Barrilleaux et al v. Eymard Brothers Towing Company, Inc. et al
Filing
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ORDER AND REASONS granting 22 Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 01/28/2013. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN BARRILLEAUX AND
ROGER DUFRENE
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VERSUS
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EYMARD BROTHERS TOWING
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COMPANY AND
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TAKO TOWING, INC.
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CIVIL ACTION NO. 12-571
SECTION “C”
HON. HELEN BERRIGAN
MAG. KAREN WELLS ROBY
ORDER AND REASONS1
Before the Court is a Motion for Summary Judgment by defendant Tako Towing, Inc.
(Tako). Rec. Doc. 22. Tako alleges that it had no interest in the alleged offending vessel, the
M/V TAKO SPIRIT (the Vessel), and had no relationship with the plaintiffs and/or their employer,
Eymard Brothers Towing Company (Eymard). This Motion for Summary Judgment is unopposed.
Having considered the memoranda of counsel, the record, and the applicable law, the Court
GRANTS the Motion for Summary Judgment for the following reasons.
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Katharine Williams, a third year law student at Tulane University, aided in preparing
this order.
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LAW AND ANALYSIS
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be granted 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). The parties seeking
summary judgment bear the initial burden of informing the court of the basis for their motion
and identifying those portions of the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits, if any, which they believe demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th
Cir.2009); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.2006); Lincoln Gen. Ins. Co. v. Reyna,
401 F.3d 347, 349 (5th Cir.2005).
In determining whether the evidentiary threshold has been met, the court “must view the
evidence presented through the prism of substantive evidentiary burden” applicable to the
particular cause of action before it. Anderson vs. Liberty Lobby Inc., 477 U.S. 242, 252, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing
out that the evidence in the record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving
party, who must, by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325; Isquith ex rel.
Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir.1988), cert. denied, 488 U.S. 926
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(1988). Although a nonmovant's failure to respond to a motion for summary judgment does not
permit the entry of a “default” summary judgment, the court may accept the movant's evidence
as undisputed. Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir.1988). If the non-movant
sets forth specific facts in support of allegations essential to his claim, a genuine issue is
presented. Brothers vs. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994). “If the adverse party does
not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
Fed.R.Civ.P. 56(e).
The nonmovant is “‘under an obligation to respond . . . in a timely fashion and to
place before the court all materials it wishes to have considered when the court rules on the
motion.’” Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1293 n. 11 (5th Cir.) (quoting Cowgill v.
Raymark Indus., Inc., 780 F.2d 324, 329 (3d Cir.1985), cert. denied, 513 U.S. 926 (1994)). The
nonmoving party in this case has filed no response and has proffered no evidence in opposition
to Tako’s motion. It has not set forth any specific facts in support of its allegation that Tako was
the owner, operator and/or charterer of the Vessel at issue here.
In this case, the plaintiffs would bear the burden of establishing Tako’s ownership of the
Vessel to support their claim for damages. Defendant Tako has provided evidence that it sold the
Vessel before the alleged allision occurred. The plaintiffs have not disputed any of the evidence
provided in Tako’s Motion for Summary Judgment, and this Court grants summary judgment
because the movants have made a prima facie showing that they are entitled to such relief. See
Fed. R. Civ. P. 56(e); see also Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir.1988).
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CONCLUSION
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment is GRANTED. Rec. Doc. 22.
New Orleans, Louisiana, this 28th day of January, 2013.
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HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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