Case: 22-30570 Document: 00516699759 Page: 1 Date Filed: 04/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 4, 2023
No. 22-30570 Lyle W. Cayce
Clerk
David W. Acosta; Misty C. Acosta; Fabian Brimmer;
Geroy Brimmer; Gary T. Brock; Gwendolyn Brock;
Jennifer Brock; Jessica Campbell; Monica Campbell;
Brenda B. Champange; Michael Connerly; Catina
Dennis; Kevin Esler; Kim M. Esler; Meisha A. Fisher;
James Harvey; Cabrina Jefferson; Evelina Jefferson;
Robert Lusco; Wendell Octave, Sr.; Emile L. Perilloux,
Jr.; Shelia M. Stewart; Darren Vitrano,
Plaintiffs—Appellants,
versus
Denka Performance Elastomer, L.L.C.; E. I. Du Pont De
Nemours and Company; Dupont Performance
Elastomers, L.L.C., formerly known as DuPont Dow
Elastomers, L.L.C.; Department of Environmental
Quality State of Louisiana,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2323
Before Elrod, Ho, and Oldham, Circuit Judges.
Case: 22-30570 Document: 00516699759 Page: 2 Date Filed: 04/04/2023
No. 22-30570
Per Curiam:*
“In this toxic tort case, it’s déjà vu all over again.” Acosta v. Denka
Performance Elastomer, LLC, 2021 WL 493391, at *1 (E.D. La. Feb. 10, 2021).
This appeal involves the same defendants and virtually identical alleged
injuries as Butler v. Denka Performance Elastomer, LLC—another toxic tort
case that has been before the Fifth Circuit three times in the last three years.
Unsurprisingly, Plaintiffs’ claims in this case are deficient for the same
reason as those in Butler: Plaintiffs never allege a legally cognizable duty.
I.
We recently articulated the facts and posture of this case. See Acosta
v. Denka Performance Elastomer, LLC, 2022 WL 1091534 (5th Cir. Apr. 12,
2022). So we reprise them here only briefly.
In 2020, twenty-three residents of St. John the Baptist Parish,
Louisiana filed suit in Louisiana state court. Plaintiffs allege that neoprene
production at the Pontchartrain Works Facility (“PWF”) exposed them to
unsafe levels of chloroprene and other hazardous air pollutants. Plaintiffs
initially named a variety of defendants, but only two remain: (1) E. I. du Pont
de Nemours & Co. and DuPont Performance Elastomers, LLC (“DuPont”),
which owned and operated PWF from 1969 to 2015; and (2) Denka
Performance Elastomer, LLC (“Denka”), which purchased PWF from
DuPont in 2015.
Defendants timely removed to federal court. See 28 U.S.C. §§ 1332,
1441(b). The district court dismissed the claims against DuPont as time-
barred and dismissed those against Denka for failure to state a claim. Acosta,
2021 WL 493391. Plaintiffs appealed. While the appeal was pending, we
decided the first two appeals arising from Butler v. Denka Performance
Elastomer, LLC—a case filed against the same Defendants, alleging “nearly
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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identical claims involving chloroprene exposure from the PWF.” Acosta v.
Denka Performance Elastomer, LLC, 2022 WL 3214418, at *1 (E.D. La. Aug.
9, 2022). And in the first two Butler appeals, we held that almost all of
plaintiffs’ claims must be dismissed. See Butler v. Denka Performance
Elastomer, LLC, 806 F. App’x 271 (5th Cir. 2020) (Butler I) (per curiam);
Butler v. Denka Performance Elastomer, LLC, 16 F.4th 427 (5th Cir. 2021)
(Butler II) (reversing district court’s holding that claims against DuPont were
time-barred, but affirming dismissal of all claims against Denka for failure to
state a claim).
Accordingly, in the first Acosta appeal, we “VACATE[ED] in part and
REMAND[ED] to the district court to determine, in the first instance, the
effect of Butler [II] on the present case.” Acosta v. Denka Performance
Elastomer, LLC, 2022 WL 1091534, at *1 (5th Cir. Apr. 12, 2022). Because
Plaintiffs abandoned most of their claims by not addressing them in their
appellate briefing, we also clarified that the only remaining claims for the
district court to address were “Plaintiffs’ claims for: negligence in violation
of Louisiana Civil Code Articles 2315 and 2316; custodial liability in violation
of Louisiana Civil Code Articles 2317 and 2317.1; and injunctive relief.” Id.
at *4 n.3. After our decision in the first Acosta appeal, we decided the third
Butler appeal, affirming the dismissal of everything else the plaintiffs alleged.
See Butler v. E. I. DuPont de Nemours & Co., 2022 WL 5059893 (5th Cir. Oct.
4, 2022) (Butler III) (per curiam) (dismissing remainder of claims against
DuPont for failure to state a claim).
On remand, the district court dismissed all remaining claims for the
same reason articulated in Butler II and III: Plaintiffs failed to state a specific
standard of care under Louisiana law and thus failed to identify any legally
cognizable duty that DuPont or Denka breached. Acosta, 2022 WL 3214418.
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Plaintiffs appealed. Our jurisdiction is proper under 28 U.S.C. § 1291.
And we review de novo the district court’s grant of the motions to dismiss.
Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 510 (5th Cir. 2016).
II.
Of the sundry claims alleged in Plaintiffs’ complaint, three remain:
negligence, custodial liability, and injunctive relief. Acosta, 2022 WL
1091534, at *4 n.3. But as the district court correctly held, none survives
DuPont’s and Denka’s motions to dismiss. That is because all three claims
suffer from the same flaw that doomed the functionally identical allegations
in Butler. Namely, Louisiana law requires tort plaintiffs to assert that
defendants violated a specific legal duty, yet Plaintiffs only invoke generalized
notions of reasonableness.
Start with negligence. Just as in Butler, “[Plaintiffs] assert[] that
[Defendants] unreasonably emit[ted] dangerous chloroprene concentrations
in violation of Louisiana Civil Code Articles 2315 and 2316.” Butler II, 16
F.4th at 443. In relevant part, Article 2315 provides that “[e]very act
whatever of man that causes damage to another obliges him by whose fault it
happened to repair it.” La. Civ. Code art. 2315(A). And Article 2316 adds,
“[e]very person is responsible for the damage he occasions not merely by his
act, but by his negligence, his imprudence, or his want of skill.” Id. art. 2316.
Qualifying these general pronouncements of fault and liability, the
Supreme Court of Louisiana requires that tort plaintiffs prove “the
defendant had a duty to conform his conduct to a specific standard.” Lemann
v. Essen Lane Daiquiris, 923 So. 2d 627, 633 (La. 2006) (emphasis added). To
determine whether a plaintiff has alleged a sufficiently specific, legally
enforceable standard, we must ask “whether the plaintiff has any law
(statutory, jurisprudential, or arising from general principles of fault) to
support the claim that the defendant owed him a duty.” Id.; see also Bd. of
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Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., LLC, 850
F.3d 714, 726 (5th Cir. 2017) (explaining that the relevant duty must
“intend[] to protect this plaintiff from this type of harm arising in this manner”
(quoting Roberts v. Benoit, 605 So. 2d 1032, 1044–45 (La. 1991))).
Rather than identify a specific duty, Plaintiffs simply (re)assert a
generalized duty of “reasonable care” and challenge the district court’s
understanding of Louisiana law. See Acosta, 2022 WL 3214418, at *4–5 (“In
none of these many allegations of duty do Plaintiffs identify a particular state
or federal statute, state or federal rule, or even common-law standard of care
beyond the general standard of reasonableness.”). In Plaintiffs’ words:
“[C]ontrolling jurisprudence from the Louisiana Supreme Court contradicts
the district court’s holding that Appellants were required to assert a
‘specific’ standard of care in order to sufficiently allege a duty owed by Denka
and/or Dupont.”
Not so. In Butler II, we said in no uncertain terms that “[Plaintiffs’]
retreat to generalized grievances is unavailing. While Louisiana law does
impose a ‘universal duty’ on defendants in a negligence action to use
‘reasonable care,’ plaintiffs are still required to assert a ‘specific standard’ of
care.” Butler II, 16 F.4th at 444–45 (quoting Rando v. Anco Insulations, Inc.,
16 So. 3d 1065, 1086 (La. 2009)); see also Butler III, 2022 WL 5059893, at *2,
*4 (reaffirming that Articles 2315 and 2316 do not define a sufficiently
specific duty and thus cannot sustain Plaintiffs’ negligence claim). We even
addressed and distinguished the very cases that Plaintiffs’ counsel cites. See
Butler II, 16 F.4th at 445 n.25 (“Even the case Butler principally relies on
defines with specificity the relevant duty . . . . So too for each of the cases
Butler cites.”); Butler III, 2022 WL 5059893, at *2 (“Butler . . . points us
again to many of the very same cases (for the very same propositions) that we
already found wanting in our previous review.”). Because Plaintiffs fail to
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allege any standard of care beyond generalized notions of reasonableness,
Butler compels dismissal of their negligence claims.
Second, custodial (or “strict”) liability. Here, as in Butler, Plaintiffs
(re)assert that Defendants are and were “the owner[s] or custodian[s] of a
defective thing—the neoprene manufacturing equipment [and other related
components of the PWF]—in violation of Louisiana Civil Code Articles 2317
and 2317.1.” Butler II, 16 F.4th at 443. In relevant part, Article 2317 provides
that “[w]e are responsible, not only for the damage occasioned by our own
act, but for that which is caused by the act of persons for whom we are
answerable, or of the things which we have in our custody.” La. Civ.
Code art. 2317. And article 2317.1 adds that “[t]he owner or custodian of a
thing is answerable for damage occasioned by its ruin, vice, or defect, only
upon a showing that he knew or, in the exercise of reasonable care, should
have known of the ruin, vice, or defect which caused the damage, that the
damage could have been prevented by the exercise of reasonable care, and
that he failed to exercise such reasonable care.” Id. art. 2317.1.
“[Plaintiffs’] custodial liability claims against [Defendants] fail for the
same reason as [their] [negligence] claims against [Defendants]: a failure to
state a plausible duty and corresponding breach.” Butler II, 16 F.4th at 442
(citing Socorro v. City of New Orleans, 579 So. 2d 931, 937 (La. 1991)). Indeed,
we explained in Butler II (and reaffirmed in Butler III) that plaintiffs asserting
custodial/strict liability must plausibly allege a specific standard of care—just
as is required for ordinary negligence claims. Butler II, 16 F.4th at 443 (“[A]
claim for ‘strict’ liability requires that a duty of care was breached, just as a
negligence claim does.”); accord Butler III, 2022 WL 5059893, at *2; Tenn.
Gas, 850 F.3d at 726.
Instead of identifying a specific duty, Plaintiffs try to sidestep this
requirement. They argue that even if the current version of Article 2317
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requires a showing of some specific standard of care, the pre-1996 version
(allegedly applicable to DuPont) did not. That argument is also squarely
foreclosed. We have held that the only meaningful difference between pre-
and post-1996 custodial/strict liability claims is “that recovery on a theory of
strict liability before 1996 did not require that the defendant had knowledge
of its breach of duty.” Tenn. Gas, 850 F.3d at 729; see also Oster v. Dep’t of
Transp. & Dev., 582 So. 2d 1285, 1288 (La. 1991); Dupree v. City of New
Orleans, 765 So. 2d 1002, 1007 n.5 (La. 2000). Accordingly, plaintiffs
asserting pre-1996 custodial/strict liability claims must also allege a specific
standard of care. Thus, “by failing to allege any specific duty that has been
violated, [Plaintiffs] fail[] to state a plausible [custodial/strict liability]
claim.” Butler II, 16 F.4th at 445 n.26.
Finally, injunctive relief. Plaintiffs initially sought an injunction
“barring Denka from causing or allowing unreasonably dangerous emissions,
from the PWF, of chloroprene or other [hazardous air pollutants].” Plaintiffs
abandoned this claim on appeal, however, by failing to mention it in their
brief. Cantú v. Moody, 933 F.3d 414, 418–19 (5th Cir. 2019) (claims not briefed
are forfeited).
AFFIRMED.
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