ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court are two motions: (1) CenterPoint Energy Inc.'s motion for summary judgment on peremption and prescription; and (2) Associated Electric Cooperative, Inc.'s motion for summary judgment. For the reasons that follow, the motions are DENIED without prejudice.
This lawsuit arises from a widow's claim that her husband's exposure to asbestos while working for several companies over many years caused him to develop mesothelioma and, ultimately, his death.
Mr. Phillips died on August 4, 2011. Several days later Timothy Madden of King Krebs & Jurgens, PLLC, counsel for Ms. Phillips, by separate letters, notified CenterPoint Energy, Inc. and Associated Electric Cooperative, Inc. that Mr. Phillips died on August 4, 2011 and that his illness and death was caused by exposure to asbestos while he worked for, among other employers, CenterPoint Energy and AECI. On November 26, 2012 Carol Phillips (wife of Robert Lee Phillips) and the Estate of Robert Lee Phillips sued AECI; ABB Combustion Engineering, Inc.; CenterPoint Energy; Nebraska Public Power District; and Grand Island City in Louisiana state court. On April 2, 2013 Nebraska Public Power, with the other defendants' consent, removed the case to this Court, invoking the Court's diversity jurisdiction.
The plaintiffs allege that Mr. Phillips, who lived in St. John Parish, Louisiana before his death, was exposed to asbestos while he worked for each of the defendants. Mr. Phillips' employment time-line:
Plaintiffs allege that Mr. Phillips "worked with and/or was exposed to asbestos containing products while working at certain premises owned, operated or controlled by [each defendant]." Each defendant, the plaintiffs allege, "knew or should have known through industry and medical studies . . . of the health hazards inherent in the asbestos containing products they were using." Finally, the plaintiffs charge that the defendants "ignored or concealed such information" from Mr. Phillips, and as a result of his exposure, Mr. Phillips suffered from asbestos-related mesothelioma and other physical and mental injuries. The plaintiffs seek damages based on negligence, premises liability, and wrongful death and survival claim theories.
On April 30, 2013 Grand Island and Nebraska Public Power requested dismissal of the plaintiffs' claims for lack of personal jurisdiction and, alternatively, for failure to state a claim. The Court granted those motions for lack of personal jurisdiction, dismissing the plaintiffs' claims against those two defendants. On June 19, 2013 the Court denied AECI's motion for a more definite statement, but granted its request to dismiss the Estate of Robert Lee Phillips as a plaintiff because Louisiana law prohibits the decedent's estate from recovering for the pleaded claims.
CenterPoint Energy and AECI now seek summary relief, dismissing the remaining plaintiff's claims against them as time-barred.
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion.
CenterPoint Energy and AECI seek summary relief on the ground that the plaintiff's tort claims are time-barred by application of Louisiana's one-year prescriptive period for wrongful death actions and one-year peremptive period for survival actions; the defendants submit that Mr. Phillips died more than one year before Ms. Phillips filed this lawsuit in state court. Although the plaintiff concedes that her claims are time-barred if Louisiana law applies, she counters that the substantive law of Texas governs her claims against CenterPoint, and the substantive law of Missouri governs her claims against AECI, and she points out that if the statute of limitations applicable to her claim is derived from Texas or Missouri, her claims are timely because these states provide a two and three year statute of limitations, respectively; thus, she identifies a conflict between Louisiana, and Texas and Missouri law, and requests that the Court disregard Louisiana's one-year prescriptive and peremptive periods due to "compelling considerations of remedial justice."
In its reply papers, AECI contends that the plaintiff should be judicially estopped from arguing that Louisiana law is inapplicable to her claims because, during motion practice, the plaintiff has stated that she brought this lawsuit pursuant to Louisiana law; the plaintiff has argued against the application of another state's law; and that the plaintiff has conceded to this Court's application of Louisiana law in dismissing the Estate of Robert Phillips from the lawsuit. The plaintiff counters that she did not invoke any state's laws in her state court petition because counsel was cognizant of the choice-of-law issues presented by Mr. Phillips' employment history.
A plaintiff is not required to plead a choice-of-law issue when the case is filed, but she must raise it "in time for it to be properly considered."
Sitting in diversity, this Court applies the choice-of-law rules of the forum state to identify which state's substantive law applies.
AECI contends, by way of reply papers, that application of Louisiana's conflict of law and prescription principles compels a finding that the plaintiff's lawsuit is time-barred. AECI proffers no analysis as to which state's (or states') substantive law applies,
While it is true that most plaintiffs fail to satisfy the "compelling considerations of remedial justice" exception sufficient for courts to disregard Louisiana's prescriptive and peremptive provisions,
The summary judgment device best-serves the Court and the litigants when a movant identifies a claim on which summary relief is sought, and shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law; this gives the nonmovant an opportunity to point to record evidence demonstrating a genuine dispute as to a material fact. But when the predicate for granting judgment as a matter of law — indeed, the very law that applies — is first disputed by the nonmovant in her response, surprising the movant and forcing the movant to assert new arguments and submit new evidence by way of reply, the utility of the device has been patently undermined. Here, the defendants submitted and proved that, if Louisiana law applies, the plaintiff's claims are time-barred. But the plaintiff raises a serious choice-of-law issue that is, at best, awkward to resolve when raised by way of opposition memorandum and responded to, by only one movant, by way of reply.
Accordingly, IT IS ORDERED: that the defendants' motions for summary judgment are DENIED without prejudice.
The plaintiff urges the Court to disregard Louisiana's prescriptive and peremptive periods; in so urging, the plaintiff invokes the exception codified in article 3549(B)(1). It is Ms. Phillips' position that compelling considerations of remedial justice warrant the application of the longer limitations periods provided by Texas and Missouri, respectively.