REVISED MARCH 26, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2010
No. 08-30914
Charles R. Fulbruge III
Clerk
KEVIN WILSON, Individually and on behalf of Ashunti Fobb,
Individually and on behalf of Ashily Wilson; PEGGY RENAE WILSON
Plaintiffs-Appellants
v.
BRUKS-KLOCKNER INC; BRUNETTE INDUSTRIES, INC; K H 2 A
ENGINEERING INC
Defendants-Appellees
Appeal from the United States District Court for the
Western District of Louisiana, Alexandria
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
WIENER, Circuit Judge.
Plaintiffs-Appellants (1) Kevin Wilson, individually and on behalf of his
children, and (2) Kevin Wilson’s wife, Peggy Renae Wilson, (collectively
“Plaintiffs”), all Louisiana residents, appeal the district court’s order denying
their motion for leave to amend their complaint that had been filed first in a
state court of Louisiana against non-resident defendants and was then removed
by the defendants to federal court on the basis of diversity of citizenship.
Plaintiffs’ motion to amend sought to add a non-diverse defendant, Reynolds
No. 08-30914
Industrial Contractors, Inc. (“Reynolds”), in place of a voluntarily dismissed
diverse defendant, Pierce Construction Company (“Pierce”). If allowed, that
amendment would have destroyed federal diversity jurisdiction. After
permitting limited discovery, the district court denied Plaintiffs’ motion to
amend, holding, on the basis of a Louisiana statute of peremption,1 that
Plaintiffs could assert no colorable claim against Reynolds and thus should be
denied leave to implead it at the cost of destroying subject matter jurisdiction.
After the court designated its order as a final judgment, Plaintiffs appealed. We
affirm.
I. FACTS AND PROCEEDINGS
Late in May 2006, Plaintiff-Appellant Kevin Wilson, an employee of
Martco Limited Partnership (“Martco”), was working inside a sheet metal
building at Martco’s Chopin, Louisiana plywood mill. His injury occurred when
he caught his foot in a ten-ton wood chipping machine (the “wood chipper”) that
had been installed during the course of constructing that building, which Martco
first occupied on February 15, 1996.
In May 2007, Plaintiffs brought the instant action in state court against
Martco (subsequently dismissed under Louisiana’s Workers Compensation
exclusivity provision) and four construction-trade defendants that Plaintiffs
alleged had participated in the 1996 construction of the building in which the
wood chipper was installed, namely, Bruks-Klockner, Inc. and V. K. Brunette,
Inc. as manufacturers of the wood chipper, KH2A as designer of the wood
chipper, and Pierce as installer of the wood chipper. As all four remaining
1
LA. REV. STAT. ANN. § 9:2772 (1996) (hereafter “9:2772”).
2
No. 08-30914
defendants were non-residents of Louisiana, the case was removed to federal
court.
When, during discovery following removal, Plaintiffs learned that Pierce
had not installed the wood chipper and that Reynolds had, Plaintiffs voluntarily
dismissed Pierce and filed their motion to implead the non-diverse Reynolds.
Attached to that motion was a proposed “PLAINTIFF’S (sic) FIRST AMENDED
COMPLAINT,” which contained allegations that Reynolds’s negligent acts which
contributed to the cause of Wilson’s injury included “(1) failure to properly install
the chipper and any associated equipment; (2) failure to safely install the
chipper and any associated equipment; (3) failure to warn about the dangers
inherent in the use of the chipper and any associated equipment; (4) failure to
pass on warnings about the chipper or any associated equipment; (5) any and all
other acts of negligence which may be proved at the trial on the merits.” These
were essentially identical to the allegations that Plaintiffs had originally made
against Pierce.2
The remaining defendants opposed that motion as constituting an
improper joinder because the addition of Reynolds as a defendant would destroy
diversity jurisdiction and lead to remand to state court. The diverse defendants
2
In their state court complaint, Plaintiffs had charged the other three diverse
defendants, Bruks-Klockner Inc., V. K. Brunette Inc., and KH2A, with “1. Failure to design
and manufacture a safe product; 2. failure to warn about the dangers inherent in the use of
their product; 3. failure to warn post-sale [of] a characteristic of their product that they knew
to cause harm; 4. failure to place a safe product into the stream of commerce; and 5. any and
all other acts of negligence which may be proved at the trial on the merit.” Against Pierce,
Plaintiffs had made no allegations regarding failures of design or manufacture but rather
failure to install the wood chipper properly and safely; but Plaintiffs had alleged the same
failure-to-warn and failure-to-pass-on-warnings against Pierce as they had alleged against the
other three construction-industry defendants and that they would now allege against Reynolds
in their proposed amended complaint.
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No. 08-30914
contended that Plaintiffs could assert no colorable claim against Reynolds
because its 1996 installation of the wood chipper during the course of
construction of Martco’s building had been completed more than ten years
before the 2007 filing of the instant action. Therefore, asserted the defendants,
Plaintiffs’ action against Reynolds is barred by peremption under 9:2772 because
it was not brought until well after the tenth anniversary of Martco’s 1996
occupancy.
Section 9:2772 is entitled “Peremptive period for actions involving
deficiencies in surveying, design, supervision, or construction of immovables or
improvements thereon.” The ten-year, 1996 version of 9:2772 that the district
court applied states, in pertinent part:
(A) No action, whether ex contractu, ex delicto, or otherwise,
including, but not limited to an action for failure to warn, to recover
on a contract or to recover damages shall be brought against any
person ... performing or furnishing the design ... or the construction
of an improvement to immovable property3
The district court determined that additional evidentiary submissions on
peremption were required before it could rule on the motion, so it authorized
further discovery. As the court had indicated that the issue of peremption, and
thus Plaintiffs’ motion to amend, turned on whether, under Louisiana law, the
wood chipper itself was either (1) an immovable or (2) an improvement to
immovable property, the parties filed, inter alia, competing expert opinions. The
experts focused on the court’s former alternative, i.e., whether the wood chipper
3
Id. (emphasis added). The final phrase of paragraph (A) of the five-year, 2006 version
reads “the construction of immovables, or improvement to immovable property.” As for any
distinction between the ten-year and five-year versions, the court and the parties appear to
agree that, if applicable to Reynolds, the variance in the statutes’ terms of years makes no
difference here; and none addresses the differences in the wording of the two versions.
4
No. 08-30914
was itself an immovable. The defendants’ witness noted that the wood chipper
was “permanently attached” to Martco’s sheet metal building by virtue of being
hardwired to electrical power and bolted to structural elements of that building
and could not “be removed without substantial damage to [itself] or to the
immovable to which [it is] attached,”4 thereby constituting a “component part”
of the building (which, under Louisiana law, is an immovable, i.e., immovable
property) and is itself therefore an immovable. The witnesses did not address
whether the wood chipper was an “improvement to immovable property”
pursuant to 9:2772.
When the district court ruled on the motion, it first noted that Reynolds,
the party sought to be impleaded, is subject only to permissive joinder under
Federal Rule of Civil Procedure 20 and that allowing joinder would destroy
diversity. Consequently, acknowledged the court, its exercise of discretion to
permit or deny joinder required it to conduct a balancing test pursuant to
Hensgens v. Deere & Co.,5 which instructs that in such cases, trial courts should
consider
4
LA. CIV. CODE ANN. art. 466 (1996). The court determined that the version of the
article that was in force in 1996 is the one under which the test of the wood chipper as a
component part of the factory building should be conducted. That version read:
Things permanently attached to a building or other construction, such as
plumbing, heating cooling, electrical or other installations, are its component
parts.
Things are considered permanently attached if they cannot be removed without
substantial damage to themselves or to the immovable to which they are
attached.
Id.
5
833 F.2d 1179 (5th Cir. 1987).
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No. 08-30914
a number of factors to balance the defendant’s interests in
maintaining the federal forum with the competing interests of not
having parallel lawsuits. For example, the court should consider [1]
the extent to which the purpose of the amendment is to defeat
federal jurisdiction, [2] whether the plaintiff has been dilatory in
asking for amendment, [3] whether plaintiff will be significantly
injured if amendment is not allowed, and [4] any other factors
bearing on the equities. The district court, with input from the
defendant, should then balance the equities and decide whether
amendment would be permitted. If it permits the amendment of the
non-diverse defendant, it must remand to the state court. If the
amendment is not allowed, the federal court maintains jurisdiction.6
When the district court addressed the Hensgens factors , it concluded that
(1) the remaining diverse defendants have a significant interest in remaining in
federal court, (2) Plaintiffs were not dilatory in seeking to add Reynolds as a
defendant, having only learned of Reynolds’s role in installing the wood chipper
through discovery conducted after removal, and (3) being unable to determine
the extent, if any, to which Plaintiffs’ primary purpose was to defeat federal
jurisdiction, the court would give Plaintiffs “the benefit of the doubt” that
defeating such jurisdiction was not their sole purpose in adding Reynolds as a
defendant. Therefore, deduced the district court, the determinative Hensgens
factor in the instant balancing exercise was whether Plaintiffs would be
significantly injured if they were not allowed to amend their complaint to add
Reynolds as a defendant. The court observed that if Plaintiffs had no reasonable
likelihood of success against Reynolds, they could not be significantly injured by
the denial of their motion to amend. Thus, concluded the court, Plaintiffs’
likelihood of success turned on whether their claims against Reynolds are time-
6
Id. at 1182 (footnote and citations omitted).
6
No. 08-30914
barred; specifically, whether their claims are perempted under 9:2772. In that
regard, the court stated that “the most important remaining issue in this case
is whether or not the chipper is, in fact, [1] an immovable or [2] an []
improvement to an immovable under Section 2772.”
In resolving that issue, however, the court effectively addressed only the
first of its proclaimed alternatives, i.e., whether the wood chipper was itself an
immovable — here, by virtue of its component-part status as a permanent
attachment to the building (itself immovable property) in which it is installed.
The court essentially ignored the alternative possibility, i.e., that Reynolds’s acts
in installing the wood chipper inside Martco’s building constituted “performing
or furnishing ... the construction of an improvement to immovable property” per
9:2772.
Ultimately, the court held that (1) pursuant to LCC art. 466, the wood
chipper is a component part of the subject factory building; (2) the entire factory
building, including its component parts, is an immovable; (3) as Plaintiffs
brought this action more than ten years after Martco occupied that immovable,
their claims against Reynolds are perempted under 9:2772; (4) Plaintiffs can
therefore assert no colorable claim against Reynolds and thus would suffer no
harm by the denial of their motion to amend, but that granting the motion to
allow the joinder of Reynolds would destroy diversity; ergo (5) Plaintiffs’ motion
to amend their complaint should be (and was) denied. This appeal followed.
II. STANDARD OF REVIEW
In general, we review a district court’s denial of leave to amend for abuse
of discretion.7 When a plaintiff seeks to add a non-diverse defendant whose
7
Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5th Cir. 2000).
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No. 08-30914
joinder would defeat federal jurisdiction, the district court must consider the
Hensgens factors.8 As a plaintiff will not be “significantly injured” by the denial
of a clearly meritless claim, it is within the district court’s discretion to deny the
amendment as futile if there is no reasonable basis to predict that the plaintiff
will be able to recover against the non-diverse, non-indispensable party sought
to be added as a defendant.9 When the district court’s sole reason for denying
such an amendment is futility, however, we must scrutinize that decision
somewhat more closely, applying a de novo standard of review similar to that
under which we review a dismissal under Rule 12(b)(6).10
III. LAW AND ANALYSIS
Under Louisiana law, “[p]eremption is a period of time fixed by law for the
existence of a right. Unless timely exercised, the right is extinguished upon the
expiration of the peremptive period.”11 Unlike the doctrine of prescription,
however, “[p]eremption may not be renounced, interrupted, or suspended.”12 The
8
See supra note 5 and accompanying text.
9
Id.
10
Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (citing
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996) (“There is no practical
difference, in terms of review, between a denial of a motion to amend based on futility and the
grant of a motion to dismiss for failure to state a claim.”)). Importantly, this is not a case in
which the district court concluded that Plaintiffs had sought to amend their complaint solely
to defeat federal jurisdiction or had unduly delayed in seeking the amendment. As both the
district court and the defendants acknowledge, Plaintiffs here timely sought to amend their
complaint to identify the correct installer of the wood chipper. The district court’s sole basis
for denying leave to amend was futility.
11
LA. CIV. CODE ANN. art. 3458 (2008).
12
LA. CIV. CODE ANN. art. 3461 (2008).
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No. 08-30914
district court applied the 1996 version of 9:2772,13 which provided for a ten-year
peremptory period barring any suits
whether ex contractu, ex delicto, or otherwise, including but not
limited to, an action for failure to warn, to recover on a contract or
to recover damages ... against any person ... performing or
furnishing the design, planning, supervision, inspection, or
observation of construction or the construction of an improvement
to immovable property...14
As the parties agree that Reynolds’s alleged acts in installing the wood chipper
are the kinds of acts that are covered by the statute, the dispositive issue in this
appeal is whether Reynolds’s installing of the wood chipper in the metal building
constituted “the construction of an improvement to immovable property.”
Neither 9:2772 nor the Louisiana Civil Code defines the term
“improvement.” Nevertheless, proceeding on the assumption that the statute
applies only to immovables and their component parts, the district court focused
its analysis exclusively on whether the wood chipper is a “component part” of the
factory building. After accepting limited discovery on the issue of peremption,
the court concluded that the wood chipper is a component part of the building,
as removing it would substantially damage the sheet metal building to which it
is attached. Although we disagree with the district court’s apparent assumption
13
The parties disagree over which version of the statute the district court should have
applied: the ten-year version that was in effect when Martco took possession of the wood
chipper, or the five-year, amended version that was in place when Wilson was injured. For
purposes of this appeal, however, we need not answer that question, as Plaintiffs did not file
suit until more than ten years had passed since Martco took possession of the plywood factory.
As we conclude that Plaintiffs’ claims would be perempted under even the ten-year version of
the statute, we need not determine whether the more restrictive five-year version of the
statute applies.
14
LA. REV. STAT. ANN. § 9:2772 (1996).
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No. 08-30914
that 9:2772 applies only to immovables — and might well question whether the
evidence was sufficient to show that the wood chipper is a component part of the
factory — we are satisfied that the wood chipper undeniably is an improvement
to the building and thus an “improvement to immovable property” within the
intendment of 9:2772.
We begin our analysis by noting that, under the Louisiana Civil Code, the
sources of law in Louisiana “are legislation and custom.”15 “In Louisiana, as in
other civil law jurisdictions, legislation is superior to any other source of law.”16
“When a law is clear and unambiguous and its application does not lead to
absurd consequences, the law shall be applied as written and no further
interpretation may be made in search of the intent of the legislature.”17 In
interpreting a statute that contains an ambiguous or undefined term, however,
“the court must give the words of [the] law their generally prevailing meaning.”18
“When the words of a law are ambiguous, their meaning must be sought by
examining the context in which they occur and the text of the law as a whole.”19
Under Louisiana law, “[t]he starting point in interpreting any statute is
the language of the statute itself.”20 By its plain terms, 9:2772 applies to
15
LA. CIV. CODE ANN. art. 1 (2008).
16
LA. CIV. CODE ANN. art. 1, Revision Comments (c) (2008).
17
LA. CIV. CODE ANN. art. 9 (2008).
18
Cleco Evangeline, LLC v. La. Tax Comm’n, 2001-2162, p. 5 (La. 4/3/02); 813 So. 2d
351, 354; see LA. CIV. CODE ANN. art. 11 (2008) (“The words of a law must be given their
generally prevailing meaning.”).
19
LA. CIV. CODE ANN. art. 12 (2008).
20
Hopkins v. Howard, 2005-0732, p. 8 (La. App. 4 Cir. 4/5/06); 930 So. 2d 999, 1005.
10
No. 08-30914
“improvements to immovable property.” Although, as noted, neither the statute
itself nor the Louisiana Civil Code defines the term “improvement,” several
courts, including the district court in the instant case, have interpreted the
peremption statute — unduly narrowly, we conclude — as applying only to
immovables.21 These courts appear to have proceeded on the assumption that
the term “improvements” refers only to “component parts.” Other courts,
however, have rejected this interpretation as inconsistent with the plain
statutory language of 9:2772. For example, in Hebert v. Rapides Parish Police
Jury, a state appellate court considered whether claims against the designer of
a bridge were perempted under the statute.22 As in the instant case, the primary
issue before the court in Hebert was whether the bridge constituted an
“improvement to immovable property.”23 Although the court concluded that the
bridge was an improvement to immovable property, viz., to the tract of land on
which it was constructed, the court specifically declined to address whether the
bridge was a “component part” of the land, explaining that the latter inquiry was
immaterial to its analysis.24 As the Hebert court stated, “[i]t is not necessary to
determine whether the bridge is in fact a movable, or has become a component
21
See, e.g., Exxon Corp. v. Foster Wheeler Corp., 2000-2093, p. 3 (La. App. 1 Cir.
12/28/01); 805 So. 2d 432, 434 (explaining that section 9:2772 “applies only to immovables”).
22
02-62, pp. 2-4 (La. App. 3 Cir. 6/5/02); 819 So. 2d 470, 471.
23
Id. at pp. 3-4; 819 So. 2d at 472.
24
Id.
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No. 08-30914
part of the land, to determine whether we find the bridge to be an improvement
to the immovable, i.e., the tract of land upon which it is situated.”25
Nothing in the plain language of 9:2772 requires that the item itself be an
immovable, either in and of itself or by virtue of being a component part of an
immovable; rather, the plain language of the statute requires only that the item
be an “improvement to immovable property.” If the Louisiana Legislature had
intended for the statute to apply so narrowly, i.e., only to immovables and their
component parts, the Legislature easily could have used the phrase “component
parts of immovables” rather than “improvements to immovable property.”
Importantly, it did not. It is significant, then, that although the Louisiana Civil
Code and its ancillary statutes make numerous references to “component parts,”
9:2772 includes no such reference.26
25
Id. at p. 4; 819 So. 2d at 472. Although the court in Hebert concluded that “[r]oads
and bridges built across a tract of land are improvements to that land,” the court apparently
saw no need to determine the definition of the term “improvement” and did not do so. Id. at
p. 3; 819 So. 2d at 472.
26
See, e.g., LA. CIV. CODE ANN. art. 465 (2008) (“Things incorporated into a tract of
land, a building, or other construction, so as to become an integral part of it, such as building
materials, are its component parts.”) (emphasis added); LA. CIV. CODE ANN. art. 466 (2008)
(“Things permanently attached to a building or other construction are its component parts.”)
(emphasis added); LA. CIV. CODE ANN. art. 467 (2008) (providing that an “owner of an
immovable may declare that machinery, appliances, and equipment owned by him and placed
on the immovable ... for its service and improvement are deemed to be its component parts” by
filing “for registry in the conveyance records of the parish in which the immovable is located”)
(emphasis added); LA. REV. STAT. ANN. § 9:1122.105 (2008) (“The condominium declaration
shall contain or provide for ... [t]he undivided shares, stated as percentages or fractions, in the
common elements which are a component part of each of the units.”) (emphasis added); LA.
REV. STAT. ANN. § 9:2800.53(3) (2008) (defining “product” as “a corporeal movable that is
manufactured for placement into trade or commerce, including a product that forms a
component part of ... another product or an immovable.”) (emphasis added); LA REV. STAT. ANN.
§ 9:3304(A) (2008) (“This Chapter shall, however, continue to apply to leases of movable
property which subsequently becomes a component part of an immovable....”) (emphasis
added); LA. REV. STAT. ANN. § 9:4808(a) (2008) (“A work is a single continuous project for the
12
No. 08-30914
In applying the law, we may neither ignore a legislature’s deliberate choice
of wording nor assume that the legislature intended to say something that it did
not say. Thus, mindful of the admonition of Louisiana’s legislature that
“legislation is superior to any other form of law,”27 we decline to read into the
statute a narrowing construction that is not clearly present in its plain language.
To determine whether Plaintiffs’ claims are perempted under 9:2772, therefore,
we must first determine the generally prevailing meaning of the term
“improvement.”
In interpreting undefined statutory terms in the Louisiana Civil Code and
its ancillary statutes, Louisiana courts commonly look to dictionary definitions
for guidance.28 For example, the Louisiana Supreme Court has described
dictionaries as “a valuable source” for determining the generally prevailing
meaning of undefined statutory terms.29 Other Louisiana courts have similarly
improvement, construction, erection, reconstruction, modification, repair, demolition, or other
physical change of an immovable or its component parts.”) (emphasis added); LA. REV. STAT.
ANN. § 9:5391 (2008) (“A mortgage of immovable property without further action attaches to
present and future component parts thereof and accessions thereto, without further description
and without the necessity of subsequently amending the mortgage agreement.”) (emphasis
added).
27
See LA. CIV. CODE ANN. art. 1, Revision Comments (c) (2008).
28
See, e.g., Hopkins v. Howard, 2005-0732, p. 8 (La. App. 4 Cir. 4/5/06); 930 So. 2d 999,
1005 (looking to the Black’s Law Dictionary definition of “affiliate” to determine whether the
undefined statutory term applied to parent corporations); Cleco Evangeline, LLC v. La. Tax
Comm’n, 2001-2162, p. 5 (La. 4/3/02); 813 So. 2d 351, 354 (looking to the Black’s Law
Dictionary definition of “consumer” to determine the word’s generally prevailing meaning);
McCall v. Cameron Offshore Boats, Inc., 93-787, p. 6 (La. App. 3 Cir. 3/9/94), 635 So. 2d 263,
267 (looking to Black’s Law Dictionary for a definition of the undefined statutory phrase
“affiliate company”).
29
Gregor v. Argenot Great Cent. Ins. Co., 2002-1138, p. 7 (La. 5/20/03), 851 So. 2d 959,
964.
13
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explained that “[d]ictionaries provide a useful starting point for determining
what statutory terms mean, at least in the abstract, by suggesting what the
legislature could have meant by using particular terms.”30
Black’s Law Dictionary — a traditional resource of Louisiana courts
endeavoring to interpret undefined statutory terms31 — defines “improvement”
as “[a]n addition to real property, whether permanent or not; esp., one that
increases its value or utility or that enhances its appearance.”32 Similarly, the
American Heritage Dictionary of the English Language defines “improvement”
as “[a] change or addition that improves.”33 And, although the Louisiana Civil
Code does not define “improvement,” it addresses “improvements” in several
contexts, e.g., owners in indivision,34 improvements made to community property
using separate funds,35 improvements made during the term of a usufruct,36
improvements made to separate property using community funds,37 and,
30
See, e.g., Hopkins v. Howard, 2005-0732, p. 8 (La. App. 4 Cir. 4/5/06); 930 So. 2d 999,
1005 (quoting 2A Norman Singer, Statutes and Statutory Construction § 47:28 (6th ed. 2000)).
31
See, e.g., cases cited supra note 28.
32
Black’s Law Dictionary (8th ed. 2008) (emphasis added). It is significant that the
definition provides that an item may be an “improvement” “whether permanent or not.” Id.
Compare, for example, the definition of “improvement” to the definition of “fixture”: “Personal
property that is attached to land or a building and that is regarded as an irremovable part of
the real property, such as a fireplace built into a home.” Id. (emphasis added).
33
American Heritage Dictionary of the English Language (4th ed. 2000).
34
LA. CIV. CODE ANN. art. 804 (2008).
35
LA. CIV. CODE ANN. art. 2367 (2008).
36
LA. CIV. CODE ANN. arts. 558, 601, 602, 606 (2008).
37
LA. CIV. CODE ANN. art. 2366 (2008).
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No. 08-30914
extensively, in connection with ownership of improvements.38 In virtually every
instance, the Louisiana Civil Code employs the undefined term “improvement”
in its dictionary or conversational sense, and must be read as including an
addition not just to raw land but to buildings and structures constructed on the
land.
This interpretation is consistent with our holding in Moll v. Brown & Root,
Inc., in which we concluded that claims against the designer of an exterior
muffler attached to a seven-story structure were perempted under 9:2772.39 In
Moll, we began our analysis by acknowledging, as we do today, that the term
“improvement” is undefined in both 9:2772 and the Louisiana Civil Code.40
Proceeding to interpret “improvement” in light of other Code provisions and
ancillary statutes that use the term, we concluded — unlike the district court
here — that the muffler’s status as a component part was immaterial to the
question whether 9:2772 applied.41 Instead, we held that the plaintiffs’ claims
were perempted under 9:2772 because the large, man-made structure containing
the muffler — and not the muffler itself — was permanently attached to the
tract of land (immovable property) on which the structure was situated.42
It is equally unnecessary for us to consider here whether the wood chipper
has become a component part of the plywood factory to determine that the wood
chipper is an improvement to immovable property for purposes of 9:2772. As the
38
LA. CIV. CODE ANN. art. 493 (2008).
39
218 F.3d 472, 476 (5th Cir. 2000).
40
Id. at 475.
41
Id. at 475-76.
42
Id. at 476.
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No. 08-30914
parties do not dispute that the factory building itself is an immovable (and likely
an improvement to the land on which it is situated), we are satisfied that the
ten-ton wood chipper, hardwired as it is into the factory’s electrical system and
bolted to steel I-beams in the metal building, is an improvement to the
immovable factory building. We therefore conclude that Plaintiffs’ claims
against Reynolds are perempted under 9:2772. Albeit for a different reason,
then, we agree with the district court’s ruling that Plaintiffs cannot assert a
colorable claim against Reynolds.43
Plaintiffs also contend that the district court abused its discretion by
permitting limited discovery into the issue of peremption in the first place. We
disagree. To determine whether Plaintiffs’ proposed amendment was a guise for
forum manipulation or would undermine the defendants’ interest in remaining
in federal court, the district court had discretion to permit limited discovery into
“discrete and undisputed facts” that had been omitted from the complaint and
that might preclude recovery against the in-state defendant, e.g., specific
characteristics of the wood chipper that might aid the district court in
determining whether that machine is an improvement to immovable property.44
Under a different set of facts, we might question whether the district court
exceeded its authority when it concluded that the testimony of the defendants’
witness was “more persuasive” as to “the most contested fact,” viz., whether
removing the wood chipper would have substantially damaged the sheet metal
43
In reaching this conclusion, we express no opinion whatsoever as to the applicability
of section 9:2772 to Plaintiffs’ remaining claims.
44
See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573-74 (5th Cir. 2004) (emphasis
added). As we explained in Smallwood, however, such an inquiry must be kept on a “tight
judicial tether” and “should not entail substantial hearings.” Id.
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No. 08-30914
building in which it is housed. We need not answer that question here, though,
as the wood chipper’s status as a component part is immaterial to our holding.45
IV. CONCLUSION
We hold that the district court did not abuse its discretion by denying as
futile Plaintiffs’ motion for leave to amend, as there is no reasonable basis to
predict that Plaintiffs can recover on their perempted claims against Reynolds.
Accordingly, the ruling of the district court is AFFIRMED, and the case is
REMANDED for further proceedings consistent with this opinion.
45
We also question the appropriateness of the district court’s statement that “[e]ven
if peremption were not an issue, ... the plaintiffs have presented no evidence whatsoever that
they would have a realistic chance of recovery against Reynolds.” This alternative basis for
the court’s holding is especially troublesome given that (1) Reynolds was not even formally a
defendant at that time, and (2) the district court had authorized only limited discovery into the
issue of peremption, not liability. Again, though, we need not address this issue on appeal, as
the district court’s statement appears to be dicta and is immaterial to our conclusion here.
17