Winstead v. Georgia Gulf Corp. , 77 F. App'x 267 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 02-31212
Summary Calendar
_____________________
RAIFORD WINSTEAD,
Plaintiff - Appellant
versus
GEORGIA GULF CORPORATION; HYDROCHEM INDUSTRIAL SERVICES, INC.;
HYDROCHEM, INC.; MASTER MAINTENANCE CORPORATION, also known as
Master Management Corporation; PAYNE & KELLER COMPANY, INC.
Defendants - Appellees
_____________________
No. 03-30183
Summary Calendar
_____________________
JERRY A. OLDHAM, ET AL.
Plaintiffs
RAIFORD WINSTEAD
Plaintiff - Appellant
versus
LOUISIANA INTRASTATE GAS CO. LLC; ET AL.
Defendants
AMOCO PRODUCTION CO.; AMOCO PIPELINE CO.;
AMOCO ENERGY TRADING CORP.
Defendants - Appellees
_________________________________________________________________
Appeals from the United States District Court
for the Middle District of Louisiana
District Cause Nos. 99-CV-284 & 02-CV-666
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
The above numbered and styled appeals arose from two
lawsuits filed after an accidental release of chemicals at a
Georgia Gulf Corporation plant in Iberville Parish in Louisiana
on September 25, 1996. Jerry A. Oldham, a plant employee, filed
the first lawsuit (the Oldham lawsuit) in state court on
September 10, 1997. Oldham named Appellee Amoco Production
Company, Appellee Amoco Pipeline Company, Appellee Amoco Energy
Trading Corporation (collectively, Amoco), Louisiana Intrastate
Gas Company, L.L.C., L.I.G. Liquids Company, L.L.C., and
Louisiana Interstate Gas Corporation (collectively, LIG) as
defendants. Oldham subsequently amended his complaint and added
Appellant Raiford Winstead and four other plant employees as
plaintiffs and named Equitable Resources, Inc., and LIG’s
insurance carrier, Associated Electric and Gas Insurance
Services, LTD as defendants. The defendants removed the case to
federal court on March 29, 1999.
A few weeks after removal, Amoco filed a third-party
complaint against Appellee Georgia Gulf Corporation (Georgia
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
2
Gulf) seeking contractual indemnity. Although Winstead did not
amend his complaint to add Georgia Gulf as a defendant at that
time, he sought to amend his complaint to add Georgia Gulf and
three of its maintenance contractors–Appellee Master Maintenance
Corporation, Appellee HydroChem Industrial Services, Inc., and
Appellee Payne & Keller Company, Inc. (collectively, the Georgia
Gulf defendants)–as defendants on January 12, 2001. The district
court denied Winstead’s motion to amend his complaint.
After the district court denied his motion to amend the
complaint, Winstead filed a second lawsuit (the Winstead lawsuit)
based on the same accident in state court on May 15, 2002 and
sued the Georgia Gulf defendants. The Georgia Gulf defendants
removed the case to federal court. On September 16, 2002, the
district court granted the Georgia Gulf defendants’ motion for
summary judgment based on prescription and dismissed Winstead’s
claims. That action is the subject of Winstead’s first appeal.
Winstead settled his claims against the LIG defendants and
AEGIS in the first lawsuit The district court then dismissed
Winstead’s claims against the Amoco defendants on summary
judgment because Winstead failed to present evidence of
causation. That action is the subject of Winstead’s second
appeal.
Whether Winstead Should Have Been Permitted to Amend
In his first issue, Winstead contends the district court
3
erred by denying his motion to amend his complaint in the Oldham
lawsuit. Winstead maintains that denying his motion to amend
punished him for delays he did not create and for his exclusion
from a settlement involving other plaintiffs.
Rule 15(a) of the Federal Rules of Civil Procedure mandates
that leave to amend "be freely given when justice so requires."
Determining when justice requires permission to amend rests
within the discretion of the trial court. See Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Nilsen v.
City of Moss Point, Miss., 621 F.2d 117, 122 (5th Cir. 1980).
Consequently, this Court will not disturb the district court’s
denial of a motion to amend absent an abuse of discretion. See
Nilsen v. City of Moss Point, Miss., 621 F.2d at 122. In
exercising its discretion in considering a motion to amend a
complaint, the district court may consider, among other factors,
undue delay, dilatory motive on the part of the movant, and undue
prejudice to the opposing party by virtue of allowing the
amendment. See Daves v. Payless Cashways, Inc., 661 F.2d 1022,
1024 (5th Cir. 981). After reviewing the district court’s
application of those factors to Winstead’s proposed amendment,
the Court concludes that the district court did not abuse its
discretion.
Undue delay and dilatory motive. Although Winstead insists
he attempted to amend his complaint only once, Winstead was added
4
as a plaintiff in the Oldham lawsuit on September 24, 1997.
After Winstead joined the lawsuit, the Oldham plaintiffs amended
their complaint on October 3, 1997 to add additional class
representatives and to clarify the class definition, and on March
6, 1998 to add more class representatives. Although these
amendments occurred before the case was removed to federal court,
the state court issued an order on March 27, 1998 that
established an absolute deadline of July 15, 1998 for adding new
parties. Winstead never challenged that deadline, and the
deadline remained in full force and effect once the case was
removed to federal court. See 28 U.S.C. § 1450.
Although Winstead states that he attempted to add the
Georgia Gulf defendants when he learned of facts appropriate to
amend, Winstead waited 21 months after Amoco filed its third-
party complaint to seek his amendment. Initially, Winstead may
have been reluctant to sue his employer, but significant
time–over forty months–had elapsed when Winstead sought to amend
his complaint on January 12, 2001. Although Winstead complains
about his first attorney, “[t]he retention of a new attorney able
to perceive or draft different or more creative claims from the
same set of facts is . . . no excuse for the late filing of an
amended complaint.” Rhodes v. Amarillo Hosp. Dist., 654 F.2d
1148, 1154 (5th Cir. 1981). Not only had undue delay occurred by
the time Winstead asked to amend his complaint, waiting to chose
5
to sue his employer until such a later stage of the litigation
was dilatory.
Undue prejudice. Winstead also maintains that the Georgia
Gulf defendants would have sustained no prejudice through his
amendment because the defendants had been defending earlier
allegations in consolidated cases. Winstead’s amendment,
however, would have forced the Georgia Gulf defendants to attempt
to discover the basis for Winstead’s claims more than four years
after Winstead’s alleged exposure to the chemical release. Even
if the Georgia Gulf defendants had been defending themselves in
related litigation, the Georgia Gulf defendants would have been
entitled to discovery of evidence relevant to Winstead’s claims.
Such discovery would have inevitably delayed the resolution of
the Oldham lawsuit. A four-year delay would have clearly
prejudiced the ability of the Georgia Gulf defendants to defend
themselves as relevant witnesses may have no longer been
available and memories would have inevitably faded.
In addition to being prejudiced by the passage of time, the
Georgia Gulf defendants reasonably relied upon the deadline for
adding new parties. As a third-party defendant to Amoco’s
indemnification claims, the Georgia Gulf defendants had no reason
to participate in discovery related to Winstead’s claims.
Winstead had adequate time to discover evidence about the cause
of his injuries and adequate time to amend his complaint. “At
6
some point in time[,] delay on the part of a plaintiff can be
procedurally fatal.” Gregory v. Mitchell, 634 F.2d 199, 203 (5th
Cir. 1981). That point was surpassed here. Under these
circumstances, the district court did not abuse its discretion in
denying the proposed amendment.
Whether the District Erred by Finding No Evidence of Causation
In his second issue, Winstead argues that the district court
erred in granting Amoco’s motion for summary judgment in the
Oldham lawsuit after determining Winstead failed to present
evidence of causation in support of his claims of Amoco’s
liability. Winstead maintains genuine issues material issues of
fact exist about Amoco’s liability that preclude summary
judgment. This Court reviews the district court's grant of a
motion for summary judgment de novo. See Copeland v.
Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.
2002).
Rule 56 of the Federal Rules of Civil Procedure "mandates
the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In this case, Amoco argued that no evidence existed
that the natural gas it supplied to Georgia Gulf contained the
7
element alleged to have caused the chemical release that injured
Winstead. To raise a question of fact about this question,
Winstead was required to present expert testimony because the
cause of the chemical release is beyond the understanding of an
untrained lay person and because specialized, technical knowledge
would assist the trier of fact in determining the cause of the
chemical release. See Batiste v. General Motors Corp., 802 So.2d
686, 690 (La. Ct. App. 2001); FED. R. EVID. 702.
To meet his burden of presenting evidence of causation,
Winstead relied on preliminary expert reports authored by Georgia
Gulf’s experts and the deposition testimony of Georgia Gulf’s
corporate representative. In the reports, Georgia Gulf’s experts
identified Amoco’s natural gas as the most likely source of the
reactive nitrogen that formed the tris that caused the chemical
release. Those reports, however, are not competent summary
judgment evidence.
Rule 56(e) of the Rules of Civil Procedure provides:
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith.
FED. R. CIV. P. 56(e) (emphasis added). The Georgia Gulf experts
may have been competent to testify about the matters discussed in
their expert reports, but the preliminary reports were never
8
sworn or certified. Because the reports were neither sworn nor
verified, the reports did not constitute competent summary
judgment evidence. Consequently, the reports did not raise a
genuine issue of material fact about whether the natural gas
Amoco supplied to Georgia Gulf contained the element alleged to
have caused the chemical release that injured Winstead, even if
supported by the deposition testimony of Georgia Gulf’s corporate
representative. In contrast, Amoco presented substantial summary
judgment evidence that indicated its natural gas did not contain
any element that might have contributed to the chemical release.
As a result, Amoco was entitled to summary judgment.
Consequently, the district court did not err by finding no
evidence of causation and granting summary judgment in Amoco’s
favor.
Whether Claims Against Georgia Gulf Are Prescribed
In his third issue, Winstead argues that the district court
erred in granting summary judgment in favor of the Georgia Gulf
defendants in his second lawsuit, the Winstead lawsuit. Winstead
maintains the district court erred in applying the law in regard
to the applicability of statutory immunity to all named
defendants and in determining Winstead’s claims were prescribed.
While the district court’s analysis of Georgia Gulf’s immunity is
somewhat unclear, it is clear that Winstead’s claims are
prescribed under Louisiana law.
9
Louisiana law provides for a one-year limitations period for
torts such as Winstead’s claims. See LA. CIV. CODE art. 3492
(delictual actions are subject to a liberative prescription of
one year). In his complaint, Winstead complained about acts that
occurred in September 1996. Winstead, however, did not file his
complaint until May 13, 2002–over five years after September
1996. As a result, the face of Winstead’s complaint bars his
claims.
When the plaintiff’s claims are prescribed on its face, the
burden shifts to the plaintiff to prove the prescription period
was suspended or prescribed. See Lima v. Schmidt, 595 So.2d 624,
628 (La. 1992). Winstead maintains his claims in the Oldham
lawsuit interrupted prescription in the Winstead lawsuit because
the Georgia Gulf defendants were joint tort feasors with LIG and
Amoco in the Oldham lawsuit. Although article 2324(c) of the
Louisiana Civil Code states that “[i]nterruption of prescription
against one joint tortfeasor is effective against all joint
tortfeasors,” Winstead did not establish that the Georgia Gulf
defendants were joint tort feasors with any LIG or Amoco.
“If the plaintiff's basis for claiming interruption is
solidary liability between two parties, then the plaintiff also
bears the burden of proving that solidary relationship.” Vincent
v. Tusch, 618 So.2d 385, 385 (La., 993). Winstead provided no
evidence that established that the Georgia Gulf defendants were
10
joint tort feasors with LIG or Amoco. As a result, Winstead
failed to demonstrate that his claims in the Oldham lawsuit
interrupted prescription in the Winstead lawsuit. Consequently,
the district court did not err by determining that Winstead’s
claims in the Winstead lawsuit were prescribed.
Conclusion
Winstead maintains in his last issue that the district court
erred in the Winstead lawsuit by determining the Georgia Gulf
defendants were immune from suit. This Court need not reach that
issue, however, because Winstead’s claims were prescribed.
Having determined that the district court did not err in either
the Oldham lawsuit or the Winstead lawsuit, this Court affirms
the judgment of the district courts.
AFFIRMED
11