author: PRISCILLA R. OWEN, Circuit Judge:

text:
    BOARD OF COMMISSIONERS OF the SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY-EAST; Orleans Levee District; Lake Borgne Basin Levee District; East Jefferson Levee District, Plaintiffs-Appellants, v. TENNESSEE GAS PIPELINE COMPANY, L.L.C.; Alta Mesa Services, L.P.; Anadarko E&P Onshore, L.L.C.; Apache Corporation; Atlantic Richfield Company; BEPCO, L.P.; Boardwalk Pipeline Partners, L.P.; BOPCO, L.P.; BP America Production Company; BP Oil Pipeline Company; Callon Offshore Production, Incorporated; Callon Petroleum Company; Caskids Operating Company; Centerpoint Energy Resources Corporation; Chevron Pipeline Company; Chevron USA, Incorporated; Clayton Williams Energy, Incorporated; Clovelly Oil Company, L.L.C.; Coastal Exploration and Production, L.L.C.; Collins Pipeline Company; ConocoPhillips Company; Continental Oil Company; Cox Operating, L.L.C.; Crawford Hughes Operating Company; Dallas Exploration, Incorporated; Davis Oil Company; Devon Energy Production Company, L.P.; Energen Resources Corporation; Enterprise Intrastate, L.L.C.; EOG Resources, Incorporated; EP Energy Management, L.L.C.; Exxon Mobil Corporation; Exxon Mobil Pipeline Company; Flash Gas & Oil Northeast, Incorporated; Graham Royalty, Limited; Greka Am, Incorporated; Gulf Production Company, Incorporated; Gulf South Pipeline Company, L.P.; Helis Energy, L.L.C.; Helis Oil & Gas Company, L.L.C.; Hess Corporation, a Delaware Corporation; Hilliard Oil & Gas, Incorporated; HKN, Incorporated; Integrated Exploration & Production, L.L.C.; J.C. Trahan Drilling Contractor, Incorporated; J.M. Huber Corporation; Kenmore Oil Company, Incorporated; Kewanee Industries, Incorporated; Koch Exploration Company, L.L.C.; Koch Industries, Incorporated; Liberty Oil; Gas Corporation; LLOG Exploration Company; Manti Operating Company; Marathon Oil Company; Moem Pipeline, L.L.C.; Mosbacher Energy Company; Natural Resources Corporation of Texas; Newfield Exploration Gulf Coast, L.L.C.; Noble Energy, Incorporated; O’Meara, L.L.C.; P.R. Rutherford; Placid Oil Company; Plains Pipeline, L.P.; Republic Mineral Corporation; Ripco, L.L.C.; Rozel Operating Company; Murphy Exploration & Production Company, USA; Shell Oil Company; Southern Natural Gas Company, L.L.C.; Sun Oil Company; Sundown Energy, L.P.; Union Oil Company of California; Whiting Oil & Gas Corporation; Williams Exploration Company; Yuma Exploration and Production Company, Incorporated; Meridian Resource & Exploration, L.L.C.; Pickens Company, Incorporated; Estate of William G. Helis; Louisiana Land and Exploration Company, L.L.C. Maryland; Kaiser-Francis Oil Company; BP Pipelines North America, Incorporated; Vintage Petroleum, L.L.C., Delaware; EnLink LIG, L.L.C., Defendants-Appellees.
    No. 15-30162
    United States Court of Appeals, Fifth Circuit.
    Filed March 3, 2017

      James Richard Swanson, Attorney, Benjamin Dox Reichard, Fishman Haygood, L.L.P., Harvey Sylvanous Bartlett, III, Emma Elizabeth Daschbach, Esq., Eber-hard Darrow Garrison, Kevin E. Huddell, Gladstone Nathaniel Jones, III, Esq., Attorney, Jones, Swanson, Huddell & Garrison, L.L.C., New Orleans, LA, Bernard Edward Boudreaux, Jr., Esq., Jones, Swanson, Huddell & Garrison, L.L.C., Baton Rouge, LA, Joseph Rock Palermo, III, J. Michael Veron, Alonzo P. Wilson, Attorney, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Plaintiffs-Appellants.
    Ewell Elton Eagan, Jr.,. Esq., Terrence Kent Knister, James Douglas Rhorer, Esq., John Y. Pearce, Edward Louis Fen-asci, Esq., Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, LLC, Francis V. Liantonio, Jr., Glen Marion Pilie, Esq., Jeffrey Edward Richardson, Adams & Reese, L.L.P., Leigh Ann Schell, Kuchler, Polk, Schell, Weiner & Richeson, L.L.C., Joe B. Norman, Esq., Robert Beattie McNeal, Esq., Jonathan Andrew Hunter, Elizabeth S. Wheeler, Esq., Russell Keith Jarrett, Esq., Attorney, Kelly Brechtel Becker, Esq., Liskow & Lewis, P.L.C., Loulan J. Pitre, Jr., Esq., Aimee Williams Hebert, Esq., Jane Allison Jackson, Kelly, Hart & Hallman, L.L.P., Brett Patrick Fenasci, Tyler Ann Moore Kostal, Esq., Richard Stuart Pabst, Esq., Michael Raudon Phillips, Esq., Bradley Joseph Schlotterer, Dylan T. Thrifflley, Kean Miller, L.L.P., Kyle D. Schonekas, William P. Gibbens, Esq., Schonekas, Evans, McGoey & McEachin, L.L.C., M. Taylor Darden, Esq., Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, L.L.C., Todd Gregory Crawford, Esq., Fowler Rodriguez, John Steven Garner, Esq., Scialdone Law Firm, P.L.L.C., Nancy Scott Degan, Esq., Kerry J. Miller, Baker, Donelson, Bearman, Caldwell & Berkow-itz, P.C., Etienne C. Lapeyre, F. Henri Lapeyre, Jr., Lapeyre & Lapeyre, L.L.P., Emile Joseph Dreuil, III, Esq., David Stephen Landry, Esq., Gerald F. Slattery, Jr., Esq., Slattery, Marino & Roberts, P.L.C., Isaac H. Ryan, Deutsch Kerrigan, L.L.P., Carl David Rosenblum, Esq., Alida C. Hainkel, Esq., Lauren Courtney Mastio, Jones Walker, L.L.P., Jonathan Robert Cook, Wall, Bullington & Cook, L.L.C., Beverly Klundt Baudouin, Baldwin Haspel Burke & Mayer, L.L.C., John Pratt Farns-worth, Barry W. Ashe, Stone Pigman Walther Wittmann, L.L.C., Mary Margaret Steele, Laura Caviness Cocus, Esq., Meghan Elizabeth Smith, Curry & Friend, P.L.C., New Orleans, LA, Lawrence Gene Acker, Van Ness Feldman, L.L.P., Washington, DC, Douglas' C. Longman, Jr., Carmen Marie Rodriguez, Esq., Jones Walker, L.L.P., George Arceneaux, III, Liskow & Lewis, Robert Michael Kallam, Esq., Jennifer Anne Wells, Esq., Preis, P.L.C., Stephen D. Baker, Esq., Law Office of Stephen D. Baker, Paul J. Hebert, Ottinger Hebert, L.L.C., Brandon Wade Letulier, Cliff A. LaCour, Ben Louis Mayeaux, Francis X. Neuner, Jr., NeunerPate, Daniel C. Hughes, Daniel Hughes, A.P.L.C., Lafayette, LA, Matthew T. Heartney, Arnold & Porter Kaye Scholer, L.L.P., Los Angeles, CA, Nancy Gordon Milburn, Arnold & Porter Kaye Scholer, L.L.P., New York, NY, Leonard Louis Kilgore, III, Esq., Esteban Herrera, Jr., Esq., Mark Andrew Marionneaux, Richard Dean McConnell, Victor Jacob Suane, Jr., Louis Victor Gregoire, Jr., Esq., Pamela Roman Maseari, Charles Simon McCowan, III, Esq., Kean Miller, L.L.P., Edward Daniel Hughes, John Michael Parker, I, Esq., Taylor, Porter, Brooks & Phillips, L.L.P., William D. Lampton, William Thomas McCall, Jr., Jones Walker, L.L.P., Steven Jay Levine, John Bechtold Shortess, Kevin William Welsh, Attorney, Phelps Dunbar, L.L.P., John Powers Wolff, III, Nancy B. Gilbert, Esq., Richard W. Wolff, Keogh, Cox & Wilson, Limited, Baton Rouge, LA, Morgan Joseph Wells, Jr., Esq., Trial Attorney, Evan J. Godofsky, Larzelere Picou Wells Simpson Lonero, L.L.C., Metairie, LA, George T. Shipley, Amy Louise Snell, Shipley Snell Montgomery, L.L.P., Jeremiah Johnson Anderson, Robert Ellison Meadows, Esq., King & Spalding, L.L.P., James Joseph Ormiston, Michael Antoine Ackal, III, Gray Reed & McGraw LLP, Joshua A. Norris, Esq., Jones Walker, L.L.P., Michael M. Hendryx, Jason Christopher McLaurin, Strong Pipkin Bissell & Ledyard, L.L.P., Houston, TX, Ashley Charles Parrish, Esq., King & Spalding, L.L.P., Michael J. Lyle, Quinn Emanuel Urquhart & Sullivan, L.L.P., Washington, DC, John Anthony Scialdone, Esq., Scial-done Law Firm, P.L.L.C., Todd Gregory Crawford, Esq., John Steven Garner, Esq., Michael James Thompson, Jr., Fowler Rodriguez Valdes — Fauli, Gulfport, MS, Angela M. Spivey, McGuireWoods, L.L.P., Atlanta, GA, Richard Trent Taylor, Esq., Attorney, McGuireWoods, L.L.P., Richmond, VA, David William Rusch, Mande-ville, LA, James Thomas Guglielmo, Esq., Guglielmo, Lopez, Tuttle, Hunter & Jar-rell, Opelousas, LA, Stephen Christopher Fortson, Anna W. O’Neal, Bradley, Murchison, Kelly & Shea, L.L.C., Shreveport, LA, for Defendants-Appellees.
    Evan A. Young, Attorney, Baker Botts, L.L.P., Austin, TX, for Amicus Curiae.
    Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
   PRISCILLA R. OWEN, Circuit Judge:

The Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East filed a lawsuit in Louisiana state court against various companies involved in the exploration for and production of oil reserves off the southern coast of the United States. The Board alleged that Defendants’ exploration activities caused infrastructural and ecological damage to coastal lands overseen by the Board that increased the risk of flooding due to storm surges and necessitated costly flood protection measures. Defendants removed the case to federal court, and the district court denied the Board’s motion to remand, on the ground that the Board’s claims necessarily raise a federal issue. Defendants also moved to dismiss the case for failure to state a claim on which relief can be granted, and the district court granted the motion. We affirm.

I

In July 2013, the Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East (the Board) filed a lawsuit in Louisiana state court against ninety-seven entities (the Defendants) involved in the exploration for and production of oil reserves off the southern coast of the United States. The Board, whose purpose is “regional coordination of flood protection,” alleges that since the 1930s, coastal landscapes that serve as a “first line of defense” against flooding (the Buffer Zone) have been suffering from rapid land loss. The Board alleges that replacement of land in the Buffer Zone with water threatens the existing levee system and imperils coastal communities. It further asserts that Defendants’ oil and gas activities — primarily the dredging of an extensive network of canals to facilitate access to oil and gas wells — has caused “direct land loss and increased erosion and submergence in the Buffer Zone, resulting in increased storm surge risk.” Attached to the complaint was a list of Defendants’ names, agents, and addresses; a map depicting the levee districts under the Board’s purview; a list of the names and location information of wells operated by Defendants; a list of the locations in the relevant levee districts subject to dredging permits and the permittees benefltting thereunder; and a list of the locations and grantees of rights of way in the relevant levee districts.

The Board’s asserted bases for recovery from Defendants include negligence, strict liability, natural servitude of drain, public nuisance, private nuisance, and breach of contract as to third-party beneficiaries. The Board describes the “highly costly but necessary remedial measures” that it has undertaken or will undertake to protect against the increased storm surge risk. These measures include “abatement and restoration of the coastal land loss at issue,” including backfilling and revegetat-ing each canal dredged by Defendants; the joint state-federal Hurricane and Storm Damage Risk Reduction System, some of the cost of which has been borne by the Board; investigation and remediation of defects in the local levee systems to comply with relevant certification standards; and “additional flood protection expenses,” including the construction of “safe houses” for use by employees during dangerous flooding conditions.

The complaint describes “a longstanding and extensive regulatory framework under both federal and state law” that protects against the effects of dredging activities and establishes the legal duties by which Defendants purportedly are bound. It enumerates four main components of this framework, including the Rivers and Harbors Act of 1899 (RHA); the Clean Water Act of 1972 (CWA); “[rjegulations related to rights-of-way granted across state-owned lands and water bottoms administered by the Louisiana Office of State Lands”; and the Coastal Zone Management Act of 1972 (CZMA) “and related Louisiana coastal zone regulations bearing directly on oil and gas activities.” None of the individual claims relies on a cause of action created under federal law, and the negligence, strict liability, and natural servitude claims explicitly rely on state law causes of action.

The Board seeks “[a]ll damages as are just and reasonable under the circumstances,” as well as injunctive relief requiring the backfilling and revegetating of canals, “wetlands creation, reef creation, land bridge construction, hydrologic restoration, shoreline protection, structural protection, bank stabilization, and ridge restoration.”

Defendants removed the case to federal court, asserting five separate grounds for federal jurisdiction. The Board moved to remand, and the district court denied the motion, concluding that the Board’s state law claims “necessarily raise a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing the congressionally approved balance of federal and state judicial responsibilities.” Defendants moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6) as preempted by federal law and barred under state law. The district court granted the motion with respect to all of the Board’s claims, concluding that none of the Board’s stated grounds for relief constituted a claim upon which relief could be granted under state law. The Board appealed.

II

We review an order denying remand to state court de novo. A federal court may exercise federal question jurisdiction over any civil action that “arises under the federal constitution, statutes, or treaties.” A federal question exists only where “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.” However, “[t]he fact that a substantial federal question is necessary to the resolution of a state-law claim is not sufficient to permit federal jurisdiction.” Only in a “ ‘special and small category’ of cases” will federal jurisdiction exist when state law creates the cause of action. That limited category of federal jurisdiction only exists where “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities.” “[I]f a plaintiff files suit in state court alleging both federal and state claims arising out of the same controversy, the entire action may be removed to federal court.”

The district court concluded that three of the Board’s claims necessarily raise federal issues: the negligence ' claim, which purportedly draws its requisite standard of care from three federal statutes; the nuisance claims, which rely on that same standard of care; and the third-party breach of contract claim, which purportedly is based on permits issued pursuant to federal law.

A

The Board argues that the district court was incorrect to conclude that the nuisance and negligence claims necessarily raise a federal issue, because although the state law claims “could turn to federal law for support, federal law is not necessary for their resolution.” It points to this court’s holding in MSOF Corp. v. Exxon Corp. that an allegation that a facility was maintained “in violation of federal regulations as well as in violation of state and local regulations” was not enough for the action to arise under federal law.

Defendants dispute the Board’s contention that the negligence or nuisance claims could be resolved solely as a matter of state law; they note that although the negligence claim draws its cause of action from a Louisiana statute, the “sole basis” for any standard of care is found in the federal regulatory scheme. Unlike in MSOF, the Board is seeking a remedy— the backfilling of canals — that could not be required under any state law-based conception of negligence, and accordingly the claim of necessity has a “federal substance.” Similarly, Defendants argue that the nuisance claims posit an obligation not to make “unauthorized” changes or alterations to levee systems — an imperative that they argue could only exist under federal law.

The Board’s negligence claim in fact requests relief for multiple distinct injuries and refers to multiple sources of law that might establish a duty of care, and it is not the case that just because some of these sources are drawn from state law and some from federal law that the two sources are redundant and therefore “alternative.” The claims for negligence and strict liability in MSOF arose out of the alleged contamination of plaintiffs’ land with toxic chemicals, which un-disputedly gave rise to a cause of action under state law. Here, however, Defendants correctly point out that the Board’s complaint draws on federal law as the exclusive basis for holding Defendants liable for some of their actions, including for the “unauthorized alteration” of federal levee systems and for dredging and modifying lands away from their “natural state.” Unless Louisiana state law requires persons engaged in oil and gas activities to restore dredged or modified areas to their “natural state” to the identical extent that the CWA purportedly does, then a court would not be able to establish the magnitude of any potential liability without construing that Act. The same is true of the alleged obligation not to alter levee systems built by the United States, which the complaint draws from the RHA. The Board points out that Louisiana law sets forth apparently similar requirements, such as the provision stating that “[m]ineral exploration and production sites shall be cleared, revegetated, detoxified, and otherwise restored as near as practicable to their original condition upon termination of operations to the maximum extent practicable.” But the “maximum extent practicable” in turn is defined as a regulatory determination that entails “a systematic consideration of all pertinent information regarding the use, the site and the impacts of the use ... and a balancing of their relative significance.” No Louisiana court has used this or any related provision as the basis for the tort liability that the Board would need to establish, and the Louisiana Supreme Court has explicitly rejected the prospect that a statutory obligation of “reasonably prudent conduct” could require oil and gas lessees to restore the surface of dredged land.

The absence of any state law grounding for the duty that the Board would need to establish for the Defendants to be liable means that that duty would have to be drawn from federal law. Supreme Court precedent is clear that a case arises under federal law where “the vindication of a right under state law necessarily turn[s] on some construction of federal law,” and the Board’s negligence and nuisance claims thus cannot be resolved without a determination whether multiple federal statutes create a duty of care that does not otherwise exist under state law.

B

The Board argues that even if its claims necessarily raise federal issues, those issues are not “actually disputed.” But its argument draws entirely on district court cases in which the parties did not disagree with respect to the proper interpretation of federal statutes unrelated to those raised in the Board’s complaint. Defendants refute this argument by pointing out that they do not concede, for example, that the RHA establishes liability for otherwise permitted activity that might have the effect of altering United States-built levee systems; that the CWA requires them to restore dredged canals to their “natural state”; or that they are required to backfill canals that they have dredged pursuant to federal permits. These are legal, not factual, questions, and the parties dispute them.

C

For a federal issue to give rise to federal jurisdiction, “it is not enough that the federal issue be significant to the particular parties in the immediate suit.... The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.” The Supreme Court has suggested that an issue can be important for many reasons: because state adjudication would “undermine ‘the development of a uniform body of [federal] law1 ”; because the case presents “a nearly pure issue of law” that would have applications to other federal cases; or because resolution of the issue has “broad[] significance” for the federal government. “The absence of any federal cause of action ... [is] worth some consideration in the assessment of substantiality.”

The district court concluded that the substantiality requirement was met in this case, both because the relevant federal statutes plainly regulate “issues of national concern” and because the case affects “an entire industry” rather than a few parties. Moreover, it called the lawsuit “a collateral attack on an entire regulatory scheme ... premised on the notion that [the scheme] provides inadequate protection.” The Board disagrees and argues that it raises that regulatory scheme “to support the obligations created under state law.”

The Board is correct that the federal regulatory scheme is only relevant to its claims insofar as the scheme provides the underlying legal basis for causes of action created by state law. But of course Defendants dispute whether the federal scheme provides such basis at all. The dispute between the parties does not just concern whether Defendants breached duties created by federal law; it concerns whether federal law creates such duties. As Defendants point out, the validity of the Board’s claims would require that conduct subject to an extensive federal permitting scheme is in fact subject to implicit restraints that are created by state law. The implications for the federal regulatory scheme of the sort of holding that the Board seeks would be significant, and thus the issues are substantial.

D

In Singh, we considered whether the area of law relevant to the plaintiffs claims “has traditionally been the domain of state law,” and in that case we concluded that “federal law rarely interferes with the power of state authorities to regulate” that area of law. The Supreme Court has held that the balance of federal and state judicial responsibilities would be disturbed by the exercise of federal jurisdiction where such exercise would “herald[ ] a potentially enormous shift of traditionally state cases into federal courts.” Here, the district court held that no such shift would arise, noting that the Board relies on federal law to establish liability and that resolution of its claims could affect coastal land management in multiple states as well as the national oil and gas market.

The Board points out that each of the three federal statutes that forms the basis of its claims contains a savings clause, which it argues supports an inference that exercising federal jurisdiction would disrupt the balance struck by Congress. But as Defendants point out, these savings clauses act to preserve existing state law claims; they do not confíne consideration of lawsuits based on federal law to state courts. They also argue that the relief sought by the Board would require federal approval to be implemented, and thus it cannot be that the lawsuit is a matter only of state concern.

In Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, the Supreme Court explicitly rejected “[a] general rule of exercising federal jurisdiction over state claims resting on federal ... statutory violations,” and it also rejected the proposition that “any ... federal standard without a federal cause of action” is enough to support federal jurisdiction over a lawsuit. However, the Court nonetheless held that federal jurisdiction was proper in the state quiet title action before it, because “it is the rare state quiet title action that involves contested issues of federal law,” and thus “jurisdiction over actions like Grable’s would not materially affect, or threaten to affect, the normal currents of litigation.”

The Grable Court was persuaded that “the absence of threatening structural consequences” was relevant to its inquiry, and the same logic militates in favor of federal jurisdiction here. If the federal statutes at issue in this case do create duties and obligations under the laws of various states, then it might be inappropriate for federal question jurisdiction to obtain every time a state-law claim is made on that basis. But where, as here, one of the primary subjects of dispute between the parties is whether the federal laws in question may properly be interpreted to do that at all, the implications for the federal docket are less severe. Relatedly, the scope and limitations of a complex federal regulatory framework are at stake in this case, and disposition of the question whether that framework may give rise to state law claims as an initial matter will ultimately have implications for the federal docket one way or the other.

E

Because we conclude that the Board’s negligence and nuisance claims necessarily raise federal issues sufficient to justify federal jurisdiction, we do not reach the question whether the third-party breach of contract claim also does so. We also do not reach the question whether maritime jurisdiction provides an independent basis for federal jurisdiction in this case.

Ill

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

A

To state a claim for negligence under Louisiana law, the Board must establish, inter alia, that Defendants “had a duty to conform [their] conduct to a specific standard.” The extent of a duty is “a question of policy as to whether [a] particular risk falls within the scope of the duty.” A court must determine “whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner.” Louisiana courts consider various factors to ascertain the scope of this protection, including “whether the imposition of a duty would result in an unmanageable flow of litigation; ease of association between the plaintiffs harm and a defendant’s conduct; economic, social, and moral implications on similarly situated parties; the nature of defendant’s activity; the direction in which society and its institutions are evolving; and precedent.”

The district court held that the requirements imposed by the RHA, the CWA, and the CZMA “do not extend to the protection of [the Board].” It stated that (1) the primary purpose of the RHA is to ensure that waterways remain navigable, and' the provision therein that makes it illegal for any person to damage a levee did not impose a duty to protect the Board; (2) the CWA is meant to restore and maintain the integrity of the United States water supply, and the issuance of permits for the discharge of dredged or fill materials under it does not establish private duties; and (3) the issuance of permits licensing oil and gas exploration activities under the CZMA does not impose private duties to prevent environmental damage. The district court also denied that Louisiana state law creates a duty of care by which the Board is bound, because in the Fifth Circuit case that arguably suggested as much, Terrebonne Parish School Board v. Columbia Gulf Transmission Co., at issue was whether “a direct loss of acreage. ... due to erosion” breached “[t]he duty of two specific pipeline companies to maintain canals on specific property vis a vis a specific lessor.”

The Board argues that because the three federal statutes “set forth clear standards of care relevant to the defendants’ conduct,” and because the complaint points to the content of those statutes, the Board has stated a claim. It also points to Louisiana statutes that require coastal uses “to avoid to the maximum extent practicable” detrimental changes to sediment transport processes and coastal erosion, as well as “increases in the potential for flood, hurricane and other storm damage, or increases in the likelihood that damage will occur from such hazards.”

Defendants note both that the Board has not explained how'the federal statutes it enumerates serve to create a duty of care under state law and that the Board does not appear to allege that Defendants have caused any actual loss, because the Board states only that Defendants’ dredging activities have weakened coastal lands such that “flood protection costs” have increased. They also point to Terrebonne Parish School Board v. Castex Energy, Inc., in which the Louisiana Supreme Court found no implied duty for a mineral right lessee to restore coastline, even where the lessee was obligated by statute to “develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor.” Finally, they argue that the line of Louisiana Supreme Court cases suggesting that imposing liability for any indirect economic harm caused by a wrongful act “could create liability ‘in an indeterminate amount for an indeterminate time to an indeterminate class’ ” means that here, where the damaged party has incurred only additional costs and has not suffered any loss to property it owns, Defendants could not have been bound to protect the Board from the losses it sustained.

The district court was correct that neither federal law nor Louisiana law creates a duty that binds Defendants to protect the Board from increased flood protection costs that arise out of the coastal erosion allegedly caused by Defendants’ dredging activities. Although it is true that this court “has often held that violation of a Federal law or regulation can be evidence of negligence,” it has declined to do so where the “principal purpose” of the relevant statutes was not to protect the plaintiff. The Supreme Court’s determination that the RHA “was obviously intended to prevent obstructions in the Nation’s waterways” and that “a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself’ indicates that the Board’s asserted ground for relief on the basis of the RHA — that the Act makes it unlawful to impair in any manner, inter alia, a levee built by the United States — may not properly be brought to bear on private parties by a municipal authority.

Similar logic applies in the context of the CWA. That the CWA, its attendant regulations, and permits issued thereunder might require Defendants to maintain canals and to mitigate the environmental impact of their dredging activities might bear some relation to the general purpose of the Act, which is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” But with respect to the permits issued pursuant to the CWA that purportedly impose various maintenance requirements on Defendants, the few federal regulatory provisions that the Board cites as evidence of the contents of such permits do nothing to extend the reach of any implied duty to the protection of local government entities.

The Board’s claims with respect to the CZMA are more non-specific, and even if the Board is correct to state in its complaint that the Act imposes “a litany of duties and obligations expressly designed to minimize the adverse ... environmental effects associated with” Defendants’ activities, those duties do not protect the Board, in light of the Supreme Court’s acknowledgment that the Act “has as its main purpose the encouragement and assistance of States in preparing and implementing management programs to preserve, protect, develop and whenever possible restore the resources of the coastal zone of the United States.” The Act also states that one of its policies is to provide for “the management of coastal development to minimize the loss of life and property caused by improper development” in vulnerable areas. But the Board has not pointed to any wrong committed by Defendants that even arguably serves as "a basis for liability.

The complaint is equally vague in its references to applicable state regulations, and although the Board now notes that certain state statutes have the declared policy of serving ends similar to those supported by the above federal statutes, there is little evidence that any of the cited provisions create private liability. The best source of law for the proposition is Terrebonne Parish, in which the Fifth Circuit denied summary judgment to defendants who allegedly had breached a private duty to protect canals against breaches and widening. But that case was heavily dependent on the relationship between the litigants as parties to a servitude agreement. That case did not involve a negligence claim and certainly did not purport to extract a general duty of care from state or federal regulatory law. Additionally, as Defendants point out, Ter-rebonne Parish addressed whether a company that had dredged a canal was liable to the owners of adjacent land for the erosion caused by the widening of the canal; it did not address the indirect effects that the canal had on other land in the region by virtue of its effects on the ecosystem. The Board thus has failed to establish that Defendants breached a duty of care to it under the facts alleged, and accordingly the district court properly dismissed the negligence claim.

B

Under Louisiana law, a claim for strict liability requires that a duty of care was breached, just as a negligence claim does. There is essentially no difference between the two types of claim under Louisiana law, and to the extent any difference existed during the time period relevant to this lawsuit, that difference was only that recovery on a theory of strict Lability before 1996 did not require that the defendant had knowledge of its breach of duty. Because the Board has not stated a claim that Defendants owed it a duty of care, its strict liability claim fails along with its negligence claim.

C

The complaint alleges that the lands dredged by Defendants constitute “dominant estates” under the Louisiana Civil Code that carry a natural servitude of drain over the “servient estates” owned by the Board, because “water naturally flows” from Defendants’ property to the Board’s property. It further alleges that “Defendants have rendered the natural servitude of drain more burdensome in violation of Louisiana Civil Code article 656.” The district court dismissed the claim on the ground that there is no basis in law for “finding that a natural servitude of drain may exist between non-adjacent estates with respect to coastal storm surge.”

The Board argues that this conclusion was incorrect, noting that Louisiana Civil Code article 648 provides that “[n]either contiguity nor proximity of the two estates is necessary for the existence of a ... servitude. It suffices that the two estates be so located as to allow one to derive some benefit from the charge on the other.” The Board points to the allegations in its complaint that state that Defendants’ actions have “directly altered and continue to alter the natural course, flow, and volume of water” from Defendants’ lands to coastal lands. Defendants respond that the Board’s allegations do not amount to a claim that .Defendants’ property is “situated above” the Board’s property, as would be required for the existence of a servitude of drain under Louisiana Civil Code Article 655. Moreover, even though the complaint need not allege that the properties are adjacent or near to each other, Defendants point out that there need at least be some allegation that the properties are “close enough that surface water naturally flows from one to another.” Even more problematic, Defendants note, is the fact that “storm surge is not surface water,” and thus the fact that the Board is most concerned with damage caused by storms and hurricane-related flooding belies its claim that damage is being caused by the flow of water onto its property from some other particular property.

The explanation of the natural servitude claim contained in the complaint does little more than recite the legal requirements of such a claim. It does not name or describe the location of any of the relevant properties, and it does not explain the properties’ relation to each other, other than by way of reciting the circumstances of any natural servitude claim. It does not specify which properties constitute the servient and dominant estates, and it therefore cannot allege that any particular property receives naturally flowing surface waters from any other. The Board says that Exhibits B through G to its claim exhibit a “wealth of specificity” on these questions, but the -exhibits merely comprise a map indicating the location of the levee districts of the Southeast Louisiana Flood Protection Authority; the names and serial numbers of wells operated by Defendants; descriptions of the locations of wells subject to Defendants’ dredging permits; and descriptions of the locations subject to Defendants’ right-of-way permits. Because the Board does not argue that every single one of the hundreds of listed locations constitutes a dominant estate, it must intend only to allege that some of those locations are dominant estates. However, it has not made such an allegation. Another possibility is that its argument is that Defendants’ actions have altered the flow of water into certain bodies of water, which in turn poses a storm surge risk to the lands the Board oversees. But this would hardly constitute “[a]n estate situated below ... receiving] the surface waters that flow naturally from an estate situated above,” and thus the district court properly dismissed the servitude of drain claim.

D

Below and here, the parties analyzed both the public and private nuisance claims as arising under Louisiana Civil Code article 667, which provides that “[a]lthough a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.” For actions accruing after 1996, such proprietor “is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.” The district court held that the Board’s claims brought under this statute fail because the Board did not sufficiently allege in its complaint that it is a “neighbor” of any of Defendants’ property. The Fifth Circuit has noted that to bring an action under Article 667, “[a] plaintiff must have some interest in an immovable near the defendant-proprietor’s immovable.”

The lack of specificity that plagues the Board’s servitude claim also makes its nuisance claim little more than a restatement of Louisiana law. The complaint states generally that Defendants have “dredged a network of canals to access oil and gas wells,” and that this and other oil and gas activity have damaged Louisiana’s coast. Although the Board is correct to point out that “there is no rule of law compelling ‘neighbor’ to be interpreted as requiring a certain physical adjacency or proximity,” the Fifth Circuit has established that a complaint nonetheless must establish some degree of propinquity, so as to substantiate the allegation that activity on one property has caused damage on another. The Board is thus incorrect, to interpret the relevant law to require nothing more than a “causal nexus” between the offending property and the damage done, and in the absence. of allegations that the relevant properties were near to each other, the Board has not stated a claim for nuisance.

For the foregoing reasons, the district court’s dismissal of the Board’s claims is AFFIRMED.

      . La. Stat. Ann. § 38:330.1(F)(2)(a).

      . 33 U.S.C. §§ 401-467.

      . 33 U.S.C. §§ 1251-1388.

      . 16 U.S.C. §§ 1451-1466.

      . See Davoodi v. Austin Indep. Sch. Dist., 755 F.3d 307, 309 (5th Cir. 2014).

      . Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 258-59 (5th Cir. 2014).

      . Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).

      . Id. at 338.

      . Gunn v. Minton, - U.S. -, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006)).

      . Singh, 538 F.3d at 338.

      . Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 293 (5th Cir. 2010).

      . 295 F.3d 485, 490 (5th Cir. 2002).

      . Id.

      . La. Admin. Code tit. 43, § 719(M).

      . Id. § 701(H)(1).

      . See Terrebonne Parish Sch. Bd. v. Castex Energy, Inc., 893 So.2d 789, 801 (La. 2005) (“[W]e hold that, in the absence of an express lease provision, Mineral Code article 122 does not impose an implied duty to restore the surface to its original, pre-lease condition absent proof that the lessee has exercised his rights under the lease unreasonably or excessively.”).

      . Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

      . See, e.g., Cooper v. Int’l Paper Co., 912 F.Supp.2d 1307, 1316-17 (S.D. Ala. 2012) ("The plaintiffs’ complaint ... does not place in dispute the meaning of any provisions of federal law, and [the defendant] has not shown that a state court will be called upon to do more than apply a settled federal framework to the facts of this case.” (citation omitted)).

      . Gunn v. Minton, - U.S. -, 133 S.Ct. 1059, 1066, 185 L.Ed.2d 72 (2013); see also

        Smith v. Kan. City Title & Tr. Co., 255 U.S. 180, 198-202, 41 S.Ct. 243, 65 L.Ed. 577 (1921) (holding substantial the question in a state-law shareholder lawsuit whether the statute pursuant to which certain federal bonds were issued was constitutionally valid).

      . Gunn, 133 S.Ct. at 1067 (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989)).

      . Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (internal quotation marks omitted); cf. Gunn, 133 S.Ct. at 1066-67 (holding insubstantial the federal question whether patent lawyers being sued for malpractice could have succeeded in a prior federal patent suit by timely raising a particular argument, because "[n]o matter how the state courts resolve that hypothetical 'case within a case,' it w[ould] not change the real-world result of the prior federal patent litigation. [Plaintiff's] patent w[ould] remain invalid.”).

      . Gunn, 133 S.Ct. at 1066.

      . Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 318, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).

      . See 33 U.S.C. § 404 (allowing the Secretary of the Army to grant permits "to make deposits in any tidal harbor or river of the United States beyond any harbor lines established under authority of the United States”); 33 U.S.C. § 403 (requiring federal permission to “excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any ... canal”).

      . Singh v. Duane Morris LLP, 538 F.3d 334, 339 (5th Cir. 2008).

      . Grable, 545 U.S. at 319, 125 S.Ct. 2363.

      . See 33 U.S.C. §§ 1365(e), 1416(g); 16 U.S.C. § 1456(e).

      . See 33 U.S.C. § 403; 33 C.F.R. § 322.3(a).

      . 545 U.S. at 318-19, 125 S.Ct. 2363.

      . Id. at 319, 125 S.Ct. 2363.

      . Id.

      . See id. at 318-19, 125 S.Ct. 2363 (noting that even though "[t]he violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings,” federal jurisdiction is not always proper in such proceedings (quoting Restatement (Third) of Torts § 14, Reporter's Note, cmt. a (Am. Law Inst., Tentative Draft No. 1, 2001))).

      . Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

      . Id.

      . Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008) (quoting Lemann v. Essen Lane Daiquiris, Inc., 923 So.2d 627, 633 (La. 2006)).

      . Roberts v. Benoit, 605 So.2d 1032, 1044 (La. 1991).

      . Id. at 1044-45 (citation omitted).

      . Cormier v. T.H.E. Ins. Co., 745 So.2d 1, 7 (La. 1999).

      . 290 F.3d 303 (5th Cir. 2002).

      . La. Admin. Code tit. 43, § 701(G).

      . 893 So.2d 789, 796-97 (La. 2005); see also Barasich v. Columbia Gulf Transmission Co., 467 F.Supp.2d 676, 692 (E.D. La. 2006) (“If the Louisiana Supreme Court refused to read an implied duty to restore the surface on the facts of Terrebonne Parish, it would almost certainly decline to do so when remote parties seek to impose a general duty that has no basis in their relationship or controlling law.”).

      . PPG Indus., Inc. v. Bean Dredging, 447 So.2d 1058, 1061 (La. 1984) (quoting Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441, 444 (1931)); see MAW Enters., LLC v. City of Marksville, 149 So.3d 210, 220 (La. 2014) (limiting damages owed by city to lessor whose lessee was denied a retail alcoholic beverage permit); Bean Dredging, 447 So.2d at 1061-62 ("Because the list of possible victims and the extent of economic damages might be expanded indefinitely, the court necessarily makes a policy decision on the limitation of recovery of damages.”). ■

      . Lowe v. Gen. Motors Corp., 624 F.2d 1373, 1379 (5th Cir. 1980).

      . Audler v. CBC Innovis Inc., 519 F.3d 239, 252 (5th Cir. 2008) (quoting Till v. Unifirst Fed. Sav. & Loan Ass’n, 653 F.2d 152, 159 (5th Cir. 1981)).

      . Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) (holding that the United States may maintain a civil action against the owner of an allegedly negligently sunken vessel to recover government expenses incurred in removing the vessel).

      . 33 U.S.C. § 1251(a).

      . Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 592, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (quoting S. Rep. No. 92-753, at 1 (1972)).

      . 16 U.S.C. § 1452(2)(B).

      . Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 325 (5lh Cir. 2002); see also Barasich v. Columbia Gulf Transmission Co., 467 F.Supp.2d 676, 692 (E.D. La. 2006) (holding that oil and gas companies owed no duty, in the absence of a contractual relationship, to protect landowners from “hurricane damage from storm surge allegedly magnified by coastal erosion caused by” dredging).

      . Terrebonne Parish, 290 F.3d at 313-19.

      . Id. at 308-09.

      . See Oster v. Dep’t of Transp. & Dev., 582 So.2d 1285, 1288 (La. 1991) (“In essence, the only difference between the negligence theory of recovery and the strict liability theory of recovery is that the plaintiff need not prove the defendant was aware of the existence of the 'defect’ under a strict liability theory.”).

      . Burmaster v. Plaquemines Parish Gov’t, 982 So.2d 795, 799 n.1 (La. 2008) ("[T]he Legislature [has] effectively eliminated strict liability ... turning it into a negligence claim.” (quoting Lasyone v. Kan. City S. R.R., 786 So.2d 682, 689 n.9 (La. 2001))).

      . La. Civ. Code art. 2317.1 (noting that a strict liability claim requires "a showing that [defendant] knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.”).

      . See id. art. 655 (“An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.”).

      . See id. art. 656 ("The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.”).

      . Id. art. 655 (emphasis added).

      . Id. art 667.

      . Id.

      . Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 386 (5th Cir. 2001) (emphasis removed).

      . See id. at 385 ("To be a 'neighbor' one need not be an adjoining landowner ... ‘it suffices that they [the lands] be sufficiently near, for one to derive benefit from the servitude on the other.’ ” (quoting Ferdinand Fair-fax Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul. L. Rev. 701, 711 (1966))).

      . Id. at 387 ("To show that he is a neighbor,’ and thus legally entitled ... to maintain .[a nuisance] action, a plaintiff must show some type of ownership interest in immovable property near that of the proprietor.” (emphasis added)); see also TS & C Invs., LLC v. Beusa Energy, Inc., 637 F.Supp.2d 370, 383 (W.D. La. 2009) (dismissing class action nuisance claim because “plaintiffs have not demonstrated whose property is physically adjacent, closely adjacent or remote from the well site”); In re Katrina Canal Breaches Consol. Litig., 647 F.Supp.2d 644, 734 (E.D. La. 2009), rev’d on other grounds, 696 F.3d 436 (5th Cir. 2012) ("Although there is a paucity of guidance in the law as to the proximity required so as to be a ‘neighbor’ for purposes of [a nuisance claim], the Court finds that [three miles] is too attenuated for these plaintiffs to be so considered.”).


source: Caselaw Access Project

author: GREGG COSTA, Circuit Judge:

license: Public Domain

text:
    Panagiota HEATH, also known as Penney Heath, Plaintiff-Appellant v. BOARD OF SUPERVISORS FOR the SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE; Mostafa Elaasar, in his official and personal capacities, Defendants-Appellees
    No. 16-30625
    United States Court of Appeals, Fifth Circuit.
    Filed March 8, 2017
    Revised March 13, 2017

      Dale Edward Williams, Law Office of Dale Edward Williams, Covington, LA, for Plaintiff-Appellant.
    Elizabeth O’Connell Clinton, William Peter Connick, Sr., Connick & Connick, L.L.C., Metairie, LA, for Defendants-Ap-pellees.
    James Mark Tucker, U.S. Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission.
    Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Panagiota Heath is a math professor at Southern University’s New Orleans campus. When Mostafa Elaasar became her supervisor in 2003, she alleges he began a campaign of harassment that continued through the filing of this lawsuit a decade later. She' seeks to hold the school liable for the harassment under Title VII and Elaasar individually responsible under section 1983.

Although Heath’s allegations cover a substantial period of time, the trial court believed it could only consider the conduct occurring within 300 days of Heath’s filing of a complaint with the EEOC for the Title VII claims and within one year of filing the lawsuit for the section 1983 claims. Looking only at the conduct occurring during that narrow timeframe, the magistrate judge granted summary judgment in favor of the Defendants. The principal question in this appeal is whether the continuing violation doctrine required consideration of a lengthier period of time in evaluating the merit of Heath’s claims. Answering that question requires us to assess the impact of the Supreme Court’s decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), on earlier continuing violation decisions from this court.

I.

Taking the facts in the light most favorable to Heath as we must at the summary judgment stage, once Elaasar became chairman of the College of Natural Sciences in 2003, he began to interfere with Heath’s classes. Among other things, this took the form of rewriting exams and coercing a student to make a complaint against her. Elaasar denied Heath’s request for a sabbatical in 2008, telling her he did not believe she was capable of writing a book. Sometime in 2009, Elaasar told Heath to “stop misbehaving.” Another professor reported that Elaasar had said that Heath was excluded from meetings because she “talk[ed] too much for a woman.”

Heath filed a lawsuit in state court in 2009 asserting sex discrimination and other claims but the suit was dismissed when Heath stopped pursuing it. Sometime after Heath filed the state lawsuit, another female faculty member emailed Heath regarding a “new.culture” in the math department under Elaasar, with people, “mostly males,” who have “been known to be dominating to women.” The email stated that; “[i]f you are a strong liberal woman,” in sciences and mathematics, “then your job is going to be tough.” Another university employee wrote a letter to the administration expressing concern that Heath was being “railroaded” as the result of “cultural and gender biases.” Heath complained to Southern about Elaasar’s conduct, but the university did not respond.

Heath’s physician recommended a sabbatical due to significant job related stresses and associated health problems. Elaasar and a higher-ranking university official approved Heath’s request for leave for the 2010-2011 academic year.

According to Heath, when she returned in fall 2011, so did Elaasar’s harassment. Elaasar refused to allow her to participate in any committees, would not allow her to teach online courses or in the tutoring lab, would not permit her to write grants for the department, would not allow her to teach advanced classes, and isolated her from departmental business by meeting privately with other instructors. He refused to acknowledge her when she asked to speak in departmental meetings, and if she did speak, he cut her off. Students corroborate Heath’s contentions, describing Elaasar’s treatment of her in the classroom as “unprofessional, unwelcoming, and even aggressive;” he “belittled or otherwise spoke down when speaking to Dr. Heath, and also when speaking about her to students when she was not present.” He “would usually attempt to physically intimidate her as well as to disrespect her.” His “barbaric” treatment displayed “open hatred and contempt” for Heath. As a result, more than 200 students signed a petition asking the university to change Heath’s working environment to be “non-hostile” and “non-harassing.” Heath made multiple complaints about Elaasar’s behavior to Southern in fall 2012. There is no indication that Southern responded.

In early 2013, Heath filed a charge with the EEOC alleging a hostile work environment based on sex as well as retaliation for her state court lawsuit. The charge did not mention discrimination on the basis of race, religion, or national origin, though this lawsuit alleges that the harassment is also attributable to those factors. Heath is of Greek descent and a practicing member of the Greek Orthodox Church. In support of her claims that the harassment was also based on her national origin and religion, she recounts, among other things, Elaasar telling her that he was a “radical Muslim” and that one day Muslims would “rise and kill all the Christians.”

After the EEOC issued a right-to-sue letter, Heath filed this case making those Title VII allegations of a hostile work environment predicated on sex, race, religion, and national origin. The complaint relies on the same allegations to bring a section 1983 harassment claim against Elaasar. Finally, it asserts that the university retaliated against Heath in response to her state lawsuit.

A magistrate, judge, hearing the case by consent, granted summary judgment on all claims in favor of Defendants. She concluded that: (1) Heath did not exhaust her Title VII claims based on race, religion, or national origin; (2) the court could not consider most of the harassing conduct Heath relied on because it occurred outside the statute of limitations (300 days before the filing of her EEOC charge for the Title VII claim, and one year before the filing of her lawsuit for the 1983 claim); (3) considering only Defendants’ conduct within that window of time, Heath had not presented adequate evidence to support a hostile work environment claim; and (4) Heath had not shown that any adverse employment actions during the relevant time period were in retaliation for her state court suit.

On appeal, Heath does not challenge the dismissal of her Title VII claims based on race, religion, or national origin. That leaves for our consideration whether the district court erred by dismissing Heath’s Title VII claims for sex-based hostile work environment and retaliation, and her hostile work environment claim under section 1983 that covers various forms of discrimination.

II.

A.

The EEOC filed an amicus brief because it believes the magistrate judge neglected Supreme Court guidance on application of the continuing violation doctrine. That doctrine provides that when a plaintiff alleges a hostile work environment claim, “as long as an employee files her complaint while at least one act which comprises the hostile work environment claim is still timely, ‘the entire time period of the hostile environment may be considered by a court for the purpose of determining liability.’ ” Hartz v. Adm’rs of Tulane Educ. Fund, 275 Fed.Appx. 281, 289 (5th Cir. 2008) (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)).

In refusing to treat Heath’s hostile work environment claims as continuing violations, the magistrate judge relied on the following three factors we considered prior to the Supreme Court’s decision in Morgan: (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) whether the alleged acts are recurring or inore in the nature of an isolated work assignment or incident; and (3) whether the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001) (Celestine I). Following pre-Morgan case law that deemed the third factor to be “perhaps of most importance,” Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) (quoting Berry v. Bd. of Sup’rs of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983)), the magistrate judge held there was no continuing violation based entirely on its finding that “the resumption of [Elaasar’s] behavior after [Heath’s] return from her sabbatical should have alerted Heath to act to protect her rights” in 2011, well before she filed her EEOC complaint in 2013.

The magistrate judge did not consider Morgan. That decision distinguishes discrete acts that form the basis of traditional discrimination claims from continuing conduct that forms the basis of hostile work environment claims. Claims alleging discrete acts are not subject to the continuing violation doctrine; hostile workplace claims are. Hostile environment claims are “continuing” because they involve repeated conduct, so the “unlawful employment practice” cannot be said to occur on any particular day. Morgan, 536 U.S. at 115-17, 122 S.Ct. 2061. As long as “an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. As one circuit has helpfully described Morgan’s reasoning, a plaintiffs hostile environment claim “is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendant,” so “the filing clock cannot begin running with the first act, because at that point the plaintiff has no claim; nor can a claim expire as to that first act, because the full course of conduct is the actionable infringement.” O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).

Most notably, Morgan rejected the view of circuits like ours that had held “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” Morgan, 536 U.S. at 117-18, 122 S.Ct. 2061; see also id. at 107, 122 S.Ct. 2061 (noting that the Seventh and Fifth Circuits had adopted similar tests); and 117 n. 11 (rejecting the Seventh Circuit’s test). That now discarded view, which was reflected in Celestine I, was the basis for not treating Heath’s harassment claim as a continuing violation.

We have not expressly recognized that Morgan overruled the portion of Celestine I on which the magistrate judge relied. But see Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 407 n.9 (5th Cir. 2016) (noting Morgan abrogated Celestine I in part). Indeed, we have noted that most of Celestine I “remains good law.” Celestine v. Petroleos De Venezuela SA, 108 Fed.Appx. 180, 185 (5th Cir. 2004) (Celestine II). Celestine II, however, turns on the plaintiffs failure to identify specific acts of harassment, and does not quote or apply Celestine Is third factor that focuses on when a plaintiff was on notice to file suit.

Nor have our published post-Morgan decisions. The test they apply for assessing the viability of a continuing violation theory does not include the factor considering whether the plaintiff should have filed her complaint earlier. See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004) (noting that Morgan “clarified the limits of the continuing violations doctrine,” and not stating or applying a notice factor). For example, Stewart v. Mississippi Transport Commission, 586 F.3d 321 (5th Cir. 2009), identifies three limits on the continuing violation doctrine: (1) the plaintiff must demonstrate that the separate acts are related; (2) the violation must be continuing; intervening action by the employer, among other things, will sever the acts that preceded it from those subsequent to it; and (3) the doctrine may be tempered by the court’s equitable powers, which must be exercised to “honor Title VU’s remedial purpose without negating the particular purpose of the filing requirement.” Id. at 328 (internal quotation marks and citation omitted). There is no mention of whether an act outside the 300 day period “ha[s] the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights.” Celestine I, 266 F.3d at 352. Other continuing violation decisions have applied Stewart. See Ryals v. Am. Airlines, Inc., 553 Fed.Appx. 402, 405 (5th Cir. 2014); Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012); see also E.E.O.C. v. Rock-Tenn Servs. Co., 901 F.Supp.2d 810, 823 (N.D. Tex. 2012) (recognizing that Stewart makes clear that “the continuing violation doctrine with respect to hostile work environment claims • is more properly addressed through a post-Morgan lens” than through Celestine I).

We are not alone in recognizing that Morgan rejected the “on notice” factor Celestine I had applied. Before Morgan, the Tenth Circuit had also applied a three-part test for the continuing violation doctrine that included “whether the nature of the violations should trigger an employee’s awareness of the need to assert her rights.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003). Acknowledging that Morgan “expressly held that the date on which a plaintiff becomes aware that he or she has an actionable Title VII claim is of no regard in the context of determining the timeliness of a hostile work environment claim,” the court held that “Morgan implicitly overruled ... Tenth Circuit cases” that had held to the contrary. Id. at 1185; see also Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1139-40 (10th Cir. 2003).

Like the Tenth Circuit, we therefore expressly recognize what our-post Morgan test for the continuing violation doctrine has long implicitly acknowledged: Morgan overruled our prior cases to the extent they held that the continuing violation doctrine does not apply when an employee was or should have been aware earlier of a duty to assert her rights. As the Supreme Court explained, focusing on when harassment occurred, as opposed to when a plaintiff knew of an ongoing violation, is consistent with the text of Title VII: the statute “does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability.” Morgan, 536 U.S. at 117-18, 122 S.Ct. 2061. It also furthers the statute’s purpose, as it encourages employees to work with employers and to take advantage of other mechanisms for obtaining relief from ongoing harassment rather than rushing to bring an EEOC charge and litigation. See id. at 119-20, 122 S.Ct. 2061; Faragher v. Boca Raton, 524 U.S. 775, 806, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The magistrate judge therefore erred in using this factor to prevent Heath from showing a continuing violation that would enable her to support her harassment claim with conduct occurring more than 300 days before she filed her EEOC charge.

B.

This discussion about the continuing violation doctrine is also relevant to Heath’s section 1983 claims. That cause of action offers Heath two advantages over her Title VII claim. First, it allows her to sue Elaa-sar individually for creating a hostile work environment. Lauderdale v. Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 165-166 (5th Cir. 2007) (recognizing hostile work environment claim under section 1983). Second, she can prove the claim with harassment based not just on her sex, but also her race, religion, and national origin as section 1983 does not have the exhaustion requirement that eliminated those allegations of discrimination from her Title VII claim. The magistrate judge nonetheless held that the section 1983 claim encompassing these various forms of discrimination failed after concluding that Heath was unable to establish a continuing violation under section 1983 for the same reason she could not do so under Title VIL .

The magistrate judge’s premise was correct. The continuing violation doctrine applies the same to Title VII hostile work environment claims as it does to such claims brought under section 1983. The statute of limitations for section 1983 is supplied by state law, so Louisiana’s one year prescriptive period applies. Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Pittman v. Conerly, 405 Fed.Appx. 916, 918 (5th Cir. 2010). Tolling, which interrupts the statute of limitations after it has begun to run, is also a matter of state law. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 464, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). But accrual of a section 1983 claim, which determines when the statute of limitations begins to run, is governed by federal common law. Montgomery v. Louisiana ex rel. Louisiana Dep’t of Pub. Safety & Corr., 46 Fed.Appx. 732 (5th Cir. 2002); see also Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). The continuing violation doctrine is a federal common law doctrine governing accrual. Montgomery, 46 Fed.Appx. at 732; see Boswell v. Claiborne Parish Det. Ctr., 629 Fed.Appx. 580, 583 (5th Cir. 2015) (finding plaintiff had pleaded a continuing violation in a section 1983 denial of medical attention case). Its availability in hostile work environment claims stems from the nature of that claim, which as a “single unlawful employment practice” accrues within the limitations period so long as some of the continuous conduct occurred during that time. Morgan, 536 U.S. at 117-8, 122 S.Ct. 2061.

This recognition that Title VII continuing violation law applies with equal force to section 1983 means the same error infected the limitations analysis for Heath’s hostile workplace claims brought under both laws. Indeed, Morgan’s “distinction between ‘continuing violations’ and ‘discrete acts’ is not an artifact of Title VII, but is rather a generic feature of federal employment law.” O’Connor, 440 F.3d at 128. A number of circuits therefore have applied Morgan when determining whether a section 1983 claim alleges a continuing violation. See id.; Sharpe v. Cureton, 319 F.3d 259, 267-68 (6th Cir. 2003); Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1036 (7th Cir. 2003); Cherosky v. Henderson, 330 F.3d 1243, 1246 n.3 (9th Cir. 2003); see also Burkley v. Corr. Healthcare Mgmt. of Oklahoma, Inc., 141 Fed.Appx. 714, 716 (10th Cir. 2005) (assuming without deciding that Morgan applies); Reyes v. Weslaco Indep. Sch. Dist., 2007 WL 2538804, at *5 (S.D. Tex. Aug. 30, 2007) (applying Morgan to section 1983 hostile work environment claim); cf. Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009) (finding that, under Morgan, the continuing violation doctrine “can apply when a prisoner challenges a series of acts that together comprise an Eighth Amendment claim of deliberate indifference to serious medical needs”). The line Morgan drew between discrete act claims and ongoing harassment claims means the latter, but not the former, may qualify as continuing violations whether brought under Title VII or section 1983. And in assessing whether the challenged conduct amounts to a continuing violation, Morgan’s disclaiming of an “on notice” inquiry should also apply to section 1983 hostile work environment claims.

C.

We now determine whether Heath’s hostile work environment claims involve a continuing violation, using the Stewart standard rather than our pre-Morgan case law. In her brief, Heath asserts a continuing violation back to 2011 when she returned from her one-year leave. The conduct that she identifies from that point forward is related: as in Morgan, “the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.” 536 U.S. at 120-21, 122 S.Ct. 2061; see also Stewart, 586 F.3d at 329 (focusing on same features). There is no evidence the university took any intervening act after Heath returned from sabbatical that would have severed the continuing nature of the acts. Contrast Stewart, 586 F.3d at 329 (continuing violation was severed when employer took “prompt remedial action to protect the claimant” by reprimanding the harasser and reassigning the complainant from the harasser’s supervision). And the Defendants have pointed to no equitable consideration that should prevent the court from considering the full scope of the continuing conduct. We thus conclude that Heath has alleged a continuing course of conduct dating back to her return from leave in 2011.

D.

Because the magistrate judge’s analysis of Heath’s hostile work environment claims was dependent on her decision not to evaluate the full scope of the allegedly harassing conduct, we will remand for it to do so in the first instance. See Price v. Digital Equip. Corp., 846 F.2d 1026, 1028-29 (5th Cir. 1988) (reversing and remanding summary judgment that turned on the wrong statute of limitations). That analysis will include determining whether Heath meets the summary judgment standard for showing that the harassment occurring over the broader period was on account of her sex (for the Title VII claim) and was severe or pervasive.

To assist that inquiry, we note that in determining that Heath had not shown that harassing conduct during the shorter period was based on her sex, the court erred in placing great weight on evidence that another female faculty member did not experience similar discrimination. There “is no token exception to anti-discrimination law.” Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587-88 (7th Cir. 2011); see also Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). Title VII focuses on “the protection of the individual employee, rather than the protection of the minority group as a whole.” Connecticut v. Teal, 457 U.S. 440, 453-54, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). It does not “give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Id. at 455, 102 S.Ct. 2525; see also City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 708-09, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Indeed, Title VII “would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law.” Diaz, 653 F.3d at 587. Evidence that Defendants favorably treated another female faculty member might be relevant for a jury to consider on the ultimate question of discrimination, but it is not dispositive at the summary judgment stage to warrant judgment for the employer as a matter of law. See id.

m.

We affirm, however, the magistrate judge’s dismissal of Heath’s Title VII retaliation claim. Although Heath’s complaint can be read to allege a claim of a hostile work environment based on retaliation, the magistrate judge’s summary judgment ruling treated the retaliation claim as one based on discrete acts. Heath does not challenge that characterization on appeal, so we must treat it the same way. Such a retaliation claim based on discrete acts cannot rely on a continuing violation theory. Morgan, 536 U.S. at 105, 113, 122 S.Ct. 2061; Hamic v. Harris Cty. W.C. & I.D. No. 36, 184 Fed.Appx. 442, 447 (5th Cir. 2006). So the earliest discrete acts of retaliation on which Heath can rely must have occurred within the 300 days before she complained to the EEOC.

That prevents Heath from showing the causal connection between her protected activity and any adverse employment action that is necessary to make out a prima facie case of retaliation. Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 945 (5th Cir. 2015). The temporal proximity of those events is the only way to show causation that was considered by the trial court or advanced by Heath. The gap in time is far too long to carry that burden without other evidence of causation. The protected activity is Heath’s filing of the state lawsuit in 2009. Given the limitations period, any adverse employment action must have occurred on June 5, 2012 or later. That three year period is not the “very close in time” connection we require “to establish causation by timing alone.” Porter, 810 F.3d at 945; see, e.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that gap of five months was not enough).

The dismissal of Heath’s retaliation claim is therefore affirmed.

⅜ ⅜ ⅝

The judgment is AFFIRMED IN PART and REVERSED IN PART. The case is REMANDED for further proceedings.

      . In states like Louisiana that have “an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice;’’ in states without such an entity, an employee must file within 180 days. Morgan, 536 U.S. at 109, 122 S.Ct. 2061 (applying 42 U.S.C. § 2000e-5(e)(1)).

      . The Court explained:
      The following scenarios illustrate our point: (1) Acts on days 1-400 create a hostile work environment. The employee files the charge on day 401. Can the employee recover for that part of the hostile work environment that occurred in the first 100 days? (2) Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts between days 101-400. Can the act occurring on day 401 pull the other acts in for the purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one “unlawful employment practice” and it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts, at least not by reference to the day 401 act.

        Morgan, 536 U.S. at 118, 122 S.Ct. 2061.

      . The magistrate judge was not alone among trial courts in continuing to apply this factor from Celestine I. See, e.g., Culotta v. Sodexo Remote Sites P’ship, 864 F.Supp.2d 466, 471-72 (E.D. La. 2012); Safford v. St. Tammany

        Parish Fire Prot. Dist. No. 1, 2004 WL 32921, at *5-*6 (E.D. La. Jan. 5, 2004). Because of that confusion, we address the question at some length.

      . A few post-Morgan unpublished cases apply Celestine Ts third factor. One case held that the continuing violation doctrine did not apply because "a reasonably prudent person similarly situated” would have been alerted to act to protect his or her rights earlier. Roberts v. Unitrin Specialty Lines Ins. Co., 405 Fed.Appx. 874, 877 (5th Cir. 2010) (quoting Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). Another, applying Celestine I, found the doctrine did not apply because prior comments were “likely to alert an employee to the existence of a hostile work environment.” Butler v. MBNA Tech., Inc., 111 Fed.Appx. 230, 234 (5th Cir. 2004); see also Mack v. John L. Wortham & Son, L.P., 541 Fed.Appx. 348, 356 (5th Cir. 2013) (summarily noting that the court has considered "permanence” in applying the continuing violation doctrine). These nonbinding decisions do not consider whether Morgan overruled the earlier decisions on which they relied.
      Defendants point to another unpublished case that, in a footnote, cites pre-Morgan cases, including Celestine I, concerning plaintiff's notice. Watkins v. Recreation & Park Comm'n for City of Baton Rouge, 594 Fed.Appx. 838, 841 n.3 (5th Cir. 2014). But that case does not hold that the continuing violation doctrine does not apply if acts have alerted a plaintiff of the need to protect his or her rights; all of the incidents that supported the plaintiff's hostile work environment claim had occurred before the 300 day period began. Id.

      . We have not recognized a retaliatory hostile work environment cause of action. See Bryan v. Chertoff, 217 Fed.Appx. 289, 293 (5th Cir. 2007). Twelve circuits have. Id. at 293 n.3 (collecting cases); Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (collecting cases).

      . Heath now suggests she was retaliated against for other ways in which she objected to unlawful practices, including writing to the vice chancellor of academic affairs. Heath did not assert this argument in the district court and it therefore is forfeited.


author: JERRY E. SMITH, Circuit Judge:

text:
    Loring DESHOTEL, as Administratrix of the Estate of Amanda Riggio, Substituted in Place and Stead of Amanda Riggio, Deceased, Plaintiff-Appellant, v. WAL-MART LOUISIANA, L.L.C., Defendant-Appellee.
    No. 16-30643
    United States Court of Appeals, Fifth Circuit.
    Filed March 8, 2017

      Charles Raleigh Newman, Sr., Law Office of Raleigh Newman, Lake Charles, LA, for Plaintiff-Appellant.
    Bernard Slattery Johnson, Jr., Esq., Paul Mark Adkins, Blanchard, Walker, O’Quin & Roberts, Shreveport, LA, for Defendant-Appellee.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Amanda Riggio slipped and fell in a Wal-Mart store in September 2012. She sued, alleging that she had slipped on water that had leaked onto the floor from a negligently maintained roof. The district court entered a summary judgment in Wal-Mart’s favor. Finding multiple disputes of material fact, we reverse and remand.

I.

A.

This incident is relatively quotidian. While shopping, Riggio slipped and fell. Her sister witnessed the fall. Lorraine Johnson, a Wal-Mart employee who may or may not have been present at the fall but was certainly there immediately thereafter, retrieved a wheelchair in which Rig-gio left the store. Her sister took her to an emergency room.

Also responding was Anthony Chester, the manager, who filed an incident report that recorded the area in which Riggio slipped as “clean,” though with “small drops of water” on it, and indicated that the weather was “rainy.” The source of the water was listed as “unknown.”

Both parties acknowledge that the store had roof leaks but differ as to their scope and frequency; Riggio suggests they were occurring all over the store, but Wal-Mart claims they were confined to a few discrete areas where new skylights had been installed. Wal-Mart also maintains that there is no evidence that the water came from the roof; Riggio, unsurprisingly, disagrees.

B.

Riggio asserts that she slipped on water from the leaking roof, which Wal-Mart had negligently maintained, and thus is entitled to damages. The relevant law in this diversity case is Louisiana Revised Statutes § 9:2800.6 (B), which requires, in pertinent part, that

[i]n a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

In its motion for summary judgment, Wal-Mart averred only that Riggio could not satisfy the second prong — that is, that she could show neither that Wal-Mart created the condition that caused her fall nor that it had actual or constructive notice of the offending water. Riggio opposed summary judgment by contending that Wal-Mart created the hazard and had constructive notice of it.

II.

This court reviews a summary judgment de novo. Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is called for only “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Genuine disputes of material fact are present where a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When reviewing a summary judgment, we construe all facts and inferences in favor of the non-moving party. McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).

III.

The two pertinent questions are, first, whether Riggio has provided enough evidence that a reasonable jury could find that she slipped on water that leaked through the roof, and second, whether Wal-Mart’s purportedly negligent maintenance of the roof could suffice to show that it “created ... the condition which caused the damage” under Section 9:2800.6. Because we answer both questions in the affirmative, we reverse and remand.

A'.

The parties tell different stories regarding the cause of Riggio’s fall. In Wal-Mart’s account, she cannot establish where she fell. The store did have roof leaks, but they were in discrete locations — only under faultily installed skylights — and had been mended before the accident. In other words, according to Wal-Mart, Riggio cannot establish where she fell, but in any event it was not under a skylight.

Riggio .claims, to the contrary, that the store was plagued by a chronically leaky roof. It had been leaking since at least the beginning of 2012, had sprung new leaks with some regularity, and had continued to leak up to the day of Riggkfs injury. Indeed, it was a previously unidentified leak that caused the accident — how else to explain the water on the floor? And only after her fall did Wal-Mart fully fix the leaks.

At the summary-judgment stage, we decide only whether Riggio’s account is plausible enough that a reasonable jury could believe it. Cf. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Because there .are disputes of material fact, a jury could so believe.

The first dispute is over the weather. Riggio testified that it was damp outside, suggesting that it had recently rained. Her sister said that it had not rained that day but had been raining on preceding days. The incident report, filled out the day of the accident, listed the weather as “rainy.” If it had been raining the day of Riggio’s fall, that would suggest that leaks from the roof would have been more likely to occur.

The facts are also uncertain as to how long the leaks had persisted. Wal-Mart claims they began in May 2012, when the new skylights were installed. But Chester’s testimony suggests that the leaks predated the installation of the new skylights; he stated unequivocally that the leaks were a problem when he started his job in February 2012, even though the new skylights were not fitted until May. His testimony additionally suggests the roof was leaking on the day of Riggio’s injury. And there are photographs in the record, purportedly from that day, showing buckets and caution signs in various parts of the store. It would be odd for Wal-Mart to have continued to put out these implements if there was not concern that the roof continued to leak.

The final, and key, dispute concerns the extent of the leaks. Wal-Mart maintains they were confined to specific areas of the store — that they stemmed from the installation of new skylights and were only in specific locations. But the record also provides support for a generally leaky roof. Chester testified that there were “leaks throughout the building,” as distinguished from the isolated areas that Wal-Mart suggests were the only trouble spots.

More importantly, Chester suggested that the building was springing new leaks during that time, stating the new leaks were a “known issue” and that “anybody in the building ... would be on the lookout for new leaks that had not been identified or marked” when it rained. Moreover, there is a document, dated August 2012, that shows that Wal-Mart billed a roofing contractor for something called “roof recover.” At oral argument, Wal-Mart was unable to explain what “roof recover” meant, but a reasonable jury could conclude that such a bill suggests repairs to the entirety of the roof, as opposed to the comparatively minor skylight installations and repairs Wal-Mart has said were made.

Additionally, Riggio offered the expert affidavit of Steven Arabie, who testified that the roof was “losing its ability to prevent rain water from leaking into the building.” He based that opinion on his many years’ professional experience as a roofing contractor, his review of Chester’s testimony, and the records indicating that the roof was about twenty years old, near the end of its effective lifespan. The district court dismissed Arabie’s affidavit solely on the ground that Arabie had never inspected the roof of this particular store.

But there is no requirement that an expert derive his opinion from “firsthand knowledge or observation.” See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 876 (5th Cir. 2013) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Indeed, the expert testimony in Wellogix was startlingly similar to the evidence here: The expert based his testimony purely on his industry experience and his review of a deposition, and we held that a jury could reasonably credit his testimony. Id.

A useful contrast can be drawn between the evidence here and the evidence in Bearb v. Wal-Mart La., L.L.C., 534 Fed.Appx. 264 (5th Cir. 2013) (per curiam). There, the only evidence that a leaky skylight created a puddle on the floor was “speculation and [the plaintiffs’] own unsubstantiated statements.” We affirmed summary judgment. Id. at 265.

Here, by contrast, a jury could choose to credit both Arabie’s opinion and Chester’s testimony with regard to the fact that the roof was springing new leaks, even outside the area of the new skylights. And a reasonable jury could also conclude that it was raining, or at least had rained recently, on the day of Riggio’s fall. The only inference left for the jury would be to conclude that the “small drops of water” stemmed from the generally leaky roof. There is no direct evidence on this point, but the summary-judgment standard requires that we construe inferences in favor of the nonmoving party, McFaul, 684 F.3d at 571, and it is no great logical leap to conclude that a generally leaky roof on a rainy day may have been the cause of otherwise unexplained water on the floor.

In other words, a reasonable jury could find that the leaking roof caused Riggio’s fall. That is enough for her to survive summary judgment on this point.

B.

The next question is whether potentially negligent maintenance of a roof can qualify as “creation” of a hazard under Louisiana law. Both this court and Louisiana state courts have repeatedly considered what precisely constitutes creation of a hazardous condition.

“[T]he wording of [§ 9:2800.6(B)(2) ] ... means there must be proof that the merchant is directly responsible for the spill or other hazardous condition.” Ross v. Schwegmann Giant Super Markets, Inc., 734 So.2d 910, 913 (La. 1st Cir.), writ denied, 748 So.2d 444 (1999). When a defendant “maintains its own floors, the [plaintiffs] are not required to prove that' it had notice or constructive notice of the possible [hazard]. If there [is] a [hazard], [defendant] created it, thus, the notice requirement of La. R.S. 9:2800.6 does not apply....” Savoie v. Sw. La. Hosp. Ass’n, 866 So.2d 1078, 1081 (La. 3d Cir. 2004). We have held similarly to Sa-voie, suggesting that “courts have required proof that an employee’s action caused the plaintiffs’ injury” to impose liability under § 9:2800.6, and that because “[a]ppellants pointed neither the district court nor this court to any evidence showing that [the defendant’s] employees were responsible for the holes in [the defendant’s] roof, nor any evidence showing that [the defendant] was responsible for maintaining its own roof,” the plaintiff failed to show that the defendant created the hazard at issue. Gray v. Wal-Mart La., L.L.C., 484 Fed.Appx. 963, 966 (5th Cir. 2012) (per curiam).

Synthesizing these cases, it is evident that for the defendant to have “created” the hazardous condition, it must be “directly responsible” for the plaintiffs injuries. Ross, 734 So.2d at 913. That direct responsibility can be shown in one of two ways — either via evidence that the defendant’s employees actually created the hazard (by, for example, spilling crab salad on the floor, as was alleged in Ross) or evidence that the defendant was responsible for maintaining the area where the hazardous condition was manifest, as in Savoie and Gray.

Wal-Mart tries to elide this distinction in two ways. First, it' posits that the law requires that it must have had notice of the condition no matter what. But that is not so, as Gray and the plain meaning of the statute make clear; plaintiffs must prove either creation of the hazard or actual or constructive notice thereof. There is no requirement of notice when it comes to creation of the hazard.

Second, Wal-Mart theorizes that because the particular hazard that caused Riggio’s injury emerged not through direct action by its employees but rather through a failure to remedy a dangerous condition, Wal-Mart was not “directly responsible” within the meaning of Ross, id. Wal-Mart seems to think that so long as its employees did not personally create the leaks— by, say, making holes in the roof to affix some object — Wal-Mart escapes liability under the statute. To hold otherwise, it urges, would be to convert the statute into “strict liability.”

We do not read the statute so harshly. The ordinary meaning of “creation” admits of creation both through direct action— pounding holes into the roof with hammers — and failure to act — e.g., a failure to fix a known leaky roof, leading to the creation of hazardous puddles on the floor. And the claim that we would be reading strict liability into the statute significantly overstates the hardship to Wal-Mart, for several reasons.

First, of course, there is the procedural posture of this case, which Wal-Mart avoids. By reversing the summary judgment, we only permit a jury to find that Wal-Mart created the hazard; we make no such finding ourselves. Second, there are other provisions in the statute, which are not at issue on this appeal, that a plaintiff must satisfy before a defendant can be held liable — namely, that the condition created an unreasonable risk of harm and that the defendant failed to exercise reasonable care. See La. Rev. Stat. Ahn. § 9:2800.6(B).

Finally, Louisiana precedent is explicit that Wal-Mart’s notion is incorrect. See Savoie, 866 So.2d at 1081 (holding that because the defendant maintained the floors on which the hazard occurred, it created the hazard). Maintenance, under Louisiana courts’ interpretation of Louisiana law, is enough for creation. And Wal-Mart has not provided reasons for us to disregard that legal reality.

This case is close to Gray. But there, the plaintiffs case was deficient because the record provided evidence neither that the store was responsible for the maintenance of its own roof nor that employees had caused the roof leak. Gray, 484 Fed.Appx. at 966. Evidence satisfying either of those conditions would have sufficed to deny summary judgment. Here, by contrast, there are billing records showing that Wal-Mart paid for repairs on the roof near the date of Riggio’s fall, as well as evidence that Wal-Mart paid for a full roof repair after Riggio’s injury. We agree with Gray that evidence of “maint[enance of] its own roof’ is enough to conclude that Wal-Mart created the hazardous condition through its failure of maintenance. A reasonable jury could find that evidence here.

The summary judgment is REVERSED and REMANDED. We place no limitation on the matters the district court may address and decide on remand, nor do we suggest what are the ultimate merits of Riggio’s claim.

      . Riggio was the original plaintiff but died, so her administratrix, Loring Deshotel, was substituted. For the sake of clarity and brevity, we refer to the plaintiff as ''Riggio.”

      . Riggio has abandoned this second argument and challenges the district court’s decision only in regard to the creation of the hazard.

      . Riggio claims the buckets and caution signs were near the site of her incident, but Wal-Mart disagrees — another dispute.