# Patton v. Air Products and Chemicals, Inc.

> District Court, M.D. Louisiana · January 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10192862

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** January 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192862

## How later opinions describe it (automated extraction)

- concluding district court did not err in denying DeKort’s motion for partial summary judgment because he attempted to raise a new claim”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FREDERIC PATTON CIVIL ACTION
VERSUS
AIR PRODUCTS AND CHEMICALS, INC.,
ET AL. NO. 22-00392-BAJ-RLB
RULING AND ORDER
This is a personal injury case. Plaintiff alleges that due to Defendants Air
Products and Chemicals, Inc. (APC) and BrandSafway, LLC’s negligence, he suffered
serious injuries when he fell from a scaffolding structure at work. (See Doc. 1-3).
Now before the Court is Plaintiffs Motion For Summary Judgment On
Defendants’ Affirmative Defenses (Doc. 43), seeking summary judgment on
APC’s first, fourth, and fifth affirmative defenses and BrandSafway’s fourth,
sixteenth, twentieth, and twenty-third affirmative defenses. The Motion is opposed.
(Docs. 69, 72). Also before the Court is Plaintiffs Motion To Strike Defendants’
Affirmative Defenses (Doc. 45), seeking to strike APC’s third, sixth, and seventh
affirmative defenses and BrandSafway’s first, second, third, sixth, ninth, eleventh,
thirteenth, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second
affirmative defenses.! The Motion is opposed. (Docs. 61, 71). For the reasons that
follow, Plaintiffs Motion for Summary Judgment will be granted in part and his

! Plaintiff also moves to strike Defendant Air Products, LLC’s sixth affirmative defense. Air
Products, LLC has been dismissed from this lawsuit, and Plaintiff's Motion to Strike will
therefore be denied as moot with respect to this defense. (Doc. 81).

Motion to Strike will be denied as untimely.
I. BACKGROUND
A. Summary Judgment Evidence
The facts set forth below are drawn from Plaintiffs Statement Of Uncontested
Material Facts (Doc. 43-2, “Plaintiff SOF”), APC’s Response to Plaintiffs Statement
of Uncontested Facts (Doc. 86, “APC SOF”), BrandSafway’s Response to Plaintiffs
Statement Of Uncontested Material Facts (Doc. 78, “BrandSafway SOF’), the parties’
Joint Pre-Trial Order (Doc. 87, “Joint PTO”), and the record evidence submitted in
support of these pleadings.
i. APC Hires BrandSafway
APC is the owner and operator of an air processing facility within the Nova
Chemicals Corporation facility in Geismar, Louisiana. (Joint PTO at 4). Every three
years, the APC facility conducts a “turnaround,” which involves maintenance and
review of its equipment. (/d.; Plaintiff SOF at ¥ 2). During the planning process for
the 2020 turnaround, APC decided it would need scaffolding structures to facilitate
work on elevated equipment. (Plaintiff SOF at § 5).
To fill its scaffolding needs, APC hired BrandSafway as a scaffolding
contractor. Ud. at { 6, 10). The two entities entered into a Master Service Agreement
(MSA). Ud. at { 11). The MSA required BrandSafway to comply with APC’s safety
procedures and site-specific safety requirements. (Id. at ¢ 20). APC also conducted a
walkthrough of the worksite with BrandSafway representatives. (Plaintiff SOF at
19).

Pursuant to the MSA, APC issued a purchase order for each job APC asked
BrandSafway to perform. (/d. at § 11). The purchase order for the turnaround
scaffolding work called upon BrandSafway to build the scaffolding, offer “scaffold
support,” “[m]obilize personnel, equipment and material,” “[p]rovide inspections and
updates for ten shifts,” and “[d]e-mobilize personnel, equipment and material.” (Doc.
43-8 at 2). The purchase order set forth additional APC requirements, including
specifications for safety training, background checks, and personal protective
equipment. (/d. at 3-6).
As part of the agreed-to safety procedures, BrandSafway was required to
inspect scaffolding before it was used each day. (BrandSafway SOF at § 12). After
each such inspection, a BrandSafway scaffold builder signed and documented the
date of the inspection on a tag displayed on the scaffolding structure. (Plaintiff SOF
at 31; BrandSafway SOF at { 13). During shifts, unauthorized modification of
BrandSafway scaffolding sometimes occurred, although the parties dispute how
often. (See Plaintiff SOF at {| 32; BrandSafway SOF at ¥ 14; APC at § 32).
ii. APC’s Safety Work Permit System
During a turnaround, APC issues each contractor a daily Safety Work Permit
to work inside APC’s facility. (Doc. 69 at 2-3; Plaintiff SOF at { 23). The work permit
system is described in APC training material as a “communication, hazard risk
assessment, and safety tool which provides cooperation between operations and
maintenance/contractors on specific work inside the plant.” (Doc. 54-8 at 1). The
Safety Work Permit “must be issued by [APC] for any work in [turnaround] areas”

and “must be reviewed by the worker, crew leader, issuer, and any other appropriate
[APC] representative.” (Id. at 2).
In order to obtain a Safety Work Permit each day, APC requires that a
contractor “perform a pre-job risk assessment as well as a careful and thorough
review’ of the issued permit. ([d.). Contractors are instructed to “understand the time
limits, work restrictions and limitations, notification requirements, overall scope of
work, associated potential hazards, how to safeguard against those hazards... and
required personal protective equipment.” (/d.). Furthermore, “[e]ach contractor [has]
a designated [APC] host.” (d.).
Before issuing a work permit each day, “the permit issuer and permit receiver
(contractor) must [walk] the job site, review the work scope, [and] discuss and
understand the hazards.” (Ud.). After issuing a permit, APC materials state that “a
hard copy of the permit MUST be posted and visually displayed in the area where
work is being conducted. Each person on the work team MUST be made aware of the
safety information contained on the permit.” (d.). Above all, APC’s materials
repeatedly urge that “NO work shall be done in a [turnaround] area without the
issuance of the appropriate permit by [APC] personnel.” (Id.).
iii. Plaintiff's Role and the Fall Incident
As part of the 2020 turnaround, APC hired another contractor, JVIC Catalyst
Services, LLC to replace catalyst filtration material. (Plaintiff SOF at § 15). At the
time, Plaintiff was employed by JVIC as a Catalyst Technician. (Doc. 43-1 at 8; PTO
at 4). To fulfill their duties, JVIC employees, including Plaintiff, worked from a

scaffolding structure built by BrandSafway. (Plaintiff SOF at § 16). Each day before
a shift, after BrandSafway’s inspection, an APC employee would walk that scaffold
with the JVIC superintendent and issue a safety work permit to JVIC to begin work.
(APC SOF at { 34).
While working on the scaffolding, Plaintiff wore a “fall protection vest and
lanyard, as required by [APC].” (Doc. 48-1 at 9). As part of his fall protection
procedure, Plaintiff secured himself by clipping onto anchor points on the scaffolding.
(See Doc. 69 at 3).
On September 29, 2020, Plaintiff was part of a JVIC crew working from a
BrandSafway scaffold to unload and reload catalyst filtration material. (PTO at 4).
On that day, the inspection tag on the scaffolding in question was signed and dated
by a BrandSafway scaffold builder, as it had been “at least eight times prior to the
subject accident.” (BrandSafway SOF at { 13). The BrandSafway crew generally
reported to the facility at 6:00 a.m., attended a safety meeting, and began their
scaffold inspections around 6:40 a.m. (APC SOF at 6). No evidence suggests the
morning of September 29 did not unfold in the same way. When Plaintiffs JVIC
coworkers finished unloading catalyst filtration material around noon, Plaintiff went
up onto the scaffold to inspect the bottom of the unit. (/d.). At some point while
Plaintiff was there, the rail to which Plaintiff was anchored fell from the scaffold,
causing Plaintiff to fall between seven and ten feet, resulting in injuries to his head,
shoulder, and back. (See Docs. 48-1 at 9; 69 at 7; 72 at 2).

B. Procedural History
On September 29, 2021, Plaintiff sued Defendants APC, BrandSafway, and Air
Products, LLC in the 19th Judicial District Court for the Parish of East Baton Rouge,
State of Louisiana, seeking damages for injuries allegedly sustained in his fall from
the scaffolding. (See Doc. 1-2). On June 15, 2022, Defendants APC and Air Products,
LLC removed Plaintiffs action, invoking this Court’s diversity jurisdiction under 28
U.S.C. § 1832. (Doc. 1). On November 30, 20238, pursuant to a stipulation of dismissal
filed by all parties, Defendant Air Products, LLC was dismissed with prejudice from
the lawsuit. (Doc. 81).
Now, Plaintiff moves for summary judgment on APC’s first, fourth, and fifth
affirmative defenses and BrandSafway’s fourth, sixteenth, twentieth, and twenty-
third affirmative defenses. (Doc. 48). The Motion is opposed. (Docs. 69, 72).
Plaintiff also moves to strike APC’s third, sixth, and seventh affirmative
defenses and BrandSafway’s first, second, third, sixth, ninth, eleventh, thirteenth,
seventeenth, eighteenth, nineteenth, twenty-first and twenty-second affirmative
defenses. (Doc. 45). The Motion is opposed. (Doc. 61, 71).
II. ANALYSIS
A. Plaintiff's Motion for Summary Judgment
i. Standard
Federal Rule of Civil Procedure 56(a) provides that the Court may grant
summary judgment only “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). If the movant bears its burden, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Where
the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.” Id. at 587. Stated differently, “[ilf
the party with the burden of proof cannot produce any summary judgment evidence
on an essential element of [her] claim, summary judgment is required.” Geiserman v.
MacDonald, 893 F.2d 787, 793 (5th Cir. 1990).
ii. Discussion
Plaintiff moves for summary judgment on APC’s first, fourth, and fifth
affirmative defenses and BrandSafway’s fourth, sixteenth, twentieth, and twenty-
third affirmative defenses. (Doc. 43). APC opposes Plaintiffs Motion only with respect
to its first and fifth affirmative defenses. (Doc. 69). BrandSafway opposes Plaintiffs
Motion only with respect to its fourth affirmative defense. (Doc. 72). Failure to
address a claim in response to a partys summary judgment motion constitutes
abandonment of the claim. See Vela v. City of Houston, 276 F.3d 659, 678-79 (5th Cir.
2001). Accordingly, the Court finds no issue of material fact as to APC’s fourth and
BrandSafway’s sixteenth, twentieth, and twenty-third affirmative defenses, and will
grant Plaintiff's Motion as to those defenses. The Court now turns to the remaining
defenses.

a. APC’s” First and BrandSafway’s Fourth
Affirmative Defenses
In his Petition for Damages, Plaintiff alleges that Defendants’ actions or
omissions are the sole cause of his injuries and damages and constitute fault and
negligence under Louisiana Civil Code Article 2315. (Doc. 1-2 9 7). APC’s first and
BrandSafway’s fourth affirmative defenses each allege instead that Plaintiff is partly
or wholly responsible for his injuries because he failed to properly inspect his anchor
point on the BrandSafway scaffolding. (See Doc 43-1 at 11, 15).
To prove a negligence claim under Louisiana law, Plaintiff must establish: (1)
that the Defendants had a duty to conform their conduct to a specific standard, (2)
that Defendants’ conduct failed to conform to the appropriate standard, (3) that
Defendants’ substandard conduct was a cause in fact of Plaintiffs injuries (4) that
Defendants’ substandard conduct was a legal cause of Plaintiffs injuries, and (5)
actual damages.? Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008).
In Louisiana, comparative fault applies “in any action for damages” brought
“under any law or legal doctrine or theory of liability.” La. Civ. Code art. 2323.
Comparative fault means that “100% of the causative fault for a harm must be
allocated” and “each joint tortfeasor is only liable for his degree of fault.” Thompson
v. Winn-Dixie Montgomery, Inc., 2015-0477 (La. 10/14/15), 181 So. 3d 656,

2 “This Count sitting in diversity pursuant to 28 U.S.C. Section 13832 must apply Louisiana
law.” Jorge-Chavelas v. Louisiana Farm Bureau Cas. Ins. Co., 307 F. Supp. 3d 535, 552 (M.D.
La. 2018), aff'd, 917 F.3d 847 (5th Cir. 2019).

664. Louisiana’s pure comparative fault system renders summary judgment
inappropriate where reasonable minds could disagree about the apportionment of
fault. McCoy v. Energy XXI COM, L.L.C., 695 F. App'x 750, 756 (5th Cir. 2017)
(citing Allen v. Integrated Health Servs., Inc., 748 So.2d 804, 807 (La. Ct. App.
1999) (“Because we conclude that reasonable minds might differ as to the
apportionment of fault under these circumstances, we hereby reverse the trial court’s
grant of partial summary judgment which assessed the defendants with all the fault
for the accident.”)); Grabowski v. Smith & Nephew, Inc., 149 So.3d 899, 908 (La. Ct.
App. 2014), writ denied, 159 So.3d 1057 (La. 2015) (reversing the grant of summary
judgment in favor of a medical sales representative defendant because the summary
judgment record revealed a genuine dispute as to a material fact as to whether he
was potentially at fault).
Here, Defendants APC and BrandSafway sufficiently allege material disputes
of fact as to whether they are, as Plaintiff contends, wholly at fault for his injuries.
In his Motion, Plaintiff states that the “evidence shows that at all times [he] followed
[APC’s] rules and properly tied off his fall protection equipment, as required.” (Doc.
43-1 at 12). This is simply not the case.
For instance, Owen Hilton, JVIC’s Senior Safety Corporate Safety Manager,
testified that Plaintiffs training included inspecting the anchor point before
beginning work on a scaffold. (See Docs. 69 at 11; 72 at 4). In apparent violation of
this training, Plaintiff testified in his deposition that he did not perform any visual
inspection of the anchor point before attaching himself to it. (See Docs. 69 at 10-11;

72 at 5). But Plaintiff also testified that he believed he was only required to read the
inspection tag on the scaffolding and was not also required to check each anchor point
before connecting himself to it. (Doc. 69 at 11). This conflicting testimony about
Plaintiffs duty to protect himself represents precisely the kind of dispute that defeats
summary judgment. See Matsushita, 475 U.S. at 586.
BrandSafway takes the dispute one step further, arguing that Plaintiffs
Motion does not address the potential fault of non-parties. (Doc. 72 at 9).
BrandSafway states that Plaintiffs employer, JVIC, was responsible for ensuring
that Plaintiff was properly trained. (BrandSafway SOF at § 19). To the extent
Plaintiff did not receive proper training, BrandSafway argues that JVIC itself may
be at fault. (Doc. 72 at 10). BrandSafway also points to the evidence suggesting
workers may have made unauthorized alterations to the anchor point used by
Plaintiff. Ud.). The jury must be allowed to consider the fault of these unnamed
parties as well. See Slocum v. Anderson, No. CV 17-01781-BAJ-EWD, 2020 WL
738542, *2 (M.D. La. Feb. 13, 2020) (““Louisiana’s pure comparative fault scheme
requires the Court to consider whether any other parties could also be liable for
Plaintiffs injuries.”). In sum, Defendants have raised material fact disputes
regarding whether fault for Plaintiffs injuries can be fully apportioned to APC and
BrandSafway.
b. APC’s Fifth Affirmative Defense
In its fifth affirmative defense, APC alleges that it “discharged any and all
duties owed [Plaintiff]” when it contracted with BrandSafway “to construct and

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inspect the scaffolding to be used in the September 2020 Turnaround.” (Doc. 69 at
15). Now, Plaintiff argues that summary judgment is appropriate on this defense
because APC maintained “custody or garde” over the job site—and therefore its duty
to plaintiff—under two theories of negligence in Louisiana law: custodian liability,
La. Civ. Code art. 2317.1, and premises liability, La. Civ. Code art. 2322. (Doc. 43-1
at 12-13). APC responds that Plaintiff did not plead these specific theories of liability,
and so the Court’s analysis of Plaintiffs Motion should be limited to one of standard
negligence under La. Civ. Code art. 2315. (Doc. 69 at 14). The Court agrees.
It is well settled that a plaintiff is not “permitted to rely on an unpled theory
of recovery to defeat summary judgment.” Allstate Ins. Co. v. Plambeck, 2012 WL
2130982, at *3 (N.D. Tex. 2012) (refusing to consider a theory of recovery raised by
counterclaimant in opposition to summary judgment). Because Plaintiff did not plead
either custodian or premises theories of liability, the Court will not allow the Plaintiff
to amend his Petition via summary judgment. See U.S. ex rel. DeKort v. Integrated
Coast Guard Sys., 475 F. App'x 521, 522 (5th Cir. 2012) (concluding district court did
not err in denying DeKort’s motion for partial summary judgment because he
attempted to raise a new claim”). Significantly, Plaintiff does not respond to
Defendant’s argument. “The Fifth Circuit makes it clear that when a party does not
address an issue in his brief to the district court, that failure constitutes a waiver on
appeal.” JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 634 (M.D. La.
2018) (citing United States v. Reagan, 596 F.8d 251, 254-55 (5th Cir. 2010)
(deGravelles, J.) (defendant's failure to offer any “arguments or explanation ... is a

11

failure to brief and constitutes waiver”). “By analogy, failure to brief an argument in
the district court waives that argument in that court.” Jd.; see also Kellam v. Servs.,
No. 12-352, 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2018), aff'd sub nom. Kellam
v. Metrocare Servs., 560 F. App'x 360 (5th Cir. 2014) (““Generally, the failure to
respond to arguments constitutes abandonment or waiver of the issue.” (citations
omitted)). For these reasons, the Court’s analysis of Plaintiff's Motion will be limited
to standard negligence under La. Civ. Code art. 2315.
Under that law, a principal cannot be held liable for the injuries resulting from
the negligent acts of an independent contractor—like BrandSafway—unless “the
principal retains operational control over the contractor’s acts or expressly or
impliedly authorizes those acts.” Whittine v. Anadarko Petroleum Corp., No. CV 16-
15761, 2018 WL 2183888, at *3 (E.D. La. May 11, 2018) (citing Coulter v. Texaco, Inc.,
117 F.3d 909, 912 (5th Cir. 1997) (internal quotations omitted)) (Brown, C.J.). “[I]t is
not enough that [the principal] has merely a general right to order the work stopped
or resumed, to inspect its progress or to receive reports, to make suggestions or
recommendations which need not necessarily be followed, or to prescribe alterations
or deviations. ... There must be such a retention of right of supervision that the
contractor is not entirely free to do the work in his own way.” Hebert v. CXY Energy,
Inc., 72 F. Supp. 2d 681, 687-88 (W.D. La. 1999) (quoting LeJeune v. Shell Oil
Co., 950 F.2d 267, 270 (5th Cir. 1992)). Whether APC owed a duty to Plaintiff is a
question of law, but whether APC maintained operational control over its
subcontractors, including BrandSafway and JVIC, is a question of fact. Whittine,

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2018 WL 2183888, at *3 (citing Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d
558, 564 (5th Cir. 2008)).
Here, a fact issue remains as to whether APC retained control over the
scaffolding and its contractors such that APC retained its duty to Plaintiff. On one
hand, BrandSafway was “solely responsible for construction and inspection of the
scaffold ...as [BrandSafway] was [the] only company that employed certified scaffold
inspectors.” (Doc. 69 at 15). Decisions regarding selection of scaffolding material and
construction were “solely within the discretion of BrandSafway.” (Id.). These facts
support a finding that APC did not maintain operational control and did not have a
duty to Plaintiff. On the other hand, it can hardly be said that BrandSafway was
“entirely free to do the work in [its] own way.” LeJeune, 950 F.2d at 270. Recall that
APC used a daily permitting system for any contractor to do work. (Doc. 54-8 at 2).
These Safety Work Permits were to be “issued by [APC] for any work in [turnaround]
areas’ and had to be “reviewed by the worker, crew leader, issuer, and any other
appropriate [APC] representative.” (/d.). “Each contractor [had] a designated [APC]
host.” (d.). Before signing on a work permit, “the permit issuer and permit receiver
(contractor) ... walked down the job site, review[ed] the work scope, [and] discuss[ed]
and underst|ood] the hazards.” (/d.). APC rules stated that “a hard copy of the permit
MUST be posted and visually displayed in the work area. Each person on the work
team MUST be made aware of the safety information contained on the permit.” (Id.).
Above all, APC’s materials repeatedly urged that “NO work shall be done in a
[turnaround] area without the issuance of the appropriate permit by [APC]

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personnel.” (d.). These undisputed facts support a finding that APC retained
operational control over BrandSafway’s scaffolding and therefore had not completely
discharged its duty to Plaintiff. In sum, APC has pointed to disputed issues of
material fact regarding whether it may assert a discharge of duty defense against
Plaintiff's negligence claim. A jury must decide whether APC maintained control over
operations such that it had a duty to Plaintiff.
B. Plaintiffs Motion to Strike Defendants’ Affirmative Defenses
Plaintiff moves to strike APC’s third and seventh affirmative defenses and
BrandSafway’s first, second, third, sixth, ninth, eleventh, thirteenth, seventeenth,
eighteenth, nineteenth, twenty-first and twenty-second affirmative defenses. (Doc.
45). APC opposes Plaintiffs Motion with respect to its third affirmative defense, (Doc.
61), and BrandSafway opposes Plaintiffs Motion with respect to its second,
seventeenth, twenty-first and twenty-second affirmative defenses, (Doc. 71).
Under Rule 12(f) of the Federal Rules of Civil Procedure, a court “may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” “A motion to strike defenses should not be granted unless the
moving party demonstrates that denial of the motion would be prejudicial to the
moving party.” Alba-Cruz v. Ard, 2017 WL 2362010, at *2 (M.D. La. May 31, 2017).
Prejudice is a discretionary determination and one that this Court has held to a high
standard. See K&F Restaurant Holdings, Ltd. v. Rouse, No. 16-293, 2018 WL 3345294
(M.D. La. July 9, 2018) (deGravelles, J.) (finding that the plaintiffs’ allegations that

14

the defendants bribed plaintiffs’ employee and stole their secret recipes, which were
disseminated through newspaper articles, were not prejudicial).
Here, the Court need not reach the merits of Plaintiffs request to strike,
because the request itself is untimely. According to Rule 12(f)(2), “[t]he court may act

... on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.” Because
Defendants’ affirmative defenses were presented in their Answers, Plaintiff had 21
days from the docketing of the Answers to file his Motion to Strike. Here, the most
recent Answer to Plaintiffs petition was filed on April 14, 2022.3 Plaintiff did not file
his Motion to Strike until October 30, 2028, more than one year after Defendants’
affirmative defenses were asserted. Plaintiffs request, therefore, is untimely. See
McCoy v. SC Tiger Manor, LLC, No. CV 19-723-JWD-SDJ, 2022 WL 619922, at *3
(M.D. La. Feb. 11, 2022), report and recommendation adopted, No. CV 19-723-JWD-
SDJ, 2022 WL 619966 (M.D. La. Mar. 2, 2022) (denying plaintiff's motion to strike as
untimely); see Williams v. Crowe, No. 09-6440, 2011 WL 381806, at *1 (E.D. La. Feb.
2, 2011) ([B]ecause plaintiff did not file her motion to strike within 21 days after
being served with defendants’ answers, plaintiffs motion to strike is denied as
untimely”).

Brandafway filed its answer on November 8, 2021. (Doc. 54-14). Now-dismissed Defendant
Air Products, LLC filed its answer on November 16, 2021. (Doc. 54-13). APC filed its answer
on April 14, 2022. (Doc. 61-5).
15

Rule 12(f) also states that the Court may act “on its own” to strike a defense.
See McCoy, 2022 WL 619922, at *4. As Defendants represent in their responses that
they do not oppose Plaintiffs Motion to Strike with respect to APC’s seventh
affirmative defense and BrandSafway’s first, third, sixth, ninth, eleventh, thirteenth,
eighteenth, and nineteenth affirmative defenses, the Court strikes these defenses “on
its own.” Fed. R. Civ. Proc. 12(f).
Ill. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiffs Motion for Summary Judgment (Doc. 43) be
and is hereby GRANTED IN PART. Summary judgment is granted on Defendant
Air Products and Chemicals, Inc.’s fourth affirmative defense and Defendant
BrandSafway’s sixteenth, twentieth, and twenty-third affirmative defenses. In all
other respects, Plaintiffs Motion for Summary Judgment be and is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Strike (Doc. 45) be
and is hereby DENIED as untimely. To the extent Plaintiff seeks to strike the
affirmative defense of now-dismissed Defendant Air Products, LLC, Plaintiffs Motion
to Strike be and is hereby DENIED as moot.
IT IS FURTHER ORDERED that Defendant APC’s seventh affirmative
defense and Defendant BrandSafway’s first, third, sixth, ninth, eleventh, thirteenth,
eighteenth, and nineteenth affirmative defenses be and are hereby STRICKEN on

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the Court’s sua sponte motion. ca
Baton Rouge, Louisiana, this if “day of January, 2024

JUDGE BRIAN 1
UNITED STATE STRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192862. Public record. Not legal advice.