COOPER v. LOUISIANA WORKFORCE COMMISSION (2026)

Plaintiff appeals a judgment in favor of his employer that dismissed all of plaintiff's claims against his employer. The State filed a cross appeal and a motion to dismiss plaintiff's appeal. For the reasons that follow, we deny the motion to dismiss, pretermit consideration of the cross appeal, and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Shawn Cooper, began employment with the Louisiana Workforce Commission (“LWC”) in January 2009 as an Occupational Safety and Health Administration (“OSHA”) Safety Consultant. On January 22, 2016, plaintiff filed the instant suit against the State of Louisiana, through the Louisiana Workforce Commission (the “State”). He alleged that “he has been discriminated against by present and former employees of the LWC ․ for disclosing to management officials and/or other employees of the LWC ․ information that the [p]laintiff reasonably believes is evidence of gross mismanagement of a federal grant and a[n] abuse of authority relating to the federal grant.” Plaintiff alleged that his suit arose under 41 U.S.C. § 4712 of the National Defense Authorization Act (“NDAA”).

Plaintiff subsequently filed a First Amended Petition on September 12, 2017, adding two paragraphs alleging events that occurred after the filing of the petition. Plaintiff then filed a Second Amended Petition on March 14, 2019, adding his supervisor at LWC, Corey Gaines, as a defendant. In the Second Amended Petition, plaintiff also alleged claims against LWC under (1) the Louisiana Governmental Claims Act, LSA-R.S. 13:5101, et seq., for negligent training, negligent supervision, negligent retention and general negligence of Mr. Gaines; (2) breaches by LWC of implied covenants of good faith and fair dealing; and (3) a claim against Mr. Gaines for intentional infliction of emotional distress. The trial court sustained exceptions filed by Mr. Gaines and dismissed all claims against him, leaving the State as the sole defendant.

Throughout the course of this litigation, the State has maintained that the district court lacks subject matter jurisdiction as to plaintiff's NDAA claim. The State filed its first exception raising said objection on April 13, 2016. The trial court initially denied the exception in a July 14, 2016 judgment.

After plaintiff filed his Second Amended Petition, the State filed another exception raising the objection of lack of subject matter jurisdiction as to plaintiff's NDAA claim based on sovereign immunity. The trial court overruled the exception in open court on July 29, 2019, and signed a judgment on November 26, 2019, in accord with its open court ruling. The State sought supervisory review of the adverse judgment from this court, and this court denied the writ. See Cooper v. State of Louisiana through the Louisiana Workforce Commission, 2019-1144 (La.App. 1 Cir. 11/20/19), 2019 WL 6174803 (unpublished), writ denied, 2019-2041 (La. 2/18/20), 289 So.3d 1007.

On February 22, 2021, the State filed a motion requesting the trial court reconsider its July 29, 2019 interlocutory ruling denying its exception raising the objection of lack of subject matter jurisdiction. The trial court signed a judgment on June 21, 2021, which denied the State's motion. The State again sought a supervisory writ with this court, which was denied. See Cooper v. State of Louisiana through the Louisiana Workforce Commission, 2021-0687 (La.App. 1 Cir. 7/30/21), 2021 WL 3261227 (unpublished), writ denied, 2021-1316 (La. 11/17/21), 327 So.3d 991.¹

On April 12, 2023, the State filed a motion for summary judgment. Therein, the State alleged that “[p]laintiff has no causes of action against the State” and that “the State is entitled to judgment as a matter of law[.]” In opposition, plaintiff alleged, among other things, that the State was not sovereignly immune from suit due to Cooperative Agreements it had entered into with OSHA.

A hearing on the motion for summary judgment was held on August 3, 2023. The trial court subsequently granted the State's motion in open court on August 21, 2023, and signed a judgment thereon on September 26, 2023, dismissing all of plaintiff's claims against the State.

Plaintiff timely filed a motion for new trial alleging, among other things, that the trial court's decision “appears to be premised on its exclusion of uncontested evidence of the Cooperative Agreements, which was not the fault of Plaintiff himself.” Plaintiff contended that his failure to timely present summary judgment evidence of the waiver via Cooperative Agreements was not attributable to him.

The State opposed the motion for new trial. In its opposition, the State contended that plaintiff knew, based on responses to plaintiff's discovery on June 20, 2019, that if plaintiff wished to obtain copies of the Cooperative Agreements between OSHA and LWC, OSHA required plaintiff to obtain those copies from OSHA through a Freedom of Information Act request.² The State urged that plaintiff had four years from the discovery responses to obtain copies of the Cooperative Agreements from OSHA, yet plaintiff never filed a motion to compel or otherwise challenged or objected to LWC's June 20, 2019 discovery responses.

Following a hearing, the trial court denied plaintiff's motion for new trial. Plaintiff subsequently appealed the trial court's September 26, 2023 judgment that granted the State's motion for summary judgment and dismissed plaintiff's suit.

On appeal, plaintiff assigns the following as error:

1) The trial court erred by granting the State's motion for summary judgment;

2) The trial court erred by sustaining the State's objection to admission of the Cooperative Agreement evidence submitted by plaintiff;

3) The trial court erred by denying plaintiff's motion to continue the hearing on the State's motion for summary judgment; and

4) The trial court erred by denying plaintiff's motion for new trial.

STATE'S CROSS-APPEAL AND MOTION TO DISMISS PLAINTIFF'S APPEAL

The State, in response to plaintiff's unrestricted appeal from the final judgment dismissing the suit, filed a “cross-appeal” seeking review of the trial court's prior interlocutory rulings denying its exceptions raising the objections of lack of subject matter jurisdiction and no cause of action. The basis of both exceptions is that the State is sovereignly immune from plaintiff's NDAA claim.³ We note that Louisiana courts have dismissed claims due to sovereign immunity on the exception raising the objection of lack of subject matter jurisdiction, see Reed-Salsberry v. State through the Department of Public Safety and Corrections, 51,104 (La.App. 2 Cir. 2/15/17), 216 So.3d 226, 230, writ denied, 2017-0494 (La. 5/26/17), 221 So.3d 81; on the exception raising the objection of no cause of action, see Holliday v. Board of Supervisors of LSU Agricultural and Mechanical College, 2014-0585 (La. 10/15/14), 149 So.3d 227,228; and on summary judgment, see Nugent v. McNease, 50,529 (La.App. 2 Cir. 5/18/16), 195 So.3d 533, 534, writ denied, 2016-1385 (La. 11/7/16), 209 So.3d 99. The State has utilized all three of these procedural avenues to challenge plaintiff's NDAA claim herein. For clarity, we will address the issue within the context of the summary judgment. Therefore, we pretermit discussion of the two exceptions raised in the State's cross-appeal.

In addition, the State has filed a motion to dismiss the underlying appeal, urging this court lacks subject matter jurisdiction to consider the merits given the State's sovereign immunity. Notwithstanding the State's position, we note that plaintiff raised additional state law claims purportedly not subject to sovereign immunity. Because we have addressed the merits of all of plaintiff's claims on appeal in connection with the summary judgment, we deny the State's motion to dismiss the appeal.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969. The procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2).⁴ After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3).

When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. See LSA-C.C.P. art. 967(B).

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. LSA-C.C.P. art. 966(D)(2). Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. LSA-C.C.P. art. 966(D)(2).

An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Wiggins v. Schneider, 2023-1303 (La.App. 1 Cir. 9/19/24), 405 So.3d 622, 626.

 The NDAA Claim and Sovereign Immunity

The State urges it is sovereignly immune from suit for plaintiff's federal NDAA claim pursuant to LSA-Const. art. I, § 26.⁵ The State maintains that sovereign immunity acts as an absolute bar to federal claims asserted against a state in its own courts unless Congress abrogated the state's sovereign immunity in the statute, or unless the state consents to suit thereunder. The State avers that while the doctrine of sovereign immunity is most often considered in cases brought before federal courts, it bars cases in state courts as well because “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.” Alden v. Maine, 527 U.S. 706, 712, 119 S.Ct. 2240, 2246, 144 L.Ed.2d 636 (1999). The State contends that because it has not consented to private suits for damages under 41 U.S.C. § 4712, it is sovereignly immune from suit as to plaintiff's NDAA claim.

In support, the State cites Holliday v. Board of Supervisors of LSU Agricultural and Mechanical College, 2014-0585 (La. 10/15/14), 149 So.3d 227, wherein a former LSU employee brought an action pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., alleging she was unlawfully terminated while on leave. Id. at 228. The trial court denied the state's exception raising the objection of no cause of action. On review, the Louisiana Supreme Court noted that “[a] foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense.” Id. at 228 (internal citations omitted). The court recognized that the sole exception to the rule of the states’ sovereign immunity comes with a valid exercise of congressional power under § 5 of the Fourteenth Amendment, but such exercise of congressional power requires identification of a pattern of constitutional violations by the states and a creation of a congruent and proportional remedy to address those violations. Id. (citing Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 36, 132 S.Ct. 1327, 1333-34, 182 L.Ed.2d 296 (2012)). Because the applicable provision of the FMLA was not tailored to address a pattern of constitutional violations, it was an invalid abrogation of the state's sovereign immunity. Holliday, 149 So.3d at 228 (citing Coleman, 566 U.S. at 43-44, 132 S.Ct. at 1338).

Even so, the employee in Holliday argued that Louisiana elected to waive its sovereign immunity by virtue of LSA-Const. art. XII, § 10(A), which provides:

No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

In Holliday, the employee asserted that the employment relationship required for claims under the FMLA is essentially a contract, and as such, the state's sovereign immunity was waived by the foregoing constitutional provision. 149 So.3d at 228. The Louisiana Supreme Court rejected that notion, stating “La. Const. art. 12 § 10(A) does not waive or cede Louisiana's sovereign immunity in the federal system to unlimited Congressional power over State contracts.” Id. Further, the court noted that while Louisiana may have waived sovereign immunity with respect to some claims, LSA-Const. art. I, § 26 makes it clear that the state has not waived its sovereign immunity within the federal system. Id. at 229. Accordingly, the Louisiana Supreme Court found that the trial court erred as a matter of law in determining that the state had elected to waive its sovereign immunity for purposes of the FMLA by virtue of LSA-Const. art. XII, § 10(A). Id. As such, the court sustained the exception raising the objection of no cause of action, but remanded the matter to the district court to afford the employee the opportunity to amend her petition in accord with LSA-C.C.P. art. 934. Id.

The State also cites Texas Education Agency v. United States Department of Education, 992 F.3d 350, 360 (5th Cir. 2021), wherein the federal appellate court held that Congress did not abrogate the sovereign immunity of the states when it enacted the NDAA in 2013. The appellate court recognized that Congress can induce a state to waive immunity as a condition of accepting federal funds. Id. at 358. However, the court recognized that a state's waiver of sovereign immunity “must be knowing and voluntary.” Id. at 359. Plaintiff argued that immunity had been waived given that the NDAA conditions the acceptance of any federal grant or contract on waiving immunity from whistleblower retaliation claims related to that grant or contract. Id. The Fifth Circuit rejected the claim, reasoning that “the NDAA is not adequately clear for any such waiver to be effective.” Id. at 359.

In addition, the State notes that plaintiff in the instant suit sought relief with the U.S. Department of Labor, alleging in his complaint that the State through the Louisiana Workforce Commission denied him training, suspended him, transferred him, and terminated him in retaliation for engaging in activity protected under the NDAA, 41 U.S.C. § 4712. However, on October 26, 2023, the Department of Labor, concluding that the state's “sovereign immunity [barred] the adjudication of [his] complaint,” dismissed plaintiff's action. In light of the foregoing, the State submits that it has not waived its sovereign immunity for claims raised under the NDAA.

In opposition, plaintiff maintains that the State waived sovereign immunity when it entered into a Cooperative Agreement with OSHA. However, the State's objection to consideration of the Cooperative Agreement was sustained by the trial court, and accordingly, said agreement was not considered by the trial court in ruling on the merits of the State's motion for summary judgment. More specifically, although plaintiff timely filed an opposition to the State's motion for summary judgment, the State noted that plaintiff did not attach any exhibits to his opposition.⁶ On August 3, 2023, the date of the summary judgment hearing, plaintiff attempted to introduce a signed Cooperative Agreement. However, the State urged the submission was late and could not be considered by the trial court. The trial court sustained the State's objection and did not consider any of the Cooperative Agreements in connection with the motion for summary judgment.

On appeal, plaintiff avers that the trial court erred in sustaining the State's objection to the Cooperative Agreement evidence. Plaintiff contends that had the Cooperative Agreement been considered, the summary judgment on his NDAA claims would have been denied.

Plaintiff asserts the State seeks to benefit from its own violation of the Louisiana Public Records Law by objecting to the court's consideration of the Cooperative Agreement despite the State's failure to timely produce same. Plaintiff avers that on June 27, 2023, he requested a copy of the Cooperative Agreements through Louisiana's Public Records Law, and the State's counsel received a copy of the request. Plaintiff further contends that despite assurances by the State that it would be received sooner, he did not receive a copy of a Cooperative Agreement until 4:27 p.m. on August 2, 2023, or the day before the summary judgment hearing when he attempted to introduce said document to the court. Plaintiff avers that the signed Cooperative Agreement he eventually received was “identical in relevant respects to the ones previously filed in the record by Plaintiff[.]” Plaintiff asserts that the State should not be allowed to benefit from its violation of the Louisiana Public Records Law by keeping the court from considering the documents the State failed to timely produce.

Plaintiff also notes that he moved for a continuance on August 11, 2023, eight days after the summary judgment hearing. In the motion to continue, plaintiff urged that there was good cause to continue and to reset the hearing so that plaintiff's otherwise late submission of evidence could be considered given the State's withholding of the document.

Under the applicable version of LSA-C.C.P. art. 966(B)(2), “[a]ny opposition to the motion and all documents in support of the opposition shall be filed ․ not less than fifteen days prior to the hearing on the motion.” The word “shall” as used in Article 966(B) is mandatory and the trial court has no discretion to extend the deadline. See Auricchio v. Harriston, 2020-01167 (La. 12/10/21), 332 So.3d 660, 663.

Here, although plaintiff timely filed his opposition, he did not file the Cooperative Agreement with his opposition. Plaintiff's attempted introduction of the Cooperative Agreement on the date of the hearing was clearly untimely under Article 966(B)(2). Accordingly, the trial court properly determined that it could not consider the Cooperative Agreement in connection with the motion for summary judgment. See Auricchio, 332 So.3d at 663.

Even so, plaintiff asserts the trial court erred in failing to continue the matter because he had “good cause” in light of the State's actions in discovery. The Louisiana Code of Civil Procedure expressly predicates the granting of a motion for summary judgment upon “adequate discovery” being accomplished, or a party being at least afforded the opportunity to undertake adequate discovery. Judson v. Davis, 2004-1699 (La.App. 1 Cir. 6/29/05), 916 So.2d 1106, 1115-16, writ denied, 2005-1998 (La. 2/10/06), 924 So.2d 167.⁷ However, there is no absolute right to delay action on a motion for summary judgment until discovery is completed, and the only requirement is that the parties be given a fair opportunity to present their claims. Id. at 1116. When a trial court cannot positively determine the diligence in a party securing evidence through discovery, it should grant a continuance. Id.

However, in Judson, this court noted that despite the plaintiff's outstanding discovery requests, the plaintiff did not seek to avail herself of the benefit of LSA-C.C.P. art. 966(B), the substance of which is now in LSA-C.C.P. art. 966(C)(2),⁸ and LSA-C.C.P. art. 967(C)⁹ by formally requesting additional time or moving for a continuance of the summary judgment hearing in order to obtain discovery responses or to submit opposing affidavits and demonstrating a genuine issue of material fact. Id. Accordingly, this court found that the trial court did not err in proceeding to hear the motion for summary judgment. Id.

More recently, in Mahe v. LCMC Health Holdings LLC, 2023-00025 (La. 3/14/23), 357 So.3d 322 (per curiam), the plaintiff argued the fact that her expert was out of town constituted good cause for a continuance. However, the plaintiff failed to move for a continuance prior to the expiration of the fifteen-day deadline to file an opposition. Id. at 322. The Mahe court concluded these facts did not constitute a showing of good cause for purposes of granting a continuance under La. C.C.P. art. 966(C)(2) and reversed the trial court's ruling granting a continuance. Id. at 322-23. In Mahe, the Louisiana Supreme Court specifically recognized that despite the substantive revisions to LSA-C.C.P. art. 966, “the long-held tenant that good cause does not exist when a continuance is granted solely to allow the consideration of untimely filed pleadings or other summary judgment evidence remains true.” 357 So.3d at 322 n.2. Accord Hadwin v. ABC Insurance Company, 2024-00072 (La. 4/9/24), 382 So.3d 827, 828-29 (per curiam) (reversing trial court's continuance of a summary judgment hearing where plaintiff's counsel did not seek a continuance within the mandatory 15-day delay due to unavailability of his expert and “purported confusion stemming from the court's notice of hearing, which requested copies of pleadings be delivered to the judge eight days before the hearing”).

Herein, plaintiff did not seek to avail himself of the benefits of LSA-C.C.P. arts. 966(C)(2) and 967(C) by requesting a continuance prior to the expiration of the 15-day deadline within which to file an opposition to the State's motion for summary judgment. Moreover, plaintiff did not challenge the prior discovery response through a motion to compel or in any other manner. Clearly, plaintiff was aware that he was not in possession of a signed Cooperative Agreement at the time he filed his opposition to the State's motion for summary judgment, yet failed to file a motion to continue at or prior to that time. Considering the foregoing, we find no error in the trial court's denial of plaintiff's late request for a continuance. See Judson, 916 So.2d at 1115-16, Mahe, 357 So.3d at 323, and Hadwin, 382 So.3d 827, 828-29.

Similarly, plaintiff urges that the trial court erred in failing to grant a new trial to allow plaintiff to introduce the Cooperative Agreement. However, as noted in Auricchio, a trial court is without authority to consider late-filed evidence. 323 So.3d at 663. Accordingly, we likewise conclude that the trial court did not abuse its discretion in denying the motion for new trial. To grant a new trial for the sole purpose of allowing an untimely filed document would be inconsistent with the supreme court's holding in Auricchio.

Having found no error in the trial court's exclusion of the Cooperative Agreement, we next consider the trial court's ruling that the State is sovereignly immune from claims under the NDAA based on the evidence considered by the trial court. As noted above, a state's waiver of sovereign immunity “must be knowing and voluntary.” Texas Education Agency, 992 F.3d at 359. “Where the waiver is effected by accepting federal funds conditioned on waiver, the ‘knowing’ and ‘voluntary’ requirements align with two of the requirements for all conditions placed on federal money: ‘[A]ny condition on the receipt of federal funds must be unambiguous ․ [and] the grant and its conditions cannot amount to coercion as opposed to encouragement.’ ” Texas Education Agency, 992 F.3d at 359 (internal citations omitted). The “knowing” requirement is a “stringent clear-statement rule” and the statute must “manifest a clear intent to condition” the funding “on a State's consent to waive its constitutional immunity.” Id. at 359-60 (internal citations omitted). While plaintiff in Texas Education Agency urged the NDAA unambiguously placed the state agency on notice that it would be subject to the remedial scheme of § 4712, including the possibility of damages, should the agency choose to accept federal funds through any grant, the Fifth Circuit found “[t]he NDAA lacks the clarity required for a knowing waiver under our and Supreme Court caselaw.” Id. at 360. The Fifth Circuit noted the NDAA whistleblower retaliation provision does not specifically mention states, leaving it ambiguous as to whether it applies to them, whereas other whistleblower retaliation provisions, such as that in the American Recovery and Reinvestment Act, do, demonstrating that Congress knows how to make such provisions’ application to states clear. Id. at 361. Further, the court noted that while no “magic words” are needed for waiver of sovereign immunity, the jurisprudence has generally required the statute to mention immunity, which the NDAA fails to do. Id. Moreover, the court noted that the “sheer breadth of the opposite holding—-that states must forgo every dollar of federal funding or else waive immunity—is reason to be skeptical that states knowingly made that choice.” Id.

Considering the foregoing, we agree the NDAA lacks sufficient clarity required for a knowing waiver of state sovereign immunity under the law. Texas Education Agency, 992 F.3d at 359-60. Thus, we conclude that, because Louisiana has not waived its sovereign immunity within the federal system, see LSA-Const. art. I, § 26, Holliday, 149 So.3d at 229, the State established it is sovereignly immune from plaintiff's claim asserted under the NDAA. Accord Slack v. Washington Metropolitan Area Transit Authority, 353 F.Supp.3d 1, 12 (D.D.C. 2019) (“Because Congress did not abrogate WMATA's [Washington Metropolitan Area Transit Authority] sovereign immunity and because WMATA did not waive its immunity under the NDAA, this Court lacks jurisdiction over Ms. Slack's NDAA claim.”) and Williams v. Morgan State University, 484 Md. 534, 555, 300 A.3d 54, 66 (2023) (wherein the Maryland court held that Maryland's waiver of sovereign immunity for tort actions under the Maryland Tort Claims Act does not extend to federal statutory causes of action such that all NDAA claims had been properly dismissed). Accordingly, the State met its initial burden of proof on summary judgment.

Once sovereign immunity is established, the burden of proving waiver is on the plaintiff. See Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005), cert. denied, 546 U.S. 1214, 126 S.Ct. 1431, 164 L.Ed.2d 132 (2006). Although plaintiff urges that sovereign immunity was waived because of a Cooperative Agreement, plaintiff failed to introduce same in opposition to the State's motion for summary judgment. Finding no error in the trial court's evidentiary ruling in this regard, we conclude that the trial court did not err in granting summary judgment and dismissing plaintiff's NDAA claim.¹⁰

 Remaining Claims

In addition to plaintiff's NDAA claim, the trial court also dismissed all of his other pending claims. On appeal, plaintiff contends the trial court erred in dismissing his breach of contract claim. Plaintiff asserts that in its motion for summary judgment, the State merely contended that “Plaintiff, as a classified employee, had no contract of employment, written or implied, with LWC.” Plaintiff urges that in making its argument, the State simply ignored plaintiff's third-party beneficiary argument. Plaintiff asserts that as an employee hired with OSHA funds to work in the OSHA/LWC cooperative program, plaintiff was an intended third-party beneficiary of the non-discrimination promise made by LWC. Plaintiff asserts that the Cooperative Agreement, in addition to the requirements set forth above, specifically listed Mr. Cooper on the organizational chart for LWC, listed the specific equipment to be provided to Mr. Cooper, and included a goal of increasing Mr. Cooper's knowledge as to respiratory protection. As such, plaintiff maintains that the Cooperative Agreement manifests a clear intent to benefit him as a third party. Accordingly, he asserts that the State has no sovereign immunity from this claim given that it waived claims for breaches of contract in LSA-Const. art. XII, § 10.

A contracting party may stipulate a benefit for a third person called a third-party beneficiary. LSA-C.C. art. 1978. Such a contract is commonly referred to as a stipulation pour autri. Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 2005-2364 (La. 10/15/06), 939 So.2d 1206, 1211. A stipulation pour autri is never presumed, and the party claiming the benefit bears the burden of proof. Id. at 1212. Although plaintiff avers that the State simply ignored plaintiff's argument that he was a third-party beneficiary, plaintiff never alleged a third-party beneficiary claim in any of his petitions. Moreover, as noted above, none of the Cooperative Agreements were ever properly introduced into evidence in opposition to the State's motion for summary judgment. Accordingly, plaintiff simply failed to meet his burden of proof to show that a contract existed whereby plaintiff would be a third-party beneficiary. Therefore, the trial court did not err in granting summary judgment and dismissing this claim.¹¹

CONCLUSION

For the foregoing reasons, we deny the State's motion to dismiss the appeal, pretermit discussion of the issues raised in the State's cross-appeal, and affirm the trial court's September 26, 2023 judgment dismissing plaintiff's claims. Costs of this appeal are assessed to appellant, Shawn Cooper.

MOTION TO DISMISS APPEAL DENIED; CROSS-APPEAL PRETERMITTED; JUDGMENT AFFIRMED.

FOOTNOTES

1.   In addition, the State filed two separate exceptions raising the objection of no cause of action. The first had been briefed, argued on July 29, 2019, and then taken under advisement. The predecessor judge, however, retired prior to a ruling being issued. The State then filed a second exception raising said objection on February 22, 2021. The trial court signed a judgment on June 7, 2021 that overruled that exception.

2.   Plaintiff seems to urge that he did not initially seek the document from OSHA because it demanded plaintiff pay a $1,600 fee for the request.

3.   On appeal, the State also asserts that plaintiff had no cause of action for personal injuries he claims to have sustained in the workplace as a result of alleged negligence because such would be subject to the Louisiana Workers’ Compensation Law, LSA-R.S. 23:1032, et seq. Additionally, the State asserts that plaintiff was not a contract employee of the State and, as such, has no cause of action against it for breaches of implied covenants of good faith and fair dealing.

4.   Louisiana Code of Civil Procedure article 966 was amended by 2023 La. Acts No. 317 § 1, 2023 La. Acts No. 368 § 1, and 2025 La. Acts No. 250 § 3. We note that we must apply the version of LSA-C.C.P. art. 966 in effect on April 12, 2023, the date the State filed its motion for summary judgment. McKay v. Hospital Service District No. 1 of Tangipahoa Parish, 2023-1244 (La.App. 1 Cir. 10/11/24), 405 So.3d 869, 872 n.2.

5.   Louisiana Constitution Article I, § 26 provides:The people of this state have the sole and exclusive right of governing themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.

6.   Plaintiff's opposition references “a series of Cooperative Agreements” that were attached as “Ex. A to Pl.’s Opposition to Defendant's Exception [of No Cause of Action], filed on February 28, 2019.” We note that the applicable version of LSA-C.C.P. art. 966(D)(2) required a party to “file” its evidence with his opposition to the motion for summary judgment.

7.   Judson cites LSA-C.C.P. art. 966(C)(1), the substance of which is presently, and was at the time this motion for summary judgment was filed, set forth in LSA-C.C.P. art. 966(A)(3). Despite numerous amendments to Article 966 since this court decided Judson, Article 966 nonetheless still predicates the granting of a motion for summary judgment upon “adequate discovery” being accomplished, or a party being afforded “an opportunity for adequate discovery.”

8.   At the time the summary judgment was considered in Judson, LSA-C.C.P. art. 966(B) provided, in pertinent part, that “For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions.” The substance of that provision is presently, and was at the time this motion for summary judgment was filed, in LSA-C.C.P. art. 966(C)(2), which provides “For good cause shown, the court may order a continuance of the hearing.”

9.   Louisiana Code of Civil Procedure article 967(C) provides:If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

10.   Although this court previously denied writs on this issue in the context of lack of subject matter jurisdiction, the law of the case doctrine does not apply herein. See Cope v. Board of Supervisors of Louisiana State University and A&M College, 2025-0036 (La.App. 1 Cir. 7/31/25), 418 So.3d 994, 1001.

11.   We note that all of plaintiff's other claims were also dismissed via the grant of the State's motion for summary judgment, including plaintiff's claims for negligent training, negligent supervision, negligent retention and the general negligence of Mr. Gaines, as well as breaches by the State of implied covenants of good faith and fair dealing. However, plaintiff has not challenged the trial court's judgment in regard to these rulings on appeal.

MCCLENDON, C.J.