In re: Louisiana Crawfish Producers, et al

Filing

PUBLISHED OPINION FILED. [16-30353 Affirmed in Part, Reversed in Part, Vacated in Part and Remanded] Judge: TMR , Judge: JWE , Judge: JEG. Mandate pull date is 04/18/2017 [16-30353](This opinion includes URL material that is archived by the Fifth Circuit Court of Appeals Library, and made available at http://www.lb5.uscourts.gov/ArchivedURLS/.)

Case: 16-30353

Document: 00513928798

Page: 1

Date Filed: 03/28/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-30353
In Re: LOUISIANA CRAWFISH PRODUCERS

FILED
March 28, 2017
Lyle W. Cayce
Clerk

consolidated with: 16-30355, 16-30357, 16-30358, 16-30359, 16-30360, 1630361, 16-30362, 16-30363, 16-30364, 16-30365, 16-30366, 16-30367, 1630368, 16-30369, 16-30370, 16-30371, 16-30372, 16-30373, 16-30374, 1630375, 16-30376, 16-30377, 16-30379, 16-30380, 16-30381, 16-30382, 1630383, 16-30384, 16-30385, 16-30386, 16-30387, 16-30388, 16-30389, 1630390, 16-30391, 16-30392, 16-30393, 16-30394, 16-30395, 16-30396, 1630397, 16-30398, 16-30399, 16-30400, 16-30401, 16-30402, 16-30403, 1630405, 16-30406, 16-30407, 16-30408, 16-30409, 16-30410, 16-30411, 1630413, 16-30414, 16-30415, 16-30416, 16-30417, 16-30418, 16-30419, 1630420, 16-30421, 16-30422, 16-30423, 16-30424, 16-30425, 16-30426, 1630427, 16-30428, 16-30429, 16-30430, 16-30431, 16-30432, 16-30433, 1630434, 16-30435, 16-30436, 16-30437, 16-30738, 16-30439, 16-30440, 1630441, 16-30442, 16-30443, 16-30444, 16-30445, 16-30446, 16-30447, 1630448, 16-30449

Appeals from the United States District Court
for the Western District of Louisiana
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
The Louisiana Crawfish Producers Association-West and some of its
commercial crawfishermen members sued a number of oil and gas companies
and their insurers, claiming the companies’ dredging activities caused damage
to the fisheries the fishermen used. The district court granted summary
judgment in favor of two of the companies, Florida Gas Transmission Co. and
Southern Natural Gas Co., finding that Plaintiffs did not create a genuine issue

Case: 16-30353

Document: 00513928798

Page: 2

Date Filed: 03/28/2017

No. 16-30353
of material fact as to whether the two companies’ activities constituted
“dredging” so as to support maritime tort claims. Plaintiffs moved the district
court to reconsider its grant of summary judgment and submitted new evidence
for its review. The district court denied Plaintiffs’ motion for reconsideration
as to both companies. Plaintiffs appeal both the district court’s order granting
summary judgment as well as the denial of their motion for reconsideration.
We AFFIRM the district court’s grant of summary judgment and denial of the
motion for reconsideration with respect to Florida Gas Transmission Co. With
respect to Southern Natural Gas Co., we REVERSE the district court’s denial
of Plaintiffs’ Rule 59(e) motion and VACATE its grant of summary judgment.
I.
Plaintiffs-Appellants are the Louisiana Crawfish Producers AssociationWest and over eighty individual crawfishermen who operate in the Atchafalaya
Basin in Louisiana (collectively, Plaintiffs). 1 They sued several companies, two
of which are relevant to this appeal—Florida Gas Transmission Co. (Florida
Gas) and Southern Natural Gas Co. (Southern Natural). Plaintiffs alleged that
the companies’ past canal dredging activities created spoil banks that damaged
the Atchafalaya Basin fisheries Plaintiffs utilized.
After this case was removed from state court to the United States
District Court for the Western District of Louisiana, various defendant
companies filed a motion to dismiss, arguing that Plaintiffs failed to state a
cause of action for maritime tort. The district court held that Plaintiffs had

Crawfish, also known as crayfish, crawdads, freshwater lobsters, mountain lobsters,
mudbugs, or yabbies, are freshwater crustaceans resembling small lobsters. While there are
over 500 species of crawfish in the world, the Southeastern United States is home to around
330 of them. Wikipedia, Crayfish, https://en.wikipedia.org/wiki/Crayfish (last visited March
21, 2017). In 1983, the state of Louisiana designated the Louisiana crawfish, Procambarus
clarkii, as its Official Crustacean, becoming the first state to bestow such an honor on a
species
of
crustaceans.
Wikipedia,
List
of
U.S.
State
Crustaceans,
https://en.wikipedia.org/wiki/List_of_U.S._state_crustaceans (last visited March 21, 2017).
1

2

Case: 16-30353

Document: 00513928798

Page: 3

Date Filed: 03/28/2017

No. 16-30353
stated a maritime tort claim against Florida Gas, Southern Natural, and Dow
Chemical Co. (Dow) 2 by alleging that these defendants engaged in dredging
activities. 3 The district court dismissed Plaintiffs’ claims against all other
defendant companies because Plaintiffs failed to allege these companies had
engaged in dredging activities. Plaintiffs appealed the dismissal of these
defendants, but we affirmed. In re Louisiana Crawfish Producers, 772 F.3d
1026 (5th Cir. 2014). Our decision left Florida Gas, Southern Natural, and
Dow, along with their insurers, as the remaining defendants.
Following our decision in Louisiana Crawfish, the remaining defendants
and Plaintiffs conferred and prepared a case management order to establish
litigation deadlines. At the time the parties created the case management
order, Southern Natural’s Rule 30(b)(6) deposition had not yet occurred. The
parties agreed upon a proposed case management order, which stated, in
pertinent part:
3. Dispositive Motions:
a. Any party having dispositive motion(s) concerning legal
issues and not requiring additional fact discovery shall file their
motion(s) by July 31, 2015.
b. Oppositions to dispositive motions filed on or before July
31, 2015 shall be filed by August 31, 2015.
c. Any reply briefs shall be filed by September 15, 2015.
d. Within thirty (30) days from receipt of the transcript of
the Southern Natural Gas Company deposition in this matter,
Plaintiffs shall file any dipositive motions or supplemental
oppositions necessitated by factual information learned during the
deposition.

2

Dow remains a defendant in the district court but is not a party to this appeal.

Specifically, the district court found that with respect to Southern Natural, Florida
Gas, and Dow, Plaintiffs’ allegation of dredging on navigable waters bears a sufficient
relationship to traditional maritime activity to state a claim for a maritime tort under Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).
3

3

Case: 16-30353

Document: 00513928798

Page: 4

Date Filed: 03/28/2017

No. 16-30353
Southern Natural advised Plaintiffs that its earliest available deposition
date was September 22, 2015. This date fell after the case management order’s
August 31 deadline for Plaintiffs to oppose dispositive motions. Plaintiffs
nevertheless agreed to hold Southern Natural’s deposition on September 22,
2015, anticipating they would be allowed to supplement their opposition to any
dispositive motions with information learned at the deposition.
On July 31, 2015, in accordance with the case management order,
Florida Gas, Southern Natural, and Dow filed a joint motion seeking
reconsideration of the district court’s earlier denial of their motion to dismiss
or, alternatively, seeking summary judgment and dismissal of Plaintiffs’
claims. Plaintiffs timely submitted their opposition to the motion in accordance
with the deadlines set forth in the case management order. Plaintiffs attached
to their opposition evidence pertaining to Florida Gas and Dow, but they did
not attach any evidence pertaining to Southern Natural. 4
While the motion was pending before the district court, Southern
Natural’s corporate representative was deposed on September 22, 2015.
During the deposition, Southern Natural’s corporate representative testified
that Southern Natural engaged in dredging in connection with the subject spoil
banks. 5 At the end of the deposition, Southern Natural’s corporate
representative reserved his right to read and sign the deposition transcript. At

Plaintiffs did note in their opposition brief that they would be deposing Southern
Natural in the coming months, and stated that they “reserved the right to supplement this
opposition after the deposition of Southern Natural Gas which is set to take place in late
September, 2015.”
4

Specifically, Southern Natural’s corporate representative testified:
Q: Let’s talk about the Section 28 line. Do you know how that line was actually
constructed?
A: I know that the line was permitted to be constructed by virtue of Southern Natural
digging a flotation canal for waterborne equipment to lay the pipeline, and we know that
was done in accordance with the permit.
5

4

Case: 16-30353

Document: 00513928798

Page: 5

Date Filed: 03/28/2017

No. 16-30353
Plaintiffs’ request, the court reporter provided an uncertified copy of the
transcript to Plaintiffs on October 26, 2016. However, because Southern
Natural’s corporate representative had not yet signed the transcript, an official
transcript was not yet available. After the deposition took place, Plaintiffs also
forwarded requests for admissions to all defendants, ahead of the agreed-upon
discovery cutoff date. In its response, Southern Natural admitted to using
dredge vessels in the construction of the canal at issue. 6
On November 12, 2015, while Plaintiffs were still awaiting the official
deposition transcript, the district court granted summary judgment in favor of
Florida Gas and Southern Natural, 7 finding that Plaintiffs did not provide
evidence that created a genuine issue of material fact as to whether either of
these defendants had engaged in dredging activities. The certified transcript
of the Southern Natural deposition was finally provided to Plaintiffs on
November 17, 2015—five days after the district court’s ruling.
Plaintiffs moved the district court to reconsider its grant of summary
judgment under Federal Rule of Civil Procedure 59(e). In their brief in support
of this motion, Plaintiffs argued that the district court’s ruling as it pertained

Plaintiffs’ first request for admission asked Southern Natural to “Admit or deny that
the canals in which Southern Natural Gas’ ‘South Section 28 Pipeline’ . . . [is/was] situated
were dredged by dredging vessels.” In response, Southern Natural admitted that Southern
Natural “constructed the South Section 28 Pipeline . . . in accordance with the permits issued
by United States Army Corps of Engineers . . . .”
6

The district court denied the defendants’ motion to reconsider the order denying their
motion to dismiss, holding that dredging of a navigation canal, conducted from a vessel on
navigable waters, shows a substantial connection to traditional maritime activity sufficient
to support a maritime tort claim. (citing Sisson v. Ruby, 497 U.S. 358, 367 (1990) (in addition
to “navigation,” traditional maritime activities include “at least . . . any other activities
traditionally undertaken by vessels, commercial or noncommercial”); Grubart, 513 U.S. at
539-40 (dredge and dock company’s bridge repair and maintenance work from a vessel on a
navigable waterway was substantially related to traditional maritime activity); In re The V14813, 65 F.2d 789, 790 (5th Cir. 1933) (“There are many cases holding that a dredge . . .
employed on navigable waters, is subject to maritime jurisdiction . . . .”)). The parties do not
contest this holding.
7

5

Case: 16-30353

Document: 00513928798

Page: 6

Date Filed: 03/28/2017

No. 16-30353
to Southern Natural was procedurally erroneous because Plaintiffs did not
have an opportunity to supplement their opposition to the defendants’ motion
under the terms of the case management order. Plaintiffs also attached
additional evidence to their brief which they argued supported their claims
against both Florida Gas and Southern Natural. This new evidence included
Southern Natural’s deposition testimony, exhibits offered at Southern
Natural’s deposition, and Southern Natural’s responses to requests for
admissions.
The district court denied Plaintiffs’ motion for reconsideration as to both
Florida Gas and Southern Natural. Plaintiffs now appeal the district court’s
original order granting summary judgment as well as the district court’s order
denying reconsideration.
II.
We review grants of summary judgment de novo, applying the same
standard as the district court. Templet v. Hyrdochem Inc., 367 F.3d 473, 477
(5th Cir. 2004). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]here the
nonmovant bears the burden of proof at trial, the movant may merely point to
an absence of evidence, thus shifting to the non-movant the burden of
demonstrating by competent summary judgment proof that there is an issue of
material fact warranting trial. Only when ‘there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party’ is a full trial
on the merits warranted.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618
(5th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)) (citations omitted). All reasonable inferences must be viewed in the
light most favorable to the party opposing summary judgment, and any doubt
must be resolved in favor of the non-moving party. Matsushita Elec. Indus. Co.
6

Case: 16-30353

Document: 00513928798

Page: 7

Date Filed: 03/28/2017

No. 16-30353
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Hillman v. Loga, 697 F.3d 299,
302 (5th Cir. 2012).
Typically, we review a district court’s decision on a Rule 59 motion to
reconsider for abuse of discretion. Templet, 367 F.3d at 477. However, this
depends on whether the district court considered materials attached to the
motion for reconsideration which were not previously provided to the court
when it granted summary judgment. Id. (citing Ford Motor Credit Co. v.
Bright, 34 F.3d 322, 324 (5th Cir. 1994)). “If the materials were considered by
the district court, and the district court still grants summary judgment, the
appropriate appellate standard of review is de novo.” Id. “However, if the
district court refuses to consider the materials, the reviewing court applies the
abuse of discretion standard.” Id. Under an abuse of discretion standard of
review, “the district court’s decision and decision-making process need only be
reasonable.” Id.
III.
We first address the district court’s grant of summary judgment and
subsequent denial of Plaintiffs’ motion for reconsideration with respect to
Florida Gas. Florida Gas contends that it did not perform any dredging, but
rather that its activities were limited to placing a pipeline into an already
existing canal. Under our precedent, merely placing pipeline—“pipeline
construction and repair”—is insufficient to support a maritime tort claim. See
Louisiana Crawfish, 772 F.3d at 1029–30. The issue before us on appeal is
whether Plaintiffs met their summary judgment burden of demonstrating that
a genuine issue of material fact exists as to whether Florida Gas engaged in
dredging.
In opposition to Florida Gas’s summary judgment motion, Plaintiffs
submitted Florida Gas’s United States Army Corps of Engineers permit and
permit application. Plaintiffs attached additional evidence to their motion for
7

Case: 16-30353

Document: 00513928798

Page: 8

Date Filed: 03/28/2017

No. 16-30353
reconsideration, which included Southern Natural’s corporate deposition
testimony, a photograph purporting to show the canal in which Florida Gas’s
pipeline is placed, and a document entitled “Memorandum and Files.” Because
the district court considered this additional evidence in denying the motion for
reconsideration as to Florida Gas, this evidence became part of the summary
judgment record. Templet, 367 F.3d at 477–79. Therefore, we review de novo
whether summary judgment was appropriate. 8 Id. at 477. We hold that the
district court did not err in granting summary judgment in favor of Florida Gas
and in subsequently denying Plaintiffs’ motion for reconsideration as to Florida
Gas.
As a threshold matter, Plaintiffs argue that the district court erred by
shifting the summary judgment burden to them because Florida Gas did not
submit any evidence in support of its motion for summary judgment. However,
Plaintiffs—not Florida Gas—bear the burden to present evidence creating a
genuine issue of material fact to defeat summary judgment. Lindsey, 16 F.3d
at 618 (“[W]here the non-movant bears the burden of proof at trial, the movant
may merely point to an absence of evidence, thus shifting to the non-movant
the burden of demonstrating by competent summary judgment proof that there
is an issue of material fact warranting trial.”); Little v. Liquid Air Corp., 37
F.3d 1069, 1075, 1076 n.16 (5th Cir. 1994) (en banc) (noting that the party
moving for summary judgment may simply assert the “absence of facts
supporting the elements of the plaintiffs’ theory of recovery” and need not
“negate the existence of facts”); see also 10A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2727.1 (4th ed. 2016). Plaintiffs bear

Both Plaintiffs and Florida Gas agree that the district court considered Plaintiffs’
new evidence as to Florida Gas and that the de novo standard of review applies.
8

8

Case: 16-30353

Document: 00513928798

Page: 9

Date Filed: 03/28/2017

No. 16-30353
the burden of proving their maritime tort claims at trial and therefore bear the
burden of demonstrating that Florida Gas dredged the canals in question.
In its summary judgment motion, Florida Gas “point[ed] to” the lack of
record evidence that it participated in dredging activities; therefore, Plaintiffs
bore the burden of “demonstrating by competent summary judgment proof”
that there is a genuine issue of material fact as to whether Florida Gas
dredged. See Lindsey, 16 F.3d at 618. The evidence submitted by Plaintiffs—
either initially in opposition to summary judgment or later attached to their
motion for reconsideration—was not sufficient to satisfy this burden.
Plaintiffs argue that Florida Gas’s Army Corps of Engineers permit
application creates a genuine issue of fact because “[e]very company that
dredged canals in the Atchafalaya during this time period was required to
obtain a permit like these.” But Florida Gas’s application makes no reference
to dredging; rather, it only provides for the pipeline to be dropped into an open,
forty-foot-wide canal. Indeed, this application supports Florida Gas’s theory
that it was seeking permission to drop a pipeline into an existing canal—not
seeking to dredge a canal.
Likewise, Florida Gas’s permit itself does not create a fact issue as to
whether Florida Gas dredged the canal in question. The only mention of
dredging in Florida Gas’s permit is in a list of boilerplate conditions that are
not tied to any specific location. These conditions do not show that Florida Gas
requested permission to dredge, that it received permission to dredge, or, most
critically, that it actually dredged. There is nothing in Florida Gas’s permit
that defeats summary judgment. 9
Plaintiffs also argue that there are “vicinity maps” in Florida Gas’s permit that
demonstrate there were no pre-existing canals at the time Florida Gas’s permit was issued.
Plaintiffs argue that if Florida Gas laid its pipeline into an existing canal, the canal would
have been depicted on these maps. However, the maps themselves are unclear and it is
difficult to discern what they are depicting. Plaintiffs do not offer testimony or other record
9

9

Case: 16-30353

Document: 00513928798

Page: 10

Date Filed: 03/28/2017

No. 16-30353
Plaintiffs contend that Southern Natural’s corporate deposition
testimony also creates a genuine issue of material fact as to Florida Gas’s
dredging. Specifically, Plaintiffs argue that Southern Natural’s corporate
representative testified that if a forty-foot wide canal remained in existence
today, that could be an indication that the canal had been dredged. Plaintiffs’
reliance on this testimony is misplaced because the testimony does not
specifically address Florida Gas’s pipelines nor does it address whether Florida
Gas had conducted any dredging. Further, Plaintiffs have not cited to anything
in the record that indicates that Southern Natural’s representative had any
knowledge of Florida Gas’s pipeline construction history.
Plaintiffs also submitted a photograph that they contend shows “an
approximately forty-foot wide canal with adjacent spoil banks still in existence
today in the fishery, in which FLORIDA’s pipeline rests, today.” Plaintiffs
contend that because this canal exists, Florida Gas, “or someone on its behalf
. . . dredged a canal.” However, as the district court noted, the photograph is of
such poor quality that it is extremely difficult to determine what it depicts.
Further, even if the photograph proves the existence of a canal, this does not
serve as evidence that Florida Gas dredged the canal. Indeed, Florida Gas has
agreed all along that a canal exists; it only contends it did not dredge it.
The final piece of evidence offered by Plaintiffs to defeat summary
judgment with respect to Florida Gas is a document entitled “Memorandum
for the Files.” In this document, a Southern Natural employee purportedly
writes that he consulted with an employee from Florida Gas to inquire about
the credentials of a dredging contractor Florida Gas had used. Plaintiffs argue

evidence to support their assertion that “there are no pre-existing canals depicted” on the
maps, much less that Florida Gas dredged canals. Such conjecture, unsupported by
competent summary judgment evidence, cannot create a fact issue to defeat summary
judgment.

10

Case: 16-30353

Document: 00513928798

Page: 11

Date Filed: 03/28/2017

No. 16-30353
that given the proximity in time between when the memo was produced and
when Florida Gas constructed its pipeline at issue in this case, “there is
certainly a logical inference to be made that the memo refers to FLORIDA’s
pipelines at issue in this case.” However, as the district court correctly
recognized, this document cannot defeat summary judgment as to Florida Gas
because the document does not reference a specific Florida Gas project and
there is nothing on the face of the document that connects it to any of the
pipelines at issue. 10
In sum, none of Plaintiffs’ evidence creates a genuine issue of material
fact as to whether Florida Gas participated in dredging activities. Little, 37
F.3d at 1075. Accordingly, we affirm the district court’s grant of summary
judgment in favor of Florida Gas. Having done so, we also affirm the denial of
Plaintiffs’ motion for reconsideration as to Florida Gas.
IV.
We turn next to the district court’s grant of summary judgment in favor
of Southern Natural and its subsequent denial of Plaintiffs’ motion for
reconsideration as it pertained to Southern Natural. The district court granted
summary judgment in favor of Southern Natural because Plaintiffs did not

In its opinion granting summary judgment, the district court also addressed the
deposition testimony of Florida Gas’s corporate representative, Dennis Alters. Alters testified
that after reviewing Florida Gas’s “construction notes . . . foot by foot,” there was no mention
of any dredging activity. The district court accepted Alters’s testimony as “uncontradicted
and unimpeached.” Plaintiffs argue that because Alters “could only speculate on how the
canals came into existence” and did not testify as to what actually happened, Florida Gas
“never established that there was no genuine issue of fact as to whether it engaged in
dredging.” Again, it is Plaintiffs’ burden to produce evidence that Florida Gas dredged, not
Florida Gas’s burden to prove they did not. Despite Alters’s testimony, however, Plaintiffs
could have defeated summary judgment as to Florida Gas had they produced evidence that
created a genuine issue of material fact as to whether Florida Gas dredged. See Matsushita
Elec. Indus. Co., 475 U.S. at 587; Hillman, 697 F.3d at 302 (“Doubts are to be resolved in
favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that
party.” (quoting Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003)).
Plaintiffs have failed to do so, and thus summary judgment as to Florida Gas is appropriate.
10

11

Case: 16-30353

Document: 00513928798

Page: 12

Date Filed: 03/28/2017

No. 16-30353
submit any evidence relating to Southern Natural’s dredging activity in
opposition to the summary judgment motion. The district court’s initial grant
of summary judgment in favor of Southern Natural was proper 11— Southern
Natural pointed “to an absence of evidence” supporting Plaintiffs’ claims, thus
shifting to Plaintiffs “the burden of demonstrating by competent summary
judgment proof that there is an issue of material fact warranting trial,” a
burden Plaintiffs did not satisfy. Lindsey, 16 F.3d at 618.
However, we must also determine whether the district court’s denial of
reconsideration as to Southern Natural was proper in light of the evidence
Plaintiffs submitted along with their motion for the district court to reconsider
Southern Natural’s dismissal. Unlike the district court’s review of Plaintiffs’
new evidence pertaining to Florida Gas, the district court likely did not
consider Plaintiffs’ new evidence pertaining to Southern Natural; 12 therefore,
we review the district court’s denial of Plaintiffs’ Rule 59(e) motion as to
Southern Natural for abuse of discretion. See Luig v. N. Bay Enters, Inc., 817
F.3d 901, 905–06 (5th Cir. 2016) (applying the abuse of discretion standard
where “[t]he district court likely did not consider [movant’s] newly presented

Plaintiffs argue that the district court erred in “converting” Southern Natural’s
motion from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to a motion
for summary judgment under Rule 56. However, Southern Natural moved the district court
to reconsider its prior dismissal of Southern Natural’s motion to dismiss or, alternatively, to
grant summary judgment in Southern Natural’s favor. To the extent that Plaintiffs argue
they did not have adequate notice that the district court could grant summary judgment, the
title of the defendants’ motion made it clear that Southern Natural and the other defendants
were seeking summary judgment.
11

Plaintiffs contend that the district court considered Southern Natural’s responses
to Plaintiffs’ requests for admissions wherein Southern Natural admitted to dredging.
Plaintiffs argue that the district court’s opinion “acknowledges the substance and contents”
of Southern Natural’s responses and therefore the district court “considered” them so as to
trigger our de novo review. See Templet, 367 F.3d at 477. While the district court may have
acknowledged the new evidence, it did not consider that evidence under the summary
judgment standard, and therefore de novo review is inappropriate here.
12

12

Case: 16-30353

Document: 00513928798

Page: 13

Date Filed: 03/28/2017

No. 16-30353
evidence when denying the [Rule] 59(e) motion”). We hold that the district
court abused its discretion in denying Plaintiffs’ motion for reconsideration as
to Southern Natural.
The district court declined to reconsider its grant of summary judgment
in favor of Southern Natural despite Plaintiffs providing three types of new
evidence upon reconsideration: (1) Southern Natural’s deposition transcript;
(2) documentary evidence offered during Southern Natural’s deposition; and
(3) Southern Natural’s responses to requests for admission. There are several
factors the district court should have considered when determining whether to
grant Plaintiffs’ motion for reconsideration in light of Plaintiffs’ new evidence:
(1) the probative value of the evidence; (2) the reason for Plaintiffs’ default; (3)
whether the evidence was available to Plaintiffs at the time of the summary
judgment motion; and (4) potential prejudice to Southern Natural. See Luig,
817 F.3d at 906 (citing Templet, 367 F.3d at 478). These factors “are simply
illustrative and not exhaustive.” Templet, 367 F.3d at 482. The district court
concluded that all of the additional evidence that Plaintiffs asked the court to
consider was “plainly available or easily discovered before summary
judgment.” We disagree with the district court’s analysis, particularly as it
pertains to Southern Natural’s deposition transcript and responses to requests
for admissions. 13

In addition to Southern Natural’s deposition transcript and responses to requests
for admission, Plaintiffs also offered the documentary evidence from Southern Natural’s
deposition as “new” evidence. Plaintiffs candidly acknowledge in their brief that “all of the
deposition exhibits were in [their] possession at the time they originally opposed the
summary judgment.” Because this evidence was available to Plaintiffs at the time of the
summary judgment motion and because Plaintiffs have not presented a satisfactory reason
for not coming forward with this evidence at the time their opposition was filed, we conclude
the district court did not abuse its discretion in not reconsidering its grant of summary
judgment in light of this particular evidence. See Luig, 817 F.3d at 906. Further, it is
unnecessary to address the deposition exhibits in more detail because we conclude that the
district court abused its discretion when it did not reconsider its grant of summary judgment
13

13

Case: 16-30353

Document: 00513928798

Page: 14

Date Filed: 03/28/2017

No. 16-30353
Southern Natural’s deposition transcript and responses to requests for
admissions are clearly probative. The district court granted summary
judgment as to Southern Natural because Plaintiffs failed to present evidence
that Southern Natural engaged in any dredging activities. In both its
deposition and its responses to requests for admissions, Southern Natural
candidly admitted that it dredged the canal in question. 14 If the district court
would have considered the contents of Southern Natural’s deposition or its
admissions, Plaintiffs would have defeated summary judgment as to Southern
Natural. 15
Plaintiffs’ reasons for their default also support granting their motion for
reconsideration. First, as to Southern Natural’s deposition transcript,
Plaintiffs had not yet received an official copy of the transcript at the time the
district court granted the motion for summary judgment. In evaluating
Plaintiffs’ motion for reconsideration, the district court faulted Plaintiffs for
failing to seek an extension of time to file supplemental briefing after Southern
Natural’s deposition took place and while Plaintiffs were waiting for an official
copy of the transcript. However, no extension of time should have been
necessary—Plaintiffs were justified in relying on the deadlines set forth in the

as to Southern Natural in light of Southern Natural’s deposition transcript and responses to
request for admissions, which were sufficient to defeat summary judgment.
Notably, Southern Natural does not dispute that it admitted to dredging the canal
at issue in its deposition and its responses to requests for admissions. Rather, Southern
Natural only contends that the district court did not abuse its discretion in denying Plaintiffs
Rule 59(e) motion because Plaintiffs did not present this key evidence to the court in a timely
manner.
14

As we have noted above, the parties do not dispute the district court’s holding that
dredging of a navigation canal, conducted from a vessel on navigable waters, has a
substantial connection to maritime activity sufficient to support a maritime tort claim. See
Grubart, 513 U.S. at 539. Therefore, Plaintiffs’ evidence that Southern Natural dredged
would have been sufficient to support their maritime tort claim and defeat summary
judgment.
15

14

Case: 16-30353

Document: 00513928798

Page: 15

Date Filed: 03/28/2017

No. 16-30353
case management order. The case management order allowed Plaintiffs thirty
days from the time they received Southern Natural’s deposition transcript to
file any dispositive motions or any supplemental oppositions with the court.
However, the district court entered its order granting summary judgment on
November 12, 2015—five days before Plaintiffs received the official deposition
transcript. Plaintiffs submitted their motion for reconsideration along with the
new evidence on November 25, 2015—a mere eight days after Plaintiffs
received the official transcript and well within the thirty-day timeframe
established by the case management order. 16 Contrary to the district court’s
conclusion, Plaintiffs were not required to request an extension of time in order
to submit the deposition transcript to the district court.
Second, as to Southern Natural’s responses to requests for admissions,
the district court faulted Plaintiffs for “failing to immediately move to
supplement their opposition when they received [Southern Natural’s]
responses” three days before the district court’s ruling. But the district court
failed to recognize that Plaintiffs, relying on the terms of the case management
order, had no reason to believe the district court would grant the defendants’
motion while Plaintiffs were still awaiting Southern Natural’s official
deposition transcript. 17 Plaintiffs therefore had no reason to “immediately”

To the extent Southern Natural argues that the thirty-day time period should run
from the time that Plaintiffs received the unofficial deposition transcript, this does not
change our analysis. Plaintiffs received the unofficial, unsigned draft of the deposition
transcript on October 26, 2015. Therefore, Plaintiffs still satisfied the thirty-day requirement
when they filed their motion for reconsideration, along with the new evidence, on November
25, 2015.
16

Plaintiffs were justified in believing that the district court was aware of the case
management order and that the district court would abide by the deadlines agreed to by the
parties. The case management order was signed by Magistrate Judge Hanna and entered
into the case docket. However, in its opinion denying Plaintiffs’ motion for reconsideration,
the district court noted that “it was unaware” of the case management order. While we do
not fault the district court for overlooking the case management order docket entry in this
complicated, drawn-out case, the district court should have corrected this oversight upon
17

15

Case: 16-30353

Document: 00513928798

Page: 16

Date Filed: 03/28/2017

No. 16-30353
bring Southern Natural’s responses to the district court’s attention, but rather
were justified in waiting for the transcript so that they could file a single
supplemental opposition brief that would include both Southern Natural’s
deposition transcript and Southern Natural’s responses. See Luig, 817 F.3d at
907 (“Although the [the movant] likely had access to the evidence presented in
the [Rule] 59(e) motion at the time it filed its summary judgment motion, [the
movant’s] failure to present the evidence was excusable because the district
court did not give [the movant] the opportunity to present this evidence before
effectively granting summary judgment . . . .”).
The third factor—whether the evidence was available to Plaintiffs at the
time of the summary judgment motion—also favors Plaintiffs. Southern
Natural contends that the case management order limits Plaintiffs’ rights to
file supplemental materials to those materials that include “factual
information learned during the deposition.” Southern Natural argues that
none of the information Plaintiffs learned at the deposition or from Southern
Natural’s admissions was new—Plaintiffs had all of the deposition exhibits in
their possession for several years before the summary judgment motion and
these documents contained evidence that Southern Natural dredged.
We disagree. While it may be true that Plaintiffs had much of the
relevant documentary evidence in their possession before Southern Natural
moved for summary judgment, the admission made by Southern Natural that
the company dredged the pipeline in question was indeed “information
learned” by Plaintiffs. An admission by a party carries considerably more
weight than inferences drawn from documentary evidence purporting to
support a certain fact. Indeed, an admission by a party “is conclusively

Plaintiffs’ motion for reconsideration. Plaintiffs should not be punished as a result of the
district court’s oversight.

16

Case: 16-30353

Document: 00513928798

Page: 17

Date Filed: 03/28/2017

No. 16-30353
established” as fact in the case. Fed. R. Civ. P. 36(b); see also In re Carney, 258
F.3d 415, 420 (5th Cir. 2001) (“Rule 36 admissions . . . are conclusive as to the
matters admitted, they cannot be overcome at the summary judgement stage
. . . .”); 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2264 (3d ed. 2017) (noting that a Rule 36 admission, “deliberately
drafted by counsel for the express purpose of limiting and defining the facts in
issue, is traditionally regarded as conclusive”). Plaintiffs did not have Southern
Natural’s admission before Southern Natural responded to Plaintiffs’ requests
for admissions and the Southern Natural deposition took place. We therefore
conclude that Southern Natural’s candid admission that it dredged the pipeline
in question is new evidence that was not available to Plaintiffs at the time of
the summary judgment motion.
Finally, Southern Natural will not be unfairly prejudiced by the district
court’s consideration of Southern Natural’s own admissions and deposition
testimony. This is not situation in which Southern Natural was unaware that
the evidence at issue existed—the contents of both the deposition testimony
and admissions were always known to Southern Natural and within its control.
Further, had the district court utilized the case management order, this
evidence would have been properly in front of the district court before it
granted summary judgment in Southern Natural’s favor. See Luig, 817 F.3d at
907 (holding that there was no prejudice where, had the district court allowed
the moving party the proper opportunity to respond, “the evidence would have
been properly in front of the district court”).
There are “two important judicial imperatives” relating to a motion for
reconsideration: “(1) the need to bring litigation to an end; and (2) the need to
render just decisions on the basis of all the facts.” Templet, 367 F.3d at 479
(emphasis added). Plaintiffs presented new, conclusive evidence in their
motion for reconsideration pertaining to Southern Natural that they were
17

Case: 16-30353

Document: 00513928798

Page: 18

Date Filed: 03/28/2017

No. 16-30353
justified in not presenting earlier. The district court’s failure to reconsider its
grant of summary judgment as to Southern Natural in light of this new
evidence amounted to an abuse of discretion. See Luig, 817 F.3d at 907.
V.
Accordingly, we AFFIRM the district court’s grant of summary judgment
and denial of the motion for reconsideration with respect to Florida Gas. With
respect to Southern Natural, we REVERSE the district court’s denial of
Plaintiffs’ Rule 59(e) motion and VACATE its grant of summary judgment. We
REMAND for further proceedings consistent with this opinion.

18