Case Information

MARSH INVESTMENT CORPORATION, Plaintiff-Appellee, v. John LANGFORD, Defendant. PONTCHARTRAIN STATE BANK, Defendant-Appellant, v. William M. JUSTICE, Clerk of Court, Etc., et al., Defendants-Appellees.

No. 80-3608.

United States Court of Appeals, Fifth Circuit. Unit A

Aug. 6, 1981.

652 F.2d 583

ery by the court can be inferred from the dissent's resort to that theory as the proper response to the facts of that case. 390 So.2d at 1269-70.6

In its assertion that imposition of article 2317 liability on electric utilities is an accepted doctrine of Louisiana law, plaintiffs point to two recent court of appeal cases dealing with electrocution injury or death. One of these, Kent v. Gulf States Utilities Co., 398 So.2d 560 (La.App.1980), writ granted, 399 So.2d 585, was decided before the supreme court's Simon opinion. The second, Hebert v. Gulf States Utilities Co., 395 So.2d 832 (La.App.1981), followed the supreme court pronouncement. Neither of the cases holds what plaintiffs would have us hold: that electric utilities are strictly liable for contacts with power lines and that it is error to fail to submit that ground of liability to the jury for its consideration. In both Kent and Hebert the state trial judges did include an article 2317 charge to the juries; the court of appeal decisions do not endorse or accept that charge as mandatory or even as correct. Rather, the opinions take the instructions and consequent verdicts as given and then proceed to find that plaintiffs' "fault" would bar recovery for defendants' negligence or strict liability.

Plaintiffs' requested instructions are not statements of current Louisiana tort law. Litigants whose success depends on securing substantive innovations in state law must address their arguments for them to state courts; such departures are not for us. Rhynes v. Branick Manufacturing Corp., 629 F.2d 409 (5th Cir.1980). For the reasons discussed above, we find the trial court's rejection of the strict liability jury instruction correct. The judgment below is AFFIRMED.

Charles Clark, Circuit Judge, filed specially concurring opinion.

Robert C. Lowe, Annabelle H. Walker, Max Nathan, Jr., New Orleans, La., for defendant-appellant.

Steeg & O'Connor, Robert M. Steeg, Moise S. Steeg, Jr., New Orleans, La., for Marsh Inv. Corp.

Matt J. Farley, New Orleans, La., for Underwriters.

Before CHARLES CLARK, TATE and SAM D. JOHNSON, Circuit Judges.

PER CURIAM:

The summary judgment in favor of the Marsh Investment Corporation is AFFIRMED on the basis of the district court's memorandum opinion, 490 F.Supp. 1320, entered June 3, 1980, United States District Court, Eastern District of Louisiana, Civil Action No. 79-2020, Section "E".

The district court correctly concluded that the Pontchartrain State Bank's third-party demand against the underwriters was a "separate and independent" cause of action that was joined with non-removable actions, so that the entire case filed in state court was properly removed to federal court. 28 U.S.C. § 1441(c); Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir. 1980). We are of the further opinion that the district court did not abuse its discretion in not remanding the non-removal actions at the time remand was requested, for the reasons more fully stated in the district court's opinion of July 30, 1980. See Marsh Investment Corporation v. Langford, 494 F.Supp. 344 (E.D. La.1980).1 Nor can we find any abuse of discretion in the district court's grant of Rule 54(b) certification in the entry of the summary judgment. See Curtis-Wright Corporation v. General Electric Company, 446 U.S. 1, 9, 100 S.Ct. 1460, 1466-67, 64 L.Ed.2d 1 (1980).

Accordingly, we AFFIRM the district court judgment.

AFFIRMED.

CHARLES CLARK, Circuit Judge, specially concurring:

I concur in the panel's affirmance of the judgment of the district court and in all of the opinion except the second sentence of footnote 1. Since we are unanimous that it is unnecessary to pass upon the issue of whether this was a "final judgment" within the meaning of 28 U.S.C. § 1447(c), I do not.

Footnotes

6 In urging that strict liability was the proper measure for defendant's conduct, the dissent in Simon itself made clear that "Slemco's [the utility's] 'hot' line did not, in and of itself, pose an unreasonable risk of injury." 390 So.2d at 1270. That is basically plaintiffs' position here, however, that Louisiana Power & Light's "hot" power line was itself unreasonably dangerous.

1 We do not pass upon the timeliness of the motion for remand, since we find no abuse of discretion in denying the motion, if timely. Although a majority of the panel further agree with the additional conclusion of the district court that the final judgment on the summary judgment claim entered pursuant to Rule 54(b) was a "final judgment" within the meaning of 28 U.S.C. 1447(c)—so that the motion to remand as improvidently ruled was not timely, not being "before final judgment"—it is unnecessary to pass upon this issue when, in any event, the refusal to remand was proper.