O'Berry v. ENSCO International, Inc et al, No. 2:2016cv03569 - Document 117 (E.D. La. 2017)

Court Description: ORDER AND REASONS denying 86 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan on 8/21/2017. (clc)
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O'Berry v. ENSCO International, Inc et al Doc. 117 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A W ILLIS D . O’BERRY, Plain tiff CIVIL ACTION VERSU S N O. 16 -3 56 9 EN SCO IN TERN ATION AL, LLC, 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 Partial Summ ary J udgm ent filed by the Plaintiff, Willis D. O’Berry. 1 The Defendants oppose this m otion. 2 For the following reasons, the Plaintiff’s Motion for Partial Sum m ary J udgm ent is D EN IED . BACKGROU N D On April 21, 20 16, Plaintiff, Willis D. O’Berry, filed his Seam an Com plaint against the Defendants. 3 Plaintiff alleges that on or about March 17, 20 15, he was a m andatory participant in a water survival training course required by Defendants and taught by their agent, SMTC Global. 4 This course, which Plaintiff concedes was taught ashore, included participating in a sim ulated at-sea escape from a downed helicopter and boarding of life rafts. 5 Plaintiff, who was then sixty-two years old, alleges he had great difficulty getting out of the water and into a life raft. 6 Plaintiff alleges that, because of his age, he should have had a m edical clearance before engagin g in such arduous physical activity but did 1 R. Doc. 86. R. Docs. 91, 10 7, 10 8. 3 R. Doc. 1. 4 R. Doc. 36, at 3-4. 5 R. Doc. 1, at 1. 6 R. Doc. 36, at 3. 2 1 Dockets.Justia.com not. 7 Plaintiff alleges that, while struggling to clim b into a life raft from the water, he was injured when he was grabbed at the neck by fellow participants and was roughly hauled aboard the raft. 8 Plaintiff alleges that, as a result, he suffered serious cervical neck injuries for which a lum bar fusion operation was required. 9 Plaintiff alleges he has not been paid m aintenance and cure. 10 On May 16, 20 17, the Plaintiff filed his Motion for Partial Sum m ary J udgm ent. 11 Plaintiff’s m otion relates to both J ones Act issues and general m aritim e law issues. Plaintiff seeks sum m ary judgm ent on the following J ones Act issues: (1) that Plaintiff was a J ones Act seam an during the March 15-17, 20 15 tim e period when he attended the “HUET” re-certification training course; (2) that Ensco Lim ited was Plaintiff’s J ones Act em ployer during the March 15-17, 20 15 tim e period when he attended the “HUET” recertification training course; (3) that Plaintiff was “in the course and scope of his em ploym ent” during the March 15-17, 20 15 tim e period when he attended the “HUET” re-certification training course; and (4) that SMTC Global was Ensco Lim ited’s agent during the March 15-17, 20 15 tim e period when Plaintiff attended the “HUET” recertification train ing course. 12 Plaintiff seeks sum m ary judgm ent on the following general m aritim e law issues: (1) that Plaintiff was “in the service of his ship” during the March 1517, 20 15 tim e period when Plaintiff attended the “HUET” re-certification training course; and (2) that Ensco, Lim ited, under the gen eral m aritim e law, was obligated to pay 7 Id. at 4 Id. 9 Id. 10 Id. 11 R. Doc. 86. 12 Id. at 1. 8 2 m aintenance an d cure to Plaintiff if he was injured during the March 15-17, 20 15 tim e period when he attended the “HUET” re-certification training course. 13 LEGAL 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.”14 “An issue is m aterial if its resolution could affect the outcom e of the action.”15 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”16 All reasonable inferences are drawn in favor of the nonm oving party. 17 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm 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. 18 If the dispositive issue is on e 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.’”19 If the 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 nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the 13 Id. at 1-2. F ED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 15 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 16 Delta & Pine Land Co. v. N ationw 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 ). 17 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 18 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 19 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 record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 20 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonmovant’s claim . 21 When proceeding under the first option, if the nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 22 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm 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.”23 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 24 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust 20 Celotex, 477 U.S. at 322– 24. at 331– 32 (Brennan , J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 22 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 23 Celotex, 477 U.S. at 332– 33. 24 Id. 21 Id. 4 either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e 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).”25 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”26 “[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 the 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.’”27 LAW AN D AN ALYSIS The Defendants argue that the Plaintiff’s Motion for Partial Sum m ary J udgm ent should be denied because foreign law, and not the J ones Act or the general m aritim e law of the United States, applies to the Plaintiff’s claim s. 28 Even assum in g the J ones Act or the general m aritim e law of the United States applies to the Plaintiff’s claim , there are genuine issues of m aterial fact that preclude sum m ary judgm ent regarding the four J ones Act issues and the two general m aritim e law issues raised in the Plaintiff’s m otion. 25 Celotex, 477 U.S. at 332– 33, 333 n.3. Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 27 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 28 R. Doc. 91 at 4. 26 5 The J ones Act provides a negligence cause of action for seam an “injured in the course of em ploym ent.”29 Under the general m aritim e law of the United States, a seam an is entitled to m ainten ance and cure for injuries suffered “while in the service of the vessel.”30 “[T]he Suprem e Court has already held that the m eaning of the term ‘course of em ploym ent’ under the J ones Act is equivalent of ‘the service of the ship’ form ula used in m aintenance and cure cases.”31 The Fifth Circuit has explained that “the test for whether a J ones Act em ployee was acting within the course and scope of his em ploym ent is whether his actions at the tim e of the injury were in furtherance of his em ployer’s business interests.”32 Plaintiff adm its that the incident in question occurred during a training course on-shore while Plaintiff was on leave. 33 Plaintiff, however, argues he was in the course and scope of his em ploym ent when he participated in the “HUET” training because, in part, he was contractually obligated to take the course 34 and the Defendants filled out all of the paperwork and paid the tuition for the course. 35 In support of its argum ent that Mr. O’Berry was not injured in the course and scope of his em ploym ent, or in the service of his vessel, the Defendants have produced the sworn declaration of Paula Hall, Man ager of HR Middle East/ Africa for Ensco Lim ited, in which she states that although the HUET training was required by the Operators of the vessel Mr. O’Berry worked on, the trainin g was not required at this particular tim e an d occurred when Mr. O’Berry was onshore 29 42 U.S.C. § 30 140 . See also, e.g., Beech v. H ercules Drilling Com pany , L.L.C., 691 F.3d 566, 570 (5th Cir. 20 12) (“In 1920 , Con gress enacted the J ones Act to create ‘a negligence cause of action for ship personn el against their em ployers.” (citations om itted)). 30 See, e.g., Johnson v. Cenac Tow ing, Inc., 544 F.3d 296, 30 1 (5th Cir. 20 0 8 ) (citations om itted). 31 Daughdrill v. Diam ond M. Drilling, Co., 447 F.2d 781, 783 (5th Cir. 1971) (citing Braen v . Pfiefer Oil Transportation Co., 361 U.S. 129 (1959)). 32 Beech, 691 F.3d at 574. 33 See R. Doc. 86-1 at 2 ¶¶16-17. 34 R. Doc. 86-2 at 4 (citing R. Doc. 8 6-6). 35 Id.(citing R. Doc. 86-3 at ¶11, R. Doc. 86-8). 6 during his leave from the vessel. 36 As a result, there is a factual dispute as to whether Plaintiff’s actions at the tim e of his injury were in furtherance of his em ployer’s business interests. As the Fifth Circuit explained in Beech v. Hercules Drilling Com pany , L.L.C., “Deciding where an em ployee’s conduct falls on the course and scope of em ploym ent continuum is necessarily a fact-intensive inquiry, and courts have few bright line principles to guide them .”37 Because a m aterial issues of fact rem ain as to whether Mr. O’Berry was in jured in the course and scope of his em ploym ent, or while in the service of the ship, sum m ary judgm ent on the issues raised in the Plaintiff’s Motion for Partial Sum m ary J udgm ent is im proper at this tim e. 38 CON CLU SION For the foregoing reasons; IT IS ORD ERED that the Plaintiff’s Motion for Partial Sum m ary J udgm ent 39 is D EN IED . N e w Orle a n s , Lo u is ian a, th is 2 1s t d ay o f Au gu s t, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 36 R. Doc. 91-4 at ¶¶ 5-6. Beech, 691 F.3d at 577. 38 Other m aterial issues of fact rem ain precluding sum m ary judgm ent, such as, whether SMTC Global was Ensco Lim ited’s agent during the tim e period when Plaintiff attended the “HUET” re-certification train ing course. 39 R. Doc. 86. 37 7