Ellis v. Evonik Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LAMAR ELLIS, ET AL. CIVIL ACTION

VERSUS NO. 21-1089

EVONIK CORPORATION, ET AL. SECTION “R” (3)

ORDER AND REASONS

Before the Court is plaintiffs’ motion for reconsideration of the Court’s

October 19, 2021 denial of plaintiffs’ motion to remand.1 Defendants, Evonik

Corporation (“Evonik”) and Shell Oil Company (“Shell”), oppose the

motion.2 For the following reasons, the Court denies plaintiffs’ motion.

I. BACKGROUND

This case arises out of alleged exposure to ethylene oxide (“EtO”) near

a petrochemical plant in Reserve, Louisiana (the “facility”), owned and

operated by defendants Evonik and Shell.3 Plaintiffs are fourteen Louisiana

residents who live within seven miles of the facility,4 and who have either

1 R. Doc. 32.

2 R. Docs. 39 & 40.

3 R. Doc. 1-1 ¶ 1.

4 Id. ¶¶ 12-25, 80-93.

contracted cancer, or had a spouse die from cancer, allegedly because of

unknowing exposure to dangerous levels of EtO emitted by the facility.5

On April 26, 2021, plaintiffs filed suit in the Civil District Court for the

Parish of St. John the Baptist, alleging that inhalation of EtO emitted from

the facility was a substantial factor in causing plaintiffs’ cancer, or their

spouses’ cancer.6 In their complaint, plaintiffs named as defendants Evonik

Corporation and Shell Oil Company,7 as well as four individual defendants

(the “employee defendants” or the “employees”): Randy Cashio,8 James

Carter,9 Artis Williams,10 and Kerry Harrison.11 Plaintiffs alleged that the

employee defendants were designated as Responsible Officials (“ROs”) who

provided emissions information to state regulators at the Louisiana

Department of Environmental Quality (“LDEQ”), and who knew or should

5 Id. ¶¶ 1, 7-8.

6 Id. ¶¶ 1-9.

7 Id. ¶¶ 26, 31. In their complaint, plaintiffs named other corporate

entities, including Evonik Materials Corporation, Versum Materials

Performance Manufacturing, Inc., Air Products Performance

Manufacturing, Inc., and Tomah Reserve, Inc. Id. ¶¶ 27-30.

Defendants represent, and plaintiffs do not dispute, that Evonik

Corporation is the successor in interest of those entities. R. Doc. 1 ¶¶ 5-

6; R. Doc. 19-1 at 1 n.1. Accordingly, the only corporate defendants in

this matter are Evonik Corporation and Shell Oil Company.

8 R. Doc. 1-1 ¶ 32.

9 Id. ¶ 33. Defendant James Carter has not been served in this action.

See id. at 59-60.

10 Id. ¶ 34.

11 Id. ¶ 35.

have known that the facility was emitting unsafe levels of EtO into the

surrounding community.12 Plaintiffs alleged negligence13 and civil battery14

against the four employee defendants. The employee defendants are

residents of Louisiana.15

On June 4, 2021, Evonik removed the case to federal court, contending

that the non-diverse employee defendants were improperly joined, and that,

therefore, this Court has diversity jurisdiction under 28 U.S.C. § 1332.16

On June 30, 2021, plaintiffs moved to remand the case to state court.17

They argued that the employee defendants were not improperly joined

because plaintiffs have shown a possibility of recovery against the employee

defendants under Louisiana law.18 They contended that, because the in-state

employee defendants were properly joined, the parties in the case are not

completely diverse, and the Court should therefore remand for lack of

12 Id. ¶¶ 61-71.

13 Id. ¶¶ 203-207 (“Count 19 – Negligence of James Carter”); id. ¶¶ 215-

219 (“Count 21 – Negligence of Artis Williams”); id. ¶¶ 226-230

(“Count 23 – Negligence of Randy Cashio”); id. ¶¶ 237-240 (“Count 25

– Negligence of Kerry Harrison”).

14 Id. ¶¶ 208-213 (“Count 20 – Civil Battery by James Carter”); id.

¶¶ 220-225 (“Count 22 – Civil Battery by Artis Williams”); id. ¶¶ 231-

236 (“Count 24 – Civil Battery by Randy Cashio”); id. ¶¶ 241-246

(“Count 26 – Civil Battery by Kerry Harrison”).

15 See id. ¶¶ 32-35; R. Doc. 1 ¶ 20.

16 R. Doc. 1 ¶¶ 20-37.

17 R. Doc. 19.

18 R. Doc. 19-1 at 9-18.

subject-matter jurisdiction.19 Defendants Evonik, Shell, and Williams

opposed the motion to remand, and argued that the employee defendants

were improperly joined, and should be dismissed.20

On October 19, 2021, the Court denied the motion to remand, and

dismissed plaintiffs’ claims against the employee defendants.21

On November 5, 2021, plaintiffs filed a motion for reconsideration of

the Court’s denial of the motion to remand.22 They contend that the Court’s

Order and Reasons denying remand contained multiple legal errors, and the

motion should therefore be reconsidered.23 Defendants Evonik and Shell

oppose the motion.24

The Court considers the motion below.

II. LEGAL STANDARD

The Fifth Circuit has consistently recognized that parties may

challenge a court’s order under Rules 54(b), 59(e), or 60(b). Reyes v. Julia

19 Id. at 25. Plaintiffs also argued that this Court did not have federal-

officer jurisdiction, id. at 18-25, but the Court did not address that

contention in ruling on the motion to remand, and it is not at issue on

the present motion for reconsideration.

20 R. Doc. 20.

21 R. Doc. 28.

22 R. Doc. 32.

23 R. Doc. 32-1.

24 R. Docs. 39 & 40.

Place Condo. Homeowners Ass’n, Inc., No. 12-2043, 2016 WL 4272943, at

*2 (E.D. La. Aug. 15, 2016) (collecting cases). “Rules 59 and 60, however,

apply only to final judgments.” Id. (citing S. Snow Mfg. Co., Inc. v.

Snowizard Holdings, Inc., 921 F. Supp. 2d 548, 563-64 (E.D. La. 2013)). If

a party seeks reconsideration of an order that adjudicates fewer than all the

claims among all the parties, then Rule 54(b) controls.

Here, plaintiffs seek reconsideration of an interlocutory order that

denied remand, and dismissed some, but not all, of the defendants from this

case. Accordingly, Rule 54(b) is the appropriate standard under which to

evaluate the motion. See Adams v. Columbia/HCA of New Orleans, Inc.,

No. 20-3030, 2021 WL 809372, at *1 (E.D. La. Mar. 3, 2021) (applying Rule

54(b) to plaintiff’s motion to reconsider the court’s order granting a Rule

12(b)(6) motion to dismiss that dismissed some but not all of plaintiff’s

claims); Butler v. Denka Performance Elastomer LLC, No. 18-6685, 2019

WL 697164, at *1 (E.D. La. Feb. 20, 2019) (applying Rule 54(b) to a motion

for reconsideration of the denial of plaintiff’s motion to remand); Hill v.

Travelers Indem. Co., No. 11-4146, 2012 WL 12895265, at *1 (S.D. Tex. Sept.

5, 2012) (same).

Rule 54(b) provides that an order that adjudicates fewer than all of the

claims among all of the parties “may be revised at any time” before the entry

of a final judgment. Fed. R. Civ. P. 54(b). As Rule 54 recognizes, a district

court “possesses the inherent procedural power to reconsider, rescind, or

modify an interlocutory order for cause seen by it to be sufficient.” Melancon

v. Texaco, 659 F.2d 551, 553 (5th Cir. 1981). Under Rule 54(b), the court “is

free to reconsider and reverse its decision for any reason it deems sufficient,

even in the absence of new evidence or an intervening change in or

clarification of the substantive law.” Austin v. Kroger Tex., L.P., 864 F.3d

326, 336 (5th Cir. 2017). Although reconsideration under Rule 54(b) is

within the trial court’s broad discretion, reconsideration “is not provided

indiscriminately whenever some party may wish it,” as judges “must protect

themselves and the other parties against the delays and burdens that could

be imposed by yielding to simple disappointment or a deliberate desire to

inflict delay and burden.” See 18B Wright & Miller, Fed. Prac. & Proc.

§ 4478.1 (3d ed. 2021); Calpetco 1981 v. Marshall Expl., Inc., 989 F.2d 1408,

1414-15 (5th Cir. 1993).

Reconsideration of an interlocutory order under Rule 54(b) is less

stringent than reconsideration of judgments under Rule 59(e). Austin, 864

F.3d at 336. But “[a]lthough a less exacting standard applies, courts look to

similar considerations as those it considers when evaluating Rule 59(e)

motions.” Edwards v. Take Fo’ Records, Inc., No. 19-12130, 2020 WL

3832606, at *11 & n.12 (E.D. La. July 8, 2020); see also Pierce v. Kellogg

Brown & Root, Inc., No. 15-6585, 2017 WL 2082947, at *1 (E.D. La. May 15,

2017). A motion to reconsider is “not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered or raised

before the entry of [the order].” Templet v. HydroChem Inc., 367 F.3d 473,

478-79 (5th Cir. 2004).

III. DISCUSSION

Plaintiffs argue that the Court should reconsider its October 19, 2021

Order and Reasons denying remand and dismissing the employee

defendants because the Court: (i) failed to recognize that, under Louisiana

law, the employee defendants “may” have a personal duty to these plaintiffs,

thereby supporting plaintiffs’ dismissed negligence claims;25 (ii) misapplied

the improper-joinder framework of Smallwood v. Illinois Central Railroad

Co., 385 F.3d 568 (5th Cir. 2004);26 and (iii) erroneously dismissed

plaintiffs’ civil-battery claims against the employee defendants.27 The Court

addresses each of plaintiffs’ contentions in turn. In so doing, the Court

25 R. Doc. 32-1 at 2-4.

26 Id. at 8-15.

27 Id. at 5-8.

assumes the parties’ familiarity with its October 19, 2021 Order and

Reasons.28

A. Personal Duty

First, the Court rejects plaintiffs’ renewed attempt to argue that the

employee defendants owed a personal duty to these plaintiffs for the

purposes of liability under Canter v. Koehring Co., 283 So. 3d 716 (La. 1973).

In its remand order, the Court gave no fewer than four distinct reasons why

plaintiffs were unable to show that such a duty was owed. Those reasons

were that: (1) Evonik and Shell did not, as required under Canter, delegate

relevant safety duties to the employee defendants by designating them as

ROs; (2) plaintiffs alleged no facts indicating that the employee defendants

had actual knowledge of the cited health risks; (3) the plaintiffs and/or

decedents were non-employees of the facility who were injured off the

facility’s premises; and (4) the employee defendants had never met any of

the plaintiffs.29

In seeking reconsideration, plaintiffs focus on the latter two reasons.

That they are unable to marshal legal authority or any other argumentation

28 R. Doc. 28.

29 Id. at 11-20.

challenging the Court’s first two reasons is grounds enough to deny their

motion for reconsideration. Nonetheless, the Court proceeds to address, and

reject, the substance of plaintiffs’ arguments regarding the other two

reasons: that the employee defendants had no personal contact with the

plaintiffs, and that the plaintiffs or decedents were non-employees injured

off the premises.

To the extent that the Court’s opinion denying remand could be read

to hold that there can never be a duty in the absence of personal contact, or

if the injury occurs off the employer’s premises, the Court acknowledges that

there is authority to the contrary. But, for the following reasons, these

authorities do not undermine the Court’s conclusion in this case, that these

employee defendants did not owe a personal duty to these plaintiffs.

First, on the issue of personal contact, the Court’s Order cited Kemp v.

CTL Distribution, Inc., 440 F. App’x 240 (5th Cir. 2011), which in turn

quoted the Louisiana Supreme Court in Esco v. Smith, 468 So. 2d 1169 (La.

1985), for the proposition that, for personal liability to attach under Canter,

the employee defendant must have had some personal contact with and

responsibility toward the injured plaintiff. Kemp, 440 F. App’x at 246

(quoting Esco, 468 So. 2d at 1175). Plaintiffs contend that the Fifth Circuit

erred in Kemp when it cited Esco, because Esco involved an older body of law

regarding “executive officer” liability, under which injured employees could

sue their co-employed managers or supervisors for injuries sustained in the

course of their work.30 In 1976, Louisiana’s workers’ compensation law was

amended to foreclose these suits, except for intentional tort claims. See La.

Rev. Stat. § 23:1032. Plaintiffs argue that Esco’s “jurisprudential rule”

requiring personal contact and responsibility toward the injured claimant

was thus “mooted.”31

But plaintiffs cite no authority for this proposition. They baldly assert

that Esco was “superseded” as of 1976, and that the Fifth Circuit was wrong

to cite it for the “personal contact” factor in 2011. But even though executive-

officer suits by co-employees were abrogated in 1976, it does not follow that

the personal-contact consideration shares the same fate. Notwithstanding

the 1976 amendment, the Court’s Canter inquiry remains focused on

whether the employee defendants owed and breached a duty that was

personal to the injured plaintiffs. Whether those people ever met is relevant

to that analysis. Consistent with this notion, Kemp and other Canter cases

illustrate that the nature of the contact, if any, between the employee

defendants and the plaintiff(s) is a factor that may be taken into account in

30 R. Doc. 41-1 at 3.

31 Id.

the duty analysis. See, e.g., Kemp, 440 F. App’x at 246 (finding no Canter

liability despite that the employee defendant had “contact with [the

decedent] on a daily basis”); Sam v. Genesis Behav. Hosp., Inc., 255 So. 3d

42, 50 (La. App. 3 Cir. 2018) (“[E]ven if [the employee defendant] handled

the clinical aspects of the facility and had some personal contact with the

clients, Plaintiff offered no evidence to support her contention that [the

employee defendant] assumed a duty to protect [those] clients from assaults

from other clients.” (emphasis added)).

In its remand order, the Court relied on the absence of contact between

the employee defendants and the plaintiffs to support a finding that plaintiffs

were unable to show that the employees owed them a personal duty. That

reasoning is not undermined by the 1976 amendment to Louisiana’s workers’

compensation law. The Court’s citation to Kemp and Esco does not warrant

reconsideration of the remand order.

Second, as to the undisputed fact that these plaintiffs are non-

employees injured off the employer’s premises, the Court finds no reason to

reconsider its remand order. In their motion for reconsideration, plaintiffs

cite four cases that they contend undermine the Court’s finding that an off-

premises injury weighs against a finding of personal duty. As an initial

matter, in each of plaintiffs’ cited cases, the respective court merely granted

remand, and/or declined to dismiss certain claims, because plaintiffs in

those cases had shown a possibility of recovery under Canter, based on the

specific facts alleged. See Ford v. Elsbury, 32 F.3d 931 (5th Cir. 1994);

Garrett v. AEP River Operations, LLC, No. 15-5562, 2016 WL 945056 (E.D.

La. Mar. 14, 2016); Davis v. Omega Refining, LLC, No. 15-518, 2015 WL

3650832 (E.D. La. June 11, 2015); Turner v. Murphy Oil USA, Inc., No. 05-

45206, 2007 WL 4233676 (E.D. La. Nov. 28, 2007). But finding that certain

facts, if proven, might establish a personal duty, is not the same as finding

that a personal duty was owed.

Furthermore, even construing these cases as favorably as possible to

plaintiffs, the facts in each case—two of which were already discussed in the

Court’s remand order—are crucially different from the facts presented here.

For instance, in Davis, plaintiffs alleged that the defendants, including a

plant manager sued individually, “failed to prevent frequent, foreseeable,

and preventable breakdowns” at the facility, and, “along with the improper

functioning of refinery equipment, violated [their] hourly permit emission

limits for” multiple chemicals. 2015 WL 3650832, at *1. Plaintiffs further

alleged that the facility “concealed and misrepresented information” to

LDEQ; “neglected to disclose a new un-permitted point-source altogether—

inevitably resulting in the direct emissions of harmful pollutants without any

measure of protection for the surrounding community;” and caused certain

unpermitted discharges that went unreported to the proper authorities. Id.

In denying the plant manager’s motion to dismiss, the court found that more

discovery was warranted as to the potential liability of the manager, who was

an RO, and who testified that she was a “liaison for the plant with [LDEQ].”

Id. at *4. There was thus a clear nexus between plaintiffs’ alleged violations

and the substance of the plant manager’s role. Here, there are no allegations

that the employee defendants made misrepresentations or omissions in their

submissions to LDEQ, nor that they failed to report any unauthorized

discharges from the facility. The significant differences between the

allegations here and those in Davis make Davis unpersuasive.

In plaintiffs’ other three cases, evidence of the employee defendants’

actual, personal knowledge of the risks favored a finding that the plaintiffs

might be able to establish that a personal duty was owed. Specifically, Ford,

Garrett, and Turner all involved factually substantial allegations that the

employee defendants had personal knowledge of the relevant hazards, and

had disregarded the risk. In Ford, a case involving an explosion caused by a

rupture of the plant’s urea reactor, employees had testified that they had

complained of a leaky reactor and an unsafe work area, that management

had not acted, and that the plant-manager defendant had said, “[s]ometimes

you have to overlook safety to get the job done.” 32 F.3d at 939. Similarly,

in Garrett, plaintiffs allegedly injured by nearby sandblasting operations had

lodged complaints about the harmful practice with the employee defendant,

and the employee did not remedy the situation. 2016 WL 945056, at *4. And

in Turner, an oil-spill case involving allegations that the employee defendant

did not follow the refinery’s protocol for flood risk, the employee defendant

testified that he was aware of the relevant flood protocol, that he understood

the rationale behind the protocol, that he knew the risks posed by possible

flooding at the refinery, and that, before the relevant incident, he was “aware

of the potential for flooding.” 2007 WL 4233676, at *3-4. Facts like these,

indicating that an employee defendant had personal knowledge of the hazard

that ultimately caused the plaintiffs’ injuries, are significant for the purposes

of Canter liability. As the Fifth Circuit has explained, “[a] supervisor’s

knowledge of the dangers present ‘could give rise to the personal duty

contemplated in Canter.’” Ford, 32 F.3d at 936 (quoting Hayden v. Phillips

Petroleum Co., 788 F. Supp. 285, 287 (E.D. La. 1992)). As discussed in the

Court’s remand order, plaintiffs here have alleged no facts of this kind. What

these cases stand for, at most, is that an off-premises injury does not alone

preclude liability if other factors favor the existence of a personal duty. For

these reasons, the cases that plaintiffs cite do not warrant reconsideration of

the Court’s findings that it was proper to consider in its duty analysis that

plaintiffs’ injuries occurred off-premises, or that the off-premises location of

plaintiffs’ injuries weighs against a finding of personal duty.

And for these same reasons, the Court rejects plaintiffs’ contention that

Garrett illustrates that these plaintiffs have sufficiently alleged that the

employee defendants had actual knowledge of the relevant danger.32 Again,

the employee defendant in Garrett had received complaints about the

allegedly harmful practice. 2016 WL 945056, at *4. Far from lending

support to plaintiffs’ position in this case, Garrett exemplifies what is

missing—among other issues—in this case: factual allegations indicating that

the employee defendants had actual knowledge of the alleged risk.

In sum, the Court’s remand order, fairly read, indicates that its

personal-duty analysis considered the entire factual context of plaintiffs’

allegations, taking into account the absence of personal contact between the

alleged tortfeasors and the plaintiffs or decedents, that the alleged injuries

occurred away from the premises where the defendants were employed, and

the lack of any non-conclusory, factual allegations indicating that these

defendants had personal knowledge that EtO emissions within permissible

limits presented a real risk of causing these plaintiffs or decedents to develop

32 See R. Doc. 32-1 at 13-14.

cancer. Whether or not any of these factors that the Court considered were

alone sufficient to negate the presence of a duty, these factors together

certainly demonstrate that plaintiffs had not adequately alleged a personal

duty, as required for Canter liability.

Because plaintiffs’ Canter arguments fail, and because the Court’s

other reasoning on the duty question remains unchallenged, the Court denies

plaintiffs’ request to reconsider its finding that the employee defendants did

not owe a personal duty to plaintiffs for the purposes of Canter liability.

B. Improper Joinder

Second, the Court rejects plaintiffs’ arguments regarding the Court’s

improper-joinder analysis. Plaintiffs argue that the Court erred by

(i) piercing the pleadings to consider the employee defendants’ declarations,

(ii) failing to consider certain “unchallenged factual allegations” in the

complaint, (iii) failing to draw “reasonable inferences from the facts alleged”

in the complaint, and (iv) “appear[ing]” not to have considered the sworn

permit applications that plaintiffs attached to their reply memorandum.33

These arguments lack merit. The Court properly considered the

employee defendants’ sworn declarations, attesting to certain discrete facts

33 Id. at 8.

that would preclude plaintiffs’ recovery, including, for instance, that the

employee defendants’ “duty associated with being a ‘Responsible Official’ . . .

was limited to assuring (and certifying) that [the facility]’s regulatory

submissions were true, accurate, and complete.’”34 These statements,

coupled with the regulatory definition of an RO, and the insufficiency of

plaintiffs’ factual allegations regarding the employee defendants’ RO status

and job responsibilities, persuaded the Court that Evonik and Shell did not,

for Canter purposes, delegate any relevant duty to the employee defendants.

The Court’s other citations to the declarations served a similar purpose: to

further illustrate, alongside plaintiffs’ factually vacant allegations in the

complaint, that their Canter theory was meritless. And in any case, the Court

already considered plaintiffs’ objections to these declarations in their

original briefing on the motion to remand. The Court declines to rehear

those arguments on the present motion.

The Court also rejects plaintiffs’ contentions that the Court failed to

consider, or to draw reasonable inferences from, the factual allegations in the

complaint. The Court cited extensively to plaintiffs’ complaint, and found it

factually wanting. And the “facts” that plaintiffs re-urge at this stage were

either considered and found inadequate to state a claim, or are indeed legal

34 R. Doc. 28 at 11-12.

conclusions couched as factual allegations. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

Finally, plaintiffs protest that the Court did not cite in its remand order

the permit applications that plaintiffs attached to their reply brief. But the

Court found these exhibits to be useless for the remand motion. The

documents merely indicate that the employee defendants submitted permit

applications, and that they certified that they met the regulatory criteria to

be ROs.35 But there is no dispute that the employee defendants were ROs,

that they submitted permit applications, and that they purportedly satisfied

the regulatory criteria. The documents therefore do nothing to salvage

plaintiffs’ RO theory. And that the Court did not cite them in its order

denying remand does not warrant reconsideration.

C. Battery Claims

Third, the Court rejects plaintiffs’ arguments regarding the dismissal

of their battery claims. In opposing remand, defendant Evonik explicitly

argued that plaintiffs had not stated a claim for civil battery, with citations to

case authority.36 Of course, Evonik was prudent to do so—its removal to

35 See, e.g., R. Doc. 25-2 at 6 (Certification of Compliance with Applicable

Requirements, signed by Artis Williams) (Oct. 20, 2011).

36 R. Doc. 20 at 15 n.32.

federal court was premised on the improper joinder of the employee

defendants. If plaintiffs had shown a possibility of recovery against any of

the nondiverse employees, under any theory of liability, then joinder was not

improper, and the case would have had to be remanded for lack of diversity.

Accordingly, defendants sought dismissal of plaintiffs’ civil-battery claims.

Plaintiffs, in reply, did not dedicate one word to their expressly challenged

battery claims. This 54(b) motion is not the proper vehicle for these belated

arguments. Cf. Templet, 367 F.3d at 478-79 (noting that a motion to

reconsider is “not the proper vehicle for rehashing evidence, legal theories,

or arguments that could have been offered or raised before the entry of [the

order]”).

Regardless, plaintiffs have not shown that the Court’s conclusion was

erroneous. Plaintiffs challenge the Court’s statement that it was unaware of

any Louisiana case law recognizing the viability of a claim of battery by

omission. In support of their argument, plaintiffs cite three cases: Swope v.

Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002), Mulkey v. Century

Indemnity Co., No. 2016-1119, 2017 WL 1378234 (La. App. 1 Cir. 2017), and

Nase v. Teco Energy, 347 F. Supp. 2d 313 (E.D. La. 2004). The Court

welcomes plaintiffs’ belated research, which would have been useful had it

been supplied in the original briefing. The Court further acknowledges that

two of these cases, Swope and Mulkey, could be read to support the view that

a failure to act, under circumstances where the non-actor knows that

imminent and direct harm will result from his inaction, could amount to

battery under Louisiana law. But this does not rectify plaintiffs’ theory as

alleged here. As explained in the Court’s remand order, plaintiffs’ complaint

merely recites the elements of civil battery in a conclusory fashion, with no

discernible factual content.

At any rate, the cases that plaintiffs cite do not change this Court’s

conclusion that plaintiffs have not stated a battery claim. In Swope, 281 F.3d

185, the Fifth Circuit reversed summary judgment as to plaintiff’s battery

claims because the record indicated that plaintiff’s employer, Columbian,

continually required [plaintiff] to breathe ozone without

protective respiratory equipment throughout his nine

years and some months of employment. Columbian in this

manner repeatedly caused him and other employees to

breathe levels of ozone high enough to cause them

respiratory discomfort, “choke ups,” nausea, headaches,

and chest pains. On at least three occasions, employees

other than Mr. Swope had passed out from breathing too

much ozone and had been taken to hospital emergency

rooms or given oxygen on the plant premises. Many other

times, employees had to flee the immediate vicinity in

which they were working because the ozone level had

become intolerable. In fact, from the deposition testimony,

it appears that the only safety instruction Columbian ever

gave to Mr. Swope and his fellow employees for dealing

with such levels of ozone was to vacate the area of excessive

concentration of ozone, get some fresh air, and return to

work when feeling better.

Id. at 194. The Fifth Circuit held that this evidence could lead a reasonable

jury to find that defendant “knew to a substantial certainty that it was

continually exposing [plaintiff] to high levels of ozone without affording him

the protection of any respiratory safeguard,” and that “his direct inhalations

of such large quantities of ozone would do gradual, but definite and repeated,

bodily harm to him.” Id. at 201. Defendant’s inaction was akin to

recklessness or deliberate indifference. Plaintiffs here have alleged no facts

that even remotely resemble these facts supporting a battery claim in Swope.

Similarly, in Mulkey, 2017 WL 1378234, the Louisiana First Circuit

Court of Appeal reversed the trial court’s dismissal of plaintiffs’ battery

claims because plaintiffs had “elaborate[d] in articulated detail individuals

at Exxon who were aware of problems with benzene exposure and the dates

of their knowledge.” Id. at *3. As explained at length in the Court’s remand

order, plaintiffs here have asserted no specific facts to this effect.

Finally, this Court’s opinion in Nase, 347 F. Supp. 2d 313, is

inapplicable. There, the sole basis of defendants’ assertion that plaintiff had

not stated a claim for an intentional tort was that plaintiff said at his

deposition that he did not know whether the individual defendant “intended

to hurt” him, and that plaintiff did not experience personal apprehension

that the individual defendant was trying to hurt him. Id. at 321-22. The

Court noted that these statements are not fatal to a battery claim, because an

act can be “intentional” so long as the person who acts “knows that the result

is substantially certain to follow from his conduct.” Id. at 322. The basis of

defendants’ argument was therefore legally meritless. Here, the Court

explained and considered the elements of battery under Louisiana law, and

found that plaintiffs had not stated a claim.

None of plaintiffs’ cited cases warrant reconsideration of the Court’s

remand order. The Court denies reconsideration as to the dismissal of

plaintiffs’ civil-battery claims.

IV. CONCLUSION

For the foregoing reasons, plaintiffs’ motion to reconsider is DENIED.

New Orleans, Louisiana, this _15th__ day of March, 2022.

bern k Varner

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

22