Breaux et al v. Occidental Chemical Corporation et al

1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JARED BREAUX, ET AL. CIVIL ACTION

VERSUS No. 25-1055

OCCIDENTAL CHEMICAL CORPORATION, ET AL. SECTION I

ORDER
This case was removed to this Court by defendants Occidental Chemical
Corporation (“OxyChem”) and Eric Henderson (“Henderson”) (collectively,
“defendants”) on the basis of diversity jurisdiction.
1
Before the Court is a motion
2
to
remand filed by plaintiffs Jared Breaux, Jayce Breaux, and Josh Dake (collectively,
“plaintiffs”). Defendants filed a response in opposition.
3
No reply was filed by
plaintiffs before the noticed submission date.
4
For the reasons set forth below, the
Court denies plaintiffs’ motion to remand.
I. BACKGROUND
This case arises out of injuries plaintiffs sustained on July 18, 2023, while
working at one of OxyChem’s facilities.
5
At the time, plaintiffs were employed by
River Parish Contractors and were working at OxyChem’s Geismar Plant as
pipefitters.
6
They were tasked with cutting pipe the day of the incident.
7
The specific

1
See R. Doc. No. 1.
2
R. Doc. No. 10.
3
R. Doc. No. 12.
4
See R. Doc. No. 10-8 (setting submission for July 23, 2025).
5
See generally R. Doc. No. 5.
6
Id. at ¶ 8.
7
Id. at ¶ 9.
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pipe plaintiffs were cutting was connected to an air line that had been “cut off prior
to cutting.”
8
Because “the line had already been cut,” plaintiffs were faced with a
chlorine cloud when an operator at the Geismar Plant “hooked up the other end of
the air line to one of the tanks to blow out the chlorine.”
9
As a result, plaintiffs have
suffered “serious physical symptoms,” including, “severe burns to their
throats . . . chest pain, shortness of breath, coughing up blood, vomiting, [and] major
headaches.”
10

Plaintiffs originally filed suit against OxyChem in Dallas County, Texas,
where OxyChem maintains its principal place of business.
11
After some discovery was
conducted, OxyChem moved to dismiss the case on the ground of forum non
conveniens.
12
The Texas court granted OxyChem’s motion and dismissed the case,
finding that plaintiffs’ claims would be more properly heard in Louisiana.
13

Plaintiffs filed suit in Louisiana state court on April 22, 2025. For the first
time, they named both OxyChem and Henderson, a citizen of Louisiana, as
defendants.
14
Plaintiffs had learned from OxyChem during discovery related to the
Texas case that defendant Henderson was the OxyChem employee that had hooked
up the tank to the air line that had led to plaintiffs being hit with the chlorine cloud.
15

8
Id.
9
Id.
10
Id. at ¶ 13.
11
See R. Doc. No. 10-1, at 1; see also R. Doc. No. 10-2 (original Texas petition).
12
R. Doc. No. 10-1, at 2.
13
See R. Doc. No. 10-6.
14
R. Doc. No. 10-1, at 2.
15
Id.; R. Doc. No. 12, at 2–3.
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On May 28, 2025, defendants timely removed plaintiffs’ Louisiana case to this Court
on the basis of diversity jurisdiction.
16
Although defendants acknowledged that
plaintiffs and Henderson are all citizens of Louisiana,
17
and that this would normally
defeat the complete diversity requirement, they maintained that federal jurisdiction
is proper because Henderson was improperly joined.
18
Henderson’s citizenship “is
therefore not considered for diversity jurisdiction purposes.”
19
In addition,
defendants’ removal notice noted that plaintiffs’ claims are “prescribed on their face”
with respect to Henderson.
20

After the case was removed by defendants, plaintiffs filed an amended
complaint
21
and, subsequently, a motion
22
to remand. In their motion to remand,
plaintiffs argue that Henderson was not improperly joined because their allegations
demonstrate the possibility of recovery against him.
23
Further, they argue that their
claims against Henderson are timely because prescription was interrupted when they
sued OxyChem in Texas state court.
24

16
See R. Doc. No. 1 (noting that Henderson and OxyChem were not served with the
state petition until May 7, 2025, and May 9, 2025, respectively).
17
Id. at 3–4 (defendants’ notice of removal); see also R. Doc. No. 1-2, at 5 (original
Louisiana petition).
18
R. Doc. No. 1, at 4.
19
Id.
20
Id. at 5.
21
R. Doc. No. 5.
22
R. Doc. No. 10.
23
See R. Doc. No. 10-1, at 3.
24
See id. at 4.
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In response, defendants proffer two theories in support of their contention that
Henderson was improperly joined.
25
First, they argue that plaintiffs have not shown
that they can hold Henderson individually liable in tort pursuant to Louisiana law,
and therefore, they have no possibility of recovery against him.
26
Second, they argue
that because plaintiffs cannot show that Henderson and OxyChem are joint
tortfeasors, plaintiffs’ claims against Henderson are prescribed.
27
Plaintiffs did not
reply.
II. LEGAL STANDARDS
“Under the federal removal statute, a civil action may be removed from a state
court to a federal court on the basis of diversity.” Int’l Energy Ventures Mgmt., L.L.C.
v. United Energy Grp., Ltd., 818 F.3d 193, 199 (5th Cir. 2016); see also 28 U.S.C.
§§ 1441(a) and 1332. For diversity jurisdiction to exist, the amount in controversy
must exceed $75,000, exclusive of interests and costs, and there must be complete
diversity between the plaintiff and all defendants. See 28 U.S.C. § 1332(a). However,
“such diversity cannot be destroyed by a plaintiff fraudulently joining a non-diverse
defendant.” McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004); see
also Williams v. Homeland Ins. Co. of New York, 18 F.4th 806, 812 (5th Cir. 2021) (“If
a non-diverse defendant is improperly joined, however, a district court can disregard
the citizenship of that defendant for the purposes of evaluating its jurisdiction.”).

25
See R. Doc. No. 12.
26
See id. at 6–12.
27
Id. at 12–17.
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A party may establish that a non-diverse defendant was fraudulently joined in
two ways: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of
the plaintiff to establish a cause of action against the non-diverse party in state
court.” Advanced Indicator & Mfg., Inc. v. Acadia Ins. Co., 50 F.4th 469, 473 (5th Cir.
2022) (quoting Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir.
2004) (en banc)).
Defendants seek to establish improper joinder the second way.
28
See also Int’l
Energy Ventures Mgmt., L.L.C., 818 F.3d at 199 (“Because [the joined defendant] is,
in fact, nondiverse, only the latter option is relevant.”). The test for determining
improper joinder in this way is “whether the defendant has demonstrated that there
is no possibility of recovery by the plaintiff against an in-state defendant.” Palmquist
v. Hain Celestial Grp., Inc., 103 F.4th 294, 304 (5th Cir. 2024), cert. granted in part
on other grounds, No. 24-724, 2025 WL 1211787 (U.S. Apr. 28, 2025). Stated
differently, this “means that there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover against an in-state defendant.” Id.
Defendants carry the burden of persuasion as the party claiming improper joinder,
and their burden is a “heavy one.” Palmquist, 103 F.4th at 304; see also Smallwood,
385 F.3d at 575 (“If, however, the foreign defendant fails to prove the joinder
improper, then diversity is not complete, the diverse defendant is not entitled to

28
R. Doc. No. 1, at 4 (“The Petition reveals that Plaintiffs have no reasonable basis of
recovery against Henderson under Louisiana law . . . .”).
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remove, and remand is mandated.”). “Any contested issues of facts and any
ambiguities of state law must be resolved in favor of remand.” Id. (citation modified).
The Court first conducts a “Rule 12(b)(6)-type analysis, looking initially at the
allegations of the complaint to determine whether the complaint states a claim under
state law against the in-state defendant.” Smallwood, 385 F.3d at 573; see also Int’l
Energy Ventures Mgmt., L.L.C., 818 F.3d at 208 (holding that the court must apply
the federal, rather than the state, pleading standard to determine whether plaintiffs
have stated a claim under state law). When conducting this analysis, the Court “must
accept all well-pleaded facts as true and view them in the light most favorable to the
non-moving party.” Palmquist, 103 F.4th at 304.
Intuitively, where prescription bars a plaintiff’s claims against a non-diverse
defendant, that defendant has been improperly joined. See Campbell v. Stone Ins.,
Inc., 509 F.3d 665, 673 (5th Cir. 2007). “Although post-removal filings may not be
considered ‘to the extent that they present new causes of action or theories not raised
in the controlling petition filed in state court,’ they can be considered to the extent
they ‘clarify or amplify the claims actually alleged’ in the removed pleading.” Id. at
303 (holding that the district court may examine a post-removal amended complaint
when conducting its improper joinder analysis).
Typically, if the allegations are sufficient to survive a Rule 12(b)(6) inquiry,
there is no improper joinder. Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 765 (5th
Cir. 2016). However, “when a complaint states a claim that satisfies 12(b)(6), but has
‘misstated or omitted discrete facts that would determine the propriety of joinder, the
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district court may, in its discretion, pierce the pleadings and conduct a summary
inquiry.” Id. (citation modified). That inquiry is limited to evidence of “discrete and
undisputed facts that would preclude plaintiff’s recovery against the in-state
defendant.” Smallwood, 385 F.3d at 573–74; Ticer v. Imperium Ins. Co., 20 F.4th
1040, 1046 (5th Cir. 2021) (holding a summary inquiry “is appropriate only to identify
the presence of discrete and undisputed facts that would preclude plaintiff’s recovery
against the in-state defendant.”) (emphasis added). The court will not pierce the
pleadings to cure a plaintiff’s pleading deficiencies. See Lundy v. ACE Am. Ins. Co.,
674 F. Supp. 3d 326, 336 (M.D. La. 2023), as amended (Aug. 11, 2023) (declining to
pierce the pleadings to allow the plaintiff to “attempt to remedy the vague
allegations” in the complaint); but see St. Charles Surgical Hosp. LLC v. HUB Int’l,
Ltd., 535 F. Supp. 3d 588, 596 (E.D. La. 2021) (Morgan, J.) (considering the plaintiffs’
proffered evidence to support a finding that there was a possibility of recovery against
the non-diverse defendant).
III. ANALYSIS

a. Henderson’s Liability in Tort Pursuant to Louisiana Law
Common to both of defendants’ theories is that plaintiffs have no possibility of
remedy against Henderson in tort pursuant to Louisiana law. Plaintiffs contend that
defendants have not met their burden of showing that they have “no possibility” of
recovery.
29
Palmquist, 103 F.4th at 304. According to plaintiffs, they have alleged
enough facts to demonstrate Henderson was negligent pursuant to Louisiana’s

29
R. Doc. No. 10-1, at 7.
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general tort statute.
30
See La. Civ. Code art. 2315(A) (“Every act whatever of man
that causes damage to another obliges him by whose fault it happened to repair it.”).
In contrast, defendants argue that Louisiana law allows for tort recovery against
employees in their individual capacities only in certain limited circumstances, as set
out by the Louisiana Supreme Court in Canter v. Koehring. See generally 283 So.2d
716, 721 (La. 1973), superseded on other grounds by statute, La. Rev. Stat. § 23.1032
(1998)). Pursuant to Canter, an employee is personally liable in tort only if “(1) the
employer owes a duty of care to a third person; (2) the employer delegated that duty
to a defendant-employee; (3) and the defendant-employee breached the duty through
his own fault and lack of ordinary care.” Moore v. Manns, 732 F.3d 454, 456–57 (5th
Cir. 2013) (citing Canter, 283 So.2d at 721). With respect to the third factor, “a
defendant-employee’s ‘general administrative responsibility’ is insufficient to impose
personal liability.” Id. at 457 (quoting Canter, 283 So.2d at 721).
Plaintiffs are correct that Canter does not entirely displace general tort
liability. “Of course, the officer, agent, or employee may also be liable for injury
resulting from his fault independent of any obligation imposed upon him by virtue of
his employment duties, even though the fault occurs during the course of his
employment.” Canter, 283 So. 2d at 722 n.7; see also Street v. Wal-Mart, Inc., No. 22-
05438, 2023 WL 3881071, at *4 (W.D. La. May 24, 2023), report and recommendation
adopted, No. 22-05438, 2023 WL 3874316 (W.D. La. June 7, 2023)) (finding general
tort liability, pursuant to article 2315, was possible where employee negligently hit

30
Id.
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patron with a shopping cart) (“The court plausibly may infer that [the defendant
employee] personally breached a duty that every person owes to every other person,
that is, not to strike, hit, ram, or knock him or her over.”). However, it is clear that
Canter applies “[w]here the sole basis for the duty breached by the employee or
manager is that imposed by virtue of the employment or agency relationship.” Magee
v. Dicks Sporting Goods, Inc., No. 20-00418, 2020 WL 5539795, at *3 (W.D. La. Aug.
31, 2020), report and recommendation adopted, No. 20-00418, 2020 WL 5535018
(W.D. La. Sept. 15, 2020); see also Canter, 283 So. 2d at 722 n.7 (“The [Canter]
criteria . . . apply only where the [s]ole basis of the duty breached is that it is imposed
by virtue of the employment or agency relationship.”).
Reading plaintiffs’ amended complaint as a whole, it is clear that the duty they
allege Henderson breached arose solely out of his employment relationship with
OxyChem. The only allegations specifically pertaining to Henderson are confined to
one paragraph of plaintiffs’ amended complaint:
On or about the date of the incident, Plaintiffs were cutting pipe
at the Geismar Plant. The specific pipe the Plaintiffs were cutting had
an air line which was cut off prior to cutting. An operator at the Geismar
Plant, Defendant Eric Henderson, negligently hooked up the other end
of the air line to one of the tanks to blow out the chlorine, but since the
line had already been cut, it propelled the chlorine towards Plaintiffs,
hitting them with a chlorine cloud. Mr. Henderson did so when he knew
or should have known that Plaintiffs would be harmed as a result of his
actions.
31

Plaintiffs’ other allegations are directed at “defendants” collectively and sound in the
general duty owed by facility owners and operators to exercise “reasonable care for

31
R. Doc. No. 5, at ¶ 9.
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the safety of persons on his premises and the duty of not exposing such persons to
unreasonable risks of injury or harm.”
32
Earle v. Brookshire Grocery Co., No. 22-
04522, 2023 WL 3937150, at *4 (W.D. La. May 25, 2023), report and recommendation
adopted, No. 22-04522, 2023 WL 3933698 (W.D. La. June 9, 2023) (quoting Mundy v.
Department of Health and Human Resources, 620 So.2d 811, 813–14 (La. 1993)).
Although plaintiffs contend that Henderson breached the general duty
articulated in article 2315 not to “cause damage to another,”
33
it is clear to the Court
that any duty Henderson had to ensure that plaintiffs were not harmed when he

32
Id. at ¶ 15 (“Defendants were negligent, negligent per se, and grossly negligent for
the following reasons:
a. Failing to maintain its premises in a reasonable and safe condition;
b. Failing to provide a safe workplace, including but not limited to failing to
ensure that sufficient personnel were on site to perform the work safely;
c. Failing to provide adequate equipment, including but not limited to personal
protective equipment;
d. Negligently connecting the chlorine line to air;
e. Negligently supervising the work;
f. Negligently monitoring the work;
g. Failing to properly maintain equipment;
h. Failing to provide adequate training;
i. Failing to provide adequate safety measures;
j. Failing to give adequate warnings to Plaintiffs of an unsafe condition(s);
k. Failing to adequately mark a dangerous condition(s);
l. Failing to take appropriate and reasonable action to protect Plaintiffs;
m. Creating a dangerous condition;
n. Failing to timely and appropriately remedy a dangerous condition;
o. Failing to adopt appropriate safety policies and procedures necessary to
prevent incidents such as the one complained of;
p. Failing to enforce those safety policies and procedures necessary to prevent
incidents such as the one complained of;
q. Vicariously liable for the acts and/or omissions of their employees;
r. Failing to hire, manage, train, and supervise competent employees; and
s. other acts deemed negligent and grossly negligent.”).
33
See R. Doc. No. 10-1, at 8; La. Civ. Code art. 2315(A) (quotation modified).
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hooked up to the air line would be imposed by virtue of his employment. Cf. Way v.
Valero Energy Corp., No. 24-416, 2025 WL 2153302, at *1 (M.D. La. Feb. 27, 2025)
(analyzing the plaintiff’s claim using the Canter factors where the non-diverse
defendant had released “hot slurry into the designated coke pit area, . . . covering [the
plaintiff], who was working in that area at the time”); Nero v. Louisiana Pigment Co.
LP, No. 23-1180, 2024 WL 4649769, at *1 (W.D. La. Sept. 12, 2024), report and
recommendation adopted, No. 23-1180, 2024 WL 4649764 (W.D. La. Oct. 1, 2024)
(applying the Canter factors against a defendant-employee who told contractors
exposed to carbon monoxide that “they did not need fresh air equipment or carbon
monoxide equipment,” because “there were no gasses, including carbon monoxide,
actively flowing through the pipe” they were working on); see also Justice v. Lee, No.
21-1841, 2021 WL 5907714, at *4 (E.D. La. Dec. 14, 2021) (Africk, J.) (applying the
Canter factors where the non-diverse defendant employee “cursed and verbally
assaulted” plaintiff-patron, finding he had breached a number of delegated duties)
(“The allegations include ‘failing to serve a patron,’ ‘failing to act in accordance with
the policies and procedures of CVS,’ ‘failing to obtain the correct information
regarding mask mandates and the exclusions thereof,’ and ‘refusing to serve someone
in need of medical attention,’ among others.”). Accordingly, the Court will analyze
whether plaintiffs have any possibility of recovery against Henderson under Canter.
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b. Henderson’s Liability Pursuant to Canter
Defendants primarily argue that plaintiffs have not alleged facts establishing
that OxyChem delegated any duty to Henderson, the second Canter factor.
34

Specifically, they argue that “Plaintiffs do not allege any facts about Henderson’s
actual duties, much less any factual allegations suggesting that Henderson was
independently and specifically tasked with air line safety or Plaintiffs’ safety in
particular.”
35
This, according to defendants, is enough to show plaintiffs have no
possibility of recovery against Henderson.
36
The Court agrees.
The lone paragraph specific to Henderson states, in conclusory fashion, that he
was negligent when he connected the air line to blow out the chlorine and, as a result,
caused plaintiffs to be hit with a chlorine cloud.
37
Plaintiffs have alleged no facts
demonstrating that OxyChem specifically delegated any duty to Henderson to check
that the air line had not been cut prior to connecting to it or to otherwise ensure
plaintiffs’ safety while they were cutting pipe at the Geismar plant. Furthermore,

34
R. Doc. No. 12, at 6–12. The Court notes that defendants state, without further
discussion, that plaintiffs cannot satisfy the first Canter factor. See id. at 9–10 (“Even
assuming that the first Canter factor is met—that OxyChem owed and breached a
duty to Plaintiffs, and the breach caused Plaintiffs’ damages (all of which OxyChem
specifically disputes)—Plaintiffs have not established any of the remaining factors.”)
(emphasis added). As it pertains to the third Canter factor, defendants argue that
“[t]he third factor (a breach of the employee’s duty through personal fault) cannot be
met if the second factor (a delegation of a duty by employer to the employee) is not
met.” Id. at 10. For this reason, the Court will focus on the second factor to determine
whether defendants have met their burden of demonstrating no possibility of
recovery.
35
Id. at 10.
36
Id.
37
See R. Doc. No. 5, at ¶ 9.
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plaintiffs allege no facts to support their conclusory allegation that Henderson
“should have known that plaintiffs would be harmed as a result of his actions.”
38

Justice, 2021 WL 5907714, at *5 (Africk, J.) (“[W]hen conducting an improper joinder
analysis, the Court does not accept as true mere conclusory allegations.”). Without
these allegations, plaintiffs cannot hold Henderson individually liable. Compare Way,
2025 WL 2153302, at *4 (“[T]here are no allegations that [the defendant-employee]
was responsible for confirming that no one was within a certain distance of the coke
pit at the time of a drum discharge.”), with Nero, 2024 WL 4649769, at *5 (“The
Petition alleges that ‘[the defendant-employee] . . . was one of the employees of [the
defendant-employer] charged with ensuring that the Premises were properly
prepared for [the contractor’s] work. [The defendant employee was] specifically
responsible for ensuring that all pipes with chemicals were marked, warning
contractors when ‘fresh air’ protective equipment was needed to complete work, and
providing appropriate protective equipment, as needed.’ These allegations are
sufficient to state a claim as to the second Canter factor.”).
39
Consequently, the Court

38
Id.; see also Battenfield v. Wal-Mart Stores, Inc., No. 11-1537, 2013 WL 880307, at
*4 (W.D. La. Mar. 8, 2013) (“There is no indication whatsoever that [the defendant
employee] knew or should have known of the existence of the spill such that she could
have been personally obligated to warn the plaintiff or to personally oversee any
clean-up efforts.”).
39
See also Jack v. Evonik Corp., 79 F.4th 547, 557 (5th Cir. 2023) (“[The plaintiffs]
must show that the [defendant employer] specifically delegated to the [individual]
defendants the duty to protect the surrounding residents from unsafe levels of [the
chemical] or the duty to regulate the emissions of [the chemical] to a safe level.”)
(emphasis added); Rodriguez v. Waffle House, Inc., No. 21-699, 2021 WL 6108032, at
*4 (E.D. La. June 9, 2021) (Africk, J.) (“Rodriguez failed to allege that Waffle House
actually delegated some responsibility to Parker or that Parker owed any personal
duty to Rodriguez to care for her safety.”); Battenfield, 2013 WL 880307, at *4 (“While
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finds that defendants have met their burden of demonstrating that plaintiffs have no
possibility of recovery against Henderson.
40

Based on the foregoing, the Court finds Henderson was improperly joined and
must dismiss Henderson without prejudice. Int’l Energy Ventures Mgmt., L.L.C., 818
F.3d at 209 (“When . . . a court determines that a nondiverse party has been
improperly joined to defeat diversity, that party must be dismissed without
prejudice.”). Having found that Henderson was improperly joined, and dismissing
him from this action for that reason, the Court need not consider whether plaintiffs’
claims against Henderson are prescribed for the purposes of determining subject
matter jurisdiction.
41

[the defendant employee] has been delegated some degree of care by [her employer],
there is no indication that they have delegated to her the task of micro-managing the
store.”).
40
Recall that because the Court finds that plaintiffs’ amended complaint cannot
survive a Rule 12(b)(6) challenge, it will not consider the deposition attached to
plaintiffs’ motion to remand in its improper joinder analysis. See Lundy, 674 F. Supp.
3d at 336; see also R. Doc. No. 10-3 (deposition of OxyChem corporate representative).
The Court will pierce the pleadings only in the limited case “in which a plaintiff has
stated a claim,” but has excluded “discrete and undisputed facts that would preclude
[their] recovery against the in-state defendant.” Smallwood, 385 F.3d at 573–74
(emphasis added). Even if the Court had determined that plaintiffs could state a claim
against Henderson, the deposition testimony is also not the type of “discrete and
undisputed” fact that the Court would be permitted to consider when piercing the
pleadings. See Lundy, 674 F. Supp. 3d at 337 (“[T]he information outside of the
pleadings that Plaintiff desires the Court to consider . . . contains highly subjective
statements. It does not supply any discrete facts indicating that [the defendant
employee] was specifically delegated any duties . . . .”).
41
Nonetheless, because plaintiffs cannot state a claim against Henderson, plaintiffs
would be unable to show that Henderson and OxyChem are joint tortfeasors, such
that plaintiffs’ suit against OxyChem in Texas state court would toll the prescriptive
period with respect to Henderson. Cf. McKenzie, 122 So. 3d at 48 (“[T]he plaintiff
alleged specific acts (or failures to act) by [each defendant], that, when taken as true,
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IV. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that plaintiffs’ motion to remand is DENIED.
IT IS ORDERED that Henderson is DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, August 18, 2025.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

are sufficient to establish some fault on the part of both [defendants] for the plaintiff’s
injuries, thereby making [the defendants] joint tortfeasors.”).
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