Opinion
Civil Action No: 00-3632 Section "J" (3)
March 20, 2001
Before the Court is a Motion to Dismiss under Rule 12(b)(6) or Alternatively for a More Definite Statement under Rule 12(e) (Rec. Doc. 3) filed by defendant Sanderson Farms, Inc., Malcolm Wagner, LPN, and Richard Pittman (collectively "Sanderson Farms"), in an intentional tort and intentional infliction of emotional, distress action brought by plaintiff Rochelle Musacchia, individually and on behalf of the estate of Patrick Musacchia ("Musacchia"). The motion is opposed. The motion, set for hearing on February 28, 2001, is before the Court on briefs without oral argument. Finding that plaintiff has failed to allege even a possible cause of action against Malcolm Wagner and that Musacchia's intentional infliction of emotional distress claim likewise lacks merit, the Court grants the motion to dismiss with respect to those claims. The Court also grants the motion for a more definite statement with respect to Richard Pittman.
Background
The decedent, Patrick Musacchia, worked as a third shift mechanic for the Sanderson Farms poultry processing plant in Hammond, Louisiana. On the night of September 9, 1999, defendant Richard Pittman allegedly ordered Musacchia to the roof to deliver a flashlight to a fellow employee executing repairs on the plant's ice auger. Tragically, while delivering the flashlight, Musacchia became entrapped in the auger. Several of his major arteries ruptured and Patrick Musacchia quickly bled to death. The plant's staff nurse, Malcolm Wagner, LPN, was at home when the accident occurred and Musacchia was dead before he arrived on the scene. Plaintiff Rochelle Musacchia filed this suit on September 8, 2000 naming Sanderson Farms and several fictitious auger manufacturers as defendants. On September, 12 of the same year, Musacchia amended her complaint and added Nurse Wagner as a defendant. Defendants filed this motion to dismiss pursuant to Rule 12(b)(6) or alternatively for a more definite statement under Rule 12(e). On February 7, 2001, Musacchia again amended her complaint adding Richard Pittman as a defendant.
This suit was originally filed in Louisiana state court but removed here by defendants, invoking the Court's diversity jurisdiction.
Analysis
A motion to dismiss under Rule 12(b)(6) "is viewed with disfavor and rarely granted." Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The district court must accept all facts pleaded in the complaint as true and may not dismiss a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999) (quotingConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see also, Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Beanal, 197 F.3d at 164 (quotations omitted).
Federal courts are courts of limited subject matter jurisdiction and as such are precluded from entertaining a suit unless authorized by law.Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). Pursuant to Article III, § 2 of the Constitution and 28 U.S.C. § 1332 (a)(1), federal district courts have diversity jurisdiction in all civil actions where the amount in controversy exceeds $75,000, and the suit is between citizens of different states. The party seeking to invoke the court's diversity jurisdiction must "distinctively and affirmatively allege" each party's citizenship and these allegations must show that no plaintiff is a citizen of the same state as any defendant. See Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5th. Cir. 2000); Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991). A district court "must be certain of its jurisdiction before embarking upon a safari in search of a judgment on the merits." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981).
Fraudulent joinder occurs when a plaintiff names a defendant in a complaint from whom he has no possibility of obtaining relief, for the sole purpose of defeating diversity jurisdiction. When an out-of-state defendant removes an action from state court to federal court, the removing party bears the burden of establishing the fraudulent joinder.Carriere v. Sears, Roebuck Co., 893 F.2d 98, 100 (5th Cir. 1990);Miller Brewing, 663 F.2d at 549. In assessing fraudulent joinder claims, district courts are to utilize a summary determination similar to a summary judgment determination. Carriere, 893 F.2d at 100; Miller Brewing, 663 F.2d at 551 Such a determination should "pierce the pleadings" and determine controlling state law for purposes of resolving fraudulent joinder claims. Badon v. R.J.R. Nabisco, Inc., 224 F.3d 382, 389-90 (5th Cir. 2000); Hart v. Bayer Corp., 199 F.3d 239, 246-47 (5th Cir. 2000); Carriere, 893 F.2d at 100; Miller Brewing, 663 F.2d at 549. All disputed questions of fact and relevant state law should be resolved in favor of the non-removing party for purposes of resolving the claim.Dodson v. Spiliada Maritime Corp., 951 F.2d at 42; Carriere, 893 F.2d at 100; Miller Brewing, 663 F.2d at 549. The court then determines, as a matter of law, if the non-removing party has "any possibility of recovery" against the in-state defendant. If no such possibility exists, then the joinder is fraudulent. Johnson v. Heublein. Inc., 227 F.3d 236, 240 (5th Cir. 2000); Badon, 224 F.3d at 389-90; Dodson, 951 F.2d at 42;Carriere, 893 F.2d at 100; Miller Brewing, 663 F.2d at 550.
Fraudulent Joinder and the Louisiana Worker's Compensation Act
By Act 147 of 1976, the Louisiana Legislature amended the Worker's Compensation Act, La. R. S. 23:1032, to provide worker's compensation as the exclusive remedy against an employer or other employee of the employer. Bazley v. Tortorich, 397 So.2d 475, 479 (La. 1981). Thus, this amendment broadened the class of defendants entitled to immunity from tort suit by injured employees to include other employees of the same employer. Id. However, the amendment provided that the injured employee may. pursue a tort remedy when his injury resulted from an "intentional act." Reeves v. Structural Pres. Sys., 731 So.2d 208, 209 (La. 1999). The Louisiana Supreme Court has interpreted the phrase "intentional act" narrowly and held the meaning of intent "is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result." Bazley, 397 So.2d at 481;Reeves, 731 So.2d at 211. Subsequently, the Louisiana Supreme Court has continued to narrowly interpret the provision. In Casto v. Fred's Painting, Inc., 692 So.2d 408 (La. 1997), the Court held that an employer's refrigerator which delivered a shock each and every time a person came into contact with the refrigerator's metal surface did not give rise to intentional conduct. Further, the same Court has held that "[b]elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent. acts that are covered by worker's compensation." Reeves, 731 So.2d 212. Substantial certainty has been held to require more than a reasonable probability of injury resulting; rather it must be inevitable, or incapable of failure. Reeves, 731 So.2d at 212-13; see also, Keller v. Evans Cooperage. Inc., 771 So.2d 188, 192 (La.Ct.App. 5 Cir. 2000);Labbe v. Chemical Waste Mgmt., Inc., 756 So.2d 613, 616-17 (La.Ct.App. 3 Cir. 2000). The exception was not designed for wanton, reckless, careless, or even grossly negligent acts, but only for intentional ones.Id. Mere knowledge of a dangerous machine with a high probability of causing an injury will not meet the substantial certainty requirement.Id. "[F]ailure to provide a safe work place, deficiently designed machinery and disregard of OSHA safety provisions, failure to correct unsafe working conditions, and failure to provide specifically requested safety equipment" are examples of allegations not sufficient to invoke the intentional act exception absent proof of defendant's desire to harm the plaintiff or knowledge that such conduct would "nearly inevitably" cause injury to the plaintiff. Labbe, 756 So.2d at 616-17.
1. Malcolm Wagner. LPN
In the instant case, it is undisputed that both plaintiff and defendant Malcolm Wagner are citizens of Louisiana; thus, if joinder of Wagner is not fraudulent, diversity is defeated and this Court does not have jurisdiction to hear the case. However, defendants assert that Wagner was fraudulently joined for the sole purpose of defeating jurisdiction and that plaintiff has no possibility of establishing a cause of action against Wagner because no exception applies that would undermine the immunity he enjoys under the Louisiana Worker's Compensation Act.
In her pleading, plaintiff alleges, inter alia, that Wagner failed to provide medical care to Musacchia, failed to meet with management regarding health related issues and potential safety hazards, and failed to keep and maintain records for employees and governmental agencies. Assuming, as the Court must for the disposition of this motion, that everything plaintiff alleges is true, the facts alleged show no possibility of supporting a cause of action against Wagner under the intentional act exception. At most the allegations show a negligent response to a critical situation. Plaintiff does not allege, nor is there any evidence, that Nurse Wagner's lack of response was the result of any intent on Wagner's part to cause injury to Musacchia. In addition, even if Wagner knew of the danger posed by the exposed auger, and that other workers had been injured by the very same auger, he is still immune from civil liability under the Louisiana Worker's Compensation Act. Wagner would have had to believe the accident to "be inevitable" or "incapable of failure". See Reeves, 731 So.2d at 212-13. Musacchia has failed to allege Wagner believed the accident to be a certainty, or even that Wagner had any knowledge of the dangerous condition of the auger. The Louisiana Supreme Court's holding in Casto in which a dangerous refrigerator shocked everyone who came into contact with its surface, is illustrative. In that case, the Court held that even when injury is inevitable, the threshold to reach an intentional act exception may not be met. Thus, this Court holds as a matter of law that Musacchia cannot maintain an action against Nurse Wagner through the intentional act exception of the Louisiana Worker's Compensation Act.
Unfortunately, this tragic case, allegedly caused by the employer's gross negligence through its utter disregard of safety precautions, and its failure to notify its employees of the dangerous conditions, demonstrates the inherent unfairness of the current Louisiana Worker's Compensation law. However, the appropriate body with power to remedy such injustice is the Louisiana legislature and not this Court.
2. Richard Pittman
Plaintiff's amended compliant adds Richard Pittman, a Louisiana resident, as a defendant. Allegedly, Pittman is the person who ordered Patrick Musacchia to the roof that fateful night causing the fatal accident. If Pittman has not been fraudulently joined, diversity jurisdiction is defeated and the Court must remand the case to state court. Unfortunately, no facts surrounding Pittman have been alleged other than that he sent Musacchia to the roof. Thus, the Court cannot determine if he has been fraudulently joined or not. Therefore, the Court grants defendant's motion for a more definite statement under Rule 12(e) with respect to defendant Richard Pittman.
Intentional Infliction of Emotional Distress
In order to recover for intentional infliction of emotional distress under. Louisiana law, a plaintiff must show "(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991); see also, Arco Oil Gas Co., a Div. of Atlantic Richfield Co. v. DeShazer, 728 So.2d 841, 845 (La. 1999). Further, the White Court held that only conduct going "beyond all bounds of decency", regarded as "atrocious and utterly intolerable in a civilized community." would give rise to liability for the intentional infliction of emotional distress. White, 585 So.2d at 1209. The distress inflicted must be such that no reasonable person could endure it. Id. at 1210.
Rochelle Musacchia seeks damages for the intentional infliction of emotional distress. Musacchia alleges that all of the defendants denied her from access to the roof where her dying husband lay ensnared in the auger, thereby preventing her from ever speaking with him again. Musacchia also alleges that such actions have caused severe emotional damage and forced her to seek extensive therapy and grief counseling. The Court examines intentional infliction of emotional distress claims under the Louisiana Supreme Court's holding in White. Thus, Musacchia must show (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. Defendant's actions in this regard can hardly be characterized as "extreme and outrageous." After the occurrence of such a terrible tragedy, defendants understandably would want to limit access to the accident site to make sure no one else would be injured in the same manner. Such conduct is far from extreme or outrageous, but possibly, the most prudent and proper course of action defendants could have followed. To allow a grieving widow access to a dangerous accident site in the middle of night where her husband, an experienced employee, had just fallen into a moving auger and was killed, would arguably be in and of itself extreme and outrageous. Because Musacchia has failed to satisfy the first prong of the intentional infliction of emotional distress test, the Court finds as a matter of law that she cannot recover for intentional infliction of emotional distress against any defendant and grants the motion to dismiss as to that claim.
While Rochelle Musacchia alleges that her husband was still alive when she arrived on the scene, she provides no evidence of that fact. Defendants allege that Patrick Musacchia was already dead by the time Rochelle arrived. However, Patrick Musacchia's death certificate lists the time of the accident as 2200 hours and the time of death as 2320 hours, so it is not impossible that Rochelle arrived before her husband died.
Accordingly,
IT IS ORDERED that defendant's Motion to Dismiss Pursuant to Rule 12 (b)(6) should be and hereby is GRANTED in part and the claims against defendant Malcolm Wagner, LPN are hereby DISMISSED, and plaintiff's intentional infliction of emotional distress claim as to all defendants is DISMISSED.
IT IS FURTHER ORDERED that defendants' Motion for a More Definite Statement under Rule 12(e) should be and hereby is GRANTED in part and plaintiff shall file any additional allegations with respect to defendant Richard Pittman within fifteen (15) days of entry of this order.