Dennis v. ESS Support Services Worldwide et al, No. 2:2015cv00690 - Document 63 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 40 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan. (bwn)
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Dennis v. ESS Support Services Worldwide et al Doc. 63 U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A GEORD ON D EN N IS, Plain tiff CIVIL ACTION VERSU S N o . 15-6 9 0 ESS SU PPORT SERVICES W ORLD W ID E, ET AL D e fe n d an ts SECTION "E"( 4 ) ORD ER AN D REASON S Before the Court is a m otion for partial sum m ary judgm ent filed by Defendant, S.H.R.M. Catering Services, Inc. d/ b/ a/ Eurest Support Services (“ESS”).1 ESS seeks sum m ary judgm ent on Plaintiff Geordon Dennis’ m aintenance-and-cure claim under the Fifth Circuit’s decision in McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547 (5th Cir. 1968).2 The m otion is opposed.3 The Court deferred its consideration of the m otion pursuant to Rule 56(d) to perm it plaintiff to conduct certain additional discovery.4 ESS tim ely re-urged the motion pursuant to the Court’s orders, Plaintiff tim ely responded, and the m otion is now before the Court on the briefs and without oral argum ent.5 For the reasons that follow, the Court denies ESS’ m otion. BACKGROU N D This is a m aritim e personal injury case. Plaintiff Geordon Dennis (“Dennis”) claim s that, on or about Septem ber 21, 20 14, he suffered injuries while working for ESS on board a vessel owned and m aintained by Seadrill Am ericas, Inc.6 While Plaintiff’s com plaint 1 R. Doc. 40 . See R. Docs. 40 -1, 52 & 55. 3 R. Docs. 42, 48, & 60 . 4 R. Doc. 53. 5 R. Docs. 55 & 60 . 6 R. Doc. 1. 2 1 Dockets.Justia.com does not m ake it explicit, the parties apparently agree that Dennis worked aboard the rig SEVAN LOUISIANA as a utility hand and that his claim s against Defendants center on the allegation that he fell out of his top bunk, which Dennis asserts should have had a guard rail.7 Dennis initially alleged injuries to his head, neck, and back and later claim ed injuries to his right ankle.8 Dennis has m ade m aintenance and cure claim s against ESS.9 Dennis filed the instant lawsuit on March 4, 20 15, asserting causes of action for negligence, unseaworthiness, and m aintenance and cure, as well as punitive dam ages for the willful and wanton failure to pay m aintenance and cure.10 ESS originally filed this m otion for partial sum m ary judgm ent on Dennis’ m aintenance and cure claim s on March 7, 20 16. ESS argues Dennis is not entitled to m aintenance and cure, because recovery for his alleged ankle injury is precluded under McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547 (5th Cir. 1968) and because he has reached m axim um m edical cure on his other alleged injuries.11 ESS argues that Dennis intentionally concealed evidence of a significant pre-existing injury to his ankle, the disclosure of which would have m aterially im pacted ESS’ decision to hire Dennis and which is causally related to his current alleged ankle injury. With ESS’ liability for Dennis’ alleged ankle injury precluded by a McCorpen defense, ESS argues that Dennis is wholly precluded from bring a m aintenance and cure claim , because has achieved m axim um m edical cure on his other alleged injuries.12 Furtherm ore, ESS seeks a ruling that Dennis 7 R. Docs. 40 -2 at 2, 40 -4 at 5, & 42-2 at 1.; see also generally R. Doc. 44. Id. 9 Id. 10 R. Doc. 1. 11 See R. Doc. 40 -1 at 12– 16. 12 See id. at 17– 18; see also R. Doc. 55 at 15. ESS initially sought a determ ination that Dennis has also reached medical m axim um cure on his ankle injury; however, ESS’ supplem ental m em orandum re-urging sum m ary judgm ent apparently concedes that “plaintiff m ay be able to argue that Dr. Bostick has done enough to create confusion over whether plaintiff is at the point of m axim um m edical cure with respect to his alleged right ankle injury.” R. Doc. 55 at 15. 8 2 m ay not seek punitive dam ages related to Defendant’s paym ent of m aintenance and cure or lack thereof, because ESS has paid Dennis m aintenance paym ents and has reasonably relied on treating physicians in determ ining that Dennis has no cure issue.13 On April 28, 20 16, the Court denied ESS’ m otion for sum m ary judgm ent without prejudice, finding that pertinent discovery was still on-going as to the relation between Dennis’ prior ankle injury and his alleged ankle injury.14 SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”15 “An issue is m aterial if its resolution could affect the outcom e of the action.”16 When assessing whether a m aterial factual dispute exists, the Court considers “all of the evidence in the record but refrains from m aking credibility determ inations or weighing the evidence.”17 All reasonable inferences are drawn in favor of the non-m oving party.18 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 19 If the dispositive issue is one on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”20 If the 13 R. Docs. 40 -1 at 18– 19 & 55 at 16. R. Doc. 53. 15 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 16 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 17 Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). See also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 18 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 19 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 20 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 14 3 m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist.21 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, as in this case, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the nonm ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record to establish an essential elem ent of the non-m ovant’s claim .22 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied.23 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”24 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”25 21 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Brennan, J ., dissenting). 23 See id. at 332. 24 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n.3. 25 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citations and internal quotation m arks om itted). 22 4 LAW AN D AN ALYSIS I. McCorpen Defense ESS m aintains, under the Fifth Circuit’s decision in McCorpen, that Dennis is not entitled to be paid m aintenance and cure with regard to his alleged right ankle injury because he concealed a prior right ankle fracture from ESS.26 “Maintenance and cure is a contractual form of com pensation afforded by the general m aritim e law to seam en who fall ill or are injured while in the service of a vessel.”27 A seam an’s em ployer m ay, however, rely on certain legal defenses, such as the “McCorpen defense,” to deny claim s for m aintenance and cure.28 In McCorpen, the Fifth Circuit concluded that, while m aintenance and cure m ay be awarded to a seam an who has suffered from a pre-existing injury, a seam an forfeits his or her right to m aintenance and cure when he or she fails to disclose certain m edical facts, or m isrepresents those facts, when asked about them in connection with an em ploym ent application.29 An em ployer will prevail on this defense, absolving the em ployer of its obligation to an injured seam an, by establishing: (1) the seam an intentionally concealed or m isrepresented inform ation concerning a prior m edical condition or injury; (2) the m isrepresented or concealed inform ation was m aterial to the em ployer’s decision to hire 26 See generally R. Docs. 40 -1 & 55. Jauch v. Nautical Servs., Inc., 470 F.3d 20 7, 212 (5th Cir. 20 0 6). 28 Brow n v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 20 0 5). See also Lett v. Om ega Protein, Inc., 487 F. App’x 839, 848 (5th Cir. 20 12). 29 McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547, 549 (5th Cir.), cert. denied, 393 U.S. 894 (1968). See also Brow n, 410 F.3d at 170 – 71, 73 (quoting McCorpen, 396 F.2d at 549 (“[W]here the [em ployer] requires a seam an to subm it to a pre-hiring m edical exam ination or interview and the seam an intentionally m isrepresents or conceals m aterial m edical facts, the disclosure of which is plainly desired, then he is not entitled to an award of m aintenance and cure.”)). 27 5 the seam an; and (3) a causal connection between the non-disclosed injury or condition and an injury or condition com plained of in the suit at bar.30 ESS, as the party seeking sum m ary judgm ent, has the burden of establishing there are no m aterial facts in dispute and, therefore, ESS is entitled to judgm ent as a m atter of law on Dennis’ m aintenance-and-cure claim . ESS’ sum m ary-judgm ent burden, as applied to the McCorpen defense, requires ESS to establish the absence of disputed m aterial facts with respect to each of the three prongs of the defense. ESS is unable to do so with respect to McCorpen’s third prong, m eaning sum m ary judgm ent m ust be denied. A. Concealm ent The first prong of the McCorpen defense—the “intentional concealm ent” prong— is “an essentially objective inquiry,” and does not require a finding of subjective intent to conceal or m isrepresent m edical inform ation on the part of the seam an.31 “McCorpen’s intentional concealm ent prong neither necessarily turns on credibility nor requires a subjective determ ination.”32 “Failure to disclose m edical inform ation in an interview or questionnaire that is obviously designed to elicit such inform ation satisfies the ‘intentional concealment’ requirem ent.”33 In this case, the parties disagree on the application of this prong of the McCorpen defense. ESS points to an April 24, 20 13, m edical report, signed and initialed by Dennis that clearly diagnoses a “fracture right fibula (lateral m alleolar fracture) (with subluxation).”34 30 McCorpen, 396 F.2d at 548– 49. See also Johnson v. Cenac Tow ing, Inc., 544 F.3d 296, 30 1 (5th Cir. 20 0 8) (citations om itted); Brow n, 410 F.3d at 171. 31 Brow n, 410 F.3d at 174. 32 Id. at 175. 33 Id. at 174 (citing Vitcovich v. OCEAN ROVER, O.N., 10 6 F.3d 411 (9th Cir. 1997)). 34 See generally R. Doc. 48-1. The Court notes that the details of Dennis’ past m edical treatment were not detailed in the parties’ statem ent of uncontested facts; however, Dennis subm itted the April 24, 20 13, m edical report, apparently conceding their authenticity and accuracy. See Rec. Doc. 48 at 2. 6 The report includes a “General Instructions” docum ent also initialed by Dennis that clearly states “You have been given the following additional inform ation: FRACTURE:ANKLE” and includes a “follow-up” instruction for Dennis to see an orthopedist.35 ESS also points to the testim ony of Dennis’ treating doctors for his current injury, who note that the previous fracture did not heal properly and should have been surgically repaired.36 ESS then points to m edical questionnaires Dennis com pleted when seeking em ploym ent with ESS roughly fifteen m onths later, which asked Dennis to swear that the inform ation he supplied was true “as in a court of law” and inform ed him that failure to respond truthfully could result in the loss of m edical treatm ent and benefits.37 Dennis m arked “No” next to the question asking whether he had ever had “Broken Bones / Fractures / Dislocations.”38 On another questionnaire, Dennis denied ever having an injury to his feet or legs and generally denied having any type of prior injury.39 ESS further argues that Dennis denied he had ever suffered an ankle fracture when asked by his treating physician, Dr. Robert Bostick (“Dr. Bostick”).40 Asserting that the concealm ent prong is an objective inquiry, ESS argues that Dennis clearly concealed his prior ankle fracture.41 Dennis argues that, regardless of what the m edical report says, he believed at the tim e he suffered only an ankle sprain, and points to testim ony of the doctors who have treated his current ankle injury supporting the conclusion that Dennis likely suffered both 35 Id. at 12– 13. The parties apparently agree that Dennis did not seek follow-up treatm ent with the orthopedist. 36 R. Docs. 40 -5 at 6– 8 & 55-2 at 16 37 See R. Doc. 40 -4 at 28– 31. 38 Id. at 28. 39 Id. at 30 – 30 . 40 R. Doc. 55-2 at 13– 14. 41 R. Doc. 55 at 11– 12. 7 a high ankle sprain and a fracture.42 Dennis asserts that the doctors’ testim ony also reveals that Dennis was forthcom ing about the prior injury in general.43 Dennis further argues that ESS has pointed to no evidence indicating his m obility was in any way lim ited while he worked for ESS or that he had intent to conceal his ankle fracture.44 The Court finds ESS has established that Dennis intentionally concealed or m isrepresented the pre-existing injury to his ankle. ESS is correct that the intentional concealm ent prong of a McCorpen defense “is an essentially objective inquiry.”45 The Fifth Circuit has held that the “[f]ailure to disclose m edical information in an interview or questionnaire that is obviously designed to elicit such inform ation satisfies the ‘intentional concealm ent’ requirem ent.”46 Dennis does not deny having previously received m edical treatm ent for his right ankle or signing and initialing various portions of the m edical report and general instructions clearly indicating that he had been diagnosed with a fracture. Dennis’ failure to disclose the fracture when questionnaires he com pleted for ESS clearly elicited such inform ation satisfies the intentional concealm ent requirem ent. The Court is not persuaded that Dennis’ subjective belief he suffered only a sprain or his argum ent that he lacked actual intent to conceal is relevant to the Court’s analysis, as the intentional concealm ent prong does not require an inquiry into subjective intent of the em ployee.47 42 See R. Doc. 48 at 2; see also R. Doc. 60 -1 at 4– 5; R. Doc. 60 -2 at 11. Id. 44 R. Doc. 60 at 9. 45 See Ladnier v. REC Marine Logistics, L.L.C, Civ. A. No. 14-1278, 20 15 WL 3824382 at *2 (E.D.La. J un. 19, 20 15) (Morgan, J .). 46 See Brow n v. Parker Drilling Offshore Corp., 410 F.3d 166, 174 (5th Cir. 20 0 5). 47 Id. 43 8 B. Materiality The Court therefore m oves to the second prong of McCorpen. ESS m ust show Dennis’ m isrepresentation or concealm ent was m aterial to ESS’ hiring decision. Inform ation is considered m aterial for purposes of the McCorpen defense when “an em ployer asks a specific m edical question on an application, and . . . the inquiry is rationally related to the applicant’s physical ability to perform his job duties.”48 If, however, a plaintiff shows he would have been hired regardless of whether the concealm ent was m aterial, the em ployer losses on the second prong. The m ateriality prong of a McCorpen defense is an issue of fact.49 Dennis apparently concedes m ateriality, but argues he would have been hired despite the m ateriality of the questionnaire’s inquiry about his past m edical history. 50 Indeed, the record is clear that ESS specifically asked questions on the pre-em ploym ent questionnaires relating to broken bones and injuries to Dennis’ feet and legs. Furtherm ore, ESS has provided a declaration of its HSEQ Coordinator, establishing that Dennis’ utility hand position required extensive standing and walking and frequent clim bing, balancing, stooping, kneeling and lifting.51 It is clear that the questionnaire sought inform ation about Dennis’ m edical history and health that was rationally related to Dennis’ physical ability to serve as a utility hand. The declaration of ESS’ HSEQ Coordinator states that, had Dennis disclosed his prior right ankle injury, ESS would have required Dennis to provide further m edical inform ation, such as m edical records associated with the injury, which would have m ade clear that Dennis had previously 48 Id. at 175. See Cal Dive Intern., Inc. v. Grant, Civ. A. No. 11-1657, 20 13 WL 10 99157 (Mar. 15, 20 13) (Morgan, J .). 50 See R. Doc. 60 at 11. 51 R. Doc. 40 -10 . 49 9 suffered a fracture.52 The declaration further states that ESS also would have required Dennis to undergo further evaluation and testing, before reaching a decision to hire him .53 Despite apparent m ateriality, Dennis argues that ESS would have hired him regardless of the past ankle injury, pointing to a statem ent in his conditional offer of em ploym ent and a statem ent in one of the questionnaires that ESS would have denied em ploym ent only if it was not possible for Dennis to perform the job with reasonable accom m odations.54 Dennis argues that ESS would have hired Dennis even if he had disclosed the past fracture, because he was still able to (and did) perform the essential functions of a utility hand up until the tim e of his alleged injury. 55 The Court is not persuaded that Dennis has produced sufficient evidence to prove ESS would have hired him even if he had disclosed the prior fracture. The evidence is clear that Dennis not only previously fractured his ankle, but that the fracture healed im properly and should have been surgically repaired.56 Dennis’ argum ent that ESS would have m ade a reasonable accomm odation based on representations in the questionnaire and conditional offer of em ploym ent is too speculative, particularly given that ESS has com e forward with sufficient evidence dem onstrating that it would have sought Dennis’ m edical records from the fracture and would have investigated and tested the im properly healed ankle further. As such, the Court concludes that ESS has satisfied the second prong of its McCorpen defense. 52 See id.; R. Doc. 48-1. R. Doc. 40 -10 . 54 See R. Doc. 40 -4 at 28– 31. 55 See R. Doc. 60 at 12. 53 56 10 C. Causality To establish the third elem ent of a McCorpen defense, ESS m ust establish a connection between the concealed m edical fact and the injury that led to the claim for m aintenance and cure benefits. The present injury need not be identical to the previous injury. Instead, “[a]ll that is required is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.”57 Causality can be established by showing that the previous injury and the new injury occurred in the sam e location on the body.58 The inquiry is “whether the new injury is related to the old injury, irrespective of their root causes.”59 In this case, the dispute boils down to whether Dennis’ “high ankle” fracture relates to Dennis’ current alleged “low ankle” injury. The Court is confronted with conflicting opinions regarding Dennis’ current ankle injury. Dennis’ first treating physician, Dr. David Rabalais (“Dr. Rabalais”), has testified that Dennis’ fall irritated the prior fracture and “didn’t cause the m ajor problem [Dennis] has in his ankle.”60 Dr. Bostick, Dennis’ currently treating physician, has testified it is his opinion that the two injuries are unrelated.61 ESS would have the Court question the credibility of Dr. Bostick’s m edical opinion and Dennis’ underlying statem ents to Dr. Bostick about his condition and thereby rely exclusively upon the testim ony of Dr. Rabalais,62 but ESS offers no support to show such a credibility determ ination—related to a genuine dispute of m aterial fact—would be appropriate at the sum m ary judgm ent phase. Without any clear authority for the Court 57 Brow n, 410 F.3d at 176 (internal quotation m arks and citation om itted). Id. 59 Ladnier, 20 15 WL 3824382 at *5 (quoting Johnson v. Cenac Tow ing, Inc., 410 F.3d 166, 176 (5th Cir. 20 0 5)). 60 R. Doc. 40 -5 at 13. 61 R. Doc. 60 -2 at 6– 8. 62 R. Doc. 55 at 9– 10 58 11 to conclude that the ankle generally is a singular location on the body and faced with conflicting evidence regarding whether Dennis’ low-ankle injury resulted from the past ankle fracture, the Court cannot conclude that ESS has established that there is no genuine dispute of m aterial fact regarding causality in this case. As such, the Court cannot conclude that ESS has established a valid McCorpen defense as a m atter of law. II. Maxim um Medical Cure The right to m aintenance and cure term inates when a seam an reaches “m axim um possible cure,” m eaning it is probable that further treatm ent will not better the seam an’s condition.63 As ESS apparently concedes,64 ESS’ argum ent that it is no longer obligated to pay Dennis further m aintenance and cure depends upon a finding that ESS is entitled to a McCorpen defense regarding Dennis’ alleged ankle injury.65 The Court has concluded that ESS is not entitled to sum m ary judgm ent on its McCorpen defense regarding Dennis’ alleged ankle. Furtherm ore, while the parties do not appear to dispute that Dr. Rand Voorhies (“Dr. Voorhies”)—the doctor treating Dennis for his neck and back—has not recom m ended surgery,66 the record is unclear on whether either Dr. Voorhies or Dr. Bostick has actually cleared Dennis to return to work.67 As such, genuine disputes of m aterial fact preclude the Court from ruling that ESS is no longer obligated to pay Dennis further m aintenance and cure. III. Punitiv e Dam ages ESS argues that Dennis cannot state a claim for punitive dam ages related to ESS’ alleged failure to provide m aintenance and cure, because Dr. Rabalais concluded Dennis 63 Boudreaux v. U.S., 280 F.3d 461, 468 (5th Cir. 20 0 2). R. Doc. 55 at 15. 65 See R. Doc. 55 at 15. 66 See R. Doc. 55 at 15; R. Doc. 60 at 19– 20 . 67 See R. Doc. 40 -6. 64 12 had reached m axim um m edical cure and because ESS reasonably concluded that it has a viable McCorpen defense on Dennis’ alleged ankle injury and has otherwise provided m aintenance and cure. Each claim for punitive dam ages “is to be evaluated on its own facts,” though there is precedent supporting punitive dam ages where an em ployer was lax in investigating the seam an’s m aintenance and cure claim or where the em ployer failed to reinstate benefits following the diagnosis of an ailm ent previously not determ ined m edically.68 ESS principally supports its argum ent by reference to an unpublished, per curiam Fifth Circuit decision, MNM Boats, Inc. v. Johnson, 248 F.3d 1139, 20 0 1 WL 85860 (5th Cir. 20 0 1). The decision, at m ost, establishes that a seam an does not have a per se right to punitive dam ages when an em ployer decides not to pay benefits in light of a dispute between physicians over the seam an’s condition.69 The Court concludes that the record is not sufficiently clear that ESS conducted a sufficient investigation of Dennis’ m aintenance and cure claim before deciding not to pay benefits related to Dennis’ alleged ankle injury. The record does not m ake clear the extent to which ESS investigated Dennis’ claim in light of the m edical evaluation and surgery recom m endation of Dr. Bostick, but rather indicates that ESS m ade its decision not to pay benefits for Dennis’ alleged ankle injury solely on Dr. Rabalais’ earlier determ ination that Dennis had reached medical m axim um cure.70 On this record, the Court cannot conclude as a m atter of law that Dennis is not entitled to punitive dam ages. Accordingly, 68 69 70 See Breese, 823 F.2d 10 0 , 10 3 (5th Cir. 1987). See MNM Boats, 20 0 1 WL 85860 at *1. See R. Doc. 55 at 8. 13 IT IS ORD ERED that ESS’ m otion for partial sum m ary judgm ent 71 be and hereby is D EN IED . N e w Orle an s , Lo u is ian a, th is _ _ _ _ d ay o f Ju ly, 2 0 16 . _____________________________ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 71 R. Doc. 40 14
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