Case: 15-31091 Document: 00513382084 Page: 1 Date Filed: 02/16/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 16, 2016
No. 15-31091
Lyle W. Cayce
Clerk
EARL A. ADAMS, JR.; ALFRED ALEXANDER; JENELL ANTOINE; PAUL
J. ARMAND; ALICIA AUGUSTE,
Plaintiffs - Appellees
v.
JOSEPH F. GREFER,
Defendant - Appellant
CHEVRON USA, INCORPORATED; CERTAIN UNDERWRITERS AT
LLOYDS LONDON; BISHOPSGATE INSURANCE LIMITED; CORNHILL
INSURANCE, P.L.C.; HANSA MARINE INSURANCE COMPANY U. K.
LIMITED; MINISTER INSURANCE COMPANY, LIMITED; NORTHERN
ASSURANCE COMPANY, LIMITED; OCEAN MARINE INSURANCE
COMPANY LIMITED; SIRIUS INSURANCE COMPANY UK LIMITED;
SKANDIA UK INSURANCE, P.L.C.; SPHERE DRAKE INSURANCE
COMPANY UK LIMITED; TERRA NOVA INSURANCE COMPANY,
LIMITED; VESTA UK INSURANCE COMPANY LIMITED; YASUDA FIRE ;
MARINE INSURANCE COMPANY OF EUROPE LIMITED; ZURICH RE
UK LIMITED; OILFIELD TESTERS, INCORPORATED; RIVERSTONE
INSURANCE UK LIMITED, formerly known as Sphere Drake Insurance,
P.L.C.; ALLIANZ INTERNATIONAL INSURANCE COMPANY LIMITED;
YORKSHIRE INSURANCE COMPANY LIMITED; EXXON MOBIL
CORPORATION; SEXTON OIL ; MINERAL CORPORATION;
INTRACOASTAL TUBULAR SERVICES, INCORPORATED; ALPHA
TECHNICAL SERVICES, INCORPORATED; OFS, INCORPORATED; BP
EXPLORATION ; OIL, INCORPORATED; BP AMERICA PRODUCTION
COMPANY, formerly known as Amoco Production Company; BP
EXPLORATION ; PRODUCTION, INCORPORATED; ATLANTIC
RICHFIELD COMPANY; CONOCOPHILLIPS COMPANY; ANADARKO
U.S. OFFSHORE CORPORATION, formerly known as Kerr-McGee Oil and
Gas Corporation; MOBIL EXPLORATION AND PRODUCING US,
INCORPORATED; RATHBORNE COMPANIES, L.L.C.; RATHBORNE
Case: 15-31091 Document: 00513382084 Page: 2 Date Filed: 02/16/2016
No. 15-31091
LAND COMPANY, L.L.C.; RATHBORNE PROPERTIES, L.L.C.; TUBULAR
CORPORATION; JOHN GANDY, INCORPORATED; ARCO OIL ; GAS
COMPANY; L B FOSTER COMPANY; 51 OIL COMPANY; SHELL
OFFSHORE, INCORPORATED; SHELL OIL COMPANY; SWEPI, L.P.;
TEXACO, INCORPORATED; MARATHON OIL COMPANY; TRANSCO
EXPLORATION COMPANY, as successor of Exchange Oil ; Gas Corporation,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-4360
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
In 2002, the plaintiffs filed a mass action suit against the defendants in
Louisiana state court. The suit alleged personal injury and property damage
from contamination exposure. The plaintiffs filed amended and supplemental
petitions in January 2004, January 2015, and August 2015. After the August
2015 amendment (hereinafter the “last amended petition”), defendant-
appellant Joseph F. Grefer removed the case to the Eastern District of
Louisiana under the Class Action Fairness Act of 2005 (“CAFA”). 1 Grefer
argued that the last amended petition added new plaintiffs and claims under
Louisiana law, thereby commencing a new action and opening a new window
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 CAFA, as codified by 28 U.S.C. § 1332(d), created a new basis for federal subject
matter jurisdiction over qualifying civil actions. CAFA applies only to actions commenced on
or after February 18, 2005. Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 803 (5th Cir.
2006).
2
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No. 15-31091
of removal under CAFA. The plaintiffs moved for remand, and the district court
granted the motion. We then granted the defendant’s motion to appeal the
remand order. Because we find that the last amended pleading did not add any
new claims, we affirm.
I.
This court reviews a district court’s remand order de novo. Rainbow Gun
Club, Inc. v. Denbury Onshore, LLC, 760 F.3d 405, 408 (5th Cir. 2014).
II.
Here, Grefer contends that the last amended petition added hundreds of
new plaintiffs and claims. Based on the plain language of the petition, we
disagree. Section 2 of the last amended petition states that “[p]ursuant to La.
Civil Code art. 2315.1, La. Civil Code art. 2315.2, and/or La. Code of Civil
Procedure art. 4061 et. seq., in addition to all other statutory authority
relevant hereto, the below-named parties hereby substitute themselves for the
named plaintiffs, listed below[.]” (emphasis added). Grefer highlights this
section’s citation to article 2315.2—Louisiana’s wrongful death statute—as the
basis for his argument that there are now hundreds of new plaintiffs and
claims. 2
Grefer’s reliance on this single citation to article 2315.2 ignores
everything that follows in the remainder of the amended petition. Virtually
every subsequent paragraph takes the following form: “The estate of A [an
original plaintiff] is represented by the following heirs: B, C, and D.” 3 In fact,
2 In Louisiana, “[t]he wrongful death action does not arise until the victim dies. . . .
[It] is intended to compensate the beneficiaries for compensable injuries suffered from the
moment of death and thereafter.” Guidry v. Theriot, 377 So. 2d 319, 322 (La. 1979),
repudiated on other grounds by Louviere v. Shell Oil Co., 440 So. 2d 93, 97 (La. 1983). Thus,
the plaintiffs in a wrongful death action do not represent the decedent by substitution but
bring the action in their own right for recovery of damages.
3 Of the 180 paragraphs in section 3 of the amended pleading, 173 take this form.
Grefer’s factual assertion that the amended complaint added new wrongful death claims is
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No. 15-31091
none of the paragraphs alleges any facts whatsoever suggesting that a new
plaintiff is bringing a wrongful death claim. Rather, each paragraph simply
establishes which heirs will be representing the estates of which deceased
original plaintiffs. And the mere substitution of deceased plaintiffs by their
heirs does not commence a new action for purposes of CAFA. See Admiral Ins.
Co. v. Abshire, 574 F.3d 267, 274 (5th Cir. 2009).
III.
We do not address the hypothetical question of whether a properly
alleged wrongful death claim would commence a new action under CAFA.
Because no new claims have been alleged here, we need only apply our well-
established default rule under Louisiana law: “[A]bsent special circumstances,
a suit is commenced only at the time the original petition is filed in a court of
competent jurisdiction.” Abshire, 574 F.3d at 273. AFFIRMED.
based on these 173. Of the remaining seven paragraphs: one indicates that a plaintiff is no
longer a minor and thus is no longer represented by a legal guardian; five indicate that a
plaintiff previously listed as deceased is actually alive; and one indicates that an individual
was previously incorrectly listed as a plaintiff when his wife was the actual plaintiff.
4