Moreau et al v. Shell Oil Company

Filing 104

ORDER AND REASONS denying 86 Motion for Summary Judgment, as set forth in document. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TESKA MOREAU ET AL.

CIVIL ACTION

VERSUS

NO. 12-2027

SHELL OIL COMPANY

SECTION "H"

ORDER AND REASONS
Before the Court is Defendant Petrofac Training, Inc.'s Motion for
Summary Judgment (R. Doc. 86). For the following reasons, the Motion is
DENIED.
BACKGROUND
Plaintiff Teska Moreau alleges that he sustained a back injury during a
Helicopter Underwater Escape Training (HUET) course on June 28, 2011.1 At
the time of the accident, Plaintiff was a seaman employed by Defendant Galliano
Marine Service, LLC ("Galliano"). The training exercise was conducted by
1

Moreau's wife and children also bring claims for loss of consortium in this action.

1

Defendant Petrofac Training Inc. ("Petrofac") at a facility owned by Defendants
Shell Exploration and Production Company and Shell Offshore, Inc. (collectively
"Shell"). On June 28, 2012, Plaintiff brought suit against Shell. Plaintiff then
amended his Complaint on January 8, 2014 to add Petrofac and Galliano as
defendants. On October 23, 2014, Shell moved for summary judgment, which
this Court granted, stating that Shell was not liable for Plaintiff's injuries.
Petrofac now seeks summary judgment on the theory that Plaintiff's
claims against it have prescribed.
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."2 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."3
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.4 "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
2

Fed. R. Civ. P. 56(c) (2012).

3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

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existence of a genuine issue for trial."5 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."6 "In response to a properly supported
motion for summary judgment, the non-movant 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 non-movant on all issues as to which the non-movant would bear the
burden of proof at trial."7 "We do not . . . in the absence of any proof, assume
that the nonmoving party could or would prove the necessary facts."8
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion."9
LAW AND ANALYSIS
Petrofac contends that Plaintiff's claims against it have prescribed
pursuant to Louisiana Civil Code article 3492, which states that "[d]elictual
actions are subject to a liberative prescription of one year. This prescription
commences to run from the day injury or damage is sustained." Accordingly,
prescription began to run from the time of Plaintiff's injury on June 28, 2011 and
5

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

6

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

7

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
8

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)).
9

Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

3

the last day to file a claim based on those injuries was June 28, 2012—the day
that Plaintiff brought suit against Shell. Petrofac was not added to this suit
until January 8, 2014.10 Accordingly, Plaintiff's claim against Petrofac appears
to have prescribed on its face. This is not, however, the end of the inquiry. "If
the defendant proves that one year has passed between the tortious acts and the
filing of the lawsuit, then the burden shifts to the plaintiff to prove an exception
to prescription."11
Plaintiff argues that pursuant to Federal Rule of Civil Procedure 15(c)(1),
his Amended Complaint relates back to the date of his original filing.12 Rule
15(c)(1) states that:
An amendment to a pleading relates back to the date of the original
pleading when: . . .
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be set
out--in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and
if, within the period provided by Rule 4(m) for serving the summons
and complaint, the party to be brought in by amendment:
10

Petrofac correctly states that because Shell was found to share no liability for
Plaintiff's injuries, the timely filing against it does not interrupt prescription against Petrofac
as a joint tortfeasor. Renfroe v. State ex rel. Dep't of Transp. & Dev., 809 So. 2d 947, 950 (La.
2002) ("[A] suit timely filed against one defendant does not interrupt prescription as against
other defendants not timely sued, where the timely sued defendant is ultimately found not
liable to plaintiffs, since no joint or solidary obligation would exist.").
11

Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000).

12

"[A]mendment to pleadings is a procedural matter to be governed by federal law."
Welch v. Louisiana Power & Light Co., 466 F.2d 1344, 1345 (5th Cir. 1972).

4

(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper
party's identity.
"Plaintiffs have the burden to demonstrate that an amended complaint relates
back under Rule 15(c)."13 In Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 545
(2010), the United States Supreme Court stated that Rule 15(c) "imposes three
requirements before an amended complaint against a newly named defendant
can relate back to the original complaint:" (1) "the claim against the newly
named defendant must have arisen 'out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original pleading;'" (2) the
newly named defendant must have "received such notice of the action that it will
not be prejudiced in defending on the merits" within the period provided by Rule
4(m), which is 120 days; (3) "the plaintiff must show that, within the Rule 4(m)
period, the newly named defendant "'knew or should have known that the action
would have been brought against it, but for a mistake concerning the proper
party's identity.'"14
At the outset, Petrofac contends that Rule 15(c) is inapplicable here. It
argues that Rule 15(c) does not apply to "amended pleadings which name new,
additional parties where the plaintiff continues to pursue a remedy against the
originally named defendant." Petrofac argues that by its clear language Rule
15(c) applies to situations in which an amendment "changes the party or the
13

Al-Dahir v. F.B.I., 454 F. App'x 238, 242 (5th Cir. 2011).

14

Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 545 (2010).

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naming of the party" and does not apply to amendments that add additional
parties.
Indeed, Plaintiff's Amended Complaint added Petrofac as a defendant
while continuing to pursue claims against Shell. The Amended Complaint
alleges that the helicopter simulator operator was employed by and/or acting as
an agent of Petrofac and Shell and that Plaintiff's injuries were "caused by [the]
negligence and fault of the employees and/or agents of the defendants" Petrofac
and Shell.

Plaintiff also vehemently opposed Shell's motion for summary

judgment on the theory that Shell was liable for the negligent acts of Petrofac
and/or its instructors because both were agents of Shell. Accordingly, Petrofac
argues that this amendment does not amount to a substitution as required by
Rule 15(c).
There is some unrest amongst courts regarding this issue. "Many courts
have liberally construed [Rule 15(c)] to find that amendments simply adding or
dropping parties, as well as amendments that actually substitute defendants,
fall within the ambit of the rule, although some courts have adopted a narrower
construction."15 The parties have not cited, nor could this Court find, a ruling
from the Fifth Circuit on this issue. This Court need not, however, resolve this
dispute for purposes of this motion. To the extent that Rule 15(c) requires a

15

6A ALAN WRIGHT & ARTHUR MILLER, FED. PRAC. & PROC. CIV. § 1498.2 (3d ed.).
"[C]ourts are split over whether Rule 15(c)(1)(C)'s “chang[ing] the party” language should be
read so strictly." Telesaurus VPC, LLC v. Power, No. CV 07-01311, 2011 WL 5024239, at *2 (D.
Ariz. Oct. 21, 2011).

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"change" in the identity of the parties, the Court finds that Plaintiff's Amended
Complaint satisfies this requirement. In adding Petrofac to this suit, Plaintiff
substituted Petrofac in place of Shell on the claims that it had asserted in its
original complaint. Where he had once alleged that Shell, as employer, was
liable for the negligence of the helicopter simulator instructor, it now alleges
that Petrofac, as employer, is liable for his negligence. While it retained Shell
as a defendant, it did so under a different theory of liability. This was evidenced
by Plaintiff's opposition to Shell's Motion for Summary Judgment, in which it did
not argue that Shell employed the helicopter simulator instructor, but rather,
argued that Shell was liable under theories of agency. Specifically, Plaintiff
alleged that Shell was vicariously liable for the negligence of Petrofac and its
employees because Petrofac was an agent of Shell.
The Fourth Circuit's opinion in Goodman v. Praxair, Inc., 494 F.3d 458
(4th Cir. 2007), supports this interpretation. In that case, the Plaintiff originally
brought a breach of contract claim against Praxair, Inc.16 When he realized that
the proper defendant was Praxair Services, Inc., he amended his Complaint to
substitute Praxair Services, Inc. on the breach of contract claim.17 In doing so,
however, he retained Praxair, Inc. as a defendant and asserted for the first time
that Praxair, Inc. should be liable under an alter ego theory.18 The Fourth
Circuit held that:
[I]t still appears that the amended complaint substituted the party
16

Goodman v. Praxair, Inc., 494 F.3d 458, 463 (4th Cir. 2007).

17

Id.

18

Id.

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against whom the breach of contract claim was asserted. The
contract claim was originally asserted against Praxair, Inc., but in
the amended complaint it is asserted against Praxair Services, Inc.
While Praxair, Inc., did remain a defendant in the amended
complaint, it was named a defendant under a new theory of liability.
This fact, however, is irrelevant to the relation-back inquiry as to
the amended breach of contract claim now asserted against Praxair
Services, Inc.
Moreover, we can discern no policy that would be served by
the Praxair defendants' restrictive reading of “changes,” which
would force the amending party to drop a defendant for each
defendant he adds. Praxair, Inc., was placed on notice within the
limitations period of the claims relating to the transactions alleged
in the original complaint, and no unfairness to it resulted from
leaving it in as a defendant in the amended complaint. Any
unfairness caused by the amendment could only be claimed by
Praxair Services, Inc., the new party. But the protections for Praxair
Services are addressed by considering the requirements of Rule
15(c)(3)(A) and (B), not from reading the term “changes” narrowly.
Because no limitations policy is at stake in the interpretation of
“changes,” the liberal amendment policy of the federal rules becomes
paramount. See 6A Charles Alan Wright, et al. § 1498 (“If both the
basic transaction test and the notice requirement of Rule 15(c) are
satisfied, there is no justification for a restrictive interpretation of
the word ‘changing’ that would require a plaintiff to choose among
defendants”). In the present circumstances, we conclude that the
amended complaint “change [d] the party or the naming of the party
against whom a claim is asserted,” as required by Rule 15(c)(3).19
This Court finds this analysis persuasive and finds that the relation back
analysis of Rule 15(c) is applicable here. Accordingly, this Court will now
address whether Plaintiff's amendment satisfies the three requirements
19

Id. at 468–69.

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necessary for relation back.
First, Plaintiff must show that the allegations of the amended complaint
arose out of the transaction or occurrence set out in the original pleading.
Plaintiff contends that the Amended Complaint asserts a claim against Petrofac
that arises out of the incident described in the original complaint. This Court
agrees. The allegations of both petitions arise out of the HUET training in
which Plaintiff alleges he was injured. Accordingly, this requirement of the
relation back analysis is met.
Second, Plaintiff must show that the newly named defendant received
notice of the action within 120 days of filing. Plaintiff contends that Petrofac
received notice of this suit on the same day that Shell was served with the
Complaint. Plaintiff presents a declaration from a manager at Shell in which he
states that, upon receiving the Complaint, he met with David Haas McMillan of
Petrofac, informed him of the suit, and inquired as to Petrofac's knowledge of the
incident.20

In his deposition, Mr. McMillan confirmed this conversation.21

Plaintiff alleges that Mr. McMillan is "the highest ranking Petrofac employee
involved with the training provided by Petrofac at the Shell Robert Facility."
Petrofac contests, arguing that the conversation was inadequate to serve
as notice for Rule 15(c) purposes because Petrofac was not apprised of any
specific claims against it. The Fifth Circuit, however, has stated that "[n]otice
may be formal or informal" and that it is "notice and not service that Rule 15(c)

20

R. Doc. 93-3.

21

R. Doc. 93-5.

9

requires."22 Accordingly, this Court holds that informing a high ranking officer
of both the lawsuit and the incident from which it arose within the required time
period is sufficient notice for purposes of Rule 15(c).
Finally, Plaintiff must show that the newly named defendant "'knew or
should have known that the action would have been brought against it, but for
a mistake concerning the proper party's identity.'" Plaintiff contends that he
erroneously believed that Shell operated the HUET training at its facility and
employed the operators of the helicopter simulator. Indeed, Plaintiff's original
compliant supports this contention. In it, Plaintiff alleges that the operator of
the helicopter simulator was employed by Shell and explicitly states that "the
accident described hereinabove was caused by the negligence of the employees
of the defendant, Shell Oil Company."23 In its amended complaint, Plaintiff
alleged that the helicopter operator was employed by and/or acting as an agent
of Petrofac and Shell and that his injuries were "caused by [the] negligence and
fault of the employees and/or agents of the defendants" Petrofac and Shell.
The Supreme Court has stated that this inquiry turns on "what the
prospective defendant reasonably should have understood about the plaintiff's
intent in filing the original complaint against the first defendant."24 This Court
holds that when Petrofac learned that Shell had been sued as the employer of
the helicopter simulator operator, it reasonably should have assumed that
Plaintiff intended to sue it instead. Petrofac reasonably would have known that
22

Montgomery v. U.S. Postal Serv., 867 F.2d 900, 903 (5th Cir. 1989).

23

R. Doc. 1-1, p. 2.

24

Krupski, 560 U.S. at 554.

10

it, not Shell, was the employer of the operator alleged to have been negligent in
causing Plaintiff's injuries and that Plaintiff had made a mistake in alleging that
Shell was the employer. In fact, Petrofac admits that Plaintiff was notified "a
number of times" about the involvement of Petrofac in this matter, revealing
that everyone involved was aware that a mistake had been made. Petrofac also
admitted to researching the incident after it received notice of this suit.
Accordingly, this Court holds that Plaintiff has satisfied the requirements of the
relation back analysis, and, therefore, Plaintiff's amended complaint relates back
to the filing of his original complaint. His claims against Petrofac have not
prescribed.
CONCLUSION
For the foregoing reasons, this Motion is DENIED.

New Orleans, Louisiana, this 6th day of October, 2015.
__

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

11