Tran et al v. Abdon Callais Offshore LLC et al

Filing 96

ORDER granting 80 Motion for Summary Judgment as to all claims against Charles Michael Callais and Corey Callais. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THUAN VO TRAN, ET AL.

CIVIL ACTION

VERSUS

NO: 12-0999

ABDON CALLAIS OFFSHORE, LLC,
ET AL.

SECTION: "A" (4)

ORDER & REASONS
Before the Court is a Motion for Summary Judgment as to the
claims against Charles Michael Callais and Corey Callais (Rec.
Doc. 80) filed by defendants Charles Michael Callais and Corey
Callais ("Member Defendants").

Plaintiffs oppose this motion.

The motion, set for submission on March 25, 2015, is before the
Court on the briefs without oral argument.
I. Background
Plaintiffs Thuan Vo Tran, individually and on behalf of Tran
& Peter LLC, Trinh Van Tran, Hue Nguyen, Phuc Vo, Lanh Tran, and
Ha Nguyen brought this action alleging injuries from a two-vessel
collision that occurred on March 1, 2012.
at ¶7).

(Rec. Doc. 2; Comp.,

Plaintiffs, on board the F/V Star Ocean, allege that

they were carefully proceeding through foggy conditions after
entering the Gulf of Mexico when the M/V St. Joseph the Worker,
"suddenly and without warning," struck the port side of the F/V
Star Ocean, causing the vessel to split and sink.

Id.

Plaintiffs claim that Captain Jack P. Sears, Jr. piloted
the M/V St. Joseph the Worker in a reckless manner and failed to

take a number of ordinary precautions.

They further claim that

Abdon Callais Offshore, LLC ("ACO," employer of Captain Sears)
and the Member Defendants (managing members of ACO) negligently
failed to train, supervise, screen, and evaluate their employees;
negligently failed to adopt proper policies for their employees;
and negligently entrusted the vessel to Captain Sears.

They also

allege unseaworthiness and bring the action in rem against the
vessel.

Plaintiffs seek damages for several injuries, including

lost wages, mental anguish, disability, physical pain, medical
expenses, property damages, and loss of enjoyment of life.
Plaintiffs filed their complaint on April 19, 2012.
jury trial is scheduled to commence on April 20, 2015.

The

The

pretrial conference was held on March 26, 2015.
II.

Standard of Review
Summary judgment is appropriate only if, "the pleadings,

depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any," when viewed in the light most
favorable to the nonmovant, "show that there is no genuine issue
as to any material fact."

TIG Ins. Co. v. Sedgwick James, 276

F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby,
Inc., 447 U.S. 242, 249-50 (1986)).

A dispute about a material

fact is "genuine" if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.
2

Id. (citing

Anderson, 477 U.S. at 255).

Once the moving party has initially

shown "that there is an absence of evidence to support the
non-moving party's cause," the nonmovant must come forward with
"specific facts" showing a genuine factual issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (citing Fed.
R. Civ. P 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986)).

Conclusory allegations and denials,

speculation, improbable inferences, unsubstantiated assertions,
and legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial.

Id. (citing

SEC v. Recile, 10 F.3d 1093, 1097 (1993)).
III.

Discussion
Defendants argue in the present motion that the only

allegations against the Member Defendants are ones for negligence
in actions taken in their role as managing members of the LLC (or
"inside the structure of the LLC").

Pointing to the Louisiana

statutory protection of members and managers of LLCs for
liabilities of an LLC, and caselaw from the Louisiana Supreme
Court interpreting the applicable statute, they contend that
there is no cognizable claim against the Member Defendants under
the current alleged facts.
Plaintiffs respond that the Member Defendants "had a
personal duty to [P]laintiffs to make certain that qualified . .
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. captains were at the helm . . . , [and,] [a]t the very least
material issues of fact remain as to whether Charles and Corey
Callais breached their personal responsibility in hiring,
training, and managing qualified personnel."

(Rec. Doc. 88-1;

Pls. Opp., at 13).
LA. REV. STAT. ANN. § 12:1320 reads in pertinent part as
follows:
§ 1320. Liability to third parties of
members and managers
A. The liability of members [and] managers .
. . of a limited liability company organized
and existing under this Chapter shall at all
times be determined solely and exclusively by
the provisions of this Chapter.
B. Except as otherwise specifically set
forth in this Chapter, no member, manager,
employee, or agent of a limited liability
company is liable in such capacity for a
debt, obligation, or liability of the limited
liability company.
. . .
D. Nothing in this Chapter shall be
construed as being in derogation of any
rights which any person may by law have
against a member, manager, employee, or agent
of a limited liability company because of any
fraud practiced upon him, because of any
breach of professional duty or other
negligent or wrongful act by such person . .
. .
§ 12:1320.
Plaintiffs do not allege that the Member Defendants have
committed any fraud or have breached a professional duty.

The

question then is if the claims of negligence and the alleged
facts concerning the Member Defendants trigger the exception
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under § 1320(D) – thus potentially exposing the Member Defendants
to liability for obligations of ACO.
The Louisiana Supreme Court has recently interpreted this
exception allowing for the imposition of personal liability.

In

Ogea v. Merritt, that court summarized, as follows, four factors
that should be taken into consideration when determining whether
the exception to limiting an individual's liability applies: 1.)
the tort factor, or "if a traditional tort has been committed
against any cognizable victim(s)"; 2.) the criminal conduct
factor, or "if the conduct at issue constitutes a crime"; 3.) the
contract factor, or if the "conduct at issue was required by, or
was in furtherance of, a contract between the claimant and the
LLC"; and 4.) the acting inside or outside the LLC factor, or "if
some duty owed by the individual defendant to the plaintiff
outside his capacity as a member [has] been breached."

Ogea v.

Merritt, 130 So.3d 888, 901-04 (La. 2013).
Here, Plaintiffs do not suggest any criminal conduct or
actions sounding in contract.

Thus, the Court focuses on the

first and fourth factors as a mixed inquiry.

Id. at 904 ("There

may be instances where this inquiry [regarding the fourth factor]
overlaps with the tort inquiry and / or contract inquiry.").
The allegations against Member Defendants include claims
that they negligently failed to train and supervise Captain Sears

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(and other employees), negligently allowed "an unqualified and /
or reckless captain" to remain on the waters," and "negligently
entrusted their vessel" to Captain Sears.

While there is no

allegation that these actions occurred "outside" of the Member
Defendants' roles in the LLC, the Court notes of the Louisiana
Supreme Court's holding that, due to the prominence of the tort
factor, § 1320(D) can encompass conduct "done in one's capacity
as a member . . . of a limited liability company [that] also
violate[s] some personal duty owed by the individual to the
injured party." Ogea, 130 So.3d at 904 (quoting Petch v. Humble,
939 So. 2d 499, 504 (La. App. 2 Cir. 2006) (emphasis omitted)).1
With that being said, the Court does not today express an
opinion on whether such claims in a theoretical sense could
trigger the exception to limited liability provided in § 1320(D).
There are no specific facts alleged in support of the conclusory
statements regarding the Member Defendants, nor have the
nonmovants responded with summary judgment evidence to the

1

Regions Bank v. Ark-La-Tex Water Gardens, LLC typifies the
usual scenario in which personal liability arises even when an
individual is also acting in his capacity as a member of an LLC.
997 So. 2d 734 (La. App. 2 Cir. 2008). In that case the member
of the LLC personally designed and performed work on the
ultimately defective water installation. Id. at 740. The
Louisiana Second Circuit Court of Appeals held that "pursuant to
Section 1320(D), [the member] was subject to personal liability
arising from his own negligence in performing the construction."
Id.
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Defendant Members' identification of such an absence in this
motion.2

As no specific alleged facts point to any personal

conduct of the Defendant Members related to these claims, any
liability on the Defendant Members' part would only be based on
their status as members or managers of ACO – a finding precluded
by § 1320.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment as to all
claims against Charles Michael Callais and Corey Callais (Rec.
Doc. 80) filed by defendants Charles Michael Callais and Corey
Callais is GRANTED.

March 30, 2015
_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

2

Plaintiffs also state in their opposition that "No facts
were submitted with defendants' Motion for Summary Judgment to
establish whether Charles or Corey Callais were responsible for
training or overseeing the activities of their captains." (Rec.
Doc. 88-1; Pls. Opp., at 13). However, Plaintiffs have the
"burden of persuasion" on this claim, and thus the Member
Defendants can satisfy their "burden of production" on the motion
for summary judgment by showing "that the nonmoving party's
evidence is insufficient to establish an essential element of the
nonmoving party's claim" – as they have done here. Celotex Corp.
v. Catrett, 477 U.S. 317, 331 (1986).
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