Parekh v. Argonautica Shipping Investments B.V. et al, No. 2:2016cv13731 - Document 116 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 66 Motion for Partial Summary Judgment; granting 67 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan on 1/8/2018. (Reference: 16-13731)(clc)
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Parekh v. Argonautica Shipping Investments B.V. et al Doc. 116 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A N AYAN A AMBARISH PAREKH , Plain tiff CIVIL ACTION VERSU S N O. 16 -13 73 1 c/ w 16 -14 72 9 ARGON AU TICA SH IPPIN G IN VESTMEN TS B.V., ET AL., D e fe n d an ts SECTION : “E” ( 3 ) Ap p lie s t o : 16 -13 73 1 ORD ER AN D REAS ON S Before the Court are two m otions for partial sum m ary judgm ent by Defendant Weber Marine, L.L.C. 1 The first m otion involves Plaintiff Nayana Am barish Parekh’s claim for loss of support in her general m aritim e wrongful death action and the com putation of Decedent Captain Am barish Parekh’s work-life expectancy. 2 The secon d m otion involves Plaintiff’s claim for dam ages for loss of society on behalf of Captain Parekh’s adult children and m inor grandchildren. 3 The m otions are opposed. 4 Defendant Weber Marine, L.L.C. filed replies to Plaintiff’s oppositions. 5 For the reasons that follow, the m otions are GRAN TED . BACKGROU N D The com plaint alleges that on J uly 17, 20 16, Captain Am barish Ram nikari Parekh, a m arin e cargo surveyor em ployed by Maritech Com m ercial, Inc., was scheduled to board 1 R. Docs. 66 and 67. R. Doc. 66. 3 R. Doc. 67. 4 R. Doc. 71 and 75. 5 R. Doc. 92 and 94. 2 1 Dockets.Justia.com the M/ V AFRICAN RAPTOR to perform port captaincy survey services while the vessel was m oored in the Mississippi River. 6 While attem pting to board the M/ V AFRICAN RAPTOR from the M/ V MISS RACHEL, Captain Parekh fell into the river. 7 Captain Parekh’s body was recovered in the Mississippi River on J uly 19, 20 16, wearing the uninflated personal flotation device he was wearing when he fell. 8 Nayana Am barish Parekh, Captain Parekh’s spouse, filed a com plain t in this Court on August 9, 20 16, individually and as personal representative of Captain Parekh. 9 In addition to causes of action for negligence and strict product liability, 10 Plaintiff pursues a wrongful death action under general m aritim e law. 11 Plaintiff alleges she “has suffered loss of consortium , society, and financial support, for which [she] is entitled to dam ages[.]”12 During discovery, Plaintiff clarified that she seeks dam ages for herself and on behalf of all Captain Parekh’s beneficiaries, including their adult children Siddharth Parekh and Sandeep Parekh, and their grandchildren Rajveer, Moksh, Tara, and Trisha. 13 Defendant Weber filed these m otions for partial sum m ary judgm ent on Novem ber 28, 20 17. 14 In the first m otion, 15 Weber seeks a ruling lim iting the Plaintiff’s lost-wages recovery to “an am ount com m ensurate with the Bureau of Labor Statistics-published work-life expectancy.”16 Weber argues the “proper m easure of tim e for assessing lost future wages is the statistical average for one’s work-life expectancy,” which, based on the 6 R. Doc. 6 at ¶¶ 5-6. R. Doc. 6 at ¶ 7. 8 R. Doc. 6 at ¶ 10 . 9 R. Doc. 1. Plaintiff filed an am ended com plaint on Septem ber 1, 20 16. R. Doc. 6. 10 The Court dism issed Plaintiff’s product liability claim on Novem ber 22, 20 17. R. Doc. 63. 11 R. Doc. 6 at 6. 12 Id. 13 See R. Doc. 75 at 2 (statin g that the list of ben eficiaries was produced in respon se to Defendant Weber Marine, L.L.C.’s interrogatories). 14 R. Doc. 66, 67. 15 R. Doc. 66. 16 R. Doc. 66-2 at 1. 7 2 calculations of Weber’s expert witness, would be an additional 1.72 to 6.8 years beyon d Captain Parekh’s 67th birthday. 17 In response, Plaintiff asserts Captain Parekh would have continued to work until his natural death, and so Plaintiff is entitled to recover lost wages consistent with his estim ated life expectancy of 8 4.13 years. 18 In the second m otion, 19 Weber seeks a judgm ent that only Ms. Parekh, as Captain Parekh’s widow, m ay recover dam ages for loss of society. 20 Weber contends dam ages for loss of society under general m aritim e law are available only to the dependent relatives of m aritim e em ployees. Accordingly, Weber asserts that Siddharth, Sandeep, Rajveer, Moksh, Tara, and Trisha, to the extent they are non-depen dent relatives of Captain Parekh, are not entitled to loss-of-society dam ages. 21 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.”22 “An issue is m aterial if its resolution could affect the outcom e of the action.”23 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 evidence.”24 All reasonable inferen ces are drawn in favor of the nonm oving party. 25 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost 17 R. Doc. 66-6 at 2-5. R. Doc. 71-1. 19 R. Doc. 67. 20 Id. at 6. 21 Id. at 3-5. 22 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 23 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 24 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 ). 25 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 18 3 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. 26 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.’”27 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 record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 28 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 nonm ovant’s claim . 29 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 26 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 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)). 28 Celotex, 477 U.S. at 322– 24. 29 Id. 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)). 27 4 to sum m ary judgm ent as a m atter of law. 30 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.”31 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. 32 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust 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).”33 “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.”34 “[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 eviden ce in the record and to articulate the precise m anner in which that evidence supports the claim . 30 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 – 8 9 (1980 ); Anderson v . Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 31 Celotex, 477 U.S. at 332– 33. 32 Id. 33 Celotex, 477 U.S. at 332– 33, 333 n.3. 34 Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 5 ‘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.’”35 LAW AN D AN ALYSIS I. Lo s s o f Su p p o rt Plaintiff asserts a wrongful death claim under general m aritim e law. 36 In addition to dam ages for loss of consortium and society, she seeks recovery for the loss of finan cial support provided by Captain Parekh. 37 In calculating these dam ages, Plaintiff argues that Captain Parekh intended to work until he died, and as a result the loss-of-support dam ages should be based on his life expectancy. According to Plaintiff’s expert, Dr. Robert F. Hebert, Captain Parekh’s life expectancy was 8 4.13 years. 38 A dam ages award for future lost wages is generally based upon the m aritim e em ployee’s work-life expectancy—the “average num ber of years that a person of a certain age will both live and work.”39 Courts use work-life expectancy data to calculate future earnings unless there is evidence supporting a variation from the average. 40 This evidence m ust be m ore than m ere conclusory assertions regarding the decedent’s intentions to work late into life, however. 41 In Barto v. Shore Const., L.L.C, for exam ple, the Fifth Circuit reversed a district court decision to allow an above-average work-life expectancy calculation based only on the plaintiff’s testim ony that he planned to work until he could 35 Ragas v. Ten n. 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)). 36 R. Doc. 6. 37 See R. Doc. 6 at 6. 38 R. Doc. 71-1. 39 Barto v. Shore Const., L.L.C., 80 1 F.3d 465, 475 (5th Cir. 20 15) (quotin g Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). 40 Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 361 (5th Cir. 20 16). 41 Id. 6 retire, “[w]hatever the retirem ent age is.”42 The Fifth Circuit stated that although a stated retirem ent goal m ay be relevant, “even if the district court believed [the plaintiff] wanted to work until age 67, wanting to work until age 67 is not the only or even the m ost significant factor in determ ining whether som eone actually will work until age 67.”43 Looking to its holding in Madore v. Ingram Tank Ships, Inc., the Fifth Circuit reiterated that, in order to claim loss-of-support dam ages beyond the average work-life expectan cy, the plaintiff m ust provide “evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.”44 The Fifth Circuit subsequently clarified the nature of the eviden ce necessary to m eet the Madore standard. 45 In Deperrodil v. Bozovic Marine, In c., the court affirm ed the district court’s determ ination that a higher-than-average work-life estim ate was warranted, because the plaintiff “fully developed the evidentiary basis for such a departure.”46 The plaintiff had em ployed a vocational-rehabilitation expert and disclosed the m edical history on which the expert based her opinion. In Deperrodil, as in Barto, the plaintiff had stated a retirem ent goal. 47 Unlike Barto, however, the goal was corroborated by an agreem ent between the plaintiff and his spouse, and a vocational counselor testified it was a reasonable goal, considering the plaintiff’s m edical history, work history, and future m edical prognosis. 48 42 Barto, 80 1 F.3d at 475. Id. 44 Id. 45 Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 361 (5 th Cir. 20 16). 46 Id. at 362. 47 Id. 48 Id. 43 7 In its m otion for partial sum m ary judgm ent, Weber asserts that Plaintiff has failed to identify eviden ce that will be introduced at trial sufficient to m eet the Madore standard. 49 Weber presents undisputed facts that plaintiffs have not presented any expert testim ony from a vocational counselor, expert in rehabilitation, or m edical doctor who will testify that Captain Parekh was capable of continuing in his line of work for another seventeen years. 50 In response, Plaintiff provided an affidavit supporting her claim that Captain Parekh could have worked longer than the statistical average for work-life expectancy. According to Plaintiff’s affidavit, Captain Parekh “had no plans to retire and intended to work for the rest of his life.”51 Plaintiff also provided the deposition of Captain Parekh’s em ployer, Chander Gorowara, who, when asked about how long Captain Parekh intended to work, testified, “Forever. Until the legs give out. We used to talk about this quite often. Here we have an office pool for the lottery. We used to say, one day, m y fantasy is [that] we win the Mega Millions and all of us will retire. And he used to say, no, not m e, you can hand over the keys to m e and I will continue.”52 Gorowara further testified that Captain Parekh was physical fit for his age, and fully expected him to continue working indefinitely, stating, “Physically, he was fit. Mentally, he was strong, and to m e, as a business owner, he was very dependable. Until he could not work, he would have worked. 53 The Court finds, even weighing all evidence in favor of Plaintiff, that she has not created a genuin e dispute of m aterial fact regarding Captain Parekh’s capability of 49 R. Doc. 66-2 at 2. R. Doc. 66-3 at ¶¶ 6-7. R. Doc. 71-6 at ¶¶ 6-7. 51 R. Doc. 71-2 at ¶ 14. 52 R. Doc. 71-5 at 4. 53 R. Doc. 71-5 at 5. 50 8 working longer than his statistical work-life average. Under Madore, Plaintiff m ust provide “evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.”54 None of Plaintiff’s evidence does so. First, Plaintiff’s self-serving affidavit is not persuasive sum m ary judgm ent evidence. 55 The Fifth Circuit rejects attem pts to defeat sum m ary judgm ent by the subm ission of self-serving affidavits and testim ony. 56 Second, the deposition testim ony of Mr. Gorowara, while it m ay corroborate Plaintiff’s assertions of Captain Parekh’s desire to work, fails to show how either Captain Parekh’s m edical condition or the nature of his em ploym ent m akes it likely he would work longer than the average. For exam ple, Mr. Gorowara does not explain how Captain Parekh could have continued as a m arine surveyor—an obviously rigorous line of work—into his m id-8 0 s. Sim ilar to the plaintiff in Barto, Captain Parekh was em ployed in a highly dangerous, physically dem anding field. As the Fifth Circuit stated, an em ployee in such a field “m ight have becom e disabled before [his intended retirem ent] as a result of illness or som e other m isadventure. . . . [Plaintiff] presented no evidence that such events were particularly unlikely given his health or other factors.”57 In this case, Plaintiff has likewise failed to provide evidence that “such events were particularly unlikely” to occur with respect to Captain Parekh. 58 54 Madore v. Ingram Tank Ships, Inc. 732 F.2d 475, 478 (1984). See Guldin v. Conoco, Inc., 37 Fed. Appx. 712 (5th Cir. 20 0 2) (“Guldin offers on ly his own self-serving and conclusory affidavit . . . [t]he district court correctly concluded that Guldin’s affidavit was no bar to entry of sum m ary judgm en t.”). 56 See, e.g., BM G Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996); Cenac Marine Services, LLC v. Clark, 20 17 WL 1511760 (E.D. La. Apr. 7, 20 17). 57 Barto v. Shore Const., LLC, 80 1 F.3d 465, 475 (5th Cir. 20 15). 58 Id. 55 9 Further, while Mr. Gorowara, as Captain Parekh’s em ployer, m ay have an understanding of Captain Parekh’s work habits and em ploym ent history, he is not a vocational or m edical professional. Therefore, he is unable to give expert testim ony as to Captain Parekh’s m edical condition and physical fitness for continued service in an extrem ely hazardous profession. Without expert testim ony, m edical records, or other valid sum m ary judgm ent evidence to describe the state of Captain Parekh’s health and the nature of his duties, Plaintiff’s subm ission s do not am ount to m ore than the assertion that Captain Parekh “had no plans to retire and intended to work for the rest of his life.” This does not “fully develop[] the evidentiary basis for [a] departure” from the work-life expectancy average. 59 Although under Deperrodil the Fifth Circuit does not m andate that Plaintiff hire a vocational rehabitation expert in order to m eet the Madore standard, Plaintiff m ust provide evidence that explains why Captain Parekh was “likely to live and work [] longer” than the statistical average. The Court finds Plaintiff has failed to create a genuine dispute of m aterial fact with regard to Captain Parekh’s likelihood of working longer than the average work-life expectancy. Defendant is entitled to a ruling that Plaintiff m ay only recover loss of support dam ages consistent with average work-life expectancy. II. Lo s s o f So cie ty In Plaintiff’s general m aritim e wrongful death action, Plaintiff claim s dam ages for loss of society for herself and Captain Parekh’s beneficiaries. According to Plaintiff, these beneficiaries include Captain Parekh’s adult sons Siddharth an d Sandeep, an d his four grandchildren, Rajveer, Moksh, Tara, and Trisha. 59 Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 362 (5th Cir. 20 16). 10 The Suprem e Court in Moragne v. States Marine Line, In c. 60 recognized the existen ce of a wrongful death claim under general m aritim e law for a widow of a longshorem an killed while working aboard a vessel in state territorial waters. 61 The Court subsequently held in Sea-Land Services Inc. v. Gaudet 62 that the m aritim e wrongful death action allowed “the decedent’s dependents [to] recover dam ages for their loss of support, services, and society, and funeral expen ses.”63 In interpreting the scope of dam ages recoverable under a Moragne wrongful death action, the Fifth Circuit Court held in Miles v. Melrose 64 that a m other of a seam an who had died in territorial waters was not entitled to dam ages for loss of society because she was not dependent on the decedent. 65 The Suprem e Court affirm ed, but on the grounds that because the decedent was a J ones Act seam an, recovery for loss of society in a general m aritim e action would not be perm itted. 66 The Suprem e Court has not addressed recovery for loss of society in gen eral m aritim e actions since Miles, but the Fifth Circuit later held in In re Am erican River Transp. Co. that non-dependent survivors of a deceased longshorem an or harborworker m ay not recover for loss of society. 67 Although the Fifth Circuit found the distinction between dependent and non-depen dent survivors “is not explicitly required by the relevant statutes or Suprem e Court precedent,” recovery by non-depen dent survivors would: 60 398 U.S. 375 (1970 ). Id. The Suprem e Court later extended the general m aritim e law wron gful death action for a m aritim e em ployee killed in state waters to include an action for negligence. Garris, 532 U.S. at 818– 19. 62 414 U.S. 573 (1974). 63 Id. at 584. 64 88 2 F.2d 976 (5th Cir. 198 9). 65 Id. at 21-22. 66 Miles v. Apex Marin e Corp., 498 U.S. 19 (1990 ). 67 In re Am erican River Tran sp. Co., 490 F.3d 351 (5th Cir. 20 0 7). 61 11 (1) im pede uniform ity by going against the substantial m ajority of the federal court decisions on this issue, and (2) create an anom aly by expanding the class of beneficiaries of nonseam en who m ay recover for loss of society in the afterm ath of the Suprem e Court’s denial [in Miles] of any such recovery to the beneficiaries of seam an. 68 Accordingly, the Fifth Circuit concluded that “non-depen dent [beneficiaries] of a longshorem an who died in territorial waters are not entitled to recover dam ages for loss of society.”69 “Dependen cy,” for the purposes of general m aritim e wrongful death claim s, carries its “ordinary m eaning” of financial dependency. 70 An adult child m ay be depen dent on his or her parent, 71 just as a parent m ay be dependent on a m inor child. 72 Defendant Weber seeks sum m ary judgm ent that Plaintiff m ay seek only recovery for her loss of support on the grounds that Captain Parekh’s children Siddarth an d Sandeep, and his grandchildren Rajveer, Moksh, Tara, an d Trisha, are not his depen dents. 73 Weber puts forward the following undisputed facts. Captain Parekh has three adult children: Siddarth Parekh, 40 years old; Prerna Girdhar, 38 years old; an d Sandeep Parekh, 35 years old. 74 Rajveer, Moksh, Tara, and Trisha Parekh are Captain Parekh’s grandchildren. 75 Siddarth and Sandeep contribute to a joint account utilized by the entire household. 76 Captain Parekh’s tax returns from 20 11 to 20 15 do not list any of his children or grandchildren as depen dents. 77 68 Id. at 359 (citations om itted). Id. at 360 . Although the facts of In re Am erican Riv er Transp. Co. involved non-dependent parents, rather than non-dependent children , other district courts in this Circuit have generalized the Fifth Circuit’s holding to apply to “survivors of a deceased worker covered by the LHWCA who were not financially dependent on the deceased.” Hopper v. M/ V UBC Sin gapore, 20 10 WL 2977296 at *2 (S.D. Tex. J uly 20 , 20 10 ). 70 N eal v. Barisich, Inc., 70 7 F.Supp. 862 (E.D.La. 1989). 71 See Solom on v. W arren, 540 F.2d 777 (5th Cir. 1976) (affirm in g to an adult child for loss of support). 72 Com plaint of Patton-Tully Transp. Co., 797 F.2d 20 6, 213 (5th Cir. 198 6). 73 R. Doc. 67-2 at 6. 74 R. Doc. 67-3 at ¶ 4. R. Doc. 75-5 at ¶ 4. Plaintiff does n ot seek dam ages for Prerna Girdhar. 75 R. Doc. 67-3 at ¶ 5. R. Doc. 75-5 at ¶ 6. 76 R. Doc. 67-3 at ¶ 9. R. Doc. 75-5 at ¶ 9. Plaintiff disputes that there is evidence showing that Siddharth and Sandeep are em ployed full-tim e. R. Doc. 75-5 at ¶ 9. 77 R. Doc. 67-3 at ¶ 8. R. Doc. 75-5 at ¶ 8. 69 12 Plaintiff disputes whether Siddarth, Sandeep, Rajveer, Moksh, Tara, and Trisha are financially dependent on Captain Parekh. According to testim ony by Siddharth and Sandeep and an affidavit by the Plaintiff, the entire fam ily lived in the sam e house in LaPlace, Louisiana, 78 and shared a com m unal bank account into which they all contributed that was used for jointly paying bills and expenses. 79 Plaintiff’s affidavit states that Captain Parekh “m onetarily supported everyone who lived in the house,” and “was the prim ary source of m onetary support for everyone living in the house.”80 Captain Parekh “deposited the vast m ajority of funds into the shared Chase Bank account.”81 Sandeep testified that he, his wife, his children, his brother, and his brother’s wife an d children, all lived in the house in LaPlace. 82 Sandeep and Siddharth further testified that everyone in the extended fam ily paid into a single checking account which is used for dayto-day expenses. 83 The Court finds Plaintiff’s affidavit and the deposition testim ony of Captain Parekh’s sons are in sufficient to create a genuine issue of m aterial fact. The Fifth Circuit rejects the use of self-serving affidavits and testim ony to defeat sum m ary judgm ent. 84 Of course, it is well-established that a party’s verified answers to interrogatories m ay serve as support or rebuttal of a m otion for sum m ary judgm ent, 85 and a party’s own sworn affidavits can serve to create a genuine issue of m aterial fact sufficient to defeat a m otion 78 See R. Doc. 10 2-2 at 8 (Deposition of Siddarth Parekh); R. Doc. 10 2-4 at 5 (Deposition of Sandeep Parekh); R. Doc. 10 2-3 at 1-2 (Affidavit of Nayana Parekh). 79 See R. Doc. 10 2-2 at 57-58; R. Doc. 10 2-4 at 6; R. Doc. 10 2-3 at 1. 80 R. Doc. 10 2-3 at 2. 81 R. Doc. 75-3 at ¶ 13. 82 R. Doc. 75-4 at 4. 83 R. Doc. 75-4 at 5. R. Doc. 75-2 at 9. 84 See, e.g., BMG Music v. M artinez, 74 F.3d 87, 91 (5 th Cir. 1996); Cenac Marine Services, LLC v. Clark, 20 17 WL 1511760 (E.D. La. Apr. 7, 20 17). 85 See Fow ler v . Southern Bell Telephone & Telegraph Co., 343 F.2d 150 , 154 (5th Cir. 1965). 13 for sum m ary judgm ent. 86 However, a non-m oving party m ust com e forward with m ore than “conclusory allegations, speculation, and unsubstantiated assertions.”87 In this case, Plaintiff’s affidavit is wholly conclusory, stating only that Captain Parekh “m onetarily supported everyone who lived in the house,” and “was the prim ary source of m on etary support for everyone living in the house,”88 without providing any factual basis for support. Further, the testim ony of Sandeep and Siddharth Parekh is im m aterial to the issue of financial dependency. The sons sim ply describe the fam ily’s living arrangem ent, and do not testify regarding their or their children’s financial dependen cy on Captain Parekh. Plaintiff has not provided any evidence beyond her own self-servin g affidavit and the testim ony of the potential beneficiaries. While Plaintiff avers that “abundant uncontested evidence [exists] that Siddharth and his children, and Sandeep and his children, were fin ancially dependent upon Decedent under applicable law,”89 Plaintiff has not produced any bank statem ents, tax returns, pay stubs, or the like, that would establish financial dependency between Captain Parekh and his adult children and their progeny. Plaintiff has failed to create a genuine dispute of m aterial fact as to whether Siddharth, Sandeep, Rajveer, Moksh, Tara, and Trisha Parekh are financial depen dents of Captain Parekh. Weber is entitled to a judgm ent that only Plaintiff Nayana Am barish Parekh m ay seek dam ages for loss of society in her general m aritim e wrongful death action. 86 See, e.g., Dibidale of La., Inc. v. Am erican Bank & Trust Co., 916 F.2d 30 0 , 30 7-30 8 (5th Cir. 1990 ). Douglass v. United Services Auto Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996). 88 R. Doc. 10 2-3 at 2. 89 R. Doc. 75 at 8 . 87 14 CON CLU SION IT IS ORD ERED that Defendant Weber Marine, L.L.C.’s m otions for partial sum m ary judgm ent 90 are GRAN TED . N e w Orle a n s , Lo u is ian a, th is 8 th d ay o f Jan u ary, 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 90 R. Docs. 66 and 67. 15
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