October 15, 2021, opinions

Designated for publication

  • Butler v. Denka Performance Elastomer, L.L.C., 20-30365, appeal from E.D. La.
    • Higginson, J. (Haynes, Higginson, Oldham), Haynes, J., dissenting in part; Oldham, J., dissenting in part; toxic tort, removal
    • Affirming the district court’s denial of plaintiff’s motion to remand this CAFA-removed toxic tort suit; reversing 12(b)(6) dismissal of plaintiff’s claims against former facility owner (and current landowner where facility is located) and against Louisiana Department of Health as time-barred; affirming dismissal of strict liability and custodial liability claims against the current landowner and the current facility owner
    • The Court held that the presence of two state agencies as defendants did not render the case non-removable under CAFA; “a state’s presence does not affect CAFA’s minimal–rather than complete–diversity requirement.” The Court also held that the fact that the state agencies had not waived their sovereign immunity at the time of removal was irrelevant, as CAFA allows for removal without the consent of all defendants.
    • The Court held that, on the pleadings and thin record before it, the district court erred in finding that the plaintiff’s toxic tort claims against the former facility owner (DuPont, which remained the owner of the land where the facility is located) and against the Louisiana Department of Health (claims for failure to notify nearby residents of health effects of chloroprene emissions from facility) were time-barred. The Court held that contra non valentem applied because there was no evidence that the plaintiff had either actual or constructive knowledge that her symptoms were due to chloroprene exposure before one year prior to filing the lawsuit.
    • The Court held that the district court correctly dismissed for failure to state a claim the plaintiff’s strict liability and custodial liability claims against DuPont as the current landowner and against Denka as the current facility owner, because the plaintiff failed to allege a plausible duty and corresponding breach. The Court noted that the plaintiff abandoned on appeal her arguments to the district court that DuPont and Denka had a duty to not emit chloroprene at rates resulting in a concentration of 0.2 micrograms per cubic meter of air–which the district court had held was not a duty because EPA had disclaimed that it was a regulatory limit–in favor of a general argument that they had violated a broad duty to not harm others through their conduct. The Court held that this was too vague a statement of duty. The Court also noted that it would not rule on whether the district court had erred in concluding that EPA’s or other agencies’ stated acceptable emissions thresholds could not constitute a legal duty under Louisiana law, because that argument had been abandoned on appeal.
    • The Court also affirmed the dismissal of the plaintiff’s claims for declaratory relief against Louisiana’s Department of Environmental Quality, noting that the plaintiff “barely acknowledge[d]” the district court’s extensive discussion of the plaintiff’s failure to comply with DEQ’s administrative process, “including the agency’s authority to issue declaratory rulings prior to seeking a declaratory judgment in court.”
    • Judge Haynes dissented in part, as she would have certified the question of duty to the Louisiana Supreme Court. “The question of whether an emitter has a duty to limit emissions to a level it should have known would not harm human health is an important one that can substantially affect residents of the particular state, so under our federal-state comity, I conclude that we should defer to the Louisiana Supreme Court on this topic. Moreover, certification of a question to a state supreme court is particularly appropriate where, as here, the dispute presents novel issues of state law, calling for the exercise of judgment by the state courts.”
    • Judge Oldham also dissented in part, as he disagreed that the plaintiff met her burden to prove the tolling of the prescriptive period under contra non valentem.

Unpublished

  • Ingram v. Lumpkin, 19-11322, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), prisoner suit
    • Dismissing as frivolous appeal from dismissal of § 1983 suit alleging that the presence of expunged arrest records in his parole file jeopardized his chances of receiving parole.
  • U.S. v. Cockerham, 19-51037, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Remanding for limited purpose of district court providing an explanation for its denial of motion for compassionate release.
  • U.S. v. Erwin, 20-10795, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal. compassionate release
    • Affirming denial of motion for compassionate release.
  • Crain v. Mancuso, 20-30777, appeal from W.D. La.
    • per curiam (Jones, Duncan, Engelhardt), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claims.
  • Bates Energy Oil & Gas, L.L.C., 20-50952, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), conspiracy, fraud
    • Affirming judgment that defendants were jointly and severally liable for conspiracy to defraud.
  • Espino-Martinez v. Garland, 20-60094, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Dismissing Mexican citizen’s petition for review of BIA’s denial of his motion to reconsider.
  • Gonzalez v. Garland, 20-60250, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Cuban citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Wooten, 21-20068, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Affirming that Hobbs Act robbery is a crime of violence for purposes of conviction of five counts of brandishing a firearm during a crime of violence.
  • U.S. v. Rodriguez-Garcia, 21-50382, c/w 21-50384, c/w 21-50398, appeals from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Granting summary affirmance of sentences for conviction of illegal reentry and for revocation of supervised release.