Tamez v. Anadarko Petroleum Corporation et al, No. 2:2015cv04941 - Document 115 (E.D. La. 2017)
Court Description: ORDER AND REASONS Granting 99 Motion for Summary Judgment. ORDERED that Defendants' Motion for Summary Judgment as it relates to Stranco Rental, LLC is GRANTED, and Plaintiff's claims against Stranco Rental, LLC, be and hereby are DISMI SSED WITH PREJUDICE. FURTHER ORDERED that Defendants' Motion for Summary Judgment as it relates to Stranco Services, LLC is GRANTED, and Plaintiff's claims against Stranco Services, LLC, be and hereby are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 10/2/2017. (clc)
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Tamez v. Anadarko Petroleum Corporation et al Doc. 115 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ROMEO TAMEZ, Plain tiff CIVIL ACTION VERSU S N O. 15-4 9 4 1 AN AD ARKO PETROLEU M CORPORATION , ET AL., D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is a Motion for Sum m ary J udgm ent filed by Defendants Stran co Services, LLC (“Services”) and Stranco Rental, LLC (“Rental”). 1 Rental seeks sum m ary judgm ent arguing “there are no factual or legal bases for any liability exposure”2 on its part; Services seeks sum m ary judgm ent pursuant to the Fifth Circuit’s “borrowedem ployee doctrine.”3 Plaintiff opposes the m otion as it relates to Services. 4 I. BACKGROU N D Plaintiff alleges that on or about October 13, 20 14, he sustained serious burns to his face, chest, neck and other parts when breaking down a flange aboard the LUCIOUS SPAR, a platform located off the Gulf of Mexico, 5 which Plaintiff alleges Defendants owned, operated and/ or m anaged. 6 Plaintiff’s injuries occurred when a blast of 1 R. Doc. 99. R. Doc. 99 at 1. 3 Id. 4 R. Doc. 113. 5 Although Plaintiff in itially claim ed the LUCIOUS SPAR was a vessel, the parties have since stipulated that it is not a vessel, but rather a platform . R. Doc. 45, at 1. 6 R. Doc. 1. 2 1 Dockets.Justia.com pressurized air and water hit him while he was dism antling a flange 7 after a fellow em ployee “didn’t bleed off that section where the check valve was.”8 Stranco Group, LLC (“Stranco”) owns and is the sole m em ber of Rental; 9 sim ilarly, Stranco owns and is a m em ber of Services. 10 Defendant Anadarko Petroleum Corporation (“Anadarko”) is the owner/ operator of the LUCIOUS SPAR. 11 To assist with the platform ’s operation, Anadarko contracted with Defendant Dolphin Services, LLC (“Dolphin”), which, in turn, contracted with Stranco to perform the hydrostatic testing and torquing on the LUCIOUS SPAR. 12 Stranco designated Services as the Stran co entity responsible for perform ing the testing on the platform . 13 On May 27, 20 17, Rental entered into a Master Service Contract 14 with Technical Marine Maintenance Mississippi, LLC (“TMM”), a contract labor provider that hires out qualified personnel to com panies in the hydrostatic testing and torquing industry. 15 TMM hired Plaintiff in 20 13 or 20 14. 16 TMM provided Plaintiff with regular safety classes before sending him to work. 17 Thereafter, TMM dispatched Plaintiff to Services’ office where Services personnel interviewed Plaintiff for work on the LUCIOUS SPAR. 18 Once Services approved Plaintiff, Services 7 Id. R. Doc. 99-4 at 39. 9 R. Doc. 99-6 at 1. 10 Id. 11 R. Doc. 99-1 at 20 ; R. Doc. 81 at 3. 12 R. Doc. 99-6 at 2. More specifically, Rental entered in to an agreem ent with Gulf Island Fabrication, Inc. and its subsidiaries, including Dolphin . Id. Thereafter, pursuant to the agreem ent between Rental and Gulf Island, Rental and Dolphin entered into a subcontractor agreem ent regarding hydrostatic testing services to be perform ed on the LUCIOUS SPAR. Id. 13 R. Doc. 99-6 at 2. 14 R. Doc. 113-3. 15 R. Doc. 99-4 at 5; R. Doc. 99-5 at 18. 16 R. Doc. 99-4 at 3– 4. The exact date is not clear. Plain tiff recalls bein g hired in “[20 ]14. Maybe [20 ]13.” Id. 17 Id. at 14. 18 Id. at 17– 18. 8 2 flew him and other Services em ployees to the platform to begin working. Plaintiff worked on the LUCIOUS SPAR from this tim e until he was injured on October 13, 20 14. 19 On October 2, 20 15, Plaintiff filed his Original Com plaint against Anadarko, Rental, Dolphin, and twenty “J ohn Doe” Corporations. 20 On Decem ber 6, 20 16, Plaintiff filed his second supplem ental and am ended com plaint additionally nam ing Services as a defendant. 21 On J uly 24, 20 17, Defendants Service and Rental filed a m otion for sum m ary judgm ent. 22 Rental argues it is undisputed that Plaintiff’s injuries were caused by hum an error. Thus, Rental avers, because the tools it supplied were not faulty, Plaintiff has no cause of action against it. Services argues it is im m une from tort liability under the borrowed servant doctrine. II. LEGAL STAN D ARD Sum m ary judgm ent is proper only “if the m ovant shows that there is no genuine dispute as to any m aterial fact an d the m ovant is entitled to judgm ent as a m atter of law.”23 “An issue is m aterial if its resolution could affect the outcom e of the action.”24 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing 19 Although it is unclear when Plaintiff’s em ploym ent with Services began , Plaintiff worked on the LUCIOUS SPAR shortly after he began his em ploym ent with TMM, R. Docs. 99-2 at 2, 113-1 at 2, which was “six or seven m onths before the accident happen ed,” R. Doc. 113-10 at 5. It is undisputed that “Plaintiff worked for no other com pany other than Stranco from the tim e he was hired by TMM until a year after the accident at issue herein.” R. Docs. 99-2 at 3, 113-1 at 3. Plaintiff worked between fourteen and twenty-one day “hitches” while on the platform . R. Doc. 113-4 at 160 ; R. Doc. 113-10 at 12. According to his deposition testim ony, although it is not clear exactly how long Plaintiff worked on the LUCIOUS SPAR before his in jury, it is undisputed that it was at least two weeks. R. Doc. 113-4 at 159 (“I m ight have been there like two or three hitches” “). 20 R. Doc. 1. 21 R. Doc. 52. After filin g his original com plaint, Plaintiff has filed four supplem ental and am ended com plaints. R. Docs. 23, 52, 63, 86. The rem ain ing Defendants in this case are Rental; Services; Dolphin; Anadarko; M&J Energy Group, LLC; Delta Constructors, Inc; Gibson Applied Technology & Engineering Texas, Inc. See R. Docs. 23, 52, 63, 86. 22 R. Doc. 99. 23 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 24 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 3 the eviden ce.”25 All reasonable inferen ces are drawn in favor of the non-m oving party. 26 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. 27 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion[] and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.”28 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, to satisfy Federal Rule of Civil Procedure 56’s burden, the m oving party m ust do one of two things: it “m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .”29 When the m oving party chooses the latter option it m ust affirm atively show the absence of evidence in the record. This m ay require the m oving party to depose the nonm oving party’s witnesses or to establish the inadequacy of docum entary evidence. If there is literally no eviden ce in the record, the m oving party m ay dem onstrate this by reviewing for the court the adm issions, interrogatories, and other exchanges between the parties that are in the record. 30 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries its burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the 25 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8 ); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 26 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 27 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Am oco Prod. Co. v. Horw ell En ergy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 28 Celtic Marine Corp. v. Jam es C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 20 14) (quoting Celotex, 477 U.S. at 323). 29 Celotex, 477 U.S. at 331. 30 Id. (internal citation om itted). 4 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. 31 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 eviden ce already in the record that was overlooked or ignored by the m oving party.”32 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence.”33 Rather, “the party opposing sum m ary judgm ent is required to iden tify specific eviden ce 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.’”34 III. AN ALYSIS In its m otion for sum m ary judgm ent, Rental avers Plaintiff’s evidence is insufficient to establish an essential elem ent of his negligence cause of action; specifically, Rental offers evidence dem onstrating its only involvem ent with Plaintiff was to supply Services with tools and equipm ent for its work on the LUCIOUS SPAR and that “there were no problem s or deficiencies with respect to the tools.”35 Plaintiff does not contest these facts. 36 Sim ilarly, Services conten ds no m aterial fact issue rem ain s, and it is entitled to judgm ent as a m atter of law because Plaintiff was Services’ borrowed-em ployee. This portion of Defendants’ m otion is opposed. 37 31 Id. at 322– 25. Id. at 332– 33. 33 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324). 34 Id. (quoting Skotak v. Ten neco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)) (citing Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). 35 R. Doc. 99-1 at 22. 36 See generally R. Doc. 113. 37 R. Doc. 113. 32 5 As an initial m atter, Plaintiff m akes m uch of the fact that TMM’s contract was with Rental, not Services. The Court finds this distinction im m aterial—with which com pany TMM contracted is not an elem ent of the Court’s borrowed servant analysis. 38 Moreover, in this case, Dolphin entered into an agreem ent with Stranco, which designated Services as the Stranco entity responsible for providin g the contracted for services. Under TMM’s contract with Rental, Rental “at all tim e[s]” retained “the right to award such work as it deem s appropriate.”39 Rental has no em ployees. 40 Thus, any work Rental deem ed appropriate for TMM em ployees was based on Services’ needs. Contrary to Plaintiff’s assertions, that TMM did not hold a sim ilar contract with Services directly does not create a m aterial fact dispute sufficient to preclude this Court’s granting of sum m ary judgm ent. Instead, the Court looks to “[t]he reality at the worksite and the parties’ actions in carrying out a contract”41 in determ ining whether Plaintiff was Services’ borrowed-em ployee. A. Re n tal’s Liability Rental argues “there are no factual or legal bases for any liability exposure to Rental”42 and that, although Rental “furnished certain tools and equipm ent used by the 38 See Melancon v. Am oco Prod. Co., 834 F.2d 1238 , 1244 (5th Cir.), m odified on reh’g, 841 F.2d 572 (5th Cir. 198 8). 39 R. Doc. 113-3 at 2. 40 Id. at 2– 3. On this point, Rental offers the testim ony of Quinn M. Strander, an owner and m em ber of the Stranco Group, LLC. R. Doc. 99-6 at 1– 3. Plaintiff’s cites two pieces of evidence in opposition to this fact. First, Plaintiff points to the Master Service Contract, without explanation. R. Doc. 113-1 at 4 (“Contested; Plaintiff was workin g on the LUCIUS SPAR pursuan t to a contract between TMM and Stranco Rental, LLC.”). However, the contract’s existence does not create a m aterial fact dispute as to whether Rental has em ployees; Plaintiff did not becom e Rental’s em ployee by virtue of the contract. See R. Doc. 113-3. Second, Plaintiff argues “[Plaintiff’s] supervisors are not identified as either Stranco Services, LLC or Stranco Rental, LLC em ployees,” and because “the deposition of Plaintiff conducted by Sttanco [sic] Rental, LLC[,]which suggests he was under the direction of supervisors from both com panies or one or the other.” R. Doc. 113-2 at 2– 3. Defen dants offered evidence that the “Stranco” em ployees on the platform to which Plaintiff referred were in fact Services’ em ployees. R. Doc. 99-6 at 1– 3. Plaintiff does not dispute this. Further, Services and Rental are represented by the sam e attorney. R. Doc. 99-2 at 6. Thus, Plaintiff has not created a m aterial fact dispute as to whether Rental has em ployees. 41 See, e.g., Melancon, 834 F.2d at 1245. 42 R. Doc. 99-1 at 1. 6 [Services] crew for the work,” “there is no evidence whatsoever to even suggest that such tools and/ or equipm ent played any causal role in the accident.”43 In his m em orandum in opposition, Plaintiff addresses Rental’s argum ent only in passing, m erely stating that “Defendants’ m em orandum . . . incorrectly asserts that there is ‘no factual or legal basis for any liability exposure against Rental.’”44 He does not otherwise oppose Rental’s argum ent. Thus, the Court finds the m otion for sum m ary judgm ent, as it relates to Rental, is unopposed. Although the dispositive m otion is unopposed, sum m ary judgm ent is not autom atic, and the Court m ust determ ine whether Plaintiff has shown entitlem ent to judgm ent as a m atter of law. 45 In support of its m otion, Rental provides evidence dem onstrating that (1) Rental’s role on the LUCIOUS SPAR was lim ited to supplying tools and equipm ent to Services, 46 (2) all of the tools and equipm ent it supplied were in good working order, 47 (3) Plaintiff’s accident was caused by hum an error, 48 and (4) the em ployee whose error caused the accident was a Services em ployee. 49 In the absence of any opposition filed by Plaintiff, the Court concludes that this satisfies Plaintiff’s burden to show that the Plaintiff does not have a direct action against Rental. Thus, judgm ent in favor of Rental is warranted. 43 Id. at 2. R. Doc. 113 at 1. 45 See, e.g., Fed. R. Civ. P. 56(a); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 20 0 6). 46 R. Doc. 99-6 at 2– 3. 47 Id. at 3– 4; R. Doc. 99-6 at 2– 3. 48 R. Doc. 99-2 at 5; R. Doc. 113-1 at 3. 49 R. Doc. 99-2 at 5; R. Doc. 113-1 at 4 (“Plaintiff acknowledges that [Services’] em ployees were the workers who caused the accident.”). 44 7 B. W h e th e r Plain tiff w as Se rvice s ’ bo rro w e d s e rvan t If Plaintiff was Services’ borrowed-em ployee, Services is vested with tort im m unity, and the Court must dism iss Plaintiff’s claim s against it. 50 Whether Plaintiff was Services’ borrowed-em ployee is a question of law, 51 and “if sufficient basic factual ingredients are undisputed, the court m ay grant sum m ary judgm ent.”52 Borrowedem ployee status is governed by the Fifth Circuit’s decision in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969). In Ruiz, the Fifth Circuit identified nine factors to be used in determ ining whether an em ployee is a borrowed-em ployee of another entity. 53 The factors include: (1) Who had control over the em ployee and the work he was perform ing, beyond m ere suggestion of details or cooperation? (2) Whose work was being perform ed? (3) Was there an agreem ent, understandin g, or m eeting of the m inds between the origin al and the borrowing em ployer? (4) Did the em ployee acquiesce in the new work situation? (5) Did the original em ployer term inate his relationship with the em ployee? (6) Who furnished the tools and place for perform ance? (7) Was the new em ploym ent over a considerable length of tim e? (8 ) Who had the right to discharge the em ployee? (9) Who had the obligation to pay the em ployee? 54 50 English v. W ood Group PSN , Inc., No. 15-568, 20 15 WL 50 61164, at *14 (E.D. La. Aug. 25, 20 15) (citations om itted) (“If the Plaintiff is W & T Offshore’s borrowed-em ployee, W & T Offshore will thus be vested with § 90 5(a) tort im m unity.”). 51 Delahoussay e v. Perform ance Energy Servs, L.L.C., 734 F.3d 389, 393 (5th Cir. 20 13). 52 Capps v. N .L. Baroid-N L Indus., 784 F.2d 615, 617 (5th Cir. 1986). 53 Ruiz v. Shell Oil Co., 413 F.2d 310 , 312– 13 (5th Cir. 1969). 54 Melancon, 834 F.2d at 1244 (citing Ruiz, 413 F.2d at 312– 13; Capps, 784 F.2d at 616– 17; W est v. KerrMcGee Corp., 765 F.2d 526, 530 (5th Cir. 1985); Alday v. Patterson Truck Line, In c., 750 F.2d 375, 376 (5th Cir. 1985); Hall v. Diam ond M. Co., 732 F.2d 1246, 1249 (5th Cir. 1984); and Gaudet v. Exxon, 562 F.2d 351, 355 (5th Cir. 1977)). 8 “While the courts do not use a fixed test and do not decide the issue based on one factor, the courts place the m ost em phasis on the first factor, control over the em ployee.”55 The Court considers each Ruiz factor in turn. 1. W ho has control over the em ploy ee and the w ork he is perform ing? As explained above, although no single factor or com bination of factors is dispositive, the Fifth Circuit “has considered the first factor—control—to be the central factor.”56 This factor requires the Court to distinguish “between authoritative direction and control, and m ere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.”57 Services contends it had authoritative direction and control over Plaintiff because, “From the m om ent plaintiff was sent by TMM to [Services] to work aboard the LUCIUS SPAR, plaintiff worked under the direct supervision and control of [Services] personnel.”58 According to Services, it, not TMM or Rental, sent Plaintiff to work on the LUCIOUS SPAR, “where he was put in a crew working under the direction of a [Services] team leader.”59 In response, Plaintiff agrees that he (1) was “a contract laborer” “working with other technicians em ployed by [Services]”; 60 and (2) “did not perform any work directly for TMM, but rather worked for com panies to whom he was provided by TMM,” subject to the term s of the Master Service Agreem ent. 61 55 Capps, 784 F.2d at 617 (citing Ruiz, 413 F.2d at 312; and Hebron v. Union Oil Co. of Ca., 634 F.2d 245, 247 (5th Cir. 1981) (per curiam )). 56 Brow n v. Union Oil Co. of Cal., 984 F.2d 674, 677 (5th Cir. 1993) (per curiam ). 57 Ruiz, 413 F.2d at 313 (internal quotation m arks om itted) (quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 222 (190 9)). 58 R. Doc. 99-1 at 7. 59 R. Doc. 99-1 at 8. 60 R. Doc. 99-2 at 2; R. Doc. 113-1 at 2 (“Plaintiff concedes that Stanco [sic] Services, LLC was tasked with perform in g the testing an d torqueing [sic] and plaintiff was a contract laborer working with other em ployees of . . . Services . . . .”). 61 R. Doc. 99-2 at 2; R. Doc. 113-1 at 2; R. Doc. 99-4 at 8 . 9 In Melancon v. Am oco Production Co., the Fifth Circuit affirm ed the district court’s finding, am on g others, that the control factor weighed in favor of borrowedem ployee status. 62 In particular, the Fifth Circuit concluded that Am oco, the alleged borrowing em ployer, “clearly had control” over the plaintiff because the plaintiff “took orders” from Am oco personnel “who told him what work to do, and when and where to do it.”63 The Fifth Circuit further explain ed that the lending em ployer in Melancon “gave no instructions” to the plaintiff “except to go to the Am oco field and perform the work requested by Am oco personnel.”64 Sim ilarly, in Billizon v. Conoco, Inc., the Fifth Circuit again affirm ed the district court’s finding that the control factor weighed in favor of borrowed-em ployee status. 65 In support, the Fifth Circuit explained that the plaintiff was regularly supervised by an em ployee of Conoco, the alleged borrowing em ployer. 66 Moreover, the plaintiff attended “daily tailgate m eetings” conducted by Conoco personnel to “discuss safety and workrelated issues.”67 The Fifth Circuit in Billizon also noted that no supervisors from the plaintiff’s lending em ployer were in the field to oversee his work. 68 In this case, Services em ployees supervised Plaintiff’s work, not TMM. Plaintiff’s entire tenure with Services was spent working on the LUCIOUS SPAR where he took orders, directions, and instructions from Services personnel and Services personnel alone. 69 In his deposition testim ony, for exam ple, Plaintiff testified 62 834 F.2d at 1244– 45. Id. at 1245. 64 Id. 65 Billizon v. Conoco, Inc., 993 F.2d 10 4, 10 5 (5th Cir. 1993). 66 Id. 67 Id. 68 Id. 69 R. Doc. 99-2 at 2– 4; R. Doc. 113-1 at 2– 4. 63 10 Q: Whatever work you were going to be perform ing [on] the LUCIUS SPAR was instructed to you by the [Services] team leader; correct? A: Yes. Q: The other crew m em bers that worked under the [Services] team leader, if they were em ployed by TMM, they would likewise get their in structions from the [Services] team leader? A: If they are working that crew, that’s where they get their instructions from . 70 From these undisputed facts, and in light of Fifth Circuit case law detailed above, it is clear that Services had authoritative control over Plaintiff and that Plaintiff took direction from Services personnel. Although Plaintiff concedes “from the tim e [he] was sent to [Services] by TMM, through the date of the accident, [he] worked exclusively under a crew of other [Services] em ployees under a team leader em ployed by [Services],”71 Plaintiff nevertheless argues that TMM controlled his work, which would weigh against a finding that Plaintiff was a borrowed-em ployee of Services. 72 Plaintiff points to the contract between TMM and Services, the Master Service Contract, 73 as support for the position that he was subject to the direction and control of TMM. 74 The Master Service Contract states, however, that Rental “m ay term inate any particular work or service being perform ed under [the] contract at any tim e at its sole discretion.”75 Even if TMM had retained the right to hire, fire, and discipline its em ployees, this does not lead to the conclusion that Plaintiff was, under the Ruiz test, subject to the 70 R. Doc. 99-4 at 22– 24. Plaintiff also stated that the team leaders, who were em ployed by Services, would take orders from other Services supervisors who would “give [the team leader] a list, the packet of what needs to be done. And then [the team leader] would com e to us [and say,] ‘Okay, we’re going to need these tools and these tools. We’re going onto this floor and this deck and this deck. And we’re gon na [sic] do this, this, and this. Okay.’” R. Doc. 99-4 at 23. 71 R. Doc. 113-1 at 2; R. Doc. 99-2 at 2. 72 R. Doc. 113-2 at 3. 73 R. Doc. 113-3. 74 R. Doc. 113-2 at 3. 75 R. Doc. 113-3 at 6. 11 authoritative direction and control of TMM. In Kindred v. Blake International Holdings, L.L.C., a court in this district faced sim ilar facts and concluded that, even when the lending em ployer retained som e sort of authority over the em ployee, it was clear that the borrowing em ployer had “authoritative direction and control” over the em ployee. 76 In Kindred, the em ployee (1) “received his daily work assignm ents” from the borrowing em ployer’s personnel, (2) was directly supervised by the borrowing em ployer’s personn el, and (3) had “little contact” with his lending em ployer during the “nearly two years” he worked on the borrowing em ployer’s oil-and-gas production platform . 77 There was also eviden ce, however, that the em ployee attended “sporadic safety training classes” with his lending em ployer and received “som e post-accident direction” from his lending em ployer.”78 Nevertheless, the Kindred court concluded that “those facts do not preclude a finding of borrowed-em ployee status when [the borrowing em ployer’s] personnel told him ‘what work to do, and when and where to do it.’”79 The court further found that, even where the lending em ployer retained som e authority over the em ployee, the em ployee was subject to the “authoritative direction and control” of the borrowing em ployer because “the supervision and instruction of [the borrowing em ployer] rose above ‘m ere suggestion of details or cooperation.’”80 In this case, the undisputed facts establish that Plaintiff (1) was directly supervised by Services personnel at all tim es; 81 (2) worked on the LUCIOUS SPAR for between fourteen and twenty-one day “hitches”; 82 (3) received an orientation on the equipm ent 76 Kindred v. Blake Intern. H oldings, L.L.C., 8 0 5 F. Supp. 2d 278, 282 (E.D. La. 20 11) (citations om itted). Id. 78 Id. 79 Id. 80 Id. 81 R. Doc. 99-2 at 3– 4; R. Doc. 113-1 at 3– 4. 82 R. Doc. 113-10 at 12. 77 12 and type of work that was going to be done on the platform from Services; 83 (4) wore a Services uniform ; 84 (5) only spoke with people at TMM “m aybe once a week” regarding certain payroll m atters not relevant to the issue of control; 85 and (6) never received instructions from TMM regarding his work on the platform . 86 Even if TMM retained som e lim ited authority over Plaintiff, the Court finds as a m atter of law that Plaintiff was subject to the authoritative direction and control of Services. Accordingly, the Court finds that this factor weighs in favor of borrowed-em ployee status. 2. W hose w ork is being perform ed? The parties agree that Plaintiff perform ed Services’ work and only Services’ work. 87 It is undisputed that “[Services] was the contractor tasked with perform ing [the] testing and torqueing [sic] [on the LUCIOUS SPAR],”88 and that “Plaintiff did not ever receive any work instructions from anyone at TMM with regard to work on the LUCIOUS SPAR platform .”89 In fact, Plaintiff testified that “just [Services] workers” were involved in “pressuring the pipe[s] or bleeding [them ] down,” what Services was hired to do. 90 This factor supports a finding that Plaintiff was a borrowed-em ployee 0 f Services. 3. W as there an agreem ent betw een the original and borrow ing em ploy er? “In deciding this factor, courts have looked to contractual provisions and the behavior of the parties to determ ine whether an understanding existed.”91 In this case, TMM and Rental, not Services, executed a Master Service Contract on May 27, 20 14, 83 R. Doc. 99-2 at 3– 4; R. Doc. 113-1 at 3– 4. R. Doc. 99-2 at 3; R. Doc. 113-1 at 2. 85 R. Doc. 99-4 at 47; R. Doc. 99-2 at 3; R. Doc. 113-1 at 3. 86 R. Doc. 99-4 at 48 . 87 R. Doc. 99-2 at 3– 4; R. Doc. 113-1 at 3– 4. 88 R. Doc. 99-2 at 2, ¶ 3; R. Doc. 113-1 at 1, ¶ 3. 89 R. Doc. 99-2 at 3; R. Doc. 113-1 at 3. 90 R. Doc. 99-4 at 28, 36. 91 LeBlanc v. AEP Elm w ood, LLC, 946 F. Supp. 2d 546, 551 (E.D. La. 20 13) (citing Brow n, 984 F.2d at 677). 84 13 pursuant to which TMM supplied skilled laborers. 92 According to Plaintiff’s deposition testim ony, TMM is m erely a contract com pany that “call[s] other com panies an d find out if they need em ployees, what qualifications that those em ployees need, and they go see if they have people in their business that are qualified people that they are looking for. In other words, they find the people jobs. . . . They find em ployees for com panies.”93 Plaintiff points to a provision in the Master Service Contract as evidence that the parties’ understanding was that Plaintiff would be considered an “independent contractor.”94 The “INDEPENDENT CONTRACTOR” provision provides that [i]t is expressly understood that [TMM] is an independent contractor and that neither [TMM] nor [TMM’s] principles, partners, em ployees, or subcontractors are servants, agents, or em ployees of [Rental]. [Rental] shall designate the services it desires to be perform ed and the ultim ate results to be obtained, but shall leave to [TMM] the m ethods and details of perform ance. [Rental] being interested only in the results obtained, and having no control over the m anner and m ethod of perform ance. 95 Plaintiff’s reliance on this provision fails to create a genuine issue of m aterial fact with respect to the third Ruiz factor. The Fifth Circuit and the courts within it have repeatedly held that “[t]he reality at the worksite and the parties’ actions in carrying out a contract . . . can im pliedly m odify, alter, or waive express contractual provisions.”96 “Obviously parties to a contract cannot autom atically prevent a legal status like ‘borrowed-em ployee’ from arising m erely by saying in a provision in their contract that it cannot arise.”97 In this case, although the Master Service Contract contains an independent-contractor provision, the reality at Services’ worksite was m uch different. As 92 R. Doc. 113-3. R. Doc. 99-4 at 5. 94 R. Doc. 113 at 6. 95 R. Doc. 113-3 at 2. 96 See, e.g., Melancon, 834 F.2d at 1245. 97 Id. 93 14 stated at length above, Services exercised direct supervision and control over Plaintiff during his tenure with TMM, all of which was spent on the LUCIOUS SPAR. 98 As a result, the Court finds that this factor weighs in favor of borrowed-em ployee status. 4. Did the em ploy ee acquiesce? “The focus of this factor is whether the em ployee was aware of his work conditions and chose to continue working in them .”99 In Brow n v. Union Oil Co. of California, the Fifth Circuit noted that the em ployee “worked, slept[,] and ate in [the borrowing em ployer’s] field for a m onth prior to his accident. Although m any of our cases affirm ing borrowed servant status have involved longer periods of work, one m onth is a sufficient am ount of tim e for [the em ployee] to appreciate the new work conditions.”10 0 As in Brow n, it undisputed that Plaintiff would stay on the LUCIOUS SPAR for between fourteen and twenty-one day “hitches,” before returning onshore. 10 1 It is also undisputed that Plaintiff would have continued working for Services but for his accident, 10 2 and in fact hoped to be hired by Services in definitely. 10 3 It is clear that Plaintiff was aware of his work conditions and chose to continue working in them . The Court finds that, because Plaintiff was aware of his work conditions and chose to continue working in them , this factor weighs in favor of borrowed-em ployee status. 98 R. Doc. 99-2 at 3; R. Doc. 113-1 at 3 (clarifying that Plaintiff worked for Services pursuant to the Master Service Agreem ent). 99 Brow n , 984 F.2d at 678. 10 0 Id. (citing Melancon, 834 F.2d at 1241 (5 years); Alexander v. Chevron U.S.A., 8 0 6 F.2d 526, 527 (5th Cir. 1986) (approxim ately 1 year); Gaudet, 562 F.2d at 355 (approxim ately 17 years). But see Capps, 784 F.2d at 616 (1 day)). 10 1 R. Doc. 113-10 at 12. 10 2 R. Doc. 99-4 at 42. 10 3 R. Doc. 113-4 at 264. 15 5. Did the original em ploy er term inate his relationship w ith the em ploy ee? This factor does not require the lending em ployer to com pletely sever its relationship with the borrowed-em ployee. Instead, the focus is “on the lending em ployer’s relationship with the em ployee while the borrowing occurs.”10 4 In Craw ford v. BP Corp. N orth Am erica Inc., the lending em ployer exercised “little to no control” over the em ployee while the em ployee worked for the borrowing em ployer, and the lending em ployer “placed no restrictions” on the em ployee’s em ploym ent with the borrowing em ployer. 10 5 In Craw ford, this Court found that, in light of such a relationship between the em ployee and his lending em ployer, this factor weighed in favor of borrowed-em ployee status. 10 6 Likewise, the Fifth Circuit in Capps v. N .L. Baroid-N L Industries, Inc., found that where the len ding em ployer “exercised no control” over the em ployee while he worked for the borrowing em ployer and “placed no restrictions” on the em ployee’s em ploym ent with the borrowing em ployer, the lending em ployer effectively term inated its relationship with the em ployee, which weighed in favor of borrowed-em ployee status. 10 7 In Hotard v. Devon Energy Production Co. L.P., the Fifth Circuit reasoned that “the fact that [the em ployee] had no contact with [his lending em ployer] and was supervised totally by [his lending em ployer’s] em ployees while on the platform is sufficient to m eet this factor.”10 8 10 4 Capps, 784 F.2d at 617– 18. Craw ford v. BP Corp. N . Am ., Inc., No. 13-445, 20 15 WL 1190 123, at *3 (E.D. La. Mar. 16, 20 15). 10 6 Id. 10 7 Capps, 784 F.2d at 617– 18. 10 8 Hotard v. Devon Energy Prod. Co. L.P., 30 8 F. App’x 739, 742 (5th Cir. 20 0 9) (citing Melancon, 834 F.2d at 1246). 10 5 16 In this case, it is undisputed that “From the tim e plaintiff was sent to [Services] by TMM, through the date of the accident, plaintiff worked exclusively in a crew of other [Services] em ployees under a team leader em ployed by [Services]”10 9 and that Plaintiff “did not perform any work directly for TMM, but rather worked for com panies to whom he was provided by TMM,” subject to the term s of Rental and TMM’s Master Service Agreem ent. 110 Even in light of these undisputed facts, Plaintiff contends that this factor does not weigh in favor of borrowed-em ployee status because, Services “could not term inate Plaintiff’s em ploym ent with his payroll em ployer.”111 According to Plaintiff, because of this fact, TMM never term inated its relationship with Plaintiff. The Court finds, however, that Plaintiff’s assertion is not m aterial to the resolution of this Ruiz factor. “This factor does not require a len ding em ployer to sever com pletely its relationship with the em ployee, because such a requirem en t would effectively elim inate the ‘borrowed-em ployee’ doctrine.”112 “The em phasis when considering this factor should focus on the lending em ployer’s relationship with the em ployee while the borrowing occurs.”113 In this case, it is undisputed that, while workin g on the LUCIOUS SPAR, (1) Plaintiff had little contact with TMM, 114 (2) Plaintiff was supervised entirely by Services em ployees and supervisors, 115 and (3) Services had the right to discharge Plaintiff from his work on the LUCIOUS SPAR at any tim e. 116 In light of these facts, and guided by 10 9 R. Doc. 99-2 at 2; R. Doc. 113-1 at 2. R. Doc. 99-2 at 2; R. Doc. 113-1 at 2 (“Contested as written; [t]he contract between TMM and Stranco Rental, LLC sets forth the arrangem ent between TMM, Stranco Rental, LLC and Plaintiff.”). 111 R. Doc. 113 at 5. 112 Capps, 784 F.2d at 617– 18. 113 Id. 114 R. Doc. 99-4 at 47; R. Doc. 99-2 at 3; R. Doc. 113-1 at 3. 115 R. Doc. 99-2 at 3– 4; R. Doc. 113-1 at 2– 3. 116 R. Doc. 113-2 at 3 (“Defendants had the right to have Plaintiff rem oved from the LUCIUS SPAR.”). 110 17 the Fifth Circuit’s decisions in Capps and Hotard and this Court’s prior decision in Craw ford, the Court finds that this factor weighs in favor of borrowed-em ployee status. 6. W ho furnished the tools and place for perform ance? It is undisputed that TMM did not provide the tools and equipm ent needed to perform the work on the LUCIOUS SPAR. 117 It is sim ilarly undisputed that Rental supplied the tools and equipm ent needed to com plete the hydrostatic testing and torquing on the platform . 118 Rental, however, “does not have any em ployees, but rather owns and rents out tools and equipm ent used in the oil and gas in dustry, including certain tools an d equipm ent that were provided to and used by [Services] in connection with the work on the LUCIOUS SPAR.”119 Services paid Rental for the use of those tools and equipm ent while perform ing work on the platform , thereby providing those tools to Services’ em ployees. 120 Thus, this factor is n eutral as to whether Plaintiff is Services’ borrowedem ployee. 7. W as the new em ploy m ent over a considerable length of tim e? “Where the length of em ploym ent is considerable, this factor supports a finding that the em ployee is a borrowed-em ployee.”121 In this case, Plaintiff worked on the LUCIOUS SPAR shortly after he began his em ploym ent with TMM, 122 which was “six or seven m onths before the accident happened.”123 Although it is not clear exactly how long Plaintiff worked on the LUCIOUS SPAR, it is undisputed that it was at the least two 117 R. Doc. 99-2 at 4; R. Doc. 113-1 at 3. R. Doc. 99-6 at 2. 119 Id. at 2– 3. 120 R. Doc. 99-6 at 2– 3. 121 Capps, 784 F.2d at 618 . 122 R. Doc. 99-2 at 2; R. Doc. 113-1 at 2. 123 R. Doc. 113-10 at 5. 118 18 weeks. 124 In Capps v. N .L. Baroid-N L Indus., 125 the Fifth Circuit considered whether the plaintiff, who was injured on his first day of work, could be considered a borrowedem ployee. The Court explained, “In the case where the length of em ploym ent is considerable, this factor supports a finding that the em ployee is a borrowed-em ployee; however, the converse is not true. When the em ployee’s injury occurs on the first day, it does not follow that the em ployee is not a borrowed-em ployee.”126 Thus, although Plaintiff m ight not have worked for Services for a “considerable am ount of tim e,” this factor alone does not preclude the Court’s finding he is Services’ borrowed-em ployee. Thus, the Court finds this factor is n eutral. 8 . W ho had the right to discharge the em ploy ee? The proper focus under this factor is whether the borrowing em ployer had the right to term inate the borrowed-em ployee’s services with the borrowin g em ployer. 127 This factor “asks whether the alleged borrowing em ployer has the right to term inate its relationship with the worker.”128 Looking to Plaintiff’s deposition testim ony, he understood that Services could have fired him “at any tim e.”129 According to Services’ Vice-President of Operations, “If [Plaintiff were] not doing an adequate job or was not working to the satisfaction of the [Services] supervisors, . . . they [could] have fired him for this job or had him rem oved from the LUCIUS SPAR.”130 Plaintiff offers no evidence to dispute this fact, other than to point to the Master Service Contract, 131 which the Court 124 R. Doc. 113-10 at 10 – 12. Capps v. N .L. Baroid-N L Indus., 784 F.2d 615, 618 (5th Cir. 1986). 126 Id. 127 Capps, 784 F.2d at 618 . 128 Butcher v. Superior Offshore Intern ., LLC, 754 F. Supp. 2d 8 29, 839 (E.D. La. 20 10 ). 129 R. Doc. 113-4 at 265– 66. 130 R. Doc. 99-5 at 20 . 131 R. Doc. 113-1 at 3. 125 19 previously noted states Rental “m ay term inate any particular work or service being perform ed under [the] contract at any tim e at its sole discretion.”132 In Melancon v. Am oco Production Co., the Fifth Circuit recognized that, for this factor to weigh in favor of borrowed-em ployee status, the alleged borrowing em ployer needs only to retain the authority to discharge the borrowed-em ployee from its em ploy, its projects, or its services. 133 The Fifth Circuit explained, specifically, that “Am oco [the borrowing em ployer] also had the right to discharge Melancon even though Am oco could not term inate Melancon’s em ploym ent with Beraud [the lending em ployer]. Am oco’s right to term inate Melancon’s services in the Am oco field satisfied this requirem ent.”134 In this case, because Services had the right to term inate Plaintiff’s em ploym ent with Services, this factor weighs in favor of borrowed-em ployee status. 9. W ho had the obligation to pay the em ploy ee? “The determ in ative inquiry here is whether the alleged borrowing em ployer furnished the funds from which the original em ployer paid the plaintiff.”135 In this case, the parties agree that “Although Plaintiff’s paychecks were issued by TMM, the am ount he was paid depended on the num ber of hours he was working for [Services].”136 Plaintiff argues that this factor weighs against borrowed-em ployee status, as Services “could not interfere with the em ploym ent relationship between Plaintiff and TMM,” and “Plaintiff was paid exclusively by TMM.”137 132 R. Doc. 113-3 at 6. Melancon, 834 F.2d at 1246. 134 Id. (citing Capps, 784 F.2d at 618; Hebron, 634 F.2d at 247). 135 Vincent, 20 15 WL 6758 269, at *6. 136 R. Doc. 99-2 at 4. Plaintiff “[a]cknowledge[s]” this assertion “to the extent that Plaintiff was paid based on the num ber of hours he worked on the LUCIUS SPAR,” but clarifies that “Plaintiff was workin g on the LUCIUS SPAR pursuant to an agreem ent between TMM and Stranco Rental, LLC.” R. Doc. 113-1 at 3. However, that TMM held a contract with Rental does not create a m aterial factual dispute as to who paid Plaintiff and how. R. Doc. 113-1 at 3. 137 R. Doc. 113-2 at 3. 133 20 The Court finds Vincent v. Fieldw ood Energy , L.L.C., a recent decision from a court in this district, instructive with respect to this Ruiz factor. 138 The Vincent court, faced with a payroll arrangem ent sim ilar to the payroll arrangem ent in this case, sum m arized the relevant case law as follows: In Brow n, the original em ployer paid the plaintiff, but his pay was based on tim e tickets that had to be verified daily by the alleged borrowing em ployer. Brow n, 984 F.2d at 679. The Fifth Circuit wrote that this procedure supports borrowed-em ployee status. Id. Sim ilarly, in Hotard, the alleged borrowing em ployer approved tim e sheets and paid the origin al em ployer an hourly rate for the plaintiff’s work, and the origin al em ployer issued the plaintiff a check. Hotard, 30 8 F. App’x at 739. The Fifth Circuit wrote that this structure regarding the obligation to pay favors borrowed-em ployee status. Id. Here, deposition testim ony establishes that Vincent turned in tim esheets to Fieldwood for verification and approval. Wood Group then paid Vincent for hours that were approved, and Wood Group was reim bursed by Fieldwood for the hours worked by Vincent. This structure is the sam e as those in Brow n and Hotard, so this factor favors borrowed-em ployee status. 139 The Court also notes that, with respect to the ninth Ruiz factor, this case is on all fours with its prior decision in Craw ford v. BP Corp. N orth Am erica, Inc. 140 In Craw ford, the Court found it significant that the plaintiff com pleted “daily tim e sheets,” which, if approved by the alleged borrowing em ployer, resulted in the plaintiff’s lending em ployer rem itting the appropriate wages. 141 In this case, sim ilar to Vincent, Brow n, Hotard, and Craw ford, Plaintiff’s paycheck depen ded on the work he did for Services. 142 The Court finds that this factor weighs in favor of borrowed-em ployee status. In sum m ary, seven of the nine Ruiz factors weigh in favor of borrowed-em ployee status, and the rem aining two are neutral. The Court finds as a m atter of law that Plaintiff 138 See Vincent, 20 15 WL 6758269. Id., at *6. 140 Craw ford, 20 15 WL 1190 123, at *4. 141 Id. 142 R. Doc. 99-5 at 20 ; R. Doc. 99-2 at 4; R. Doc. 113-4 at 340 . 139 21 was a borrowed-em ployee of Services at the tim e of his injury. Services is thus vested with tort im m unity, and Plaintiff’s claim s against Services m ust be dism issed. Accordingly; IV. CON CLU SION IT IS ORD ERED that Defendants’ m otion for sum m ary judgm ent 143 as it relates to Stranco Rental, LLC is GRAN TED , and Plaintiff’s claim s against Stranco Rental, LLC, be and hereby are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Defendants’ m otion for sum m ary judgm ent 144 as it relates to Stranco Services, LLC is GRAN TED , and Plaintiff’s claim s against Stranco Services, LLC, be and hereby are D ISMISS ED W ITH PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 2 n d d ay o f Octo be r, 2 0 17. ______________ ________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 143 144 R. Doc. 47. R. Doc. 47. 22
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