Elizаbeth SEWELL, wife of; William Sewell; James Fenner; Beth Duessing, wife of; George Duessing; et. al. v. SEWERAGE AND WATER BOARD OF NEW ORLEANS; Leon Greenblatt v. Sewerage and Water Board of New Orleans; Anne Lowenburg; Judith Lowenburg, wife of/and; Tom Lowenburg; Sarah Lowman; Jack Stolier; William B. Taylor, III, M.D.; Barbara West; Nanette Colomb; Anа Kurt, Wife of; Charlotte Link, Wife of; Parke Ellis; Jerry Osborne; Nancy Ellis, Wife of; Mark Kurt; Robert Link; Josephine S. Brown, M.D.; Laurie McDiarmid, Wife of; Ross McDiarmid; Mark Hamrick v. Sewerage and Water Board of New Orleans; Ariyan, Incorporated, doing business as Discount Corner v. Sewerage and Water Board of New Orleans; American Insurance Company v. Sewerage and Water Board of New Orleans; K & B Louisiana Corporation, doing business as Rite Aid Corporation v. Sewerage and Water Board of New Orleans; M. Langenstein & Sons, Incorporated; Prytaniа Liquor Store, Incorporated; West Prytania, Incorporated, doing business as Prytania Mail Service; Barbara H. West; Fine Arts Management, L.L.C., doing business as Prytania Theatre; Pascal‘s Manale Restaurant, Incorporated; Superior Seafood & Oyster Bar, L.L.C.; Superior Bar & Grill, Incorporated; Fresh Market, Incorporated; British Antiques, L.L.C.; Bennett Powell; Magic Box, Limited; Dat Dog Enterprises, L.L.C.; Dat Dog Properties, L.L.C. v. Sewerage and Water Board of New Orleans; Elizabeth Casey; Thomas Casey v. Sewerage and Water Board of New Orleans
No. 17-30089
United States Court of Appeals, Fifth Circuit
August 28, 2017
703 Fed. Appx. 288
Accordingly, Woodard‘s unopposed motion for summary disposition is GRANTED. The judgment of the district court is AFFIRMED.
Alexis Anne Butler, Whitaker Law Firm, A.P.C., New Orleans, LA, for Plaintiffs-Appellees Elizabeth Sewell, William Sewell, James Fenner, Bеth Duessing, George Duessing, Leon Greenblatt
Darleen M. Jacobs, Esq., Hunter Peter Harris, IV, Jacobs, Sarrat, Lovelace & Harris, New Orleans, LA, for Plaintiff-Appellee Leon Greenblatt
Randall Alan Smith, Sarah A. Lowman, Esq., Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiffs-Appellees Anne Lowenburg, Judith Lowenburg, Tom Lowenburg, Sarah Lowmаn, Jack Stolier, Barbara West, Josephine S. Brown, M. D., K & B Louisiana Corporation, M. Langenstein & Sons, Incorporated, West Prytania, Incorporated, Barbara H. West, Fine Arts Management, L.L.C., Superior Seafood & Oyster Bar, L.L.C., Superior Bar & Grill, Incorporated, Fresh Market, Incorporated, British Antiques, L.L.C., Bennett Powell, Magic Box, Limited, Dat Dog Enterprises, L.L.C., Dat Dog Properties, L.L.C., Jerry Osborne, Charlotte Link, Robert Link, Nancy Ellis, Parke Ellis, Ana Kurt, Mark Kurt, Nanette Colomb, Laurie McDiarmid, Ross McDiarmid, Mark Hamrick
Randall Alan Smith, Mary Nell Bennett, Laura Tiffany Hawkins, Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiff-Appellee Ariyan, Incorporated
James Thomas Busenlener, Matthiesen, Wickert & Lehrer, S.C., New Orleans, LA, for Plaintiff-Appellee American Insurance Company
Thomas Alcade Casey, Jr., Jones Walker, L.L.P., New Orleans, LA, for Plaintiffs-Appellees Elizabeth Casey, Thomas Casey
Michael Ethan Botnick, Esq., Arthur Gregory Grimsal, James Douglas Rhorer, Esq., Alex Benjamin Rothenberg, Gordon,
Michael Robert Carson Riess, Esq., Kingsmill Riess, L.L.C., New Orleans, LA, for Third Party Defendant-Appellee Boh Brothers Cоnstruction Company, L.L.C.
Thomas Joseph Eppling, Esq., Craig W. Brewer, Sara Peters Scurlock, Staines & Eppling, A.P.L.C., Metairie, LA, for Third Party Defendant-Appellee Cajun Constructors, L.L.C.
John Elliott Unsworth, III, Esq., Law Offices of Sheryl Story, Metairie, LA, Third Party Defendant-Appellee B & K Construction Company, L.L.C.
Scott T. Winstead, Thompson, Coe, Cousins & Irons, L.L.P., New Orleans, LA, for Third Party Defendant-Appellee Lexington Insurance Company
George Davidson Fagan, Anton L. Hasenkamp, Esq., Leake & Andersson, L.L.P., New Orleans, LA, for Third Party Defendant-Appellee RSUI Indemnity Company
Wade A. Langlois, III, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Third Party Defendants-Appellees Arch Insurance Group, Barriere Construction Company, L.L.C.
Shannon Howard-Eldridge, MсCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, L.L.C., Covington, LA, for Third Party Defendant-Appellee American Guarantee & Liability Insurance Company
David Moragas, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Third Party Defendant-Appellee Michael James Remondet, Jr., Esq., Jeansonne & Remondet, L.L.C., Lafayette, LA, for Third Party Defendant-Appellee Bella Truck Service, Incorporated
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
This case arises out of the Southeast Louisiana (“SELA“) Drainage Project, a federally funded enterprise cosponsored by the Sewerage and Water Board of New Orleans (“SWB“) and the United States Army Corps оf Engineers (“Corps“). The SELA Project involves extensive construction at multiple sites in Southeast Louisiana and is intended to improve flood control and drainage in these areas. The instant case involves eight consolidated lawsuits implicating seven phases of the SELA Project in Uptown New Orleans, where the Plaintiffs own of homes and businesses. Each Plaintiff sued SWB alleging various forms of damage resulting from the construction. SWB then filed third-party claims against three contractors who were selected to construct SELA projеcts in Uptown New Orleans: B & K Construction Company, LLC; Boh Bros. Construction Company, LLC; and Cajun Constructors, LLC (collectively, the “Contractors“). The Contractors removed to federal court pursuant to the federal officer removal statute. See
In September 2016, the Contractors moved for summary judgment, raising government contractor immunity as a defense to all remaining claims. The district court heard oral argument on the Contrac
“We review a summary judgment de novo, ‘using the same standard as that employed by the district court under Rule 56.‘” In re Katrina Canal Breaches Litig., 620 F.3d 455, 459 (5th Cir. 2010) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000)). Summary judgment is appropriate “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Contractors hired by the federal government are shielded from liability subject to certain conditions. This defense is “derived from the government‘s immunity from suit where the performance of a discretionary function is at issue.” Kerstetter, 210 F.3d at 435 (citing Boyle v. United Techs. Corp., 487 U.S. 500, 511, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988)). To establish government contractor immunity, a contractor must meet the test set out by the U.S. Supreme Court in Boyle: “(1) the government must have approved ‘reasonably precise’ specifications; (2) the equipment must have conformed to these specifications; and (3) the supplier/contractor must have warned of those equipment dangers that were known to the supplier/contractor, but not to the government.” Id. at 512. Although this appeal is nominally about whethеr the district court erred in applying government contractor immunity, SWB‘s argument on appeal relates mainly to discovery. Specifically, SWB argues that its due process rights were violated by the brevity of the pre-trial discovery process, that the district court should have afforded it more time to conduct discovery pursuant to Rule 56(d), and that the district court‘s summary judgment ruling was premature in light of SWB‘s specific requests for further discovery.
The district court did not abuse its discretion in issuing or making its discovery rulings. This case was first removed to federal court on July 30, 2015. In January 2016, SWB declined to participate in a discovery conference with the Plaintiffs,
It аppears that the district court reasonably responded to SWB‘s discovery requests while also trying to move the case along and accommodate the numerous parties in the litigation. From the time the case was removed to federal court, SWB had fourteen months to conduct discovery relating to the Contractors’ government contractor immunity defense. The district court ultimately made its summary judgment ruling with the benefit of hundreds of pages of detailed designs and specifications produced by the Corps regаrding all of the SELA projects at issue, as well as the deposition testimony of John Fogarty, the Corps‘s resident engineer and administrative contracting officer. Even without addressing the Contractors’ arguments that SWB was dilatory in performing discovery, we find that the district court did nоt abuse its discretion in setting discovery deadlines, nor did it rule prematurely.
Regarding the substantive issue of government contractor immunity, SWB only meaningfully challenges summary judgment on the first Boyle prong. “The first Boyle step requires that the government approved reasonably precise specifications. That entails both the existence of reasonably precise specifications and the approval of those specifications by the government.” In re Katrina, 620 F.3d at 461. “The requirement that the specifications be precise meаns that the discretion over significant details and all critical design choices will be exercised by the government.” Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1481 (5th Cir. 1989). While the “government need not prepare the specifications to be considered to have approved them,” Kerstetter, 210 F.3d at 435, government aрproval requires more than a “rubber stamp“; the first Boyle prong requires “substantive review or evaluation” of the design specifications by the government, Trevino, 865 F.2d at 1480. The crux of the first prong is that the contractor cannot have been delegated all discretionary design dеcisions and reap the benefit of the immunity defense. See id. at 1480-81; In re Katrina, 620 F.3d at 465 (“The relevant inquiry ... is whether the Corps approved sufficiently precise specifications, such that it is evident that the government was the primary agent of decision over the compactiоn method.“).
The district court did not err in determining that the plans and specifications for each construction feature implicated by the plaintiffs’ claims were reasonably precise and approved by the government. According to the district court, the Corps “considered each offending feature and had in place specifications that effectively removed all critical design choices from the Contractors’ discretion.” The district court further determined that the Corps “meaningfully reviewed and approved the specifications prior to construction,” a process that “typically began with a years-long design period, during which design firms retained by the government developed hundreds of pages of plans and specifications.” And the Corps‘s involvement was such that the district court was convinced that the Corps “was the agent of decision on all critical features of the work.” We agree that the government‘s level of participation and the specificity of the plans satisfies the first Boyle рrong. SWB argues that the specifications lacked detail regarding the composition of materials on
Lastly, “a fedеral district court has discretion to remand a properly removed case to state court when all federal-law claims have been eliminated and only pendent state-law claims remain.” Jones v. Roadway Express, Inc., 936 F.2d 789, 792 (5th Cir. 1991). The district court thoughtfully expressed its reasoning for remanding the case, and the decision to remand was not an abuse of discretion.
We AFFIRM.