Nguyen et al v. American Commercial Lines, Inc. et al
Filing
67
ORDER AND REASONS granting in part and denying in part 62 Motion for Reconsideration re 61 Order on Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 12/15/2014. (Reference: all cases)(ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHUC NGUYEN, ET AL.
CIVIL ACTION
NO. 11-1799
c/w 11-2705,
pertains to
all cases
VERSUS
AMERICAN COMMERCIAL LINES,
INC., ET AL.
SECTION "B"(4)
ORDER AND REASONS
Nature of Motion and Relief Sought:
Before the Court is Defendants’ Motion for Reconsideration or,
in the Alternative, Certification for an Interlocutory Appeal Under
28 U.S.C. 1292(b). (Rec. Doc. No. 62-1). Accordingly, and for the
reasons articulated below,
IT IS ORDERED that Defendants’ Motion is DENIED IN PART, as to
Defendants' Motion for Reconsideration, and GRANTED IN PART, as to
certification of an interlocutory appeal as to this Court's prior
Order and Reasons denying Defendants' Motion for Summary Judgment
(Rec. Doc. 61).
Cause of Action and Procedural History:
This
case
arises
out
of
the
collision
between
the
M/V
TINTOMARA and Barge DM-932 on July 23, 2008 on the Mississippi
River, which also gave rise to litigation in Gabarick v. Laurin
Maritime (America), Inc. et al., 623 F. Supp. 2d 741 (E.D. La.
2009). As a result of the collision, oil discharged into the
Mississippi
River
and
traveled
downstream
into
various
water
bodies, allegedly including estuaries within Plaquemines Parish,
Louisiana. (Rec. Doc. No. 1 at 4-5). On July 24, 2008, the United
States Coast Guard (the “Coast Guard”) designated Barge DM-932 as
the source of the discharge and named American Commercial Lines,
Inc. (“ACL”) as the responsible party under the Oil Pollution Act
of 1990 (“OPA”). Id. at 5. ACL then hired Worley Catastrophe
Response, LLC (“Worley”) as its third-party claims administrator.
Id.
Between approximately June 11 and July 23, 2009, Plaintiffs’
counsel, Michael A. Fenasci, submitted 224 “form claim letters” to
Worley on behalf of commercial fishermen and seafood wholesalers
allegedly affected by the oil spill. (Rec. Doc. No. 44-1 at 4-5).
Each form letter sought recovery for damage to property, loss of
profits, loss of earning capacity, and loss of subsistence. Each
letter also requested payment of amounts loosely ranging from
$11,000 to $30,000.1
On July 23, 2009, Worley requested additional information to
substantiate
the
claims
submitted,
including
copies
of
each
claimant’s federal income tax returns for 2007 and 2008, “daily
catch” or sales data for May to September 2008, and an explanation
of each claimant’s “lost days” calculation. (Rec. Doc. No. 44-1 at
5). Following that request, Mr. Fenasci and attorney Wayne Yuspeh
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Scans of each letter were provided to the Court as a DVD manual attachment,
which will hereinafter be cited as “Rec. Doc. 51-1.”
2
submitted approximately forty-eight additional claims but did not
provide all of the related documents and information requested by
Worley. (Rec. Doc. No. 44-1 at 6).
On
July
25,
2011,
approximately
two
years
after
first
contacting Worley, Plaintiffs initiated this action, asserting
claims under the OPA and the Louisiana Unfair Trade Practices Act.
(Rec. Doc. No. 1). Roughly six months later, on March 15, 2012,
Defendant filed a motion to dismiss on the grounds that the
Plaintiffs failed to comply with the OPA’s presentment requirement,
contained in 28 U.S.C. § 2713(c). (Rec. Doc. No. 13). The Court
initially granted that motion to dismiss without prejudice and
entered judgment accordingly. However, on
Plaintiff’s motion to
reconsider, the Court vacated judgment and denied Defendant’s
motion to dismiss “because the Court’s prior order [had] not
assume[d] the truth of Plaintiffs’ allegations and relied on
‘evidence’ in dismissing the claims at the pleading stage.” (Rec.
Doc. No. 44 at 1). At the Court’s direction, Defendant filed a
motion for summary judgment on October 29, 2013 . (Rec. Doc. No.
44). Hearing thereon was continued several times to allow the
parties to collect and review the voluminous claims materials
involved. (Rec. Docs. 47 & 50). Finally, however, the Court denied
the summary judgment motion (See Rec. Doc. 61), which prompted
Defendants' filing of the instant motion.
Contentions of Defendants:
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Defendants urge this Court to either reconsider its prior
Order denying ACL’s Motion for Summary Judgment (Rec. Doc. No. 44).
or to grant Certification for an Immediate Interlocutory Appeal of
this Court’s denial pursuant to 28 U.S.C. 1292(b). (Rec. Doc. No.
62-1).
Contentions of Plaintiffs:
Plaintiffs contend that Defendants have not changed or added
anything new in discovery and because of this, the Court should
deny their Motion. Plaintiffs maintain Defendants have merely
restated their previous arguments and that there is no basis for
appeal. (Rec. Doc. No. 63).
Law and Analysis:
A. Motion for Reconsideration
The Federal Rules of Civil Procedure do not provide for a
"Motion for Reconsideration" but such motions may properly be
considered either in the form of a Rule 59(e) motion to alter or
amend a judgment or a Rule 60(b) motion for relief from a judgment.
See Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir.
2000); Hamiliton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367,
383 (5th Cir. 1998).
In order to be timely, a Rule 59(e) motion
must be filed within twenty-eight days of the judgment or order of
which the party complains.
Fed. R. Civ. P. 59(e).
Otherwise, a
motion for reconsideration will be considered as a Rule 60(b)
motion.
Freeman v. County of Bexar, 142 F.3d 848, n.7 (5th Cir.
4
1998). It is undisputed that Defendants filed the instant motion
for reconsideration within twenty-eight days from entry of the
Order and Reasons denying the original Motion for Summary Judgment.
(Rec. Doc. No. 62).
Accordingly, Defendants’ motion is considered
a timely Rule 59(e) motion to alter or amend a judgment.
Nevertheless,
IT
IS
ORDERED
that
the
Motion
for
Reconsideration is DENIED for the reasons stated in the Court's
prior Order and Reasons. (Rec. Doc. 61). Nothing in the instant
pleadings suggests adequate grounds for re-visiting the Court's
ruling on these issues.
B. Certification of an Interlocutory Appeal under 28 U.S.C.
1292(b)
28 U.S.C. § 1292(b) States:
When a district judge, in making in a civil
action an order not otherwise appealable under
this section, shall be of the opinion that
such order involves a controlling question of
law as to which there is substantial ground
for difference of opinion and that an
immediate appeal from the order may materially
advance the ultimate termination of the
litigation, he shall so state in writing in
such order. The Court of Appeals which would
have jurisdiction of an appeal of such action
may thereupon, in its discretion, permit an
appeal to be taken from such order, if
application is made to it within ten days
after the entry of the order: Provided,
however, That application for an appeal
hereunder shall not stay proceedings in the
district court unless the district judge or
the Court of Appeals or a judge thereof shall
so order.
There are two pure questions of law at issue here. The first
5
is whether Plaintiffs met proper presentment requirements when they
failed to personally sign the claim forms in compliance with C.F.R.
33 § 136.105(c) and did not provide certain specific requested
items of evidence in support of their claims. (Rec. Doc. No. 62-1).
The second is “whether the requirement of a 90-day waiting period
after making proper presentment before starting litigation against
the responsible party, 28 U.S.C. § 2713(c), coupled with the threeyear
limitation
period
for
commencing
an
action
against
a
responsible party, 28 U.S.C. § 2717(f)(1)(A), means that the
plaintiffs had to make a proper presentment at least 90 days before
the expiration of the limitation period.” (Rec. Doc. No. 62-1).
These are pure questions of law of first impression in the
Fifth Circuit. Ultimately, the decision of the Fifth Circuit on
these questions could potentially materially alter the outcome of
the present litigation. If the Fifth Circuit were to determine that
proper presentment requirements for purposes of the OPA and related
law were not met under the facts of the instant case, it would lead
to the disposition of this case. An interlocutory appeal would be
appropriate in the present case. At least two courts in this
district
have
reached
different
conclusions
as
to
proper
application of the law implicated by the above questions. (Rec.
Doc. No. 62-1; citing Turner v. Murphy Oil USA, Inc. No. 05-4206,
2007 WL 4208986 (E.D. La. Nov. 21, 2007); Gabarick v. Laurin
Maritime (America) Inc., 2009 WL 102549 (E.D. La. Jan. 12, 2009)).
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Accordingly,
IT
IS
ORDERED
that
the
Motion
for
Certification
for
an
Interlocutory Appeal Under 28 U.S.C. 1292(b) is GRANTED.
New Orleans, Louisiana, this 15th day of December, 2014.
____________________________
UNITED STATES DISTRICT JUDGE
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