Flettrich v. Chevron Oronite Company L.L.C.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DAVID FLETTRICH CIVIL ACTION

VERSUS NO. 21-1986

CHEVRON ORONITE COMPANY, SECTION “B”(2)

L.L.C., ET AL

ORDER AND REASONS

Before the Court are defendants’ notice of removal (Rec. Doc.

1), plaintiff’s motion to remand (Rec. Doc. 17), defendants’

memorandum in opposition (Rec. Doc. 24), and related contentions

about an alleged improper joinder of a nondiverse defendant. For

the following reasons,

IT IS ORDERED that defendant Jerry Ockmand is dismissed from

this litigation because he was improperly joined. Ockmand’s

previously filed motions to dismiss (Rec. Docs. 14 and 27) are

Dismissed as Moot; and

IT IS FURTHER ORDERED that plaintiff’s opposed motion to

remand (Rec. Doc. 17) is DENIED.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff David Flettrich (“Plaintiff” or “Flettrich”) was

employed at Chevron Oronite – Oak Point (“Chevron” or “Defendant”),

located in Plaquemines Parish, Louisiana from November 2007 until

October 15, 2020. Rec. Doc. 1-3 (Petition for Damages). On the

latter date, Chevron allegedly wrongfully terminated plaintiff

based on false accusations made by his co-worker, Jerry Ockmand

(“Ockmand”). Id.

In March or April 2020, plaintiff and Ockmand’s supervisor,

Fallon Martin, informed their department that Chevron’s

maintenance department was being reduced from eight (8) team

leaders to six (6). Id. During that same time, Chevron’s vice-

president of Human Resources, Rhonda Morris, informed Chevron

employees that the company was actively working to diversify its

workforce. Id. According to plaintiff, all the employees took

that message to mean that “Chevron was in the process of reducing

the number of white team leaders like plaintiff and Ockamnd and

replacing them with African Americans and other minorities.” Id.

Sometime after being notified of the departmental cutbacks,

Ockmand allegedly filed a false complaint against plaintiff,

stating Flettrich used a racial slur – the N-word – while at work.

Rec. Doc. 1-3. Ockmand also allegedly forged plaintiff’s signature

on the complaint. Id. Plaintiff asserts Ockmand filed the false

complaint because he realized his job was in jeopardy with the

pending staff reduction and wanted to secure his position. Id.

Approximately four months after Ockmand allegedly filed the

fraudulent complaint, plaintiff received a phone call from

Chevron’s Human Resources Department advising him that they would

be looking into the complaint’s allegations. Id.

On October 15, 2020, plaintiff was informed that his

employment with Chevron was terminated, and he was escorted off

the property. Id. On that date, Chevron gave a document entitled

“Record of Discussion,” which listed Chevron’s reason for

terminating his employment. Rec. Doc. 1-3. The document stated,

“the Company substantiated that on more than one occasion and

according to more than one witness [plaintiff] used a racial slur

(the N-word) to describe a group of contract workers.” Id.

Chevron’s Human Resources department refused to disclose to

plaintiff the names of the individuals who accused him of using

racial slurs. Id. After his termination, Flettrich claims to have

suffered severe economic and emotional harm that led him to seek

professional medical care from psychiatrist Phuong Nguyen, MD. Id.

Plaintiff filed a charge with the Equal Employment

Opportunity Commission (“EEOC”), alleging employment

discrimination, and received his right to sue letter from the EEOC

on June 15, 2021. Rec. Doc. 1-3. On or about October 5, 2021,

plaintiff filed a petition for damages in the 25th Judicial

District Court for the Parish of Plaquemines, alleging several

tort claims and fraud against both Chevron and Ockmand, as well as

an additional employment discrimination claim against Chevron. Id.

On October 28, 2021, defendants removed the case to federal

court, asserting federal question jurisdiction and diversity

jurisdiction. Rec. Doc. 1. Defendants asserted the Court had

subject-matter jurisdiction pursuant to § 1331 because plaintiff’s

well-pleaded complaint included a federal cause of action for race

discrimination. However, plaintiff did not specifically allege a

federal cause of action, only a state cause of action under the

Louisiana Employment Discrimination Statute (“LEDL”). Id.

Defendants further argued the Court had jurisdiction pursuant to

§ 1332 because the amount in controversy exceeds the jurisdictional

amount, and excluding defendant Ockmand, there is complete

diversity between Chevron and Flettrich. Id. Defendants argue that

Ockmand’s status as a Louisiana citizen must be ignored given that

he was fraudulently joined to defeat diversity. Id. According to

defendants, there is no reasonable basis to predict that plaintiff

might recover against Ockmand. Id. Therefore, Ockmand must be

dismissed, and the Court maintain diversity jurisdiction.

On November 24, 2021, plaintiff filed a motion to remand this

litigation to state court, arguing this Court lacks subject matter

jurisdiction. Rec. Doc. 17. Defendants filed an opposition

memorandum on December 14, 2021. Rec. Doc. 24.

II. LAW AND ANALYSIS

A. LEGAL STANDARD

Federal courts are courts of limited jurisdiction. Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.

2002). A defendant may remove a state court action to federal court

if the federal court has original jurisdiction over the action. 28

U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S.

28, 34 (2002). The removing party bears the burden of demonstrating

the existence of federal jurisdiction. See Allen v. R&H Oil & Gas

Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In assessing whether

removal was appropriate, the Court is guided by the principle,

that “removal statute[s] should be strictly construed in favor of

remand.” Manguno, 276 F.3d at 723. Furthermore, remand is

appropriate if the Court lacks subject matter jurisdiction, and

“doubts regarding whether removal jurisdiction is proper should be

resolved against federal jurisdiction.” Acuna v. Brown & Root Inc.,

200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp.,

855 F.2d 1160, 1164 (5th Cir. 1988)).

Defendants raised both Diversity jurisdiction and Federal

Question jurisdiction as the basis for removal.

B. LACK OF SUBJECT MATTER JURISDICTION

1. Federal Question

Under 28 U.S.C. § 1331, a federal court has original

jurisdiction over cases “arising under the Constitution, laws, or

treaties of the United States.” To determine whether a claim arises

under federal law, the court examines the “well pleaded”

allegations of the complaint and “ignore[s] potential defenses.”

Beneficial Nat'l. Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058,

156 L.Ed.2d 1 (2003). Pursuant to this rule, “federal jurisdiction

exists only when a federal question is presented on the face of

the plaintiff's properly pleaded complaint.” Yancy v. Standard

Mortg. Corp., No. CV 16-16276, 2017 WL 1837806, *2 (E.D. La. May

5, 2017); Terrebonne Homecare, Inc. v. SMA Health Plan, Inc., 271

F.3d 186, 188 (5th Cir.2001) (quoting Caterpillar Inc. v. Williams,

482 U.S. 386, 392 (1987)). A federal question is present “when the

plaintiff's statement of his own cause of action shows that it is

based upon [federal law].” Yancy, 2017 WL 1837806 at *2.

Furthermore, when a plaintiff has a choice between federal and

state law claims, he “may proceed in state court on the exclusive

basis of state law, thus defeating the defendant's opportunity to

remove.” Manzella v. United Parcel Serv. Inc., No. CIV.A. 02-1800,

2002 WL 31040170 (E.D. La. Sept. 10, 2002); Medina v. Ramsey Steel

Co., 238 F.3d 674, 680 (5th Cir.2001). Because a plaintiff is “the

master of [his] complaint,” the “determination that a cause of

action presents a federal question depends upon the allegations of

the plaintiff's well-pleaded complaint.” Medina v. Ramsey Steel

Co., Inc., 238 F.3d 674, 680 (5th Cir. 2001).

In Manzella v. United Parcel Serv. Inc., this Court held that

the plaintiff’s petition failed to allege a federal cause of action

under Title VII; thereby, remanding the case to state court. No.

CIV.A. 02-1800, 2002 WL 31040170 (E.D. La. Sept. 10, 2002). Like

the case at bar, plaintiff’s petition did not have an express

reference to Title VII. Id. at *3. Nevertheless, the defendants

argued that the petition stated a claim under Title VII because 1)

the petition asked for punitive damages, which are available under

Title VII but not under the Louisiana Employment Discrimination

Law, and 2) the plaintiff filed a Charge with the EEOC and received

a Right to Sue letter. Id. After review, the Court held that those

facts were “insufficient to infer a Title VII cause of action from

plaintiffs’ petition.” Id. The Court then went on to explain that

those facts present ambiguities and don’t explicitly point to

plaintiff asserting federal claims. Id. The Court also noted that

the case law is “replete” with decisions granting remand even when

the complaints “contained more substantial references to Title VII

than in the instant case.” Manzella, 2002 WL 31040170 at *3.

By contrast in Hairston v. Sun Belt Conf. Inc., this Court

ruled that plaintiff Patrick Hairston’s petition properly stated

a federal cause of action under Title VII. No. CV 21-2088, 2021 WL

5937165 (E.D. La. Dec. 16, 2021). Distinguishing this case from

Manzella, the Court reasoned that the facts of this case were

different from Manzella because here the plaintiff didn’t merely

state that he filed an EEOC charge and received his right to sue

letter. Id. at *5-6. Instead, plaintiff went a step further and

incorporated his EEOC charge and his right to sue letter into his

petition by attaching both documents as exhibits. Id. “Because

Plaintiff attached the EEOC Charge asserting federal claims to the

Complaint, it became a part of his pleading for all purposes.” Id.

at *6. Hairston, 2021 WL 5937165 at *6. Accordingly, the Court

found that removal based on federal question jurisdiction was

proper. Id.

Likewise, in Davoodi v. Austin Independent School Dist., the

Fifth Circuit held that removal was proper under similar facts as

Hairston. 755 F.3d 307 (5th Cir. 2014). Davoodi filed a

discrimination suit against his employer in Texas state court. Id.

at 308. The complaint not only referenced that he filed an EEOC

charge, but he also “attached and fully incorporated” that charge

to the complaint. Id. Davoodi referenced the EEOC charge in the

facts section of the complaint, referred to it in describing the

retaliation claim, and attached the EEOC charge as an exhibit. Id.

Because the EEOC charge alleged discrimination under Title VII,

that claim became incorporated into his complaint for all purposes.

Id. at 310; see also Fed. R. Civ. Proc. 10(c) (“A copy of a written

instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”)

In the instant case, the petition contains no express

references to Title VII or any other specific federal laws. Like

Manzella, defendants here cite two facts to support their argument

that Flettrich has stated a claim under federal law:(1) the

petition's language stating plaintiff is asserting “any other

causes of action that are applicable to the facts described

herein,” and, (2) Flettrich’s filing of a charge with the Equal

Employment Opportunity Commission (“EEOC”) and his receipt of a

Right to Sue letter. First and foremost, the Court finds the above

cited language to be ambiguous and insufficient to infer a federal

cause of action from plaintiffs' petition.

Plaintiff purposefully pled only state law causes of action.

The addition of the statement “any other causes of action that are

applicable to the facts described herein,” could just as easily be

read to include other state law claims rather than federal.

Defendants argue that the addition of this vague statement opened

the door to federal claims. Although this statement may be

construed to allow the addition of federal claims, on its own the

statement is ambiguous, and therefore must be construed against

removal. Manguno, 276 F.3d at 723.

Second, unlike the plaintiffs in Davoodi and Hairston,

Flettrich did not attach and fully incorporate the EEOC charge

into the complaint. While plaintiff referenced the filing of an

EEOC charge and receipt of a Right to Sue letter, he did not attach

those documents as exhibits or assert a federal claim. See Coleman

Crump v. Baton Rouge City Constables Off., No. CV 17-257-JJB-EWD,

2017 WL 4678487 (M.D. La. Sept. 22, 2017), report and

recommendation adopted sub nom. Crump v. Baton Rouge City

Constables Off., No. CV 17-257-JJB-EWD, 2017 WL 4678223 (M.D. La.

Oct. 17, 2017) (rejecting an argument that an EEOC charge raised

a federal question when plaintiff did not attach or otherwise

attempt to incorporate his charge into the pleadings.). At most,

the mere reference to the EEOC proceedings could arguably be proof

in support of the specifically pled state claims. Without more,

such an attachment and incorporation, the fact that plaintiff

merely filed an EEOC charge is not enough for the Court to infer

plaintiff raised federal causes of action in this case. As a

result, removal based on federal question jurisdiction was not

proper.

2. Diversity Jurisdiction

For diversity jurisdiction to exist, all parties must be

completely diverse. McLaughlin v. Miss. Power Co., 376 F.3d 344,

353 (5th Cir. 2004). This means that “all persons on one side of

the controversy be citizens of different states than all persons

on the other side.” Id. (citing Harrison v. Prather, 404 F.2d 267,

272 (5th Cir. 1968)). Importantly, federal courts “must presume

that a suit lies outside [its] limited jurisdiction.” Howery v.

Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Due to this

presumption against federal jurisdiction, the removal statute is

to be “strictly construed, and any doubt about the propriety of

removal must be resolved in favor of remand.” Gasch v. Hartford

Acc. & Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007).

Additionally, the Court must “resolve any contested issues of

material fact, and any ambiguity or uncertainty in the controlling

state law” in plaintiff's favor. Morgan v. Chubb Lloyds Ins. Co.

of Tex., No. 4:21-CV-00100-P, 2021 WL 2102065, at *1 (N.D. Tex.

May 25, 2021) (Pittman, J.) (quoting Griggs v. State Farm Lloyds,

181 F.3d 694, 699 (5th Cir. 1999)).

The removal was also based on diversity jurisdiction. It is

undisputed that Chevron and plaintiff are diverse. However,

Chevron argues the nondiverse defendant Ockmand was improperly

joined. Rec. Doc. 24. According to defendants, there is no

reasonable basis for recovery against Ockmand under any theory.

Id. Plaintiff argues Ockmand was not fraudulently joined because

a Louisiana state court might impose liability on him under the

facts of this case. Rec. Doc. 17. Additionally, plaintiff contends

that he has properly pled various state causes of action against

Ockmand, including claims for defamation, intentional infliction

of emotional distress, negligent infliction of emotional distress,

and fraud.

Ockmand was Improperly Joined and Diversity Jurisdiction Exists

In the seminal case Cavallini v. State Farm Mut. Auto Ins.

Co., the Fifth Circuit stated, in pertinent part,

The burden of proving a fraudulent joinder is a heavy

one. The removing party must prove that there is

absolutely no possibility that the plaintiff will be

able to establish a cause of action against the in-state

defendant in state court, or that there has been outright

fraud in the plaintiff's pleading of jurisdictional

facts. Because no one disputes that the Cavallinis and

Cunningham are Texas residents, our sole concern is

whether there is a possibility that Cavallinis ha[ve]

set forth a valid cause of action against Cunningham. We

evaluate all of the factual allegations in the

plaintiff's state court pleadings in the light most

favorable to the plaintiff, resolving all contested

issues of substantive fact in favor of the plaintiff,

and then examine relevant state law and resolve all

uncertainties in favor of the non-removing party.

44 F.3d 256, 259 (5th Cir.1995) (quotations omitted); accord Griggs

v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.1999). This

Circuit has also endorsed the use of summary judgment type

procedures for reviewing fraudulent joinder claims. See Griggs,

181 F.3d at 700 (“Thus, while we have frequently cautioned the

district courts against pre-trying a case to determine removal

jurisdiction, a federal court may consider summary judgment-type

evidence such as affidavits and deposition testimony when

reviewing a fraudulent joinder claim.”)

Having considered plaintiff’s petition, exhibit, and

affidavit in the light most favorable to him, the Court finds that

there is no possibility that Flettrich will be able to proceed

against Ockmand under asserted state theories of recovery.

Defamation

Under Louisiana law, “[f]our elements are necessary to

establish a claim for defamation: (1) a false and defamatory

statement concerning another; (2) an unprivileged publication to

a third party; (3) fault (negligence or greater) on the part of

the publisher; and (4) resulting injury.” Kennedy v. Sheriff of E.

Baton Rouge, 935 So. 2d 669, 674 (La. 2006). “In other words, a

plaintiff must prove that the defendant, with actual malice or

other fault, published a false statement with defamatory words

which caused plaintiff damages.” Fitzgerald v. Tucker, 737 So. 2d

706, 715-16 (La. 1999) (internal quotation omitted). Falsity,

malice (or fault), and injury may be presumed if “a plaintiff

proves publication of words that are defamatory per se,” although

this presumption is rebuttable. Kennedy, 935 So. 3d at 675.

In Russell v. Chevron U.S.A., Inc., the plaintiff Cathy

Russell sued her former employer, Chevron, alleging state law

claims for fraud, defamation, detrimental reliance, and

intentional infliction of emotional distress. No. CV 18-4157, 2018

WL 4816151 (E.D. La. Oct. 4, 2018). Subsequently, Chevron filed a

motion to dismiss all of plaintiff’s claims. Id. Concerning her

defamation claim. Plaintiff alleged that “employees of defendant

... made false, misleading, and defamatory statements to third

parties” and other employees about her. Id. at *4. These alleged

defamatory statements were that plaintiff “acted

unprofessionally,” “violated company policy,” “failed to perform

her job duties,” “committed a dishonest act,” “had a drinking

problem,” and “lost custody of her son.” Id. As a result of these

alleged defamatory statements, plaintiff claimed she sustained

significant damages including mental anguish and emotional

distress. Id.

After review, the Court ruled to dismiss plaintiff’s

defamation claim, finding that she failed to sufficiently allege

her claim. Russell, 2018 WL 4816151 at *4. In her complaint,

plaintiff stated that defendant's employees made the alleged

defamatory statements about her to other coworkers “in the course

and scope of their employment.” Id. Given this admission, the Court

noted that the claim had to be dismissed to the extent it is based

upon allegedly defamatory statements made by one employee of

defendant to another. Id. The Court also noted that this decision

is consistent with other Fifth Circuit and Louisiana court cases

finding statements made by employees to their coworkers in the

course and scope of their employment cannot form the basis of a

defamation claim because such statements are not considered

“publicized.” Id.

Here, Defendants assert that plaintiff’s defamation claim

must be dismissed because internal corporate communications are

not publications. Defendants argue that because plaintiff admitted

in his complaint that the alleged intra-corporate communication

was within the course and scope of Ockmand’s employment, his

alleged fraudulent communication to Chevron executives cannot be

the basis of plaintiff’s defamation claim. Upon review, the court

finds that defendants have satisfied their burden of proof on this

claim.

Plaintiff’s defamation claim against Ockmand fails because he

cannot satisfy all the required elements. Specifically, plaintiff

has failed to show that the alleged defamatory statement was

published to a third-party. Instead, plaintiff has only pled that

Ockmand made the alleged false statement to their employer,

Chevron. This is a fatal defect because, “[i]n Louisiana,

statements between employees, made within the course and scope of

their employment, are not statements communicated or publicized to

third persons for the purposes of a defamation claim.” Williams v.

United Parcel Serv., Inc., 757 F. App'x 342, 345 (5th Cir. 2018)

(citing Commercial Union Ins. Co. v. Melikyan, 424 So.2d 1114,

1115 (La. Ct. App. 1982)).

Furthermore, Flettrich does not dispute that Ockmand’s

alleged defamatory statement to Chevron was made within the course

and scope of his employment. Rather, plaintiff has stated just the

opposite in his motion to remand. Rec. Doc. 17 at p. 17 (“These

false statements which were made by Ockmand while he was in the

course and scope of his employment.”) Like the plaintiff in Russell

who could not properly make out her defamation claim, Flettrich

likewise cannot base his claim on the statements Ockmand made to

Chevron. Accordingly, plaintiff cannot succeed against Ockmand on

this claim.

Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional

distress (“IIED”), a plaintiff must allege that: (1) the

defendant's conduct was extreme and outrageous; (2) the emotional

distress suffered by the plaintiff was severe; and (3) the

defendant intended to inflict severe emotional distress, or knew

that such distress would be certain or substantially certain to

result from his conduct. Brackens v. Stericycle, Inc., 829 F. App'x

17, 21 (5th Cir. 2020); Martin v. Am. Midstream Partners, LP, 386

F. Supp. 3d 733 (E.D. La. 2019); White v. Monsanto Co., 585 So.2d

1205, 1209 (La. 1991). To satisfy the first element, the

defendant's conduct must “go beyond all possible bounds of decency,

and ... be regarded as atrocious and utterly intolerable in a

civilized community.” White, 585 So.2d at 1209. Such conduct “does

not extend to mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities. Id. Persons must

necessarily be expected to be hardened to a certain amount of rough

language, and to occasional acts that are definitely inconsiderate

and unkind.” Id.

Recognition of a cause of action in a workplace setting is

“usually limited to cases involving a pattern of deliberate,

repeated harassment over a period of time.” See id.; see also

Bustamento v. Tucker, 607 So.2d 532, 538 (La.1992) (explaining

that “this has been characterized as a sliding scale approach under

which even relatively ‘mild’ harassment may become tortious if

continued over a substantial period of time”). Moreover, cases

arising in the workplace are limited to situations where the

distress is “more than a reasonable person could be expected to

endure” and the offending conduct is “intended or calculated to

cause severe emotional distress.” See Nicholas v. Allstate Ins.

Co., 765 So.2d 1017, 1027 (La.2000).

Here, the Court finds that the allegations in this case,

considered in the light most favorable to the plaintiff, simply do

not rise to the high level of “extreme and outrageous” conduct,

over a sufficient period of time, to constitute a tort under

existing Louisiana law. Not only did plaintiff fail to allege a

pattern of deliberate, repeated harassment, but he also failed to

show that he suffered severe emotional distress. First, the conduct

plaintiff complains of did not last weeks, months, or years;

instead, plaintiff complains of a single incident. Compare, e.g.,

Bustamento, 607 So.2d at 534 (involving almost daily verbal and

sexual harassment, over two-year period); with Wright v. Otis Eng'g

Corp., 643 So.2d 484, 487 (La.App. 3d Cir.1994) (involving five

years of harassment). Moreover, while plaintiff characterizes the

offending conduct as a “fabricated defamatory per se statement”

Ockmand allegedly made to Chevron executives, the Louisiana Supreme

Court has expressly held that liability for intentional infliction

of emotional distress “does not extend to mere insults [or]

indignities” and that “persons must necessarily be expected to be

hardened to ... occasional acts that are definitely inconsiderate

and unkind.” See White, 585 So.2d at 1205.

The alleged conduct at issue if proven is offensive and should

be condemned as such. However, the Fifth Circuit has rejected

claims for intentional infliction of emotional distress for acts

that are more offensive than the case at bar. See Baker v. FedEx

Ground Package Sys. Inc., 278 F. App'x 322, 323–24 & n.1, 329 (5th

Cir. 2008) (affirming the dismissal of an intentional infliction

of emotional distress claim under Louisiana law where the plaintiff

alleged that her supervisor made racist remarks to her); Charles

v. JetBlue Airways Corp., No. 08-40, 2009 WL 273206, at *11–12

(E.D. La. Jan. 26, 2009) (reviewing analogous Fifth Circuit cases

and holding that “it is apparent that Plaintiff's allegations that

she was the subject of racial slurs from her fellow employees does

not amount to the level of ‘extreme and outrageous’ conduct that

can allow Plaintiff to recover for intentional infliction of

emotional distress”). Following this line of settled case law, it

is apparent that plaintiff's allegation that Ockmand made a

fraudulent report about plaintiff’s use of a racial slur does not

amount to the level of “extreme and outrageous” conduct that can

allow recovery for intentional infliction of emotional distress.

Next, plaintiff seeks recovery due to “mental anguish,

humiliation, and damage to reputation”. However, he failed to

elaborate on how his damages qualify as “severe emotional

distress.” Subsequently, the court granted plaintiff leave to

supplement his motion to remand with a certified medical record

written by Dr. Phuong Nguyen. The medical record indicates that

plaintiff suffered from “feelings of despair, anger, and guilt.”

Taking this account in the light most favorable to plaintiff,

plaintiff’s emotional distress is not shown to be severe. See

Gressett v. Sw. Airlines Co., 216 F. Supp. 3d 743 (E.D. La. 2016)

(“[r]ecovery on an IIED claim under Louisiana law requires a level

of distress beyond a reasonable person's endurance.) See also Pate

v. Pontchartrain Partners, LLC, No. 13–6366, 2014 WL 5810521, at

*4 (E.D. La. Nov. 7, 2014)(holding that humiliation and dismay

over employment termination did not meet severity requirement);

Deville v. Robinson, 132 So.3d 1277, 1281 (La. App. 3 Cir. 2/26/14)

(dismissing IIED claim when plaintiff suffered series of anxiety

attacks); Pate v. Pontchartrain Partners, LLC, No. CIV.A. 13-6366,

2014 WL 5810521, *4 (E.D. La. Nov. 7, 2014) (stating some symptoms

of severe emotional distress include “neuroses, psychoses, chronic

depression, phobia, and shock.”).

The medical report also stated that plaintiff referenced

previous thoughts of suicide, but he is reportedly “over that now.”

That level of distress could possibly satisfy the threshold to

qualify as severe. However, because plaintiff has not shown a

pattern of deliberate, repeated harassment over a period of time

or that Ockmand’s alleged act was extreme and outrageous,

plaintiff’s IIED claim still fails. Additionally, given the

alleged tortious conduct occurred in a workplace setting,

plaintiff’s claim for mental anguish would nevertheless not be

actionable under these facts. See White, 585 So.2d at 1210

(“conflict in a pressure-packed work environment, although

calculated to cause some degree of mental anguish, is not

ordinarily actionable.”); Johnson v. LaShip, LLC, No. CV 16-570,

2018 WL 2735486 (E.D. La. June 7, 2018) (same).

Even assuming arguendo that plaintiff had properly alleged an

IIED cause of action, the claim would still fail because Ockmand’s

alleged conduct was sufficiently employment related to fall under

the doctrine of vicarious liability. The principle of vicarious

liability or respondeat superior is codified in Louisiana Civil

Code article 2320. This article provides that an employer is liable

for the tortious acts of its employees that are performed “in the

exercise of the functions in which they are employed.” La. Civ.

Code Ann. art. 2320. Thus, the two issues for the Court to address

is whether: (1) plaintiff properly alleged tortious conduct

against the individual defendants; and (2) whether these alleged

actions were sufficiently employment-related that vicarious

liability should attach. See Olmeda v. Cameron Int'l Corp., 139 F.

Supp. 3d 816 (E.D. La. 2015)

The Louisiana Supreme Court has outlined the parameters of

the test for vicarious liability as follows:

While the course of employment test refers to time and

place, the scope of employment test examines the

employment-related risk of injury. The inquiry requires

the trier of fact to determine whether the employee's

tortious conduct was “so closely connected in time,

place and causation to his employment-duties as to be

regarded a risk of harm fairly attributable to the

employer's business, as compared with conduct motivated

by purely personal considerations entirely extraneous to

the employer's interests.”

Russell v. Noullet, 721 So.2d 868, 871 (La.1998) (quoting LeBrane

v. Lewis, 292 So.2d 216, 218 (La.1974)). In LeBrane, the Louisiana

Supreme Court identified four factors to be considered in

determining vicarious liability: (1) whether the tortious act was

primarily employment rooted; (2) whether the tortious act was

reasonably incidental to the performance of the employee's duties;

(3) whether the act occurred on the employer's premises; and (4)

whether it occurred during the hours of employment. LeBrane, 292

So.2d at 218; see also Olmeda v. Cameron Int'l Corp., 139 F. Supp.

3d 816 (E.D. La. 2015); Baumeister v. Plunkett, 673 So.2d 994, 996

(La.1996). It is not necessary that all four LeBrane factors be

met to find vicarious liability. See Bates v. Caruso, 881 So.2d

758, 762 (La.Ct.App.2004).

While the complaint does not mention when and where Ockmand’s

alleged statements were made, the Court can look to plaintiff’s

allegations for support that Ockmand’s alleged act was

sufficiently employment related. Specifically, the fact that

plaintiff admitted that Ockmand’s alleged act of providing a false

statement was done while in the course and scope of his employment

supports the conclusion that this claim would fall under vicarious

liability. Accordingly, the claim for intentional infliction of

emotional distress is not actionable against Ockmand under the

circumstances.

Negligent Infliction of Emotional Distress

The Louisiana Workers’ Compensation Act (“LWCA”) provides the

exclusive remedy for personal injuries caused by an employer's or

coworker's negligence when those injuries arise out of and in the

course of employment. La. R.S. 23:1031, 1032; Martin v. Am.

Midstream Partners, LP, 386 F. Supp. 3d 733 (E.D. La. 2019). As a

result, courts have consistently held that negligent infliction of

emotional distress claims against employers and their employees

are barred by the LWCA's exclusivity provision. See, e.g., Martin

v. Am. Midstream Partners, LP, 386 F. Supp. 3d 733, 742 (E.D. La.

2019); Patton v. Jacobs Eng'g Grp., Inc., No. 15-123, 2015 WL

3964719, at *3 (M.D. La. June 29, 2015); Gonzales v. T. Baker

Smith, LLC, No. 13-644, 2014 WL 905281, at *3 (M.D. La. Mar. 7,

2014).

Plaintiff admitted that he is seeking damages resulting from

Ockmand’s alleged negligent infliction of emotional distress.

Plaintiff further asserted that both he and Ockmand were co-workers

at Chevron’s facility and that the act forming the basis of his

negligence claim was done during the course and scope of Ockmand’s

employment with Chevron. Therefore, plaintiff’s claim is barred by

the exclusivity provision of the Louisiana Workers’ Compensation

Act.

Fraudulent Misrepresentation

Louisiana law defines fraud as “a misrepresentation or a

suppression of the truth made with the intention either to obtain

an unjust advantage for one party or to cause a loss or

inconvenience to the other.” La. Civ. Code art. 1953. The elements

of a Louisiana fraud and intentional misrepresentation claim are:

1) a misrepresentation of a material fact; 2) made with intent to

deceive; and 3) causing justifiable reliance with resultant

injury. Kadlec Med. Ctr. v. Lakeview Anesthesia Assoc., 527 F.3d

412, 418 (5th Cir. 2008); Russell v. Chevron U.S.A., Inc., No. CV

18-4157, 2018 WL 4816151 (E.D. La. Oct. 4, 2018).

Plaintiff's state law fraud claim is subject to Federal Rule

of Civil Procedure 9(b), which imposes a heightened pleading

requirement. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339

(5th Cir. 2008). Under Rule 9(b), the plaintiff “must state with

particularity the circumstances constituting fraud or mistake.”

Fed. R. Civ. P. 9(b). The Fifth Circuit “interprets Rule 9(b)

strictly, requiring the plaintiff to specify the statements

contended to be fraudulent, identify the speaker, state when and

where the statements were made, and explain why the statements

were fraudulent.” Flaherty & Crumrine Preferred Income Fund, Inc.

v. TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009). In other words,

“Rule 9(b) requires ‘the who, what, when, where, and how’ to be

laid out.” Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d

719, 723 (5th Cir. 2003) (quoting Tel-Phonic Servs., Inc. v. TBS

Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992)). Finally,

“although scienter may be ‘averred generally,’ ... pleading

scienter requires more than a simple allegation that a defendant

had fraudulent intent. To plead scienter adequately, a plaintiff

must set forth specific facts that support an inference of fraud.”

Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)

(quoting Fed. R. Civ. P. 9(b)).

Flettrich has satisfied the Rule 9(b) pleading standard

because he has alleged with particularity the specifics of the

fraud Ockmand allegedly perpetrated and explained how he was harmed

by the alleged misrepresentation. See Benchmark Elecs., Inc. v.

J.M. Huber Corp., 343 F.3d 719, 723 (5th Cir.), opinion modified

on denial of reh'g, 355 F.3d 356 (5th Cir. 2003) (“Rule 9(b)

requires the who, what, when, where, and how to be laid out.”)

Nonetheless, the claim must still be dismissed given its basis on

third-party reliance, which is not legally cognizable under

Louisiana law. See Currier v. Entergy Servs., Inc., No. 11-2208,

2014 WL 1093687, at *8-9 & n.17 (E.D. La. Mar. 14, 2014)

(expressing skepticism that a fraud claim alleging third-party

reliance is legally viable under Louisiana law); Schaumburg v.

State Farm Mut. Auto Ins. Co., 421 F. App'x 434, 442 (5th Cir.

2011) (“Louisiana jurisprudence indicates that the following are

the elements of the tort of fraud ... 3. reasonable or justifiable

reliance by the plaintiff ...”)

In Wright v. United Parcel Serv., Inc. (Ohio), the Western

District of Louisiana court dismissed a fraud claim, finding it

could not stand because plaintiff did not provide any facts that

defendants made misrepresentations to her, which she then

reasonably relied on. No. 3:20-CV-00098, 2020 WL 1909973 (W.D. La.

Apr. 2, 2020), report and recommendation adopted, No. 3:20-CV-

0098, 2020 WL 1906843 (W.D. La. Apr. 17, 2020). Likewise, in R.

Christopher Goodwin & Assocs., Inc. v. SEARCH, Inc., this Court

essentially held there was no right under Louisiana law to bring

a fraud claim based on plaintiff’s admission that

misrepresentations were made to third-parties and not to

plaintiff. No. CV 19-11290, 2019 WL 5576834 at *5 (E.D. La. Oct.

29, 2019).

Flettrich does not set forth any facts that Ockmand made

fraudulent misrepresentations to him, which in turn caused his

reasonable reliance. On the contrary, he alleges that Ockmand

“knowingly forged a document and made false, defamatory statements

about him [to Chevron] for the purpose of inducing Chevron to

terminate [his] employment and secure Ockmand’s own position.”

Rec. Doc. 17 at p. 12. Because plaintiff has not alleged that he

was the person who reasonably relied on the misrepresentation, the

fraud claim against Ockmand cannot stand.

Accordingly, defendants have established fraudulent joinder

and Ockmand is hereby dismissed as a party defendant.1 Regarding

Chevron and Flettrich, there is complete diversity of citizenship

between them, and the amount is controversy exceeds the

jurisdictional amount. Therefore, this Court has diversity

jurisdiction over the state-based claims against that entity.

C. EXPENSES AND COSTS

Finally, Flettrich asserts that the Court should exercise its

discretion to award attorneys' fees and costs because defendants'

removal of this case was legally improper. 28 U.S.C. § 1447(c)

provides that “[a]n order remanding the case may require payment

of just costs and any actual expenses, including attorney fees,

incurred as a result of the removal.” However, “[t]here is no

automatic entitlement to an award of attorney's fees.” Am.

Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 541–42 (5th Cir. 2012)

(quoting Valdes v. Wal–Mart Stores, Inc., 199 F.3d 290, 292 (5th

Cir. 2000) (holding that the “mere determination that removal was

improper” does not require a district court to award attorney's

fees)). Rather, a court “may award attorney's fees when the

removing party lacks an objectively reasonable basis for removal.”

1 Currently, there are two pending motions to dismiss before the Court, both

filed by defendant Ockmand. See Rec. Docs. 14 and 27. Given Ockmand is now

dismissed from this litigation, both motions to dismiss are rendered moot.

Id. (quoting Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir.

2010) (per curiam) (citations omitted)). Based on the foregoing

analysis, the Court concludes there was an objectively reasonable

ground to remove this case to federal court. Accordingly, the Court

denies Flettrich’s request for attorneys' fees and costs.

New Orleans, Louisiana this 3rd day of May, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE