# Roussell v. PBF Consultants, LLC

> District Court, M.D. Louisiana · September 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10191542

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** September 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JEPRECE ROUSSELL, CIVIL ACTION NO.
on behalf of and as tutrix for S.C.R., the minor
child of decedent Kierston Rousell
18-899-JWD-EWD
VERSUS

PBF CONSULTANTS, LLC, ET AL.

NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk
of the U. S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations set forth therein. Failure to file written objections to the proposed findings,
conclusions and recommendations within 14 days after being served will bar you, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in Baton Rouge, Louisiana, on September 18, 2020.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JEPRECE ROUSSELL, CIVIL ACTION NO.
on behalf of and as tutrix for S.C.R., the minor
child of decedent Kierston Rousell
18-899-JWD-EWD
VERSUS

PBF CONSULTANTS, LLC, ET AL.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s Renewed Motion for Leave to Amend Her Complaint
(“Motion for Leave”),1 filed by Jeprece Roussell (“Plaintiff”), proceeding on behalf of and as tutrix
for S.C.R., the minor child of decedent Kierston Roussell (“Decedent”). The Motion for Leave is
opposed by defendants, PBF Holding Company, LLC (“PBF Holding”), PBFX Operating
Company, LLC (“PBFX Operating”), Chalmette Refining, LLC (“Chalmette Refining”)
(collectively, the “PBF Defendants”).2 It is also opposed by defendant, Clean Harbors
Environmental Services, Inc. (“Clean Harbors”).3 Plaintiff filed a reply memorandum.4
Also before the Court are a Motion for Leave to File Amended Answer, filed by the PBF
Defendants, and an Opposed Motion for Leave to File Amended Answer, filed by Clean Harbors.5
As application of the Hensgens factors weigh in favor of granting Plaintiff’s Motion for
Leave as to the claims against non-diverse defendant, Guy Swinford (“Swinford”), it is
recommended6 that the motion be granted as to those claims. Upon granting the Motion for Leave

1 R. Doc. 52.
2 R. Doc. 62.
3 R. Doc. 63.
4 R. Doc. 24.
5 R. Docs. 51 and 53, respectively. These motions are collectively referred to as the “Motions to Amend Answer.”
6 Generally, a motion for leave to amend the pleadings is a nondispositive matter that may be ruled on by a magistrate
judge pursuant to 28 U.S.C. § 636(b)(1).” Cazares v. Morris, No. 09-2168, 2011 WL 2414543, at *2 (D. Ariz. June
as to the claims against Swinford, there will no longer be complete diversity of citizenship between
the parties, so it is further recommended that no decision on the merits be made with regard to the
remaining relief requested in the Motion for Leave and that this matter be remanded to Nineteenth
Judicial District Court for the Parish of East Baton Rouge, for lack of subject matter jurisdiction
under 28 U.S.C. § 1332(a).
Additionally, the pending Motions to Amend Answer, filed by the PBF Defendants and
Clean Harbors, will be terminated as moot, without prejudice to reurging in this Court if this Report

and Recommendation is not adopted, or as appropriate in state court after remand.
I. BACKGROUND
The factual and procedural background of this case is discussed in the Court’s prior Report
and Recommendation, Opinion, Ruling, and Minute Entry/Telephone Conference Report and
Order7 and will not be reiterated here, except to the extent relevant to the Motion for Leave.
On March 31, 2018, while working for the Clean Harbor Defendants (defined below),
Decedent sustained injuries from falling silica while cleaning a sand tank at an oil refinery in
Chalmette, Louisiana.8 The falling silica knocked Decedent’s respirator off and left him buried
under four to five feet of silica, unable to breathe.9 Decedent was ultimately rescued and taken to
a hospital, where he was placed on a ventilator.10 About two weeks later, after he was declared

whether this Court continues to have diversity jurisdiction over this matter, the motion is dispositive such that a report
and recommendation, rather than a ruling, is being issued. See Vessell v. Wal-Mart Stores, Inc., No. 07-228, 2008 WL
2700010, at *2, n. 2 (M.D. La. July 9, 2008).
7 See R. Doc. 28 (Report and Recommendation recommending that Plaintiffs’ Motion to Remand (R. Doc. 12) be
denied and that Plaintiff’s claims against John Sprafka, Wayne LaCombe, PBF Investments, LLC, and PBF
Consultants, LLC be dismissed); R. Doc. 45 (Opinion adopting Report and Recommendation, except as to the
recommended disposition regarding PBF Investments, LLC and PBF Consultants, LLC because those defendants had
already been voluntarily dismissed); R. Doc. 47 (Ruling granting Clean Harbor’s Rule 12(b)(2) Motion to Dismiss for
Lack of Personal Jurisdiction (R. Doc. 17)); and R. Doc. 61 (Minute Entry/Telephone Conference Report and Order
from Nov. 20, 2019 conference).
8 R. Doc. 1-1, pp. 5-6.
9 Id. at p. 6.
10 Id.
brain dead,11 Decedent was taken off life support and passed away.12
On August 10, 2018, Plaintiff, on behalf of Decedent’s minor child, brought a wrongful
death action for the child’s damages and a survival action for the injuries sustained by Decedent
against the PBF Defendants; (4) John Sprafka (“Sprafka”); (5) Wayne LaCombe (“LaCombe”);
(6) Clean Harbors, Inc.; (7) Clean Harbors Environmental Services, Inc. (collectively, the “Clean
Harbors Defendants”); (8) PBF Consultants, LLC (“PBF Consultants”); and (9) PBF Investments,
LLC (“PBF Investments”) (the “Petition”).13 The PBF Defendants, Sprafka, and Lacombe

removed this matter on October 10, 2018 pursuant to 28 U.S.C. § 1332, asserting that the amount
in controversy exceeds $75,000 exclusive of interest and costs and that the properly joined parties
were completely diverse.14 Although Sprafka and Lacombe were alleged to be citizens of
Louisiana, as is Plaintiff,15 the PBF Defendants contended that Sprafka and LaCombe were
improperly joined because there was no possibility that Plaintiff could establish a cause of action
against them in their managerial roles under Louisiana law.16 In response, Plaintiff filed a Motion
to Remand based on lack of subject matter jurisdiction. 17 The Court denied the Motion to Remand,

11 Id.
12 Id.
13 R. Doc. 1-1.
14 R. Doc. 1.
15 Plaintiff alleged in her Petition that she is the mother and tutrix of S.C.R. and that she “resides and is domiciled in
Louisiana.” R. Doc. 1-1, p. 4, ¶ 7. This Court has previously explained that “‘[s]ince most minors are legally incapable
of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents’” and that
“‘[w]hen determining a minor’s domicile, courts look to the domicile of the minor’s guardian if the minor lives with
her guardian.’” Champagne v. Parrish, Civil Action No. 16-610, 2016 WL 7031331, at * 3 (M.D. La. Nov. 7, 2016)
(internal citations omitted). Louisiana Civil Code article 41 provides that “[t]he domicile of an unemancipated minor
under tutorship is that of his tutor. In case of joint tutorship, the domicile of the minor is that of the tutor with whom
the minor usually resides, unless the court directs otherwise.” Here, because Plaintiff has alleged that she is the tutrix
of S.C.R., and that she is domiciled in Louisiana, the undersigned finds that the record contains sufficient allegations
of Plaintiff’s Louisiana citizenship. Regarding Sprafka and LaCombe, the PBF Defendants asserted in their Notice of
Removal that both “are domiciled in and citizens of the State of Louisiana.” R. Doc. 19, p. 3.
16 R. Doc. 19, pp. 5-7.
17 R. Doc. 12.
finding that Sprafka and LaCombe were improperly joined18 because Plaintiff had not alleged
sufficient facts to establish the personal liability of those non-diverse defendants. PBF Consultants
and PBF Investments were also voluntarily dismissed from the suit,19 and Clean Harbors, Inc. was
dismissed without prejudice for lack of personal jurisdiction.20
II. RENEWED MOTION FOR LEAVE AND THE PARTIES’ ARGUMENTS
On November 1, 2019, the deadline to amend pleadings per the Court’s Scheduling
Order,21 Plaintiff filed a renewed Motion for Leave,22 requesting leave to file an amended

complaint to provide additional factual information to support for her claims against existing
defendants and to add new claims against new defendants, based on “recently discovered”
information. Relevant here, Plaintiff seeks to re-allege claims against Sprafka and LaCombe and
to bring claims against a new individual defendant, Swinford.23 Although the proposed First

18 See, R. Docs. 28 & 45.
19 R. Doc. 32.
20 R. Doc. 47.
21 R. Doc. 50
22 R. Doc. 52. This is Plaintiff’s third attempt to amend her Petition. Plaintiff filed her first Motion for Leave to File
First Amended Complaint on May 3, 2019, about two weeks after the Report and Recommendation was issued. R.
Doc. 33. That motion was denied for failure to comply with Local Rule 10(a)(1). R. Doc. 34. On May 22, 2019, she
filed a second Motion for Leave to File First Amended Complaint. R. Doc. 40. In that motion, Plaintiff again alleged
that she “discovered additional factual information relevant to [her] claims,” and she sought leave to amend her
Petition to include “additional factual support for her claims against existing defendants,” as well as add “new claims
against additional defendants whose identify and involvement have been recently discovery.” R. Doc. 40, p. 1.
Notably, Plaintiff was attempting to add claims against “new defendant Guy Swinford,” who she alleges was the
“refinery employee…responsible for issuing work permits for the work at issue, personally observed the hazardous
condition of the sand tanks, and—instead of addressing the hazard—personally approved the work permits and
allowed the work to proceed.” R. Doc. 40-1, p. 4; R. Doc. 40-3, at introductory paragraph and ¶¶ 26, 35. Because
Plaintiff objected to the Report and Recommendation, triggering a de novo review by the district judge, the second
motion was “denied without prejudice to [her] right to re-urge, if necessary, a motion to amend her complaint
following the district judge’s ruling on [the] Motion to Remand.” R. Doc. 44.
23 R. Doc. 52. Additionally, through the proposed First Amend Complaint, Plaintiff seeks to add factual information
to her claims against the PBF Entity Defendants, “clarify” her claims against Clean Harbors, and add claims against
the following new defendants: (1) Clean Harbors Industrial Services, Inc.; (2) Clean Harbors ES Industrial Services,
Inc. (collectively, the “New Clean Harbor Entities”); (3) Veolia Environmental Services, LLC; (4) Veolia Energy
Operating Services, LLC; (5) Veolia ES Industrial Services, Inc.; (6) Veolia Energy North America, LLC; (7) Veolia
ES Technical Solutions, L.L.C.; (8) Veolia Facilities Management North America, LLC; (9) Veolia North America
Regeneration Services, LLC; (10) Veolia ES Enterprise Solutions, LLC; (11) Veolia ES Special Services, LLC
(collectively, the “Veolia Entities”); (12) Brown & Root Industrial Services, LLC (“Brown & Root”); and (13) Total
Safety U.S. Inc. (“Total Safety”). R. Doc. 52-1, pp. 4-5; R. Doc. 52-3, ¶¶ 13-24. Like with Swinford, Plaintiff’s
Amended Complaint does not adequately set out the citizenship of Swinford because Plaintiff only
alleges residency, the parties agreed during the November 20, 2019 telephone conference that
Swinford is a Louisiana citizen.24 The analysis in this Report focuses on whether Plaintiff should
be permitted to add Swinford as a defendant because, if leave to amend is permitted, Swinford’s
Louisiana citizenship will destroy complete diversity, divest this Court of jurisdiction, and require
this matter to be remanded, regardless of any additional claims.
Per the proposed First Amended Complaint, Plaintiff alleges:

Guy Swinford was a safety representative for the PBF Defendants
and Eric [an operator for PBF] was an operator for the PBF
Defendants. Together, they were responsible for and had been
delegated the task of evaluating the proposed work and approving
permits for the specific work project at issue. Guy Swinford and Eric
looked into the pressure vessel prior to work beginning on the day
in question and personally saw the dangerous condition that
existed—i.e., the remaining buildup of silica sand that was still
caked in the pressure vessel. However, on behalf of the PBF
Defendants, both Guy Swinford and Eric did nothing to address the
hazard and instead personally approved the necessary permits. They
instructed the Clean Harbors/Veolia crew to proceed with entering
the pressure vessel to start cleaning out the silica sand despite the
dangerous conditions both Guy Swinford and Eric were actually
aware of.25
The proposed First Amended Complaint additionally sets forth that:
Defendant Swinford was a Health and Safety Representative at the
Chalmette Refinery at the time of the incident. Defendant Swinford
had direct responsibility for and had been delegated the duty of
overseeing the permitting process for confined spaces such as where
the incident occurred. Defendant Swinford physically walked the
unit and personally looked inside the pressure vessel in question
before authorizing the permits to enter the pressure vessel.
Defendant Swinford actually saw the silica build up and, based on
his training, would have understood the risks with sending
individuals inside the pressure vessel with the caked silica sand.

proposed amended complaint does not adequately allege the citizenship of the New Clean Harbor Entities, the Veolia
Entities, Brown & Root, or Total Safety.
24 R. Doc. 61. See also n.15, supra, regarding Sprafka and LaCombe’s citizenship.
25 R. Doc. 52-3, ¶ 34.
Despite his actual and constructive knowledge of the dangerous
conditions, Defendant Swinford authorized the work to go
forward.26
In support of her request to add Swinford as a defendant, Plaintiff argues that the “liberal
standard” in Fed. R. Civ. P. 15, as well as Hensgens factors, favor granting her Motion for Leave.27
Regarding the Hensgens factors, Plaintiff claims (1) the purpose of the amendment is “not merely
to defeat federal jurisdiction,” (2) she “diligently” sought to amend her Petition after learning
“additional information from others involved in Decedent’s incident,” (3) she will be prejudiced
if she is forced to pursue her claims against Swinford in a separate proceeding, and (4) defendants’
interest in a federal forum is “not as compelling” as her desire to have her claims against all
defendants potentially liable for Decedent’s injuries and death tried in a single forum.28
The PBF Defendants filed an opposition memorandum to the Motion for Leave, arguing
that the Court “should reject [Plaintiff’s] efforts to name Swinford as a defendant because she lacks
viable claims against him and the factors articulated in Hensgens…counsel against granting leave
to amend.”29 Specifically, the PBF Defendants contend the sole purpose of the proposed amended
complaint is to defeat diversity, which is evidenced by the timing and Plaintiff’s inability to state
a viable claim against Swinford under Canter.30 The PBF Defendants also contend that Plaintiff
has presented “no evidence that she has been diligent” in her efforts to amend her Petition to add

26 R. Doc. 52-3, ¶ 68.
27 R. Doc. 52-1, pp. 6-12.
28 Id. at pp. 10-12.
29 R. Doc. 62. Defendants Clean Harbors Environmental Services, Inc. also filed an Opposition, wherein it “adopts
the briefs and arguments filed by [the PBF Defendants] in Opposition to Plaintiff’s Motion to Amend Petition to the
extend not inconsistent with the position of [Clean Harbors].” R. Doc. 63.
30 R. Doc. 62, pp. 4-7. The two assertions underlying the PBF Defendants’ argument that Plaintiff does not have a
viable claim against Swinford are (1) Plaintiff’s proposed amended complaint does not relate back under Fed. R. Civ.
P. 15(c) and (2) the Declaration of Swinford (“Declaration”) (R. Doc. 62-1), which disclaims any involvement in the
incident that injured and killed Decedent, corrects “misstated or omitted discrete facts” and shows that Plaintiff lacks
a viable claim against Swinford. Id. These arguments are addressed below.
Swinford.31 They claim Plaintiff will not be prejudiced if leave to amend is denied because other
defendants are vicariously liable for Swinford and “it strains credulity to think that [Plaintiff] has
any real intention of pursuing an individual employee to recover on her wrongful death claims,
given the other parties already named in the suit.”32 Finally, the PBF Defendants claim that the
“balance of the equities,” including their right to a “properly invoked federal forum,” weigh in
favor of denying the Motion for Leave.33
Plaintiff filed a reply memorandum in support of her Motion for Leave,34 reiterating her

argument that all four Hensgens factors weigh in favor of permitting leave to add Swinford as a
defendant.35 Plaintiff contends that the PBF Defendants “do not dispute that Plaintiff has stated a
claim against Swinford” but that they instead ask the Court to conduct a “mini-trial” to determine
“the question of Swinford’s liability.”36 Finally, Plaintiff contends that in the event the Court
considers Swinford’s Declaration, such Declaration is “untested and self-serving” and does not
show that Plaintiff’s “factual allegation[s] [are] indisputably false and easily disproved.”37
III. APPLICABLE LAW AND ANALYSIS
A. Post-removal joinder of a non-diverse defendant
Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given
when justice so requires.” The Fifth Circuit has strictly followed this rule, stating that “leave to

amend should be granted liberally.”38 However, when an amendment after removal from state

31 Id. at pp. 7-8.
32 Id. at pp. 8-9.
33 Id. at pp. 9-10.
34 R. Doc. 68.
35 Id. at pp. 2-9.
36 Id. at pp. 4-5.
37 Id.
38 Robertson v. Plano City of Texas, 70 F.3d 21, 22 (5th Cir. 1995).
court would destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) applies. Section 1447(e)
provides, “If after removal the plaintiff seeks to join additional defendants whose joinder would
destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the
action to the State court.” If diversity is the only basis for the court’s subject matter jurisdiction
and a district court permits joinder of a nondiverse defendant, it must remand the case to the state
court.39
“The district court, when faced with an amended pleading naming a new nondiverse

defendant in a removed case, should scrutinize that amendment more closely than an ordinary
amendment.”40 When determining whether to allow joinder of a non-diverse party under § 1447(e),
“justice requires that the district court consider a number of factors to balance the defendant’s
interests in maintaining the federal forum with the competing interests of not having parallel
lawsuits.”41 The Hensgens factors include: (1) the extent to which the purpose of the amendment
is to defeat diversity; (2) whether the plaintiff has been diligent in requesting an amendment; (3)
whether the plaintiff will be prejudiced if the amendment is denied; and (4) any other factors
bearing on the equities.42 Applying these factors, the court in Hensgens held that the post-removal
joinder of a non-diverse, non-indispensable party destroys diversity jurisdiction.43
Although the Fifth Circuit decided Hensgens before the enactment of § 1447(e), that court

has subsequently approved the application of the Hensgens factors to a § 1447(e) case.44 In Cobb,
as in Hensgens, the Fifth Circuit concluded that, “post-removal joinder of non-diverse defendants

39 Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999) (citing 28 U.S.C. § 1447(e)).
40 Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).
41 Id.
42 Id.
43 Id.
44 See Cobb, 186 F.3d at 677; Tillman v. CSX Transport., Inc., 929 F.2d 1023, 1029 (5th Cir. 1991); see also Smith v.
Lucas Tire Co., Inc., No. 94-2215, 1995 WL 57295, at *2 (E.D. La. Feb. 10, 1995).
pursuant to Fed. R. Civ. P. 19 destroys diversity for jurisdictional purposes and requires remand,
even when the newly joined defendants are not indispensable.”45 Thus, “it is technically
immaterial” whether the non-diverse defendants sought to be added are indispensable or
dispensable parties for the purposes of the analysis required under § 1447(e).46
Removal of this case was based upon diversity jurisdiction pursuant to 28 U.S.C. §
1332(a)(1).47 When original jurisdiction is based on diversity of citizenship, the cause of action
must be between “citizens of different States” and the amount in controversy must exceed the “sum
or value of $75,000, exclusive of interest and costs.”48 Subject matter jurisdiction must exist at the

time of removal to federal court, based on the facts and allegations contained in the complaint.49
“Although it is true that most subsequent events will not defeat jurisdiction, addition of a
nondiverse defendant will.”50 The removal statute, 28 U.S.C. § 1441, is strictly construed and any
doubt as to the propriety of removal should be resolved in favor of remand.51 The removing party
has the burden of proving federal diversity jurisdiction.52 Remand is proper if at any time the court
lacks subject matter jurisdiction.53

45 Cobb, 186 F.3d at 677.
46 Joseph v. Fluor Corp., 513 F. Supp. 2d 664, 670 (E.D. La. 2007) (citing Cobb, 186 F.3d at 680-81).
47 R. Doc. 1, p. 2.
48 28 U.S.C. § 1332(a)-(a)(1).
49 St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).
50 Hensgens, 833 F.2d at 1181.
51 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
52 Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003).
53 See 28 U.S.C. § 1447(c).
B. Under the Hensgens analysis, Plaintiff should be allowed to file an amended
complaint naming Swinford, a non-diverse defendant
1. The primary purpose of the proposed amendment does not appear to
be to defeat diversity
When analyzing the first Hensgens factor, courts within the Fifth Circuit frequently look
at whether the plaintiff knew or should have known the identity of the party to be joined and the
facts underlying the claim against that party when the state court complaint was filed.54 “Courts
have held that a plaintiff’s failure to join a non-diverse defendant to an action prior to removal
when such plaintiff knew of a non-diverse defendant’s identity and activities suggests that the
purpose of the amendment is to destroy diversity jurisdiction.”55 “However, courts have also
recognized that when a plaintiff states a valid claim against a defendant, it is unlikely that the
primary purpose of bringing those defendants into a litigation is to destroy diversity jurisdiction.”56
a. Timing
Here, Plaintiff initially requested leave to amend her Petition on May 3, 2019,57 about
seven months after removal and two weeks after the Report and Recommendation that Plaintiff’s
Motion to Remand be denied. The PBF Defendants suggest that Plaintiff’s “true intent to defeat
diversity jurisdiction” may be “inferred” from this timing, despite noting in their opposition
memorandum that Plaintiff advised the Court of her intention to amend the Petition prior to the
issuance of the Report and Recommendation.58 Taken out of context, this timing may appear to

suggest that the motivation underlying Plaintiff’s motion is to avoid federal jurisdiction. However,
neither Defendants nor the record suggests that Plaintiff knew or should have known of Swinford’s

54 See Tomlinson v. Allstate Indem. Co., No. 06-617, 2006 WL 1331541, at *3 (E.D. La. May 12, 2006); Irigoyen v.
State Farm Lloyds, No., 03-324, 2004 WL 398553, at *3 (S.D. Tex. Jan. 5, 2004).
55 Schindler v. Charles Schwab & Co., Inc., No. 05-82, 2005 WL 1155862, at *3 (E.D. La. May 12, 2005).
56 Id. (emphasis in original) (citing cases).
57 R. Doc. 33.
58 R. Doc. 62, pp. 4-5.
existence or the role he allegedly played in the underlying incident when she initially filed suit.
Instead, Plaintiff states that she requested leave to amend after learning new information via
allegations in a state court petition filed in the matter captioned Leroy Brown, et al. v. PBFX
Operating Company, LLC, et al., Suit No. 681,234, Nineteenth Judicial District Court for the
Parish of East Baton Rouge (the “Brown & Lewis Petition”) by “[o]ther workers who were injured
in (but who survived) the same incident” as Decedent.59 The Brown & Lewis Petition, which
contains allegations about Swinford’s involvement in the incident that injured and, ultimately,

killed Decedent, was filed on March 28, 2019, about five weeks before Plaintiff first requested
leave to add claims against Swinford.
Unlike the plaintiff in the Campagna v. Averitt Exp., Inc.60 case cited by the PBF
Defendants, Plaintiff is not the person who was injured during the incident and does not have
firsthand knowledge of the incident, who was involved, or what role each person/entity played.
Plaintiff’s explanation about requesting leave to amend within of five weeks of learning new
information from the Brown & Lewis Petition is distinguishable from the facts in Campagna. 61
Finally, Defendants contend that Plaintiff’s filing of the Motion for Leave on the heels of
this Court’s decision “confirming subject matter jurisdiction for the first time…reveals [Ms.
Plaintiff’s] true purpose.”62 This argument is unavailing here as the Quibodeaux case cited by PBF

59 R. Doc. 52-1, pp. 3-4. See also the Brown & Lewis Petition, which is in the record at R. Doc. 33-2 and R. Doc. 52-
2.
60 No. 99-1007, 1999 WL 386652 (E.D. La. June 10, 1999).

61 Here, Plaintiff was Decedent’s fiancé and is bringing claims on behalf of Decedent’s minor child. Neither Plaintiff
nor Decedent’s child are in the same position with respect to knowledge of the facts and circumstances of the incident,
or who was involved, as was the plaintiff in Campagna, who was the injured party.
62 R. Doc. 62, pp. 4-5.
Defendants is distinguishable.63 Accordingly, the timing alone does not suggest that the primary
purpose of the proposed amended complaint is to destroy diversity jurisdiction.
b. Ability to State a Valid Claim Against a Non-Diverse Defendant
1. Plaintiff’s proposed amended complaint states a claim
against Swinford under Canter

Relatedly, courts within the Fifth Circuit recognize that “as long as the plaintiff states a
valid claim against the new defendant, the principal purpose is not to destroy diversity
jurisdiction.”64 “Under Louisiana law, an employee is personally liable if (1) the employer owes a
duty of care to a third person; (2) the employer delegated that duty to a defendant-employee; (3)
and the defendant-employee breached the duty through his own fault and lack of ordinary care.”65
“However, a defendant-employee’s ‘general administrative responsibility’ is insufficient to
impose personal liability.”66 “In order for a corporate officer to be held liable for purported
personal fault or negligence which arises out of a breach of duty, that person must have some

63 In support of their argument, the PBF Defendants cite Quibodeaux v. Nautilus Insurance Co., No. 10-739, 2012 WL
12919188, at *5 (E.D. Tex. Jul. 30, 2012), for the proposition that “seeking to add a nondiverse defendant shortly after
removal but prior to any discovery, is further indication that the amendment is sought for the purpose of defeating
diversity.” Id. However, Quibodeaux is distinguishable for two reasons. First, Plaintiff did not seek to add a non-
diverse “shortly after removal,” as acknowledged by the PBF Defendants in their opposition memorandum. See R.
Doc. 62, pp. 4, 8. Second, while it is not clear the extent to which “any discovery” has occurred here, Plaintiff did not
request leave to amend based on information known to her prior to the filing of her Petition. Instead, Plaintiff claims
she learned about Swinford’s involvement based on information she learned well after she filed suit—namely, the
Brown & Lewis Petition. See also Francis v. Monroe, No. 17-24, 2017 WL 4232963, at *5-6 (M.D. La. Sept. 24,
2017) (granting plaintiff’s motion for leave to amend to name new non-diverse defendant filed about five weeks after
learning of non-diverse defendant’s potential liability). Additionally, the PBF Defendants timing argument is
weakened by the fact that non-diverse defendants were named in the original Petition. There is no reason to believe
that, if Plaintiff had known of Swinford’s alleged involvement in the incident, she would not have named him initially
as well, notwithstanding that he is a citizen of Louisiana
64 Valenti v. Coburn Supply Co., No. 19-571, 2020 WL 4679544, at *2 (M.D. La. Jul. 28, 2020). See also McIntosh v.
Costco Wholesale Corp., No. 18-9825, 2019 WL 3306532, at *2 (E.D. La. July 23, 2019) (citing Herzog v. Johns
Manville Prod. Corp., No. 02-1110, 2002 WL 31556352, at *2 (E.D. La. Nov. 15, 2002)).
65 Moore v. Manns, 732 F.3d 454, 456-57 (5th Cir. 2013) (citing Canter v. Koehring, 283 So. 2d 716, 721 (La. 1973),
superseded on other grounds by statute, La. R.S. § 23.1032 (1998)). See also R. Doc. 28, pp. 5-6.
66 Id. (affirming district court’s denial of motion to amend to add non-diverse employees and agreeing that plaintiff’s
“proffered amendment relied on the proposed parties’ general responsibilities to oversee safety rather than on evidence
of personal fault, as required to trigger individual liability under Louisiana law.”).
personal contact with and responsibility towards the injured employee.”67 “A supervisor’s
knowledge of the dangers present ‘could give rise to the personal duty contemplated in Canter.’”68
Per the proposed amended complaint, Plaintiff alleges Swinford was a “safety
representative” for the PBF Defendants and the “Health and Safety Representative at the Chalmette
refinery at the time of the incident.”69 She also alleges that Swinford and Eric, “an operator for the
PBF Defendants,” were responsible for and had been delegated the task of evaluating the proposed
work and approving permits for the specific work project at issue.70 Importantly, Plaintiff alleges

that Swinford “looked into the pressure vessel prior to work beginning on the day in question and
personally saw the dangerous condition that existed—i.e., the remaining buildup of silica sand that
was still caked in the pressure vessel.”71 Plaintiff alleges that Swinford “would have understood
the risk with sending individuals inside the pressure vessel with the caked silica sand,” based on
his training.72 She further alleges that despite his knowledge of the dangerous condition, gained
from his look inside the pressure vessel, Swinford “did nothing to address the hazard and
personally approved the necessary permits.”73 Further, Plaintiff alleges that Swinford “instructed

67 Esco v. Smith, 468 So.2d 1169, 1175 (La. 1985). See also, Canter, 283 So. 2d at 721 (“personal liability cannot be
imposed upon the…employee simply because of his general administrative responsibility for performance of some
function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically
has caused the plaintiff’s damages.”).
68 Ford v. Elsbury, 32 F.3d 931, 939 (5th Cir. 1994) (non-diverse plant manager properly joined in suit arising out of
reactor explosion at a fertilizer plant where conflicting affidavits, viewed in a light most favorable to plaintiffs, raised
a question of whether the plant manager had actual knowledge of a leak in the reactor prior to the explosion). See also
Valenti, 2020 WL 4679544, at *3-5; Creppel v. Apache Corp., No. 04-865, 2004 WL 1920932, at * 3 & n. 1 (E.D. La.
Aug. 25, 2004).
69 R. Doc. 52-3, ¶¶ 34, 68.
70 Id.
71 Id. See also id. at ¶ 68 (alleging Swinford “physically walked the unit and personally looked inside the pressure
vessel in question…”).
72 Id. at ¶ 68.
73 Id. at ¶¶ 34, 68.
the Clean Harbors/Veolia crew to proceed with entering the pressure vessel to start cleaning out
the silica sand,” despite being “actually aware” of the dangerous conditions inside the vessel.74
“This Court has previously held that, ‘Under Louisiana law, an employee’s personal
involvement in causing the alleged injury or the employee’s knowledge of the dangers present
could give rise to the personal duty contemplated by Canter.’”75 In the proposed amended
complaint, Plaintiff specifically alleges that Swinford personally walked through the vessel with
Decedent and an operator for the PBF Defendants (Eric), “actually saw” the silica buildup, and

“would have understood the risks [of] sending individuals inside the pressure vessel with caked
silica sand,” based on his training.76 Plaintiff also alleges that rather than addressing the risks posed
by the silica buildup inside the vessel, Swinford “personally approved the necessary permits” to
access the vessel and “instructed the Clean Harbors/Veolia crew to proceed with entering the
pressure vessel to start cleaning out the silica.”77 Further, she alleges Swinford was personally
responsible for inspecting the tanks or for supervising Clean Harbor’s work.78 These are sufficient
allegations to establish a possibility of recovery against Swinford under Canter.79

74 Id.
75 Mathes v. PNK (Baton Rouge) Partnership, No. 17-392, 2017 WL 5762434, at *5 (M.D. La. Nov. 6, 2017) (quoting
Haynes v. Healthcare Services Group, Inc., No. 13-649, 2014 WL 2769080, at *3 (M.D. La. May 30, 2014)) (citing
Canter, 283 So.2d at 721 (emphasis added)). See also Marbury v. Cracker Barrel Old Country Store, Inc., No. 18-
905, 2019 WL 4667340, at *5 (M.D. La. Sept. 6, 2019).
76 Id. at ¶ 68.
77 Id. at ¶ 34.
78 Id. at ¶¶ 34, 68.
79 The Fifth Circuit, this Court, and other district courts within the Circuit have found similar allegations sufficient to
state a claim of Canter liability. See, e.g., Ford, 32 F.3d at 939; Marbury, 2019 WL 4667340, at *5-6 (finding
plaintiff’s allegations sufficient to state a claim under Canter where she alleged that non-diverse defendant was “made
aware” of the allegedly dangerous condition, was responsible for correcting that condition, and left the condition
unattended); Mathes, 2017 WL 5762434, at *5 (finding plaintiff’s allegations sufficient to state a claim under Canter
where she alleged that the non-diverse defendant caused the hazardous condition and had personal knowledge of it,
but failed to remove the hazard); Angeron v. Big Lots Stores, Inc., No. 20-1001, 2020 WL 2060353, at *3 (E.D. La.
Apr. 29, 2020) (finding plaintiffs’ allegations sufficient to state a claim under Canter where they allege that non-
diverse store manager, to whom duty of care was delegated, “personally interacted with [one of the plaintiffs] before
and after the incident[,] had personal knowledge of the defective structure that caused her injury[,]” and “was
personally involved in creating the hazard, and that despite his actual knowledge failed to remedy the hazard.”);
Fontenot v. Union Pacific Railroad Co., 374 F.Supp.3d 597, 604 (W.D. La. Mar. 20, 2019) (finding plaintiffs’
Once a plaintiff has stated a claim against a non-diverse defendant, defendants “must come
forward with evidence to negate a possibility of liability against the non-diverse defendant.”80 The
PBF Defendants contend that Plaintiff has “misstated…discrete facts,” and they ask the Court to
exercise its discretion to pierce the pleadings and consider Swinford’s Declaration.81 Specifically,
the PBF Defendants argue that the Declaration “makes clear, [Swinford] had no involvement in
and was not delegated any responsibility with respect to the work being performed by Mr.
Plaintiff.”82 According to the Declaration, Swinford “was at the refinery that day to oversee a

turnaround work in a wholly separate area of the refinery,” and his “minimal involvement with the
incident consisted of being notified by Chalmette Refinery personnel that the work would be
occurring, given his role as Safety Advisor for Emergency Preparedness.”83 Finally, Swinford
claims he “did not issue a work permit for this work, oversee or plan the work, look inside the
pressure vessel, or direct anyone to do the work.”84
The Fifth Circuit has explained that, “[a]lthough a court may pierce the pleadings and
consider summary-judgment type evidence, the standard for finding improper joinder is not the

allegations were sufficient to state a claim under Canter where they alleged non-diverse defendant was a “Master of
Track Maintenance ‘personally responsible for all work, including work of subcontractors,’” whose acts of negligence,
including “failing to discover defect in railroad vehicle, failing to warn [other defendants]…failing to warn the public,
failing to restrict the public’s access…[and] failing to determine the crossing was unreasonably dangerous,” allegedly
caused or contributed to plaintiffs’ injuries.).
80 Randolph v. Wyatt, No. 09-2020, 2010 WL 569753, at *5 (W.D. La. Feb. 11, 2010) (citing Travis v. Irby, 326 F.3d
644, 650-51 (5th Cir. 2003)). See also Haynes, 2014 WL 2769080, at *4 (quoting Randolph, supra). However, during
the November 20 conference, the undersigned reminded the parties that the Fifth Circuit has “frequently cautioned the
district courts against pretrying a case to determine removal jurisdiction....” and advised that the Court would not
conduct a “mini-trial” on the truth of Plaintiff’s allegations against Swinford when analyzing the Motion for Leave.
R. Doc. 61, p. 4 (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)).
81 R. Doc. 62, pp. 6-7. See also R. Doc. 62-1.
82 R. Doc. 62, p. 7. See also R. Doc. 62-1, ¶¶ 5-13.
83 R. Doc. 62, p. 7. See also R. Doc. 62-1, ¶¶ 12-13.
84 R. Doc. 62, p. 7. See also R. Doc. 62-1, ¶¶5-10.
summary judgment standard in which an absence in the plaintiff’s proof alone can be fatal.”85 The
Fifth Circuit in Davidson explained that:
The examples of improper joinder based on “discrete and undisputed facts”
outside the pleadings that Smallwood provides are consistent with this
language requiring a defendant to “preclude” the possibility of recovery:
evidence showing that “the in-state doctor defendant did not treat the
plaintiff,” that “the in-state pharmacist defendant did not fill a prescription
for the plaintiff patient,” that “a party’s residence was not as alleged, or any
other fact that easily can be disproved if not true.”86
Although the district court may consider discrete and undisputed facts, the Fifth Circuit has
“frequently cautioned the district courts against pretrying a case to determine removal
jurisdiction....”87 Here, Swinford’s Declaration does not contain “discrete and undisputed facts” of
the kind discussed in Smallwood—i.e., facts that would allow the Court to conclude that Plaintiff
has no possibility of recovery against Swinford. Instead, as Plaintiff points out, Swinford’s
Declaration “does not dispute that he worked at the Chalmette Refinery and was on site at relevant
times.”88 Resolution of the factual disputes between the allegations against Swinford in the
proposed amended complaint and his Declaration is inappropriate at this stage of these proceedings
because determining what Swinford did or did not know or do the day of the incident would require
this Court to improperly “pretry” this case to determine removal jurisdiction.89 “[T]he inability to

85 Davidson v. Georgia-Pacific, L.L.C., 819 F.3d 758, 766 (5th Cir. 2016) (citing Travis, 326 F.3d at 650 n. 3). See
also Marbury, 2019 WL 4667340, at *6.
86 Davidson, 819 F.3d at 766-67 (citing Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573-74 & n. 12 (5th Cir.
2004) (emphasis added in Davidson).
87 Carriere., 893 F.2d at 100. See also Derise v. Regions Bank, No. 18-406, 2018 WL 4228455, at *2 (W.D. La. Aug.
7, 2018) (quoting, in part, Smallwood, 385 F.3d at 573-74) (“Although the decision regarding the procedure necessary
in a given case lies within the discretion of the district court, the Fifth Circuit has cautioned that, ‘[A] summary inquiry
is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery
against the in-state defendant.”).
88 R. Doc. 68, pp. 4-6. At a minimum, the Declaration shows Swinford was present on the day of the incident, aware
of the work being performed by the Clean Harbors/Veolia crew, and involved in discussions about that work.
89 Because the consideration of the statements in the Declaration is outside the scope facts that are appropriate for
consideration at this stage of the proceedings, that information was not substantively considered in connection with
this Report and Recommendation. See also Derise, 2018 WL 4228455, at *4 (W.D. La. Aug. 7, 2018) (refusing to
consider a “self-serving” affidavit in deciding plaintiff’s motion to amend to add non-diverse defendant); Enviroshield
make the requisite decision in a summary manner itself points to an inability of the removing party
to carry its burden.”90 The Fifth Circuit has made clear that, “‘any contested issues of facts and
any ambiguities of state law must be resolved’ in favor of remand.”91
2. Plaintiff’s claim against Swinford is not prescribed
In addition to the analysis of state law under Canter, whether Plaintiff’s claim against
Swinford is viable requires consideration of whether her claim is prescribed. Louisiana has a one-
year prescriptive period for negligence claims, which begins to run from the day the injury or
damage is sustained.92 Here, the underlying incident occurred on March 31, 2018.93 Plaintiff filed

her first motion for leave seeking to add Swinford as a defendant on May 3, 2019,94 over one year
after the incident. However, Louisiana Code of Civil Procedure article 2324(C) provides,
“Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.”
Plaintiff alleges that the defendants are jointly liable.95 This case is distinguishable from Darr,96
relied on by the PBF Defendants. Darr involved a multi-car accident. The plaintiff in Darr
originally sued only Conner, who re-ended Darr’s vehicle and pushed it into a vehicle being driven
by Colvin, and Conner’s insurer. Less than a month after the case was removed, Darr sought to

Technologies, LLC v. Lonestar Corrosion Services, Inc., No. 07-679, 2008 WL 11417821, at *3 (M.D. La. Jan. 31,
2008) (finding that defendants failed to carry their burden of showing that plaintiff has no reasonable possibility of
recovery against non-diverse defendant, even though “defendants have submitted an affidavit of [the non-diverse
defendant], in which he basically attests that he did not commit the acts of which he is accused,” and noting that
“[w]hether the plaintiff ultimately will prevail against defendant…is not the question in a fraudulent joinder
analysis.”).
90 Smallwood, 385 F.3d at 574.
91 African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir. 2014), quoting Cuevas v. BAC Home
Loans Servicing, LP, 648 F.3d 242. 249 (5th Cir. 2011).
92 La. Civ. Code art. 3492.
93 R. Doc. 1-1, ¶ 17.
94 R. Doc. 33.
95 R. Doc. 52-3, ¶ 7.
96 Darr v. Amerisure Ins. Co., No. 16-232, 2016 WL 5110267 (M.D. La. Aug. 31, 2016), report and recommendation
adopted, No. 16-232, 2016 WL 5110480 (M.D. La. Sept. 20, 2016).
add Colvin, a non-diverse defendant. Although the Court concluded in Darr that the proposed
amendment was prescribed on its face and relation back did not apply,97 the parties in Darr did
not argue prescription or relation back, nor did the plaintiff in that case allege that the non-diverse
defendant was a joint tortfeasor with any of the originally named defendants. Here, the allegations
in the proposed amended complaint are that the actions and inactions of various defendants
(including the PBF Defendants and Swinford) led to Decedent’s death. As such, the defendants
are alleged to be joint tortfeasors so that interruption of prescription against one, interrupts

prescription as to all under Louisiana law. Accordingly, Plaintiff’s claim against Swinford does
not appear to be prescribed.98
Based on the foregoing, taken together, the first Hensgens factor weighs in favor of
granting Plaintiff’s motion for Leave.
2. Plaintiff was not dilatory in seeking leave to amend
The second Hensgens factor—whether the plaintiff was dilatory in seeking leave to
amend—also weighs in favor of granting the Motion for Leave to Amend. In determining whether
the plaintiff has been dilatory, “district courts often look to the amount of time that has passed
between the filing of the original complaint and the amendment and the amount of time between
the removal and the amendment.”99 “Generally a plaintiff is not dilatory in seeking to amend a

97 Darr, 2016 WL 5110267, at *6.
98 Because it appears that Plaintiff’s claim against Swinford is not prescribed on its face, it is not necessary to address
whether the proposed amended complaint relates back under Fed. R. Civ. P. 15(c). See, e.g., Thomas v. Great West
Casualty Co., No. 18-586, 2019 WL 3211976 (W.D. La. June 3, 2019) (discussing in detail relation back under Fed.
R. Civ. P. 15(c) and interruption of prescription under La. Civ. Code art. 2324, and noting that the “relation back
articles do not apply in the case of a joint tortfeasor sued after prescription has otherwise expired.”). Additionally, the
PBF Defendant’s argument that Swinford’s presence in the suit is unnecessary because Plaintiff can recover against
his employer (see R. Doc. 62, n.10) improperly conflates the test under Canter. “If the elements for imposing
individual liability on the corporate employee are met, it does not matter that the corporation might also be liable.”
Ford, 32 F.3d at 936, citing H.B. “Buster” Hughes, Inc. v. Bernard, 318 So.2d 9, 12 (La. 1975).

99 Schindler, 2005 WL 1155862, at *4.
complaint when no trial or pre-trial dates [have been] scheduled and no significant activity beyond
the pleading stage has occurred.”100 However, “the analysis is different when the proposed
amendment is to add nondiverse defendants shortly after removal based on federal diversity
jurisdiction.”101 In some cases, “[a] delay of two months after the filing of the original complaint
or almost thirty days after the notice of removal has been found dilatory.”102 Other courts, however,
have concluded that a plaintiff was not dilatory in seeking leave to amend within the same time
frame.103

Here, the time between the filing of the Petition and the first motion for leave is about nine
months, while the time between removal and the first motion for leave is about seven months.
While this delay seems to near the outer limits of what other courts have found to be non-dilatory
under the “different” analysis suggested in Galegos,104 it is not clear that analysis controls here, as
Plaintiff did not request leave “shortly” after removal. Instead, Plaintiff first requested leave to
amend her Petition to add claims against Swinford on May 3, 2019, about five weeks after she
claims she learned new information suggesting she has a claim against Swinford (March 28, 2019).

100 Boyce v. CitiMortgage, Inc., 992 F. Supp. 2d 709,720 (W.D. Tex. 2014) (quotation and citation omitted).
101 Gallegos v. Safeco Ins. Co. of Indiana, 2009 WL 4730570, at *4 (S.D. Tex. Dec. 7, 2009).
102 Id.; See Irigoyen v. State Farm Lloyds, 2004 WL 398553, at *4 (S.D. Tex. Jan. 5, 2004).
103 See Schindler, 2005 WL 1155862, at *4 (holding that the plaintiff was not dilatory when she filed the motion to
amend a month and a half after she filed her state court petition and less than thirty days after removal to federal
court); Johnson v. Sepulveda Props., Inc., 1999 WL 728746, at *3 (E.D. La. Sept. 16, 1999) (amendment sought two
months after state court petition filed held not dilatory); Holcomb v. Brience, Inc., 2001 WL 1480756, at *2 (N.D.
Tex. Nov. 20, 2001) (amendment two months and one week after state court filing and one month and one week after
removal held not dilatory). See also McNeel v. Kemper Cas. Ins. Co., 2004 WL 1635757, at *3 (N.D. Tex. Jul. 21,
2004) (amendment five months after filing of state court petition and six weeks after removal held not dilatory);
Vincent v. East Haven Ltd. P’ship, 2002 WL 31654955, at *3 (E.D. La. Nov. 20, 2002) (amendment five months after
state court filing and six weeks after removal held not dilatory).
104 See, e.g., Thomas, 2019 WL 3211976, at * 4 (finding that plaintiff was dilatory when she sought to amend one year
after her state court petition was originally filed, eleven months after removal, and three months after the Rule 26(f)
report, which raised the to-be-added defendant’s fault for the first time, was filed, but ultimately granting plaintiff’s
motion for leave to amend after consideration of all four Hensgens factors); Salvation Army v. Union Pacific Railroad,
Inc., No. 16-347, 2017 WL 3528903 (W.D. La. Mar. 8, 2017) (finding that plaintiffs were not dilatory when they filed
a motion to amend “more than ten months” after they originally filed their petition in state court, despite “some
significant activity” beyond the pleadings stage having occurred.).
A five-week delay between the filing of the Brown & Lewis Petition by Decedent’s co-workers,
which named Swinford as a defendant, and the Motion for Leave does not suggest that Plaintiff
was dilatory.
Regardless, this case is still in the early stages, and no significant activity beyond the
pleadings stages has occurred.105 Additionally, Plaintiff filed her Motion for Leave within the
deadlines set in the Court’s Scheduling Order. This also suggests that Plaintiff has not been dilatory
in requesting leave.106 Accordingly, the second Hensgens factor weighs in favor of granting the

Motion for Leave to Amend.
3. Plaintiff will be prejudiced by denying leave to amend
The third Hensgens factor considers whether the plaintiff will be prejudiced if leave to
amend is denied. This factor also weighs in favor of granting the Motion for Leave.
“Considerations of cost, judicial efficiency and potentially inconsistent results weigh in favor of
not requiring [Plaintiff] to prosecute separate suits in two forums when both arise under the same
set of facts.”107 The PBF Defendants assert that Plaintiff will not be prejudiced and can obtain full
relief without the presence of Swinford because the PBF Defendants can satisfy any judgment that

105 Compare Salvation Army, 2017 WL 3528903, at *10 (finding the second Hensgens factor weighed in favor of
granting leave to amend, despite “some significant activity” beyond the pleadings stage having occurred, including a
prior report and recommendation and ruling on the issue of improper joinder, plus “[d]efendants’ filing of a dispositive
motion to dismiss which was fully briefed.”).
106 As noted by the Thomas court, “Hensgens’ seemingly incompatible treatment of time delays—[places plaintiffs in]
the proverbial ‘Catch-22.’ On one hand, if the plaintiff seeks to amend too soon after the remand, he is at risk of a
finding that he is seeking to improperly defeat diversity jurisdiction. On the other hand, the plaintiff is also at risk for
seeking to amend too late, at the risk of being deemed dilatory.” 2019 WL 3211976, at *4. Considering this “Catch-
22,” the Thomas court weighed the equities under Hensgens factor four and determined this “discrepancy is best
resolved by resort of an analysis for prejudice.” Id. In conducting the same analysis, the PBF Defendants will not be
prejudiced, as this case is still in its early stages.
107 Porter v. Times Group, No. 16-121, 2016 WL 8257692, at * 6 (M.D. La. No. 4, 2016), report and recommendation
adopted, 2017 WL 628296 (M.D. La. Feb. 15, 2107) (citing Joseph v. Fluor Corp., 513 F. Supp. 2d 664, 670 (E.D.
La. 2007)).
she is awarded.108 Like other courts in this circuit, this Court “decline[s] to force [Plaintiff] to
pursue only [certain] defendant[s] in this forum when [she] has a potentially viable claim against
others, as well.”109 Because Plaintiff has alleged that the PBF Defendants, Swinford, and others
are both individually and jointly liable, the PBF Defendants and Swinford “properly belong in the
same proceeding.”110 Further, if Plaintiff were forced to sue Swinford in a separate suit, “not only
would that suit likely be prescribed under Louisiana’s one-year prescriptive period for personal
injury actions, but a separate suit (if allowed to proceed) risks the possibility of inconsistent
judgments regarding the percentages of fault attributable to [all defendants].”111

4. The consideration of other equitable factors is neutral
The final Hensgens factor requires the Court to consider “other equitable factors” in
determining whether to allow plaintiff leave to amend. “Although equitable factors include
whether granting leave to amend would deprive a defendant of a properly invoked federal forum
and…would result in parallel state court proceedings, these factors are likely to be present
whenever a plaintiff in a removed case seeks to add a nondiverse defendant.”112 In addition, these
factors have already been analyzed in the consideration of the first three Hensgens factors. Since

108 R. Doc. 62, p. 8-9 (arguing that that “there has been [no] contention that any of the PBF Defendants are unable to
satisfy a judgment, and it strains credulity to think that [Plaintiff] has any real intention of pursuing an individual
employee to recover on her wrongful death claims, given the other parties named in the suit.”).
109 Lacy v. ABC Ins. Co., No. 95-3122, 1995 WL 688786, at *3 (E.D. La. Nov. 17, 1995). See also Porter, 2016 WL
8257692, at *6; Mergist v. Wal-Mart Stores, Inc., No. 6-138, 2016 WL 3648262, at *5 (M.D. La. June 9, 2016)
(allowing plaintiff to join non-diverse defendants against whom she had viable claims), report and recommendation
adopted, 2016 WL 3647623 (M.D. La. June 30, 2016).
110 Lacy, 1995 WL 688786, at *3.
111 Thomas, 2019 WL 3211976, at *4.
112 Gallegos, 2009 WL 4730570 at *5 (citing Smith v. Robin Am., Inc., 2009 WL 2485589, at *6 (S.D. Tex. Aug. 7,
2009)); Tomlinson v. Allstate Indem. Co., 2006 WL 1331541, at *6 (E.D. La. May 12, 2006)). While the PBF
Defendants’ “right to litigate in a federal forum…is not an insignificant consideration,” Salvation Army, 2017 WL
3528903, at *11, because Plaintiff’s claims “are based on state law, there is no reason to anticipate that the state court
would not or could not make fair determinations on the matters at issue.” Id.
the parties have not pointed to any additional equitable factors beyond these considerations, the
fourth Hensgens factor is neutral.
Based on the four-factor analysis set forth in Hensgens, Plaintiff should be allowed to file
an amended complaint naming Swinford, a non-diverse defendant. The primary purpose of the
proposed amendment is not to defeat federal jurisdiction. Plaintiff was not dilatory in naming
Swinford as a defendant. Plaintiff will be prejudiced if the amendment is denied, and neither party
has presented additional equitable considerations. The balance of the competing interests and

equities in this case weigh in favor of granting Plaintiff’s Motion for Leave with regard to adding
Swinford.
C. All Remaining Requests for Relief by Any Party Should Be Terminated if the
Court Lacks Subject Matter Jurisdiction
Because it is recommended that Plaintiff be permitted to add Swinford as a defendant,
which destroys complete diversity and this Court’s subject matter jurisdiction, it is not necessary
to address whether Plaintiff may reassert claims against Sprafka and LaCombe, after they were
previously found to be improperly joined. For the same reasons, it is not necessary to address
whether Plaintiff may assert claims against the New Clean Harbor Defendants and/or the Veolia
Entities or to decide the Motions to Amend Answer, filed by the PBF Defendants and Clean
Harbor. Rather than a determination on the merits, those motions (and the remaining relief sought
in the Motion for Leave) will be terminated as moot, subject to the ability to re-urge those motions
if this Report and Recommendation is not adopted, or as appropriate in state court after remand.
V. RECOMMENDATION
IT IS RECOMMENDED that the Motion for Leave to Amend,113 filed by Plaintiff,
Jeprece Roussell, on behalf of and as tutrix for S.C.R., the minor child of decedent Kierston
Roussell, be GRANTED as to the claims against Guy Swinford only.
IT IS FURTHER RECOMMENDED that all remaining relief sought in the Motion for
Leave to Amend be TERMINATED AS MOOT without prejudice to the ability to re-urge same
if this Report and Recommendation is not adopted, or as appropriate in state court after remand;

and that this matter be REMANDED to the Nineteenth Judicial District Court for the Parish of
East Baton Rouge.
Based on this Report and Recommendation, IT IS ORDERED that the Motion for Leave
to File Amended Answer,114 filed by the PBF Defendants, and the Opposed Motion for Leave to
File Amended Answer,115 filed by Clean Harbors, be TERMINATED AS MOOT without
prejudice to the ability to re-urge same if this Report and Recommendation is not adopted, or as
appropriate in state court after remand.
Signed in Baton Rouge, Louisiana, on September 18, 2020.
S

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

113 R. Doc. 52.
114 R. Doc. 51.
115 R. Doc. 53.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191542. Public record. Not legal advice.