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

                                                                            FILED
                                                                        December 17, 2008

                                       No. 08-30043                   Charles R. Fulbruge III
                                                                              Clerk

KLING REALTY COMPANY INC; WALET PLANTING CO.

                                                  Plaintiffs-Appellants
v.

CHEVRON USA INC., individually and as successor in interest, formerly
doing business as Texaco Inc., formerly doing business as Texaco Exploration
and Production Inc

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                  6:06-CV-1492

Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       This case involves the contamination of land by oil and gas exploration
over several decades during the twentieth century. Plaintiffs-Appellants Kling
Realty Co. and Walet Planting Co. (together, “Kling/Walet”) sued Defendant-
Appellee Chevron USA Inc. (“Chevron”), successor in interest to Texaco, and two
other defendants in state court. Chevron removed to federal court, alleging
improper joinder of non-diverse defendants. The district court dismissed the
non-diverse defendants, and denied Kling/Walet’s motion to remand.                       The


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-30043

district court dismissed all claims with prejudice, holding that they were barred
by prescription and dismissed as moot Kling/Walet’s motion for leave to add a
non-diverse party. We AFFIRM the judgment.
                                BACKGROUND
      Kling/Walet’s claims are rooted in the contamination of their property in
Iberia Parish, allegedly caused by Chevron’s predecessor (Texaco) while it was
engaged in the exploration and production of oil and gas. Kling/Walet and
Chevron were parties to an oil and gas lease relating to the property, which
terminated, at the latest calculation, in August 1974. Although four wells were
established on the Kling/Walet property, the claims in this case relate to Well
No. 6 (“Well”), the only one of the wells that was productive for Chevron.1 The
Well was plugged and abandoned in October 1971.
      Kling/Walet have used the property for sugarcane farming since the 1970s.
At that time, Kling/Walet were concerned that crops would not grow on a small
piece of their property. After bringing their concerns to Chevron, Kling/Walet
entered into a release of claims associated with the Well and any pit, tank
battery, or other piece of equipment associated with the Well (the “1973
Release”), for consideration of approximately $4,000. It is undisputed that
Chevron’s activities on the property ended no later than 1974.
      Kling/Walet filed this action in June 2006 in Louisiana state court.
Kling/Walet sought to recover compensatory and punitive damages from
Chevron, Estis Well Service, LLC (“Estis”), and Jack P. Martin, Sr. (“Martin”)
(collectively, “Defendants”) for contamination of their property located in Iberia
Parish, Louisiana.    Kling/Walet are citizens of Louisiana, as are Estis and
Martin. Chevron is not. Kling/Walet allege that they are lessors, assigns, and/or
successors in interest to certain oil, gas, and mineral leases with Chevron.


      1
        Two other wells were abandoned as dry holes. The third, drilled by an entity
unrelated to Chevron, was also a dry hole.

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Kling/Walet alleged that Defendants conducted and/or participated in various
oil and gas exploration and production activities as operators or working interest
owners in land including their property.
       In August 2006, Chevron filed a notice of removal. In October 2006,
Kling/Walet responded with a motion to remand to state court. In January 2007,
the district court entered a Memorandum Ruling and Order, concluding that
non-diverse Defendants Estis and Martin had been improperly joined,
dismissing the claims against them, concluding that diversity jurisdiction was
proper, and denying the motion to remand.
       In May 2007, Chevron filed a motion for partial summary judgment,
arguing, among other bases, that Kling/Walet’s claims had prescribed.2 In
December 2007, the district court granted Chevron summary judgment on the
issue of prescription on all claims and denied as moot Kling/Walet’s motion for
leave to amend. Kling/Walet appeal.
                                      DISCUSSION
I. Diversity Jurisdiction
       A determination that a party is improperly joined and the denial of a
motion for remand to state court are questions of law reviewed de novo.
McDonal v. Abbot Labs., 408 F.3d 177, 182 (5th Cir. 2005). However, this court
reviews a district court’s decision to pierce the pleadings and its procedure for
determining improper joinder only for abuse of discretion. Guillory v. PPG
Indus., Inc., 434 F.3d 303, 309-10 (5th Cir. 2005) (emphasizing summary inquiry
“is appropriate only to identify the presence of discrete and undisputed facts that
would preclude plaintiff’s recovery against the in-state defendant”).



       2
        While that motion was pending, Kling/Walet moved in August 2007 for leave to amend
their petition to add a non-diverse defendant, M&C Contractors, Inc. (“M&C”). The court
denied the motion as moot when it held the underlying claims had prescribed. In light of our
holding on the issue of prescription, we affirm the district court’s judgment as to M&C as well.

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       Kling/Walet argue that the district court erred by piercing the pleadings
and dismissing Martin because neither party presented summary judgment-type
evidence related to whether they had any possibility of prevailing against
Martin, and Chevron therefore did not meet its burden to show improper
joinder.3 Chevron argues that Martin was properly dismissed because, although
Martin was alleged to be the supervisor of production of an unnamed employer
that purportedly worked on Kling/Walet’s property, Chevron has found no
evidence that Martin worked for Chevron or its predecessors. Chevron further
points to the absence of evidence presented by Kling/Walet to show how Martin
was connected to their property such that he faced any liability for the alleged
contamination.
       There are two bases on which the district court might determine that a
plaintiff improperly joined a non-diverse defendant to defeat subject matter
jurisdiction: “(1) actual fraud in the plaintiff’s pleading of jurisdictional facts, or
(2) inability to establish a cause of action.” Campbell v. Stone Ins., Inc., 509 F.3d
665, 669 (5th Cir. 2007). Under the second prong,4 the court must determine
whether “there is arguably a reasonable basis for predicting that state law might
impose liability.” Id. The standard for judging fraudulent joinder claims is well-
established: “[a]fter all disputed questions of fact and all ambiguity in the
controlling state law are resolved in favor of the non-removing party, the court
determines whether that party has any possibility of recovery against the party
whose joinder is questioned.” Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100
(5th Cir. 1990). “This means that there must be a reasonable possibility of




       3
         Other than a one-sentence relief request, Kling/Walet make no argument that Estis
was properly joined. Therefore the issue of Estis’s dismissal is waived. See, e.g., Edmond v.
Collins, 8 F.3d 290, 292 n.5 (5th Cir. 1993) (“On appeal, we do not review issues not briefed.”).
       4
           Chevron does not argue that the first prong is applicable.

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recovery, not merely a theoretical one.” Campbell, 509 F.3d at 669 (quoting Ross
v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir. 2003)).
      The doctrine of improper joinder is a “narrow exception” to the rule of
complete diversity, and the burden of persuasion on a party claiming improper
joinder is a “heavy one. Campbell, 509 F.3d at 669. Although the district court
may “pierce the pleadings” to examine affidavits and other evidentiary material,
it should not conduct a full evidentiary hearing on questions of fact, but rather
summary inquiry is appropriate only to identify the presence of discrete and
undisputed facts that would preclude plaintiff's recovery against the in-state
defendant. Smallwood, 385 F.3d at 573. Chevron was obligated to show that
Kling/Walet could not recover against Martin. See Jernigan v. Ashland Oil Inc.,
989 F.2d 812, 815 (5th Cir. 1993). However, when Chevron pointed to the
absence of facts or evidence in the record supporting a possibility of recovery
against Martin, Kling/Walet could not “simply rest on their pleadings, but must
instead come forward with competent evidence to support the allegations of the
petition.” Carriere, 893 F.2d at 100-01.
      The district court concluded that Kling/Walet failed to state a claim
against Martin, relying largely on Canter v. Koehring, 383 So. 2d 716 (La. 1973),
and Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994) (discussing liability of a
supervisor-employee under Louisiana law and applying Canter). In Canter, the
Louisiana Supreme Court held that an employee could only be held personally
liable to a third party where: (1) the employer owed a duty of care to the third
person, breach of which caused the damage for which recovery is sought; (2) that
duty was delegated by the employer to the defendant; (3) the defendant
employee breached his duty through personal (not technical or vicarious) fault;
and (4) the employee had a personal duty toward the injured third party, the
breach of which specifically caused the third party’s damages. Canter, 283 So.
2d at 721. Further, with regard to the accused employee’s personal fault,

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personal liability cannot be imposed upon the employee simply because of his
general administrative responsibility for some function of employment. Id.
      The district court found Kling/Walet’s suit distinguishable from Ford, in
which this court found the plaintiffs did have a reasonable possibility of
recovery, explaining:
      In Ford, the evidence provided by plaintiffs suggested, by affidavit
      testimony, that the plant manager knew of the leak, therefore
      indicating that there was a possibility of recovery against the plant
      manager. Here, plaintiffs make general and unsupported allegations
      that Martin breached a personal duty owed to them. Plaintiffs have
      not provided any evidence in support of their Motion to Remand
      relating to the damage caused to the subject property or to Martin’s
      knowledge thereof. There is no evidence that any of plaintiffs’
      allegations arise from a non-managerial duty or that Martin’s
      position and responsibilities entailed more than general
      administrative and managerial responsibilities where Martin could
      be held personally responsible under Canter. Moreover, plaintiffs
      have failed to produce any evidence that supports the allegation
      that Martin knew or should have known of any ongoing activities
      hazardous to the property, and how a reasonable “supervisor” in
      Martin’s position should have acted on that knowledge. The
      plaintiffs only point to the fact that Martin supervised certain
      activities of the defendants’ on the subject property at the time of
      the incident, that the supervisory position presupposes certain
      knowledge, and claim a personal duty arising from the previous to
      plaintiffs. Under Louisiana law, however, there must be more
      before a court can find that there is a possibility of finding personal
      fault on the part of an employee. Conclusory allegations, as found
      in plaintiffs’ Complaint and Motion to Remand, are not enough to
      establish a Canter duty, as set out above . . . .The plaintiffs have not
      set fourth any summary judgment type evidence or any other facts
      which would establish that there is a possibility that Martin could
      be held personally liable under Canter.

We agree with the district court that, in contrast to the facts in Ford,
Kling/Walet’s conclusory allegations do not establish a duty under Canter, and
therefore Kling/Walet have no reasonable (as opposed to theoretical) possibility


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                                      No. 08-30043

of recovery against Martin on the basis of the pleadings. See Ford, 32 F.3d at
936.
       Further, there was no abuse of discretion by the district court in piercing
the pleadings to determine if Kling/Walet might recover against Martin. Cf.
Guillory, 434 F.3d at 310 n.22 (listing examples of specific fact-finding
appropriate under a pierce-the-pleadings inquiry).              Regarding Martin, the
pleadings contain no more than conclusory allegations that did not establish a
basis for recovery under the requirements of Canter. See Ford, 32 F.3d at 936
(finding plaintiffs’ proffered affidavits and deposition testimony raised possibility
of recovery against defendant supervisor under Louisiana law). Kling/Walet
alleged no specific facts and could point to no evidence showing that Martin had
any connection to Kling/Walet’s land, to Chevron, or to the allegedly polluting
activities.5 Chevron offered the evidence available to it to demonstrate Martin’s
improper joinder–diligent searching of their own records showed no such person
connected to the oil and gas exploration on the property that is alleged to have
caused the contamination. When Chevron pointed to the absence of facts or
evidence in the record supporting a possibility of recovery against Martin,
Kling/Walet could not “simply rest on their pleadings, but must instead [have]
come forward with competent evidence to support the allegations of the petition.”
Carriere, 893 F.2d at 100-01. Instead of pointing to such evidence, Kling/Walet
argue that their pleadings establish Martin’s role in the case and that they need
offer no further evidence or detail to support their argument that he was a
proper defendant.




       5
         On appeal, Kling/Walet point to one page from a discovery document with a signature
that appears to be Jack Martin, Sr. R. 294. Although the document was in Kling/Walet’s
possession for two months prior to the ruling denying remand, they never indicated that this
is the “Martin” referred to in their pleading. Further, the document, a 1953 Well Potential
Report, offers no information supporting the allegations of the petition.

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                                  No. 08-30043

      Because Kling/Walet had no viable claims against Martin, there was
complete diversity between Kling/Walet and Chevron, and the court properly
denied the motion to remand and retained diversity jurisdiction to hear the case.
See Carriere, 893 F.2d at 100.
II. Prescription
      Because the district court had proper subject matter jurisdiction over
Kling/Walet’s suit, we turn to the issue of whether Chevron was entitled to
summary judgment. We review the grant of summary judgment de novo,
applying the same standard on appeal that is applicable in the district court.
Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
Summary judgment may be granted if there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(C). In determining whether summary judgment is appropriate, all of
the evidence and all of the factual inferences from the evidence are viewed in a
light most favorable to the party opposing the motion. Terrebonne Parish, 310
F.3d at 877. A genuine issue of material fact exists if the record, taken as a
whole, could lead a rational trier of fact to find for the non-moving party. Id.
      Ordinarily, the party pleading prescription bears the burden of proving
that the plaintiff’s claims have prescribed. In re Moses, 788 So. 2d 1173, 1177-78
(La. 2001). However, because more than a year has elapsed between the time
of the tortious conduct and the filing of the tort suit, the burden shifts to
Kling/Walet to demonstrate prescription was suspended or interrupted. Id.
Kling/Walet assert that either or both the doctrine of contra non valentem and
the theory of continuing tort suspend or interrupt prescription in this case.
A. Doctrine of Contra Non Valentem
      Kling/Walet first argue that the court erred in granting summary
judgment based on prescription because material issues of fact are in dispute
regarding the reasonableness of their delay in filing suit under the doctrine of

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contra non valentem. Specifically, Kling/Walet argue that there is a factual
dispute about when they became fully aware of the extent and kind of
contamination on their land, and thus of their right to sue. Chevron responds
that Kling/Walet had knowledge for decades of alleged contamination of the
property and its lack of productivity, Kling/Walet could not rely on contra non
valentem to avoid the running of prescription. Chevron further argues that
contra non valentem is inapplicable because of the testimonial and documentary
evidence that Kling/Walet knew since the 1970s that the soil surrounding the
Well would not sustain crop growth.
      The doctrine of contra non valentem was created by the Louisiana courts
as an exception to the general rules of prescription. Wimberly v. Gatrch, 635 So.
2d 206 (La. 1994). Damage is considered to have been sustained only when it
has manifested itself with sufficient certainty to support accrual of a cause of
action. “The doctrine of contra non valentem prevents the running of liberative
prescription where the cause of action is not known or reasonably knowable by
the plaintiff.” Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993); see also
Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000). Louisiana
recognizes four situations where contra non valentem applies. Causby v. Perque
Floor Covering, 707 So. 2d 23, 25 (La. 1998). The two at issue here are:
(1) where the debtor has done some act effectually to prevent the creditor from
availing himself of his cause of action; and (2) where the cause of action is not
known or reasonably knowable by the plaintiff even though plaintiff’s ignorance
is not induced by the defendant. Id.
      When prescription begins to run depends on the reasonableness of
Kling/Walet’s inaction. See Cole, 620 So. 2d at 1157; see also Terrebonne Parish
Sch. Bd., 310 F.3d at 884. As a judicial exception to the statutory rule of
prescription, Louisiana courts strictly construe contra non valentem and only
extend its benefits up to “the time that the plaintiff has actual or constructive

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                                 No. 08-30043

knowledge of the tortious act.” Eldredge, 207 F.3d at 743 (affirming summary
judgment of prescription where plaintiff noticed damage to land from tug-boat
company actions, yet took no further legal steps to stop the tort until two
decades later). Kling/Walet allege that Chevron misled them about the kind
and extent of contamination when they raised the issue of soil damage in 1973.
They further allege that the damage was not reasonably knowable (and
unknown) until within a year of filing the present suit.
      We conclude that contra non valentem is inapplicable to Kling/Walet’s suit.
There is no evidence in the record showing that Chevron was aware of increasing
contamination from salt or otherwise after the 1973 Release or acted to prevent
Kling/Walet from availing themselves of their cause of action in a timely
manner. In addition to those contamination problems Kling/Walet were aware
of at the time of the 1973 Release, Mr. Walet also testified in deposition about
his history of farming on the subject property and knowledge of low yields and
crop problems over the years since the Well was plugged. Documents from a
former Kling representative mentioned Chevron’s “dumping salt water, oily by-
products, chemicals, on” the property and concerns about the “virtually zero”
productivity of the land. As early as the 1970s, Kling/Walet had information
“sufficient to excite attention and prompt further inquiry,” yet did not
investigate or bring their claims until now. See Eldredge, 207 F.3d at 743.
B. Continuing Tort
      Kling/Walet further argue that a continuing tort has suspended the
running of prescription. Specifically, Kling/Walet argue that the pollution of
their land, like dumping foreign materials onto the property of another without
authority, constitutes a continuing trespass or nuisance. Chevron responds that
there is no continuing tort in this case because the alleged tortious conduct
ceased by the mid-1970s when Well operation ceased and the final release of the
lease at issue was recorded.

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      When the tortious cause of injury is a continuing one, under Louisiana law
prescription does not begin to run until the conduct causing that damage ceases.
Bustamento v. Tucker, 607 So. 2d 532, 542 (La. 1992). “When the damaging
conduct continues, prescription runs from the date of the last harmful act.”
South Cent. Bell Tel. Co. v. Texaco, Inc., 418 So. 2d 531, 532 (La. 1982).
Kling/Walet’s knowledge of their claim is immaterial to the running of
prescription in the case of continuing torts. Scott v. Am. Tobacco Co., Inc., 949
So. 2d 1266, 1280 (La. Ct. App. 2007).
      Louisiana courts have recognized that in some instances the unlawful
invasion of another’s property by hazardous waste falls in the category of
continuing trespass.    See South Cent. Bell, 418 So. 2d at 533 (holding
prescription did not begin to run on tort claim by owner of underground gas
tanks at filling station for damages sustained by underground telephone cables
by gas leaking from the tanks until the leaking tanks were replaced).
Kling/Walet argue that Chevron deposited such waste on their property in
connection with its oil exploration, that Chevron no longer had permission to
keep waste on their property once the lease was terminated, and this continuing
failure to clean up the waste is the continuing tort. See M&A Farms, Ltd. v.
Ville Platte, 422 So. 2d 708, 711 (La. Ct. App. 1982) (“[T]he trespass continues
as long as the offending object remains on the premises, and the trespass is
terminated only by the removal of the object wrongfully placed there.”).
      However, a “continuing tort is occasioned by unlawful acts, not the
continuation of the ill effects of an original, wrongful act.” Crump v. Sabine
River Auth., 737 So. 2d 720, 728 (La. 1999) (continuing tort theory did not apply
where property owner sued river authority claiming that canal dug on
authority’s property by third parties diverted water from the bayou flowing over
the owner’s property). “[F]or there to be a continuing tort there must be a
continuing duty owed to the plaintiff and a continuing breach of that duty by the

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                                  No. 08-30043

defendant.” Crump, 737 So. 2d at 728. Here, the Well was plugged and
abandoned on October 21, 1971. Kling/Walet entered into the 1973 Release with
Chevron after Chevron “restored the property to its original condition.” Because
the 1973 Release contained a three-year window for claims, prescription began
to run 3 years after the date of the 1973 Release.
      Further, “the breach of the duty to right a wrong and make the plaintiff
whole simply cannot be a continuing wrong which suspends the running of
prescription, as that is the purpose of any lawsuit and the obligation of every
tortfeasor.” Id. Louisiana law distinguishes between acts of trespass that
terminate and those that continue. Compare M&A Farms, 422 So. 2d at 711-12
(bulldozing a levee on plaintiff’s property is a trespass but not a continuing
trespass because no object or thing remained on plaintiff’s property), with Cooper
v. Louisiana Dep’t of Public Works, 870 So. 2d 315, 323 (La. Ct. App. 2004)
(construction of locks and dams permanently flooding another’s land is a
continuing tort). Leaving a leaking gas tank underground to damage cables on
the property is a continuing trespass, while digging a canal on adjoining
property is not. Compare South Cent. Bell, 418 So. 2d at 533; with Crump, 737
So. 2d at 728. Thus, the question is whether a continuing physical invasion of
the property is present.
      We are not persuaded that failure to clean up the contamination
constitutes such a continuing physical invasion under Louisiana law. Any
contamination of the Kling/Walet property caused by Chevron is the continuing
effect of prior conduct; the soil damage is unlike dumping garbage or litter on
another’s property. See Estate of Patout v. City of New Iberia,708 So. 2d 526 (La.
Ct. App. 1998), affirmed by, 738 So. 2d 544 (1999); Dore v. Jefferson Guar. Bank,
543 So. 2d 560, 562 (La. Ct. App. 1989). The contamination at issue in this case
is distinguishable from the leaking gas tank in South Central Bell. 418 So. 2d
at 533.   In that case, the tanks at issue were leaking extensively and

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continuously throughout the time period subject to litigation. In contrast,
Chevron plugged the Well in 1971.                    Further, Louisiana courts have
distinguished South Central Bell as being based on a theory of strict liability
under La. Civ. Code art 667, which is not applicable here. See Labatut v. City
of New Orleans, 686 So. 2d 1038, 1040 (La. Ct. App. 1996).
       Because Kling/Walet have not established an exception to prescription, we
affirm the award of summary judgment to Chevron on the basis that
Kling/Walet’s claims are time-barred.6
                                     CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       6
         Kling/Walet assert that they have stated two other claims under continuing trespass:
(1) duties of vicinage (duty owed by it due to its status as a mineral lessee); and (2) the duty
to disclose based on their contractual relationship. However, these arguments were not
presented to the district court and are therefore not properly before this court.

                                              13
