Patsy Jane Boudreaux v. Able Supply Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1350

PATSY JANE BOUDREAUX, ET AL.

VERSUS

ABLE SUPPLY COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 88,221
HONORABLE THOMAS R. DUPLANTIER, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and J. David Painter, Judges.

AFFIRMED.

Michael P. Landry
Frank J. Swarr
David R. Cannella
Landry & Swarr, L.L.C.
1010 Common Street, Suite 2050
New Orleans, LA 70112
(504) 299-1214
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Patsy Jane Boudreaux, et al.

Walter & Kraus, LLP
3219 McKinney Avenue
Dallas, TX 75204
(214) 357-6244
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Patsy Jane Boudreaux, et al.

Erin Fury Parkinson
McGlinchey Stafford, PLLC
643 Magazine Street
New Orleans, LA 70130
(504) 596-2814
COUNSEL FOR DEFENDANT/APPELLEE:
American Cyanamid Co.

Gary A. Bezet
Gayla M. Moncla
Barrye Panepinto Miyagi
Allison Benoit
Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P.
P.O. Box 3513
Baton Rouge, LA 70821-3513
(225) 387-0999
COUNSEL FOR DEFENDANTS/APPELLEES:
Olin Corp., Exxon Mobil Corp., et al.

John D. Person
Sarah Lowman
Middleberg, Riddle, & Gianna
31st Floor
201 St. Charles Avenue
New Orleans, LA 70170-3100
(504) 525-7200
COUNSEL FOR DEFENDANTS/APPELLEES:
Fluor Constructors Int’l, Inc., Fluor Corp. & Fluor Maintenance Serv. Inc.

Ronald A. Johnson
Janet W. Marshall
Johnson, Johnson, Barrios & Yacoubian
701 Poydras Street, Suite 4700
New Orleans, LA 70139-7708
(504) 528-3001
COUNSEL FOR DEFENDANTS/APPELLEES:
B.P. America, Inc. and Atlantic Richfield Co.

Richard Sulzer
Robert Williams
Sulzer & Williams, LLC
201 Holiday Boulevard, Suite 335
Covington, LA 70433
COUNSEL FOR DEFENDANT/APPELLEE:
Chicago Bridge & Iron Company

John T. Balhoff
James Garner
Sher, Garner, Cahill, Richter, Klein & Hibbert, LLC
909 Poydras Street, Suite 2700
New Orleans, LA 70112
(504) 299-2251
COUNSEL FOR DEFENDANT/APPELLEE:
Air Liquide America Corporation

Lexi T. Holinga
Taylor, Porter, Brooks and Phillips, L.L.P.
P.O. Box 2471
8th Floor Chase Tower South
451 Florida Street
Baton Rouge, LA 70801
(225) 381-0262
COUNSEL FOR DEFENDANT/APPELLEE:
The Dow Chemical Company

Lynn Luker
Lori A. Walters
Lynn Luker & Associates, LLC
3433 Magazine Street
New Orleans, LA 70115
(504) 525-5500
COUNSEL FOR DEFENDANT/APPELLEE:
Foster Wheeler Energy Corporation

John Hainkel, III
Michelle St. Cyr
Frilot LLC
3600 Energy Center, 1100 Poydras Street
New Orleans, LA 70163-3600
(504) 599-8000
COUNSEL FOR DEFENDANT/APPELLEE:
Foster Wheeler Energy Corporation

Joshua Rubenstein
Forman, Perry, Watkins, Krutz & Tardy
1515 Poydras Street
New Orleans, LA 70112
(504) 799-4383
COUNSEL FOR DEFENDANT/APPELLEE:
Ingersoll-Rand Company

Darryl J. Foster
Lemle & Kelleher, L.L.P.
601 Poydras Street
21st Floor Pan American Life Center
New Orleans, LA 70130
(504) 585-1241
COUNSEL FOR DEFENDANT/APPELLEE:
Monsanto Company

Kathleen Drew
A. Kirk Gasperecz
Adams and Reese, L.L.P.
4500 One Shell Square
701 Poydras Street
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR DEFENDANT/APPELLEE:
Estech, Inc.

Yul Lorio
One Lakeshore Drive, Suite 1600
Lake Charles, LA 70629
COUNSEL FOR DEFENDANTS/APPELLEES:
Lyndell Chemical & Millenium Petrochemicals, Inc.

Scott A. Soule
1100 Poydras Street, Suite 2300
New Orleans, LA 70163
(504) 585-7075
COUNSEL FOR DEFENDANT/APPELLEE:
Citgo Petroleum Corporation

Amy L. Maccherone
Theresa R. Becher
Abbott, Simses & Kuchler, APLC
400 Lafayette Street, Suite 200
New Orleans, LA 70130
(504) 568-9393
COUNSEL FOR DEFENDANTS/APPELLEES:
General Motors Corporation and E.I. Du Pont De Nemourers and Co.

David Bourgeous
Duplass, Zwain, Bourgeous & Morton
Three Lakeway Center, Suite 2900
3838 No. Causeway Blvd.
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
Seville, Inc.

William L. Schuette, Jr.
Jones, Walker, Waechter, Poitevent, Carrere and Denegre, LLP
8555 United Plaza Blvd.
Four United Plaza, Fifth Floor
Baton Rouge, LA 70809
(225) 381-0262
COUNSEL FOR DEFENDANTS/APPELLEES:
CBS Corporation and General Electric Corporation

Alan K. Breaud
Breaud & Meyers
601 Jefferson Street, Suite 1101
Lafayette, LA 70501
COUNSEL FOR DEFENDANT/APPELLEE:
Omega Protein, Inc.

Forrest Ron Wilkes
Molly M. Gattuso
Ann S. Russell
Forman, Perry, Watkins, Krutz & Tardy
1515 Poydras Street
New Orleans, LA 70112
(504) 799-4383
COUNSEL FOR DEFENDANT/APPELLEE:
O-I, Inc.

John Hainkel, III
Sherri S. Faust
Frilot LLC
3600 Energy Center, 1100 Poydras Street
New Orleans, LA 70163-3600
(504) 599-8000
COUNSEL FOR DEFENDANT/APPELLEE:
Cleaver-Brooks, Inc., f/k/a Aqua-Chem, Inc.

Christopher K. Lightfoot
Hailey, McNamara, Hall, Larmann & Papale, LLP
P.O. Box 8288
Metairie, LA 70001-8288
(504) 836-6500
COUNSEL FOR DEFENDANT/APPELLEE:
Taylor-Seidenbach, Inc.

Matthew S. Lott
Dogan & Wileinson, PLLC
P.O. Box 1618
Pascagoula, MS 39568-1618
(228) 762-2272
COUNSEL FOR DEFENDANT/APPELLEE:
Crane Co.

Diane M. Sweezer
Beason Willingham
808 Travis, Suite 1608
Houston, TX 77002
COUNSEL FOR DEFENDANT/APPELLEE:
Reilly Benton, Inc.

Duris Homes
Jaime H. Bagglio
Deutsch, Kerrigan & Stiles, LLP
755 Magazine Street
New Orleans, LA 70130
(504) 581-5141
COUNSEL FOR DEFENDANTS/APPELLEES:
Riley Power, Inc., Anco Insulations, Inc., and Zurn Industries, LLC

Mike Lonegrass
One Shell Square – 40th Floor
701 Poydras Street
New Orleans, LA 70139
(504) 525-2456
COUNSEL FOR DEFENDANT/APPELLEE:
Crown Cork & Seal Company, Inc.

Cory Cahn
W. Scott Brown
Entergy Services, Inc.
639 Loyola Avenue, 26th Floor
New Orleans, LA 70113
(504) 576-5625
COUNSEL FOR DEFENDANTS/APPELLEES:
Entergy Gulf States Louisiana, LLC, Entergy Texas, Inc.

Cynthia Branch
Spyridon, Palermo, and Dornan
Three Lakeway Center, Suite 3010
3838 No. Causeway Blvd.
Metairie, LA 70002
(504) 830-7810
COUNSEL FOR DEFENDANT/APPELLEE:
Turner Industries, LLC

Glen L. Swetman
Kay Baxter
Brandie L. Mendoza
Aultan, Tyner, Ruffin & Swetman
400 Poydras Street, Suite 1900
New Orleans, LA 70130
(504) 528-9640
COUNSEL FOR DEFENDANT/APPELLEE:
Garlock Sealing Technologies, LLC

James Sutterfield
Scott T. Winstead
Sutterfield & Webb, LLC
650 Poydras Street, Suite 2715
New Orleans, LA 70130
(504) 598-2715
COUNSEL FOR DEFENDANT/APPELLEE:
Able Supply Company

Sue Kohn
Simon, Peragine, Smith & Redfearn, L.L.P.
Energy Centre – 30th Floor
1100 Poydras Street
New Orleans, LA 70163-3000
COUNSEL FOR DEFENDANT/APPELLEE:
Eagle, Inc.

COOKS, Judge.

This litigation involves the survival and wrongful death claims filed by the

widow and children of the decedent, Lloyd Joseph Boudreaux, Jr. It is alleged Mr.

Boudreaux contracted, and subsequently died from, malignant mesothelioma resulting

from asbestos exposure. Plaintiffs alleged Mr. Boudreaux sustained significant

occupational exposure to asbestos from the 1950's to the 1970's as an insulator at

various worksites in Texas and Louisiana.

Plaintiffs originally filed suit first in the United States District Court for the

Eastern District of Texas, captioned Lloyd J. Boudreaux, et al. v. A.C. & S., Inc., et

al. After Mr. Boudreaux’s death in 2007, plaintiffs filed suit in Vermilion Parish,

Louisiana against fifty-four (54) corporate defendants grouped into categories entitled

“Manufacturing and Equipment,” “Employer,” “Premises,” “Supplier,” and

“Contractor” defendants.

The petition states that plaintiffs are “resident citizens and domiciliaries of the

State of Texas.” The petition pleads generally that, under La.Code Civ.P. arts. 73 and

74, venue is proper in Vermilion Parish, Louisiana because the wrongful conduct

allegedly occurred in Vermilion Parish and each of the defendant companies allegedly

is jointly and solidarily liable for plaintiffs’ injuries. The petition further stated that

Mr. Boudreaux worked “for many different contractors at many different refineries,

chemical plants and shipyards, mostly in the Beaumont, Port Arthur, and Port Neches

area, but also in Louisiana.”

One of the defendants, American Cyanamid filed an Exception of Improper

Venue and a Motion to Dismiss for forum non conveniens, asserting that Texas is a

more appropriate forum under La.Code Civ.P. art. 123(B). Many other defendants

joined in and other defendants filed similar exceptions and motions to dismiss. Some

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defendants filed exceptions to personal jurisdiction. Following a hearing, the trial

court granted the parties additional time to conduct discovery limited to the facts

pertaining to the forum non conveniens issues. When the discovery was complete,

another hearing was held at which American Cyanamid filed Plaintiffs’ discovery

responses in the record as evidence. American Cyanamid contended Plaintiffs’

responses showed a “dearth of evidence supporting the litigation of this Texas-based

action in Vermilion Parish.”

Based on the evidence presented at the hearing, the trial court granted the

forum non conveniens motion and dismissed the action without prejudice, reserving

plaintiffs the right to re-file the action in a court of competent jurisdiction within sixty

days of the rendition of the judgment. The dismissal was also conditioned upon all

defendants waiving any defense based upon prescription that matured since

commencement of the action in Louisiana. The trial court concluded all of the private

and public interest factors weighed heavily in favor of dismissal and the plaintiffs’

slim connection to Vermillion Parish failed to justify the burden on the court and the

taxpayers of the parish to support the suit. Having ruled on the forum non conveniens

motion, the trial court did not render any judgment on the exception of improper

venue. Plaintiffs appealed.

ANALYSIS

The standard of review in this case is whether the trial court abused its

discretion in granting the forum non conveniens motion:

The abuse of discretion standard of review is appropriate because
La.Code Civ.P. art. 123, which treats forum non conveniens, permits--it
does not mandate--that a case be transferred if certain conditions are
fulfilled. This gives the trial judge the discretion to grant the motion to
transfer or not, and we review whether or not that discretion was abused.
A.O. Smith Corp. v. American Alternative Insurance Corp., 2000-2485
(La.App. 4 Cir. 12/27/00), 778 So.2d 615, 619; Piper Aircraft Company
v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266 (1981); Karim v. Finch

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Shipping Company Ltd., 265 F.3d 258 (5th Cir. 9/5/01); Cantuba v.
American Bureau of Shipping, 2001-1139 (La.App. 4 Cir. 2/13/02), 811
So.2d 50.

Carreon v. Cal-Tex Philippines, Inc., 04-809, p. 3-4 (La.App. 4 Cir. 3/23/05), 901

So.2d 456, 458-59, writs denied, 05-1040, 05-1051 (La. 6/3/05), 903 So.2d 468, 469.

The abuse of discretion standard has been held to be appropriate because La.Code

Civ.P. art. 123 allots great discretion to the trial court in determining if the conditions

for forum non conveniens are fulfilled. Martinez v. Marlow Trading, S.A., 04-538

(La.App. 4 Cir. 2/2/05), 894 So.2d 1222.

Louisiana Code of Civil Procedure article 123(B) provides in pertinent part:

Upon the contradictory motion of any defendant in a civil case filed in
a district court of this state in which a claim or cause of action is
predicated upon acts or omissions originating outside the territorial
boundaries of this state, when it is shown that there exists a more
appropriate forum outside of this state, taking into account the location
where the acts giving rise to the action occurred, the convenience of the
parties and witnesses, and the interest of justice, the court may dismiss
the suit without prejudice; however, no suit in which plaintiff is
domiciled in this state, and which is brought in a court which is
otherwise a court of competent jurisdiction and proper venue, shall be
dismissed pursuant to this Article.

The Louisiana Supreme Court in Fox v. Board of Sup’rs of La. State Univ., 576 So.2d

978, 987 (La. 1991) noted the purpose of the statute is to ensure “that the forum is fair

and convenient to the parties and not a forum chosen merely to harass the defendant,”

and that the courts are provided with “a mechanism to regulate crowded dockets by

ensuring that cases of no interest to the community where the case is filed can be

moved to a more appropriate forum.”

When determining whether a case should be transferred on the grounds of

forum non conveniens, the trial court should consider the following private interest

factors:

1. Convenience of the parties and witnesses;

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2. Access to the sources of proof and evidence, as well as viewing of
the premises, if required;

3. Costs of obtaining attendance of witnesses; and

4. Advantages and obstacles to a fair trial.

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839 (1947); Martinez, 894 So.2d

1222; National Linen Service v. City of Monroe, 39,199 (La.App. 2 Cir. 12/15/04),

889 So.2d 1186.

The trial court found the private interest factors weighed heavily in favor of

Texas as the more convenient forum. The trial court specifically noted in its reasons

for judgment that decedent and the plaintiffs were lifelong residents of Texas. The

only contact with Vermilion Parish was for an eight-month period spent working for

his brother-in-law’s company, Gulf Coast Engine Company, on a fishing boat. The

trial court also considered that all medical treatment of decedent occurred in Texas,

and therefore all of the medical evidence and witnesses were situated in Texas rather

than Louisiana. The only witness plaintiffs identified as “will call” for trial, living

within 25 miles of the Vermilion Parish courthouse, was decedent’s brother-in-law.

The record also establishes, of the twenty-five named defendants, only two were

located in Louisiana, and none in Vermilion Parish. Twenty-two of the named

defendants were located in Texas, and one in the state of Washington. After a

thorough review of the facts in this case, we find the trial court’s conclusion that the

private interest factors supported Texas as the more convenient forum was not an

abuse of discretion.

Courts also take into consideration public interest factors to determine whether

the litigation would unnecessarily burden the defendants or the court. These factors

include:

1. Administrative difficulties flowing from court congestions;

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2. Local interest in having localized controversies decided at home;

3. Interest in having the trial of a diversity case in a forum that is at
home with the law that must govern the action;

4. Avoidance of unnecessary problems in conflicts of laws, or in the
application of foreign law;

5. Unfairness of burdening citizens in an unrelated forum with jury
duty.

Martinez, 894 So.2d at 1227, citing Piper Aircraft Company v. Reyno, 454 U.S. 235,

102 S.Ct. 252 (1981). If the court concludes that retention of the litigation would be

unnecessarily burdensome, then dismissal is proper.

The trial court likewise concluded that the public interest factors mandated

dismissal of the case on forum non conveniens grounds. The trial court stated as

follows:

[T]he fact is that you [plaintiffs and decedent] come from Texas having
lived there all your life, having been treated all your life. You now find
the fact that eight months [the decedent] worked in a boat in Vermilion
Parish. You now subject not only all these people, but the citizens of
Vermilion Parish, the Court of Vermilion Parish to what is a very costly,
very time consuming process that hinges upon the only reason because
you can get supposedly all the people into this one jurisdiction. . ., but
the fact is I think I have an obligation to look at these facts and say to
myself, is it really more convenient and is it really the most convenient?
Not whether it’s more convenient for the plaintiffs, not whether its have
you been denied the best source of an area. I think you take all these
things together, and to me, you have to say that this Texas plaintiff, this
Texas individual who was injured and died obviously from exposure –
nobody contends that’s not true – whether or not we are to, in Vermilion
Parish, be the ones to litigate this 23-year exposure to asbestos because
he happened to work for his brother-in-law for eight months on a pogey
boat in Vermilion Parish, and I think not.

We find no abuse of discretion in the trial court’s conclusion that the public interest

factors demonstrate that filing this proceeding in Texas benefits that state in allowing

a local controversy to be decided by its judicial system, while relieving an unjustified

expense and burden on Louisiana’s citizens and judicial system.

Plaintiffs specifically argue the trial court erred in according little, if any,

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deference to its choice of forum. Under the facts of this case, we disagree.

Dispositive of this issue is the fact that the decedent was, and all plaintiffs are,

residents of the State of Texas. Courts give less deference to a plaintiff’s choice to

sue outside his home forum. In Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping

Corp., 549 U.S. 422, 437, 127 S.Ct. 1184, 1191 (2007), the United States Supreme

Court stated:

A defendant invoking forum non conveniens ordinarily bears a heavy
burden in opposing the plaintiff’s chosen forum. When the plaintiff’s
choice is not its home forum, however, the presumption in the plaintiff’s
favor “applies with less force,” for the assumption that the chosen forum
is appropriate is then “less reasonable.” Piper Aircraft Co[. v. Reyno],
454 U.S. 235, 255-56, 102 S.Ct. 252.

The courts have explained the reason for giving a non-domiciled plaintiff’s choice of

forum less deference is not xenophobic, but is “merely a reluctance to assume that the

choice is a convenient one.” Lony v. E.I. DuPont de Nemours & Co., 886 F.2d 628,

634 (3rd Cir. 1989). The courts have also stated plaintiffs can overcome this reluctance

by presenting a “strong showing of convenience.” However, the record before us

presents no proof of convenience in trying this case in Vermilion Parish. To state it

simply: Nothing relevant to this case occurred in Vermilion Parish. As set forth

above, the only period of employment decedent had in Vermilion Parish during his

forty-five year work history was for an eight-month period in the early 1970's where

he worked at Gulf Coast Engine Company, which was owned by his brother-in-law.

However, Gulf Coast was not a named defendant. Therefore, we find the trial court

did not err in according little deference to plaintiffs’ choice of forum.

Plaintiffs argued that a prerequisite for a forum non conveniens dismissal is a

showing there is an available, alternative forum where each and every defendant is

subject to the jurisdiction of that court. As the trial court noted there is no requirement

under La.Code Civ.P. art. 123(B) that the “entire case and all parties” must “come

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within the jurisdiction” of the alternative forum. The trial court stated:

I know your argument is that supposedly you can’t get some of these
defendants to Texas. I don’t see a codal argument or a case or anything
that I am bound as a judge to make your ability to get everybody tried in
a single jurisdiction. That’s not my job and it’s not the codal job.

We further note there is no showing the Vermilion Parish District Court could meet

this requirement, because two defendants filed exceptions to jurisdiction in that court.

With the dozens of defendants sued by plaintiffs, it is highly unlikely that any court

would have jurisdiction over every named defendant.

A forum is “adequate” for purposes of forum non conveniens if “the parties will

not be deprived of all remedies or treated unfairly.” Martinez, 894 So.2d at 1226. We

find no merit to plaintiffs’ contention that Texas will not provide an adequate

alternative forum.

Plaintiffs also argue that in order for La.Code Civ.P. art. 123(B) to apply, all

acts providing the basis for the suit had to occur outside of Louisiana. Specifically,

they argue the mere allegation of a single incident of exposure in Louisiana will

support litigation in Louisiana. We find no merit in this argument. Such a restrictive

reading of that article is directly contrary to the principles of forum non conveniens,

and, as defendants argue, could make Louisiana a haven for forum shoppers who

perceive some sort of tactical advantage to filing suit here. The allegations of limited

acts in Louisiana is merely one factor to be considered along with the other factors,

none of which support suit in Louisiana under the facts presented in this case..

Plaintiffs also argued that the trial court should not have dismissed the case

based on forum non conveniens without first ruling on one of the defendant’s

exception to venue in Vermilion Parish. As Defendants note in their brief, the trial

court has jurisdiction to rule on the forum non conveniens motion regardless of

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whether venue is proper. The United States Supreme Court stated:

[A] district court has discretion to respond at once to a
defendants’s forum non conveniens plea and need not take
up first any other threshold objection. . . .

We have essentially characterized forum non conveniens as,
essentially, “a supervening venue provision, permitting
displacement of the ordinary rules of venue, when, in light
of certain conditions, the trial court thinks that jurisdiction
ought to be declined.

Sinochem, 549 U.S. 422, 127 S.Ct. 1184 (2007). This pronouncement clearly indicates

a district court has discretion to decide the forum non conveniens issue without first

determining venue.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

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