Menard v. Grand Isle Shipyard, Inc. et al, No. 2:2016cv00498 - Document 62 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 44 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 4/10/2017. (cg)
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Menard v. Grand Isle Shipyard, Inc. et al Doc. 62 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA COREY MENARD CIVIL ACTION VERSUS NO. 16-498 LLOG EXPLORATION COMPANY, LLC, ET AL. SECTION “R” (3) ORD ER AN D REASON S Defendants LLOG Exploration Com pany, LLC; LLOG Exploration Offshore, LLC; and LLOG Exploration & Production Com pany, LLC (collectively, “LLOG”) m ove for sum m ary judgm ent on plaintiff Corey Menard’s claim s. 1 For the following reasons, the Court grants LLOG’s m otion. I. BACKGROU N D In early 20 15, plaintiff Corey Menard was em ployed as a senior field technician by Gly-Tech Services, and was assigned to work offshore on LLOG’s Delta House Floating Production System , a semi-subm ersible oil- 1 R. Doc. 44. Dockets.Justia.com exploration platform in the Mississippi Canyon. 2 On or about J anuary 22, 20 15, plaintiff was aboard the M/ V ARABIAN, a support vessel adjacent to the Delta House. According to plaintiff, because of high winds and rough seas, the M/ V ARABIAN was m oving back into shallow waters to give the crew a break from the extrem e conditions. 3 Plaintiff alleges that before the M/ V ARABIAN m oved, LLOG required plaintiff to go from the M/ V ARABIAN to the Delta House via a personnel basket transfer to collect belongings left on the Delta House. 4 Plaintiff further alleges that during his attem pted transfer, the extrem ely rough seas caused the personnel basket to abruptly thrust upward and slam plaintiff, severely injuring his lower back. 5 On J anuary 20 , 20 16, plaintiff sued Grand Isle Shipyard, Gibson Applied Technology, and LLOG, alleging that their negligence caused his injury. 6 Plaintiff am ended his com plaint on J une 28, 20 16, and added Adriatic Marine, LLC, the owner and operator of the M/ V ARABIAN, and Wood Group Production Services, Inc. (Wood Group), the entity responsible 2 R. Doc. 1 at 3-4 ¶¶ 7, 8. At the time of the accident, LLOG Exploration Offshore, LLC was the Bureau of Ocean Energy Management qualified operator of the Delta House. R. Doc. 44-7 at 2 ¶ 10 . 3 R. Doc. 53-6 at 2-3. 4 R. Doc. 1 at 4 ¶ 11; R. Doc. 53-6 at 2. 5 R. Doc. 1 at 4 ¶ 11. 6 Id. at 5-7 ¶¶ 14-16. 2 for operations on the Delta House, as defendants. 7 Plaintiff seeks a judgment of $ 3,0 0 0 ,0 0 0 , punitive dam ages, attorneys’ fees, and costs. 8 LLOG now m oves for sum m ary judgm ent on plaintiff’s negligence claim s, arguing that there is no evidence of negligence attributable to any of the LLOG entities that caused or contributed to plaintiff’s alleged injuries, and that as a m atter of law LLOG is not liable for any negligent acts by the other defendants. 9 Plaintiff filed a response in opposition, 10 and also separately m oved the Court to delay or defer consideration of LLOG’s m otion so that plaintiff can obtain additional discovery. 11 LLOG replied, 12 and filed an opposition to plaintiff’s request to delay consideration of its sum m ary judgm ent m otion. 13 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 7 8 9 10 11 12 13 R. Doc. 26 at 3-4. Id. at 7-8. R. Doc. 44-1 at 2. R. Doc. 53. R. Doc. 50 . R. Doc. 60 . R. Doc. 56. 3 Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s 4 evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). Federal Rule of Civil Procedure 56(d) governs requests for additional tim e for discovery before consideration of a pending m otion for sum mary judgm ent. It perm its a district court to deny or defer consideration of a m otion for sum m ary judgm ent, allow tim e to take discovery, or “issue any other appropriate order” when “a nonm ovant shows by affidavit or 5 declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). Nonetheless, the party seeking a continuance “m ay not sim ply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.” Raby v. Livingston, 60 0 F.3d 552, 561 (5th Cir. 20 10 ) (quoting Sec. & Exch. Com m ’n v. Spence & Green Chem . Co., 612 F.2d 896, 90 1 (5th Cir. 1980 )). Instead, the party seeking to continue a m otion for sum m ary judgment to obtain further discovery m ust dem onstrate (1) “why he needs additional discovery” and (2) “how the additional discovery will create a genuine issue of m aterial fact.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). In other words, the plaintiff m ust identify specific facts, susceptible of collection, and indicate how those facts “‘will influence the outcome of the pending sum m ary judgment m otion.’” McKay v. N ovartis Pharm . Corp., 751 F.3d 694, 70 0 (5th Cir. 20 14) (quoting Raby , 60 0 F.3d at 561)). Here, plaintiff asserts that he has not yet had tim e to review LLOG’s responses to plaintiff’s second set of discovery requests and that his m otion to com pel an inspection of the Delta House is currently pending before Magistrate J udge Knowles. 14 But plaintiff’s m otion does not identify what specific facts he seeks, m uch less explain how those unspecified facts will 14 R. Doc. 50 -2 at 2-3. 6 influence the outcom e of LLOG’s sum m ary judgm ent m otion. Plaintiff’s desire for additional inform ation, without m ore, does not warrant a continuance under Rule 56(d). Rule 56(d) “does not condone a fishing expedition where a plaintiff m erely hopes to uncover som e possible evidence of [value].” Duffy v. W olle, 123 F.3d 10 26, 10 41 (8th Cir. 1997) (internal quotation om itted); see also Jason v. Parish of Plaquem ines, No. 16-2728, 20 16 WL 46230 50 , at *4-5 (E.D. La. Sept. 6, 20 16) (denying plaintiff’s request to defer consideration of m otion for summ ary judgm ent because plaintiff gave “nothing m ore than a ‘speculative hope’ that discovery m ight provide plaintiff with inform ation supporting his claim s”) (quoting Sw eats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560 , 1567 (Fed. Cir. 1987)). Additionally, even if plaintiff’s m otion did specifically identify facts that would affect the outcom e of the pending summ ary judgm ent m otion, Rule 56(d) requires that plaintiff m ake this showing by affidavit or declaration. Plaintiff’s m otion and the attached documents include neither an affidavit nor a declaration. This alone is sufficient grounds to deny plaintiff’s m otion. See Scotch v. Letsinger, 593 F. App’x 276, 278 (5th Cir. 20 14) (“Because Scotch did not subm it either an affidavit or a declaration, the district court did not err in denying Scotch’s request.”); Leza v. City of Laredo, 496 F. App’x 375, 377-78 (5th Cir. 20 12) (affirm ing denial of Rule 7 56(d) m otion because m ovant did not present affidavit or declaration); see also Sandusky W ellness Ctr., LLC v. Medco Health Sols, Inc., 788 F.3d 218, 226 (6th Cir. 20 15). Because plaintiff’s m otion is both procedurally and substantively defective, the Court will not delay or defer consideration of LLOG’s m otion for sum m ary judgment. III. D ISCU SSION As an initial m atter, the Court m ust determ ine the applicable law that governs plaintiff’s negligence claims. Plaintiff’s com plaint asserts adm iralty jurisdiction, under which general m aritim e law would apply. 15 See Alexander v. Kevin Gros Consulting & Marine Servs., Inc., No. 14-1273, 20 16 WL 430 413, at *4 (E.D. La. Feb. 4, 20 16) (citations om itted). But plaintiff also asserts, in the alternative, jurisdiction under the Outer Continental Shelf Lands Act (OCSLA), which generally adopts the law of the adjacent state as a supplement to federal law. See Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969). Essentially, if plaintiff was injured on the M/ V ARABIAN at sea or while en route to the Delta House, m aritim e law applies, and if he was injured on the Delta House, Louisiana law applies 15 R. Doc. 1 at 1 ¶ 1. 8 through OCSLA. 16 See Grand Isle Shipy ard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 781 (5th Cir. 20 0 9). The parties’ briefs do not answer the choice of law question, instead the parties brief the issues under both general m aritime and Louisiana law. But Plaintiff testified that he was injured when the personnel basket jerked up while on the deck of the M/ V ARABIAN, and not while he was en route or aboard the Delta House. 17 Thus, as the evidence indicates that plaintiff was on the M/ V ARABIAN when injured, and not on the Delta House, general m aritim e law applies. To establish m aritim e negligence, a plaintiff m ust dem onstrate “‘that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant’s conduct and the plaintiff’s injury.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 20 1, 211 (5th Cir. 20 10 ) (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370 , 376 (5th Cir. 20 0 0 ) (internal m odifications om itted)). Under m aritim e law, a plaintiff is owed a duty of ordinary care under the circum stances. Id. (citing Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980 )). 16 The parties do not dispute that Delta House’s offshore location is adjacent to the State of Louisiana. 17 R. Doc. 44-5 at 4. 9 LLOG argues that there is no evidence of any negligence attributable to any of the LLOG entities that caused or contributed to plaintiff’s alleged injuries. 18 In support, LLOG subm its the affidavit of Craig Mullett, LLOG’s Offshore Construction Manager. 19 Mullett attests that there were no em ployees of any of the LLOG entities on either the Delta House or the M/ V ARABIAN on J anuary 22 or 23, 20 15. 20 Further, Mullett attests that the two cranes on Delta House (that are used in personnel basket transfers) were not operated by LLOG em ployees, and that no crane defects were reported to LLOG in J anuary, 20 15. 21 Plaintiff’s com plaint identified m ore than fifteen specific negligent actions or inactions that LLOG allegedly took or failed to take, including failing to properly transfer plaintiff from the M/ V ARABIAN to the Delta House, requiring plaintiff to m ake the transfer, failing to provide proper safety precautions, etc. 22 Despite the allegations in plaintiff’s com plaint, however, plaintiff has subm itted no evidence of any negligence by the LLOG entities themselves that caused his injuries. Plaintiff testified at his deposition that he did not know if anyone with him on the day of the accident 18 19 20 21 22 R. Doc. 44-1 at 2. R. Doc. 44-7. Id. at 2-3 ¶¶ 14, 15. Id. at 3 ¶¶ 17-19. R. Doc. 1 at 5-6 ¶ 14. 10 was em ployed by any of the LLOG entities, and could not identify anything that any LLOG em ployee did that was a cause of his accident. 23 Additionally, he was not aware of any defects or problems with the crane used for the personnel basket transfer that could have caused the accident. 24 Finally, plaintiff testified in his deposition that the instruction to make the personnel basket transfer came from the Offshore Installation Manager Chuck Breaux, an em ployee of Wood Group. 25 Therefore, not only is there no evidence that LLOG required defendant to m ake the personnel basket transfer at issue, but also there is no evidence that any LLOG em ployee was present at the tim e of the accident or directly influenced the decision to m ake the personnel basket transfer. Given this absence of evidence, any argum ent that LLOG should be liable for Menard’s injuries is based on either holding LLOG liable for the acts of its contractor Wood Group, or liable as the time charterer of the M/ V ARABIAN. A. In d e p e n d e n t Co n tracto r Liability The Fifth Circuit has “consistently held” that a principal has no general liability for the negligence of its “independent contractors over which he 23 24 25 R. Doc. 44-5 at 5-6. Id. at 6. R. Doc. 53-6 at 2; R. Doc. 60 -1 at 12. 11 exercises no operational control.” Skinner v. Schlum berger Tech. Corp., 655 F. App’x 188, 192 (5th Cir. 20 16) (quoting W ilkins v. P.M.B. Sy s. Eng’g, Inc., 741 F.2d 795, 80 0 (5th Cir. 1984)). 26 Therefore, the analysis of LLOG’s liability for the actions of its independent contractor Wood Group is lim ited to whether LLOG exercised operational control over the em ployees of Wood Group. LLOG points to the term s of the Master Service Agreement between LLOG and Wood Group to argue that it had no operational control over Wood Group. 27 The agreement states: [LLOG] shall designate the work it desires to be performed and the ultim ate results to be obtained, but shall leave to Contractor the m ethods and details of performance of the work, [LLOG] being only interested in the results obtained and having no control over the m anner and method of perform ance. 28 The clear language of the agreem ent indicates that Wood Group had exclusive control over the methods and perform ance of its em ployee’s work, 26 There is no appreciable difference between federal m aritim e law and Louisiana law on this issue. See Alexander, 20 16 WL 430 413, at *4. Though Louisiana law, and not general m aritim e law, im poses liability upon the principal for dam ages caused by an independent contractor if the independent contractor is perform ing an ultra-hazardous activity, a personnel basket transfer is not an ultra-hazardous activity. See N ew m an v. KMJ Servs., Inc., No. 0 4-2518, 20 0 6 WL 3469563, at *2 (E.D. La. Nov. 30 , 20 0 6) (citing Mathis v. Lafay ette Crew boat Servs., Inc., No. 93-3899, 1995 WL 550 950 , at *2 (E.D. La. Sept. 15, 1995)). 27 R. Doc. 44-8. 28 Id. at 1 ¶ 3.1. 12 and that LLOG expressly disclaimed any connection with the actual perform ance of the services to be provided. Plaintiff has subm itted no evidence that LLOG gave specific instructions or directives to Wood Group as to how its em ployees should work or how to perform any part of their duties, and it is uncontested that no LLOG employee was present when Menard’s accident occurred. Accordingly, as there is no dispute of m aterial fact indicating that LLOG exercised operational control over Wood Group’s em ployees, as a m atter of law LLOG is not liable for Wood Group’s allegedly negligent acts. See Skinner, 655 F. App’x at 192-93; see also Coulter v. Texaco, Inc., 117 F.3d 90 9, 912 (5th Cir. 1997) (applying Louisiana law); N ew m an, 20 0 6 WL 3469563, at *2-3 (same). B. Tim e Ch arte re r Liability Plaintiff also seeks to hold LLOG liable, as the tim e charterer of the M/ V ARABIAN, for the negligence of Adriatic Marine, the owner and operator of the M/ V ARABIAN. 29 The Fifth Circuit has held that a tim e charterer “owes a hybrid duty arising from contract and tort to persons including vessel passengers, to avoid negligent activity within ‘the sphere of activity over which it exercises at least partial control.’” Callahan v. Gulf Logistics, L.L.C., 456 F. App’x 385, 390 (5th Cir. 20 11) (quoting Hodgen v. 29 R. Doc. 26 at 4 ¶ 5. 13 Forest Oil Corp., 87 F.3d 1512, 1520 (5th Cir. 1996)). The traditional spheres of activity over which tim e charterer’s exercise control and thus owe a duty include, inter alia, “choosing the vessel’s cargo, route, and general m ission, as well as the specific tim e in which the vessel will perform its assignment.” Hodgen, 87 F.3d at 1520 (collecting cases). Caselaw also shows that “absent special circum stances, a tim e charterer’s traditional sphere of control does not extend to providing a safe means of ingress and egress [to and] from the vessel.” Callahan, 456 F. App’x at 390 (citations om itted). The vessel owner and tim e charterer m ay, however, vary the traditional assignm ent of control by contract. Hodgen, 87 F.3d at 1520 . Both parties rely on the Blanket Tim e Charter Agreem ent between LLOG and Adriatic Marine for their respective positions. The agreement states: [LLOG] shall have the sole and exclusive right to the services and full reach of each vessel tim e chartered [from Adriatic], but nothing contained herein or elsewhere to the contrary shall be construed as a dem ise of the vessel to [LLOG], and the entire operation, navigation, m anagement, control, perform ance and use of each vessel shall be under the sole and exclusive com m and of, and be actually accom plished by [Adriatic] as an independent contractor, [LLOG] only interested in the results obtained. [LLOG] shall, however, have the right to designate the voyages to be undertaken and the services each vessel is to perform , subject always to the sole right of [Adriatic] or the captain of each vessel 14 to determ ine whether the m ovem ent may be safely undertaken, with the captain always being in charge. 30 The plain text of the agreement contains nothing indicating that LLOG had control over decisions related to personnel transfers, and expressly reserves the exclusive operation, navigation, m anagem ent, control, perform ance and use of the M/ V ARABIAN to Adriatic. This includes the decision to determ ine whether any “m ovement may be safely undertaken.”31 Further, plaintiff subm its no evidence that LLOG’s conduct as a charterer was “m ore broadly exercised or inconsistent with the term s of the charter agreement,” Callahan, 456 F. App’x at 391, in relation to the personnel transfer. Plaintiff also subm its no evidence of “special circum stances” indicating that LLOG had control over ingress and egress from the vessel. Thus, there is no disputed issue of fact over LLOG’s lack of contractual and operational control, and therefore as a matter of law LLOG is not liable for the allegedly negligent actions of Adriatic. See Barron v. BP Am . Prod. Co., 590 F. App’x 294, 296-97 (5th Cir. 20 14); D.C. Chem . Co. v. M/ T ST. PETRI, 654 F. Supp. 2d 574, 578-80 (S.D. Tex. 20 0 9). Plaintiff attem pts to resist this conclusion by arguing that: 1) the term s of the agreem ent provide that LLOG has “the right to designate the voyages 30 31 R. Doc. 44-9 at 2 ¶ 11. Id. 15 to be undertaken and the services each vessel is to perform ;”32 and 2) the decision to m ove the M/ V ARABIAN into shallow waters is a “voyage” and perform ing a personnel basket transfer is a “service.”33 This argument is m eritless. First, not only does plaintiff not cite a single case defining “voyage” in this context to include a decision to m ove a vessel into shallow waters, but also a nearly identical argument was recently rejected by the Fifth Circuit in Callahan. In Callahan, the plaintiff was aboard a support vessel preparing to board a drilling rig via a personnel basket transfer in rough sea conditions. 456 F. App’x at 388. Shortly before the transfer, the vessel lunged, and the plaintiff injured his back. Id. Plaintiff sued m ultiple defendants, including the tim e charterer of the support vessel, alleging negligence. After the district court granted the tim e charterer sum mary judgm ent, the Fifth Circuit rejected the plaintiff’s argument that the tim e charterer owed plaintiff a duty because the tim e charterer had authority to decide w here and w hen the personnel transfer would occur. Relying on an essentially identical charter agreem ent, the Fifth Circuit held that the charterer “disavowed all control” over “the m eans by which [the charterer’s] results were obtained, 32 33 Id. R. Doc. 53 at 7-8. 16 including the decision to “determ ine the safety of a voyage.” Id. at 391. Finally, the Fifth Circuit held that the tim e charterer’s “right to designate the voyages to be undertaken” referred “only to [the tim e charterer’s] designation of the general m ission of the vessel but not to operational m atters such as the tim ing of personnel transfers.” Id. Callahan’s logic applies equally here. Further, even assum ing that a personnel transfer is a service, LLOG expressly disclaimed m anagement and control over the m ethod of execution of services provided by Adriatic, including whether the m ovement could be safely undertaken. Plaintiff’s argument is unavailing. Finally, plaintiff argues that at this stage he is entitled to all reasonable inferences, and that with all reasonable inferences in his favor, there are genuine issues of m aterial fact that should preclude sum m ary judgment. 34 While plaintiff is correct that he is entitled to all reasonable inferences, the inferences m ust be justifiable. See Tolan v. Cotton, 134 S. Ct. 1861, 1863 (20 14) (quoting Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 255 (1986)). Plaintiff has pointed to no such reasonable or justifiable inferences that can be drawn from this record. 34 R. Doc. 53 at 9-10 . 17 IV. CON CLU SION For the foregoing reasons, LLOG’s m otion for sum m ary judgm ent is GRANTED. New Orleans, Louisiana, this _ 10th _ day of April, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 18
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