IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2009
No. 08-30787 Charles R. Fulbruge III
Clerk
BRENDA ANDERSON; CARLTON ANDERSON; BRADFORD BAKER,
Individually and on behalf of Kimberly Baker; PAULINE BAKER; MELANIE
BELL; ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
------------------------------------------------------------------------------------------------------------
LA’SHONDA ARVIE; ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
------------------------------------------------------------------------------------------------------------
MARY BAKER
Plaintiff-Appellant
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
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No. 08-30787
LOUIS BELL; ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
------------------------------------------------------------------------------------------------------------
IVEARY UPSHAW; ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
------------------------------------------------------------------------------------------------------------
KATHERINE DORN, Individually and on behalf of Brittany DeSadier;
ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
------------------------------------------------------------------------------------------------------------
EBONY BELLARD; ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH
Defendants-Appellees
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2
No. 08-30787
NATHAN DUGAS, on behalf of Starlet Dugas; ET AL
Plaintiffs-Appellants
v.
GEORGIA GULF LAKE CHARLES, LLC; MARK JAKEL; RANDALL E
POLK; BARRY BERNARD; RICHARD BUTTERWORTH; JIM LITTLE;
CHARLES MCDONALD
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
(07-CV-1378)
Before BARKSDALE, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
This consolidated litigation arises out of a fire and subsequent airborne
chemical emissions at the manufacturing facility of Georgia Gulf Lake Charles,
LLC (Georgia Gulf) in Westlake, Louisiana, on September 17, 2006. The
Plaintiffs brought suit for personal injury against Georgia Gulf and seven of its
employees in Louisiana state court.1 Georgia Gulf removed the suit to federal
district court, alleging that the employees were improperly joined to defeat
*
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
Seven actions, including the Anderson action, were filed by hundreds of plaintiffs
asserting identical claims against Georgia Gulf and four of its supervisory or managerial
employees: Mark Jakel, Randall Polk, Barry Bernard, and Richard Butterworth. An eighth
action, the Dugas class action, contained similar allegations against the same defendants plus
three additional employees: Bob DiBiano, Charles McDonald, and Jim Little. The Dugas
plaintiffs later dismissed their claims against Bob DiBiano. All actions are currently
proceeding as a consolidated action, but only these seven actions are at issue in this appeal.
3
No. 08-30787
diversity jurisdiction. The district court denied the Plaintiffs’ motions to remand
and entered summary judgment, dismissing all of the Plaintiffs’ claims against
Mark Jakel, Randall Polk, Barry Bernard, Richard Butterworth, Charles
McDonald, and Jim Little (Employee-Defendants).
On appeal, Georgia Gulf argues that we lack jurisdiction because the
district court did not properly certify entry of a final order pursuant to Rule 54(b)
of the Federal Rules of Civil Procedure. Additionally, the Plaintiffs argue that
the district court erred in dismissing their claims against the Employee-
Defendants because (1) Georgia Gulf failed to carry its burden of proving the
Employee-Defendants were improperly joined because they were not delegated
duties personally owed to the Plaintiffs; and (2) the district court failed to
properly apply Louisiana negligence law when determining whether the
Plaintiffs had a reasonable possibility of recovery against the Employee-
Defendants.
We hold that the district court properly certified entry of its final order
pursuant to Rule 54(b) by demonstrating its unmistakable intent to enter partial
final judgment. Thus, Georgia Gulf’s motion to dismiss is denied. We further
hold that the district court did not err in dismissing the Plaintiffs’ personal
injury claims against the Employee-Defendants. The Plaintiffs have not
identified any delegation or breach of a personal duty owed to third parties by
the Employee-Defendants. Accordingly, we find no reasonable basis for recovery
against the Employee-Defendants and affirm the district court’s ruling that they
were improperly joined.
I. Factual and Procedural Background
On September 17, 2006, a fire occurred at Georgia Gulf’s vinyl chloride
monomer (VCM) facility in Westlake, Louisiana, resulting in the emission of
toxic chemicals into the surrounding communities where the Plaintiffs reside.
The fire occurred when one of the tubes failed in Georgia Gulf’s ethylene
4
No. 08-30787
dichloride (EDC) cracking furnace. The complete fracture of the tube occurred
when the furnace was undergoing a startup procedure after being shut down for
maintenance.
When the furnace was started at approximately 7:00 p.m., a technician
observed that temperatures in the furnace were abnormal, so he decided to shut
it down. While other technicians were in the process of closing off the individual
burners in the furnace, one of them saw smoke coming out of the stack, and
another reported hearing noises. Shortly thereafter, a technician observed
chemical vapors coming from the furnace and reported it to Butterworth, who
immediately ordered an emergency shutdown of the furnace and the rest of the
unit. During the evacuation of the furnace area, the vapor cloud ignited. All the
remaining units in the plant were shut down, and emergency response measures
were taken pursuant to Georgia Gulf’s Incident Command Procedure.
Butterworth telephoned the Louisiana State Police, dialed 911 to activate the
community alert system, and ensured that the alarms were sounded and the
Emergency Response Team was paged. A shelter-in-place was ordered by the
responding agencies. Perimeter and community air monitoring was conducted
by Georgia Gulf’s personnel and the Louisiana Department of Environmental
Quality (LDEQ). The fire was extinguished at approximately 9:00 p.m.
The Plaintiffs filed suit in Louisiana state court against Georgia Gulf and
the Employee-Defendants for personal injuries sustained as a result of the fire
and chemical release. Their complaints allege that Georgia Gulf delegated
responsibility for operations, maintenance, and emergency response activities
to each of the Employee-Defendants personally, and that this delegation created
duties of care that were owed individually by the Employee-Defendants to the
Plaintiffs.2
2
At the time of the fire, Mark Jakel was employed as Georgia Gulf Plant Manager;
Randall Polk as Operations, Maintenance, and Engineering Manager; Barry Bernard as
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No. 08-30787
Arguing that the non-diverse Employee-Defendants were improperly
joined, Georgia Gulf removed the case to federal district court based upon
complete diversity under 28 U.S.C. §§ 1332(a), 1441, and 1446.3 The Plaintiffs
timely filed motions to remand on grounds that diversity jurisdiction was lacking
under § 1332(a). In response, Georgia Gulf submitted affidavits of the
Employee-Defendants, in which each (1) denied having been delegated any
personal duties alleged in the Plaintiffs’ complaints, and (2) affirmatively stated
that if Georgia Gulf had delegated any such duties, they were general
administrative responsibilities. The district court adopted the magistrate
judge’s recommendation, denied the Plaintiffs’ motions to remand, and dismissed
the Plaintiffs’ claims against the Employee-Defendants.
The Plaintiffs then moved the district court to certify its judgment as final
and appealable pursuant to Rule 54(b) and 28 U.S.C. § 1292. The district court
entered final judgment without explicitly referring to either the rule or the
statute. After the Plaintiffs filed their notice of appeal, Georgia Gulf filed a
motion to dismiss the appeal for lack of jurisdiction. As a threshold issue, we
will first address Georgia Gulf’s jurisdictional challenge as to whether the
district court properly certified entry of its final order.
II. Analysis
A. Jurisdiction
Georgia Gulf alleges that the district court did not properly certify entry
of a final order pursuant to Rule 54(b), and therefore we lack jurisdiction over
this appeal. Rule 54(b) states:
General Maintenance Supervisor; Richard Butterworth as Shift Supervisor; Charles McDonald
as Principal Engineer (Process Design); and Jim Little as Safety Specialist.
3
Removal of the Dugas class action was based upon improper joinder and the Class
Action Fairness Act (CAFA). The parties agree that the district court’s rulings regarding
CAFA are not at issue in the instant appeal, so we will not consider them.
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No. 08-30787
When an action presents more than one claim for relief . . . or when
multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no just reason for
delay. . . .
A district court satisfies the requirements for entering an order of final
judgment under Rule 54(b) “[i]f the language in the order appealed from, either
independently or together with related portions of the record referred to in the
order, reflects the district court’s unmistakable intent to enter a partial final
judgment under Rule 54(b) . . . .” Kelly v. Lee’s Old Fashioned Hamburgers, Inc.,
908 F.2d 1218, 1220 (5th Cir. 1990) (en banc); see also Askanase v. LivingWell,
Inc., 981 F.2d 807, 809-10 (5th Cir. 1993). In Kelly, we explained that if the
district court “recites Rule 54(b) in the order or grants a motion requesting entry
of judgment under Rule 54(b), the court expressly incorporates the entire rule
by reference and signals its conclusion that the requirements of the rule have
been met and entry of partial final judgment is proper.” Kelly, 908 F.2d. at 1220.
The Plaintiffs filed a motion to certify the district court’s order as final and
appealable. While the motion used the word “certify” and the court’s order used
the word “designate,” both documents refer to making the district court’s order
a final and appealable judgment. The district court granted a motion requesting
entry of judgment under Rule 54(b) and explicitly mentioned the Plaintiffs’
motion in the court order. Under Kelly, the district court’s action incorporated
the entire rule by reference, and signaled that the requirements of the rule were
met and entry of partial final judgment was proper. See id. Because the motion
explicitly references Rule 54(b), the district court’s intent is unmistakable.
Georgia Gulf’s motion to dismiss is therefore denied. We now turn to whether
the district court erred in dismissing the Plaintiffs’ claims against the individual
Employee-Defendants.
7
No. 08-30787
B. Improper Joinder
“[W]hen the district court engages in an independent evaluation of the
record, as here, the standard of review depends upon the issue on appeal.”
Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005). We review the
district court’s decision to deny the motion to remand de novo because it is a
question of law. Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir.
1995). Similarly, we review a district court’s grant of summary judgment de
novo. ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841, 844 (5th Cir.
2006).
In Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir.
2004) (en banc), we identified the framework for examining improper joinder
claims.4 Federal law allows for state civil suits to be removed to federal courts
that have original jurisdiction over the action. 28 U.S.C. § 1441(a). Suits not
brought under federal law are removable “only if none of the parties in interest
properly joined . . . [are] citizen[s] of the State in which such action is brought.”
28 U.S.C. § 1441(b). For a defendant to remove a case based on diversity
jurisdiction, “the diverse defendant must demonstrate that all of the
prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332 are
satisfied.” Smallwood, 385 F.3d at 572. A district court may not, however,
exercise jurisdiction over a suit where any party has been improperly joined in
order to defeat diversity jurisdiction. Id. “The doctrine of improper joinder
rests on these statutory underpinnings, which entitle a defendant to remove to
a federal forum unless an in-state defendant has been ‘properly joined.’” Id.
Improper joinder may be established by either “(1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause
4
We use the term “improper joinder” because it is more consistent with the statutory
language than the term “fraudulent joinder,” which has been used in the past. There is no
substantive difference between the two. See Smallwood, 385 F.3d at 571 n.1.
8
No. 08-30787
of action against the non-diverse party in state court.” Id. at 573 (citation
omitted). Under the second method, if there is no reasonable basis for the
district court to predict that the plaintiff might be able to recover against an
in-state defendant, the parties have been improperly joined. Id. Only the second
method is before this Court.
To determine a reasonable basis upon which a plaintiff may recover, the
district court may (1) “conduct a Rule 12(b)(6)-type analysis,” or (2) if the
“plaintiff has stated a claim, but has misstated or omitted discrete facts that
would determine the propriety of joinder,” the district court may “pierce the
pleadings and conduct a summary inquiry.” Id. (citations omitted). This
summary inquiry allows a district court to look beyond the pleadings and
consider summary judgment-type evidence. Burden, 60 F.3d at 217 & n.18.
Discovery should be limited, and the summary inquiry should only be used to
identify discrete and undisputed facts that would bar a plaintiffs’ recovery
against an in-state defendant; anything more risks “moving the court beyond
jurisdiction and into a resolution of the merits . . . .” Smallwood, 385 F.3d at
573-74. During the summary inquiry, “[t]he party seeking removal bears a heavy
burden of proving that the joinder of the in-state party was improper.” Id. at
574.
The propriety of joinder in this case is based upon the test articulated in
Canter v. Koehring Co., 283 So. 2d 716 (La. 1973), superseded on other grounds
by statute, L A. R EV. S TAT. A NN. § 23:1032 (1998). Under Canter, individual
liability on an employer’s officer, agent, or employee may be imposed if:
1. The principal or employer owes a duty of care to the third person
. . . breach of which has caused the damage for which recovery is
sought.
2. This duty is delegated by the principal or employer to the
defendant.
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No. 08-30787
3. The defendant officer, agent, or employee has breached this duty
through personal (as contrasted with technical or vicarious) fault.
The breach occurs when the defendant has failed to discharge the
obligation with the degree of care required by ordinary prudence
under the same or similar circumstances– whether such failure be
due to malfeasance, misfeasance, or nonfeasance, including when
the failure results from not acting upon actual knowledge of the risk
to others as well as from a lack of ordinary care in discovering and
avoiding such risk of harm which has resulted from the breach of
the duty.
4. With regard to the personal (as contrasted with technical or
vicarious) fault, personal liability cannot be imposed upon the
officer, agent, or employee simply because of his general
administrative responsibility for performance of some function of
the employment. He must have a personal duty towards the injured
plaintiff, breach of which specifically has caused the plaintiff's
damages. If the defendant’s general responsibility has been
delegated with due care to some responsible subordinate or
subordinates, he is not himself personally at fault and liable for the
negligent performance of this responsibility unless he personally
knows or personally should know of its non-performance or mal-
performance and has nevertheless failed to cure the risk of harm.
Id. at 721. “Canter’s four-part test is used to determine whether an employee is
individually liable to third persons, even if they are not co-employees.” In re
1994 Exxon Chem. Fire, 558 F.3d 378, 386 (5th Cir. 2009).
In this case, the magistrate judge pierced the pleadings and conducted a
summary inquiry as to whether the Plaintiffs might be able to recover against
the Employee-Defendants under Canter. The Employee-Defendants each
submitted affidavits specifically denying that they intentionally released toxic
chemicals, and stating that various maintenance, repair, and safety
responsibilities were general administrative responsibilities that were properly
delegated to qualified individuals within each department. Further, each denied
having any personal knowledge that the fire was likely to occur or that the
operation of equipment posed a danger to anyone. Because the Plaintiffs failed
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No. 08-30787
to submit any contradictory evidence, the magistrate judge determined that
there was no reasonable basis to predict the Plaintiffs could recover against the
Employee-Defendants. We agree.
The magistrate judge identified two cases from this circuit which applied
the Canter test to facts similar to the case at bar. In Guillory, the plaintiffs
brought suit for injuries caused by a chemical release at PPG’s facility. 434 F.3d
at 307. They attempted to join the individual employee-defendants, arguing that
they were corporate officers imbued with safety responsibilities under Canter.
Id. at 311. We determined that there was no reasonable possibility of recovery
against the employee-defendants because they were not delegated personal
responsibility to enact measures to prevent the chemical release or to ensure the
safety of the particular equipment that failed. Id. at 312-13. Specifically, the
employees denied (1) any responsibility for ensuring adequate monitoring
devices were in place, and (2) any knowledge of whether steps were taken to
prevent additional chemical releases following previous accidents at PPG’s
facility. Id. at 312, 313 n.34. The employee-defendants further testified that
functions such as ensuring the adequacy of certain monitoring devices fell within
the general administrative responsibilities of the unit, rather than any
individual employee. Id. The Guillory plaintiffs submitted several documents
to the court, none of which mentioned the employee-defendants by name or gave
any indication they had a connection to the chemical release. Id. at 313 n.35.
This lack of contradictory evidence led the district court to properly conclude
that the plaintiffs had no reasonable basis upon which to hold the employee-
defendants liable and that they were improperly joined. Id. at 313.
In contrast to Guillory, we found that joinder of the employees was proper
in Ford v. Elsbury, 32 F.3d 931 (5th Cir. 1994). In Ford, the plaintiffs proffered
evidence that directly contradicted the testimony of an employee-defendant. Id.
at 937-38. Elsbury, the plant manager, testified that he had no personal
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No. 08-30787
responsibility for the safety of the plant, nor that he had any personal knowledge
regarding a reactor leak that caused an explosion. Id. at 938-39. The evidence
included accident reconstruction affidavits stating that the leak, which caused
the explosion, could have been detected with proper safeguards. Id. at 939. One
employee testified that he informed Elsbury about the leak and the unsafe
working conditions it created, to which Elsbury replied, “[s]ometimes you have
to overlook safety to get the job done.” Id. Plant procedures called for a facility
shutdown in the event of a leak, and Elsbury testified he had authority to do so.
Id. Yet when a first leak was discovered, then a second, the plant continued to
operate in normal fashion. Id. One employee testified that after he became
aware of the leak, he ordered the plant to be shut down, but was overruled by
Elsbury. Id. In light of this contradictory evidence, we found that there was at
least the possibility of establishing a claim against Elsbury. Id.
We find that Guillory controls this case. The employee-defendants in
Guillory submitted sworn affidavit and deposition testimony denying any
delegation or breach of personal duty regarding the explosion, and the plaintiffs
did not dispute or rebut this testimony. 434 F.3d at 313. The six Employee-
Defendants in this case similarly submitted affidavits and deposition testimony
that they were never delegated any personal duties. In their depositions, each
of the Employee-Defendants specifically denied being personally delegated any
duties to (1) implement certain design or furnace inspection criteria; (2) inspect
Georgia Gulf’s water deluge system; (3) revise or update Georgia Gulf’s
maintenance or operations procedures; or (4) inspect or conduct flow
measurements on Georgia Gulf’s fire monitors.
Attempting to contradict this testimony, the Plaintiffs simply recite
excerpts from Georgia Gulf’s operating procedures, such as: “[t]he Shift
Supervisor and/or Sr. Technician have the authority to direct the activities
necessary to secure the unit following an emergency shutdown with the Shift
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No. 08-30787
Supervisor maintaining overall authority . . . .” These procedures do not
mention any Employee-Defendant by name. The Plaintiffs repeat allegations
from their complaints in an effort to prove that these Employee-Defendants were
personally delegated duties by Georgia Gulf. We agree with the magistrate
judge’s observation that the Plaintiffs “have parsed employee job descriptions
into discrete elements, hoping to lay a veneer of specificity over what are, in
essence, generalized claims that the [E]mployee-[D]efendants failed to prevent
the incident.” These general and unsupported allegations are similar to those
we disqualified in Guillory.
The Plaintiffs have failed to proffer competent summary judgment-type
evidence that any of the Employee-Defendants breached a personal duty that
caused the fire and subsequent chemical emissions. The Plaintiffs have failed
to identify the “negligent, grossly negligent, and intentional acts” that allegedly
caused the Plaintiffs’ injuries. The self-serving testimony of the Employee-
Defendants is precisely the type of evidence that we relied on in Guillory. 434
F.3d at 313. The Employee-Defendants did not have direct responsibility for
maintaining or inspecting the tubes inside the furnace, which were activities
performed by an independent contractor. Furthermore, the Employee-
Defendants did not have prior knowledge that the furnace’s components were in
need of repair or that the attempted startup posed a risk of harm.5 Nor is there
any evidence that the Employee-Defendants contributed to this accident by
5
Georgia Gulf argues that Canter does not allow the imposition of personal liability on
managerial-level employees unless those employees have actual knowledge of an impending
risk of harm. In response, the Plaintiffs cite to Canter’s third element, which imposes liability
when the breach “results from not acting upon actual knowledge of the risk to others as well
as from a lack of ordinary care in discovering and avoiding such risk of harm which has
resulted from the breach of the duty.” 283 So. 2d at 721. The Court need not resolve this
dispute because there is no evidence that the Employee-Defendants in this case knew or
should have known that the tubes in the furnace might fail.
13
No. 08-30787
negligently delegating maintenance or operational duties to unqualified
subordinates.
Assuming arguendo that Georgia Gulf had delegated individual duties to
the Employee-Defendants, the evidence is insufficient to establish that they
actually breached such duties. In each of their depositions, the
Defendant-Employees specifically denied personal knowledge that (1) any tube
in the furnace had ruptured or was going to rupture; (2) the furnace was not safe
to start up; or (3) the water deluge system posed a risk of harm or was in need
of repair. Canter simply does not impose individual employee liability under
these circumstances. See, e.g., Manning v. United Med. Corp. of New Orleans,
902 So. 2d 406, 411-12 (La. Ct. App. 2005) (individual defendant hospital officers
and directors not personally liable under Canter for a patient’s injury where the
record revealed they had no personal knowledge regarding a negligent physician
or his medical work history).
Vicarious liability is not a revolving door. In certain situations, an
employer may be held liable for the negligent acts of its employees, see L A. C IV.
C ODE A NN. ART. 2320 (1997), but Canter does not attach liability to a managerial
employee absent breach of a duty personally owed by the employee to third
parties. See Canter, 283 So. 2d at 720. The evidence has not established that
these Employee-Defendants owed or breached any such duties. 6 The district
6
The Plaintiffs attempt to impose liability under Canter by arguing that Butterworth
had actual knowledge of post-incident chemical emissions from the ruptured furnace.
Butterworth testified that these were not reportable emissions, and he nevertheless reported
them to his shift relief and Operations Manager. The Plaintiffs have not proffered evidence
indicating that Butterworth violated any personal duty in handling this matter. The Plaintiffs
also argue that Butterworth and Little failed to inform the state police of all the toxic
chemicals that were emitted during the fire, but they do not rebut Jakel’s testimony that this
information was provided on the Material Safety Data Sheet (MSDS) that was given to the
state police by Georgia Gulf personnel on the night of the accident.
14
No. 08-30787
court correctly found no reasonable basis by which Plaintiffs could hold the
individual Defendant-Employees personally liable.7
III. Conclusion
The district court properly certified entry of its final order under Rule
54(b) because it demonstrated its unmistakable intent to enter partial final
judgment. Because the Plaintiffs have not identified any personal duty owed to
third parties by the Employee-Defendants or a breach thereof, the district court
correctly dismissed the Plaintiffs’ personal injury claims against them. Lastly,
the district court properly applied Louisiana law in determining that the
Plaintiffs had not sufficiently stated a claim. The Plaintiffs have not established
a reasonable basis for recovery against the Employee-Defendants under Canter.
Thus, we affirm the district court’s ruling that they were improperly joined.
AFFIRMED; MOTION TO DISMISS DENIED
7
The Plaintiffs argue that the district court erroneously relied on the negligence
doctrine of res ipsa loquitur in making its ruling. Res ipsa loquitur assists a plaintiff in
presenting a prima facie case of negligence when direct evidence of breach is not available. See
Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So. 2d 654, 665 (La. 1989). In contrast,
direct evidence of delegation and breach is a crucial factor in attaching Canter liability. The
Plaintiffs reference the submission of over 2,000 pages of documents from Georgia Gulf’s own
operating procedure manuals, yet none of those documents identify any personally delegated
duties. Rather, they illustrate general administrative responsibilities associated with the
Employee-Defendants’ job functions. Though the district court did not reference Canter by
name, it clearly acknowledged that delegation and breach of a personal duty is required before
attaching employee liability under Canter. Because the Plaintiffs’ evidence failed to
demonstrate delegation or breach, the district court merely analogized the Plaintiffs’ argument
to that of res ipsa loquitur, which does not apply in the Canter context. This analogy does not
amount to an improper application of Louisiana negligence law.
15