Breaux et al v. Occidental Chemical Corporation et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JARED BREAUX ET AL. CIVIL ACTION
VERSUS NO. 25-1055
OCCIDENTAL CHEMICAL CORP. SECTION “N”

ORDER AND REASONS

Before the Court are three motions filed by Defendant Occidental Chemical
Corporation: (1) 12(b)(6) Motion to Dismiss Intentional Tort Claims,
1
(2) Motion for
Summary Judgment Regarding Statutory Employer Defense,
2
and (3) Motion to
Exclude or Limit Testimony of Benjamin Gibson.
3
Plaintiffs opposed all three
motions
4
, and Occidental submitted replies.
5
Having considered the parties’
memoranda, the record, and applicable law, the Court grants the motion to dismiss
and the motion for summary judgment and denies as moot the motion to exclude or
limit testimony.
I. Background
Plaintiffs Jared Breaux, Jayce Breaux, and Josh Dake filed this action
alleging they incurred an occupational injury while employed by River Parish
Contractors as pipefitters working at the Occidental Chemical Corporation Geismar
Plant.
6
On the day of the injury, they were assigned to cut and replace specific

1
Rec. Doc. 64.
2
Rec. Doc. 66.
3
Rec. Doc. 68.
4
Rec. Docs. 73, 74, and 75.
5
Rec. Docs. 78, 79, and 80.
6
Rec. Doc. 62 ¶ 7.
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sections of process air piping at the plant.
7
Before they could begin this work,
Occidental operators and supervisors marked the sections of the pipe to be cut and
an Occidental operator issued a line break permit directing them to cut open and
remove the marked sections.
8
The operator who issued the permit was first
responsible for locking and tagging out the entire system to prevent the system
from being “energized” while the work was in progress.
9
The pipe was part of a
system directly connected to a liquefier containing residual chlorine.
10
Properly
locking and tagging out the system was necessary to prevent Plaintiffs’ exposure to
chlorine and other hazardous chemicals.
11
Plaintiffs allege that after they began
cutting the section of pipe pursuant to the permit, the Occidental operator
attempted to clear the residual chlorine from the liquefier by connecting it to
pressured air from a utility hose, which energized the system the operator had just
locked out.
12
Chlorine was propelled down the process piping and escaped through
the line break, exposing Plaintiffs to chlorine and injuring them.
13

Plaintiffs allege that the operator knew this exposure was substantially
certain to occur from energizing the system, as that was the reason he locked the
system out in the first place.
14
They further allege that Occidental had inadequate
policies and procedures to properly address the necessity of locking and tagging out

7
Id. ¶ 8.
8
Id.
9
Id. ¶ 9.
10
Id. ¶ 11.
11
Id. ¶ 9.
12
Id. ¶ 11.
13
Id.
14
Id. ¶ 12.
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the air line, failed to implement a proper design for the air system, and failed to
provide proper employee training.
15

In their original and first amended complaints, Plaintiffs alleged causes of
action based in negligence against Occidental and one of its employees.
16
Beginning
in February 2026, Plaintiffs twice sought leave to add an intentional-tort claim in
an effort to avoid the tort immunity afforded Occidental under the Louisiana
Workers’ Compensation Act.
17
The Magistrate Judge found the first proposed
amendment insufficient but permitted Plaintiffs “a final opportunity” to seek leave
to amend to “plead their best case.”
18
When Plaintiffs renewed their request,
Occidental opposed, arguing the allegations do not meet the demanding standard
for an intentional tort.
19
On April 15, 2026, the Magistrate Judge granted Plaintiffs
leave to file their second amended complaint, reasoning that the better procedural
course was to test the sufficiency of the intentional-tort allegations in the context of
a Rule 12(b)(6) motion rather than to deny leave to amend.
20

Occidental now seeks dismissal of the Plaintiffs’ intentional-tort claims under
Federal Rule of Civil Procedure 12(b)(6), asserting that the claims do not rise to the
level of an intentional act under La. Rev. Stat. Ann. § 23:1032(B).
21
Occidental also
moves for summary judgment on its statutory-employer defense.
22
Plaintiffs oppose

15
Id. ¶¶ 14-16.
16
Rec. Doc.5 ¶ 15.
17
Rec. Doc. 42; Rec. Doc. 51.
18
Rec. Doc. 47 at 10.
19
Rec. Doc. 56.
20
Rec. Doc. 61.
21
Rec. Doc. 64-2 at 2.
22
Rec. Doc. 66.
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Occidental’s motions and, in the alternative, move under Rule 56(d) to continue the
motion pending further discovery.
23

II. Legal Standard
A. Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may
dismiss a complaint for failure to state a claim upon which relief may be granted if
the plaintiff has not set forth factual allegations in support of his claim that would
entitle him to relief.
24
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
25
“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
26
The Court, however, does not accept as true legal
conclusions or mere conclusory statements, and “conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a motion
to dismiss.”
27
Indeed, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements”
28
or “naked assertion[s]”
29
devoid of
“further factual enhancement”
30
are not sufficient.

23
Rec. Docs. 73, 74, 75.
24
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
25
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
26
Id.
27
S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001)
(quoting Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
28
Iqbal, 556 U.S. at 663, 678.
29
Twombly, 550 U.S. at 557.
30
Id.
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However, “legal conclusions can provide the framework of a complaint, [if] they
[are] supported by factual allegations.”
31
“Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
32
“ Although detailed
factual allegations are not required,” “[d]ismissal is appropriate when the complaint
‘on its face show[s] a bar to relief.’”
33

B. Summary Judgment
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”
34
“An issue is material if its resolution could affect the outcome of
the action.”
35
When assessing whether a material factual dispute exists, the Court
considers “all of the evidence in the record but refrain[s] from making credibility
determinations or weighing the evidence.”
36
All reasonable inferences are drawn in
favor of the nonmoving party.
37
There is no genuine issue of material fact if, even
viewing the evidence in the light most favorable to the nonmoving party, no
reasonable trier of fact could find for the nonmoving party, thus entitling the
moving party to judgment as a matter of law.
38

31
Iqbal, 556 U.S. at 679.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to
raise a right to relief above the speculative level.”).
32
Iqbal, 556 U.S. at 679.
33
Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) ( citation modified).
34
Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
35
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
36
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
37
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
38
Smith v. AmedisysInc., 298 F.3d 434, 440 (5th Cir. 2002).
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If the dispositive issue is one for which the moving party will bear the burden
of persuasion at trial, the moving party “must come forward with evidence which
would entitle it to a directed verdict if the evidence went uncontroverted at trial.”
39

If the moving party fails to carry this burden, the motion must be denied. If the
moving party successfully carries this burden, the burden of production then shifts
to the nonmoving party to direct the Court’s attention to something in the pleadings
or other evidence in the record setting forth specific facts sufficient to establish that
a genuine issue of material fact does indeed exist.
40

On the other hand, if the dispositive issue is one on which the nonmoving
party will bear the burden of persuasion at trial, the moving party may satisfy its
burden of production by either (1) submitting affirmative evidence that negates an
essential element of the nonmovant’s claim, or (2) demonstrating there is no
evidence in the record to establish an essential element of the nonmovant’s claim.
41

When proceeding under the first option, if the nonmoving party cannot muster
sufficient evidence to dispute the movant’s contention that there are no disputed
facts, a trial would be useless, and the moving party is entitled to summary
judgment as a matter of law.
42
When, however, the movant is proceeding under the
second option and is seeking summary judgment on the ground that the nonmovant
has no evidence to establish an essential element of the claim, the nonmoving party

39
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,1264-65 (5th Cir. 1991) (citation modified).
40
Celotex, 477 U.S. at 322-24.
41
St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987); Fano v. O’Neill, 806 F.2d 1262, 1266 (5th
Cir. 1987); see also 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 2727.1 (2016) (discussing Celotex summary-judgment burden of proof standard).
42
First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986).
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may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the
moving party.”
43
Under either scenario, the burden then shifts back to the movant
to demonstrate the inadequacy of the evidence relied upon by the nonmovant.
44
If
the movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the
moving party’s papers, (2) produce additional evidence showing the existence of a
genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit
explaining why further discovery is necessary as provided in Rule 56(f).”
45

“Summary judgment should be granted if the nonmoving party fails to respond in
one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the
court that there is no genuine issue of material fact for trial.”
46

Still, “[t]he party opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner in which that evidence
supports the claim.”
47
“ Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party’s opposition to summary
judgment.”
48

43
Celotex, 477 U.S. at 332-33.
44
Id.
45
Id. at 332 n.3.
46
Id.; see also First Nat’l Bank of Ariz., 391 U.S. at 289.
47
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
48
Id . (citation modified).
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III. Analysis
A. Plaintiffs do not state a claim for an intentional tort.
The Louisiana Workers’ Compensation Act provides compensation to an
employee who “receives personal injury by accident arising out of and in the course
of his employment.”
49
The legislature designed a “quid-pro-quo system” that provides
general immunity from tort liability to employers while affording certain limited
remedies to injured employees.
50
The Act’s exclusivity for injured workers is not
absolute, however; the Act preserves a cause of action against employers whose
intentional act caused the injury.
51
The central question raised by Occidental’s
motion to dismiss is therefore whether Plaintiffs have pleaded facts from which the
Court may draw the reasonable inference that Occidental engaged in an intentional
act from which Plaintiffs’ injury resulted.
52

The Louisiana Supreme Court has made clear that “the intentional tort
exception to the exclusivity of the workers compensation act is ... to be applied in very
strict and limited circumstances.”
53
The phrase “intentional act” carries the same
meaning as “intentional tort” in the context of civil liability.
54
The divide between
intentional and unintentional acts in the Act originates in the common law

49
La. Rev. Stat. Ann. § 23:1031.
50
Champagne v. Am. Alternative Ins. Corp., 112 So. 3d 179, 184 (La. 2013); see La. Rev. Stat. Ann.
§ 23:1032(A).
51
La. Rev. Stat. Ann. § 23:1032(B); see Harper v. Boise Paper Holdings, L.L.C., 575 F. App’x 261, 263
(5th Cir. 2014) (stating “Section 1032(B) provides an exception to this exclusivity when a worker is
injured as a result of an employer’s intentional act.”) (citation modified).
52
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
53
Cole v. State Dep’t of Pub. Safety & Corr., 825 So. 2d 1134, 1141 (La. 2002).
54
Bazley v. Tortorich, 397 So. 2d 475, 479 (La. 1981).
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recognition that “harmful conduct is considered more reprehensible if intentional.”
55

Accordingly, the Louisiana legislature determined that a defendant who intended to
do harm is potentially subject to greater liability.
Under La. Rev. Stat. Ann. § 23:1032, an act is “intentional” where the actor
either “(1) consciously desires the physical result of his act, whatever the likelihood
of that result happening from his conduct; or (2) knows that the result is substantially
certain to follow from his conduct, whatever his desire may be as to that result.”
56

For purposes of this motion the Court accepts the well-pleaded factual
allegations of the Second Amended Complaint as true and draws all reasonable
inferences in Plaintiffs’ favor.
57
Plaintiffs do not allege that Occidental consciously
desired to injure them. The Court’s analysis therefore addresses the second
definition: whether the amended complaint alleges facts permitting the reasonable
inference that Occidental knew Plaintiffs’ exposure to chlorine was substantially
certain to follow from its operator’s conduct.
The “substantially certain” analysis is demanding. It is not satisfied by a
showing that injury was likely, or even highly probable; the consequences of the act
must be “nearly inevitable” or “virtually sure” to follow.
58
Indeed, courts have defined
“substantially certain to follow” to mean that the result was “inevitable” or “incapable
of failing.”
59
Louisiana courts often consider whether the same conduct previously

55
Id. at 480.
56
Reeves v. Structural Preservation Sys., 731 So. 2d 208, 211 (La. 1999); see also Harper, 575 F.
App’x at 263 (quotation omitted).
57
Lovick v. Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004) (citing Herrmann Holdings Ltd. v.
Lucent Tech. Inc., 302 F.3d 552, 558 (5th Cir. 2002)).
58
Reeves, 731 So. 2d at 213 n. 3.
59
Jasmin v. HNV Cent. Riverfront Corp., 642 So. 2d 311, 312 (La. Ct. App. 1994) ( writ denied).
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caused injury.
60
Mere knowledge that a dangerous condition exists, or that an
accident could or even probably would occur, falls short of meeting the intentional act
exception under Louisiana law.
61

Plaintiffs allege that an operator employed by Occidental did each of the
following: marked the sections of process air piping to be cut;
62
issued the line-break
permit directing Plaintiffs to cut the line;
63
was personally responsible for locking and
tagging out the system before work began;
64
recognized that locking out the system
was necessary to prevent chlorine exposure;
65
locked out the system himself for that
very purpose;
66
and then, while Plaintiffs were breaking the line he had authorized
them to open, connected a utility hose to a chlorine liquefier within the same piping
system, energizing it and propelling chlorine through the open line.
67
Here, Plaintiffs
say, the same person who knew the line was open and knew why it had to stay de-
energized is the person who energized it.
68
From that, Plaintiffs urge, the Court may
reasonably infer that the operator knew Plaintiffs’ exposure was substantially certain
to follow.
69

Construed in the light most favorable to Plaintiffs, the allegations identify a
specific actor, a specific sequence, and a specific basis for inferring knowledge. The

60
Harper, 575 F. App’x at 264.
61
Jasmin, 642 So. 2d at 312.
62
Rec. Doc. 62 ¶ 8.
63
Id. ¶ 9.
64
Id.
65
Id. ¶ 12.
66
Id.
67
Id. ¶ 11.
68
Id. ¶ 12.
69
Id. ¶ 21.
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question is whether, taken as true, they permit the reasonable inference that the law
requires—not knowledge that injury was possible, likely, or even highly probable, but
knowledge that it was “nearly inevitable” and “virtually certain” to occur.
70
They do
not.
First, the lock-out allegation that Plaintiffs treat as the cornerstone of intent
in fact undercuts it. Plaintiffs emphasize that the operator locked out the system:
“The Oxy Operator knew that energizing the system was substantially certain to
expose the Plaintiffs to chlorine, which is why he locked the system out in the first
place.”
71
But a person who takes a deliberate precaution against a harm is, by the
same token, a person attempting to prevent that harm—not one who proceeds
knowing the harm is virtually certain to occur. The amended complaint describes how
the operator secured the system to avoid exposure and then, by connecting the
liquefier, failed to appreciate that he was undoing the very protection he had put in
place.
72
That is an allegation of a serious mistake in execution. It is not an allegation
that the operator knew, when he energized the system, that chlorine reaching
Plaintiffs was incapable of failing to occur. The complaint supplies no fact bridging
the operator’s knowledge that the line was open to knowing “in the moment” that
energizing the liquefier was certain to send chlorine through it. The claim that he
“knew” exposure was “substantially certain” is not a reasonable inference where the
surrounding factual allegations point the other way.

70
Reeves, 731 So. 2d at 213.
71
Rec. Doc. 62 ¶ 12.
72
Id.
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Second, the conduct alleged amounts at most to recklessness, and recklessness
is not equivalent to intent under the Act. The Louisiana Supreme Court has held that
“mere knowledge and appreciation of a risk does not constitute intent, nor does
reckless or wanton conduct by an employer constitute intentional wrongdoing.”
73
In
line with this precedent, the Louisiana courts of appeals have repeatedly held that
“employers are not liable under the intentional act exception for violations of safety
standards or for failing to provide safety equipment.”
74
The exception is not reached
“[e]ven if the alleged conduct goes beyond aggravated negligence, and includes such
elements as knowingly permitting a hazardous work condition to exist, knowingly
ordering claimant to perform an extremely dangerous job, or willfully failing to
furnish a safe place to work.”
75

The First Circuit applied this principle in Saizon v. Dow Chemical Company,
where two Dow employees failed to clear a line of hydrocarbons before authorizing
hot work.
76
The court held that their conduct, “while perhaps negligent or even
reckless, do[es] not rise to the level of an intentional tort.”
77
The allegations here
describe a similar failure: a n operator who locked out the system as a safety measure
and then undid that protection by energizing the line. However grave, that conduct
falls on the negligence-to-recklessness side of the line the Louisiana courts have
drawn, not the intentional side.

73
Reeves, 731 So. 2d at 213 (citation modified).
74
Id. at 211.
75
Id. (citation modified).
76
No. 2025 CA 1139, 2026 WL 1122621 (La. Ct. App. Apr. 24, 2026).
77
Id. at *8.
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Plaintiffs’ reliance on Higgins does not change the analysis.
78
Plaintiffs cite
Higgins for the proposition that Louisiana law imposes no “past incident”
requirement.
79
Whatever Higgins establishes on that point does not aid Plaintiffs
here. As the First Circuit explained, that case turned on evidence that the defendant's
management was aware of specific dangers at the facility, based on multiple facility
evaluations and repeated warnings.
80
The operative complaint here does not allege
that Occidental’s management was aware of the specific harms alleged here or that
any similar incident had occurred previously at the facility.
The Court is mindful that this determination is made on the pleadings, taking
Plaintiffs’ allegations as true, and that Saizon was decided at summary judgment on
a developed record. But the standards converge on the dispositive point: the
substantial-certainty requirement asks whether the alleged facts support an
inference of knowledge that injury was inevitable, and the facts pleaded here, even
read at their most favorable, support, at most, an inference of recklessness. Under
Reeves, that is not enough. The amended complaint therefore fails to state an
intentional-tort claim within the exception to the Act’s exclusivity.
B. Occidental is Plaintiffs’ statutory employer and thus immune
from tort liability.
As discussed above, under the Louisiana Workers’ Compensation Act, an
employee injured in the course and scope of his employment is generally limited to

78
Higgins v. Williams Energy Partner, L.P., 266 So. 3d 897 (La. 2019).
79
Rec. Doc. 73 at 8.
80
Saizon, 2026 WL 1122621, at *6-*8.
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workers’ compensation as his exclusive remedy against his employer.
81
The Act’s
coverage extends to both direct, or “principal,” employers and statutory employers.
82

Here, Occidental claims the status of statutory employer. As the party asserting
tort immunity under the Act, Occidental bears the burden of establishing its
statutory-employer status. The immunity provisions are strictly construed against
the party claiming them.
83
Whether a party is a statutory employer is ultimately a
question of law for the Court.
84

A statutory-employer relationship arises under La. Rev. Stat. Ann. § 23:1061
when a principal engages a contractor, by written contract, to perform work that is
part of the principal’s trade, business, or occupation.
85
Where the written contract
between the principal and the contractor “recognizes the principal as a statutory
employer,” § 1061(A)(3) creates a rebuttable presumption of a statutory-employer
relationship between the principal and contractor’s employees.
86
That presumption
“may only be overcome by showing the work performed is not an integral part of
or essential to the ability of the principal to generate that principal’s goods,
products, or services.”
87
Louisiana courts construe “integral” and “essential”

81
Prejean v. Maint. Enters., Inc., 8 So. 3d 766, 770 (La. Ct. App. 2009).
82
La. Rev. Stat. Ann. § 23:1032; id. § 23:1061; Deshotel v. Guichard Operating Co., 916 So. 2d 72, 74
(La. 2004).
83
Weber v. State, 635 So. 2d 188, 191 (La. 1994).
84
Maddox v. Superior Steel, 814 So. 2d 569, 572 (La. Ct. App. 2001); see also Ramos v. Tulane Univ.,
951 So. 2d 1267, 1269 (La. Ct. App. 2007) (“The determination of statutory employer status is a
question of law for the court to decide.”).
85
Morris v. Graphic Packaging Int’l, LLC, 829 F. App’x 43, 45 (5th Cir. 2020); see also Arnold v.
Shell Oil Co., 419 F.2d 43, 50 (5th Cir. 1969) (holding that “the test for determining whether an
activity is part of an employer's trade or business for purposes of the Louisiana Workmen's
Compensation Statute is whether the particular activity is essential to the business.”).
86
Fleming v. JE Merit Constructors, Inc., 985 So. 2d 141, 145 (La. Ct. App. 2008) (citing La. Rev.
Stat. Ann. § 23:1061).
87
Id.; La. Rev. Stat. Ann. § 23:1061.
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liberally, finding that even work that is ancillary to the statutory employer’s
operations may nevertheless be essential and integral to those operations. The
presumption is correspondingly difficult to rebut.
88
Occidental has carried its
burden, and the presumption is unrebutted.
First, a written contract recognizes the principal as a statutory employer as
§ 1061(A)(3) requires. Plaintiffs’ direct employer, River Parish Contractors,
89
was
contracted by Occidental to perform work pursuant to a purchase order at
Occidental’s Geismar plant.
90
The purchase order is a “written contract” as required
by La. Rev. Stat. Ann. § 23:1061(A)(3) because it contains a clear written expression
that Occidental was Plaintiffs’ statutory employer.
91
The purchase order states in
relevant part that “[t]his contract recognizes that Owner shall be considered the
statutory employer of Contractor’s [River Parish’s] employees and its subcontractors
who provide work or services under this contract in accordance with Louisiana R.S.
23:1031 or R.S. 23:1061,” that “Owner is granted the exclusive remedy protection of
Louisiana R.S. 23:1032,” and that “the recognition of the Statutory Employer status
is made pursuant to R.S. 23:1061.”
92
That language tracks the statute and gives rise
to the rebuttable presumption that Occidental is Plaintiffs’ statutory employer.
93

88
Ramos, 951 So. 2d at 1270.
89
Rec. Doc. 62 ¶ 7; Rec. Doc. 66-13 at 32-33 (deposition of Josh Dake); Rec. Doc. 66-14 at 24, 28
(deposition of Jayce Breaux); Rec. Doc. 66-15 at 20, 22 ( deposition of Jared Breaux).
90
Rec. Doc. 66-4 (Ex. A, Declaration of John Bin § 3).
91
See Morris, 829 F. App'x at 45.
92
Rec. Doc. 66-7 at 3.
93
See Morris, 829 F. App’x at 45; see also Nielsen v. Graphic Packaging Int’l, Inc., 469 F. App'x 305,
306 (5th Cir. 2012) (per curiam) (materially identical purchase order held to establish a statutory
employer.)
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Plaintiffs do not raise an issue of material fact as to the existence and
validity of the purchase order. Their only response is to deny every undisputed
material fact put forth by Occidental except one “in accordance with Plaintiff’s Rule
56(d) Motion to Continue,” alleging “Plaintiff has not been permitted necessary
depositions to support his opposition.”
94
Plaintiffs have not indicated any facts they
could even hope to obtain through discovery that would call into question the
contractual relationship between Occidental and River Parish Contractors.
95

That River Parish did not sign the purchase order until after the incident in
question does not alter this conclusion. River Parish’s performance of the work
contemplated by the purchase order, and its invoicing of Occidental for that work
after the incident with reference to the purchase order, are sufficient to establish
acceptance.
96

Second, the presumption stands unrebutted. The undisputed facts establish
that Plaintiffs’ work was an integral part of or essential to the principal’s ability to
generate its goods, products, or services as a matter of law. It is not genuinely
contested that the Plaintiffs performed work consisting of cutting and replacing
sections of process air piping used in the operations of the Geismar plant, which was
owned and operated by Occidental for the manufacture of certain chemicals.
97
The
undisputed facts are that on the day of the incident, Plaintiffs were working on the

94
Rec. Doc. 74-2. The only undisputed material fact that Plaintiffs admit is that they “are direct
employees of River Parish Contractors.” Rec. Doc. 66-1 ¶ 1.
95
See Rec. Doc. 74-1 ¶¶ 4-6.
96
See, e.g., Morris, 829 F. App’x at 45-46; Rolls ex rel. A.R. v. Packaging Corp. of Am. Inc., 34 F.4th
431, 440 (5th Cir. 2022).
97
Rec. Doc. 62 ¶¶ 7-10; Rec. Doc. 66-5 at 1; Rec. Doc. 66-8 ¶¶ 4-8.
Case 2:25-cv-01055-ASJ-DPC Document 86 Filed 08/12/26 Page 16 of 23

air piping system in connection with a turnaround.
98
“A ‘turnaround’ is a term used
to describe the process whereby an operating unit of a plant ... is shut down and the
machinery, piping systems, vessels, and the like are cleaned, refurbished, overhauled,
replaced, and/or updated.”
99
Whether work of that character is “integral” or
“essential” within the meaning of § 1061(A)(3) is a legal question the Court resolves
from the undisputed nature of the work. Courts have repeatedly held that
maintenance, repair, and similar work performed to keep a chemical plant or
refinery’s production processes operating is essential to the principal’s ability to
generate its goods and services.
100
Plaintiffs have offered no argument, and identify
no fact that discovery could develop, suggesting that replacing process air piping at
an operating chlorine and caustic plant falls outside that settled line. They denied
Occidental’s statement of material facts solely by reference to their Rule 56(d)
motion,
101
and their allegations confirm they were engaged in turnaround work when

98
Rec. Doc. 66-8 ¶¶ 4-9; Rec. Doc. 66-15 at 6 (deposition of Jared Breaux); Rec. Doc. 66-14 at 4-5
(deposition of Jayce Breaux). The only ground on which Plaintiffs dispute any material fact is that
they have not been permitted “necessary depositions.” See Rec. Doc. 74-2. However, as discussed in
Section C below, Plaintiffs do not identify any fact that could be obtained through discovery that
could elicit a disputed fact. Instead, Plaintiffs’ own deposition testimony and allegations support the
finding that Plaintiffs were engaged in work that was integral and essential to the principal’s
production ability.
99
Salmon v. Exxon Corp., 824 F. Supp. 81, 82 n.1 (M.D. La. 1993); see also Doc. 66-13 at 7 (deposition
of Josh Dake).
100
See, e.g., Thompson v. Ga. Pac. Corp., 993 F.2d 1166, 1169 (5th Cir. 1993); Joseph v. Shell Chem.
Co., No. 07-5489, 2009 WL 1789422, *5 (E.D. La. June 23, 2009); King v. Debusk Servs. Grp., LLC,
2017 CW 1577R, 2019 WL 4201475, *5 (La. Ct. App. Sept. 4, 2019). See also Saizon., 2026 WL
112262, at*9 (“The Louisiana Supreme Court has made it clear that, “[e]ven if the alleged conduct
goes beyond aggravated negligence, and includes such elements as knowingly permitting a
hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous
job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual
intention to injure that robs the injury of accidental character.”) (citing Reeves, 731 So. 2d at
211 (quoting Larson, 19 Workmen's Compensation Law, § 68.13 (1989))).
101
See Rec. Doc. 74-2 (answering all of the factual assertions except 1 and 25 with “Plaintiff has not
been permitted necessary depositions to support his opposition.”).
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the incident occurred.
102
The presumption therefore is not overcome, and Occidental
is Plaintiffs’ statutory employer as a matter of law.
Statutory-employer immunity bars Plaintiffs’ tort claims against Occidental
unless the intentional-act exception to the exclusive-remedy provision applies.
103
The
basis the Plaintiffs pleaded for invoking that exception was their intentional-tort
theory, which the Court dismisses for failure to state a claim.
104
Nothing in the
summary-judgment record disturbs that conclusion. Occidental’s evidence,
unrebutted, is that no similar incident had occurred at the Geismar facility before
Plaintiffs’ injuries and Occidental was unaware its operator had failed to isolate the
liquefier system before connecting the utility hose.
105
Because no exception to
immunity applies, the exclusive-remedy provision controls, and Plaintiffs’ tort claims
against Occidental are barred.
C. A continuance for further discovery is inappropriate.
Rule 56(d) permits a court to defer ruling on a motion for summary judgment
and order additional discovery where the nonmovant “shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition.” Such requests are “broadly favored and should be liberally granted,”
because the rule exists to “safeguard non-moving parties from summary judgment
motions that they cannot adequately oppose.”
106

102
See Rec. Doc. 5 ¶¶ 8-9.
103
La. Rev. Stat. Ann. § 23:1032(B).
104
Rec. Doc. 73 at 5-6; see supra Section III(A).
105
Rec. Doc. 66-8 at 3 (“No similar incidents had occurred at the facility before this incident.”).
106
Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (quoting Culwell v. City of Fort Worth, 468
F.3d 868, 871 (5th Cir. 2006)).
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This has its limits. “[T]o justify a continuance, the [Rule 56(d)] motion must
demonstrate (1) why the movant needs additional discovery, and (2) how the
additional discovery will likely create a genuine issue of material fact.”
107
The
nonmovant “may not simply rely on vague assertions that additional discovery will
produce needed, but unspecified, facts.”
108
Instead, the party seeking a continuance
must “set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist,” and must “indicate how
the emergent facts, if adduced, will influence the outcome of the pending summary
judgment motion.”
109
A continuance for additional discovery is not warranted if the
party “‘ failed to explain what discovery [it] did have, why it was inadequate, and what
[it] expected to learn from further discovery.’”
110
And critically, where “it appears that
further discovery will not provide evidence creating a genuine issue of material fact,
the district court may grant summary judgment.”
111
The dispositive question, then,
is whether the specific discovery the Plaintiffs identify could yield facts that would
bear on the outcome of this motion.
112
Here, it could not.
Plaintiffs ask the Court to defer ruling so that they may depose Occidental’s
corporate representative, Mr. Devall, and operator Eric Henderson.
113
The

107
Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534-35 (5th Cir. 1999).
108
Securities & Exchange Comm’n v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980).
109
Raby, 600 F.3d at 561 (applying former Rule 56(f), renumbered as Rule 56(d)) (internal quotation
marks omitted); see also Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1443 (5th Cir. 1993)
(plaintiff is “required to state with some precision the materials he hope[s] to obtain with further
discovery, and exactly how he expect[s] those materials would assist him in opposing summary
judgment.”).
110
Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (quoting Reese v. Anderson, 926 F.2d
494, 499 n.5 (5th Cir. 1991)).
111
Raby, 600 F.3d at 561.
112
Krim, 989 F.2d at 1443.
113
Rec. Doc. 74 at 1.
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supporting declaration identifies three subjects: (1) facts “related to Oxy’s
contractual relationship, if any, to River Parish Contractors”;
114
(2) “the scope of
work River Parish Contractors was performing”;
115
and (3) cross-examination of Mr.
Devall bearing on “his credibility” and “the context” of his declaration.
116
They fail
to present any basis for finding this discovery would present a genuine issue of
material fact.
The first two subjects address facts that Occidental presents in its motion for
summary judgment. The contractual relationship between Occidental and River
Parish is established by the purchase order,
117
authenticated by Mr. Devall and
admissible as a business record kept in the ordinary course.
118
In fact, under
Louisiana law, even unsigned purchase orders are sufficient to establish a
contractual relationship when there is a clear written expression that a party is a
statutory employer.
119
Moreover, the scope of the work is stated on the face of the
purchase order and is consistent with Plaintiffs’ own allegations.
120
Plaintiffs
identify no fact that a deposition might reveal that would bear on either question—
much less a genuine issue of material fact about the contents or validity of the

114
Rec. Doc 74-1 at 2.
115
Id.
116
Id.
117
Rec. Docs. 66-5 and 66-7.
118
Rec. Doc. 66-8 at 1; Fed. R. Evid. 803(6).
119
Morris, 829 F. App’x at 46.
120
Compare Rec. Doc. 66- 7 at 1 (“Paint and NDE by Oxy...Fabricate and install approximately 450#
of 3" pipe and fittings...Pull and replace each 3” 150# Valves...Demo all piping that has been
replaced with new”) with Rec. Doc. 62 ¶¶ 7-10 (“Plaintiffs were employed by River Parish
Contractors (nonparty) as pipefitters and were working at the Occidental Chemical Corporation
Geismar Plant”; “Plaintiffs were assigned to cut and replace specific sections or process air piping at
the Geismar Plant”; “Plaintiffs were then issued a line break ‘permit’ by an Oxy Operator which
directed them to cut open and remove those specific sections of pipe”; “Plaintiffs proceeded to cut
open their section of the process air piping as directed.”).
Case 2:25-cv-01055-ASJ-DPC Document 86 Filed 08/12/26 Page 20 of 23

purchase order.
121
Whether that instrument establishes statutory-employer status
is a question of law for the Court.
122
The scope of the work, moreover, is not
genuinely contested: the purchase order and Plaintiffs’ own allegations establish
that the work consisted of replacing process air piping at Occidental’s operating
chemical plant. Whether work of that nature is integral or essential under
§ 1061(A)(3) is, again, a question of law for the Court to resolve from those
undisputed facts.
Plaintiffs’ credibility argument fares no better. A nonmovant cannot defeat
summary judgment merely by expressing a desire to cross-examine the movant’s
declarant, absent some identification of the specific testimony to be impeached or
the contrary fact to be developed.
123
That is especially so here, where the dispositive
element—the existence and content of the written contract—rests on the document
itself rather than on Mr. Devall’s credibility.
124

121
Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 112 So. 3d 187, 192 (La. 2013) (“[W]hen a
clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded
under the pretext of pursuing its spirit.”); Peterson v. Schimek, 729 So. 2d 1024, 1029 (La. 1999)
(“[W]hen a contract can be construed from the four corners of the instrument without looking to
extrinsic evidence, the question of contractual interpretation is answered as a matter of law
and summary judgment is appropriate.”); Angus Chem. Co. v. Glendora Plantation, Inc., 782 F.3d
175, 180 (5th Cir. 2015) (citing Amoco Prod. Co. v. Tex. Meridian Res. Exploration Inc., 180 F.3d 664,
669 (5th Cir.1999)) (“[O]nly when there is a choice of reasonable interpretations of the contract is
there a material fact issue concerning the parties’ intent that would preclude summary judgment.”).
122
Maddox, 814 So. 2d at 572.
123
See, e.g., Skiba v. Jacobs Entertainment, Inc., 587 F. App’x 136, 139 (5th Cir. 2014) (affirming
denial of Rule 56(d) continuance where plaintiff sought to continuance for expert to examine
authenticated surveillance video); see also Little v. Liquid Air Corp., 37 F.3d at 1075 (citing
Celotex, 477 U.S. at 325) (“nonmovant must go beyond pleadings and designate specific facts showing
that there is genuine issue for trial.”).
124
Rec. Doc. 66-7.
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Finally, the request to depose Mr. Henderson is directed to the intentional-
act exclusion.
125
That subject is immaterial to Occidental’s statutory-employer
status, which does not depend on the operator’s conduct or state of mind. In any
event, the Court dismisses Plaintiffs’ intentional-tort theory on the pleadings under
Rule 12(b)(6).
126

The Court therefore need not decide whether Plaintiffs were diligent, because
the discovery they seek could not, as a matter of law, create a genuine dispute of
material fact on the question this motion presents. The Rule 56(d) motion is denied.
CONCLUSION
For the foregoing reasons, Plaintiffs have not pleaded facts supporting a
reasonable inference that Occidental knew their exposure to chlorine was
substantially certain to follow from its operator’s conduct, and their intentional-tort
claims therefore fail to state a claim. Occidental is Plaintiffs’ statutory employer
under La. Rev. Stat. Ann. § 23:1061, and the discovery Plaintiffs seek under Rule
56(d) could not create a genuine issue of material fact on that question. Because the
intentional-act exception was the pleaded basis on which Plaintiffs sought to avoid
the exclusive-remedy provision, and because no exception applies, La. Rev. Stat.
Ann. § 23:1032 bars Plaintiffs’ claims against Occidental in their entirety.
Accordingly,

125
Rec. Doc. 74-1 at 2 (“I expect the cross-examination of Mr. Henderson regarding the matters
submitted within his affidavit, as well the examination of Mr. Henderson regarding his actions at
the time of the incident, to be material in opposing Defendant’s Motion for Summary Judgment as it
relates to the intentional acts exclusion.”)
126
See supra Section III(A).
Case 2:25-cv-01055-ASJ-DPC Document 86 Filed 08/12/26 Page 22 of 23

IT IS ORDERED that Occidental’s Motion to Dismiss is GRANTED.
IT IS FURTHER ORDERED that Occidental’s Motion for Summary
Judgment is GRANTED, and Plaintiffs’ claims against Occidental
Chemical Corporation are DISMISSED WITH PREJUDICE.
IT IS
FURTHER ORDERED that Occidental’s Motion to Exclude or Limit
the Testimony of Benjamin Gibson
127
i s DENIED AS MOOT.
New Orleans, Louisiana, this 11th day of August, 2026.
ANNA ST. JOHN
UNITED STATES DISTRICT JUDGE
127
Rec. Doc. 68.
Case 2:25-cv-01055-ASJ-DPC Document 86 Filed 08/12/26 Page 23 of 23