    Case: 18-30469   Document: 00514815793    Page: 1   Date Filed: 01/30/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit


                               No. 18-30469                           FILED
                                                               January 30, 2019
                                                                 Lyle W. Cayce
                                                                      Clerk

RHONDA F. LAMB,

                                        Plaintiff–Appellant,

versus

ASHFORD PLACE APARTMENTS L.L.C.; HEATHER BAMBURG;
MRC DEVELOPMENT, L.L.C.,

                                        Defendants–Appellees.




                Appeal from the United States District Court
                   for the Western District of Louisiana




Before SMITH, BARKSDALE, and HO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Rhonda Lamb alleges that she was injured by inhaling smoke and fumes
from her apartment’s heating unit after Ashford Place Apartments L.L.C.
(“Ashford Place”) replaced the unit’s motor. She sued Ashford Place, Heather
Bamburg, and MRC Development, L.L.C. (“MRC”), in state court, claiming that
the incident gave her hyperactive airway disease. The defendants removed,
then moved for summary judgment, which the district court granted. The court
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also denied Lamb’s motion to amend the judgment. Lamb appeals the sum-
mary judgment and the denial of the motion to amend. We find no error and
affirm.

                                           I.
         Lamb and Ashford Place, acting through its property manager, MRC,
executed an apartment lease. About a year later, Lamb informed management
that she smelled a burning odor from her heating unit. She then contacted the
fire department, which investigated and determined that the odor was likely
dust burning off of the heating unit. Bruce Robinson, Ashford Place’s head of
maintenance, also checked the heating unit and agreed that the odor was dust
burning off of the heating unit’s coils.

         A day later, Lamb again reported a burning odor, whereupon Ashford
Place contacted Delancey Service Company, which inspected the heating unit
and recommended replacing the motor. Robinson installed a new motor that
afternoon. Defendants maintain that thereafter the heating unit was function-
ing properly.

         According to Bamburg, Ashford Place’s property manager, Lamb called
her later that evening again to report an odor. Bamburg dispatched Robinson,
who did not find anything wrong with the heating unit and did not smell any
odors. Some time later, Lamb started the heating unit and alleges that she
“was suddenly overcome by smoke fumes.” Lamb called management to report
the burning odor and also summoned the fire department. Bamburg maintains
that she and Robinson went to inspect the apartment after receiving Lamb’s
call.

         The fire department arrived, treated Lamb, and checked the apartment
and found light smoke and two Ashford Place maintenance persons ventilating

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                                    No. 18-30469
the space. The maintenance persons stated that the “furnace fan motor over-
heated.” An emergency medical vehicle took Lamb to the hospital, after which
she stayed at a hotel that night.

      Two days after the original incident, Robinson replaced the heating
unit’s motor a second time, after which there were no further issues with the
unit. That same day, Ashford Place contacted a maintenance company to clean
the ducts in Lamb’s apartment. Lamb stayed in a hotel again that night and
returned to her apartment.

                                        II.
      Lamb sued, alleging that she suffers “from hyperactive airway disease
as a result of the inhalation of smoke and nauseous fumes emitting from the
defective air conditioning/heating unit.” She claims that her injuries “were not
the result of the first reported incident of smoke smell which was addressed
with a replacement motor, but after Ashford Place maintenance employees
replaced that blower motor.” The replacement motor, Lamb asserts, “was
either installed improperly, or was the wrong part, leading to its burning out
and creating the noxious smoke that caused [her] injuries.”

      In granting summary judgment, the district court first determined that,
according to the lease, Lamb assumed responsibility for the leased premises,
and thus, under LA. STAT. ANN. § 9:3221, defendants were not liable for any
alleged defects or injuries unless they “knew or should have known of the defect
or had received notice thereof and failed to remedy it within a reasonable time.”
The court then analyzed each statutory factor necessary to impose liability,
determining that there was no genuine dispute that (1) defendants did not
know “of a specific defect before [Lamb] suffered her alleged injuries,”
(2) defendants did not fail to remedy the defect of which Lamb notified them
within a reasonable time, and (3) Lamb provided “no evidence of when, how, or
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why [d]efendants should have known, before she reported fumes, that Robin-
son installed the first replacement motor incorrectly or that [he] installed
either the wrong motor or a defective motor.”

      The district court denied Lamb’s motion to amend the judgment under
Rule 59(e) of the Federal Rules of Civil Procedure. On appeal, Lamb contends
that the district court erred (1) by granting summary judgment on all issues
when the motion for summary judgment addressed only strict liability claims
and not negligence claims; (2) by incorrectly interpreting LA. STAT. ANN.
§ 9:3221 and incorrectly applying its elements to the facts; (3) by incorrectly
placing the burden of proof on Lamb to disprove the affirmative defense of
immunity from defects; (4) by failing to apprehend genuine disputes of mate-
rial fact; and (5) by abusing its discretion in denying the motion to amend.

                                      III.
      We review “de novo a . . . summary judgment, applying the same stan-
dard as the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th
Cir. 2017) (per curiam) (citation omitted). We “generally review a decision on
a motion to alter or amend judgment under Rule 59(e) for abuse of discretion.”
Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2000) (citation omitted). But “[t]o
the extent that a ruling was a reconsideration of a question of law, . . . the
standard of review is de novo.” Pioneer Nat. Res. USA, Inc. v. Paper, Allied
Indus., Chem. & Energy Workers Int’l Union Local 4-487, 328 F.3d 818, 820
(5th Cir. 2003) (citation omitted). “A motion to alter or amend judgment must
clearly establish either a manifest error of law or fact or must present newly
discovered evidence.” Ross, 426 F.3d at 763 (citation and internal quotation
marks omitted).




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                                            IV.
       We have jurisdiction to decide the appeal. Ordinarily, under 28 U.S.C.
§ 1441(b), Bamburg’s inclusion as a defendant would procedurally bar removal
because she is a citizen of Louisiana, where suit was filed. The removal bar of
28 U.S.C. § 1441(b), however, is procedural and not jurisdictional. See In re
1994 Exxon Chem. Fire, 558 F.3d 378, 395 (5th Cir. 2009). Therefore, “where
there is improper removal, the pertinent question is whether the removed
action could have been filed originally in federal court; and, if it could have
been and the action has proceeded to judgment on the merits in federal court,
that judgment will not be disturbed.” Id. There is complete diversity, 1 so the
case could have been brought originally in federal district court. Furthermore,
Lamb did not object to removal in the district court, and the case has proceeded
to a judgment on the merits.

                                            V.
       Lamb asserts two errors in the district court’s interpretation and imple-
mentation of the relevant law. We address and reject each in turn. In a
diversity case, we look to the state’s highest court and, absent caselaw from
that court, we defer to intermediate appellate courts unless convinced that the
higher court would decide otherwise. Lemoine v. Wolfe, 575 F. App’x 449, 454
(5th Cir. 2014) (per curiam).

                                            A.
       Lamb contends that the district court erred in dismissing all her claims



       1Lamb is a domiciliary of Missouri. MRC is a Mississippi L.L.C. whose sole member
is a domiciliary of Mississippi. Ashford Place is a Mississippi L.L.C. whose two members are
Steve Bryan, a Mississippi domiciliary, and Ashford Place Investors, L.L.C., a Utah L.L.C.
Ashford Place Investors, L.L.C. itself has two members, Ashford Place Management, Inc., a
Utah corporation, and Kenneth Tramp, a Utah domiciliary. Bamburg is a domiciliary of
Louisiana.
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in response to the motion for summary judgment because the motion “con-
cerned only strict liability issues under [§] 9:3221.” She maintains that be-
cause she asserted both negligence and strict liability claims, and because the
court did not consider defendants’ potential negligence outside the context of
§ 9:3221, the court erred in dismissing all her claims.

      Lamb’s theory is contrary to the Louisiana courts’ interpretation of
§ 9:3221. The district court concluded that Lamb assumed responsibility for
the leased premises under the terms of her lease, a determination that Lamb
does not challenge. Therefore, § 9:3221 applies, creating a statutory frame-
work through which the defendants may be held liable for injuries caused by
defects in the premises only if they “knew or should have known of the defect
or had received notice thereof and failed to remedy it within a reasonable time.”
LA. STAT. ANN. § 9:3221.

      Furthermore, the Louisiana courts have interpreted § 9:3221 to encom-
pass negligence. In Allstate Insurance Co. v. Veninata, 971 So. 2d 420, 424 (La.
Ct. App. 2007), the court examined whether § 9:3221 applied where a plaintiff
asserted only a negligence claim, explaining that “the statute provides for”
claims of negligence. Accordingly, § 9:3221 governs Lamb’s claims of negli-
gence.

                                       B.
      Second, Lamb asserts that Articles 2004 and 2699 of the Louisiana Civil
Code, not § 9:3221 of the Louisiana Statutes, govern her case. Louisiana prece-
dent does not support Lamb’s contentions.

      In Stuckey v. Riverstone Residential SC, LP, 21 So. 3d 970 (La Ct. App.
2009), the court considered the interactions among Article 2004, Article 2699,
and § 9:3221.    The court first determined that Article 2004 “do[es] not

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supersede [§] 9:3221.” Id. at 975. It next explained that Article “2699 does not
supersede the provisions of [§] 9:3221,” id. at 974, but rather, that “[§] 9:3221
operates as an express statutory exception to [Article] 2699 where the lessee
assumes responsibility for the condition of leased premises,” id. at 976; accord
Wells v. Norris, 71 So. 3d 1165, 1169 (La. Ct. App. 2011). Indeed, the very text
of § 9:3221 begins by stating “[n]otwithstanding the provisions of Louisiana
Civil Code Article 2699.” Thus, the district court correctly framed its inquiry
into Ashford Place’s liability in terms of the elements of § 9:3221.

      The court also correctly applied those elements to the facts. Section
9:3221 establishes three disjunctive factors by which a lessee who has assumed
responsibility for the condition of leased premises may nevertheless assert
liability for injury on the owner of the premises: if the owner (1) knew of the
defect that caused the injury, (2) should have known of the defect that caused
the injury, or (3) received notice of the defect and failed to remedy it within a
reasonable time. The court applied each of those factors, carefully reviewing
the evidence and determining that Lamb did not raise any genuine disputes of
material fact as to any one of them. Consequently, the court correctly inter-
preted § 9:3221 and applied its elements to the facts.

                                       VI.
      Lamb asserts that the district court erred in granting the motion for
summary judgment. We disagree.

                                       A.
      Lamb maintains that the district court erroneously placed the summary
judgment burden on her. The burden, she claims, should have been placed on
the defendants, who did not satisfy that burden because they “failed to meet
the elements of proof necessary under [§] 9:3221.”         Therefore, in granting

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                                 No. 18-30469
summary judgment despite “Ashford Place fail[ing] to present any evidence to
meet the elements of [§] 9:3221,” the court incorrectly put the burden of proof
on Lamb.

      Lamb misconstrues the burdens in the summary judgment context. The
burden of the defendants, as the parties moving for summary judgment, was
to demonstrate the absence of any genuine disputes of material fact regarding
the elements of § 9:3221. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
They could do this by “pointing out that the record contains no support for
[Lamb’s] claim[s],” and if Lamb is unable to identify anything in the record to
support her claims, the court could grant summary judgment. Stahl v. Novar-
tis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). The defendants provided
evidence that they “had no knowledge of the alleged defective motor until noti-
fied by [Lamb], and that once notified, [d]efendants, within a reasonable time,
remedied and/or repaired the alleged issues with the air conditioning/heating
unit by replacing the unit’s motor.” They also pointed out that Lamb had not
provided evidence sufficient to establish the three elements of § 9:3221 essen-
tial to Lamb’s case.

      This evidence was before the district court as it evaluated the motion for
summary judgment and implemented the burden of proof. The court deter-
mined that defendants had met their burden by pointing out that the record
contained no support for Lamb’s claims and that she had not provided suffici-
ent evidence to rebut that showing. The court summarized Lamb’s claims
regarding each element of § 9:3221 and carefully examined whether the evi-
dence proffered by the parties raised genuine disputes of material fact. The
court’s reasoning was in accord with precedent governing burdens of proof on
summary judgment. Therefore, the court did not err in how it implemented
the burden of proof under § 9:3221 in the summary judgment context.

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                                      B.
      Lamb maintains that the district court erred by failing to apprehend gen-
uine disputes of material fact. She avers that because Ashford Place installed
the first replacement motor, it must be its fault that the defect occurred.
Furthermore, defendants had notice of the defect because they “performed the
replacement work in house, [so] they were certainly aware of their own
actions.” Despite her contentions, Lamb has not provided sufficient evidence
to raise genuine disputes of material fact regarding the three essential ele-
ments of § 9:3221. A party cannot defeat summary judgment with “conclusory
allegations,” “unsubstantiated assertions,” or “only a scintilla of evidence.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam) (citations and internal quotation marks omitted).

      First, Lamb does not raise genuine disputes of material fact regarding
whether defendants knew of the defect. She states that her injuries were
caused by either Ashford Place’s installing the first replacement motor incor-
rectly or its being the incorrect part. But without specifying exactly what
defect caused her injuries, she logically cannot provide any evidence raising a
genuine dispute of material fact that the defendants knew of that defect before
Lamb suffered her alleged injuries.

      Second, Lamb does not raise genuine disputes of material fact concerning
whether defendants failed to remedy a defect of which Lamb notified them
within a reasonable time. Lamb contended that “the injuries [she] sustained
were not the result of the first reported incident of smoke smell which was
addressed with a replacement motor, but after Ashford Place maintenance
employees replaced that blower motor.”      The evidence demonstrates that
defendants received notice of a potential defect in the first replacement motor
only after Lamb allegedly suffered her injuries.

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                                  No. 18-30469
      Robinson initially replaced the original motor with a new motor, after
which, according to defendants, it was functioning properly. Though Lamb
reported an odor from the heating unit that evening, when Robinson investi-
gated, he did not find anything wrong with the heating unit and did not smell
any odors. Consequently, Lamb provides no evidence that there was a defect
of which defendants had received notice at that point. The notice came later
in the evening when Lamb reported a burning odor after she asserts she was
overcome by smoke fumes. Thus, by the time the defendants received notice,
Lamb had already sustained her injuries, and it was impossible for defendants
to remedy any potential defects to prevent injury retroactively.

      Third, Lamb does not raise genuine disputes of material fact regarding
whether defendants should have known of the defect. In only conclusional
terms, she states that the defendants should have known, before she was
injured and reported the burning odor emanating from the first replacement
motor, that Robinson had installed it incorrectly, that it was the incorrect part,
or that it was defective. To support her claim, Lamb could have investigated
whether the installed motors were the correct type for the heating unit, could
have inspected the heating unit to see whether there were signs of an incor-
rectly installed motor, or could have researched whether the first replacement
motor had a history of problems. Lamb failed to present sufficient evidence of
such a defect. She thus fails to provide sufficient evidence to raise a genuine
dispute of material fact that the defendants should have known of the defect.

      Accordingly, reviewing the evidence de novo and applying the same stan-
dard as the district court, we easily conclude that Lamb fails to provide evi-
dence sufficient to raise genuine disputes of material fact for each element of
§ 9:3221 essential to her case, so the defendants are entitled to judgment as a
matter of law. The district court properly granted summary judgment.

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                                  No. 18-30469
                                      VII.
      Lamb challenges the denial of her motion to amend the judgment. The
issues she raised in her Rule 59(e) motion to amend are the same ones she
asserts in this appeal. In the motion, Lamb provided no new evidence but only
disagreed with how the district court had interpreted the law and analyzed the
evidence, maintaining that it had committed manifest errors of law and fact.
As we have shown, however, the district court faithfully interpreted § 9:3221
and applied its elements to the facts, properly implemented the summary
judgment burden of proof, and correctly determined that Lamb had provided
no evidence sufficient to raise genuine disputes of material facts regarding the
elements of § 9:3221, so the defendants were entitled to judgment as a matter
of law on all issues. The district court did not “base[] its decision on an erron-
eous view of the law or on a clearly erroneous assessment of the evidence.”
Ross, 426 F.3d at 763 (citation omitted). Accordingly, the court had no reason
to amend its judgment and, therefore, did not abuse its discretion; Lamb’s
motion was properly denied.

      AFFIRMED.




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