industries Inc.,¹³ the Fifth Circuit noted that "[c]ourts narrowly interpret the intentional act loophole to the workers' compensation system."¹⁴ In Guillory, an employee was injured after being struck on the head by a fork that fell from a forklift. When ruling on a motion for summary judgment, the Court found the employer did not intend to injure the employee and, therefore, the employee was prevented by the exclusivity provisions of workers' compensation law from recovering against the employer in tort. The Guillory court concluded that, even if the falling forks created a "`high probability' of injury, this would not establish `intent' sufficient to bypass the workers' compensation system."¹⁵ The Fifth Circuit held an employer's knowledge of falling forks by itself cannot establish intent on the part of the employer.¹⁶

Any discussion of intentional tort in Louisiana must include the Louisiana Supreme Court's decision in Bazley v. Tortorich.¹⁷ In Bazley, the Court declared an act is considered intentional whenever it is shown that the defendant either "consciously desired" the physical result of his conduct or was "substantially certain" that those physical results would follow from his actions.¹⁸ "[T]he substantially certain test is satisfied when an employer consciously subjects an employee to a hazardous or defective work environment where injury to the employee is nearly inevitable — that is, injury is `almost certain' or `virtually sure' to occur or is incapable of being avoided."¹⁹

This Court discussed the precepts of Bazley in Charkhian v. National Environmental Testing, Inc.,²⁰ a case very similar to the facts in the instant case. In support of a motion to remand in Charkhian, the plaintiff argued the intentional act exception to the Workers' Compensation Act allowed tort recovery against three co-employees who were allegedly fraudulently joined. This Court found the co-employees were fraudulently joined because there was no possibility that the plaintiff could recover against the three co-employees for intentional acts. This Court further noted that the plaintiff in Charkhian did nothing more than allege that the plaintiff's co-employees "committed intentional torts" and failed to introduce any evidence in support of their motion to remand which indicated the co-employees were at least substantially certain the plaintiff would be injured.²¹ This Court noted that it is well-established under Louisiana law that the use of the word "intentional" is "not a talisman which automatically raises allegations of negligence to the level of intentional tort."²²

In an earlier opinion, Carriere v. Sears, Roebuck and Co.,²³ the Fifth Circuit set forth factors to be considered to determine whether a co-employee was fraudulently joined to defeat federal jurisdiction. The plaintiffs in Carriere were the survivors of a security guard who was killed while investigating suspicious activity on the employer's loading dock. The plaintiffs argued the non-diverse employee defendant committed an intentional act by failing to accompany the security supervisor to the loading dock. The plaintiffs produced an affidavit of the non-diverse employee defendant in support of their intentional tort claim. The affidavit indicated that, after the tragic murder, the non-diverse defendant "wished" he had accompanied the deceased to the docks to assist him. The plaintiffs contended this evidence proved a possibility of recovery against the non-diverse defendant for an intentional tort. The Fifth Circuit found this was not enough to allow a fact finder to infer the non-diverse defendant knew or was substantially certain that harm would befall the deceased. Even viewing the facts most favorably to the plaintiffs, the Carriere Court ruled the plaintiffs could not possibly recover from the non-diverse defendant, and, therefore, the non-diverse defendant was fraudulently joined.

Before the Court can resolve the fraudulent joinder issue in the instant case, it is necessary for the Court to examine the original state court petition, and any evidence submitted with the pending 12(b)(6) motion to dismiss, regarding the intentional tort claim against Humphrey's. Louisiana follows a system of fact pleading that requires the plaintiff to set forth facts in his petition that support each claim made.²⁴ In resolving fraudulent joinder claims, however, a federal district court "is not handcuffed by the `well pleaded allegations' of the state court petition."²⁵ The appropriate procedure to be used by the federal court in assessing a fraudulent joinder claim is similar to that used for ruling on a motion for summary judgment.²⁶ A federal district court is empowered to consider summary judgment-type affidavits or depositions as well as the factual allegations of the state court petition to determine whether the non-removing party has a legitimate claim against the non-diverse party under the applicable law.

The Mclins' amended petition states:

Plaintiffs contend that the acts of Defendant H & H Lure Company [now correctly identified as Humphrey's] amount to an intentional tort or action in that [Humphrey's] knew full well that plaintiffs [sic] injuries were substantially certain to follow her working over a period of time with toxic chemicals in an unventilated area without proper protective equipment.

The...