                                                               F I L E D
                                                         United States Court of Appeals
                                                                  Fifth Circuit
                    UNITED STATES COURT OF APPEALS              JUL 19 2002
                         FOR THE FIFTH CIRCUIT
                         _____________________
                                                             Charles R. Fulbruge
                                                                    Clerk


                              No. 02-30068
                            Summary Calendar
                         _____________________

               ROCHELLE MUSACCHIA, individually and on
              behalf of the estate of Patrick Musacchia,

                                                  Plaintiff-Appellant,

                                versus

         SANDERSON FARMS, INC., (PROCESSING DIVISION); ET AL.,

                                                           Defendants,

 SANDERSON FARMS, INC., (PROCESSING DIVISION); RICHARD PITTMAN,

                                                 Defendants-Appellees.


             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                             (00-CV-3632-J)


Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Rochelle    Musacchia   appeals   the   FED. R. CIV. P.    12(b)(6)

dismissal of her claims, under the “intentional act” exception to

the Louisiana Workers’ Compensation Act, LA. REV. STAT. § 23:1032(B),

against:     her deceased husband’s employer, Sanderson Farms, Inc.




     *
      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this opinion should not be published and is not precedent except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.
(Processing     Division);   his   supervisor,    Richard    Pittman;    and

Sanderson’s plant nurse, Malcolm Wagner.         AFFIRMED.

                                    I.

     The decedent was killed in an accident involving an ice auger

at the Sanderson plant.      Musacchia sued Sanderson, Wagner, and the

auger’s manufacturer in state court.       Sanderson and Wagner removed

and, shortly thereafter, moved to dismiss under Rule 12(b)(6), or,

alternatively, for a more definite statement under Rule 12(e).

While reviewing that motion, the district court noted, sua sponte,

a possible lack of subject matter jurisdiction due to incomplete

diversity of citizenship (Wagner), and ordered briefing.          The same

day that Musacchia responded, she filed an amended complaint,

adding another non-diverse defendant — Pittman (supervisor).

     The district court dismissed the claim against Wagner (nurse),

holding that, because Musacchia could not, as a matter of law,

maintain   an   action   against   him   under   the   “intentional     act”

exception, he had been fraudulently joined. See Carriere v. Sears,

Roebuck and Co., 893 F.2d 98, 100 (5th Cir.), cert. denied, 498

U.S. 817 (1990).     The district court also granted the Rule 12(e)

motion for a more definite statement regarding the newly-joined,

non-diverse Pittman.

     After Musacchia filed the statement, Sanderson and Pittman

renewed their Rule 12(b)(6) motion, maintaining:              Pittman was

fraudulently joined and the claim against him should be dismissed;


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therefore, complete diversity existed; and Musacchia had failed to

state a claim against Sanderson.       The district court granted the

motion on 10 May 2001.   Musacchia’s motion to reconsider was denied

on 19 June 2001.

     Sanderson, Pittman, and Wagner then moved, under Rule 54(b),

for entry of final judgment.     The district court found no just

reason for delay as to Pittman and Wagner, and directed entry of

judgment in their favor on 18 July 2001.         The court did not,

however, enter judgment until 29 November 2001, at which time it

entered judgment for Pittman and Wagner, as well as Sanderson and

the auger’s manufacturer.

                                 II.

     As discussed infra, appeal was taken only as to Pittman and

Sanderson.   “[T]his circuit treats fraudulent joinder claims as

capable of summary determination”.      Carriere, 893 F.2d at 100.

          If, having assumed all of the facts set forth
          by the plaintiff to be true and having
          resolved all uncertainties as to state
          substantive law against the defendants, the
          district court should find that there is no
          possibility of a valid cause of action being
          set forth against the in-state defendant(s),
          only then can it be said that there has been a
          “fraudulent joinder.”

B., Inc. v. Miller Brewing Co., 663 F.2d 545, 550 (5th Cir. Unit A

1980).   We review de novo fraudulent joinder claims and Rule

12(b)(6) dismissals.     Burden v. General Dynamics Corp., 60 F.3d




                                  3
213, 216 (5th Cir. 1995) (fraudulent joinder); Abrams v. Baker

Hughes, Inc., 292 F.3d 424, 430 (5th Cir. 2002) (Rule 12(b)(6)).

                                 A.

     Defendants question our appellate jurisdiction for the claims

against Pittman and Wagner.   As noted, pursuant to Rule 54(b), the

district court on 18 July 2001 directed entry of judgment in favor

of Pittman and Wagner.

                                 1.

     Defendants maintain that, because Musacchia did not file her

notice of appeal (NOA) until 24 December 2001 — well after the 30-

day period provided for in FED. R. APP. P. 4(a)(1)(A) — we lack

jurisdiction over Pittman and Wagner.   The district court did not,

however, enter judgment, on a separate document per Rule 58, until

29 November 2001.

                                 2.

     Defendants claim correctly that we lack jurisdiction over

Wagner. As noted, unlike Sanderson and Pittman, he is not named in

the NOA.

                                 B.

     The Louisiana Workers’ Compensation Act provides, for work-

related injuries, the exclusive remedy against an employer or its

employee engaged at the time of injury in the normal course and

scope of his employment.   See LA. REV. STAT. § 23:1032(A); Reeves v.

Structural Preservation Sys., 731 So. 2d 208, 210 (La. 1999).     An


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exception to that exclusive remedy lies where the injury results

from an “intentional act”.      See LA. REV. STAT. § 23:1032(B); Reeves,

731 So. 2d at 210.      “Intent” requires “that the person who acts

either (1) consciously desires the physical result of his act,

whatever the likelihood of that result happening from his conduct;

or (2) knows that the result is substantially certain to follow

from his conduct, whatever his desire may be as to that result”.

Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981); Reeves, 731

So. 2d at 211.

     Having conducted a de novo review, and assuming as true the

facts presented by Musacchia, we agree with the district court that

there is no possibility of a valid cause of action against Pittman.

Restated, Musacchia cannot maintain an action against Pittman on

the theory that he desired the physical result (Musacchia’s death)

or knew that the result was substantially certain to follow from

his conduct.

     We likewise agree with the district court that Musacchia has

failed   to   allege   facts   sufficient   to   state   a   claim   against

Sanderson under the intentional act exception.

                                   III.

     For the foregoing reasons, the judgment is

                                                              AFFIRMED.




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