                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                          F I L E D
                 UNITED STATES COURT OF APPEALS
                                                         November 30, 2005
                      FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 04-31211



     JOYCE T YOUNG; MALCOLM P WHITLOW, II; SANDRA MCCRAY;
     BILLY MOHABI; EDWARD FOREMAN; ET AL.
                                      Plaintiffs-Appellants,
                                v.
     EXXONMOBIL CORPORATION,
                                      Defendant-Appellee.

     JESSIE H JACKSON; ET AL.
                                       Plaintiffs-Appellants,
                                 v.
     EXXONMOBIL CORPORATION,
                                       Defendant-Appellee.

     HATTIE OKOYE; ET AL.
                                       Plaintiffs-Appellants,
                                 v.
     EXXONMOBIL CORPORATION,
                                       Defendant-Appellee.

     VERONICA POWELL; ET AL.
                                       Plaintiffs-Appellants,
                                 v.
     EXXONMOBIL CORPORATION,
                                       Defendant-Appellee.

     NIADIA BELL; ET AL.
                                       Plaintiffs-Appellants,
                                 v.
     EXXONMOBIL CORPORATION,
                                       Defendant-Appellee.



          Appeal from the United States District Court
        for the Middle District of Louisiana, Baton Rouge
                            3:00-MD-1


Before BENAVIDES, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*

      In this direct civil appeal, Plaintiffs-Appellants challenge

the district court’s granting of summary judgment on behalf of

Defendant-Appellee ExxonMobil Corporation.       For the reasons that

follow, we affirm.



                              I. Background

      This case is a consolidation of five class action suits

removed from state court.      The Appellants allege that on or about

November 22, 2000, they suffered a variety of personal injuries and

other losses due to a chemical release at an ExxonMobil plastics

plant in Baton Rouge, Louisiana.         The district court granted

summary judgment in favor of ExxonMobil on all claims.      The court

found that the Appellants failed to submit evidence showing injury,

causation, or breach of duty on the part of ExxonMobil.

      The Appellants concede summary judgment on most claims but

appeal the grant of summary judgment on their claims for “fear and

fright, emotional distress and mental anguish, discomfort and

inconvenience.” These claims fall under the umbrella of “emotional

distress.”1      The Appellants argue that the district court erred


      *
          Pursuant to 5TH CIR. 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 5TH CIR. R.
47.5.4.
      1
              The district court also grouped the claims this way, and
the       Appellants admitted that “fear and fright” is part of an

                                    2
when it held that a plaintiff cannot prevail on an emotional

distress claim under Louisiana law without proof of physical

injury.   As this case falls within federal diversity jurisdiction,

this Court must apply Louisiana law.        See Erie R. Co. v. Tompkins,

304 U.S. 64, 79–80 (1938).

                              II. Discussion

     This Court reviews a district court’s grant of a summary

judgment de novo, applying the same standards as the district

court. Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399 (5th

Cir. 1996).      The evidence should be viewed in the light most

favorable   to   the   nonmoving   party,   and   the   record   should   not

indicate a genuine issue as to any material fact.                  Am. Home

Assurance Co. v. United Space Alliance, 378 F.3d 482, 486 (5th Cir.

2004).

     A party opposing summary judgment cannot simply rest on the

pleadings but must provide competent evidence that creates a

genuine issue of material fact as to each and every element of the

cause of action.       Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994).       The nonmoving party must direct the court to



emotional   distress   claim.      The   Appellants   argued   that
“inconvenience” was a distinct claim, citing Elston v. Valley
Electric Membership Corp., 381 So. 2d 554, 556 (La. Ct. App. 1980),
and Farr v. Johnson, 308 So. 2d 884, 885–86 (La. Ct. App. 1975).
Both of these cases awarded “inconvenience” damages after the
plaintiffs proved property damage.      In the present case, the
Appellants offered no evidence of property damage and conceded
summary judgment on the claims that alleged property damage.

                                     3
specific evidence that shows it can prove to a reasonable jury that

it is entitled to a verdict in its favor.            Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986).          This is not satisfied by

“some metaphysical doubt as to the material facts,” “conclusory

allegations,” “unsubstantiated assertions,” or “only a scintilla of

evidence.”   Little, 37 F.3d at 1075 (internal citations omitted).

Any factual controversy will be resolved in the nonmovant’s favor

but   only   “when    both   parties     have   submitted    evidence      of

contradictory facts.” Olabisiomotosho v. City of Houston, 185 F.3d

521, 525 (5th Cir. 1999).

      After a thorough review of the record and the arguments of the

parties, we find that the Appellants fail to point to one piece of

evidence that proves their emotional distress claim.          Instead, the

Appellants fashion their arguments in a conclusory fashion based

solely on the pleadings.         The district court found that the

Appellants   failed   to   provide   evidence   on   each   element   of   an

emotional distress claim: duty, breach, injury, and causation.

Their burden remains unmet. No affidavit, deposition, document, or

other type of evidence shows that the Appellants even suffered any

type of distress or fear.2      Both parties must submit evidence of


      2
          The district court provided the Appellants opportunities
for discovery. The court granted summary judgment more than two
years after the case was removed to federal court and after a
magistrate imposed an order that defined specific questions the
Appellants were to answer. The Appellants failed to provide any
answers despite the magistrate’s warning that such a failure likely
would begin the summary judgment process.

                                     4
contradictory facts, Little, 37 F.3d at 1075, and in this case the

Appellants simply have failed to do so.

     In most circumstances, plaintiffs claiming emotional distress

in Louisiana must prove that they suffered physical injury. Moresi

v. State Dep’t of Wildlife & Fisheries, 567 So. 2d 1081, 1096 (La.

1990).   While Louisiana law allows for some exceptions to the

physical injury requirement, this Court need not determine if the

Appellants fit within those exceptions given the complete absence

of summary judgment proof of emotional distress.

                           V. CONCLUSION

     The Appellants failed to raise a genuine issue of material

fact, and therefore the district court properly granted summary

judgment to ExxonMobil.   For the foregoing reasons, we AFFIRM.




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