Storks v. Advantage Staffing, LLC, et al, No. 2:2014cv01592 - Document 76 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying Defendants' 59 Motion for Summary Judgment on the Issue of Jones Act Seaman's Status, as stated herein. Signed by Judge Susie Morgan on 4/19/2016. (tsf)
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Storks v. Advantage Staffing, LLC, et al Doc. 76 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CH ED RICK STARKS, Plain tiff CIVIL ACTION VERSU S N O. 14 -15 9 2 AD VAN TAGE STAFFIN G, LLC, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is the “Motion for Sum m ary J udgm ent on the Issue of J ones Act Seam an’s Status” by defendants Advantage Technical Resourcing, Inc., Advantage Hum an Resourcing, Inc., Archer Daniels Midland Com pany (“ADM”) and Am erican River Transportation Co. (collectively “defendants”). 1 Defendants contend that plaintiff Chedrick Starks (“Starks”) does not qualify as a seam an under the J ones Act. Starks has filed a m em oranda in opposition to defendants’ m otion. 2 The Court granted defendants leave to file a supplem ental m em orandum after the subm ission date passed and granted plaintiff leave to respond. 3 For the reasons stated below, the Court denies defendants’ m otion. BACKGROU N D This is a m aritim e personal injury case. Plaintiff Starks was a contract laborer 1 R. Doc. 59. R. Doc. 61. 3 R. Docs. 70 , 71, & 75. 2 1 Dockets.Justia.com em ployed by defendants 4 at an ADM barge unloading facility in Reserve, Louisiana. 5 The facility appears to have been com m only referred to as a “loading rig.”6 Starks and a coworker cleared rem nants of grain from the hoppers of barges being run through a conveyor system alongside the loading rig. 7 A large excavator would clear a substantial am ount of the grain from a given barge’s hopper as the barge was run on the conveyor. 8 Starks and his co-worker would then clear grain rem nants using a bobcat that would be lowered into the given barge by a lift. 9 One worker, located on the loading rig, would operate the bobcat lift and guide a ladder into the barge. 10 The other worker would descend the ladder into the barge an d operate the bobcat. 11 Starks and his co-worker took turns operating the bobcat in the barges and operating the ladder and bobcat lift from the loading rig. 12 On Novem ber 7, 20 13, Starks suffered his alleged injury while operating the ladder and bobcat lift from 4 The parties apparently dispute which of defendants m ay be consider as Starks’ em ployer; however, the parties do not contend that the dispute is pertinent to the seam an status in quiry at issue in the instant m otion. See R. Docs. 59-7 & 62-2. For the purposes of this order and reasons only, the Court refers to “defendants” generally as Starks’ em ployer. 5 See R. Docs. 59-7 & 62-2; see also R. Doc. 59-1 at 4; Transcript of the Testim ony of Chedrick Reyon Starks at 95– 96, J an . 5. 20 16. The Court notes that m any of the basic background facts discussed in defendants’ initial m em oranda in support of sum m ary judgm ent were not supported by citations to the record. See R. Doc. 59-1 at 3– 4. Defendan ts first filed a m otion for sum m ary judgm ent on the seam an status on March 8, 20 16; however, the Court ordered defendants to refile after concluding that defen dants failed to properly cite to com petent sum m ary judgm ent evidence in accordance with Federal Rule of Civil Procedure 56(e). See R. Docs. 57 & 58. Neither defendants’ refiled brief n or their supplem ental m em orandum clearly support the background facts of this case with citations to the record. See R. Doc. 59 & 71. The Court has prim arily relied on a review of Starks’ deposition in its determ in ation that the following background facts, asserted by the parties without citation to the record, are not in dispute. 6 Id. 7 See R. Docs. 59-7, 62-2, & 71-2; see also R. Doc. 59-1 at 4; Transcript of the Testim ony of Chedrick Reyon Starks at 10 7– 21, J an. 5, 20 16. 8 Id. 9 Id. 10 Id. 11 Id. 12 Id. It appears on the record that Starks would operate the bobcat for three consecutive barges runn ing through the con veyor system and then operate the bobcat lift for the next three barges, and so on. See Transcript of the Testim on y of Chedrick Reyon Starks at 114, J an. 5, 20 16; R. Doc. 59-7 at 2. 2 the loading rig. 13 According to Starks, an unidentified object struck and broke his arm . 14 Starks filed this suit on J uly 9, 20 14, asserting claim s under the J ones Act and tort claim s under general m aritim e law. 15 On March 14, 20 16, defendants filed the instant m otion for sum m ary judgm ent, contending that Starks m ay not seek relief under the J ones Act, because he does not qualify as a seam an. 16 Defendants essentially put forward three argum ents in support of their contention that Starks does not qualify as a seam an for the purposes of the J ones Act. The first argum ent is that defendants’ barges 17 on which Starks worked were not “in navigation,” because they were always docked while Starks worked on or around them . 18 The secon d argum ent is that Starks’ connection to defendants’ barges was not sufficiently substantial in nature, because Starks’ work did not expose him to the “perils of the sea.”19 The third argum ent is that Starks’ connection to defendants’ barges was not sufficiently substantial in duration, because Starks spent less than 30 % of his work tim e on defendants’ barges. 20 Defendants’ m em orandum in support of their m otion for sum m ary judgm ent cited to barge records covering roughly the m onth leading up to Starks’ alleged injury, conten ding the records clearly indicate that Starks did not spend 30 % of his work tim e aboard defendants’ barges. Defendants’ supplem ental m em orandum contains barge records an d tim esheets that defendants contend reflect all of Starks’ time spent working on 13 See id.; see also Transcript of the Testim ony of Chedrick Reyon Starks at 143– 44, J an. 5, 20 16. Id. 15 R. Doc. 1. 16 R. Doc. 59. 17 Plaintiff refers to “defendan ts’ barges” as those barges “owned, operated and/ or m anage[d] by Defendants Am erican River Transportation Co.. and/ or Archer Daniels Midland Com pany.” See R. Doc. 75. 18 R. Doc. 59-1 at 4– 5 (citing Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 , 555, 117 S.Ct. 1535, 137 L.Ed. 2d 80 0 (1997); Richard v. Mike Hooks, Inc., No. 20 0 1-C-0 145, (La. 12/ 14/ 0 1); 799 So.2d 462). 19 Id. at 5– 10 (citing Chandris, Inc. v. Latsis, 515 U.S. 347, 368– 71, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)). 20 Id. at 10 – 12. 14 3 defendants’ barges. 21 Defendants conten d these records decisively dem onstrate that Starks spent far less than 30 % of his tim e working on defendants’ barges. 22 Starks opposes each of defendants’ three argum ents. As to defendants’ first argum ent, Starks argues that defendants’ barges were clearly “in navigation” for the purposes of the J ones Act, because they were “used, or capable of being used” for m aritim e transportation. 23 Addressing defendants’ second argum ent, Starks argues that Fifth Circuit precedent does not require that a plaintiff actually go out on navigable waters to qualify as a seam an . 24 Instead, Starks contends that the tim e he spent a significant am ount of tim e working aboard the barges and that is sufficient to establish a substantial connection in nature. 25 Finally, Starks argues that defendants have not established that Starks spent less than 30 % of his work tim e on defendants’ barges. 26 Responding to defendants’ initially supplied eviden ce and calculation of Starks’ work tim e, Starks contends defendants im properly used a “snapshot” of Starks’ work tim e, which does not adequately depict Starks’ “enduring relationship” with defen dants’ barges. 27 And Starks challenges the adm issibility and credibility of the supplem ental barge records an d tim esheets supplied by defen dants after the m otion subm ission date, noting that they are not accom panied by an affidavit or other evidence that indicates how the records were com piled and whether the records accurately and com prehensively show all the work Starks perform ed on defendants’ barges. 21 See R. Doc. 71 at 2– 3. Id. 23 R. Doc. 62 at 4– 5. 24 Id. at 7– 8 (citin g In re Endeavor Marine, Inc., 234 F.3d 287, 291– 92 (5th Cir.20 0 0 ) (per curiam )). 25 Id.; see also R. Doc. 75 at 9. 26 R. Doc. 62 at 5– 6 (citin g Chandris, 515 U.S. at 363); see also R. Doc. 75 at 7– 8.. 27 Id. 22 4 AN ALYSIS I. Se a m a n Statu s The J ones Act provides that “[a] seam an injured in the course of em ploym ent . . . m ay elect to bring a civil action at law, with the right of trial by jury, against the em ployer.”28 Defendants argue Starks cannot recover under the J ones Act because he is not a seam an. The Act does not define “seam an”; instead, the task has been left to the courts. 29 The inquiry is whether the injured plaintiff is a “m aster or m em ber of a crew of any vessel.”30 A. Standard of Law When considering a m otion for sum m ary judgm ent, the Court m ust view the eviden ce an d any inferences drawn from the eviden ce in the light m ost favorable to the non-m ovant to determ ine whether there is a genuine issue of m aterial fact and whether the m ovant is entitled to sum m ary judgm ent as a m atter of law. 31 Whether an injured worker is a seam an under the J ones Act is a m ixed question of law and fact. 32 Because statutory term s are at issue, their interpretation is a question of law, and it is the Court's duty to define the appropriate standard. 33 “The J ones Act is rem edial legislation and as such should be liberally construed in favor of injured seam en.”34 Nevertheless, sum m ary judgm ent is proper where the underlying facts are undisputed and the record reveals no evidence from which 28 46 U.S.C. § 30 10 4. See In re Endeavor Marin e, 234 F.3d at 290 ; N aquin v. Elevating Boats, L.L.C., 744 F.3d 927, 932 (5th Cir. 20 14); St. Rom ain v. In dus. Fabrication and Repair Serv., Inc., 20 3 F.3d 376, 378 (5th Cir. 20 0 0 ). 30 See N aquin, 744 F.3d at 932; Roberts v. Cardinal Serv ., Inc., 266 F.3d 368, 374 (5th Cir. 20 0 1). 31 See Buras v . Com m ercial Testing & Eng’g Co., 736 F.2d 30 7, 30 9 (5th Cir. 198 4). 32 See St. Rom ain, 20 3 F.3d at 378. 33 Chandris, 515 U.S. at 369. 34 Guidry v . S. La. Contractors, Inc., 614 F.2d 447, 455 (5th Cir.1980 ). 29 5 reasonable persons m ight draw conflicting inferences about whether the claim ant is a J ones Act seam an. 35 If reasonable persons could draw conflicting inferences, it is a question for the jury and sum m ary judgm ent m ust be denied. 36 “[T]he issue of seam an status is ordinarily a jury question, even when the claim to seam an status is m arginal.”37 Thus, sum m ary judgm ent on seam an status in J ones Act cases is rarely proper. 38 Finally, the Court notes that district courts have no obligation to survey the entire record in search of evidence to support a party’s position. De la O v. Hous. Auth. Of City of El Paso, Tex., 417 F.3d 495, 50 1 (5th Cir. 20 0 5). B. Discussion Despite som e guidance from Congress and the courts, drawing a distinction between seam en and non-seam en has proved difficult. In Chandris, Inc. v. Latsis, the Suprem e Court explained that, to qualify as a J ones Act seam an, a m aritim e em ployee m ust have a “substantial em ploym ent-related connection to a vessel in navigation.”39 The Court developed a two-pronged analysis to guide the determ ination of seam an status. 40 First, the em ployee's duties m ust “contribut[e] to the function of the vessel or to the accom plishm ent of its m ission.”41 Second, the em ployee “m ust have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in term s of both its duration and its nature.”42 35 Id.; see also Ellender v. Kiva Const. & Eng’g, Inc., 90 9 F.2d 80 3, 80 5– 0 6 (5th Cir. 1990 ); Barrios v. Engine & Gas Com pressor Serv., Inc., 669 F.2d 350 , 352 (5th Cir.1982). 36 See Buras, 736 F.2d at 30 9; Chandris, 515 U.S. at 369, 115 S.Ct. 2172. 37 W hite v. Valley Line Co., 736 F.2d 30 4, 30 5 (5th Cir. 1984). 38 See Bouvier v . Krenz, 70 2 F.2d 89, 90 (5th Cir. 1983). 39 Chandris, 515 U.S. at 356 (em phasis in original). 40 See id. at 368– 69. 41 Id. at 368 (quotin g McDerm ott Intern ., Inc. v. W ilander, 498 U.S. 337, 355, 111 S.Ct. 80 7, 112 L.Ed.2d 866 (1991)). 42 Id. 6 Defendants dispute—without stated reason—that Starks m eets the first prong of the Chandris test, stating only that they leave the first prong of Chandris unaddressed, because sum m ary judgm ent is warranted on other grounds. 43 Because defendants do not substantively address the first prong of Chandris, the Court leaves the topic unaddressed. 44 At least for the purposes of this m otion for sum m ary judgm ent, the Court’s determ ination of whether Starks m ay qualify as a seam an under the J ones Act turns on whether he has a connection to a vessel or group of vessels: 1) in navigation; 2) that is substantial in nature; and 3) that is substantial in duration. 1. Vessel in N avigation Defendants’ first argum ent is that the barges at issue in this case were not “in navigation,” because they have no crew, engin es for propulsion, steering, or other features associated with vessels and because Starks was not involved with the barges when they actually were in navigation. 45 Defendants cite to no legal authority supporting their argum ent that barges like the ones in question here are not vessels in n avigation. 46 In Stew art v. Dutra Const. Co., the Suprem e Court exam in ed pertinent statutory provisions to determ ine the m eaning of “vessel” for the purposes of the J ones Act. 47 The Court m ade clear that, in order for a watercraft to be considered a “vessel” for the purposes of the J ones Act, the watercraft need only “be ‘used, or capable of being used, as a m eans of 43 See R. Doc. 59-1 at 3 n.1. Without m oving for sum m ary judgm ent on the issue, Starks does address the first prong of Chandris, noting that Starks “n eed only show that [he] does the ship’s work.” R. Doc. 62 at 2– 3 (citing In re Endeavor Marine, Inc., 234 F.3d at 290 ). The Court notes its skepticism as to defendants’ unelucidated contention that Starks’ work clearing out grain from a fleet of grain-carrying barges does n ot constitute “the ship’s work.” 45 R. Doc. 59-1 at 4– 5. 46 See id. 47 543 U.S. 481, 48 8– 90 , 125 S.Ct. 1118 , 160 L.Ed.2d 932 (20 0 5). 44 7 transportation on water.’”48 The Court in Stew art em phasized that it does not m atter whether the watercraft in question was in m otion or stationary at the tim e of the plaintiff’s alleged injury. 49 The Court cited to two precedential cases treating barges or watercraft com parable to barges as “vessels.”50 Only where a watercraft has “been withdrawn from the water for extended periods of tim e” m ight it be possible that a watercraft once capable of being used for transportation on water could lose its status as a vessel. 51 More recently, the Court in Lozm an v. City of Riviera Beach, Fla. em phasized that courts should consider whether the watercraft in question was “designed to a practical degree for ‘transportation on water.’”52 Here, the parties do not apparently dispute that the barges in question were regularly put to use transporting grain on n avigable waters. The fact that the barges were being run through the loading rig’s conveyor system at the tim e of Starks’ alleged injury is im m aterial to the determ ination of whether the barges are vessels “in navigation” for the purposes of the J ones Act. Starks, of course, m ust still establish that he had a connection to an identifiable fleet of the grain barges that was substantial in both nature and duration. The Court m ay conclude as a m atter of law, however, that the barges at question in this case were vessels in n avigation. 53 48 Id. at 496. Id. at 496. 50 See id. at 492, 492 n .6 (citing, e.g., N orton v. W arn er Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944) and Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 528 – 30 , 10 3 S.Ct. 2541, 76 L.Ed.2d 768 (1983)). 51 See id. at 496. 52 Lozm an v. City of Riviera Beach, Fla., _ _ _ U.S. _ _ _ , 133 S.Ct. 735, 742– 43, 184 L.Ed.2d 60 4 (20 13). 53 The Court notes a line of Fifth Circuit precedent in volving grain facilities apparently like the “loading rig” in this case. See generally W aguespack v. Aetna Life & Cas. Co, 795 F.2d 523 (5th Cir. 1986); Jones v . Miss. River Grain Elevator, Co., 70 3 F.2d 10 8 (5th Cir. 1983). A review of these cases indicates that the respective plaintiffs were unable to establish a substantial con nection to the grain barges com ing in from the river, and instead attem pted to argue that the loadin g rig-like facilities were them selves vessels. See id. Because 49 8 2. N ature Defendants next argue that Starks’ connection to the grain barges at issue in this case was not sufficiently substantial in n ature. Specifically, defen dants argue that Starks’ work aboard the grain barges in question did not expose him to the “perils of the sea.”54 Defendants’ argum ent hinges prim arily on the Suprem e Court’s 1997 decision in Harbor Tug and Barge Co. v. Papai and a variety of non-binding authority. 55 In Harbor Tug, the Court noted that the “nature” inquiry “m ust concentrate on whether the em ployee’s duties take him to sea.”56 Defendants contend Fifth Circuit precedent created in the wake of Harbor Tug m ay not require that a plaintiff actually go to sea; however, has reaffirm ed that a plaintiff must be regularly exposed “to the special hazards and disadvantages to which they who go down to sea in ships are subjected.”57 Defendants (and Starks) fail to address the Fifth Circuit’s 20 14 decision in N aquin v. Elevating Boats, L.L.C.. The Fifth Circuit in N aquin expressly held that a plaintiff need not literally work on the open sea in order to qualify as a seam an. 58 The vessel repairm an plaintiff in N aquin, “ordinarily” serviced vessels while they were anchored or docked an d only occasionally serviced vessels while they were m oved within a canal or on open water. 59 Addressing the defendant’s argum ent that the plaintiff perform ed “classic lan dbased harbor worker duties” and was not sufficiently exposed to the perils of the sea, the N aquin court stated that “courts have consistently rejected the categorical assertion that Starks does not apparently contend that the loadin g rig itself was a vessel, but rather argues that he had a substantial conn ection to defendants’ grain barges, cases such as W aguespack and Jones are inapposite in this case. 54 R. Doc. 71 at 3– 4. 55 See R. Doc. 59-1 at 5– 10 . 56 520 U.S. 548, 555, 117 S.Ct. 1535, 137 L.Ed. 2d 80 0 (1997). 57 R. Doc. 71 at 4 (quoting In re Endeavor Marine, 234 F.3d at 292. 58 N aquin, 744 F.3d at 934– 35; see also In re Endeavor Marine, Inc., 234 F.3d at 289. 59 744 F.3d. at 930 – 31. 9 workers who spend their tim e aboard vessels near the shore do not face m aritim e perils.”60 The N aquin court concluded that it did not m atter that the plaintiff in question “was rarely required to spend the night aboard a vessel, that the vessels he worked upon were ordinarily docked, an d that he alm ost never ventured beyond the im m ediate can al area or onto the open sea.”61 The Court noted that certain “traditional longshorem an work . . . m ay qualify for seam an status” where the plaintiff can establish “the requisite em ploym ent-related connection to the vessel.”62 The N aquin court clearly indicated that the key inquiry is whether the worker is “exposed to the perils of a m aritim e work environm ent.”63 Here, the Court concludes, in light of Naquin, that Starks has adequately established that his work involved a substantial connection in nature to the barges in question. It does appear that Starks worked aboard the barges only while they were connected to the loading rig’s conveyor system ; however, the Court finds the activity of clearing grain from inside a barge’s hopper to be sufficiently analogous to the sort of work perform ed by the plain tiff in N aquin. Starks’ work inside the grain barges exposed him to the perils of a m aritim e work environm ent. The Court therefore concludes that Starks’ connection to the barges in question could be sufficiently substantial in nature to satisfy the test laid out in Chandris. 60 744 F.3d. at 934. 61 Id. 62 Id. at 932 n.12 (quotin g In re Endeavor Marine Inc., 234 F.3d at 291). 744 F.3d. at 934 (citing Stew art, 543 U.S. at 497). The Court acknowledges the dissent in N aquin, which essentially supports and m irrors defendants’ argum ent and cites with favor to one of the non-binding cases cited to by defendants. See id. at 941– 44 (J ones, J . dissenting) (citin g Richard v. Mike Hooks, Inc., 20 0 1C-0 145 (La. 10 / 16/ 0 1); 799 So.2d 462). The dissent, which was not cited to or discussed by defendants, does not provide an adequate basis for the Court to stray from the guidance in In re Endeavor Marine and N aquin. 63 10 3. Duration Even though Starks can establish that the activity of clearing grain from inside a barge’s hopper constitutes a sufficiently substantial connection in nature to the identified barges, Starks still m ust establish that such a connection was also substantial in duration. Defendants in itially cited to just over a m onth’s worth of barge records to put forward a calculation of Starks’ work tim e indicating that Starks worked in or around defendants’ barges far less than 30 %. 64 In opposition, Starks contended that the cited records did not provide an adequate basis for rebutting Starks’ own testim ony that he had worked clearing grain from barges for two years and spent roughly “80 to 8 5 percent” of his tim e clearing grain from barges in the control of defendants. 65 After the subm ission date for the m otion, defendants sought leave to file a supplem ental m em oranda that supplies a revised calculation of Starks’ work tim e based on tim e sheets and barge records that defendants contend span the full extent of Starks’ tim e spent working on the loading rig clearing grain. 66 Starks challenges the adm issibility of the supplem ental records, noting that defendants provide no affidavit or other eviden ce indicating how the records were com piled or whether they actually reflect all of the tim e Starks spent working aboard defendants’ barges. 67 With regard to the substantial duration requirem ent, Chandris recognized the Fifth Circuit's “rule of thum b” for the ordinary case that, generally, a “worker who spends less than about 30 percent of his tim e in the service of a vessel in n avigation should not 64 See R. Doc. 59-1 at 10 – 12. See R. Doc. 62 at 6. 66 See R. Doc. 71. 67 See R. Doc. 75. 65 11 qualify as a seam an under the J ones Act.”68 The 30 percent figure, however, “serves as no m ore than a guideline . . . and departure from it will certainly be justified in appropriate cases.”69 The Fifth Circuit has further explained that “[t]he 30 percent floor does not change when an ‘identifiable group’ of vessels in navigation is at issue, rather than just one vessel.”70 The Court in Chandris also stated that “[i]n evaluating the em ploym ent-related connection of a m aritim e worker to a vessel in navigation, courts should not em ploy ‘a snapshot test for seam an status, inspecting only the situation as it exists at the instant of injury; a m ore en durin g relationship is contem plated in the jurisprudence.”71 The Court in Chandris quoted with favor the Fifth Circuit’s decision in Barrett v. Chevron, U.S.A., Inc., which lays out the general rule that the duration prong is typically determ ined “‘in the context of [plaintiff’s] entire em ploym ent’ with his current em ployer.”72 The Fifth Circuit in W ilcox v. W ild W ell Control recen tly reaffirm ed the general rule laid out in Barrett and quoted favorably in Chandris. 73 An exception to the rule in Barrett is appropriate only where the plaintiff’s work assignm ent was substantially changed at som e point during the plaintiff’s em ploym ent. 74 Starks’ reply to defendants’ supplem ental m em orandum indicates that the parties do not dispute that Starks spent from August 20 , 20 13, until the tim e of his alleged injury on Novem ber 7, 20 13, clearing grain barges for defendants. 75 Furtherm ore, the parties do 68 Chandris, 515 U.S. at 371. Id. 70 Roberts v . Cardinal Services, Inc. 266 F.3d 368, 375 (5th Cir. 20 0 1). 71 Chandris, 515 U.S. at 363. 72 Chandris, 515 U.S. at 366 (quotin g Barrett v. Chevron U.S.A., Inc., 781 F.2d 10 67, 10 75 (5th Cir. 1986) (en banc)). 73 W ilcox v. W ild W ell Control, Inc., 794 F.3d. 531, 536– 37 (5th Cir. 20 15). 74 Id. (citing Barrett v. Chevron U.S.A., Inc., 781 F.2d 10 67, 10 75 (5th Cir. 1986) (en banc)). 75 See R. Doc. 71 at 2 & 75 at 7. 69 12 not apparently dispute the am ount of hours Starks spent clearing barges generally. 76 Beyond that, the Court concludes there is a genuine issue of m aterial fact regarding how m uch tim e Starks spent working aboard defendants’ barges. The Court does not reject the possibility that the supplem ental barge records provided by defendants could accurately reflect that Starks spent far less than 30 % of his tim e aboard defen dants’ barges. However, the Court agrees with Starks’ argum ent that the records, as subm itted, do not decisively settle how m uch tim e Starks spent aboard the barges. There is no eviden ce in the record clearly indicating who com piled the barge records or whether the records com prehensively reflect the am ount of tim e Starks spent working aboard defendants’ barges. The Court notes further that defendants—likely in control of the barge records from the start of this litigation—have com e forward with this possibly com prehen sive evidence only after the m otion deadline in this case passed and barely one m onth before the scheduled trial date. Indeed, it appears that defendants could have presented this evidence to Starks and established its authenticity and com prehensiveness m onths, if not years ago. Without ruling on the adm issibility of the barge records at trial, the Court concludes that the records do not constitute sufficient eviden ce for the Court to conclude, on a m otion for sum m ary judgm ent, that Starks spent less than 30 % of his tim e working aboard defendants’ barges. Starks stated in his deposition that he spent roughly 8 0 to 8 5 percent of his tim e working on grain barges under the control of defendant ADM. 77 Defendants argue that Starks’ statem ents about which barges he worked on are based on unreliable an d 76 77 Id. Transcript of the Testim on y of Chedrick Reyon Starks at 260 , J an. 5, 20 16. 13 inadm issible hearsay, because his only basis for knowing how to identify barges was inform ation provided to him by his forem an. 78 Defendants do not elucidate further their hearsay argum ent, and a review of the cited portions of Starks’ deposition transcript does not clearly support the conclusion that Starks’ statem ents about the am ount of tim e he spent working on defendants’ barges would be entirely inadm issible evidence. Instead, defendants’ attack on Starks’ testim ony appears to center m ore on the credibility of Starks’ statem ent about which barges he worked on. That attack m ay be put before a jury, but m ay not be considered by a court on a m otion for sum m ary judgm ent. As such, the Court concludes that there is a genuine dispute of m aterial fact as to whether Starks spent roughly 30 % of his tim e working aboard defen dants’ barges. CON CLU SION Perhaps in part because of defendants’ failure to com e forward with their eviden ce earlier, the Court concludes that defendants are not entitled to sum m ary judgm ent on the issue of Starks’ J ones Act seam an status. The determ ination of a plaintiff’s seam an status is typically a fact-inten sive question for the jury. This is true even in m argin al cases. In this case, defendants have not m ade a sufficient showing that the factual record is settled such that the Court could determ ine that Starks was not a J ones Act seam an as a m atter of law. 79 78 See R. Doc. 59-1 at 11; R. Doc. 59-2 at 13– 15. The Court finds it appropriate to briefly note its disappointm ent with counsel for defense. Most all of defendants’ argum ents in this m otion were m ade either without citation to controlling legal authority or without due discussion of legal authority apparently underm inin g defendants’ positions. Defendants cited virtually no legal authority to support their argum en t that the barges in question were not vessels in navigation, despite there clearly bein g legal authority to discuss. See R. Doc. 59-1 at 4– 5. Defendants, both in their initial and supplem ental m em orandum did not discuss the Fifth Circuit’s decision in N aquin in m aking their argum ent that Starks’ connection to the barges was not substantial in nature. See id. at 5– 10 ; R. Doc. 71. Furtherm ore, defendants initially did not address the clearly established rule from Barrett— recently reaffirm ed in W ilcox—regardin g how to determ ine a Starks’ durational connection to the barges. See R. doc. 59-1 at 10 – 12. The Court rem inds counsel of their obligations under Local Rule 7.4, Louisiana 79 14 Accordingly; IT IS H EREBY ORD ERED that defendants’ “Motion for Sum m ary J udgm ent on the Issue of J ones Act Seam an’s Status” is D EN IED . 80 N e w Orle a n s , Lo u is ian a, th is 19 th d ay o f Ap ril, 2 0 16 . __________ ______ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE Code of Ethics Rules 1.1 an d 3.3, and Federal Rule of Civil Procedure 11(b)(2). The Court will expect all future argum ents of counsel to be based upon sound legal authority and to include appropriate citation to the factual record. 80 R. Doc. 59. The Court further orders the Clerk of Court to m ark as resolved R. Doc. 57 (defendants’ initial m otion for sum m ary judgm ent on Starks’ J ones Act seam an status, which the Court ordered to be refiled in R. Doc. 58). 15
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