RC Offshore, LLC v. Rogers et al

Filing 248

ORDER & REASONS denying Mr. Rogers' 197 Motion for Summary Judgment. Signed by Judge Eldon E. Fallon on 2/6/2014. (cms, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RC OFFSHORE, LLC, ET AL.

CIVIL ACTION

VERSUS

NO. 13-0354

NORMAN ROGERS, ET AL.

SECTION "L" (3)

ORDER & REASONS
Before the Court is Defendant and Cross-Defendant Norman Rogers' motion for
summary judgment (Rec. Doc. 197) dismissing the claims of Plaintiff RC Offshore, LLC and RC
Logistics, LLC (collectively "RC") and the cross-claims of Cross-Plaintiff Stone Energy
Corporation ("Stone").
This action arises out of a time charter. On March 2, 2012, Stone contracted with RC to
provide marine vessels and services via a blanket time charter agreement. Within the confines of
that agreement, the parties entered a short-form time charter agreement on May 25, 2012, for the
M/V CHRIS R. Under the terms of these agreements, Stone was billed directly for all fuel
consumed by the vessel. The following January, RC informed Stone that it suspected its
employees had stolen fuel from the M/V CHRIS R and sold it to another vessel. Stone promptly
terminated its agreements with RC. It then conducted an audit to determine the quantity and
value of the stolen fuel, which it used as basis to withhold payment. RC then brought this action
to recover the balance owed to it under the agreements. RC also sought recovery from its former
employees, including Mr. Rogers, the subject of the present motion.
In its complaint, RC alleges the following:
Norman Rogers, intentionally and without authority converted the
assets of RC’s customer for personal use by selling the M/V
CHRIS R’s fuel to a commercial fishing vessel then pocketing the
proceeds of same.

(Rec. Doc. 1 at 3). Further, Stone alleges that "Norman Rogers [is] liable to Stone Energy for all
of the claims asserted against it by [RC]." (Rec. Doc. 26 at 17).
Mr. Rogers now moves for summary judgment on RC's and Stone's claims against him on
the basis that his deposition testimony, and that of Defendant Joe Perez, conclusively
demonstrates that he was not involved in the alleged conduct. RC and Stone respond that the
testimony given by Defendant Daniel O'Neal at his October 30, 2013, judgment debtor exam
contradicts this. Mr. Rogers replies that Mr. O'Neal's testimony is inadmissible hearsay and that,
even if it were admissible, it outweighs any testimony of Mr. Rogers and Mr. Perez.
As a general rule, summary judgment is appropriate if the moving party can show "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). Under Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of "informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the moving party has met its
Rule 56(c) burden, the nonmovant cannot survive a motion for summary judgment by resting on
the mere allegations of its pleadings. See Prejean v. Foster, 227 F.3d 504, 508 (5th Cir. 2000).
"The mere existence of a scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). Furthermore, "[t]he non-movant
cannot avoid summary judgment . . . by merely making 'conclusory allegations' or
'unsubstantiated assertions.'" Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.
2002) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

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Rule 56 further provides that "[a] party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record,
including depositions [and] affidavits or declarations, . . . ." FED. R. CIV. P. 56. As the United
States Court of Appeals for the Fifth Circuit has noted, a "statement [that is] sworn and taken
before a court reporter after the case ha[s] been filed, but was never noticed to the Defendant,
and hence no defense counsel was present for purposes of objection[,] is not any less reliable
than an affidavit submitted at the summary judgment stage." Dunaway v. Cowboys Nightlife,
Inc., 436 F. App'x 386, 395 n.9 (5th Cir. 2011). The testimony given by Mr. O'Neal at his
judgment debtor exam was sworn and taken before a court reporter, thus it may be considered in
resolving this motion. Mr. O'Neal's testimony clearly raises a genuine issue as to whether Mr.
Rogers was involved in the alleged theft of the fuel. Accordingly, summary judgment is
inappropriate. For these reasons, IT IS ORDERED that Mr. Rogers' motion for summary
judgment (Rec. Doc. 197) is DENIED.
New Orleans, Louisiana, this 6th day of February, 2014.

UNITED STATES DISTRICT JUDGE

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