Nguyen et al v. American Commercial Lines, Inc. et al
Filing
197
ORDER AND REASONS: IT IS ORDERED that the 177 motion for summary judgment on claims for damage to personal property is GRANTED, without objection on that aspect of the motion, and DENIED regarding claims for loss of subsistence use of natural resources and IT IS FURTHER ORDERED that the 178 motion for summary judgment on claims for lost profits/loss of earning capacity is DENIED. Signed by Judge Ivan L.R. Lemelle on 11/3/2021.(Reference: All Cases)(pp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHUC NGUYEN, ET AL.
CIVIL ACTION
VERSUS
NO. 11-1799
c/w 11-2705
REF ALL CASES
AMERICAN COMMERCIAL LINES, LLC,
ET AL.
SECTION “B”(4)
ORDER AND REASONS
Before the Court are defendants’ partially opposed motion for
summary judgment to dismiss the claims of all individual plaintiffs
for damage to personal property and loss of subsistence use of
natural resources (Rec. Docs. 177, 191, 195) and an opposed motion
for
summary
judgment
to
dismiss
plaintiffs’
claims
for
lost
profits/loss of earning capacity (Rec. Docs. 178, 188, 195). 1 For
the reasons stated below,
IT IS ORDERED that the motion for summary judgment on claims
for damage to personal property (Rec. Doc. 177)is GRANTED, without
objection on that aspect of the motion, and DENIED regarding claims
for loss of subsistence use of natural resources (Rec. Doc. 177;
and
IT IS FURTHER ORDERED that the motion for summary judgment on
claims for lost profits/loss of earning capacity (Rec. Doc. 178)
is DENIED.
Defendants’ Motion to Dismiss for failure to produce tax returns (Rec. Docs.
175) was addressed in a separate ruling.
1
1
I.
FACTS AND PROCEDURAL HISTORY
This action arises from the aftermath of a collision between
Barge DM-932, a tank barge owned by defendant American Commercial
Lines LLC (“ACL”), and the M/V TINTOMARA. Rec. Doc. 175-1 at 1. As
a result of the collision on July 23, 2008, oil spilled from Barge
DM-93, and therefore, the Mississippi River was closed to vessel
traffic from July 23, 2008 to July 28, 2008. Rec. Doc. 178-1 at
20. ACL was the designated “Responsible Party” under the Oil
Pollution Act (OPA), 33 U.S.C. § 2701 et seq., meaning regardless
of fault, ACL must resolve various third-party claims related to
the oil spill. Rec. Doc. 175-1 at 1-2.
Plaintiffs are D&C Seafood, Inc., a seafood wholesaler, and
223 individual plaintiffs—commercial fishers—who harvest and sell
seafood in and around the waters off the lower Mississippi River.
Rec. Doc. 175-1 at 2. They assert claims against defendants for:
(1) damages to real or personal property, (2) loss of subsistence
use of natural resources, and (3) loss of profits or impairment of
earning capacity. Rec. Doc. 1 at 6.
This Court received notice of an automatic stay of proceeding
when ACL filed for bankruptcy in February 2020. Without providing
any notice of the dissolution of the stay, defendants filed the
current motions for summary judgment in March 2021. 2
2
Defendant’s bankruptcy was terminated in July 2020. See In re American
Commercial Lines, No. 20-30981, (Bankr. S.D. Tex. 2020).
2
II.
LAW AND ANALYSIS
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
when
interrogatories,
“the
and
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue of material fact exists if the evidence would allow
a reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court
should
view
all
facts
and
evidence
in
the
light
most
favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory
allegations are insufficient to defeat summary judgment. Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
The
movant
must
point
to
“portions
of
‘the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together
with
the
affidavits,
if
any,’
which
it
believes
demonstrate the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If and when the movant carries this
burden, the non-movant must then go beyond the pleadings and
3
present other evidence to establish a genuine issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). However, “where 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.” Lindsey v. Sears Roebuck & Co., 16 F.3d
616, 618 (5th Cir. 1994). “This court will not assume in the
absence of any proof that the nonmoving party could or would prove
the necessary facts, and will grant summary judgment in any case
where critical evidence is so weak or tenuous on an essential fact
that it could not support a judgment in favor of the [non-movant].”
McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 358 (5th Cir. 2017).
B. Claim for Lost Profits or Loss of Earning Capacity
Under the Oil Pollution Act of 1990 (OPA), “plaintiffs must
establish that their economic losses were due to the injury,
destruction, or loss of property or natural resources that resulted
from the discharge.” In re Oil Spill by the Oil Rig “Deepwater
Horizon” in the Gulf of Mexico, on April 20, 2010, 168 F. Supp. 3d
908, 916 (E.D. La. 2016); see also In re Taira Lynn Marine Ltd.
No. 5, LLC, 444 F.3d 371, 382 (5th Cir. 2006) (citing 33 U.S.C.
§ 2702(a),(b)(2)).
“[I]t
is
a
simple
question
of
causation.”
Bouquet Oyster House, Inc. v. United States, No. 09-3537, 2011 WL
5187292, at *7 (E.D. La. Oct. 31, 2011).
4
Plaintiffs’ evidence is minimally sufficient to show that a
genuine issue of material fact remains as to whether plaintiffs
incurred damages for lost profits/loss earnings capacity resulting
from the July 23, 2008 oil spill. They provide a variety of
evidence to prove that the oil spill caused lost profits and loss
of earning capacity for each individual plaintiff. On the second
page of the presentment letters that plaintiffs submitted, each
plaintiff establishes individual claims for fishing days lost,
which range from two to twenty-four days. Rec. Doc. 188 at 3; see
also Rec. Doc. 51-1. Plaintiffs state that disruption generally
occurred for twenty-five days after the oil spill, but they do not
contend that every plaintiff suffered damages for the entire
twenty-five-day
period.
Rec.
Doc.
188
at
3.
Additionally,
plaintiffs cite deposition testimony from multiple fishermen who
encountered oil in the water after the July 23, 2008 oil spill,
and who incurred profit losses due to their discovery of oil near
boats, fishing grounds, and seafood traps. Id. at 14. Just because
some fishermen were able to harvest seafood at some point during
the twenty-five days after the oil spill, does not necessarily
render plaintiffs’ individual claims for profit losses meritless.
On
one
single
day,
some
fishermen
could
be
precluded
from
harvesting seafood due to the oil spill, where others in a slightly
different
area
were
not.
Thus,
the
specificity
as
to
which
plaintiffs claimed damages is sufficient under the OPA standard,
5
and whether plaintiffs actually incurred profit losses and loss of
earning capacity remains a question for the fact finder.
Defendants maintain, however, that plaintiffs’ lost profits
and loss of earning capacity could not have been due to the oil
spill because Louisiana’s territorial waters were never closed to
the commercial harvesting of shrimp, crab, oyster, and finfish.
Rec. 195 at 1-2. According to defendants, plaintiffs, at most,
only have valid claims for when the Mississippi River was closed
from July 23, 2008 to July 28, 2008. Id. at 5. But a genuine issue
of material fact remains as to whether the oil spill did indeed
affect plaintiffs’ ability to harvest seafood outside of when
portions of the Mississippi River were closed. Plaintiffs go beyond
the pleadings to demonstrate that claimants were unable to fish at
multiple instances during a twenty-five-day period after the oil
spill.
They
provide
presentment
letters
and
docket
receipts
containing a record of the location of fishing activity, the
hours/days on which claimants fished, the amount of catch sold,
the price paid by and identity of the dock owner for the catches,
and the species of sea life caught and sold to the dock owner.
Rec. Doc. 188 at 3. This evidence indicates a genuine dispute as
to whether plaintiffs lost earning capacity due to the oil spill.
Defendants rely on an expert report prepared by Dr. Ralph
Markarian to allege that “there is no evidence that any oil went
outside
the
main
channel
of
the
6
Mississippi
River”
and
that
“Louisiana state trustees determined that there were no impacts to
the areas outside the main channel of the Mississippi River—
including where the plaintiffs docked their vessels and harvested
seafood.”
Rec.
Doc.
178-11
at
8.
This
claim,
however,
is
contradicted by other areas of the report indicating that oil did
escape the main channel of the Mississippi River. See e.g., Rec.
Doc. 178-2 at section 3-2 (“One of the overflight maps indicated
oil outside of the river channel in the Delta [National Wildlife
Refuge].”); Rec. Doc. 188 at 10. Thus, this Court need not reach
a decision as to whether plaintiffs’ affidavits, Rec. Docs. 188-6
and 188-7, are admissible. See Rec. Doc. 195 at 4-5. By solely
relying on Dr. Markarian’s expert report, plaintiffs’ depositions,
plaintiffs’ dock receipts, plaintiffs’ presentment letters, and
other evidence presented, it is apparent that a genuine issue of
material fact remains as to whether oil left the main channel of
the Mississippi River and negatively affected commercial fishing
areas.
C. Claims Regarding Loss of Subsistence Use of Natural Resources
“Each responsible party for a vessel or a facility from which
oil is discharged . . . is liable for the removal costs and damages
specified in subsection (b) that result from such incident.” The
Oil Pollution Act of 1990, 33 U.S.C. § 2702(a). These damages
include
“[d]amages
for
loss
of
subsistence
use
of
natural
resources, which shall be recoverable by any claimant who so uses
7
natural resources which have been injured, destroyed, or lost,
without regard to the ownership or management of the resources.”
Id. § 2702(b)(2)(C).
Defendants
declare
that
plaintiffs’
claims
for
loss
of
subsistence use of natural resources should be dismissed because
each plaintiff claimed a loss of sixty dollars per day. Rec. Doc.
177-1 at 10-11. Defendants suggest that because all plaintiffs
used a sixty-dollar-per-day figure for their loss of subsistence
use, they did not properly specify damages under OPA. Rec. Doc.
195 at 7. Plaintiff did, however, individualize their claims. In
each presentment letter, plaintiffs include the number of fishing
days lost due to the July 23, 2008 oil spill. Rec. Doc. 51-1; Rec.
Doc. 188-1. Plaintiffs explain that they used sixty dollars per
day to calculate loss of subsistence use because that number
represented the “cost of retail seafood.” Rec. Doc. 191-1 at 2;
see also Rec. Doc. 178-5 at 5-6. Plaintiffs claim that each
individual plaintiff experienced loss of subsistence use equal to
the
number
of
days
that
each
plaintiff
was
precluded
from
harvesting seafood multiplied by the daily cost of retail seafood
during that time period. Rec. Doc. 191-1 at 1-2. A factual question
remains as to whether sixty dollars is an accurate assessment of
the retail cost of seafood. Again, albeit minimally, plaintiffs
have presented enough evidence to demonstrate a genuine issue of
material fact as to whether subsistence use damages resulted from
8
the July 23, 2008 oil spill. Thus, dismissing plaintiffs’ claims
for loss of subsistence use of natural resources is not a question
appropriate for summary disposition at this time.
D. Claims Regarding Personal Property
Plaintiffs
waive
their
claims
for
damage
to
personal
property. Rec. Doc. 191 at 1. Accordingly, this claim is dismissed.
New Orleans, Louisiana this 3rd day of November 2021
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?