The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEROME SCOTT CIVIL ACTION
VERSUS NO. 19-12736
CROSBY ENERGY SERVICES ET AL. M. J. WILKINSON
ORDER AND REASONS ON MOTIONS
This is a civil rights and state law tort action originally filed pro se in state court.
Construed broadly, the state court petition, as amended, appears to assert claims pursuant to
42 U.S.C. § 1983 (“Section 1983”), Title VII of the Civil Rights Act (“Title VII”), the
Americans with Disabilities Act (“ADA”) and Louisiana law by plaintiff Jerome Scott
against defendants Crosby Energy Services (“Crosby”), Wood Group PSN (“Wood Group”),
Advance Safety Training & Consultants LLC (“Advance”), an unidentified Wood Group
employee (“Nick Doe”) and unidentified insurance companies (“XYZ Insurance
Companies”). This matter was referred to a United States Magistrate Judge for all
proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written
consent of all parties. Record Doc. No. 25.
Defendants Crosby, Wood Group and Advance filed three separate Rule 12(b)(6)
motions to dismiss plaintiff’s claims against them. Record Doc. Nos. 10–11, 20. Plaintiff
filed timely opposition memoranda. Record Doc. Nos. 28–30. Defendants received leave to
file replies. Record Doc. Nos. 31, 33–40. Having considered the pleadings, the record, the
written submissions of counsel and applicable law, and for the following reasons, IT IS
ORDERED that the motions are GRANTED IN PART AND DENIED IN PART.
I. PROCEDURAL BACKGROUND
(A) EEOC Charge and Original State Court Petition for Damages
Plaintiff filed a discrimination charge with the Louisiana Commission on Human
Rights and/or the Equal Employment Opportunity Commission (“EEOC”) on May 17, 2018,
alleging that he suffered discriminatory termination under the ADA when employers Crosby
and Wood Group fired him on the basis of an unspecified disability. Record Doc. No. 1-1 at
p. 17. Based on the information obtained in its investigation, the EEOC was unable to
conclude that Crosby and Wood Group violated the ADA and issued Scott a right to sue
letter on May 30, 2018. Id. at pp. 14–16.
On August 29, 2018, plaintiff filed a pro se petition for damages in the 32nd Judicial
District Court for the Parish of Terrebonne against Crosby and Wood Group. Id. at p. 1, ¶ I.
Scott, an African-American, alleged that Crosby and Wood Group discriminated against him
on the basis of race when they terminated his employment as head cook on an offshore
drilling platform on or about October 24, 2017, after he tested positive for codeine, morphine
and opiates in a routine, voluntary drug test administered on October 11, 2017. Id. at pp. 1–2,
¶¶ VI, IX–X. Scott alleged that the test results were “untrue,” that “he has never done drugs
in his life” and that “the test must have been mixed up with someone else’s test.” Id. at pp.
2–3, ¶¶ IX, XIII. He further alleged that Crosby and Wood Group engaged in “black ball
practices” after his termination by “plac[ing] an X by [his] name for him not for be hired by
any other company.” Id. at p. 3, ¶ XIII.
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Scott asserted claims against Crosby and Wood Group for racial discrimination under
Louisiana law and Title VII, loss of employment opportunities, “failure to take reasonable
care and caution under all circumstances,” failure to properly manage and train employees,
and “any and all other negligent acts and omissions which may be proven at the trial of this
matter.” Id. at p. 3, ¶ XIV.
Scott attached his EEOC discrimination charge and right to sue letter as exhibits to
his petition, and the pleading itself alleges “problems with his feet,” “swelling of Mr. Scott’s
feet” and that “he is currently under [a physician’s] care for treatment of gout.” Id. at p. 2,
¶¶ VII, XI. Also attached as an exhibit to Scott’s original petition is an unsigned, handwritten
letter presumably authored by Scott, which states that Scott had the disabling condition of
gout in his feet and was taking a prescribed anti-inflammatory medication at the time of the
drug test. Id. at pp. 22–23. However, despite these allegations and exhibits, the petition did
not expressly assert an ADA claim against Crosby or Wood Group or refer to any kind of
disability discrimination during his employment with these defendants.
Plaintiff’s petition sought monetary damages for loss of back pay, loss of future
wages, loss of advancement with Crosby and Wood Group, physical and emotional distress,
attorney’s fees and “any and all other items of damages to be enumerated at the trial of this
matter.” Id. at p. 4, ¶ XVI.
On October 16 and 26, 2018, Crosby and Wood Group filed peremptory exceptions
of no cause of action and dilatory exceptions of prematurity in the state court lawsuit, based
on Scott’s failure to allege facts to support the allegations in his petition and failure to
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exhaust administrative remedies as to his race discrimination claims. Id. at pp. 34–35, 49–50.
Following a show cause hearing on December 10, 2018, the state court judge issued a
judgment on January 10, 2019, sustaining the peremptory and dilatory exceptions and
ordering Scott to amend his petition within 45 days from the date of judgment. Id. at p. 59.
(B) State Court Amended Petition for Damages and Removal to this Court
After receiving multiple extensions of time, plaintiff filed a pro se amended petition
for damages on August 21, 2019. Id. at pp. 72–80. Plaintiff’s amended petition alleges that
he was a Crosby and Wood Group employee “at all times pertinent during the events
described in this lawsuit” and re-alleges the same facts from the original petition concerning
his termination following the failed drug test. Id. at p. 73–75. He states that on October 24,
2017, a Wood Group representative “advised [him] that he ha[d] been terminated because
the test results were positive.” Id. at p. 75. Scott alleges that “the purported test result[s] were
shammed,” improperly rendered and inauthentic, an assertion he supports with allegations
that he took two additional drug tests immediately following his termination, which all came
back negative. Id. at pp. 75, 77.
In addition to existing defendants Crosby and Wood Group, Scott’s amended petition
added new defendants Advance (originally mis-identified as “Specimen Collection Facility”),
an unidentified Wood Group employee (“Nick Doe”) and unidentified insurance companies
“that underwrite[] on behalf of Crosby and Wood Group” (“XYZ Insurance Companies”).
Id. at p. 72.
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Plaintiff’s amended petition does not refer to or adopt his original petition’s claims
for racial discrimination under Louisiana law and Title VII.
The amended petition re-alleges plaintiff’s original state law tort claims in more
precise detail, asserting negligence, vicarious liability and civil conspiracy claims against
defendants under La. Civ. Code arts. 2315–17, 2320 and 2324. Id. Specifically, he alleges
that defendants were directly negligent and/or vicariously liable for Advance’s negligence
in administering and processing the drug test and failing to comply with rules, regulations
and practices as to authentic drug testing; and that Crosby and Wood Group were directly
negligent and/or vicariously liable for Advance’s negligence in failing properly to train
supervisors as to authentic drug testing. Id. at pp. 75–78.
The amended petition asserts new constitutional claims against all defendants under
Section 1983. Id. Specifically, plaintiff claims that defendants are state actors who denied
him due process and equal protection rights and acted with deliberate indifference under the
Eighth and Fourteenth Amendments of the United States Constitution in administering and
processing his drug test. Id. at pp. 73, 75–78.
Finally, Scott alleges that an unidentified employer refused to offer him employment
opportunities in January 2018 “based upon the shammed information/test result[s] contained
within the custody of the Defendants, Crosby Energy Services, Wood Group PSN; and
[Advance].” Id. at p. 75.
Scott’s amended petition seeks monetary damages, a declaratory judgment stating
defendants’ violations of federal and state law, reinstatement to his head cook position and
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an injunction ordering XYZ Insurance Companies to comply with any contracts, policies or
legislation requiring payments to plaintiff. Id. at pp. 78–80.
On October 23, 2019, defendant Crosby removed the state court lawsuit to this court
based on this court’s federal question jurisdiction over plaintiff’s Section 1983 claims.
Record Doc. No. 1. On November 1, 2019, plaintiff filed a motion for appointment of
counsel. Record Doc. No. 16. Plaintiff’s motion was granted and he was appointed counsel
from this court’s Civil Pro Bono Panel following a hearing on December 4, 2019. Record
Doc. No. 26.
II. LEGAL STANDARD
Under Rule 12(b)(6), as clarified by the Supreme Court,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” A claim for relief is plausible on
its face “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” A claim for relief is implausible on its face when “the well-pleaded
facts do not permit the court to infer more than the mere possibility of
misconduct.”
Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007))).
“The Supreme Court’s decisions in Iqbal and Twombly . . . did not alter the
long-standing requirement that when evaluating a motion to dismiss under Rule 12(b)(6), a
court must accept[ ] all well-pleaded facts as true and view[ ] those facts in the light most
favorable to the plaintiff.” Id. at 803 n.44 (quotation omitted); accord Murchison Capital
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Partners, L.P. v. Nuance Commc’ns, Inc., 625 F. App’x 617, 618 n.1 (5th Cir. 2015) (citing
Wood v. Moss, 134 S. Ct. 2056, 2065 n.5 (2014)).
“With respect to any well-pleaded allegations ‘a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.’” Jabary v.
City of Allen, 547 F. App’x 600, 604 (5th Cir. 2013) (quoting Iqbal, 556 U.S. at 664).
“Factual allegations must be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Maloney Gaming Mgmt., L.L.C. v. St. Tammany Parish, 456 F. App’x 336, 340 (5th Cir.
2011) (quotations omitted) (citing Iqbal, 556 U.S. at 696; Elsensohn v. St. Tammany Parish
Sheriff’s Ofc., 530 F.3d 368, 371 (5th Cir. 2008); In re Katrina Canal Breaches Litigation,
495 F.3d 191, 205 n.10 (5th Cir. 2007)).
III. ANALYSIS
(A) Abandoned Racial Discrimination Claims
“[A]n amended complaint supersedes and replaces an original complaint, unless the
amendment specifically refers to or adopts the earlier pleading.” McDonald v. Chief of Police
Etc., 2019 WL 3057666, at *2 (5th Cir. July 11, 2019) (citing Eubanks v. Parker Cty.
Comm’rs Court, 1995 WL 10513, at *2 (5th Cir. Jan. 3, 1995)); accord King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.
1985). “Once an amended pleading is interposed, the original pleading no longer performs
any function in the case.” Bodenheimer v. Williams, 2015 WL 13840130, at *1 (E.D. La.
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July 23, 2015) (quoting Thomas v. Miramar Lakes Homeowners Ass’n, 2014 WL 3897809,
at *4–5 (S.D. Tex. Aug. 6, 2014)).
Plaintiff’s amended petition does not refer to or adopt his original petition’s claims
for racial discrimination against Crosby and Wood Group under and federal and Louisiana
law. Therefore, plaintiff’s racial discrimination claims are deemed abandoned in this matter.
(B) Voluntarily Dismissed Section 1983 and Civil Conspiracy Claims
Plaintiff concedes in his response memoranda to all three motions to dismiss that
defendants are private citizens that did not act under color of state law or conspire with state
actors during the events giving rise to this lawsuit. Record Doc. Nos. 28 at p. 5; 29 at p. 5;
30 at p. 5. Scott concedes that he “does not have any viable claims under 42 U.S.C. § 1983”
against any defendant. Id. He states that he “voluntarily seek[s] to dismiss all claims brought
pursuant to [Section] 1983.” Id. Accordingly, the motions are GRANTED insofar as
plaintiff’s Section 1983 claims against all defendants are DISMISSED WITH PREJUDICE.
Plaintiff further concedes in all three opposition memoranda that “he cannot articulate
a viable claim of civil conspiracy under Article 2324” but “reserves the right to amend his
Complaint to the extent that discovery indicates that the elements of this tort can be
established.” Record Doc. No. 28 at p. 9 n.4; 29 at p. 7 n.2; 30 at p. 9 n.3. Accordingly, the
motions are GRANTED insofar as plaintiff’s civil conspiracy claims against all defendants
are DISMISSED WITHOUT PREJUDICE to filing an appropriate motion to amend to state
a claim for relief for civil conspiracy under Louisiana law.
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C. Purported ADA Claims Against Crosby and Wood Group
Plaintiff’s opposition memoranda argue that his amended petition states claims for
relief against Crosby and Wood Group for employment discrimination under the ADA.
Record Doc. Nos. 28 at pp. 11–13; 30 at 11–13. The ADA prohibits an employer from
discriminating against a “qualified individual with a disability on the basis of that disability.”
42 U.S.C. § 12112(a). “To establish a prima facie discrimination claim under the ADA, a
plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; [and]
(3) that he was subject to an adverse employment decision on account of his disability.”
E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (quoting Zenor v. El Paso
Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999). An individual is “disabled” under
the ADA if he has a physical or mental impairment that substantially limits one or more
major life activity, has a record of such an impairment, or is subjected to an action prohibited
under the ADA because of an actual or perceived physical or mental impairment. 42 U.S.C.
§ 12102. Plaintiff’s original and amended petitions do not assert an explicit ADA cause of
action against Crosby or Wood Group. However, the amended petition alleges certain
elements of an ADA employment discrimination claim.
Scott asserts his job qualifications by alleging that he was employed as Wood Group
and Crosby’s offshore head cook for approximately three years, working 18-hour days for
two weeks at a time, preparing three meals per day for up to 60 employees. Record Doc. No.
1-1 at p. 74.
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Plaintiff alleges an actual and/or perceived disability that interfered with a major life
activity – his ability to work – in stating “[a]fter approximately a two (2) year period
Defendant[] Wood Group PSN ascertained and acknowledged plaintiff developed (a job-
related) medical problem with his feet as he apparently sought medical treatment offshore
on the platform on several occasions ” and that Wood Group’s medical staff “acknowledged
[that] plaintiff’s medical problem beg[a]n interfering with his work ability.” Id. at p. 75. He
states that the head cook position “required and consisted [of] constant standing and/or
walking.” Id. at p. 74. Although the amended petition does not identify the specific “job-
related medical problem,” plaintiff’s opposition memoranda and original petition state that
plaintiff “acquired gout in his feet” and was under the care of a physician “for treatment of
[g]out.” Record Doc. Nos. 1-1 at pp. 2, 8; 28 at p. 11; 30 at p. 11. Undermining any disability
claim, plaintiff attached to his original petition correspondence dated November 29, 2017,
from plaintiff’s physician, Dr. Scott A. Haydel, who states that plaintiff’s prescribed gout
medication, Allopurinol, “will not affect [Scott’s] ability to perform his duties.” Record Doc.
No. 1-1 at 8 (emphasis added). Dr. Haydel further stated that Scott “can return to work full
duty with no restrictions.” Id. (emphasis added).
Plaintiff alleges that he suffered an adverse employment decision when Crosby and
Wood Group fired him from his head cook position. Plaintiff alleges that his employers
advised him that “he ha[d] been terminated because the [drug] test results were positive. Id.
at p. 75. However, nowhere in plaintiff’s original or amended petitions does plaintiff state
that he was fired from Crosby and Wood Group because of his gout. Thus, plaintiff fails to
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state a claim upon which relief can be granted for employment discrimination under the
ADA.
However, a court should not dismiss an action for failure to state a claim under Rule
12(b)(6) without giving plaintiff “at least one chance to amend.” Hernandez v. Ikon Ofc.
Solutions, Inc., 306 F. App’x 180, 182 (5th Cir. 2009); accord Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). Thus, the motions
are DENIED at this time as to plaintiff’s ADA claims against Crosby and Wood Group.
Plaintiff is hereby put on notice that he must file a motion for leave to file an amended
complaint either with defendants’ consent pursuant to Local Rule 7.3 or noticed for
submission pursuant to Local Rule 7.2, adequately asserting any claims under the ADA no
later than MARCH 31, 2020. Failure timely to seek amendment will result in an order
dismissing plaintiff’s ADA claims without further hearing or briefing.
(D) State Law Negligence Claims
La. Civ. Code art. 2315 provides that “[e]very act whatever of man that causes
damage to another obliges him by whose fault it happened to repair it.” The Civil Code
further provides that every person is responsible for the damage he causes by his own
negligence. La. Civ. Code art. 2316. To adequately plead a cause of action for negligence
under the duty-risk analysis adopted by the Louisiana Supreme Court, the plaintiff must
allege that “(1) [he] suffered an injury; (2) the defendant owed a duty of care to the plaintiff;
(3) the duty was breached by the defendant; (4) the conduct in question was the cause-in-fact
of the resulting harm; and (5) the risk of harm was within the scope of protection afforded
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by the duty breached.” Doe, 945 F.3d at 826 (citing Lazard v. Foti, 859 So. 2d 656, 659 (La.
2003)). “Without allegations suggesting the source of an enforceable duty, the plaintiff is
unable to plead a plausible claim for negligence.” Butler v. Denka Performance Elastomer
LLC, 2019 WL 1160814, at *9 (E.D. La. Mar. 13, 2019).
(1) Direct Negligence and Negligent Discharge Claims Against Crosby, Wood Group,
Doe and XYZ Insurance Companies
Plaintiff claims that he negligently was discharged based on the failure of Crosby,
Wood Group, Doe and XYZ Insurance Companies to ensure that his drug test was
authentically administered and processed. Louisiana is an at-will employment state, and an
employer has the right to fire an employee “for any reason—good, bad, or indifferent—or
for no reason at all.” La. Civ. Code art. 2747; Johnson v. Delchamps, Inc., 897 F.2d 808, 810
(5th Cir. 1990). In Johnson, the Fifth Circuit held that an employer cannot be held liable in
tort for discharging at-will employee based on incorrect information gathered in polygraph
test, even if test was negligently conducted. 897 F.2d at 811. The Johnson court reasoned that
“[i]f [an employer] was at liberty to discharge [its employee] for no reason, it was equally
at liberty to discharge [him] for a reason based on incorrect information, even if that
information was carelessly gathered.” Id. (emphasis added).
Following Johnson, the Louisiana Supreme Court and federal courts in this circuit
have frequently held that an employer cannot be held directly liable under a negligence
theory for terminating an employee based on incorrect results of a negligently conducted
drug or alcohol test. Herbert v. Placid Ref. Co., 564 So. 2d 371, 373 (La. App. 1st Cir. 1990),
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writ denied, 569 So. 2d 981 (La. 1990) (applying Johnson rationale in dismissing claim
against employer based on employee’s discharge resulting from testing laboratory’s negligent
performance of drug test); Smith v. Diamond Offshore Mgmt. Co., 2003 WL 23095586, at
*6 (E.D. La. Dec. 23, 2003) (applying Johnson rationale to dismiss plaintiff’s claim for
negligent discharge against employer based on results of breathalyser test administered in
unreliable manner); Wells v. Disa Glob. Sols. Inc., 2018 WL 3827590, at *7 (W.D. La. June
28, 2018), report and recommendation adopted, 2018 WL 3827264 (W.D. La. Aug. 10, 2018)
(company that neither collected nor analyzed drug test sample may not be held liable under
negligence theory for failure to conduct test properly or produce correct results).
Thus, Louisiana’s at-will employment doctrine shields Crosby and Wood Group from
potential direct liability for both negligent administration and processing of Scott’s drug test
and negligent discharge of Scott based on incorrect test results. If an employer cannot be held
directly liable for damages resulting from a negligently conducted and processed drug test,
it follows that an employer’s supervisor and insurance companies may not be held directly
liable under the same theory.
The general rule that a plaintiff should be given one chance to amend his pleading
before dismissal under Rule 12(b)(6) does not apply if amendment would be futile.
Townsend v. BAC Home Loans Servicing, L.P., 461 F. App’x 367, 372 (5th Cir. 2011); Jaso
v. The Coca Cola Co., 435 F. App’x 346, 351–52 (5th Cir. 2011) (citing Goodman v. Praxair,
Inc., 494 F.3d 458, 466 (4th Cir. 2007); Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.
2003); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 at
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714–21 (3d ed. 2004)). Based on Louisiana’s at-will employment doctrine and the above-
referenced case law, any attempt to amend his petition to assert direct liability negligence or
negligent discharge claims against Crosby, Wood Group, Doe or XYZ Insurance Companies
arising from administration and processing of his drug test would be futile.
For the foregoing reasons, plaintiff fails to state claims for direct liability negligence
and/or negligent discharge against Crosby, Wood Group, Doe and XYZ Insurance
Companies based on negligent administration and processing of his drug test. Accordingly,
the motions are GRANTED insofar as plaintiff’s direct liability negligence and negligent
discharge claims against these defendants are DISMISSED WITH PREJUDICE.
(2) Vicarious Liability Negligence Claims Against Crosby, Wood Group, Doe and
XYZ Insurance Companies
Scott alleges that Crosby, Wood Group, Doe and XYZ Insurance Companies are
vicariously liable for Advance’s negligent administration and processing of his drug test and
its use of deficient testing policies and procedures. Plaintiff further claims that Crosby and
Wood Group were negligent in failing properly to train supervisors as to authentic drug
testing. La. Civ. Code art. 2320 provides that “[m]asters and employers are answerable for
the damage occasioned by their servants and overseers, in the exercise of the functions in
which they are employed.” “A ‘servant,’ as used in the Civil Code, ‘includes anyone who
performs continuous service for another and whose physical movements are subject to the
control or right to control of the other as to the manner of performing the service.’” Doe, 945
F.3d at 825 (quoting Ermert v. Hartford Ins. Co., 559 So. 2d 467, 476 (La. 1990). Plaintiff
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does not allege that Crosby, Wood Group, Doe or XYZ Insurance Companies employed
supervisors involved in the drug testing process, or that these defendants had control over
hiring and training Advance’s drug testing employees, drug testing services provided by
Advance or policies and procedures used by Advance to administer and process drug tests.
Accordingly, plaintiff fails to state vicarious liability negligence claims against Crosby,
Wood Group, Doe and XYZ Insurance Companies based on drug testing administration,
processing, policies and procedures that were performed and used by Advance.
To give plaintiff one opportunity to amend in compliance with the Fifth Circuit
precedent cited above, the motions are DENIED at this time as to plaintiff’s vicarious
liability negligence claims. Plaintiff is hereby put on notice that he must file an appropriate
motion for leave to file an amended complaint adequately asserting any vicarious liability
claims no later than MARCH 31, 2020. Failure timely to seek amendment will result in an
order dismissing plaintiff’s vicarious liability claims without further hearing or briefing.
(3) Claim for Loss of Employment Opportunities
Plaintiff’s amended petition makes a vague attempt to re-allege the claim from his
original petition that he suffered loss of employment opportunities after the allegedly false
drug test results were communicated to an unnamed, subsequent employer through the “black
ball” practices of Crosby and Wood Group. However, unlike the original petition, the
amended petition does not allege which defendant(s) caused his loss of employment
opportunities and merely states that the positive test results responsible for his loss of
employment opportunities were “contained within the custody of Crosby, Wood Group and
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Advance.” Record Doc. No. 1-1 at p. 75. This statement does not permit the court to infer
that any defendant is liable for plaintiff’s inability to obtain work opportunities from the
unnamed employer. Plaintiff’s petition is further unclear as to the legal basis for this claim.
Is plaintiff asserting a claim under some state law tort theory, a state or federal law related
to confidentiality of a patient’s medical records or is there some other legal ground for this
claim?
To give plaintiff one chance to amend in compliance with the Fifth Circuit precedent
cited above, the motions are DENIED at this time as to plaintiff’s claim for loss of
employment opportunities. Plaintiff is hereby put on notice that he must file an appropriate
motion for leave to file an amended complaint adequately asserting any claim related to his
loss of employment opportunities and identifying the defendant(s) he is asserting the claim
against, no later than MARCH 31, 2020. Failure timely to seek amendment will result in an
order dismissing this claim without further hearing or briefing.
(4) Direct Negligence Claims Against Advance
Plaintiff alleges that he was terminated on October 24, 2017, based on false positive
results of a drug test administered and processed by Advance and that he was denied
employment opportunities in January 2018, after an unnamed employer refused to offer him
additional work based on the test results in Advance’s custody. To the extent plaintiff claims
that Advance negligently administered and processed his drug test, negligently drafted
deficient policies and practices for authentic drug testing, and/or negligently communicated
false drug test results to Scott’s employer, Louisiana state and federal courts have recognized
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that drug testing laboratories have a duty to conduct drug tests in a competent and reasonable
manner. Elliott v. Lab. Specialists, Inc., 588 So. 2d 175, 176 (La. App. 5th Cir. 1991), writ
denied, 592 So. 2d 415 (La. 1992); Nehrenz v. Dunn, 593 So. 2d 915, 918 (La. App. 4th Cir.
1992);; Smith, 2003 WL 23095586, at *8; LeBlanc v. DISA Glob. Sols., Inc., 2017 WL
5147660, at *8 (M.D. La. Oct. 5, 2017), report and recommendation adopted, 2017 WL
5147150 (M.D. La. Nov. 6, 2017); Jones v. Disa Glob. Sols., Inc., 2018 WL 3150716, at *4
(M.D. La. June 11, 2018), report and recommendation adopted, 2018 WL 3150349 (M.D.
La. June 27, 2018).
Advance argues that plaintiff’s claims are time-barred under the Louisiana Civil
Code’s prescriptive period governing delictual (tort) actions. “A motion to dismiss may be
granted on a statute of limitations defense where it is evident from the pleadings that the
action is time-barred, and the pleadings fail to raise some basis for tolling.” Barrett v. Am.
Airlines, Inc., 711 F. App’x 761, 763 (5th Cir. 2017) (citing Jones, 339 F.3d at 366) (internal
quotations omitted). Under Louisiana law, delictual actions are subject to a liberative
prescription of one year. La. Civ. Code art. 3492. This prescriptive period commences to run
from the date injury or damage is sustained. Id. Prescription is interrupted when an obligee
commences a lawsuit against the obligor in a court of competent jurisdiction and venue. La.
Civ. Code art. 3462.
Plaintiff filed his original petition in state court on August 29, 2018, within the one-
year prescriptive period for delictual actions arising from his termination and subsequent loss
of employment opportunities. However, the original petition named only Crosby and
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Wood Group as defendants. Accordingly, the original petition interrupted prescription of
plaintiff’s negligence claims only as to Crosby and Wood Group. Scott did not commence
his action against Advance until he filed his amended complaint on August 21, 2019, well
over a year after plaintiff sustained his alleged injuries. Record Doc. No. 1-1 at p. 80. Thus,
plaintiff’s negligence claims against Advance are facially prescribed.
However, both the Louisiana and Federal Rules of Civil Procedure allow late-filed
amendments to relate back to timely filed claims under certain circumstances. Fed. R. Civ.
P. 15(c) provides that an amendment relates back to the original pleading if (1) the law that
provides the applicable statute of limitations (i.e., prescriptive period) allows relation back;
(2) the amendment asserts a claim or defense that arose out of the conduct, transaction or
occurrence set out – or attempted to be set out – in the original pleading; and (3) the
amendment changes the party or naming of the party and the new or newly named defendant
received notice of the action so as to preclude prejudice and knew or should have known that
the action would have been brought against it, but for a mistake concerning the proper party’s
identity.
Similarly, Louisiana law provides that when the action asserted in the amended
petition arises out of the conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the date of filing the original
pleading. La. Code Civ. P. art. 1153. Relation back of an amendment under Louisiana law
requires the following:
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(1) a factual nexus, that is the cause of action in the amended petition must
arise out of the same transaction or occurrence as that involved in the original
petition; (2) the new defendant must have received actual notice of the original
action so that there is no prejudice to its rights; (3) the new defendant must
know or have reason to have known that it would have been named in the
original petition but for a mistake in identity; and (4) the new defendant must
not be a wholly new or unrelated defendant as to the defendant in the original
petition.
Smith v. Auto Club Family Ins. Co., 2008 WL 5110590, at *3 (E.D. La. Nov. 25, 2008)
(citing Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La. 1983)).
Plaintiff argues that under the Federal Rules of Civil Procedure his state law claims
against Advance relate back to his original and timely petition filed on August 29, 2018.
Specifically, plaintiff asserts that his claims against Advance in the amended petition arise
from Crosby and Wood Group’s decision to fire him based on the positive drug test results,
the same transaction or occurrence set out in his original petition. Record Doc. No. 29 at p.
8. Plaintiff further argues that his original petition “was seeking to bring an action against all
Defendants, including Advance” by asserting a catch-all claim for “any and all negligent acts
and omissions which may have been proven at the trial of this matter.” Record Doc. Nos. 1-1
at p. 3; 29 at pp. 8–9.
Advance argues that Louisiana law, not the Federal Rules of Civil Procedure, applies
to the issue of whether Scott’s amended pleading relates back to the original pleading.
Record Doc. No. 40 at p. 2–4. Advance contends that Scott’s amended pleading does not
relate back to his original petition based on its lack of notice of the original petition as well
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as its status as a new defendant, unrelated to the original parties sued in this matter, when the
amended petition was filed. Id.
“The Federal Rules of Civil Procedure ‘apply to civil actions removed to the United
States district courts from the state courts and govern procedure after removal.’” O’Carolan
v. Puryear, 70 F. App’x 751 (5th Cir. 2003) (citing Fed. R. Civ. P. 81(c)) (emphasis in
original). “They do not provide for retroactive application to the procedural aspects of a case
that occurred in state court prior to removal to federal court.” Taylor v. Bailey Tool Mfg. Co.,
744 F.3d 944, 946 (5th Cir. 2014). “Because [Scott]’s case originated in state court, and the
events relevant to its timeliness occurred prior to its removal, the Federal Rules of Civil
Procedure do not govern the issue whether [Scott] tolled the applicable statute of limitations
while her case was pending in . . . state court.” O’Carolan, 70 F. App’x at 752. Instead, the
Fifth Circuit “applie[s] state rules to determine the implications of events that occurred while
a case was pending in state court prior to removal.” Taylor, 744 F.3d at 947.
Thus, the court must look to Louisiana law to determine if the claims asserted against
Advance in plaintiff’s amended petition relate back to his original petition for purposes of
timeliness. The causes of action against Advance in Scott’s amended petition certainly arise
from the same set of facts involved in the original petition. However, allowing the amended
petition to relate back to the original pleading would prejudice Advance’s rights, as the state
court record indicates that Advance did not receive actual notice of this lawsuit until it was
served with the amended petition on August 26, 2019. Record Doc. No. 1-1 at p. 84. Nothing
in the record suggests that Advance knew or had reason to know that it would have been
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named in the original petition but for a mistake in identity. In fact, plaintiff’s original petition
attached drug test results issued on October 24, 2017, which clearly state Advance’s identity
as the specimen collection facility involved in Scott’s drug test. Id. at p. 7. Thus, there could
have been no mistake as to Advance’s identity as a separate entity from Scott’s employers
when Scott filed this lawsuit on August 29, 2018. Finally, Advance is a new defendant
unconnected to Crosby and Wood Group other than its role as the third-party drug testing
facility used by these companies. For the foregoing reasons, all factors required for relation
back of an amendment under Louisiana law are not met. Thus, Scott fails to state direct
negligence claims against Advance because these claims are facially prescribed under La.
Civ. Code art. 3492. Amendment of these claims would be futile. Accordingly, Advance’s
motion to dismiss is GRANTED insofar as plaintiff’s direct negligence claims against
Advance are DISMISSED WITH PREJUDICE.
Plaintiff is hereby placed on notice that in the event he fails to amend his ADA claim
as required above, such that all federal law claims would be dismissed in this matter, the
court has discretion either to decline or exercise supplemental jurisdiction over plaintiff’s
state law claims, 28 U.S.C. § 1367(c)(3), considering the statutory provisions of 28 U.S.C.
§ 1367(c) and the balance of the common law factors of judicial economy, convenience,
fairness and comity. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350–51 (1988);
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Heggemeier v. Caldwell Cty.,
Texas, 826 F.3d 861, 872–73 (5th Cir. 2016); Enochs v. Lampasas Cty., 641 F.3d 155,
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158—59 (5th Cir. 2011); Brookshire Bros. Holding v. Dayco Prod., Inc., 554 F.3d 595, 602
(Sth Cir. 2009); Batiste v. Island Records, Inc., 179 F.3d 217, 227 (Sth Cir. 1999).
New Orleans, Louisiana, this 9th day of March, 2020.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
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