UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-31127

____________

CURTIS LAURENTS, ET AL

Plaintiffs

CURTIS LAURENTS; MICKEY SULLIVAN; RICHARD

LANDRENEAU; RICHARD PERRY; JOHN ACKERS; JOHN

CHADDICK; RONALD QUAR L ES; L T BARROW; R J

RICHARDS; M A TAYLOR; R G MARCANTEL; D J

V ICTORIAN; R C SCHEXNEIDER; L BELLARD; G W

BURCH; A V ARDOIN; W D JOHNSON; J R MCCOY; F

GUIDRY; M K MILLER; H R LOFASO; C D LAFARGUE;

J M LABOVE; R R CHALINE; A D HARTSTINE; M

FONTENOT; C J HARRIS; E BODIN; W H BRUNKHARDT;

T M CHAPMAN; E FAUL; M TRAHAN; D RICHARDSON; J

R SMITH; C T MOORE; J L SMITH; R C WILLIAMSON;

E BERRY; K W HEBERT; D L FRYE; W P MCCREADY; F

R ANTOINE; C RECHY; J S GUILLORY; J JOSEPH; B

D PHIL LIPS; J R COLEMAN; J ENGEL; ERNEST

WILEY; CARLTON BOUDREAUX; RICK DAVIS; IDA

REED; LAKE CHARLES METAL TRADES COUNCIL, on

behalf of Members Employed by Arcadian

Plaintiffs-Appellees,

versus

ARCADIAN CO RPORATION; ERNEST ELSBURY; DANA

BAHAM

Defendants - Appellants.

____________

No. 97-31147

____________-2- MICKEY SULLIVAN; ET AL

Plaintiffs

MICKEY SULLIVAN; CURTIS LAURENTS; RICHARD

LANDRENEAU; JOHN R AKERS; CARL BOUDREAUX;

MICHAEL TRAHAN; E FAUL; RICHARD PERRY; JOHN

CHADDICK; RONALD QUARLES; L T BARROW; R J

RICHARDS; M A TAYLOR; R G MARCANTEL; WILLIAM J

BRUNKHARDT; D J VICTORIAN; R C SCHEXNEIDER; L

BELLARD; G W BURCH; A V ARDOIN; W D JOHNSON; J

R MCCOY; F GUIDRY; M K MILLER; H R LOFASO; C D

LAFARGUE; J M LAB OVE; R R CHALINE; A D

HARTSTINE; M FONTENOT; C J HARRIS; E BODIN; W

H BRUNKHA RDT; T M CHAPMAN; D RICHARDSON; J R

SMITH; C T MOORE; J L SMITH; R C WILLIAMSON; E

BERRY; K W HEBERT; D L FRYE; W P MCCREADY; F R

ANTOINE; C RECHY; J S GUILLORY; J JO S EPH;

MILTON L TAYLOR; B D PHILLIPS; J R COLEMAN; J

ENGEL; ERNEST WILEY; RICK DAVIS; IDA REED;

LAKE CHARLES METAL TRADES COUNCIL, on behalf

of Members Employed by Arcadian; DAVID A BAHAM

Plaintiffs-Appellees,

versus

A RCADIAN CORPORATION; ERNEST ELSBURY; DA N A

BAHAM

Defendants - Appellants.

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No. 97-31166

____________

MICKEY SULLIVAN, ET AL

Plaintiffs

MICKEY SULLIVAN; CURTIS LAURENTS; RICHARD

LANDRENEAU; RICHARD PERRY; JOHN ACKERS; JOHN* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 T H C IR

. R.

47.5.4.

-3-

CHADDICK; RONALD QUARLES; L T BARROW; R J

RICHARDS; M A TAYLOR; R G MARCAN TEL; D J

VICTORIAN; WILLIAM J BRUNKHARDT; R C

SCHEXNEIDER; L BELLARD; G W BURCH; A V ARDOIN;

W D JOHNSON; J R MCCOY; F GUIDRY; M K MILLER;

H R LOFASO; C D LAFARGUE; J M LABOVE; R R

CHALINE; A D HARTSTINE; M FONTENOT; C J

HARRIS; E BODIN; W H BRUNKHARDT; T M CHAPMAN;

D RICHARDSON; J R SMITH; C T MOORE; J L SMITH;

R C WILLIAMSON; E BERRY; K W HEBERT; D L FRYE;

W P MCCREADY; F R ANTOINE; C RECHY; J S

GU ILLORY; J JOSEPH; MILTON L TAYLOR; B D

PHILLIPS; J R COLEMAN; J ENGEL; ERNEST WILEY;

CARLTON BOUDREAUX; RICK DAVIS; IDA REED; DAVID

A BAHAM; LAKE CHARLES METAL TRADES COUNCIL, on

behalf of Members Employed by Arcadian;

MICHAEL TRAHAN; E FAUL

Plaintiffs-Appellees,

versus

ARCADIAN CORPORATION; ERNES T ELSBURY; DANA

BAHAM

Defendants - Appellants.

Appeals from the United States District Court

For the Western District of Louisiana

(93-CV-1475)

August 11, 1998

Before DAVIS, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM: *1 The plaintiffs contend that they have set forth the

following state law claims: (1) strict liability for custody of the

defecti ve reactor; (2) absolute liability for engaging in an

ultrahazardous activ ity; (3) punitive damages for the reckless

handling of a toxic substance; (4 ) intentional infliction of

emotional distress; and (5) an intentional tort. Although

plaintiffs also brought an unfair t rade practices claim, counsel

for plaintiffs abandoned this claim at oral argument. The district

court did not specify which of these claims it was reman ding to

state court.

2 Counsel for plaintiffs conceded at oral argument that the

Union must be dismissed as a plaintiff.

3 There were also several personal injury class-action

suits brou ght against Arcadian as a result of the explosion.

Notably, none of these employees joined the personal injury suits.

-4- Arcadian Corporation and its officers (collectively,

“Arcadian”) appeal the district court’s order remand ing several

unspecified state law claims to state court. 1 We reverse and

render judgm ent in favor of Arcadian, dismissing the plaintiffs

claims as preempted by section 301 of the Labor Management

Relations Act (“LMRA”). See 29 U.S.C. § 185(a).

I.

This appeal arises out of three companion cases brought by the

Lake Charles Metal Trades Council (“the Union”) and fifty-five

employees of Arcadian (“the employees”) based on the explosion and

subs equent closing of Arcadian’s Lake Charles plant following a

reactor failure. 2 In their amended petitions, the employees and

the Union alleged numerous st ate and federal claims against

Arcadian. 3 The district court ultimately dismissed all of the

federal claims, and the employees do not challenge that dismissal-5-

here. Without specifically identifying the remaining claims, the

court then ordered that “the plaintiffs’ remaining state law claims

be remanded to state court.”

II.

O n appeal, Arcadian argues that the district court erred in

failing to dismiss the state-law claims as preempted by section 301

of the LMRA. We agree.

We have explained that “[a] state tort claim is preempted by

section 301 if ‘evaluation of the tort claim is inextricably

intertwined with consideration of the terms of the labor contract.”

Baker v. Farmers Elec. Co-Op , Inc. , 34 F.3d 274, 279 (5th Cir.

1994) (quoting Allis-C halmers Corp. v. Lueck , 471 U.S. 202, 212,

105 S. Ct. 1904, 1912, 85 L. Ed. 2d 206 (1985)). Here, the

plaintiffs have not alleged any physical or serious emotional

injuries. Instead, the employees’ claims stem from the closing of

the plant and their subsequent loss of employment. These injuries

relate directly to the collective bargaining agreement (“CBA”) and

the parties’ empl oyment contracts. Thus, we hold that the

employees’ state law claims are “inextricably intertwined” with the

terms of the parties’ collective bargaining agreement. S ee IBEW v.

Hechler

, 481 U.S. 851, 107 S . Ct. 2161, 95 L. Ed. 2d 791 (1987);

Baker

, 34 F. 3d at 279. The plaintiffs conceded as much in their

response to an interrogatory, stating that “[w]hen Arcadian

knowingly, willingly and intentionally allowed the reacto r to-6-

e xplode, it verified their intent to breach the collective

bargaining agreement with the Lake Charles Metal Trades Council.”

Accordingly, the plaintiffs’ claims are preempted by section 301 of

the LMRA and they should have been dismissed rather than remanded

by the district court.

The plaintiffs, however, assert that at least five employees

have claims that are not preempted by section 301 because these

employees have suffered physical or emotional injuries. In support

of this contention, the plaintiffs note that they responded to

Arcadian’s motion for summary judgment by producing evidence that

one employee ) ) Dennis Smith )) suffered physical injuries from t h e

explo sion, and that four employees ) ) Cleveland Harris, Mickey

Sullivan, Freddy Guidry, and Edward Faul )) suffered pre- explosion

anxiety and distress based on their knowledge of the leak and fear

that the plant would explode.

Although the plaintiffs assert that Dennis Smith’s claim for

an intentional tort and the remaining four plaintiffs’ claims for

the intentional infliction of emotional distress are not preempted,

they have failed to plead sufficiently these two intentional tort

claims in their petitions. With respect to the plaintiffs’

purported pleading of an intentional tort claim for physical

injuries, we note that the plaintiffs’ petitions, although not

models of clarity, set forth id entifiable claims in separate

paragraphs. Significantly, no paragraph within the petitions

references an intentional tort that caused physical injuries. More-7-

importantly for the purposes of notice pleading under Federal Rule

of Civil Procedure 8, nowhere in the petitions do the plaintiffs

claim that they suffered physical injuries. To the contrary, the

petitions refer only to emotional damages and injuries flowing from

the plant’s closing. This is consistent with the fact that there

was a separate state court tort action to recover traditional tort

damages flowing from the explosion and the fact that the plaintiffs

first contended that they had pleaded claims for an intentional

tort leading to physical injuries in response to Arcadian’s motion

for summary judgment. Thus, Dennis Smith’s intentional tort claim

for his physical injuries was not before the district court.

The intentional infliction of emotional distress claims made

by Cleveland Harris, Mickey Sullivan, Freddy Guidry, or Edward Faul

in response to Arcadian’s motion for summary judgment are also not

set forth i n the petitions. In Paragraph 26, which is one of the

two paragraphs in the petitions discussing emotional distress, the

plaintiffs allege that this dis tress flowed from Arcadian’s OSHA

violation, rather than the continuing operation of the reactor in

the face of a known leak. Likewise, in the first half of Paragraph

27, which is the other paragra ph in the petitions referencing

emotional distress damages, the plaintiffs claim that this distress

was caused, not by Arcadian, but by defendants Elsbury and Baham’s

“tortious interference” with th e CBA. This claim is clearly

preempted.

In the second half of Paragraph 27, the plaintiffs raise an-8-

additional blunderbuss claim against Elsbury and Baham, but fail to

aver specifically that they suffered any emotional distress as a

result of the failure of these two defendants “to stop production

when it was known that the reactor was leaking.” Instead, the

plaintiffs claim that Elsbury and Baham are liable for “all damages

as set forth herein.” Because we have construed the plaintiffs’

petitions as seeking damages from A rcadian for economic losses

flowing from the closing of the plant, this blanket reference to

“all damages” suggests that the plaintiffs are also seeking to

recover their economic da mages from these two individual

defendants. This interpretation of the petitions is bolstered by

the fact that the wrongful conduct attributed to Elsbury and Baham

in Paragraph 27 is alleged to have “led to the explosion at the

Arcadian plant,” which of course led to the closing of the plant

and the economic injuries for which the plaintiffs are seeking

redress. Thus, the intentional infliction of emotional distress

claims of these four plaintiffs were also not before the district

court.

In conclusion, our review of the petiti ons indicates that

there were no non-preempted state-law claims for the district court

to remand to state court. Accordingly, each suit should have been

dismissed in its entirety and we may render judgm ent in favor of

Arcadian.

III.

For the foregoing reasons, we REVERSE the district court’s-9-

decision to remand the plaintiffs’ state-law claims to state court

and RENDER judgment in favor of Arcadian.-10-

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:

While I agree that the sta te law claims of fifty of the

plaintiffs a re preempted by section 301 of the Labor Management

Relations Act, see 29 U.S.C. § 185(a), I w ould reach a different

result for the five plaintiffs who have presented some evidence of

physical or severe emotional injury related to the explosion )) the

intentional tort claim by plaintiff Dennis Smith, and the

intentional infliction of emotional distress claims by plaintiffs

Cleveland Harris, Mickey Sullivan, Freddy Guidry, and Edward Faul.

Contrary to the plaintiffs’ assertions, however, these five claims

have been pled against only the individual defendants, Ernest

Elsbury and Dana Baham. Accordingly, I would remand the five

plainti ffs’ tort claims against the individual defendants for a

determination by the district court as to whether such claims are

precluded by the related class action personal injury suits.