Appendix — Irvin v. Hydrochem Inc.

Supreme Court, U.S.

O4 237 AUG 16 2004

OFFICE OF THE CLER<

No.

In the Supreme Court of the Cnited States

JIMMY IRVIN, Individually and on Behalf of His Minor

Child, Adam Irvin; MELBA IRVIN, Indivi and on

Behalf of Her Minor Child, Adam Irvin,

Petitioners,

Vv.

HYDROCHEM INC.; HYDROCHEM INDUSTRIAL SERVICES,

INC.; GEORGIA GULF CORPORATION; MASTER

MAINTENANCE CORPORATION; MASTER MANAGEMENT

CORPORATION; PAYNE & KELLER COMPANY, INC.;

LOUISIANA INTRASTATE GAS Co., L.L.C.; L.I.G, LIQUIDS

Co., L.L.C.; AMOCO PIPELINE Co.; AMOCO ENERGY

TRADING CORPORATION; XL INSURANCE Co.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

ROBERT S. ABDALIAN

Counsel of Record

ROBERT S. ABDALIAN, LLC

1050 S. Jefferson Davis

New Orleans, LA 70125

(504) 304-2308

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APPENDICES

. United States Court of Appeals

Denial of Rehearing

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. Opinion of United States Court of Appeals

for the Fifth Circuit

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. District Court Ruling on Motion to Alter,

Amend and Reconsider Judgment

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. Judgment of the District Court

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. Ruling on Motion for

Summary Judgment or Dismissal

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. District Court Ruling on Motions

(to remand to state court)

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. District Remand Ruling in the related case

of Acosta v. Master Maintenance & Constr.,

Inc., 52 F. Supp. 2d 699 (M.D. La. 1999)

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Appendix A

UNITED STATES COURT OF APPEALS

, For The Fifth Circuit

No. 03-30250

LUCIEN TEMPLET, JR.; ET AL.,

Plaintiffs,

MELBA IRVIN, Individually and on Behalf of Her

Minor Child, Adam Irvin; JIMMY IRVIN, Individu-

ally and on Behalf of His Minor Child, Adam Irvin

Plaintiffs-Appellants,

VERSUS

HYDROCHEM INC-.; ET AL.,

Defendants,

HYDROCHEM INC.; HYDROCHEM INDUSTRIAL

SERVICES INC.; GEORGIA GULF CORPORATION;

MASTER MAINTENANCE CORPORATION; MAS-

TER MANAGEMENT CORPORATION; PAYNE &

KELLER COMPANY INC.; LOUISIANA INTRA-

STATE GAS CO. LLC; LA INTRASTATE GAS

CORP.; AMOCO PIPELINE CO.; AMOCO ENERGY

TRADING CORPORATION; XL INSURANCE CoO.,

Defendants-Appellees.

[Filed May 17, 2004]

On Appeal from the United States District Court

for the Middle District of Louisiana

2a

Before DeMOSS, DENNIS, and PRADO, Circuit

Judges.

Per Curiam:

IT IS ORDERED that the petition for rehearing is

DENIED.

ENTERED FOR THE

COURT:

/__ signature illegible _/

United States Circuit Judge

Appendix B

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

No. 03-30250

LUCIEN TEMPLET, JR.; ET AL..,

Plaintiffs,

MELBA IRVIN, Individually and on Behalf of Her

Minor Child, Adam Irvin; JIMMY IRVIN, Individu-

ally and on Behalf of His Minor Child, Adam Irvin

Plaintiffs-Appellants,

VERSUS

HYDROCHEM INC.; ET AL.,

Defendants,

HYDROCHEM INC.; HYDROCHEM INDUSTRIAL

SERVICES INC.; GEORGIA GULF CORPORATION;

3a

MASTER MAINTENANCE CORPORATION; MAS-

TER MANAGEMENT CORPORATION ; PAYNE &

KELLER COMPANY INC.; LOUISIANA INTRA-

STATE GAS CO. LLC; LA INTRASTATE GAS

CORP.; AMOCO PIPELINE CO.; AMOCO ENERGY

TRADING CORPORATION; XL INSURANCE CO.,

Defendants-Appellees.

[April 20, 2004, Filed] Revised May 6, 2004

On Appeal from the United States District Court

for the Middle District of Louisiana

Before DeMOSS, DENNIS, and PRADO, Circuit

Judges.

DeMOSS, Circuit Judge.

Plaintiffs-Appellants, Melba Irvin, et al. (the

“Irvins”), appeal the granting of summary judg-

ment by the district court for Defendants-

Appellees, and the subsequent denial of the Irvins’

Rule 59(e) motion to alter, amend, and reconsider

in a toxic tort action arising from a chemical re-

lease from Defendants’ facility.

BACKGROUND AND PROCEDURAL HISTORY

This case arises out of claims brought in state

court relating to the release of a mustard gas

agent at the Georgia Gulf Corporation facility in

Plaquemine, Louisiana, that occurred on or about

September 25, 1996. On November 8, 1996, suit

was filed in state district court, asserting claims

against multiple defendants, including Georgia

4a

Gulf Corporation, X.L. Insurance Company,

Primex, Ltd., HydroChem Industrial Services, Inc.,

Payne & Keller Company, Inc., Master Mainte-

nance & Construction, Inc., Amoco Energy Trad-

ing Corporation, Louisiana Intrastate Gas Com-

pany, L.L.C., and LIG Liquids Company, L.L.C.

(collectively, the “Defendants’”).

On March 5, 1999, X.L. Insurance Company

and Primex, Ltd. removed the case to federal

court, asserting jurisdiction under the Convention

of the Recognition and Enforcement of Foreign

Arbitral Awards pursuant to 9 U.S.C. § 201 et seq.

X.L. Insurance Company and Primex, Ltd. are for-

eign insurance companies who were named as

defendants in this action pursuant to the Louisi-

ana Direct Action Statute, La. Rev. Stat. § 22:655.

The Irvins filed a motion to remand on April 5,

1999, that was denied by the district court on

June 9, 1999.

The Irvins, who were added as additional

plaintiffs to the original state court proceeding in

March and September 1997, maintain that they

sustained injuries as a direct and proximate re-

sult of the negligence of the Defendants. Since

joining as plaintiffs, the Irvins have been repre-

sented by four separate sets of attorneys. On

January 7, 2002, the Irvins’ second set of counsel,

Albert Bensabat and Daniel Edwards, filed a mo-

tion to establish discovery cutoff and trial dates

and/or a status conference. On March 1, 2002,

the magistrate held a status conference where she

set discovery deadlines, ordering the Irvins to: 1)

provide the Defendants with all medical reports by

March 15, 2002; 2) list all treating physicians and

Sa

identify all experts by July 1, 2002; and 3) submit

all expert reports by August 1, 2002. On March

14, 2002, one day before the Irvins were ordered

to provide the Defendants all medical reports,

Bensabat and Edwards filed a motion to withdraw

as counsel for the Irvins. The following day the

magistrate granted the motion to withdraw.

Thereafter, the Irvins failed to identify any experts

or produce any medical or expert reports in com-

pliance with the court’s deadlines.

On August 22, 2002, George Tucker enrolled

as counsel for the Irvins. The district court held a

status conference on August 27, 2002, that was

attended by Mr. Tucker, appearing on behalf of

the Irvins. The district court judge entered an or-

der the following day referring the matter to the

magistrate for entry of scheduling orders and trial

preparation “anticipating a trial date in March or

April 2003.” On August 30, 2002, the Defendants

filed a motion for summary judgment and/or dis-

missal, asserting that the Irvins had failed to sat-

isfy the elements of their claim. Specifically, the

Defendants maintained that the Irvins could not,

through the requisite expert evidence, establish

negligence on the part of the Defendants, nor

could they establish causation and damages. In

the alternative, the Defendants sought the dis-

missal of the Irvins’ claims for their failure to ad-

here to the court-ordered deadlines. The Irvins did

not file any opposition to the Defendants’ motion

for summary judgment.

On October 30, 2002, the district court issued

its ruling granting the Defendants’ motion for

summary judgment. The district court stated:

6a

In this case, plaintiffs have alleged that

they suffered harm by exposure to the

mustard gas release but have failed to

produce any evidence whatsoever of

such injury. In a toxic tort case such as

this . . . medical evidence is essential to

establish harm to plaintiffs. Without

having produced any medical evidence,

plaintiffs cannot establish that they

suffered damages, an essential element

of their case.

Subsequently, on November 5, 2002, George

Tucker, the Irvins’ counsel, filed a motion to with-

draw from the case. The district court granted the

withdrawal on November 20, 2002, and entered

judgment dismissing the Irvins’ case the following

day.

On December 6, 2002, the Irvins obtained new

counsel, who immediately filed a Fed. R. Civ. P.

59(e) motion to alter, amend, and reconsider the

judgment. Specifically, the Irvins requested that

the district court reconsider and vacate the No-

vember 21, 2002, judgment to prevent manifest

injustice. On February 4, 2003, the district court

denied the Rule 59(e) motion, stating that the

motion for summary judgment was filed while the

Irvins were represented by counsel, who neither

requested a continuance nor sought a reschedul-

ing of deadlines. The Irvins filed a timely notice of

appeal on March 3, 2003.

JURISDICTION

This suit was originally filed in Louisiana state

district court on November 8, 1996. On March 5,

7a

1999, two of the multiple defendants, X.L. Insur-

ance Company and Primex, Ltd., removed the

case to federal district court pursuant to 28

U.S.C. § 1446(d), asserting jurisdiction under the

Convention of the Recognition and Enforcement of

Foreign Arbitral Awards, 9 U.S.C. § 201 et seq.

The Irvins subsequently filed a motion to remand,

which was denied by the district court. The De-

fendants’ motion for summary judgment was

granted, and the district court entered judgment

on November 21, 2002. The Irvins filed a timely

Rule 59(e) motion, which was denied by the dis-

trict court on February 4, 2003. The Irvins then

filed their notice of appeal on March 3, 2003.1

This Court has jurisdiction to hear this appeal

under 28 U.S.C. § 1291.

STANDARD OF REVIEW

I. The Irvins’ Rule 59(e) Motion to Reconsider

The applicable standard of review of the denial

of the Irvins’ motion to alter, amend, and recon-

sider is dependent on whether the district court

considered the materials attached to the Irvins’

motion, which were not previously provided to the

court.? Ford Motor Credit Co. v. Bright, 34 F.3d

1 In their notice of appeal, the Irvins do not raise any issue

as to the propriety of the initial removal of this case from

state court nor as to the propriety of the denial of their mo-

tion to remand to state court; and we accordingly have not

addressed these issues on appeal.

? According to the Irvins’ briefs, the additional materials in-

cluded reports showing that Mr. Irvin “suffered physical and

psychological injuries as a direct and proximate result of his

exposure to [sic] mustard gas release at the Georgia Gulf

plant.”

sa aeeeerenn er en

8a

322, 324 (Sth Cir. 1994). If the materials were

considered by the district court, and the district

court still grants summary judgment, the appro-

priate appellate standard of review is de novo. Id.

However, if the district court refuses to consider

the materials, the reviewing court applies the

abuse of discretion standard. Jd. Under this stan-

dard of review, the district court’s decision and

decision—making process need only be reasonable.

Id. |

Based on a review of the district court’s ruling

on the motion for reconsideration, it is unclear

whether the additional materials submitted by the

Irvins were considered by the district court. The

district court does not expressly or impliedly refer

to the additional materials in its ruling. Therefore,

in the absence of any specific reference to these

materials, we review the district court’s denial of

the Irvins’ Rule 59(e) motion for abuse of discre-

tion, t.e., as if the district court did not consider

the additional materials.

II. Defendants’ Motion for Summary Judgment

This Court reviews grants of summary judg-

ment de novo, applying the same standard as the

district court. Tango Transp. v. Healthcare Fin.

Servs. LLC, 322 F.3d 888, 890 (Sth Cir. 2003).

Summary judgment is appropriate if no genuine

issue of material fact exists and the moving party

is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). The Court views the evidence in a

light most favorable to the non-movant. Coleman

v. Houston Indep. Sch. Dist., 113 F.3d 528, 533

(Sth Cir. 1997). The non- movant must go beyond

9a

the pleadings and come forward with specific facts

indicating a genuine issue for trial to avoid sum-

mary judgment. Celotex Corp. v. Catrett, 477 U.S.

317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548

(1986). A genuine issue of material fact exists

when the evidence is such that a reasonable jury

could return a verdict for the non-movant. Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L.

Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary

judgment is appropriate, however, if the non-

movant “fails to make a showing sufficient to es-

tablish the existence of an element essential to

that party’s case.” Celotex, 477 U.S. at 322-23.

DISCUSSION

I. Whether the district court abused its dis-

cretion in denying the Irvins’ motion to al-

ter, amend, and reconsider its ruling grant-

ing the Defendants’ motion for summary

judgment.

The Irvins suggest that the proper method for

evaluating a motion for reconsideration of a sum-

mary judgment where the movant submits evi-

dentiary materials in support of its motion that

were not considered by the court in its summary

judgment ruling involves the consideration of the

factors enumerated in Lavespere v. Niagara Ma-

chine & Tool Works, Inc., 910 F.2d 167 (Sth Cir.

1990), overruled on other grounds, Little v. Liquid

Air Corp., 37 F.3d 1069 (Sth Cir. 1994). The

Lavespere factors include: 1) the reasons for the

moving party’s default; 2) the importance of the

omitted evidence to the moving party’s case; 3)

whether the evidence was available to the non-

10a

movant before it responded to the summary

judgment motion; and 4) the likelihood that the

non-moving party will suffer unfair prejudice if

the case is reopened. Id. at 174.

Taking these factors in turn, the Irvins argue

that their failure to provide the court with the

requisite medical reports, lists of treating physi-

cians and all other experts, as well as the Irvins’

medical expert reports was a direct result of the

lapse in legal representation that occurred be-

tween March 15, 2002, and August 22, 2002. The

Irvins contend that the withdrawal by Bensabat

and Edwards on March 14, 2002, constituted “cli-

ent abandonment.” In response, Defendants sim-

ply argue that any delays in submitting additional

materials to the court “begin and end with the

Irvins.” :

Second, the Irvins claim that the additional

materials included in their motion for reconsid-

eration are critical to their case. Specifically, they

argue that the materials include medical evidence

linking their “ongoing physical and psychological

sufferings” to the exposure to mustard gas at the

Georgia Gulf plant. This evidence, the Irvins con-

tend, would have established their entitlement to

damages and defeated the Defendants” motion for

summary judgment. The Defendants respond by

arguing that the omitted material is not important

to the Irvins’ case because it does not change the

fact that the Irvins failed to oppose the moiion for

summary judgment and, in the alternative, inclu-

sion of the materials still does not establish the

damages element of their claim.

lla

Third, the Irvins argue that although the in-

formation they included in their motion for recon-

sideration was available to them when the Defen-

dants’ motion for summary judgment was filed,

the Irvins were precluded from producing such

evidence because the court’s March 1, 2002,

scheduling order had established an August 1,

2002, deadline for providing expert information.

Therefore, the Irvins contend, because the dead-

line had already passed, they were unable to pro-

duce the relevant expert information without vio-

lating the court’s scheduling order. The Defen-

dants simply state that the additional evidence is

not “new” because it was available to the Irvins at

the time the Defendants filed their motion for

summary judgment.

Finally, the Irvins maintain that the Defen-

dants will not be prejudiced if the case is re-

opened. The Irvins argue that the Defendants

were provided medical reports in the Irvins’ re-

sponses to the Defendants’ discovery requests. In

addition, the Irvins suggest that because there are

at least 78 similar cases that have been filed in

relation to the same chemical release at issue

here, the Defendants are imparted with knowledge

of evidence on damages, causation, and liability,

and therefore cannot claim prejudice if the case is

reopened. Defendants respond by arguing that re-

opening the case would unfairly prejudice them as

they have already expended substantial judicial

resources in defending the matter pursuant to the

court’s March 1, 2002, scheduling order.

A Rule 59(e) motion “calls into question the

correctness of a judgment.” Jn re Transtexas Gas

12a

Corp., 303 F.3d 571, 581 (Sth Cir. 2002). This

Court has held that such a motion is not the

proper vehicle for rehashing evidence, legal theo-

ries, or arguments that could have been offered or

raised before the entry of judgment. Simon v.

United States, 891 F.2d 1154, 1159 (Sth Cir.

1990). Rather, Rule 59(e) “serves the narrow pur-

pose of allowing a party to correct manifest errors

of law or fact or to present newly discovered evi-

dence.” Waltman v. Int’l Paper Co., 875 F.2d 468,

473 (Sth Cir. 1989) (internal quotations omitted).

Reconsideration of a judgment after its entry is an

extraordinary remedy that should be used spar-

ingly. Clancy v. Employers Health Ins. Co., 101 F.

Supp. 2d 463, 465 (E.D. La. 2000) (citing 11

Charles A. Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice & Procedure § 2810.1, at

124 (2d ed. 1995)).

In Lavespere, this Court recognized that while

a district court has considerable discretion in de-

ciding whether to reopen a case in response to a

motion for reconsideration, such discretion is not

limitless. 910 F.2d at 174. This Court has identi-

fied two important judicial imperatives relating to

such a motion: 1) the need to bring litigation to an

end; and 2) the need to render just decisions on

the basis of all the facts. Id. (citations omitted).

The task for the district court is to strike the

proper balance between these competing inter-

ests. Id.

In this case, the district court stated that a

motion for new trial in a nonjury case or a petition

for rehearing pursuant to a Rule 59(e) motion

should be based upon manifest error of law or

13a

mistake of fact, and a judgment should not be set

aside except for substantial reasons. The district

found that the Defendants’ motion for summary

judgment was filed while the Irvins “were repre-

sented by counsel, who did not request a continu-

ance of the motion or a rescheduling of the dead-

lines.” The district court also noted that it ruled

on the unopposed motion more than sixty days

after it was filed, and then issued judgment nearly

three weeks later. In denying the Irvins’ motion for

reconsideration, the district court stated:

[The Irvins] had ample time prior to the

ruling to express some form of opposi-

tion to the disposition of their claims or

to request additional time to respond.

[The Irvins] have been parties to this

matter for nearly six years; they have

had more than enough opportunities for

a “day in court.”

44

We have held that an unexcused failure to pre-

sent evidence available at the time of summary

judgment provides a valid basis for denying a

subsequent motion for reconsideration. Russ v.

Int'l Paper Co., 943 F.2d 589, 593 (Sth Cir. 1991).

In this case, the underlying facts were well within

the Irvins’ knowledge prior to the district court’s

entry of judgment. However, the Irvins failed to

include these materials in any form of opposition

or response to the Defendants’ motion for sum-

mary judgment. Although the Irvins correctly

point out that they were not represented by coun-

sel for approximately five months between March

and August 2002, they were represented by coun-

sel, George Tucker, before the Defendants filed

l4a

their motion for summary judgment and after the

district court subsequently granted the motion.$

By denying the Irvins’ motion for reconsidera-

tion, the district court’s decision is not manifestly

unjust in law or fact, nor does it ignore newly dis-

covered evidence. The district court reasonably

determined that the facts in this case do not war-

rant the extraordinary relief associated with the

granting of a motion for reconsideration. There-

fore, the district court did not abuse its discretion

in denying the Irvins’ Rule 59(e) motion.

II. Whether the Defendants’ motion for sum-

mary judgment was based upon factual

misrepresentations.

The Irvins maintain that the judgment dis-

missing their case was premised on representa-

tions of material facts that Defendants knew to be

false. Specifically, the Irvins point to two alleged

misrepresentations made by Defendants: 1) that

the Irvins had not identified any expert witnesses

on issues of liability, causation, or damages to

support their claims; and 2) that the Irvins had

not submitted any expert reports. The Irvins re-

fute these statements, arguing that even though

the Irvins had not complied with the deadlines

established by the court’s scheduling order, the

Defendants were still in possession of “a wealth of

expert information and reports” establishing cau-

sation and damages in the form of responses to

interrogatories and requests for production. In

3 At no point during the pendency of this case have the

Irvins alleged that any of their counsel were incompetent or

incapable of pursuing their case.

15a

addition, the Irvins contend that their interroga-

tory responses identified experts they intended to

use at trial.

Conversely, the Defendants argue that they

have accurately reported all the facts and circum-

stances supporting their motion for summary

judgment, including the Irvins’ failure to identify

any expert witnesses or provide expert reports on

the issues of liability, causation, and damages.

Summary judgment is appropriate where the

underlying facts are undisputed, and the record

reveals no evidence from which reasonable per-

sons might draw conflicting inferences about the

facts. Prinzi v. Keydril Co., 738 F.2d 707, 709 (Sth

Cir. 1984). The district court based its ruling on

the finding that the Irvins had not produced any

medical evidence, and therefore could not estab-

lish that they suffered damages, an essential ele-

ment of their case. The district court cites Celotex,

477 U.S. at 322-23, for the rule that a complete

failure of proof concerning an essential element of

the nonmoving party’s case necessarily renders all

other facts immaterial. In addition, Fed. R. Civ. P.

56 mandates that summary judgment shall be

entered against a non-movant who fails to set

forth specific facts showing that there is a genuine

issue for trial.

The Irvins did not deny or controvert the De-

fendants’ statement of undisputed facts, including

the representations made by the Defendants that

the Irvins had not “identified any expert witnesses

on issues of liability, causation, or damages” or

“submitted any expert reports to support their

claim.” For that reason, those facts as stated were

‘car ia aaa

16a

deemed admitted. Uniform Local Rule, 56.2. How-

ever, in the event the moving party relates facts in

its summary judgment motion that are untrue or

inaccurate, and the court subsequently relies on

those misstatements in making its decision, it

would be improper to allow the moving party to

benefit in such a situation.

After reviewing the record, it seems clear that

the Irvins indeed failed to provide either of the two

items as detailed by the Defendants. In its ruling

granting the Defendants summary judgment, the

district court appears to have inadvertently

broadened what the Defendants related in their

summary judgment motion. Specifically, the court

states that the Irvins failed to produce “any medi-

cal evidence.” (Emphasis added). The Irvins did in

fact respond to written interrogatories as well as

provide opposing counsel copies of treating physi-

cian reports.* However, while these discovery re-

sponses may have constituted medical evidence,

the Defendants did not state that the Irvins failed

to provide evidence, but rather that the Irvins had

not produced expert witness lists or expert re-

ports.5 The real problem facing the Irvins is their

basic failure to include this evidence in any form

of opposition to the Defendants’ summary judg-

ment motion. As such, the district court’s grant-

4 The interrogatory responses were not identified in the

record.

5 The treating physician reports submitted by the Irvins

would most certainly not satisfy the requirements estab-

lished by Rule 56(c) and 56(e) for sworn, authenticated

summary judgment evidence.

17a

ing of the Defendants’ motion was properly based

on true and correct statements of fact.

Ill. Whether the district court ever reached

the issue of the Defendants’ motion for in-

voluntary dismissal, and if so, whether the

granting of the motion was an abuse of

discretion.

The Irvins insist that the district court based

its ruling on the Irvins’ failure to comply with the

court’s scheduling order. They argue that al-

though the district court characterized its dis-

missal of the Irvins’ case as a grant of summary

judgment, the court’s rationale for its decision “is

more properly viewed as an involuntary sanction

dismissal” under Fed. R. Civ. P. 16(f), 37(b), and

41(b) for a party’s failure to appear at a pretrial

conference, obey discovery orders, or prosecute an

action. In response, the Defendants argue that the

district court never ruled on their motion to dis-

miss, but if the court had, involuntary dismissal

would be appropriate.

Based on a review of the district court’s ruling,

it appears clear from the reasons the district court

articulates that its decision was premised solely

on the failure of the Irvins to respond to or oppose

the Defendants’ motion for summary judgment.

The summary judgment ruling states that be-

cause the Irvins could not “establish that they

suffered damages, an essential element of their

case[,] Defendants are entitled to summary judg-

ment as a matter of law.” In addition, the district

court specifically states that it found it “unneces-

Sary . . . to consider the alternative motion to

18a

dismiss.” Therefore, the Irvins’ third and final is-

sue on appeal is without merit.

CONCLUSION

Having carefully reviewed the record of this

case, the parties’ respective briefing and argu-

ments, and for the reasons set forth above, we af-

firm the district court’s granting of the Defen-

dants’ motion for summary judgment and its sub-

sequent denial of the Irvins’ Rule 59(e) motion to

alter, amend, or reconsider.

AFFIRMED.

DENNIS, Circuit Judge, dissenting:

“Rule oY gives the trial judge ample power to

prevent what he considers to be a miscarriage of

justice.” When a party moves to alter or amend a

judgment under Rule 59(e), a district court is ob-

ligated to balance carefully the need for finality

with the need to render a just decision on the ba-

sis of all the facts.” That obligation is increased

“when the judgment, absent amendment, creates

or results in a manifest injustice.”8 In this case,

the need to render a just decision outweighed the

need for finality, but the court did not render a

just decision.

6 11 Wright, Miller, & Kane, Federal Practice and Proce-

dure: Civil 2d § 2803 (1995).

7 11 Wright, Miller, & Kane, Federal Practice and Proce-

dure: Civil 2d § 2803 (1995).

8 12 James Wm. Moore et al., Moore’s Federal Practice §

59.30[5][a][v] (Matthew Bender 3d ed. 2003).

DOMME

19a

Instead, the district court provided no indica-

tion that it even considered the additional evi-

dence that plaintiffs submitted with their Rule 59

Motion.° The district court, however, for the rea-

sons discussed below, was obligated to consider

the additional evidence. Accordingly, we should

remand this case to the district court with orders

to consider plaintiffs’ additional evidence and re-

consider the summary judgment in light of that

evidence. Because the majority opinion does not

require such a reconsideration, I respectfully dis-

sent.

The Irvins submitted a Rule 59(e) motion to the

district court that contained evidence that had not

been presented to the district court previously.

Specifically, it contained reports from Irvin’s

treating physicians that had been submitted in

response to defendants’ Interrogatories and Re-

quests for Productions of Documents as well as

an affidavit from Irvin.

The majority reviews the district court decision

“as if the district court did not consider the addi-

tional materials,” implicitly holding that the dis-

trict court did not abuse its discretion in failing to

consider the materials.10 Considering the unique

9 Even if, as a technical matter, the district court consid-

ered the additional evidence, its opinion provides no analy-

sis or discussion of that evidence. Accordingly, I agree with

the majority that, for purposes of this appeal, we should re-

view the judgment as if the district court did not consider

the evidence attached to the Rule 59 motion.

10 The majority states that we should review the district

court’s Rule 59 decision de novo if the court considered the

additional evidence, but only for an abuse of discretion if it

did not consider the additional evidence. This approach is

20a

and extraordinary history of this case, however, I

believe that the district court’s failure to consider

this information was a misuse of judicial discre-

tion.

As this court has explained in Lavespere v. Ni-

agara Machine & Tool Works, Inc.,11 when a party

“seeks to upset a summary judgment on the basis

of evidence [that the party] failed to introduce on

time,” the district court is obligated to weigh, inter

alia, several factors in deciding whether to admit

the evidence: (1) the reasons for the moving

party’s default, (2) the importance of the omitted

evidence to the moving party’s case, (3) whether

the evidence was available to the movant before

the non-movant filed the summary judgment mo-

tion, and (4) the likelihood that the nonmoving

party will suffer unfair prejudice if the case is re-

opened. !2

incorrect. We review the district court’s decision to consider

the new evidence for an abuse of discretion. Fletcher v.

Apfel, 210 F.3d 510, 512 (5th Cir. 2000). However, we re-

view the actual challenge to the summary judgment on its

merits de novo because that determination is an issue of

law. Id.; see also Perez v. Aetna Life Ins. Co., 150 F.3d 550

(6th Cir. 1999) (en banc) (stating that “when the Rule 59(e)

motion seeks review of a grant of summary judgment, ...

we apply a de novo standard of review”); 12 James Wm.

Moore et al., Moore’s Federal Practice § 59.54[4][e] (Matthew

Bender 3d ed. 2003). (“If the [Rule 59(e)] motion sought re-

consideration of a grant of summary judgment, the appel-

late court will review the matter de novo.”).

11 910 F.2d 167 (Sth Cir. 1990).

12 See id. at 174.

2la

These factors, it should be noted, are simply

illustrative and not exhaustive.13 In particular, the

Lavespere court utilized this framework, not to

limit the scope of Rule 99(e), but to explain that

Rule 59(e) motions provide the district court with

“considerable discretion” and that they are “not

controlled by the same exacting substantive re-

quirements as Rule 60(b) motions.” Because

Rule 59(e) motions are subject to much more

Stringent time requirements than Rule 60(b) mo-

tions, Rule 59(e) motions provide relief for the

movant on grounds at least as broad as Rule 60

motions.'5 Rule 59(e), therefore, provides district

courts with the power to consider equitable fac-

tors and provide relief for “any . . . reason justify-

ing relief from the operation of the judgment.” 16

The equitable considerations under Rule 59(e)

weigh in plaintiffs’ favor when one considers the

unique facts of this case. Specifically, (1) the

13 See id. (noting that the district court should consider

these four factors “among other things”).

14 See id.

1S See id.; see also Smith v. Morris & Manning, 657 F. Supp.

180, 181 (S.D.N.Y 1987) (When filing a motion under Rule

59(e), “[a party] need not meet the somewhat stringent re-

quirements of Rule 60, which is aimed at protecting the fi-

nality of judgments from belated attack.”).

16 See Fed. R. Civ. P. 60(b)(6); see also Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 863-64, 100 L. Ed.

2d 855, 108 S. Ct. 2194 (1987) (noting that Rule 60(b)(6)

provides district courts with “authority adequate to enable

them to vacate judgments whenever such action is appro-

priate to accomplish justice,” but that such power should

only be used in “extraordinary circumstances.”) (internal

quotations omitted).

22a

Irvin’s “default” resulted, not through any fault of

their own but because of egregious lawyer mis-

conduct causing them virtually total deprivation

of representation and the benefits of the adversary

system of justice; (2) the omitted evidence was es-

sential to the Irvin’s case; (3) the evidence was

made available to defendants-movants before they

filed their motion for summary judgment; and (4)

defendants in this case would not have been

prejudiced by an introduction of the evidence be-

cause plaintiffs had already provided them with

the evidence.

First, the plaintiffs did not present the evi-

dence to the district court initially, through no

fault of their own, but because they were sub-

jected to attorney conduct and inaction so egre-

gious that it “amounted to nothing short of leav-

ing [them] unrepresented.”!”7 While it is true thata

district court has the discretion to refuse to use

Rule 59 to “rescue” a plaintiff from simple negli-

gence, or a “blunder” by his attorney,'* the facts of

this case go far beyond a simple blunder by a

plaintiff's attorney. The conduct of the Irvins’ at-

torneys in this case constitutes “neglect so gross

that it is inexcusable.”

The district court imposed five discovery dead-

lines between March 15%, 2002 and August 1*,

2002 on which plaintiffs were obligated to act.

They were required to produce current medical

17 Boughner v. Secretary of HEW, 572 F.2d 976, 977 (3rd

Cir. 1978).

18 See Lavespere, 910 F.2d at 173.

19 Boughner, 572 F.2d at 978.

Se RE seen ae.

23a

reports and releases by March 15». They were re-

quired to obtain all existing discovery from other

counsel of record by April 30%. They were re-

quired to propound additional non-repetitive dis-

covery by May 31st. They were required to file a

list of treating physicians and all other experts

with the court by July 1st. They were required to

submit their medical expert reports by August 1*t,

The plaintiffs were literally without counsel during

the entire period spanning these deadlines. In-

deed, the counsel that had been representing

them previous to those deadlines withdrew-with

the court’s permission-the day before the first

deadline. In short, the Irvins were completely

without counsel-a situation permitted by the dis-

trict court-during the period of time that assis-

tance of counsel was most crucial to the Irvins’

case.20

enon ree

Both the district court and the majority opin-

ion minimize the impact of the Irvins’ lack of

counsel during this critical period. They note that

George Tucker enrolled as the Irvins’ counsel on

August 22"¢ and represented them when defen-

dants filed their summary judgment motion on

August 30%. This “representation,” however, was

virtually non-existent. From the record, it appears

that all Tucker did on behalf of the Irvins was at-

tend one status conference. He filed no papers

with the court in response to the summary judg-

#0 This consideration is even more important in a complex

toxic tort case such as this one in which the court cannot

expect a lay person to understand the issues of medical

causation and the necessity of expert testimony to prove the

case.

Ve

24a

ment motion and moved to withdraw from repre-

sentation of plaintiffs five days after the court

granted summary judgment.

pe At least one other circuit recognizes that an

attorney’s inaction over a sustained period can be

so detrimental to a client as to constitute “neglect

so gross that it is inexcusable.”2! Specifically, the

Third Circuit has held that it is an abuse of dis-

cretion for a district court to refuse to grant a

party relief under Rule 60(b) when that party’s

attorney engages in “egregious conduct [that]

amounts to nothing short of leaving his clients

unrepresented.”22

The motion in front of us today presents such

egregious conduct. Plaintiffs were literally without

enrolled counsei during the most critical stages of

the proceedings in a factually complex case. Al-

though it is true that at an earlier stage of the

case the plaintiffs were represented by a lawyer

who collected the evidence in question and sub-

mitted it to the defendants, the plaintiffs were

completely without counsel during the critical pe-

riod when that evidence could have been pre-

sented to the court. Upon obtaining counsel

21 Boughner, 572 F.2d at 978.

22 See id. at 977. As noted above, Boughner was decided

under Rule 60, not Rule 59. To the extent this distinction

makes a difference, it works in favor of the plaintiffs here

because, as explained above, a party should obtain district

court relief more easily under Rule 59 than Rule 60. See

Lavespere, 910 F.2d at 173-74 (noting that Rule 59 “is not

controlled by the same exacting substantive requirements”

as Rule 60); see also, supra, notes 8-11 and ac-companying

text.

25a

again, plaintiffs immediately filed the present Rule

99 Motion and submitted the required evidence.

Second, the omitted evidence was critical to

the Irvin’s case because the evidence, had the

court accepted it, arguably creates a dispute of

material fact that would have allowed the Irvins to

defeat summary judgment. Therefore, the second

Lavespere factor also weighs in the Irvins’ favor.23

Finally, the defendants would not be preju-

diced by the admission of this evidence because

the plaintiffs provided defendants with the rele-

*8 The majority implies that summary judgment may be

appropriate even if the district court were to consider the

additional evidence. Specifically, the majority asserts in

footnote 5 that “the treating physician reports submitted by

the Irvins would most certainly not satisfy the requirements

established by Rule 56(c) and 56(e) for sworn, authenticated

summary judgment evidence.” This issue is not as clear-cut

as the majority indicates. Though sworn affidavits are the

typical evidence used to counter motions for summary

judgment, “Rule 56 does not require that a moving party

Support its motion with affidavits.” Salas v. Carpenter, 980

F.2d 299, 304 (Sth Cir 1992) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548

(1986)). Instead, Rule S6(c) specifically states that the court

should consider “the pleadings, depositions, answers to in-

terrogatories, and admissions on file” in addition to affida-

vits when ruling on a motion for summary judgment. The

record in this case establishes that these treating physician

reports were included in responses to interrogatories by the

defendants. It is not clear how the totality of the evidence

will bear on the motion for summary judgment. Such a de-

cision should be for the district court in the first instance

after it properly considers the evidence submitted with the

Rule 59 motion. See, e.g., Boughner, 572 F.2d at 979 (re-

manding case to district court for reconsideration after re-

versing district court denial of appellant’s Rule 60 motion).

26a

vant information in September of 2000, almost

two years before defendants filed their summary

judgment motion. Accordingly, the district court

would not have harmed the defendants by ac-

cepting and considering the evidence submitted

with the Rule 59 motion.

In short, proper application of the factors that

this court has instructed district courts to use in

deciding whether to consider additional evidence

submitted with a Rule 59 motion should have led

the district court to consider the evidence.25

There is, of course, a need for finality of judg-

ments. However, in an extraordinary case such as

this—where plaintiffs had evidence arguably suffi-

cient to survive summary judgment, submitted

that evidence to defendants, and failed to provide

the evidence to the court in a timely manner due

only to a complete abandonment by the legal sys-

tem—the district court misused its discretion in

denying the Rule 59(e) motion without considering

the relevant evidence submitted with it.

24 It is also worth noting in this context that the district

court has presided over many other cases involving this

same chemical spill. In exercising its discretion in deciding

whether to consider plaintiffs’ additional evidence, the dis-

trict court should have also considered the likelihood, based

on its experience in these other cases, that plaintiff's addi-

tional evidence was relevant to the merits of the summary

judgment motion.

25 To the extent that judicial economy is also a factor in a

Rule 59 analysis, it is also worth noting that the district

court could have accepted the evidence with almost no ad-

ditional burden. It simply had to review what the plaintiffs

submitted with the Rule 59 motion.

PE! 1S EE re.

27a

Accordingly, I would vacate the summary

judgment and remand this case to the district

court with instructions to consider the evidence

that plaintiffs submitted with their Rule 59 mo-

tion before acting on the motion.

Respectfully, I dissent.

Appendix C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LUCIEN TEMPLET, ET AL

CIVIL ACTION

VERSUS

NO. 99-206-A

HYDROCHEM, INC., ET AL

[February 4, 2003, filed]

RULING ON MOTION TO ALTER, AMEND

AND RECONSIDER JUDGMENT

This matter is before the court on a motion by

plaintiffs, Jimmy and Melba Irvin, individually

and on behalf of their minor child, Adam Irvin, to

alter, amend, and reconsider judgment (doc. 129).

Defendants, Georgia Gulf Corporation (“Georgia

Gulf’), X.L. Insurance Company, Ltd., HydroChem

Industrial Services, Inc., Payne & Keller Company,

Inc., Master Maintenance & Construction, Inc.,

Amoco Energy Trading Corporation, Louisiana

Intrastate Gas Company, L.L.C., and LIG Liquids

28a

Company, L.L.C., oppose the motion. There is no

need for oral argument.

This action relating to the accidental release of

mustard gas at the Georgia Gulf facility in

Plaquemine, Louisiana, on September 25, 1996,

was originally filed on November 8, 1996 in state

court. As noted in the prior ruling by the court,

Jimmy Lee Irvin was added as a plaintiff on

March 21, 1997; his wife, Melba, and their minor

son, Adam, were added on May 12, 1997. On

January 7, 2002, the Irvins filed a Motion to Es-

tablish Discovery Cutoff and Trial Dates and/or

for Status Conference, requesting additional time

to conduct discovery and provide expert reports.

On March 1, 2002, the court entered a final

scheduling order setting forth, among others, the

following deadlines, requiring the Irvins to: (a)

provide defendants with all medical reports by

March 15, 2002; (b) list all treating physicians

and identify all experts by July 1, 2002; and (c)

submit all expert reports by August 1, 2002. The

Irvins failed to meet each of these court-imposed

deadlines.

In its March 1 order, the magistrate judge also

set another status conference for July 12, 2002.

On March 15, 2002 an order authorizing with-

drawal of counsel for the Irvins was signed. Nei-

ther the Irvins nor counsel appeared at the July

12 status conference.

The order entered following that status confer-

ence recites that the Irvins “are the only remain-

ing plaintiff and the deadlines for discovery, etc.

have already been entered as to these plaintiffs."

(doc. 150). The record shows that a copy of that

29a

order was sent by the Clerk of Court to Mr. Irvin

and to Mrs. Irvin personally. On August 26, 2002

an order enrolling George R. Tucker as counsel for

the Irvins was entered. On August 27, 2002 a

Status conference before the district judge was

held and the order entered following that confer-

ence shows that Mr. Tucker attended on behalf of

the Irvins.

Three days later, on August 30, 2002, defen-

dants filed a motion for summary judgment on

the grounds that plaintiffs failed to timely identify

experts or provide expert reports on the issues of

negligence, injury, causation, or damages, and

thus could not prove their case (doc. 115). In the

alternative, defendants sought dismissal of the

claims by plaintiffs on the grounds that plaintiffs

failed to provide discovery relating to experts and

repeatedly failed to abide by court-ordered dead-

lines.

Plaintiffs were represented by counsel at that

time and filed no response to the motion.

Sixty days later, on October 30, 2002, the

court granted the motion for summary judgment

on the grounds that plaintiffs’ complete failure of

proof concerning damages, an essential element of

their toxic tort case, renders all other facts im-

material (doc. 124). The court entered judgment

based on the ruling on November 21, 2002 (doc.

127).

Plaintiffs seek reconsideration of the judgment

entered November 21, 2002 in this matter on the

grounds that they were unrepresented by counsel

from March 14, 2002 through August 22, 2002,

30a

during which time most of the deadlines in this

case passed, and that medical evidence does exist

to support their claims.

A motion for a new trial in a nonjury case ora

petition for rehearing pursuant to Fed. R. Civ. Pro,

59 should be based upon manifest error of law or

mistake of fact, and a judgment should not beset

aside except for substantial reasons.! The motion

for summary judgment was filed while plaintiffs

were represented by counsel, who did not request

a continuance of the motion or a rescheduling of

deadlines. The court ruled on the unopposed mo-

tion more than sixty days after it was filed. The

court then issued judgment nearly three (3) weeks

later. Plaintiffs had ample time prior to the ruling

to express some form of opposition to the disposi-

tion of their claims or to request additional time to

respond. Plaintiffs have been parties to this mat-

ter for nearly six years; they have had more than

enough opportunities for a "day in court"

Accordingly, for the reasons assigned, the mo-

tion by plaintiffs, Jimmy and Melba Irvin, indi-

vidually and on behalf of their minor child, Adam

Irvin, to alter, amend, and reconsider judgment

(doc. 129), is hereby DENIED.

Baton Rouge, Louisiana, February 4, 2003.

/s/ JOHN V. PARKER

UNITED STATES DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

1 Wright, Miller & Kane, Federal Practice and Procedure,

Civil 2d §2804.

3la

Appendix D

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LUCIEN TEMPLET, ET AL

CIVIL ACTION

VERSUS

NO. 99-206-A

HYDROCHEM, INC., ET AL

[November 21, 2002 Filed]

JUDGMENT

For the written reasons assigned and filed

herein on October 30, 2002 (doc. 124);

IT IS ORDERED, ADJUDGED, AND DECREED

that judgment be entered herein in favor of defen-

dants , Georgia Gulf Corporation, X.L. Insurance

Company, Ltd., HydroChem Industrial Services,

Inc., Payne & Keller Company, Inc., Master

Maintenance & Construction, Inc., Amoco Energy

Trading Corporation, Louisiana Intrastate Gas

Company, L.L.C., and against plaintiffs, Jimmy

Irvin, Melba Irvin and Adam Irvin, and this action

is hereby dismissed with prejudice.

Baton Rouge, Louisiana, November 21, 2002.

/s/

JOHN V. PARKER, JUDGE

MIDDLE DISTRICT OF LOUISIANA

ie ne ee

32a

Appendix E

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LUCIEN TEMPLET, ET AL

CIVIL ACTION

VERSUS

NO. 99-206-A

HYDROCHEM, INC., ET AL

[October 30, 2002, filed]

RULING ON MOTION FOR SUMMARY JUDG-

MENT OR DISMISSAL

This matter is before the court on a motion by

defendants, Georgia Gulf Corporation (“Georgia

Gulf’), X.L. Insurance Company, Ltd., HydroChem

Industrial Services, Inc., Payne & Keller Company,

Inc., Master Maintenance & Construction, Inc.,

Amoco Energy Trading Corporation, Louisiana

Intrastate Gas Company, L.L.C., and LIG Liquids

Company, L.L.C., for summary judgment or dis-

missal (doc. 115). No opposition has been filed.

Removal subject matter jurisdiction is based upon

the Convention on the Recognition and Enforce-

ment of Foreign Arbitral Awards, 9 U.S.C. §201 et

seq. There is no need for oral argument.

This matter stems from the accidental release

of mustard gas at a Georgia Gulf Corporation

plant in Plaquemine, Louisiana, on September 25,

1996. Jimmy Irvin, Melba Irvin, and Adam Irvin

are the only remaining plaintiffs in this matter.

es

5 Nace anemia an rainy ata

33a

Defendants seek summary judgment on the

grounds that plaintiffs have failed to timely iden-

tify experts or provide expert reports on the issues

of negligence, injury, causation or damages, and

thus cannot prove their case. In the alternative,

defendants seek dismissal of the claims by plain-

tiffs on the grounds that plaintiffs have failed to

provide discovery relating to experts and have re-

peatedly failed to abide by court-ordered dead-

lines.

Undisputed Facts

The following facts are taken from the

statement of uncontested material facts in

support of motion for summary judgment filed

by defendants. In accordance with LR56.2, all

material facts set forth in the statement re-

quired to be served by the moving are deemed

admitted, for purposes of the motion, unless

controverted. Accordingly, since no opposition

or statement of contested facts has been filed

in response to the motion for summary judg-

ment, all facts set forth by defendants in sup-

port of the motion are deemed admitted.

1. This action was originally filed on November

8, 1996 in state court.

2. Jimmy Lee Irvin was added as a plaintiff on

March 21, 1997; his wife, Melba, and their

minor son, Adam, were added on May 12,

1997.

3. The Irvins allege that their injuries were due

Se

34a

to the negligence of at least sixteen defen-

dants arising from a complex interaction of

chemicals and natural gas during a refinery

clean-up. More specifically, the Irvins allege

that natural gas supplied by defendants

Amoco Pipeline Company, Amoco Energy

Trading Corporation and Louisiana Inter-

state Gas Company contained impurities,

which reacted with chemicals associated |

with Georgia Gulf’s “VCM” unit creating

“several types of mustard agents.”

. On January 7, 2002, the Irvins filed a Mo-

tion to Establish Discovery Cutoff and Trial

Dates and/or Status Conference, requesting

additional time to conduct discovery and

provide expert reports.

. On March 1, 2002, the court entered a final

scheduling order setting forth, among oth-

ers, the following deadlines, requiring the

Irvins to: (a) provide defendants with all

medical reports by March 15, 2002; (b) list

all treating physicians and identify all ex-

perts by July 1, 2002; and (c) submit all ex-

pert reports by August 1, 2002.

. The Irvins failed to meet each of these

court-imposed deadlines.

. In its March 1 order, the court also set an-

other status conference for July 12, 2002.

Neither the Irvins nor their counsel ap-

peared at the July 12 status conference.

. To date, the Irvins have not identified any

een ne ee ee eterno

35a

expert witnesses on issues of liability, cau-

Sation or damages to support their claims

as required by the court.

9. To date, the Irvins have not submitted any

expert reports to support their claims as re-

quired by the court.

Argument

In support of the motion for summary judg-

ment, defendants first argue that the Irvins are

unable to satisfy their burden of proof on any es-

sential element because they lack expert testi-

mony. Defendants argue that the merits of this

matter are technical and complex beyond the

common knowledge and understanding of lay wit-

nesses and jurors. Defendants argue that plain-

tiffs are required to submit expert evidence re-

garding the formation and release of the mustard

agent, including evidence that those events were

due to the negligence of Georgia Gulf. Further,

defendants argue that expert and medical evi-

dence is required to show the causal connection

between the alleged chemical exposure and sub-

sequent injuries to plaintiffs.

Defendants also argue that the claims by

plaintiffs should be dismissed for failure to abide

by court-ordered deadlines in this case. Defen-

dants argue that plaintiffs have failed to produce

expert testimony and failed to attend the July 12,

2002 status conference.

aaieanaiiaiaiazeae

36a

Law and Discussion

Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affida-

vits, if any, show that there is no genuine issue as

to any material fact and that the moving party is

entitled to a judgment as a matter of law.”! The

party seeking summary judgment bears the initial

burden of asserting the basis of the motion and

demonstrating the absence of a genuine issue of

material fact; he need not negate the nonmovant’s

claim?? Substantive law guides the determination

as to which facts are material, and because the

issues of material fact must be genuine, the pres-

ence of some alleged factual disputes, depending

on what they are, will not necessarily defeat the

motion.’ The movant may-discharge his burden by

“‘showing’ - that is, pointing out to the district

court that there is an absence of evidence to sup-

port the nonmoving party’s case.”4

It is not necessary for the moving party to in-

troduce any evidence in order to prevail on sum-

mary judgment.’ Rather, at least in cases where

the nonmoving party will bear the burden of proof

at trial, the movant may seek summary judgment

1 Fed R. Civ. P. 56(c)

2 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.

2548, 2553, 91 L.Ed.2d 265 (1986); Little v, Liquid Air Corp.,

37 F.3d 1069,1075 (Sth Cir. 1994).

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

248,106 S.Ct. 2505, 2510, 91L.Ed.2d 202 (1986); Abbot v.

Equity Group, Inc., 2 F.3d 613, 619 (Sth Cir. 1993).

* Celotex, 477 U.S. at 325, 106 S.Ct. at 2554.

> 10A Wright, Miller & Kane § 2727, p. 474.

eR nae aeR

37a

by establishing that the opposing party has insuf-

ficient evidence to prevail as a matter of law,

thereby forcing the opposing party to come for-

ward with some evidence or risk having judgment

rendered against him.¢ In this case, plaintiffs have

alleged that they suffered harm by exposure to the

mustard gas release but have failed to produce

any evidence whatsoever of such injury. In a toxic

tort case such as this is medical evidence is es-

sential to establish harm to plaintiffs. Without

having produced any medical evidence, plaintiffs

cannot establish that they suffered damages, an

essential element of their case. Plaintiffs may not

rely solely upon allegations or denials of the

pleadings,” and a complete failure of proof con-

cerning an essential element of the nonmoving

party’s case necessarily renders all other facts

immaterial.”® Defendants are entitled to summary

judgment as a matter of law.

It is unnecessary for the court to consider the

alternative motion to dismiss.

Accordingly, for the reasons assigned, the mo-

tion by defendants, Georgia Gulf Corporation, X.L.

Insurance Company, Ltd., HydroChem Industrial

Services, Inc., Payne & Keller Company, Inc.,

Master Maintenance & Construction, Inc., Amoco

Energy Trading Corporation, Louisiana Intrastate

Gas Company, L.L.C., and LIG Liquids Company,

© Id.

7 Fed. R.CiV.P 56(e); Anderson, 477 U.S. at 248,106 S.Ct. at

2510; Topalian v. Ehrman, 954 F.2d 1125, 1131 (Sth 1992).

' 8 Celotex, 477 U.S. at 322-323, 106 S.Ct. at 2552; see Lit-

tle, 37 F.3d at 1075.

38a

L.L.C., for summary judgment or dismissal (doc.

115) is hereby GRANTED and this matter shail be

DISMISSED, with prejudice.

Baton Rouge, Louisiana, October 30, 2002.

JOHN V. PARKER

UNITED STATES DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

Appendix F

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

Ken Acosta, et al.

Civil Action

versus

No. 98-1065-A

Master Maintenance &

Construction, Inc., et al.

[June 9, 1999 Filed]

RULING ON MOTIONS

This matter is before the court on: (1) a Motion

to Remand by plaintiffs, Lucien Templet, et al and

(2) a Motion to Dismiss and/or for Summary

Judgment by the defendant, Amoco Pipeline

Company. The defendants, Amoco Production

39a

Company, Amoco Energy Trading Corporation,

Georgia Gulf Corporation, Primex, Ltd. and X. L.

Insurance Co., Ltd., oppose the motion by plain-

tiffs to remand.! Plaintiffs have not filed an oppo-

sition to Amoco Pipeline Company's motion. There

is no need for oral argument. This action was re-

moved to this court on March 5, 1999 by defen-

dants, X. L. Insurance Company Ltd. and Primex

Ltd. Removal jurisdiction is allegedly based on the

Convention on the Recognition and Enforcement

of Foreign Arbitral Awards, 9 U.S.C. § 201, et seq.

I. MOTION TO REMAND

With few exceptions, the present matter raises

virtually identical issues to those presented before

this court in Ken Acosta v. Master Maintenance

& Construction, et al, No. 98-1065-A (M.D. La.

March 2, 1999). Both actions arise from an al-

leged chemical exposure of workers at the Georgia

Gulf facility in Plaquemine, Louisiana on Septem-

ber 25, 1996. Most of the issues raised by the

plaintiffs in the present motion to remand were

addressed by this court in the Acosta ruling. In

fact, the Templet plaintiffs adopt many of the ar-

guments and cite some of the same legal authori-

ties relied upon by the Acosta plaintiffs.

However, the Templet plaintiffs argue that this

case is distinguishable on the following grounds:

(1) the Louisiana Interstate Gas ("LUG") defen-

1 Also named as defendants in this care are: Master

Maintenance & Construction, Inc., Payne & Keller, Amoco

Pipeline Company, Louisiana interstate gas, L.L.C., Equita-

ble Resources, Inc., X.L. Insurance Company, Ltd., Primex,

Ltd., and Associated electric & Gas Insurance Services, Ltd.

40a

dants did not reach a settlement agreement with

these plaintiffs and have not consented to re-

moval.2 Therefore, consent of all defendants, as

required under 9 U.S.C. § 205, is lacking; (2) the

removing defendants waived their rights to remove

by mistakenly including the Templet case in their

December 1998 removal notices; and (3) the state

court's order denying class certification has been

appealed to the Louisiana First Circuit Court of

Appeal, thus removal was improper and untimely.

For the purpose of this ruling, the court adopts

the Acosta ruling, and reasons set forth therein,

and limits this ruling to the three alleged distinc-

tions raised by Templet in his Motion to Remand.

A. CONSENT OF ALL DEFENDANTS

Plaintiffs argue that the defendants, in their

notice of removal, have attached consent forms of

several defendants, but not all. Specifically, they

argue that the consent of the LIG defendants has

not been obtained. Plaintiffs contend that since

they, unlike the Acosta defendants, have not set-

tled with the LIG defendants, the case is distin-

guishable. Since there has been no settlement,

the LIG defendants cannot be considered nominal

parties. Furthermore, they argue that since all

defendants have failed to timely consent to the

removal, remand is in order.

2 The Louisiana Interstate Gas defendants consist of: Lou-

isiana Interstate Gas Company, L.L.C. and Louisiana Inter-

state Gas Corporation.

3 The court notes that defendants in opposition to the mo-

tion to remand have submitted a notice of consent to re-

moval from the LIG defendants. However, this notice of con-

4la

In Acosta, this court noted that the LIG defen-

dants, if required to consent under 9 U.S.C. §

205, were nominal defendants and would not be

required to consent to the removal of this case

since they have for all purposes settled with the

Acosta plaintiffs.* The classification of the LIG

defendants as nominal in the Acosta matter, was

however, made only after the court held that con-

sent of all non-removing defendants is not re-

quired when removing under 9 U.S.C. § 205.5

The dispute in Acosta, as in this case, revolved

around the parties differing interpretation of

phrase in 9 U.S.C. § 205 which states: “the defen-

dant or the defendants may... remove such ac-

tion...” After considering both the policies under-

lying the Convention and its removal statute and

without restating all of the reasoning of Acosta,

this court concluded that to require consent of all

defendants would defeat the legislative purpose of

§205 and the broad construction given to it under

prior case law.* The court sees no reason to vary

that ruling today simply because these plaintiffs

have not settled with the LIG defendants. The

consent of all non-removing defendants is not re-

sent was not attached with the notice of removal and will

not be considered as a valid consent for the purposes of this

motion. See Farias v. Bexar County Board of Trustees for

Mental Health Mental Retardation Services, 925 F.2d

866, 871 (Sth Cir. 1991), cert. denied 502 U.S. 866, 112

S.Ct. 193, 116 L.Ed.2d 153 (1991), (citing to Getty Oil

Corp. v. Insurance Company of North America, 841 F.2d

1254, 1262 (Sth Cir. 1988)).

4 See Acosta, p. 18-21.

5 Id at 15-21.

6 Id.

!

42a

quired under the statutes implementing the Con-

vention.

B. WAIVER OF RIGHT

Plaintiffs next contend that the defendants

have effectively waived their right to removal

through certain actions — that the defendants

have repudiated prior removals not once but

twice.

In the first attempt, removal was attempted in

January of 1997 by the defendant HydroChem on

the grounds of diversity of citizenship. Thereafter,

the defendants voluntarily consented to remand

and remand was ordered. Since the first attempt

at removal was based on diversity of citizenship,

the first attempt is irrelevant to this discussion.’

Furthermore, the removing defendants, X.L. and

Primex, along with their insured Georgia Gulf,

were not parties to the action at the time that re-

moval occurred; they were added by amending

petition later.

The second alleged repudiated removal oc-

curred when the defendants removed Acosta and

similar cases in December of 1998. This case was

mistakenly included on the defendants’ notice of

removal; this case was not removed at that time.

Plaintiffs argue that repeatedly removing a case

should be considered a waiver. No authority is of-

fered in support of that notion.

As stated in Acosta, waiver of an insurer's

right to remove under the Convention must be ex-

7 See Acosta, at 2, n. 2 (citing S.W.S. Erectors Inc. v. In-

fax, Inc., 72 F.3d 489 (5th Cir. 1996).

43a

plicit.s The mistaken inclusion of the Templet case

in the earlier notice of removal was simply a typo-

graphical error and was not an intentional relin-

quishment of a known right, let alone an express

waiver. Therefore, this court concludes that de-

fendants have not waived their right to remove

under the Convention Act.

C. APPEAL ON CLASS CERTIFICATION

Lastly, the Templet plaintiffs contend that the

18th Judicial District Court issued what

amounted to a final judgment on the motion to

certify the case as a class action. Plaintiffs argue

that prior to removal of this action, this matter

was pending before the Louisiana First Circuit

Court of Appeal. They contend that removal of the

case while an appeal was pending improper. They

also suggest that the class certification hearing in

the state court amounted to a decision on the

merits of the case. Since a decision on the merits

has been made, they argue that under 9 U.S.C. §

205, removal of this action was improper because

it occurred after a trial on the merits. Plaintiffs

suggest that allowing the defendants to remove

this case risks depriving them of their opportunity

for appellate review of the class action issue.

Once again, referring to this court's decision in

Acosta, the court held that the plain language of

9 U.S.C. § 205 permits removal “at any time be-

fore trial.» The decision made by the Louisiana

8 See Acosta, p. 7 (citing McDermott International, Inc. V.

Lloyds Underwriting of London, 944 F.2d 1199, 1209 (Sth

Cir. 1991)).

9 See Acosta, p. 10.

44a

state court to deny class certification was not a

final judgment or a trial on the merits; it was an

interlocutory order that occurred well before

trial..o Under 9 U.S.C. §205, it matters not

whether there is a proceeding pending in an ap-

pellate court, as long as it occurs “at any time

before the trial”. It is clear that the term “trial”

means that removal may occur at any time before

an adjudication on the merits."

Contrary to the position of plaintiffs, there is

no conflict between the federal and state courts.

Once a case is removed, the state court is divested

of jurisdiction.!2 Upon denial of the motion to re-

mand, this case will be governed by federal proce-

dural law.'3 Furthermore, a case removed from

state court arrives in the federal system in the

same condition in which it left the state system."

“If the notice of appeal was adequate in the state

court system, it should be deemed adequate when

it enters the federal courts, regardless of whether

10 A denial or grant of class certification is not a final judg-

ment. It is capable of being amended, altered or recalled

prior to a final judgment. (see Gardner v. Westinghouse

Broad Co., 437 U.S. 478, 480 n.6 (1978); Fed R. Civ. P.

23(c)(1); La.C.C.P. art. 592(A)(3)(c)).

11 See Acosta at 10.

12 In Re Matter of Meyerland Co., 960 F.2d 512(5th Cir.

1992).

13 Td.

14 Granny Goose Foods, Inc. v. Brotherhood of Team-

sters, Etc., 415 U.S. 423, 435-36, 94 S.Ct. 1113, 1122-23,

39 L.Ed.2d 435 (1974).

45a

the state technical requirements for notice of ap-

peal differ from the federal.”'s

The court finds that no facts or issues which

distinguish this case from the previous ruling in

Acosta. Therefore, the motion to remand (doc. no.

5) is denied.

II. MOTION TO DISMISS/SUMMARY JUDG-

MENT

Defendant Amoco Pipeline Company (“Amoco

Pipeline”) also moves to be dismissed from this

action and/or for summary judgment.

In the Templet state court petition, plaintiffs

assert that Amoco Pipeline, Amoco Production

Company, and Amoco Energy Trading Corporation

allegedly supplied/sold contaminated natural gas

to the Georgia Gulf facility causing and/or con-

tributing to their being exposed to toxic chemicals

on September 25, 1996.16

Amoco Pipeline claims that it was not involved

in any manner with the sale/supply or natural

Gas to the Georgia Gulf facility. It contends that

Amoco Production Company and Amoco Energy

Trading Corporation, while denying any liability,

have confirmed that they are the properly named

Amoco entities with respect to the allegations con-

In Re Meyerland, 960 F. 2d at 520 (citing Granny

Goose, 415 U.S. at 435-36, 94 S.Ct. at 1122-23 (“Judicial

economy is promoted by providing that proceedings that

had in state court shall have force and effect in federal

court, so that pleadings filed in state court, for example,

need not be duplicated in federal court.”).

16 See Plaintiffs Third Supplemental and Amending Petition

46a

cerning the sale/supply of natural gas to Georgia

Gulf.

Mr. Lawrence B. Peck, the Vice President of

Amoco Pipeline, through an affidavit, asserts that

Amoco Pipeline lacked any involvement in the

distribution of gas. Peck states the gas originated

from several reserves and was treated/sweetened

at Amoco Production facilities in Port Hudson

and/or Judge Digby. He claims that Amoco Pipe-

line did not own or operate transportation equip-

ment connected to or originating from any of the

reserve fields; it does not own either of the facili-

ties at Port Hudson or Judge Digby; nor was it in-

volved in the transportation of the gas to the

processing plants owned and operated by the LIG

defendants or any other defendant which trans-

ported gas to Georgia Gulf.

When a party moves to dismiss under Fed. R.

Civ. P. 12(b)(6) and “matters outside the pleading

are presented to and not excluded by the court,

the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56,

and all parties shall be given reasonable opportu-

nity to present all material made pertinent to such

a motion by Rule 56”.!7 In this case, the party has

presented the court with an affidavit which the

court deems imperative to the resolution of the

motion at bar. Plaintiffs were on notice that the

court might elect to consider the instant motion

as one for summary judgment, since Amoco Pipe-

line framed its motion as one to dismiss for failure

to state a claim and for summai judgment.

17 Fed. R. Civ. P. 12(b)(6)

47a

Therefore, the court considers the motion as a

motion for summary judgment.

Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affida-

vits, if any, show that there is no genuine issue as

to any material fact and that the moving party is

entitled to a judgment as a matter of law”.'* The

court must view facts and inferences from the evi-

dence in the light most favorable to the non-

moving party.'® Once the moving party has met its

burden, the non-moving party, by submitting spe-

cific facts, must prove there is a genuine issue of

material fact.20

The movant bears the initial responsibility of

asserting the basis for his motion.?! However, the

movant is not required to negate his opponent's

claim. The movant may discharge his burden by

merely “‘showing’--that is, pointing out to the dis-

trict court--that there is an absence of evidence to

support the non-moving party's case.”22 Once the

movant produces such evidence, the non-movant

must then direct the court's attention to evidence

18 Fed. R. Civ. P. 56(c)

19 Crescent towing v. M/V Amax, 40 F.3d 741, 743 (Sth

Cir. 1994).

20 Matsushita Elec. Industries Co. v. Zenith Radio, 475

U.S. 574, 585-587, 106 S.Ct. 1348, 1355-1356, 89 L.Ed.2d.

538 (1986).

21 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 2552, 91 L.Ed.2d 265 (1986).

22 Id. at 325, 106 S.Ct. at 2554.

48a

in the record sufficient to establish a genuine is-

sue of material fact.23

In this case, the court finds that Amoco Pipe-

line, the movant, has met its burden of demon-

strating that there are no material facts in dispute

which would implicate it in any way in this mat-

ter. Plaintiffs, as non-movants, have not re-

sponded to the defendant's motion, much less

presented any evidence that would establish a

genuine issue of material fact. Therefore, Amoco

Pipeline is entitled to judgment as a matter of law.

Ill. CONCLUSION

Accordingly, for the reasons assigned, the mo-

tion to remand by the plaintiffs Lucien Templet, et

al (doc. no. 5) is hereby DENIED. The defendant,

Amoco Pipeline Company's motion for dismissal

under 12(b)(6) and/or summary judgment (doc.

no. 7) is treated as a motion for summary judg-

ment and is hereby GRANTED.

Baton Rouge, Louisiana, June 9, 1999.

JOHN V. PARKER,

UNITED STATES DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

231d. at 477 U.S. 322, 106 S.Ct. at 2552.

49a

Appendix G

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

Ken Acosta, et al.

Civil Action

versus

No. 98-1065-A

Master Maintenance &

Construction, Inc., et al.

[March 2, 1999 Filed]

RULING ON MOTION TO REMAND

This matter is before the court on a motion to

remand by plaintiffs, Kent Acosta, et al. The de-

fendants, Georgia Gulf, Primex, Ltd. and X. L. In-

surance Co., Ltd., oppose this motion. Oral argu-

ments were held on January 15, 1999. Removal

jurisdiction is allegedly based on the Convention

on the Recognition and Enforcement of Foreign

Arbitral Awards, 9 U.S.C. § 201, et seq.

I. PROCEDURAL HISTORY

This action arose from a mustard gas leak at

the Georgia Gulf facility in Plaquemine, Louisiana

on September 25, 1996. The plaintiffs are Kent

Acosta, who was working for a Georgia Gulf sub-

contractor during the leak, and his family, who

alleges that they may have come into contact with

the gas after Mr. Acosta returned home.' At the

' In addition to this action, there have been more than 75

suits filed in state court with more than 2000 claimants.

The actions were apparently consolidated in state court for

50a

time of the incident that gave rise to these claims,

the defendant, Georgia Gulf, was insured by the

defendants, Primex, Ltd, (“Primex”) and X.L. In-

surance Company (“X.L.”). Primex is a Barbados

corporation and X.L. is a Bermuda corporation.

On October 11, 1996, the plaintiffs filed an ac-

tion in the 18th Judicial District for the Parish of

Iberville against several defendants including

Georgia Gulf. Pursuant to Louisiana’s Direct Ac-

tion Statute, Primex and X.L. were also named as

defendants. In October of 1998, the plaintiffs and

other parties in similar suits amended their

claims to assert an intentional tort claim against

Georgia Gulf. Basically, plaintiffs’ amended claims

allege that the release of mustard gas occurred

over an extended period of time.

On December 23, 1998, the defendants, X.L.

and Primex, removed this action to this court.? In

their notice of removal, the defendants allege that

the grounds for removal is a dispute over coverage

between the foreign insurers and Georgia Gulf.

The two foreign insurers claim that their insur-

discovery purposes on February 18, 1997. In addition, some

of these suits were consolidated for trial purposes in Octo-

ber of 1998, and are set for trial beginning in March of

1999. The defendants have removed 68 of these cases to

this court. Only the Acosta action is presently before the

court.

2 Removal was attempted by the defendant Georgia Gulf on

a prior occasion on the grounds of diversity. However, the

defendant voluntarily consented to remand and the cases

were ordered remanded. Since the first attempt at removal

was based on diversity of citizenship, the first attempt is

irrelevant to this discussion. S.W.S. Erectors Inc. v. Infax,

Inc., 72 F.3d 489 (Sth Cir. 1996).

Sla

ance policies require that all coverage issues be-

tween Georgia Gulf and themselves be resolved

through arbitration outside the United States.

X.L.’s policy requires that all such disputes shall

be conducted in London, England. Primex’s con-

tract with Georgia Gulf provides that coverage

disputes shall be conducted in Barbados.

Primex and X.L. argue that because of the re-

cent intentional tort allegations, a dispute has

arisen between Georgia Gulf and themselves re-

garding coverage under their respective insurance

contracts. Relying on 9 U.S.C. § 201 et seq., all

three defendants argue that the insurance com-

panies have a right to remove the entire case to

this court because the arbitration clauses con-

tained in their respective policies are subject to

the Convention on the Recognition and Enforce-

ment of Foreign Arbitral Awards. The defendants

assert that the subject matter of the plaintiffs’

state court action is “related to” this agreement

and likewise, is subject to removal.

Plaintiffs, however, disagree with the defen-

dants’ argument. They contend that removal was

not proper, and this case should be remanded to

state court for several substantive and procedural

reasons. Plaintiffs argue that: (1) any dispute be-

tween Georgia Gulf and its insurers was waived

because the insurers knew of coverage disputes

but continued to provide a defense; (2) removal in

this case was not timely because it did not take

place before the resolution or argument of sub-

stantive issues of law or fact by the state court; (3)

removal of this case does not satisfy the require-

ments under 9 U.S.C. § 201, et. seq, (“the Con-

52a

vention Act”) because there is no “relevant arbi-

tration agreement . . . between the parties to the

litigation”; (4) removal should not be allowed be-

cause not all defendants have consented to re-

moval; and (5) in the alternative, the state court

issues should be severed and remanded to state

court.

II. APPLICABLE LAW

In October of 1968, the United States Senate

ratified the United Nation’s Convention on the

Recognition of Foreign Arbitral Awards (“the Con-

vention”).3 The goal of the Convention was “to en-

courage the recognition and enforcement of com-

mercial arbitration agreements and international

contracts and to unify the standard by which the

agreements to arbitrate are observed and arbitral

awards are enforced in the signatory countries”.‘

The United States and Barbados, Primex’s domi-

ciliary country, are signatories to the Convention.

Bermuda, X.L.’s domiciliary country, is bound by

the Convention pursuant to the United Kingdom’s

Instrument of Accession and subsequent exten-

sions to Bermuda.*®~

Under the provisions of the Convention, the

United States may only avail itself of the benefits

of the Convention against other signatories to the

3 See Senate Comm. on Foreign Relations, Foreign Arbitral

Awards, S. Rep. No. 702, 91st Cong., 2d Sess. 5 (1970) re-

printed in 1970 U.S.C.C.A.N. 3601, 3602.

4 See Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15,

41 L. Ed. 2d 270, 94 S. Ct. 2449 (1974).

S See Defendants’ Notice of Removal, PP 3-4

6 See Defendants’ Notice of Removal, PP 8; 11

53a

extent it agrees to bind itself.” Therefore, the Con-

vention Act, 9 U.S.C. § 201, et seq., was enacted

by Congress to implement the Convention and

bind the United States to its terms. Federal juris-

diction under these statutes is provided for in 9

U.S.C. § 203. It states:

An action or proceeding falling under

the Convention shall be deemed to arise

under the laws and treaties of the

United States. The district courts of the

United States (including the courts

enumerated in section 460 of Title 28)

shall have original jurisdiction over

such an action or proceeding, regard-

less of the amount in controversy.

In addition to the jurisdictional grant provided in

9 U.S.C. § 203, Congress also provided a separate

and distinct statute for removal of Convention

cases from state court. 9 U.S.C. § 205 provides:

“Where the subject matter of an action

or proceeding pending in a State court

relates to an arbitration agreement or

award falling under the Convention, the

defendant or the defendants may, at

any time before the trial thereof, remove

such action or proceeding to the district

court of the United States for the dis-

trict and division embracing the place

where the action or proceeding is

pending. The procedure for removal of

7 Convention, Art. XIV.

54a

causes otherwise provided by law shall

apply, except that the ground for re-

moval provided in this section need not

appear on the face of the complaint but

may be shown in the petition for re-

moval. For the purposes of Chapter 1 of

this title any action or proceeding re-

moved under this section shall be

deemed to have been brought in the

district court to which it is removed.

According to the Fifth Circuit, the Congress, in

creating and providing for original federal juris-

diction, also intended to provide the broadest re-

moval statute in the federal code. The purpose

behind such a liberal removal provision was to in-

sure that there would be a uniform federal com-

mon law regarding international arbitral obliga-

tions.

III. DISCUSSION

A. NO DISPUTE BETWEEN THE PARTIES

According to the Fifth Circuit, “an agreement

falls under the Convention if the agreement: (1) is

in writing; (2) is an agreement to arbitrate a dis-

pute; (3) provides that arbitration will take place

in the territory of a signatory to the convention;

(4) arises out of a commercial legal relationship;

and (5S) is not entirely between citizens of the

United States”.° The two insurance contracts each

8 McDermott International, Inc. v. Lloyds Underwriters of

London, 944 F.2d 1199 (Sth Cir. 1991)

9 Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co.,

767 F.2d 1140, 1144-45 (5th Cir. 1985).

55a

contain an arbitration clause in which the parties

(one of which is a foreign citizen) agree to arbitrate

their disputes. Therefore, this court clearly has

jurisdiction over a dispute between the parties to

the insurance agreement.

Plaintiffs, however, argue that there is no real

coverage dispute between the insurers and Geor-

gia Gulf. They claim that Primex and X.L.’s alle-

gations of newly discovered coverage disputes are

“demonstratively untrue”.’° The plaintiffs assert

that as early as December 1, 1996 approximately

twenty cases were filed in state court alleging in-

tentional torts. They argue that since the insurers

knew of the intentional tort allegations in similar

cases and the insurers have substantially partici-

pated in the state court litigation, the insurers

have waived their right to removal. Also, the

plaintiffs suggest the fact that Primex and Georgia

Gulf were represented by the same attorney as

late as December 9, 1997, demonstrates waiver of

coverage disputes by Primex. They argue that as

early as February 11, 1998, Primex and X.L. had

basically admitted that they would not raise any

coverage defense.!! Plaintiffs contend that since

10 See Plaintiffs Motion in Support of Remand, p. 3.

11 The admission arises from a deposition held on Febru-

ary 11, 1998 where defendant’s counsel, Mr. Rolfs, made

the following comments: “There is no objection to coverage,

period, end of sentence... they waived [their right in the fu-

ture to make a coverage objection]... I think it’s a moot

point... I’m telling you that there is no reservation as to cov-

erage with respect to either one of these insurance carriers”.

Additionally, Mr. Koppus, attorney for XL, stated, “...XL

does not object to covering the claim”. Deposition of Tom

Simon, p. 190-193

56a

the defendants did not take any action to reserve

their rights for two years, they waived their right

to compel arbitration.

Plaintiffs argument, however, is flawed. First,

this case is not amongst the twenty cases filed in

state court which plaintiffs claim allege inten-

tional tort. The court will not consider the plead-

ings in a separate suit as notice of a coverage dis-

pute in this suit.!2

Second, waiver of an insurer’s right to remove

under the Convention must be explicit.!3 In this

case, no evidence has been offered to show that

the insurers explicitly waived their right to re-

moval. The comments by the insurers’ lawyer re-

garding waiver at a deposition on February 11,

1998, did not amount to an explicit waiver of an

arbitrable coverage dispute; neither does the fact

that one of the attorneys previously represented

both the insurer, Primex, and the insured, Geor-

gia Gulf. At the time these statements were made

and the representation occurred, there was simply

no coverage dispute because at that time, there

was no intentional tort problem. These actions oc-

curred prior to either the plaintiffs or the insurers

having knowledge of any alleged intentional con-

duct on the part of Georgia Gulf. The plaintiffs’

intentional tort claim did not become apparent

until depositions in August of 1998. Plaintiffs did

not amend their suit until September 21, 1998.

12 This court notes that allegations of intentional tort in

the twenty cases were extremely vague. The plaintiffs who

made these allegations amended their pleadings in 1998

along with the other claimants to allege more specific facts.

13. McDermott International, Inc., 944 F.2d 1199.

57a

Shortly thereafter, the insurers issued a reserva-

tion of rights letter to Georgia Gulf.

Waiver is defined as the intentional relin-

quishment of a known right.'5 There is no evi-

dence submitted which proves that the insurers

intentionally released their right to arbitrate. The

insurers’ attorney could not explicitly waive an

unknown arbitrable coverage issue that was not

discovered until August 1998. Plaintiffs have not

provided the court with any evidence to demon-

strate that either X.L. or Primex knew or should

have discovered through investigation that the

plaintiffs had such a potential claim.

B. TIMELINESS OF THE REMOVAL

In an argument similar to the waiver claim,

plaintiffs contend that the removal of this case

was not timely. They argue that the provision in 9

U.S.C. § 205 which states “at any time before

trial” means any time “before the resolution of any

substantive issues of law or fact by the state court

or even the argument of such issues”. As author-

ity plaintiffs cite several federal decisions.'* The

1¢ Although plaintiffs claim that Georgia Gulf must file a

separate cross-claim or third party demand for there to be a

legitimate dispute of coverage, the court finds that action

unnecessary and contradictory to the intent of the Conven-

tion and its implementing acts.

1S Steptore v. Masco Construction Company, Inc. 643 So. 2d

1213 (La. 1994).

16 Pan Atlantic Group Inc. v. Republic Insurance Co., 878 F.

Supp. 630(S.D.N.Y. 1995)) Alley v. Nott, 111 U.S. 472, 475-

76, 4S. Ct. 495, 496-97, 28 L. Ed. 491 (1884) (after argu-

ment on demurrer on the ground that no cause of action

has been stated). Sun Sails Corp. v. Block Land, Inc., 316 F.

58a

plaintiffs assert that the “most important exam-

ple” of the state court addressing the merits issue

is when the plaintiffs amended their pleadings to

allege intentional torts. In addition, they reference

numerous exceptions and a motion to exclude ex-

pert testimony by Master Maintenance as having

been allegedly briefed and argued before the state

court.

This court does not agree with plaintiffs’ inter-

pretation of the phrase “at any time before trial”.

Most of the case law upon which plaintiffs rely

was decided before the turn of the century, and

those cases arise under the original 1875 removal

statute. Only one case pertains to removal under

the Convention, Pan Atlantic Group, Inc. v. Repub-

lic Ins. Co., 878 F. Supp. 630 (S.D.N.Y. 1995).

This court finds the reasoning of the Pan Atlantic

court unsound because that court applied the

rule of narrowly construing removal statutes

which clearly should not apply to removal under

the Convention.!7 While such a narrow approach

is mandatory under the general removal statute,

28 U.S.C. § 1441, it does not apply to removal

under the Convention. Quite the contrary, ac-

cording to McDermott, supra, 9 U.S.C. § 205

should be construed broadly and in favor of the

right of foreign parties to remove.'8

This court is persuaded that the phrase, “any

Supp. 379 (E.D. Pa. 1970); Rothner v. City of Chicago, 879

F.2d 1402 (7th Cir. 1989) and Scharff v. Levy, 112 U.S. 711,

5S. Ct. 360, 28 L. Ed. 825(1884).

17 Pan Atlantic Group, Inc., 878 F. Supp. at 637.

18 McDermott International, Inc., 944 F.2d at 1213.

59a

time before trial”, as used in 9 U.S.C. § 205,

means that removal may occur at any time before

an adjudication on the merits.’ The plaintiffs

have cited no ruling in the state court which has

resulted in a final determination of the plaintiffs’

claims. The act of amending the petition and the

other petitions was not dispositive of the suit nor

did it result in an adjudication on the merits. For

this reason, the plaintiffs’ argument regarding the

timeliness of the defendants’ removal is not per-

suasive.

C. SUBJECT MATTER OF CASE RELATES

TO AN ARBITRATION AGREEMENT

Plaintiffs’ next argument challenges whether

the insurers have a right under 9 U.S.C. § 205 to

remove “the entire action” to federal court. They

claim that under 9 U.S.C. § 205, their state court

action does not “relate to” an arbitration agree-

ment under the Convention. The phrase “relate

to”, according to plaintiffs, requires the parties in

a state court action to be signatories to the arbi-

tration agreement in dispute. Plaintiffs contend

that their claims against X.L. and Primex only

arise under the Louisiana Direct Action Statute,

and not under any provisions of the contract.

19 See Beighley v. FDIC, 868 F.2d 776, 782 (Sth Cir. 1989)

(the right of removal is not lost by actions in state court

short of proceeding to an adjudication on the merits.)

20 Plaintiffs also claim that the McCarran-Ferguson Act

“preserves state statutes such as Direct Action Statutes,

excepting them from the usual rules of preemption”. The

plaintiffs argument is misplaced. While the McCarran-

Ferguson Act prohibits preemption of a state’s insurance

regulation, a dispute between an insurer and its insured

60a

In support of their argument, plaintiffs rely

upon the case of Marathon Oil Co. v. Ruhrgas,

A.G., 115 F.3d 315 (5th Cir. 1997) vacated on

other grounds, 145 F.3d 211 (5th Cir. 1998).2:

Although Marathon was vacated on other grounds,

this court considers the decision as persuasive

and useful in its determination of when a state

court action “relates to” an arbitration agreement

under the Convention.

In Marathon, Marathon Oil Company, Mara-

thon Petroleum Norge, a subsidiary of Marathon

Oil, and Marathon International Oil, an interna-

tional affiliate of Marathon Oil, sued Ruhrgas,

A.G., a German Gas supplier, for several business

tort claims. The basis of plaintiffs’ claim was that

the defendant fraudulently induced them to invest

in Marathon Petroleum Norway (MPN), a Mara-

thon Oil subsidiary. MPN, although not a party to

the suit, was subjected to a binding arbitration

agreement with the defendant in Europe. Because

of this arbitration agreement, Ruhrgas removed

regarding terms of their contract is not “the business of in-

surance”. See Group Life & Health Ins. Co. v. Royal Drug Co.,

440 U.S. 205, 230, 99 S. Ct. 1067, 1082, 59 L. Ed. 2d 261

(1978).

21 Plaintiffs also cite In the Matter of Talbott Big Foot, Inc.,

887 F.2d 611 (Sth Cir. 1989) and Zimmerman v. Interna-

tional Companies and Consulting, Inc., 107 F.3d 344 (Sth

Cir. 1997). These cases, however, are irrelevant to the issue

before this court. Neither of these cases deal with whether

this court has jurisdiction or a right of a defendant to re-

move under the Convention. Both of these cases are Federal

Arbitration Act Cases which stand for the proposition that a

direct action plaintiff can not be compelled to arbitrate his

direct action claim against the insurance company when he

is a non-signatory to the arbitration agreement.

6la

the entire action to federal court claiming that the

subject matter of that suit related to an arbitra-

tion agreement under the Convention. The court,

after considering various factors, held that the ar-

bitration agreement was not relevant to the plain-

tiffs’ action and remanded the case to state court.

Despite plaintiffs’ contention in this case,

Marathon does not stand for the proposition that

courts should uniformly deny jurisdiction to all

parties who are not signatories to an arbitration

agreement. Instead, the Marathon court consid-

ered a number of factors in determining whether

the subject matter of a state action is related to

the arbitration agreement.22

In the unpublished opinion of Ieyoub v. The

American Tobacco Co., No. 97-1174 (JTT) W.D. La.

Sept 11, 1997, Judge Trimble furnishes a con-

vincing analysis of the Marathon case and the

factors which it considered in its holding.23 The

factors described are:

“(1) whether the plaintiffs themselves

were signatories to the arbitration

agreement; (2) whether the plaintiffs

22 Marathon Oil Co., 115 F.3d at 321.

23 In Ieyoub, the Attorney General of the State of Louisiana

Richard Ieyoub filed suit against numerous tobacco manu-

factures, tobacco distributors, and their associates seeking

to recover costs incurred by the state for pro-viding health

care to individuals with tobacco-related illnesses. When the

Attorney General sought to amend his petition to include

over a hundred insurance companies under Louisiana’s Di-

rect Action Statute, the defendant-insurers, who were part

of the Institute of Lloyd’s of London, sought removal under

the Convention.

62a

were seeking damages under the con-

tract containing the allegedly relevant

arbitration agreement; (3) whether there

was any contractual relationship at all

between the plaintiffs and the defen-

dant; and (4) whether the plaintiffs were

seeking redress for wrongs done to a

signatory of the agreement”.?4

The plaintiffs in this case, like the plaintiffs in

Ieyoub, are not signatories to the agreement, and

they are not seeking redress for a wrong done to a

signatory of the agreement. However, the plaintiffs

are seeking damages directly from the insurers

under contracts issued to their insured, the al-

leged tortfeasor. Furthermore, Louisiana’s Direct

Action Statute is construed as creating a con-

tractual relationship which inures to the benefit of

any and every person who might be injured by the

insured.25 Without the insurance contracts, plain-

tiffs have no claim against either of the insurers,

and the dispute to be arbitrated directly impacts

their possible recovery from those insurers. When

these facts are considered together with the Fifth

Circuit’s holding that 9 U.S.C. § 205 was intended

by Congress “to channel [ ] Convention Act cases

into federal courts”, this court has no hesitation

in concluding that plaintiffs’ state action is “re-

lated to” an arbitrable dispute under the Conven-

tion, and that removal of the entire action was

proper.

24 Ieyoub, at 7

25 Shockley v. Sallows, 615 F.2d 233, 238 (5th Cir.) cert.

denied, 101 S. Ct. 113 (1980).

26 McDermott Int’l Inc., 944 F.2d at 1208. —

63a

D. CONSENT BY ALL DEFENDANTS

Plaintiffs’ last argument is that this case

should be remanded because not all defendants

have consented to removal. More specifically, they

argue that in every case removed by the defen-

dants at least one of the following parties have

been named: Louisiana Intrastate Gas Company,

L.L.C.; LIG Chemical Company; Equitable Re-

sources, Inc.; and Associated Electric Gas Insur-

ance Services, Ltd. (collectively the “LIG defen-

dants”). The plaintiffs contend that when the de-

fendants approached the LIG defendants and re-

quested consent to removal, the LIG defendants’

refused. According to the plaintiffs, when the LIG

defendants refused to sign the consent to removal,

the defendants/insurers altered the notice of re-

moval so as to indicate that the LIG defendants

have settled. Plaintiffs suggest that the only

agreement made between themselves and the LIG

defendants was as to the gross amount to be paid.

It is the contention of plaintiffs that there were no

specific allocations made to the individual plain-

tiffs, and that plaintiffs have not signed off on the

agreement. Therefore, plaintiffs assert that the

LIG defendants have not officially settled and

should not be considered as a nominal party for

purposes of removal.

The defendants, however, contend that under 9

U.S.C. § 205 consent of all the defendants is not

required. In the alternative, they argue that if this

court does require consent of all defendants, the

consent of the LIG defendants is not required be-

cause they are only nominal defendants. They

claim that although the plaintiffs have not signed

64a

the agreement to settle, the LIG defendants, for all

practical purposes, are no longer a party to the

suit. Therefore, their consent was not required.

Lastly, they assert that if the LIG defendants are

not deemed nominal defendants then the “no-

position letter” by George D. Kappus, attorney for

the LIG defendants, should be considered as con-

sent.

1. Consent of all defendants

The dispute over whether consent of all defen-

dants is required comes from the differing inter-

pretation by the parties of the phrase in 9 U.S.C.

§ 205 which states: “the defendant or the defen-

dants may... remove such action .. .” Plaintiffs

argue that this wording should be given the same

construction which is given to identical language

found in 28 U.S.C. § 1441(a).27 Under § 1441(a),

the jurisprudence is clear that all defendants to

an action must join in removal, even if the federal

question at issue impacts only one of the defen-

dants.

The defendants, however, suggest that since

the statutes implementing the Convention were to

_be given a broad construction, defendants such as

the LIG group, who are without a right to removal,

are not required to consent. They charge that any

27, 28 U.S.C. 1441(a) Actions removable generally

a) Except as otherwise expressly provided by Act of Cm-

gress, any civil action brought in a State court of which the

district courts of the United States have original jurisdic-

tion, may be removed by the defendant or the defendants, to

the district court of the United States for the district and

division embracing the place where such action is pending.

65a

other interpretation of 9 U.S.C. § 205 would de-

feat the purpose of the Convention.

As stated above, 9 U.S.C. § 205 is not given the

same strict construction as cases removed under

28 U.S.C. § 1441.28 However, the Congress is pre-

sumed to have intended similar terms in its leg-

islation to have similar meaning.” The wording in

9 U.S.C. § 205 and the wording in 28 U.S.C. 1441

are identical in that both allow removal by “the

defendant or defendants”. Plaintiffs’ argument is

certainly plausible.

The Fifth Circuit had occasion to consider the

Foreign Sovereign Immunities Act (*FSIA”) in

Arango v. Guzman Travel Advisors Corp., 621 F.2d

1371 (Sth Cir. 1985). Pursuant to the FSIA, 28

U.S.C. 1441(d) specifically grants the right of re-

moval to federal court to “the foreign state”. Con-

sidering the Congressional purposes of the Act,

the court concluded that a foreign state has the

right to remove any action in which it is a defen-

dant regardless of lack of consent by any other

party defendant.

Subsequently, in McDermott, the court recog-

nized the similar purpose of the two acts. In both

acts “Congress deliberately sought to channel

cases .. . away from the state courts and into fed-

eral courts . . . for the purpose of assuring a uni-

tary federal jurisprudence.” That purpose is best

served by construing § 205 in a fashion that al-

lows a foreign insurer to remove a case arising

28 McDermott International, Inc., 944 F.2d at 1213.

29 Nat'l Credit Union Admin. v. First Nat’l Bank & Trust Co.,

522 U.S. 479, 118 S. Ct. 927, 939, 140 L. Ed. 2d 1 (1998).

66a

under the Convention Act without the consent of

any other party defendant.

As this court has already observed, supra p.5,

and as the discussion in McDermott makes plain,

944 F.2d at pp. 1211 and 1212, the purpose of

channeling all Convention Act cases into federal

court is to insure development of a uniform body

of federal law. It is self-evident that the courts of

the fifty states of this Union are unlikely to de-

velop a uniform body of federal law regarding in-

ternational arbitration agreements.

The purpose of the Convention Act to foster

international contracts is furthered by assuring a

foreign business dealing with an American. busi-

ness, that without regard to which of the states

where that business may be located, the foreign

business will have access to that uniform body of

federal law in the event of a dispute relating to an

arbitration agreement.

When a foreign insurer issues a policy con-

taining such a clause to an American business, it

-cannot predict what other party defendants it

might be grouped with in future litigation. To

condition the foreign insurer’s access to the uni-

form body of federal law upon the whim of un-

known and unknowable future party defendants

is to completely thwart the very purposes of the

Convention Act. Foreign businesses who under-

stand that their access to federal courts can be

denied by one local party defendant are likely to

think carefully before contracting with an Ameri-

can business.

A construction of § 205 proposed by plaintiffs

67a

which requires consent of all defendants would

constitute an obstruction to the free flow of for-

eign trade, a consideration which is not involved

in removals under the general removal statute.

Since the purpose of the Convention Act is to en-

courage foreign trade, such a construction should

not be adopted, despite the use by Congress of the

magic words, removal “by the defendant or the

defendants” in § 205.

Thus, this court concludes that the jurispru-

dence under 28 U.S.C. § 1441 (a) as to the

meaning of “the defendant or defendants” has no

application to that phrase as used in 9 U.S.C. §

205.

2. Nominal defendants

Assuming that the court’s holding relative to

the necessity for consent of all defendants is in

error, the defendants assert that the LIG defen-

dants should be considered as nominal defen-

dants because of the previous settlement agree-

ments.

The consent of a nominal defendant is not re-

quired for removal. The test set out by the Fifth

Circuit for whether a defendant is a nominal de-

fendant is “whether in the absence of the [defen-

dant], the Court can enter a final judgment con-

sistent with equity and good conscience which

would not be in any way unfair or inequitable to

the plaintiff’.2° Defendants who have settled are

30 =6Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen

and Assistants’ Local 349, 427 F.2d 325, 327 (Sth Cir.

1970).

68a

nominal defendants whose consent to removal is

unnecessary.?!

Plaintiffs concede that they are attempting to

or have attempted to settle with the LIG defen-

dants. However, they argue that the settlement, at

the time of removal, was unenforceable. They

claim that under Erdy v. American Honda Co., a

prior opinion of this court, there must be an en-

forceable settlement agreement signed by the

plaintiffs in order for the settling defendant to be

viewed as a nominal defendant.32 They argue that

the Fifth Circuit, in Vasquez v. Alto Bonito Gravel

Paint Corp., 56 F.3d 689 (5th Cir. 1995), con-

firmed Erdy’s requirement of an enforceable set-

tlement agreement.

Plaintiffs analysis of both Erdy and Vasquez,

however, is marred. This court in Erdy did not re-

quire that there be an enforceable settlement

agreement. Erdy simply stated that “where [a]

plaintiff by his voluntary act has definitely indi-

cated an intention to discontinue the action as to

the non-diverse defendant, [he] has indicated that

he no longer desires to dictate the forum and the

case then becomes removable”. The Vasquez

court did in fact confirm this holding when it

stated the test is “whether there has been a vol-

untary act of the plaintiff that effectively elimi-

31 J.D. Bradley v. Maryland Casualty Co., 382 F.2d 415,

419 (8th Cir. 1967).

32. 96 F.R.D. 593 (M.D. La. 1983), modified on other

grounds, 558 F. Supp. 105 (M.D. La. 1983)

33 696 F.R.D. at 599.

69a

nated the non-diverse defendant from the case”.%4

In this case, counsel! for plaintiffs have signed

a settlement letter. The letter states that the LIG

defendants shall pay “$ 11 million to resolve all

claims brought against the LIG entities and their

insurer by both plaintiffs . . . and Georgia Gulf.

This payment is to be placed in an interest bear-

ing account to be used ‘exclusively as a dollar-for-

dollar settlement and/or judgment credit in favor

of Georgia Gulf. . . the monies are to remain in es-

crow until the conclusion of the litigation. . .upon

severance of LIG from the pending suits against

Georgia Gulf, neither Georgia Gulf nor the plain-

tiffs will seek to include L’G on the verdict form at

any trial of this litigation.”35 n35

Plaintiffs have also filed a joint motion in state

court to sever the LIG defendants from this suit.

In this agreement, the plaintiffs state that they

“have reached an agreement in principle for set-

tlement”. They also state that they “will terminate

the involvement of LIG group in all matters arising

out of the chemical exposures that are the subject

of this consolidated action”.* In this case, plain-

tiffs are attempting to “have their cake and eat it,

34 =Vasquez, 56 F.3d at 693; See also, Martineau v. Arco

Chemical Co. 25 F. Supp. 2d 762 (S.D. Tex. 1998) (confirm-

ing consent was not required from a settling defendant

when counsel for settling defendant had signed a settlement

letter, informed the court of a settlement agreement in prin-

ciple and agreed upon consummation of settlement).

35 See Defendant Georgia Gulf’s Opposition to Plaintiffs

Motion to Remand, Exhibit “J”.

3% See Defendant Georgia Gulf's Opposition to Plaintiffs

Motion to Remand, Exhibit "L"

70a

too”. They cannot argue that there is no settle-

ment between the LIG defendants and themseives,

and at the same time made no attempt to disavow

or challenge the settlement. Without regard to

whether plaintiffs have signed a formal settlement

document in this case, they have agreed, through

their attorneys, to a dollar amount and have

moved to sever the LIG defendants from the case.

Under the test set out above, these actions con-

stitute “voluntary acts” by plaintiffs to “effectively

eliminate” the LIG defendants from this case. For

these reasons, this court considers the LIG defen-

dants to be nominal defendants and thus not re-

quired to consent to the removal of this case.

E. SEVERANCE OF NON-COVERAGE ISSUES

Lastly, plaintiffs argue in the alternative that

this court should severe all non-coverage state is-

sues, and remand all such issues to state court.

Plaintiffs urge that this court follow the decision

of Acme Brick Co. v. Agrupacion Expordatora De

Maquinaria Ceramica.37 In Acme Brick, the plain-

tiffs brought an action against the defendant

Agrupacion for breach of contract and against the

defendant American Home for payment under a

payment and performance bond. American Home

then filed a cross claim against Agrupacion re-

questing indemnification under a separate in-

demnity agreement which provided that the par-

ties would arbitrate their claims. Agrupacion then

removed under the Convention Act and on the ba-

sis of federal question jurisdiction, 28 U.S.C. §

1441. After the court dismissed American Home’s

37, 855 F. Supp. 163 (N.D. Tex. 1994)

7la

indemnification claim without prejudice in favor of

arbitration, it decided that there was no longer

any federal question issue remaining. The court

thus remanded the breach of contract claim to

state court.%

This court disagrees with the analysis used in

Acme Brick. In Acme Brick, the court required an

independent basis of jurisdiction in order to

maintain an action under the Convention.» How-

ever, under 9 U.S.C. § 203, federal courts clearly

have original jurisdiction over the entirety of any

action which falls under the Convention. As

stated in the discussion, supra, this “entire ac-

tion” “falls under the Convention”. Thus, this

court has jurisdiction over the entire case under 9

U.S.C. § 201 et seq., including the alleged state

law claims, and cannot severe those claims.”

CONCLUSION

Accordingly, for the reasons assigned, the mo-

tion to remand by the plaintiffs Kent Acosta, et al

(doc. no. 3) is hereby DENIED.

Baton Rouge, Louisiana, March 2, 1999.

/s/

JOHN V. PARKER,

UNITED STATES DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

38 Id.

39 Id.

40 See Ieyoub at p. 11-14.