Opinion

Barrosse v. Huntington Ingalls Incorporated

Court
District Court, E.D. Louisiana
Filed
Nov 22, 2021
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD BARROSSE CIVIL ACTION

VERSUS NO. 20-2042-WBV-JVM

HUNTINGTON INGALLS SECTION: D (1)

INCORPORATED, ET AL.

ORDER AND REASONS

Before the Court is an Ex Parte/Consent Motion for Entry of Final Judgment

Pursuant to Rule 54(B) Regarding Summary Judgment in Favor of The Avondale

Interests, filed by Huntington Ingalls Incorporated (“Avondale”).1 According to

Avondale, the remaining parties have consented to the Motion.2

Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda

in opposition to a motion be filed eight days prior to the noticed submission date. The

instant Motion had a submission date of October 8, 2021.3 As of the date of this Order,

no memorandum in opposition has been submitted.

Accordingly, because this Motion is unopposed and, importantly, because it

appears to the Court that the Motion has merit, IT IS HEREBY ORDERED that

Avondale’s Motion is GRANTED.

1 R. Doc. 177.

2 Id. at p. 1.

3 R. Doc. 178.

I. FACTUAL BACKGROUND4

This case arises out of Ronald J. Barrosse’s exposure to asbestos. Barrosse

alleged that he was exposed to asbestos and/or asbestos-containing products during

the course of his employment at Avondale Industries, Inc. and Union Carbide

between 1969 and 1979.5 Barrosse was diagnosed with mesothelioma in early March

2020,6 and sued numerous defendants, including Avondale, in state court on or about

May 11, 2020.7 The case was removed to this Court on July 17, 2020.8 Barrosse

subsequently passed away on October 13, 2020.9 On January 5, 2021, this Court

allowed Barrosse’s surviving spouse and children, Lynn Barrosse, Raegan Holloway

and Makenzie Striker (collectively, “Plaintiffs”), to substitute themselves as plaintiffs

in this case.10

On January 13, 2021, Avondale and Lamorak Insurance Company

(“Lamorak”),11 moved for summary judgment, arguing that Plaintiffs’ state law

negligence claims against them are preempted under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. §§ 905(a) and 933(i) (the “LHWCA”).12 The

Court granted the Motion on September 24, 2021, and dismissed Avondale and

4 In the interest of judicial economy, and because the factual background of this case was extensively

detailed in the Court’s September 24, 2021 Order and Reasons that is the basis for the instant Motion

(R. Doc. 174), the Court limits its recitation of the facts to the procedural background pertinent to the

instant Motion.

5 R. Doc. 1-1 at ¶ 4.

6 R. Doc. 174 at p. 3.

7 R. Doc. 1-1.

8 R. Doc. 1.

9 R. Doc. 67.

10 R. Docs. 69 & 76.

11 Lamorak was sued as the alleged insurer of Avondale and some of its executive officers. See, R. Doc.

174 at p. 1, n.1.

12 R. Doc. 86.

Lamorak with prejudice.13 Avondale now moves for a partial final judgment under

Fed. R. Civ. P. 54(b).14 The Motion is unopposed.

II. LEGAL STANDARD

Rule 54(b) of the Federal Rules of Civil Procedure provides that, “the Court

may direct the entry of a final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that there is no just reason for

delay and upon an express direction for the entry of judgment.”15 The Fifth Circuit

has recognized that, “One of the primary policies behind requiring a justification for

Rule 54(b) certification is to avoid piecemeal appeals.”16 The Fifth Circuit has also

cautioned that, “A district court should grant certification only when there exists

some danger of hardship or injustice through delay which would be alleviated by

immediate appeal; it should not be entered routinely as a courtesy to counsel.”17

Thus, Rule 54(b) judgments are not favored and should be awarded only when

necessary to avoid injustice.18

The determination of whether “there is no just reason for delay” is left to the

sound discretion of the district court.19 In making that decision, “the district court

13 R. Doc. 174.

14 R. Doc. 177.

15 Fed. R. Civ. P. 54(b).

16 PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 (5th Cir. 1996)

(citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 445 (2d Cir. 1985)).

17 PYCA Indus., Inc., 81 F.3d at 1421 (citing Ansam Assocs., Inc., 760 F.2d at 445).

18 Altier v. Worley Catastrophe Response, LLC, Civ. A. Nos. 11-241, 11-242, 2012 WL 161824, at *26

(E.D. La. Jan. 18, 2012) (quoting Fitch v. Wells Fargo Bank, N.A., Civ. A. Nos. 08-1639, 09-3466, 2010

WL 4552455, at *1-2 (E.D. La. Oct. 28, 2010) (citing PYCA Indus., Inc., 81 F.3d at 1421)); See

Ordemann v. Livingston, Civ. A. No. 06-4796, 2007 WL 1651979 (E.D. La. June 7, 2007) (citing PYCA

Indus., Inc., 81 F.3d at 1421) (same).

19 See Brown v. Mississippi Valley State University, 311 F.3d 328, 332 (5th Cir. 2002); Ackerman v.

FDIC, 973 F.2d 1221, 1224 (5th Cir. 1992); Fitch, Civ. A. Nos. 08-1639, 09-3466, 2010 WL 4552455, at

must consider judicial administrative interests as well as the equities involved.”20

The Court also has a duty to weigh the inconvenience and costs of piecemeal review

against the danger of injustice from delay.21 Thus, one factor that the Court must

consider is whether the Fifth Circuit would have to decide the same issues more than

once if there were subsequent appeals.22

III. ANALYSIS

The Court dismissed Avondale and Lamorak after finding that the LHWCA

preempts Plaintiffs’ state law tort claims.23 Avondale and Lamorak are the only

parties who raised the preemption issue. As such, there is no risk that a subsequent

appeal in this case will present the Fifth Circuit with the same issue. Accordingly,

the Court finds that the risk of piecemeal appeals does not weigh against granting

Avondale’s Rule 54(b) Motion.

The Court further finds that Avondale may suffer prejudice if the Court does

not grant its Motion. Avondale asserts that three other Sections of this Court have

pending motions for summary judgment under submission on the issue of LHWCA

preemption,24 and that the LHWCA preemption issue has arisen in at least sixteen

other cases pending in the Eastern District of Louisiana and the Middle District of

*1 (citing Ackerman, supra); Altier, Civ. A. Nos. 11-241, 11-242, 2012 WL 161824 at *26 (citing Brown,

supra).

20 Brown, 311 F.3d at 332 (quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100 S.Ct.

1460, 64 L.Ed.2d 1 (1980)).

21 Road Sprinkler Fitters Local Union v. Continental Sprinkler Co., 967 F.2d 145, 148 (5th Cir. 1992)

(quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299

(1950)) (internal quotation marks omitted).

22 Sailboat Bay Apartments, LLC v. U.S., Civ. A. No. 14-2344, 2015 WL 3772756, at *2 (E.D. La. June

17, 2015) (citing H & W Indus., Inc. v. Formosa Plastics Corp., 860 F.2d 172, 175 (5th Cir. 1988)).

23 R. Doc. 174.

24 R. Doc. 177-1 at p. 5 & n.20.

Louisiana, with additional cases likely to be filed in the future.25 In light of the

numerous cases in which the preemption issue has arisen, and the likelihood that it

will continue to arise in future cases, the Court finds that delaying the potential

appeal in this case would prejudice Avondale. Specifically, Avondale will have to

litigate the preemption question repeatedly in the district courts until the Fifth

Circuit resolves the issue. The Court finds that the prejudice caused by forcing

Avondale to relitigate this question can be alleviated by expediting the time in which

the parties can appeal the Court’s September 24, 2021 decision. As such, this factor

weighs in favor of granting Avondale’s Motion.

Finally, the Court finds that issuing a partial final judgment will serve the

interest of judicial economy by hastening the ultimate resolution of the LHWCA

preemption question. A decision by the Fifth Circuit will assist the numerous district

courts who have been, or will be, presented with this question. Thus, this factor also

weighs in favor of granting Avondale’s Motion.

For all of these reasons, the Court finds that the risk of piecemeal appeals is

outweighed by the risk that delay will unfairly prejudice Avondale. The Court

therefore finds that there is no just reason for the delay, and grants Avondale’s

Motion.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that the Ex

Parte/Consent Motion for Entry of Final Judgment Pursuant to Rule 54(B) Regarding

25 R. Doc. 177-1 at p. 5 & n. 21.

Summary Judgment in Favor of The Avondale Interests? is GRANTED.

Accordingly, the Court directs entry of a final judgment in favor of Avondale and

Lamorak.

New Orleans, Louisiana, November 22, 2021.

WENDY B. VI ; ER

UNITED STATES DISTRICT JUDGE

28 R, Doc. 177.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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