In re: The Matter of Belle Chasse Marine Transportation, Inc.
Filing
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ORDER and REASONS granting 41 Motion for Summary Judgment. Claimant Mark Massarro's claims are DISMISSED.Signed by Judge Jane Triche Milazzo on 7/5/2013. (my, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
IN RE: THE MATTER OF BELLE CHASSE
MARINE TRANSPORTATION, INC.
NO. 12‐1281
SECTION "H"(2)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (R. Doc. 41) filed by Limitation Plaintiff
Belle Chasse Marine Transportation, Inc. For the following reasons, the Motion is GRANTED and
Claimant Mark Massarro's claims are DISMISSED.
BACKGROUND
Claimant alleges he sustained personal injury on December 13, 2010, while attempting to
disembark the M/V LANA K—a vessel owned and operated by Limitation Plaintiff. Claimant
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subsequently filed suit in State court against, inter alia, Limitation Plaintiff. In response, Limitation
Plaintiff filed a Complaint on May 17, 2012, for exoneration from or limitation of liability. (R. Doc.
1.) Claimant answered the Complaint and asserted a claim for negligence on August 27, 2012.1
Limitation Plaintiff moved for summary judgment on November 6, 2012. (R. Doc. 19.) The
Court heard oral argument on February 27, 2013, and denied the motion without prejudice,
allowing Claimant 30 days to conduct additional discovery. (R. Doc. 30.) Limitation Plaintiff re‐
urged the Motion on April 23, 2013. (R. Doc. 41.) In his opposition memorandum, Claimant
requested the Court defer its ruling under Rule 56(d). As grounds therefor, Claimant stated that
he was awaiting documentation from the United States Coast Guard ("Coast Guard"), which would
"directly address the issue of the exact vessel on which [Claimant] was working on or about
December 13, 2010." (See R. Doc. 46.) After conferring with counsel for both parties on May 15,
2013, the Court allowed Claimant an additional 34 days to supplement the record. (See R. Doc. 48.)
At oral argument on June 20, 2013, Claimant asked this Court to defer its ruling for a third time,
because the Coast Guard had not yet produced documents responsive to his previous request. The
Court once again acquiesced to the request for a continuance and allowed Claimant an additional
15 days to supplement the record. The Court warned, however, that no further continuances
would be granted.
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Although Massarro's claim was filed after the monition period, the Court found that he
demonstrated good cause and therefore allowed the claim. (See R. Doc. 16.)
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Claimant has failed to supplement the record within the proscribed time period. The Court
now issues its written reasons.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.
P. 56(c) (2012). A genuine issue of fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In determining whether the movant is entitled to summary judgment, the Court views facts
in the light most favorable to the non‐movant and draws all reasonable inferences in his favor.
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997). "If the moving party meets the
initial burden of showing that there is no genuine issue of material fact, the burden shifts to the
non‐moving party to produce evidence or designate specific facts showing the existence of a
genuine issue for trial." Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.
1995). Summary judgment is appropriate if the non‐movant "fails to make a showing sufficient to
establish the existence of an element essential to that party’s case." Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). "In response to a properly supported motion for summary judgment, the
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nonmovant must identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in
favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof
at trial." John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004)
(internal citations omitted). "We do not . . . in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts." Badon v. R J R Nabisco, Inc., 224 F.3d
382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an otherwise
properly supported motion." Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
LAW AND ANALYSIS
"The elements of a maritime negligence cause of action are essentially the same as
land‐based negligence under the common law." Withart v. Otto Candies, LLC, 431 F.3d 840, 842
(5th Cir. 2005) (citations omitted). "Under general tort principles, a tortfeasor is accountable only
to those to whom a duty is owed." In re Signal Int'l, LLC, 579 F.3d 478, 491 (5th Cir. 2009) (internal
quotation marks and citations omitted).
Limitation Plaintiff moves for summary judgment on the basis that it does not owe any duty
to Claimant. Specifically, Limitation Plaintiff argues the summary judgment record conclusively
demonstrates that Claimant was not injured aboard the M/V LANA K on December 13, 2010. For
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the following reasons, the Court agrees. Accordingly, the Motion is granted and Claimant Mark
Massarro's claims are dismissed.
I.
Whether Claimant was Injured Aboard the M/V LANA K on December 13, 2010
The summary judgment record strongly suggests that Claimant was not injured aboard the
M/V LANA K on December 13, 2010. Two members of the M/V LANA K's crew—each of whom
remained aboard the vessel until after the last passenger embarked—attested that they did not
observe any passenger slip or fall while disembarking the vessel on December 13, 2010. Moreover,
Claimant testified in his deposition that he sought medical treatment at the Acadian triage service
immediately after his alleged accident and that medical staff documented his visit. The triage
service, however, has no record of Claimant's alleged visit. Further, Claimant estimated that he
was injured between 11:00 a.m. and 11:15 a.m. The vessel logs for the M/V LANA K, however, state
that the vessel returned to port at 10:45 a.m. The aforementioned crew members each attested
that the M/V LANA K returned at this time. Finally, both the BP Incident Reporting Form and
documentation from Claimant's December 21, 2010, medical examination state that Claimant was
injured on December 14, 2010 (not December 13, 2010, as alleged).
Claimant's inability to accurately describe the M/V LANA K further muddies the waters.
Claimant's description of the boat on which he was injured differs markedly from the physical
characteristics of the M/V LANA K: (1) Claimant testified that the boat on which he was injured was
approximately 36 feet long and 12 feet wide; the M/V LANA KAY is significantly larger (50 feet long
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and 19 feet wide); (2) Claimant testified that his boat had a walk‐thru cabin in the center; the M/V
LANA KAY has no such cabin; (3) Claimant testified that his boat had outboard motors; the M/V
LANA K has no such outboard motors.
Claimant's testimony regarding his egress on December 13, 2010, also suggests he was
aboard a vessel other than the M/V LANA K. Claimant testified the vessel docked bow‐to. Claimant
further testified that he walked through the cabin and jumped from the bow to reach the dock
above. Three crew members familiar with the M/V LANA K, however, attested that the M/V LANA
K always docked stern‐to, because the bow would be much too high over the dock for passengers
to climb down. Moreover, Claimant testified that, on December 13, 2010, the deckhand had
already left the vessel before Claimant himself disembarked. The deckhand, however, attested
that he remained aboard the vessel 20‐30 minutes after the last passenger had disembarked.
Since Limitation Plaintiff has satisfied its initial burden of demonstrating the absence of a
genuine issue of material fact, the burden shifts to Claimant to "identify specific evidence in the
record and articulate the manner in which that evidence supports [his] claim." See John, 379 F.3d
at 301 (5th Cir. 2004) (internal citations omitted). Claimant falls woefully short of carrying this
burden.
For the most part, Claimant challenges the sufficiency of the evidence offered by Limitation
Plaintiff, rather than offering evidence of his own. For example, Claimant questions the veracity
of affidavits submitted by Limitation Plaintiff's employees, the authenticity of the M/V LANA K's
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vessel logs, and speculates that other evidence may exist in support of Claimant's allegations. Yet
Claimant identifies nothing in the record—other than his own self‐serving affidavit that "[t]o the
best of my memory, more likely than not, the LANA KAY was the vessel upon which my accident
occurred" (R. Doc. 23‐3 at ¶3)—to controvert Limitation Plaintiff's Motion.2 Claimant has been
afforded ample opportunity to supplement the record in support of his position. Claimant's
inability to establish a genuine issue of material fact under these circumstances further supports
the entry of summary judgment at this time.
II.
Whether Claimant Should be Allowed to Amend his Claim
Claimant sets forth two conflicting theories as to when his alleged accident occurred.
Claimant asserted both in his answer to Limitation Plaintiff's Complaint and in his deposition that
the accident occurred on December 13, 2010. In his opposition memorandum to the instant
Motion, however, Claimant asserts that the accident occurred "on or about December 14, 2010."
(R. Doc. 23.)
The Court construes this new allegation as a motion for leave to amend the pleadings. See
Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008) (citing with approval
cases in which the district court construed new allegations in opposition memorandum as motion
to amend the pleadings); Morin v. Moore, 309 F.3d 316, 323 (5th Cir. 2002) ("This Court has held,
2
It is beyond dispute that self‐serving affidavits, without more, cannot defeat a properly supported
motion for summary judgment. See DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005); United
States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001).
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that in the interest of justice a revised theory of the case set forth in the plaintiff's opposition
should be construed as a motion to amend the pleadings filed out of time") (citing Sherman v.
Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972)).
Amendment of pleadings is generally assessed under the liberal standard of Rule 15(a),
which provides that "[t]he court should freely give leave [to amend] when justice so requires." The
Fifth Circuit has held, however, that once a scheduling order's deadline to amend has expired, Rule
16(b) provides the controlling standard. See S&W Enters., LLC v. Southtrust Bank of Alamaba, NA,
315 F.3d 533, 536 (5th Cir. 2003). Rule 16(b)(4) provides that a scheduling order "shall not be
modified except upon a showing of good cause." Four factors are relevant to a determination of
good cause: (1) the explanation for the failure to timely move for leave to amend; (2) the
importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice." Marathon Fin. Ins., Inc., RRG v. Ford Motor
Co., 591 F.3d 458, 470 (5th Cir. 2009) (internal quotation marks and citations omitted). "The grant
or denial of an opportunity to amend is within the discretion of the District Court." Foman v. Davis,
371 U.S. 178, 182 (1962). Because the deadline for amending pleadings is well past (see R. Doc.
15), the Court analyzes the motion to amend under Rule 16.
At least two of the enumerated factors militate against granting to leave amend. First,
Claimant provides no justification for failing to amend his pleadings in accordance with the
deadlines in this Court's scheduling order. Second, and most importantly, amendment would be
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futile. Ever if the Court was to assume that Claimant's accident occurred on December 14, 2010,
Claimant cannot demonstrate that he was injured aboard the M/V LANA K. The Boat Captain for
the M/V LANA K attested that the vessel did not leave port on December 14, 2010, which the vessel
logs appear to confirm. Moreover, as explained in the previous Subsection, Claimant's description
of the boat on which he was injured differs materially from the physical characteristics of the M/V
LANA K. Given the foregoing, Claimant cannot establish the requisite good cause to permit an
untimely amendment of the pleadings.
CONCLUSION
Claimant has failed to demonstrate the existence of a genuine issue for trial as to whether
he was injured aboard the M/V LANA K on December 13, 2010. Therefore, the Motion is GRANTED.
New Orleans, Louisiana, on this 5th day of July, 2013.
______________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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