The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
STEPHEN M. GRUVER AND CIVIL ACTION
RAE ANN GRUVER, individually and
on behalf of MAXWELL R. GRUVER,
deceased 18-772-SDD-EWD
VERSUS
STATE OF LOUISIANA THROUGH THE
BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL
COLLEGE, et al.
RULING
This matter is before the Court on the Motion to Dismiss Second Amended
Complaint Pursuant to Rule 12(b)(6)1 filed by Defendant, Luke St. Germain (“St.
Germain”) and the Motion to Dismiss for Failure to State a Claim2 by Defendant, Philip
Clark (“Clark”) (or collectively “Defendants”). Plaintiffs, Stephen M. Gruver and Rae Ann
Gruver (“Plaintiffs”), individually and on behalf of their deceased son Maxwell R. Gruver
(“Max”), filed Oppositions3 to both motions. Because some of the same relief is requested
by St. Germain and Clark, the Court will address these motions simultaneously. For the
following reasons, both Motions will be denied.
I. FACTUAL BACKGROUND
This suit arises out of the tragic death of Maxwell R. Gruver, a student formerly
1 Rec. Doc. No. 220.
2 Rec. Doc. No. 221.
3 Rec. Doc. Nos. 222 & 223.
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enrolled at LSU, who died in September of 2017 following a fraternity-related hazing
incident.4 On September 13, 2017, several fraternity members of Phi Delta Theta
Fraternity (“Phi Delt”) summoned pledges, including Max, to the Phi Delt fraternity house
on LSU’s campus to participate in a hazing ritual known as “Bible Study.”5 “The Bible
Study ritual, like many other fraternity rituals, involved the provision and compelled
excessive consumption of alcohol by pledges, all of whom were under the lawful drinking
age in the State of Louisiana[.]”6 This ritual “was a test of the pledges’ knowledge of
fraternity history and the Greek alphabet. Pledges were singled out to answer questions,
and if they answered incorrectly, they were compelled to take a pull – a three to five
second chug – directly from a bottle of Diesel, 190-proof alcohol.”7 However, “Max was
singled out for particularly harsh treatment by the fraternity members. While most pledges
were compelled to take three or four pulls during Bible Study, Max was ordered to take at
least 10 to 12 pulls.”8 Plaintiffs alleged that:
By 11:30 p.m., Max was incapacitated and in visible need of emergency
medical or other responsible care. Yet, fraternity members left Max,
unconscious, on a couch. Hours passed. At around 9:00 a.m. on September
14, 2017, fraternity members found Max unresponsive. Again, emergency
assistance was not called, and any other responsible care was withheld.
Fraternity members summoned fraternity pledges to the fraternity house
and told the pledges to take Max to the hospital and to lie and tell hospital
staff they had found Max in his dorm room. Max was pronounced dead at
the hospital. His blood alcohol content was 0.495 when measured at his
autopsy one-and-a-half days later.9
The following allegations are asserted against St. Germain and Clark in the
4 For a full factual background in this matter, see Rec. Doc. No. 116.
5 Rec. Doc. No. 214, ¶ 4.
6 Id. at ¶ 4.
7 Id. at ¶ 60.
8 Id. at ¶ 5.
9 Id. at ¶ 6.
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Second Amended Complaint. For the relevant time period, St. Germain is alleged to have
been a student of LSU, a member of Phi Delt, and an executive board member of
Louisiana Beta, serving as the Treasurer of Louisiana Beta, in the Fall of 2017.10 Clark
served with St. Germain as the Chapter Pledge Educator of Phi Delt, Louisiana Beta.11
Plaintiffs have alleged that various acts and omissions by St. Germain and Clark
contributed to the cause of Max’s death. Specifically, Plaintiffs allege that, two days
before the Bible Study of September 13, 2017, St. Germain, Clark, and the other
executive board members met to discuss the extreme and dangerous manner in which
fraternity member Matthew Naquin (“Naquin”) was handling the pledges.12 The board
members, including St. Germain and Clark, agreed to address the issue at a chapter
meeting later that day, which included the discussion of possibly imposing penalties on
Naquin for this type of conduct. Yet, no penalties were ever imposed.13 At this chapter
meeting, Naquin was allegedly warned about his conduct with pledges both by the board
members and then individually by Clark, who was particularly alarmed at Naquin’s
behavior and concerned for the pledges’ safety; yet, Naquin allegedly advised that “he
would do what he wanted.”14
Plaintiffs also allege that St. Germain, Clark, and other board members knew of
another fraternity member’s dangerous conduct with the pledges, specifically co-
defendant herein Sean Paul Gott (“Gott”); yet, despite St. Germain’s, Clark’s, and the
other executive board members’ positions of authority and obligations to “enforce, and
10 Rec. Doc. No. 214, ¶ 36.
11 Id. at ¶ 33.
12 Id. at ¶ 64.
13 Id. at ¶ 69.
14 Id. at ¶ 70.
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uphold Phi Delt’s … purported prohibitions on hazing, misuse and abuse of alcohol, and
other related misconduct,”15 St. Germain, Clark, and the other board members “knowingly
and recklessly permitted” Naquin and Gott “to participate in and direct a significant portion
of the Bible Study” hazing ritual on September 13, 2017.16 Plaintiffs maintain these acts
and failures to act by St. Germain, Clark, and the other board members resulted in and
contributed to Max’s death.
On August 16, 2018, Plaintiffs filed their original Complaint.17 On October 15,
2019, Plaintiffs filed a First Amended Complaint, which added St. Germain and Clark as
Defendants. On June 23, 2020, Plaintiffs filed a Second Amended Complaint adding
Allstate Insurance Company of Canada as a Defendant.18 The claims and allegations
against St. Germain and Clark are the same as in the First Amended Complaint.19 The
claims against St. Germain are for wrongful death, survival action, and negligence under
Louisiana Law. The claims asserted against Clark are for wrongful death and survival
action.
II. MOTION TO DISMISS UNDER RULE 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”20 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”21 “To
15 Id. at ¶ 65.
16 Id. at ¶¶ 72-73.
17 Rec. Doc. 1.
18 Rec. Doc. 214.
19 Rec. Doc. No. 221-1 p. 3; Rec. Doc. No. 214.
20 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
21 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
Document Number: 64353 4
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”22 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”23 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”24 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”25 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”26 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”27 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”28
Both St. Germain and Clark move for dismissal, arguing Plaintiffs’ Louisiana state
law claims against them are prescribed. St. Germain moves alternatively under 12(b)(6)
22 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d at 467).
23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets
omitted)(hereinafter Twombly).
24 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations
omitted)(hereinafter “Iqbal”).
25 Twombly, 550 U.S. at 570.
26 Iqbal, 556 U.S. at 678.
27 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
28 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
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to dismiss claims brought against him in his individual and official capacities as an officer
of Phi Delt. Plaintiffs oppose both motions.
A. Prescription/Relation Back
Defendants St. Germain and Clark make essentially the same argument regarding
prescription. They contend that the wrongful death and survival actions are subject to a
prescriptive period of one year following Max’s death; consequently, because these
Defendants were added to the suit more than two years after Max’s death, they are
prescribed.29 Further, Defendants contend any attempt to argue that the Amended
Complaints relate back to the original under Rule 15(c) of the Federal Rules of Civil
Procedure also fails because, under Rule 15(c)(1)(C), an amended complaint bringing in
a new party must be filed “within the period provided by Rule 4(m)” and “the party to be
brought in (i) received such notice of the action that it will not be prejudiced in defending
on the merits.”30 Defendants note that the time set forth in Rule 4(m) is 90 days, and,
because the Amended Complaint was filed “some 14 months later,”31 Rule 15 provides
no relief and Plaintiffs cannot “carry their burden of showing that their claims are not
prescribed.”32
Plaintiffs counter that Louisiana law controls the prescription period applicable to
the wrongful death and survival claims, and the prescriptive period for these types of
claims is a period of liberative prescription of one year.33 But, these claims are subject to
interruption, and “interruption of prescription against one joint tortfeasor is effective
29 Rec. Doc. No. 220-1, p. 7; Rec. Doc. No. 221.
30 Id. (citing FED. R. CIV. P. 15(C)).
31 Id. at p. 8.
32 Id. at pp. 7-8.
33 Rec. Doc. No. 222, p. 7.
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against all tortfeasors.”34 Plaintiffs acknowledge that they must allege (and ultimately
prove) joint tortfeasor status,35 and there must ultimately be liability of a timely sued
tortfeasor.36 Because Plaintiffs have specifically alleged that St. Germain and Clark are
joint tortfeasors with other defendants named in the original Complaint, interruption as to
one tortfeasor applies to all tortfeasors alleged to be jointly and severally liable, and
Defendants’ relation back argument is inapplicable here.
La. C.C. art. 2324(C) provides that “[i]nterruption of prescription against one joint
tortfeasor is effective against all joint tortfeasors.” However, before it can be determined
whether prescription was interrupted as to the claims at issue, the Court must first
determine if the claims at issue are subject to interruption. In Watkins v. Exxon Mobil, the
Louisiana supreme court addressed whether the one-year period for instituting a survival
action is prescriptive or peremptive,37 and the court concluded that both a survival action
and a wrongful death claim are governed by a one-year period of liberative prescription.38
Since both claims are subject to liberative prescription, the claims are subject to
interruption of prescription.
Next, the Court must determine if/when prescription was interrupted. In McKenzie
v. Imperial Fire, a Louisiana state appellate court addressed a case wherein the plaintiff
filed a petition for damages for personal injuries,39 and, almost two years later, the plaintiff
amended her petition adding an additional defendant.40 The court determined that if there
34 Id. at p. 8; La. Civ. Code art. 2324(C).
35 See Lajaunie v. Colony Ins. Co., 1999-1771 (La.App. 1 Cir. 9/22/00), 767 So.2d 933, 935; see also Rec.
Doc. No. 223 p. 5.
36 Miller v. Mancuso, 388 Fed. Appx. 389, 391 (5th Cir. 2010).
37 Watkins v. Exxon Mobil Corp., No. 2013-CC-1545, (La. 5/7/14), 145 So. 3d 237, 238.
38 Id. at 243–44.
39 McKenzie v. Imperial Fire and Cas. Ins. Co., 2012-1648 (La.App. 1 Cir. 7/30/13), 122 So. 3d 42, 45.
40 Id. at 45.
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was a timely filed suit interrupting prescription against a joint tortfeasor, such interruption
was applied to all joint tortfeasors.41 Additionally, relying on Louisiana Civil Code article
3463, the court held that the interruption of prescription remains in effect if the suit is still
pending when the amended petition is filed.42 Therefore, as long as the case is pending,
interruption continues,43 and, under 2324(C), the interruption is effective against all joint
tortfeasors.44
Finally, the Court must determine whether the allegations plead the basis for a joint
and solidary obligation. “Joint and solidary tortfeasor liability exists when a plaintiff can
show that each actor ‘had a substantial role in bringing about the results’ of their
actions.”45 Further, “the fact that the allegations made against the original defendants
were the same as those made against the newly added defendants” can be sufficient to
establish a joint tortfeasor relationship.46
Plaintiffs rely on two cases that are particularly applicable here. In Ford v. Murphy
Oil, the federal court for the Eastern District of Louisiana held that joint and several liability
may be imposed on “’persons whose separate wrongful actions, not done in concert,
contribute in unknown proportions … to cause indivisible injury.’”47 The Ford court
explained that the “basis for joint tortfeasor status contemplates independent acts which
unite to cause a single injury;” thus, “‘separate acts’ or ‘separate wrongs’ of the
41 Id. at 48.
42 Id. at 49; La. Civ. Code art. 3463.
43 Id.
44 Id.
45 Maronge v. Hunt Petroleum Co., No. CV 08-4959, 2009 WL 10680058, at *3 (E.D. La. Apr. 29, 2009)
(quoting Lawrence v. St. Bernard Police Dep’t, No. 99–3494, 2002 WL 31496374, at *4 (E.D. La. Nov. 6,
2002)).
46 Id.
47Ford v. Murphy Oil U.S.A., Inc., 750 F. Supp. 766, 772 (E.D. La. 1990)(quoting Thompson v. Johns–
Manville Sales Corp., 714 F.2d 581 (5 Cir.1983) (citing Hillburn v. Johnson, 240 So.2d 767 (La.App. 2
Cir.1970)); see also Brooks v. Roussel, 384 So.2d 576 (La.App. 4 Cir.1980))).
Document Number: 64353 8
defendants are not functionally or conceptually separate and independent.”48 In
Duplechain v. Clausing Machine Tools, a Louisiana state appellate court reinforced the
well-settled law that “joint tortfeasors are deemed solidary obligors, even though their
concurrent negligence results from different acts or breaches of different obligations.”49
Further, even where “neither the original nor amended petitions explicitly allege solidary
liability,” if the “facts claimed, and the prayer for relief, treat all of the defendants as joint
tortfeasors,” Louisiana law will view them as such.50 Thus, the alleged conduct by the
joint tortfeasors in this case does not have to be the same; it is sufficient that Plaintiffs
allege that their conduct, although different, contributed to causing the ultimate injury –
Max’s death.
The Court finds that Plaintiffs have sufficiently alleged facts that, if proven, would
demonstrate that St. Germain and Clark are joint tortfeasors with the originally named co-
Defendants.51 As such, under Louisiana law, the timely filed suit against the original
Defendants also interrupted prescription as to St. Germain and Clark later named in the
Amended Complaints.52 The motions to dismiss based on prescription shall be DENIED.
48 Ford, 750 F. Supp. at 772.
49 Duplechain v. Clausing Mach. Tools, 420 So. 2d 720, 722 (La. App. 4th Cir. 1982)(citing Thomas v. W &
W Clarklift, Inc., 375 So.2d 375 (La.1979); Cavalier v. City of New Orleans, 273 So.2d 303 (La.App. 4th Cir.
1973); Pearson v. Hartford Accident and Indemnity Co., 281 So.2d 724 (La.1973)).
50 Duplechain, 420 So. 2d at 722.
51 Moreover, federal courts require a notice pleading standard, which is a more relaxed standard than
Louisiana’s fact pleading standard. FED. R. CIV. P. 8(a)(2); see Wheat, 984 So. 2d at 776. Taking that into
consideration with federal 12(b)(6) standards, the Court must accept the well-pleaded facts as true, and
Plaintiffs have plausibly alleged a joint and solidary obligation among the original and recently added
Defendants.
52 The relation back argument is, therefore, inapplicable.
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B. Individual Capacity Claim against St. Germain
St. Germain moves alternatively to dismiss the individual claims asserted against
him, stating: “plaintiffs have not pled the elements of an individual capacity claim, much
less facts that would support such a claim.”53 St. Germain further contends there are no
allegations pled regarding his personal or individual involvement with the hazing incident;
rather, Plaintiffs only allege liability that is “strictly derivative of his position as an officer
of the organization.”54 Additionally, St. Germain maintains Plaintiffs have offered only
legal conclusions and labels in asserting that he “failed to act” or “knew or should have
known,” which are not “facts” supporting individual liability.
In opposition to this argument, Plaintiffs rely heavily on the Louisiana Third Circuit
Court of Appeals decision in Nizamutdinova v. Kappa Sigma Fraternity to support their
argument that an executive officer’s leadership position in a fraternity chapter can impose
personal/individual liability.55 The Court agrees that the facts of Nizamutdinova are similar
to those alleged herein, and the court’s reasoning and analysis are persuasive.
Nizamutdinova involved allegations that pledge members at a college fraternity
were hazed in a variety of ways for approximately a week.56 By the end of the week,
pledges were called throughout the night to be designated drivers for intoxicated
pledges.57 One of the designated drivers from the fraternity fell asleep at the wheel and
collided with another vehicle, killing the driver of that vehicle.58 The deceased’s mother
brought a wrongful death and survival action against the fraternity’s board members in
53 Rec. Doc. No. 220-1, p. 11.
54 Id. at p. 10.
55 18-886 (La.App. 3 Cir. 10/2/19), 280 So.3d 1003.
56 Id. at 1008.
57 Id.
58 Id. at 1009.
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their individual and official capacities.59 The defendants challenged the allegations of
personal liability, and the court had to determine “whether the amended petition sets forth
any facts under which [Louisiana] law could recognize that the Individual Defendants
owed Plaintiff a duty to protect against the harm sustained.”60
Although the deceased was not affiliated with the fraternity, the court found that
the harm was “a harm for which the various anti-hazing provisions were drafted and
enacted to prevent.”61 The court applied Civil Code art. 2315 which states that “every man
[is] to repair the damage caused by his fault,” 62 and stated that a breach of the duty to
“protect against the risk involved makes the offender” negligent.63 The alleged duty was
“to not engage in, encourage, authorize, or substantially support hazing activities”
and to prevent risks associated with that duty, including sleep deprivation activities.64 The
court further held that individuals should not be able to escape liability solely because
they are a member of a fraternity.65 The Nizamutdinova court quoted the Louisiana
supreme court’s decision in Buster Hughes, Inc. v. Bernard,66 holding that ‘“[t]he law is
settled”’ that an agent who breaches a duty owed to another, whether or not the act that
result in injury was ‘“committed by or for the corporation,”’ is personally liable to the injured
third person regardless if liability ‘“might also attach to the corporation.”’67
The reasoning and analysis in Nizamutdinova are applicable to the facts alleged
herein. Plaintiffs have alleged that the duty of the individual Defendants arose when they
59 Id. at 1005-06.
60 Id. at 1010.
61 Id. at 1011.
62 Id. (quoting La. Civ. Code art. 2315).
63 Id. (quoting Morris v. Orleans Par. Sch. Bd., 553 So.2d 427, 429 (La.1989)).
64 Id. at 1011.
65 Id. at 1012.
66 318 So.2d 9, 12 (La.1975).
67 Nizamutdinova, 280 So.3d at 1012 (quoting Buster Hughes, 318 So.2d at 12).
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voluntary undertook the responsibilities of board members, which included the duty to
enforce risk prevention policies.68 Plaintiffs allege that St. Germain and other board
members permitted and tacitly authorized the Bible Study hazing, which arguably
breached their duties and contributed to cause the harm that came to Max.69 Moreover,
the hazing incident that led to Max’s death happened in the fraternity house, and it is
alleged specifically - not just generally - that the board members, including St. Germain,
knew of the potential and likely harm that could occur to Max if they breached their duty
as board members to enforce non-hazing rules. Plaintiffs further allege St. Germain and
the board members failed protect Max, a known vulnerable target, from fraternity
members the board allegedly knew were behaving dangerously and intended to target
Max with more extreme treatment:70
62. During Bible Study, fraternity members targeted Max because, upon
information and belief, he had previously arrived late to pledge activities
and/or because he had complained to the pledge master of his pledge class
about a hazing incident in which Phi Delt and Louisiana Beta Member
Hudson Kirkpatrick (“Kirkpatrick”) made Max use a friend’s car to pick up
Kirkpatrick and two friends, who Max was led by Kirkpatrick to believe were
Phi Delt members, and to then buy them approximately $60 worth of
cigarettes.
63. The week prior to Bible Study, Naquin had suggested to the fraternity
members that they cut Max from the pledging process altogether.71
The Court finds that Plaintiffs have adequately and plausibly alleged state law tort claims
against St. Germain and the other individual Defendants in their individual capacities. St.
Germain’s alternative motion to dismiss individual liability claims is DENIED.
68 Rec. Doc. No. 214, pp. 50-51.
69 Id. at ¶ 221; see also Rec. Doc. No. 222 p. 14-15.
70 See Rec. Doc. No. 222, p. 13.
71 Rec. Doc. No. 214, ¶¶ 62 & 63.
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C. Official Capacity Claims against St. Germain
St. Germain moves to dismiss official capacity claims asserted against him in his
capacity as a board member. However, Plaintiffs conceded they have not alleged official
capacity claims against St. Germain:
Plaintiffs do not assert “official capacity” claims against Defendant St.
Germain in his capacity as an officer of Louisiana Beta. Plaintiffs have not
alleged that Defendant St. Germain is a public official. Nor have Plaintiffs
named Defendant St. Germain as a Defendant as an alternative means of
pleading a cause of action against a governmental entity.72
Accordingly, this motion is DENIED as moot.
III. CONCLUSION
For the reasons set forth above, the Motion to Dismiss Second Amended
Complaint Pursuant to Rule 12(b)(6)73 filed by St. Germain and the Motion to Dismiss for
Failure to State a Claim74 filed by Clark are hereby DENIED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 4th day of January, 2021.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
72 Rec. Doc. No. 222, p. 16 (citation omitted).
73 Rec. Doc. No. 220.
74 Rec. Doc. No. 221.
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