The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
DAMON RYAN, ET AL. CASE NO. 2:19-CV-01095
VERSUS JUDGE JAMES D. CAIN, JR.
PHILLIPS 66, ET AL. MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Before the court is a Motion to Reconsider/Alter Judgment and Motion for Hearing
[doc. 35] filed by plaintiffs Damon Ryan and Brian Bilbo, regarding the dismissal [doc.
34] of their claims against Westlake Chemical Corporation (“Westlake”) on the basis of
prescription. Westlake opposes the motions.
I.
BACKGROUND
This suit arises from an alleged explosion and chemical emission in Calcasieu
Parish, Louisiana, on August 22, 2018. Plaintiffs filed suit in this court on August 20, 2019,
against Cajun Industries, LLC; Phillips 66; Westlake; and Sasol North America. Doc. 1.
Plaintiffs maintained that they had been exposed to hazardous and toxic chemicals as a
result of the explosion, and that defendants were therefore liable to them under Louisiana
Civil Code article 2315.
As the basis for this court’s jurisdiction the plaintiffs asserted complete diversity
under 28 U.S.C. § 1332. Defendants Westlake, Cajun Industries, and Phillips 66 then
moved to dismiss the suit for lack of jurisdiction, noting that the plaintiffs and Cajun
Industries were citizens of Louisiana while the citizenship of Sasol North America had not
been properly alleged and could not be ascertained at the moment. In response the plaintiffs
filed an amended complaint and moved to dismiss their claims against Sasol North America
and Cajun Industries. The court granted plaintiffs’ motions to dismiss and denied the
defendants’ motions as moot. Docs. 28, 31.
Westlake then moved to dismiss the suit under Rule 12(b)(6), asserting that it has
prescribed under Louisiana law because no defendant was served before the one-year
prescriptive period ran and prescription was not interrupted until the jurisdictional defects
in the suit were cured. Doc. 29; see La. Civ. Code art. 3492 (providing prescriptive period
for delictual actions). Plaintiffs opposed the motion, maintaining that prescription was
interrupted by the filing of the first complaint and that the amended complaint related back
to that date. Doc. 32. The court disagreed and granted the motion on January 6, 2020,
dismissing the claims against Westlake as prescribed. Docs. 33, 34. Because Phillips 66
had not joined in the motion, its claims remained pending before the court.
By motion dated February 3, 2020, plaintiffs now request that the court alter its
judgment under Federal Rule of Civil Procedure 59(e) or provide relief from same under
Rule 60(b). They first request that the court reconsider its prior ruling based on Brown v.
Texas & P.R. Co., 392 F. Supp. 1120 (W.D. La. 1975). They also argue – based on
allegations omitted from their complaint – that prescription was continuously interrupted
against all tortfeasors when plaintiffs filed worker’s compensation claims against their
employers in April 2019. They further assert that defendants concealed facts relating to the
identity of the tortfeasor, making their claims timely under the doctrine of contra non
valentem. Finally, they argue in the alternative that the court’s dismissal of their claims
should have been without prejudice. They also request a hearing in order to introduce oral
testimony. Doc. 35. Westlake opposes the motions. Doc. 37.
II.
LAW & APPLICATION
A. Grounds for Relief Under Rule 59(e)
A motion for relief from judgment is analyzed under Federal Rule of Civil
Procedure 59(e), which allows alteration or amendment of a judgment, if it is filed within
28 days of the entry of judgment. See Williams v. Thaler, 602 F.3d 291, 303 (5th Cir. 2010).
Otherwise it is analyzed under Rule 60(b), which permits the same relief. Id.; Harcon
Barge Co., Inc. v. D&G Boat Rentals, Inc., 784 F.2d 665, 669 (5th Cir. 1986). Plaintiffs’
motion was filed 28 days after the challenged judgment and is thus governed by Rule 59(e).
Relief under Rule 59(e) is “an extraordinary remedy that should be used sparingly.”
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). It “serves the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence.” Id. (cleaned up). Accordingly, such a motion “cannot be used to
raise arguments which could, and should, have been made before the judgment issued.”
Schiller v. Physicians Resource Grp., Inc., 342 F.3d 563, 568 (5th Cir. 2003).
Plaintiffs made no mention of contra non valentem or filing worker’s compensation
claims in either their complaints or their opposition to Westlake’s Motion to Dismiss. They
also fail to show why they could not have raised these issues before judgment was entered.
Accordingly, these arguments do not provide a basis for relief under Rule 59(e). See, e.g.,
Davila v. Wal-Mart Stores, Inc., 2017 WL 1509303, at *4 (N.D. Tex. Apr. 27, 2017) (rule
should not be used “as a ‘back up plan’ for curing briefing deficiencies”).
B. Alleged Errors of Law
In dismissing this matter, the court held that plaintiffs did not interrupt prescription
when they filed suit because the court lacked jurisdiction over the matter under 28 U.S.C.
§ 1332 until plaintiffs dismissed their claims against non-diverse defendants. The court
also rejected plaintiffs’ argument that their amended complaint, dismissing the non-diverse
parties, related back to the date of the original under Federal Rule of Civil Procedure 15(c)
and was therefore timely. Accordingly, unlike the worker’s compensation and contra non
valentem arguments, plaintiffs did raise the issue of relation back in their original
opposition to the motion to dismiss. The briefing deficiency lay instead in not locating
cases that would support their point.
Now, however, plaintiffs point to Brown v. Texas & P.R. Co., 392 F.Supp. 1120
(W.D La. 1975). There the court considered a similar scenario, in which plaintiffs had filed
suit in this court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, but named the
Caddo Parish Police Jury as a defendant. The court permitted dismissal of claims against
the non-diverse defendant and the remaining defendants moved to dismiss the suit as
prescribed, arguing that the filing of the original complaint had not interrupted prescription.
The court then held that amendments dismissing parties in order to cure jurisdictional
defects would relate back to the filing of the original petition, even if the court lacked
jurisdiction over the case as it was first pleaded.
A “manifest error” justifying relief under Rule 59(e) “is one that ‘is plain and
indisputable, and that amounts to a complete disregard of the controlling law.’” Pechon v.
La. Dep’t of Health and Hospitals, 2009 WL 2046766, at *4 (E.D. La. Jul. 14, 2009)
(quoting Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004)). The
court acknowledges Brown’s persuasive value. However, the decision is not binding
authority and would not show a “manifest error” of law.
Additionally, as Westlake notes, this court’s prior judgment is supported by another
decision from our district. See Anderson v. Phoenix of Hartford Ins. Co., 320 F.Supp. 399,
405–06 (W.D. La. Oct. 19, 1970), aff’d sub nom. Anderson v. Papillion, 445 F.2d 841 (5th
Cir. 1971). In that matter, the parties discovered that a suit filed in federal court on the basis
of diversity jurisdiction actually contained a plaintiff and defendant from the state of Texas.
The suit had since prescribed under state law, but plaintiffs sought to rescue the matter by
dismissing the non-diverse defendant and amending the complaint to include other
defendants diverse to the plaintiff. The court held that the amendment did not relate back
because it was one adding a new party to the lawsuit. It also concluded:
This Court had no jurisdiction of the original action against either
Papillion or Phoenix. The action against Phoenix is prescribed. There is
nothing for plaintiff to relate back to. Under any interpretation of Rule 15(c)
a prerequisite is that the original action was timely filed and is presently
viable.
Id. at 405–06. Affirming the decision, the Fifth Circuit emphasized that “state statutes of
limitations, not the Federal Rules of Civil Procedure, govern the determination of whether
[diversity cases] are brought timely.” Anderson, 445 F.2d at 842. Accordingly, the citation
to Brown shows no basis for relief under Rule 59(e).
Finally, plaintiffs assert that dismissal should have been made without prejudice
because it was not certified as a final judgment under Federal Rule of Civil Procedure 54(b)
and because there has not been a trial on the merits. A dismissal on statute of limitations
grounds operates as a final adjudication on the merits under both state and federal law.
Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 880 F.2d 818, 819–20 (5th Cir.
1989); see Rose v. Computer Science Corp., 2017 WL 2911580, at *4 & n. 46 (E.D. La.
Jul. 7, 2017) (collecting cases). Entry of a “final judgment” under Rule 54(b) only goes to
the appealability of the ruling before the remaining claims are decided. Dismissal of the
claims with prejudice was thus appropriate in this matter.
Plaintiffs fail to show any grounds for alteration of the judgment under Rule 59.
They also fail to demonstrate how oral testimony might benefit their cause. While it is
regrettable that plaintiffs will lose their claims to prescription, the error could have easily
been avoided by bringing suit in state court when uncertainty existed as to the citizenship
of the parties. Accordingly, plaintiffs’ motions must be denied.
Phillips 66 did not join in the original motion to dismiss and remains as sole
defendant to this matter. With the prescription issue now having been twice litigated, the
court finds that the case should be brought to a close. The prescription findings inure to the
benefit of Phillips 66, despite its failure to request dismissal. Lewis v. Lynn, 236 F.3d 766,
768 (5th Cir. 2001). Accordingly, the court will now dismiss all claims against that party
with prejudice.
III.
CONCLUSION
For the reasons stated above, the Motion to Reconsider/Alter Judgment and Motion
for Hearing [doc. 35] will be denied. All claims against Phillips 66 will be dismissed with
prejudice, resulting in the closure of this case.
THUS DONE in Chambers on this 3rd day of March, 2020.
. < JAMES D. CAIN , JR. .
UNITED STATES DISTRICT JUDGE
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