Tajonera et al v. Black Elk Energy Offshore Operations, L.L.C.
Filing
497
ORDER denying 394 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 10/10/2014. (Reference: ALL CASES)(cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDNA TAJONERA, et al.
CIVIL ACTION
VERSUS
NO. 13-0366
c/w 13-0550, 13-5137, 13-2496,
13-5508, 13-6022, 13-6099,
13-6413, and 14-374
BLACK ELK ENERGY OFFSHORE OPERATIONS,
L.L.C., et al.
SECTION: “G”(5)
ORDER
Before the Court is Defendant Grand Isle Shipyard, Inc’s (“Grand Isle”) Motion for
Summary Judgment, wherein Grand Isle contends that Avelino Tajonera (“Tajonera”) was a
borrowed servant of Grand Isle at the time of his injury, such that Plaintiffs are barred from bringing
tort claims against Grand Isle.1 Having considered the motion, the responses, the replies, the
statements made at oral argument, the record, and the applicable law, the Court will deny the motion.
I. Background
A.
Factual Background
This litigation arises out of an explosion that occurred on November 16, 2012 on the Black
Elk Energy West Delta 32 Block Platform (“WD 32”), located in the Gulf of Mexico approximately
17 miles southeast of Grand Isle, Louisiana. According to the Complaint, Tajonera, a welder, was
injured in the explosion and later died from his injuries.2 Tajonera was hired by D&R Resources,
1
Rec. Doc. 394.
2
Rec. Doc. 1. at p. 1–2.
1
LLC (“D&R”) in 2008.3 D&R provides workers for onshore and offshore work.4 D&R and Grand
Isle entered into a Master Service Agreement (“MSA”) on or about May 1, 2012, providing that
D&R employees, including Tajonera, would perform work for Grand Isle at times.5 Grand Isle was
a contractor of Black Elk Energy Offshore Operations, LLC (“BEEOO”), the owner of WD 32.6
B.
Procedural Background
Grand Isle filed the pending motion on August 19, 2014.7 Plaintiffs filed a memorandum in
opposition on September 9, 2014.8 Also on September 9, 2014, Defendants BEEOO and Black Elk
Energy, LLC (collectively, “Black Elk”) filed a memorandum adopting by reference the arguments
and evidence contained in Plaintiffs’ opposition.9 The Court heard oral argument regarding this
motion on September 17, 2014 and granted Grand Isle leave to file additional evidence in support
of its motion.10 Plaintiffs filed a sur-reply memorandum in opposition on September 17, 2014.11 With
leave of the Court, Grand Isle filed a supplemental memorandum in support of its motion on
September 18, 2014.12 Grand Isle filed a second supplemental memorandum in support on
3
Rec. Doc. 394-4 at p. 1.
4
Id.
5
Id. at p. 2.
6
Id.
7
Rec. Doc. 394.
8
Rec. Doc. 425.
9
Rec. Doc. 432.
10
Rec. Doc. 466.
11
Rec. Doc. 470.
12
Rec. Doc. 473.
2
September 19, 2014,13 and Plaintiffs submitted a second sur-reply on September 22, 2014.14 Grand
Isle submitted a third supplemental memorandum on October 2, 2014.15 Plaintiffs filed a third surreply memorandum on October 7, 2014.16
II. Parties’ Arguments
A.
Grand Isle’s Arguments in Support
Grand Isle contends that at all material times, Tajonera was Grand Isle’s borrowed employee
under the nine factor test set forth by the Fifth Circuit in Ruiz v. Shell Oil Co., and therefore, Grand
Isle is immune from tort liability under the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”).17 Grand Isle first avers that Tajonera took orders from Grand Isle supervisors
including Curtis Dantin.18 Grand Isle concedes that the MSA between Grand Isle and D&R states:
It is expressly understood that Contractor is an independent Contractor and that
neither Contractor nor Contractor’s principales [sic], partners, employees, or
subcontractors, or servants, agents, or employees are servants, agents, or employees
of Grand Isle. Grand Isle shall designate the services it desires to be performed and
the ultimate results to be obtained, but shall leave to Contractor the methods and
details of performance, Grand Isle being interested only in the results obtained, and
having no control over the manner and method of performance.19
Grand Isle avers, however, that D&R hands were “controlled by GIS supervisors who gave
13
Rec. Doc. 476.
14
Rec. Doc. 480.
15
Rec. Doc. 488.
16
Rec. Doc. 490.
17
Ruiz v. Shell Oil Co., 413 F.2d 310, 312 (5th Cir. 1969).
18
Rec. Doc. 394-2 at p. 7 (citing Rec. Doc. 394-10 at pp. 88-89).
19
Id. (citing Rec. Doc. 395-5 at p. 1).
3
instructions and ran safety meetings” on a daily basis.20
Grand Isle next contends “[Grand Isle] had a Business Alliance Agreement with Black Elk
Energy Offshore Operations, LLC that governed the work being performed at the time of the
incident.”21 By contrast, Grand Isle argues, D&R did not have any contractual relationships with
Black Elk that “contributed” to D&R employees’ work at WD 32.22 Grand Isle further argues that
although the MSA provides that D&R’s employees are independent contractors, the Fifth Circuit
has held that such contract provisions do not automatically negate borrowed employee statutes.23
Grand Isle contends that the course of conduct between Tajonera and Grand Isle – namely, that
Tajonera allegedly received his daily duty assignments from Grand Isle – altered the Master Service
Agreement as “D&R clearly understood its employees would work as directed by [Grand Isle].”24
Next, Grand Isle argues that “every indication” suggests that Tajonera acquiesced to working
with Grand Isle from November 2008 through November 2012 because he continued to return to
Grand Isle after every vacation.25 Grand Isle additionally contends that because D&R allegedly
maintains minimal contact with its employees – limited apparently to coordinating who would go
out on a job – D&R “terminates” its relationship with the employee once the borrowing occurs.26
Grand Isle additionally avers that Tajonera received his tools and protective equipment from
20
Id.
21
Id. (citing Rec. Doc. 394-8).
22
Id. at pp. 7–8.
23
Id. at p. 8 (citing Brown, 984 at 677-78; Melancon, 834 F.2d at 1245).
24
Id.
25
Id. at p. 9.
26
Id.
4
Grand Isle.27 Grand Isle also argues that length of employment with the borrowing employer is
“considerable” when the employee has worked for the borrowing employer for two or more years
prior to the alleged incident.28 Tajonera worked for Grand Isle for a total of four years, according
to Grand Isle, which favors a finding of borrowed employee status.29 Grand Isle contends that it had
the right to terminate its relationship with its borrowed employees. Specifically, Grand Isle avers
that supervisor Curtis Dantin had the authority to remove any D&R hand from a Grand Isle job.30
Finally, Grand Isle avers that “[r]egardless of the mechanism used to disburse funds, the ultimate
question is which entity furnished the funds to pay the employee.”31 In this case, Grand Isle argues,
“D&R employees were guaranteed twelve hours per day, overtime was authorized by the [Grand
Isle] supervisor.”32 D&R then billed Grand Isle based on time ticket, and Grand Isle paid D&R for
the employees’ time.33 According to Grand Isle, there is no evidence that D&R played any part in
setting Tajonera’s schedule or controlled the number of hours that he worked.34
B.
Plaintiffs’ Memorandum in Opposition
Plaintiffs contend that six Ruiz factors – control, meeting of the minds, employee’s
acquiescence to the work situation, employer’s termination of relationship with the employee, right
27
Id. at p. 10 (citing Rec. Doc. 394-6 at pp. 192-3; 218-19).
28
Id. (citing Alleman v. OMI Energy Services Corp., 512 F.Supp.2d 445, 457-58 (E.D. La. 2007)).
29
Id.
30
Id. at p. 11 (citing Rec. Doc. 394-7 at p. 294).
31
Id. (citing Melancon, 834 F.2d at 1246).
32
Id.
33
Id.
34
Id.
5
to discharge the employee, and obligation to pay the employee – favor a finding that Tajonera was
not a borrowed employee of Grand Isle.35 Plaintiffs concede that the length of employment factor
is neutral, and that the remaining two factors – who provided tools and whose work was being
performed – favor borrowed servant status.36
With respect to the factor of “control,” Plaintiffs argue that D&R, not Grand Isle, controlled
Tajonera. Plaintiffs first dispute Grand Isle’s argument that the parties’ actions in carrying out the
MSA impliedly modified, altered, or waived the express contractual provisions. Rather, according
to Plaintiffs, the MSA provisions concerning control are integral to the contract and have been in
place since 2006.37 Plaintiffs point to an affidavit by Grand Isle Vice President Mark Pregeant to the
U.S. Department of State in 2006, in which Pregeant allegedly stated that pursuant to the MSA, “In
no way will Grand Isle Shipyards, Inc. act as the employer of or exercise any control over D&R
Resources’ employees. They will remain employees of D&R Resources, as specified in the contract.
While performing their day-to-day work under the contract, they will be reporting to D&R
Resources’ supervisors, not Grand Isle Shipyard, Inc.’s employees.”38
Plaintiffs next argue that D&R relied on its own Construction Supervisors to manage and
control D&R employees. According to Plaintiffs, Randolf Malagapo testified as the D&R corporate
representative that if a D&R Construction Supervisor was not present offshore, a D&R crew could
be overseen by a D&R foreman, who performed the same tasks as a Construction Supervisor.39 On
35
Rec. Doc. 425 at p. 5.
36
Id.
37
Id. at p. 7.
38
Id. at pp. 7–8 (citing Rec. Doc. 425-17).
39
Id. at p. 8 (citing Rec. Doc. 425-5 at 171:6–18).
6
the day at issue, Plaintiffs contend, Antonio Tamayo was the D&R Foreman on the platform, and
Tamayo was authorized to direct the work of D&R employees once they received a “go signal” from
their superiors.40 Plaintiffs additionally contend that D&R Construction Supervisors “customarily
and regularly directed the work of at least two other employees, but sometimes up to ten
employees,” and were responsible for “directing the work of employees, appraising employees’
productivity and efficiency, handling employee complaints and grievances, disciplining employees,
planning work, determining work techniques, apportioning work among employees, determining the
type of equipment/tools to be used, and safety and security.”41
According to Plaintiffs, on the morning of November 16, 2012, the D&R and GIS employees
gathered for a safety meeting.42 As part of the meeting, a “WP/SEA” form, which allegedly details
the manner and methods of the work to be performed that day, was completed by Tamayo.43
Plaintiffs also point to deposition testimony of Grand Isle employee Curtis Dantin and the corporate
representative of Grand Isle, Mark Pregeant, that Dantin was not supervising the LACT work on
November 16, 2012 and that he left Tamayo in control.44
With respect to the third Ruiz factor – whether there was an agreement or meeting of the
minds between the original and borrowing employer – Plaintiffs contend that the MSA contains the
parties’ agreement that D&R controls D&R employees.45 Plaintiffs further point to Pregeant’s
40
Id. (citing Malagapo deposition at 172:20–5).
41
Id. (citing Rec. Doc. 425-6 at ¶ 11).
42
Id. at p. 9.
43
Id. (citing Rec. Doc. 425-7 at 204:25–206:1; Rec. Doc. 425-8).
44
Id. at pp. 10–11 (citing Rec. Doc. 425-4, 605:21–606:12).
45
Id. at p. 12.
7
declaration to the Department of Homeland Security, which they aver demonstrates that the parties
intended D&R to maintain control over its employees.46 Plaintiff reavers that both Dantin and
Pregeant testified that D&R foremen could instruct D&R employees.47
Turning to the fifth Ruiz factor, whether D&R terminated its relationship with Tajonera,
Plaintiffs argue that D&R was supervising Tajonera when he was injured, that a D&R foreman was
in charge of the D&R employees at the LACT unit, that the D&R foreman filled out the daily
WP/SEA worksheet which outlined how the work was to be performed that day, and that D&R
supervisors retained administrative control.48 Plaintiffs further contend that Malagapo “confirmed
that D&R never relinquished its authority to assign its workers and remove or transfer them from
worksite to worksite.”49 According to Plaintiffs, D&R employee Danilo Dayao would post work
assignments on a bulletin board in the bunkhouse.50 If a worker was unable to work due to illness,
he would notify Malagapo or another D&R employee.51 Tajonera’s pay and pay raises were
controlled by D&R.52 D&R handled grievances and discipline, and provided workers’ compensation
benefits.53 Plaintiffs point to Malagapo’s deposition, in which he testified that only D&R could
46
Id. (citing Rec. Doc. 425-17).
47
Id. at p. 13 (citing Rec. Doc. 425-4, 275:21–276:13; Rec. Doc. 425-7, 90:14-24).
48
Id. at p. 15.
49
Id. at p. 16 (citing Rec. Doc. 425-5, 188:21–189:3).
50
Id. at pp. 16–17.
51
Id. at p. 17.
52
Id.
53
Id.
8
terminate and remove its employees.54 Finally, Plaintiffs contend that “while Tajonera was on WD
32, D&R retained the right to pull him from the rig and reassign him.”55
Turning to who had the right to discharge Tajonera, Ruiz factor eight, Plaintiffs aver that
although Grand Isle could complain to D&R about a worker, it was ultimately D&R’s decision
whether to remove that worker.56 With respect to the final Ruiz factor, who had the obligation to pay
Tajonera, Plaintiffs contend that “the question of whether [Grand Isle] furnished the funds that paid
Tajonera is unsettled.”57 Contrary to Grand Isle’s argument that Tajonera’s earnings were
determined by the hours he worked, Plaintiffs allege Tajonera was actually paid by D&R pursuant
to a contract.58 Plaintiffs point to Malagapo’s deposition testimony that payments to Tajonera were
based on his contract, and that he would be paid even if he did not work.59
C.
Black Elk’s Memorandum in Opposition
Black Elk contends that genuine issues of material fact exist as to whether Tajonera was the
borrowed employee of Grand Isle on November 16, 2012.60 Black Elk adopts by reference the
arguments and evidence contained in Plaintiffs’ Opposition to Grand Isle’s Motion for Summary
Judgment,61 except as to any argument or representation regarding Black Elk’s alleged liability for
54
Id. (citing Rec. Doc. 425-5 at 184:77–185:3).
55
Id.
56
Id. at pp. 19-20.
57
Id. at p. 20.
58
Id.
59
Id. (citing Rec. Doc. 425-5, 116:23-117:5).
60
Rec. Doc. 432.
61
Rec. Doc. 425.
9
the accident at issue.
D.
Grand Isle’s Supplemental Memorandum in Support
In support of its Motion for Summary Judgment, Grand Isle reavers that Grand Isle, not
D&R, controlled Tajonera’s work assignments on the platform.62 Grand Isle points to Antonio
Tamayo’s testimony, in which he states that Curtis Dantin was “our supervisor.”63 According to
Grand Isle, while Tamayo may have had some supervisory role on other jobs, on WD 32 all D&R
hands were equal and there was no D&R supervisor.64 Grand Isle further avers that Curtis Dantin
gave all D&R employees their job tasks on a daily basis, so “even if Tamayo passes along
instructions in some sort of a quasi supervisory capacity, so long as those instructions were received
from [Grand Isle], it is [Grand Isle] who is controlling the work.”65 Grand Isle next contends that the
affidavit of Mark Pregeant is “irrelevant and outdated” because it was signed in 2006 and refers only
to three jobs other than the WD 32 job.66
The Malagapo affidavit, according to Grand Isle, is inapplicable because it was given in
another matter regarding activities of D&R construction supervisors, who were not involved in the
WD 32 job.67 Grand Isle next contends that Tajonera acquiesced to his work with Grand Isle because
(1) Tajonera worked exclusively on Grand Isle jobs from November 2008 through November 2012
and (2) an employment period of only a few weeks is sufficient to support a finding of borrowed
62
Rec. Doc. 473 at p. 3.
63
Id. at p. 4 (citing Rec. Doc. 473-5, Tamayo deposition, at pp. 38-39).
64
Id.
65
Id. at p. 5.
66
Id. (citing Rec. Doc. 425-5 at ¶¶ 4-5).
67
Id.
10
servant status in the absence of any complaints regarding the work situation.68
With respect to whether D&R terminated its relationship with Tajonera, Grand Isle contends
that D&R was acting essentially as a “placement agency” with nominal contact with its employees
once they were on the job.69 The day-to-day responsibility for supervising Tajonera, according to
Grand Isle, remained solely with Grand Isle.70 Grand Isle additionally argues that “[a]ll [Grand Isle]
and D&R employees signed the WPSEA [sic] and, thus[,] it is not a D&R document as plaintiff
would suggest.”71
Grand Isle next argues that Tajonera’s employment was over a considerable period of time
because “where a plaintiff is employed by a labor type service business and is expected to move
from job to job, the length of time on a “new” job can be substantially shorted, to well less than one
month.”72 Grand Isle additionally reavers that it had the right to terminate Tajonera’s employment
with Grand Isle. Finally, Grand Isle contends that there is no dispute that D&R billed Grand Isle
based on time tickets and Grand Isle paid D&R for the employees’ time.73
E.
Plaintiffs’ Sur-Reply in Opposition
In response to Grand Isle’s supplemental memorandum in support of its motion, Plaintiffs
68
Id. at p. 7 (citing Zuniga v. Transocean Offshore Deep Water Drilling, 2013 U.S. Dist. LEXIS 160208, *9
(E.D. La. November 8, 2013).
69
Id. at p. 8.
70
Id.
71
Id.
72
Id. at p. 9.
73
Id.
11
filed a sur-reply in further opposition.74 With respect to Grand Isle’s argument that Mark Pregeant’s
affidavit is “irrelevant and outdated,” Plaintiffs argue that Pregeant testified that the relationship of
the parties did not change between the 2006 and 2012 agreements.75 Plaintiffs also contend that they
attempted to ask Pregeant about the affidavit, but were “stonewalled at every turn” by Grand Isle’s
counsel.76 According to Plaintiffs, discovery from other cases, as well as declarations and affidavits
filed in other cases, are relevant and admissible when it relates to issues in the present case.77
Plaintiffs also contend that Grand Isle impermissibly offers new evidence – the deposition
testimony of Jovito Lara Canencio,78 Nick Pasno DeGuzman,79 and Paulino Hermosillia Obenieta80
– for the first time in its supplemental memorandum. Plaintiffs offer no authority to support their
argument. Plaintiffs state that “[w]hile Plaintiff objects to consideration of evidence which was not
filed with the motion for summary judgment, the testimony simply illustrates the existence of
disputed facts.”81
74
Rec. Doc. 470. Plaintiffs filed a “Sur-Reply Memorandum in Opposition to Black Elk’s Motion for Summary
Judgment.” Since Black Elk did not file the pending Motion for Summary Judgment, the Court understands this to refer
to Grand Isle’s Motion for Summary Judgment.
75
Id. at p. 3.
76
Id. at p. 4 (citing Rec. Doc. 470-1, 622:21 – 623:21).
77
Id. at p. 2 (citing Harvey v. Toyota Material Handling, USA, No. 05-0561, 2007 WL 1115235 at *5 (W.D.
La. April 13, 2007)).
78
Rec. Doc. 473-1.
79
Rec. Doc. 473-2.
80
Rec. Doc. 473-3.
81
Rec. Doc. 470 at p. 2. Plaintiffs do not address this argument further in their sur-reply, although they do
address it in their second sur-reply (Rec. Doc. 480).
12
F.
Grand Isle’s Second Supplemental Memorandum in Support
Grand Isle reavers that “[t]here is no evidence that Tajonera received any instruction that did
not come from Curtis Danton,” and that “[t]o the extent that any instruction may have been
conveyed to Tajonera through Tamayo, that instruction originated with Dantin.82 Grand Isle
additionally contends that Tajonera worked for Grand Isle for four years and on the WD 32 platform
for one week. “Plainly, his work with [Grand Isle] was over a considerable length of time and there
is no evidence that he did not acquiesce to working on the Black Elk platform.”83
G.
Plaintiffs’ Second Sur-Reply Memorandum in Opposition
Plaintiffs reaver that, in their view, six Ruiz factors affirmatively show that Tajonera was not
a borrowed employee.84 Plaintiffs reaver that the MSA between Grand Isle and D&R designated
D&R as an independent contractor, and that “the parties conducted themselves in the manner called
for in the agreement.”85 Plaintiffs again point to D&R Corporate Representative Malagapo’s
deposition testimony that D&R “maintained the power to assign its employees and to pull its
employees and move them to other rigs at their discretion.”86
In response to Grand Isle’s argument that Canencia, DeGuzman, and Obenieta testified that
Dantin gave instructions to the D&R employees at WD 32, Plaintiffs contend that “[t]he cited
testimony talks about the general experiences of D&R employees between 2007 and 2012 and
82
Rec. Doc. 476 at p. 7 (citing Rec. Doc. 476-2, Grand Isle’s Corporate deposition, at pp. 508-09).
83
Id. at p. 8.
84
Rec. Doc. 480 at p. 2.
85
Id. at pp. 2–3.
86
Id. at pp. 4–5.
13
doesn’t reference WD 32.”87 According to Plaintiffs, the testimony and declaration of Malagapo, the
Master Service Agreement, and Mark Pregeant’s affidavit directly contradict these assertions.88
Furthermore, “DeGuzman, Obenieta, Canencia, and Dominguez were not at the LACT unit, where
Foreman Tamayo controlled the work of Tajonera, Corporal, and Ilagan.”89 Plaintiffs argue that any
testimony of workers who were not at the LACT unit on WD 32 is irrelevant. Additionally, Plaintiffs
contend that the testimony of Dantin, Pregeant, and Malagapo, as well as the MSA, the WP/SEA,
and other documents, show that Tamayo was in charge.90 With respect to whether Tajonera
acquiesced to working on WD 32, Plaintiffs submit that “[i]n the absence of any evidence showing
acquiescence, whether one week is sufficient to acquiesce is a disputed issue of fact.”91
H.
Grand Isle’s Third Supplemental Memorandum in Support
Grand Isle argues that on September 17, 2014, the Parties obtained the deposition testimony
of Jade Dianne N. Tajonera, the twenty-one year old daughter of Avelino Tajonera.92 According to
Grand Isle:
Ms. Tajonera testified that she talked to her father by telephone on a daily basis. Ms.
Tajonera testified further that during the eight year period he worked in the United
States he only work [sic] for D&R and [Grand Isle]. According to Ms. Tajonera,
[Grand Isle] employees were the ones telling her father what to do. Tajonera lived
in the [Grand Isle] bunkhouse, and did not complain about his job and he and other
87
Id. at p. 7.
88
Id.
89
Id.
90
Id. at p. 8.
91
Id. at p. 11.
92
Rec. Doc. 486-2 at p. 1.
14
workers did not complain because they thought [Grand Isle] might fire them [sic].93
According to Grand Isle, this testimony supports Grand Isle’s position that Tajonera was a borrowed
employee at the time of the incident.94
I.
Plaintiffs’ Third Sur-Reply in Opposition
Plaintiffs contend that the statements of Avelino Tajonera, as told to his daughter, are
inadmissible hearsay because they are offered to assert the truth of the matter therein, that Grand Isle
controlled Tajonera’s work.95 According to Plaintiffs, “[t]his testimony is inadmissible hearsay,
would not be admissible at trial, and may not be considered as summary judgment evidence.”96
III. Standard for a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show
that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”97 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”98 All reasonable inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of
law’ are insufficient to either support or defeat a motion for summary judgment.”99 If the record, as
93
Id. at p. 2 (citing Rec. Doc. 486-3).
94
Id.
95
Rec. Doc. 490 at p. 2.
96
Id.
97
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
98
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
99
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
15
a whole, could not lead a rational trier of fact to find for the non-moving party, then no genuine issue
of fact exists and the moving party is entitled to judgment as a matter of law.”100 The nonmoving
party may not rest upon the pleadings, but must identify specific facts in the record and articulate
the precise manner in which that evidence establishes a genuine issue for trial.101
The party seeking summary judgment always bears the initial responsibility of informing the
Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.102 Thus, the nonmoving party should
“identify specific evidence in the record, and articulate” precisely how that evidence supports his
claims.103 To withstand a motion for summary judgment, a plaintiff must show that there is a
genuine issue for trial by presenting evidence of specific facts.104 The nonmovant’s burden of
demonstrating a genuine issue of material fact is not satisfied
merely by creating “some
metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated
assertions,” or “by only a scintilla of evidence.”105 Rather, a factual dispute precludes a grant of
summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for
the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form
that would be admissible in evidence at trial do not qualify as competent opposing evidence.106
100
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
101
See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
102
Celotex, 477 U.S. at 323.
103
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.1994), cert. denied, 513 U.S. 871 (1994).
104
Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012), citing Anderson, 477 U.S. 242 at 248-49.
105
Little, 37 F.3d at 1075.
106
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R .Civ.P. 56(c)(2).
16
IV. Law and Analysis
A.
Evidentiary Issues
1.
Jade Tajonera’s Deposition Testimony
A district court may only consider admissible evidence in ruling on a motion for summary
judgment.107 This Court therefore may properly consider Jade Tajonera’s deposition insofar as it
is not based on hearsay or other information excludable from evidence at trial.108 Here, Grand Isle
“submits that this testimony from Mr. Tajonera’s daughter supports [Grand Isle]’s position that
Tajonera was its borrowed employee at the time of the incident.”109 Specifically, Grand Isle asserts
that the testimony “supports the contention that [Grand Isle] had the right to control Tajonera’s work
by giving him his daily instructions and that Tajonera’s work for [Grand Isle] was over a long period
of time and that he acquiesced to working as [Grand Isle]’s borrowed employee.”110 By its own
account, Grand Isle offers the statements to prove the truth of the matter asserted: that Grand Isle
controlled Tajonera and that Tajonera “acquiesced to working as [Grand Isle]’s borrowed
employee.”111 The Court finds that this evidence is hearsay, and as such, it is not appropriate for
consideration in ruling on this summary judgment motion.112
2.
Evidence Given in a Prior Matter
Grand Isle contends that the Pregeant affidavit is impermissible evidence to be considered
107
Coleman v. Jason Pharm., 540 F. App’x 302, 306 (5th Cir. 2013) (citing Fed. R. Civ. Proc. 56(c)(2)).
108
See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
109
Rec. Doc. 486-2 at p. 2.
110
Id.
111
Id.
112
See Fed. R. Civ. P 56(e).
17
on this motion for summary judgment because it was signed in 2006 and referred to three jobs other
than the WD 32 job.113 Grand Isle does not cite any authority in support of this argument. Plaintiffs
argue that discovery from other cases, as well as declarations and affidavits filed in other cases, are
relevant and admissible when it relates to issues in the present case.114 Plaintiffs cite only Harvey
v. Toyota Material Handling, USA in support of their argument. In that case, the Western District
of Louisiana determined a motion for summary judgment based in part on 25 Accident Search Detail
reports from an online Occupational Safety & Health Administration database of workplace
accidents that had been complied by the plaintiff’s expert.115
Federal Rule of Civil Procedure 56(c) states in pertinent part that:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.]
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated.116
Given that neither party properly briefs this issue, and given that the affidavit appears to be
sufficient under Rule 56(c), the Court finds that it is not impermissible evidence to be considered
on this motion for summary judgment.
113
Rec. Doc. 473 at p. 5.
114
Rec. Doc. 470 at p. 2.
115
Harvey v. Toyota Material Handling, USA, Inc., No. 05-0561, 2007 WL 1115235 (W.D. La. Apr. 13, 2007).
116
Fed. R. Civ. P. 56(c)(1)(A), 56(c)(4).
18
3.
Evidence provided for the first time in a supplemental memorandum
Plaintiffs also contend that Grand Isle impermissibly offers new evidence – the deposition
testimony of Jovito Lara Canencio,117 Nick Pasno DeGuzman,118 and Paulino Hermosillia Obenieta119
– for the first time in its supplemental memorandum. Plaintiffs offer no authority to support their
argument, and instead state that “[w]hile Plaintiff objects to consideration of evidence which was
not filed with the motion for summary judgment, the testimony simply illustrates the existence of
disputed facts.”120 Given that Plaintiffs do not cite any authority to support this argument, and since
Plaintiffs argue that the three depositions are “irrelevant,” 121 the Court finds that the depositions
are not impermissible evidence to be considered on this motion for summary judgment.
B.
Borrowed Employee Doctrine
The Parties appear to agree that Tajonera was injured on the Outer Continental Shelf. Section
1333(b) of the Outer Continental Shelf Lands Act (“OCSLA”) incorporates and extends the benefits
of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) to employees injured on
fixed platforms on the Outer Continental Shelf.27 Under the LHWCA, employees are prevented from
bringing tort actions against their employers and their recovery is limited to certain statutorily
prescribed compensation benefits.122 Because a borrowing employer enjoys the same protection as
a nominal employer, a “borrowed employee” (also referred to as “borrowed servant”) is also barred
117
Rec. Doc. 473-1.
118
Rec. Doc. 473-2.
119
Rec. Doc. 473-3.
120
Rec. Doc. 470 at p. 2. Plaintiffs do not address this argument further in their sur-reply, although they do
address it in their second sur-reply (Rec. Doc. 480).
121
122
Rec. Doc. 480 at p. 7.
See 33 U.S.C. §§ 904(a), 905(a).
19
from suing the borrowing employer for anything more than workers’ compensation benefits.123 Thus,
if Tajonera is found to be a “borrowed employee” of Grand Isle, then Plaintiffs will be barred from
suing Grand Isle in tort.
Although the Parties dispute whether Plaintiff was a borrowed employee at the time of his
injury, they agree that whether an employee is a borrowed employee constitutes an issue of law for
the Court to decide by applying the nine factor test set forth by the United States Court of Appeals
for the Fifth Circuit in Ruiz v. Shell Oil Co.124 However, factual disputes concerning each factor
should be submitted to the fact-finder prior to the Court making its ruling on whether the employee
was a borrowed employee at the time of his alleged injury.125 In determining whether Tajonera was
the borrowed employee of Grand Isle, the Court must consider each of the following factors:
1. Who has control over the employee and the work he is performing, beyond mere
suggestions of details or cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding, or meeting of the minds between the
original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of time?
123
124
Melancon v. Amoco Production Co., 834 F.2d 1238, 1243 (5th Cir.1988).
Ruiz, 413 F.2d 310, 310 (5th Cir.1 969).
125
See Gaudet v. Exxon Corp., 562 F.2d 351, 358 (5th Cir. 1977); see also Barrios v. Freeport–McMoran
Resource Partners, LP, Nos. 93–0092, 93–0425, 1994 WL 90456 (E.D.La. Mar. 11, 1994) (Livaudais, J.).
20
8. Who has the right to discharge the employee?
9. Who had the obligation to pay the employee?126
No one factor or combination of factors is determinative.127 However, the Fifth Circuit has
recognized the importance of the first and third factors in the resolution of the borrowed employee
question; namely, the issues of control and consent.128 Grand Isle argues that all nine Ruiz factors,
including control and consent, weigh in favor of a finding that Tajonera was a borrowed
employee.129 Plaintiffs contend that disputed issues of material fact exist as to six Ruiz factors.130 The
Court considers each Ruiz factor in turn.
1.
Who Had Control of the Employee?
In evaluating whether the borrowing employer, Grand Isle, controlled and directed
Tajonera’s work, “a careful distinction must be made between authoritative direction and control,
and mere suggestion as to details or the necessary co-operation, where the work furnished is part of
a larger undertaking.”131 In this case, there are material facts in dispute as to whether Grand Isle or
D&R employees supervised Tajonera and assigned him work. Grand Isle argues that Curtis Dantin,
a Grand Isle supervisor, gave the D&R employees instructions and split up the crew.132 Conceding
126
See e.g. Lemaire v. Danos & Curole Marine Contractors, 266 F.3d 1059 (5th Cir. 2001); Brown v. Union
Oil Co., 984 F.2d 674, 676 (5th Cir. 1993).
127
W. v. Kerr-McGee Corp., 765 F.2d 526 (5th Cir. 1985).
128
See Melancon, 834 F.2d at 1245; Capps, 784 F.2d at 617; Ruiz, 413 F.2d at 312–13.
129
Rec. Doc. 394-2 at p. 12.
130
Rec. Doc. 425 at p. 5. Plaintiffs state that the length of employment factor is neutral, and the factors related
to who provided tools and whose work was being performed favor a finding of borrowed servant status. Id.
131
Ruiz, 413 F.2d at 313.
132
Rec. Doc. 394-2 at p. 7.
21
that the MSA expressly states that D&R employees are not servants, agents, or employees of Grand
Isle, Grand Isle argues that “the reality of the worksite and the parties’ actions in carrying out a
contract” impliedly modified, altered, or waived express provisions of the MSA because Grand Isle
employees allegedly gave instructions and ran safety meetings.133 Plaintiffs contend that the MSA
explicitly provides that Tajonera was not a borrowed servant of Grand Isle, and that D&R foremen
supervised Tajonera.134 Plaintiffs point to D&R’s corporate deposition, wherein Randolf Malagapo
testified that if a D&R Construction Supervisor was not present offshore, a D&R crew could be
overseen by a D&R Foremen, and in this case, the D&R Foreman on the platform was Antonio
Tamayo.135 Plaintiffs further argue that Dantin left Tamayo in charge on the day of the explosion.136
Which party had general control over Tajonera is an undetermined factual issue necessary
in the Court’s determination of this factor. Accordingly, the factual determination of who controlled
Tajonera’s work should be decided by the fact-finder unless the other factors overwhelmingly
support Tajonera’s borrowed employee status.
2.
Whose Work Was Being Performed?
The Parties appear to agree that Tajonera was performing work for Grand Isle.137 Plaintiffs
concede that the D&R employees’ work was being performed to upgrade systems on the Black Elk
platform pursuant to a contract between Black Elk and Grand Isle, and that this work “was not
133
Id.
134
Rec. Doc. 425 at pp. 7-8.
135
Id. at p. 8.
136
Id. at p. 10 (citing Dantin deposition, 90:14-24).
137
Rec. Doc. 394-2 at p. 7; Rec. Doc. 425 at p. 12.
22
D&R’s work.”138 Since there is no dispute that Tajonera was performing Grand Isle’s work, this
factor favors a finding of borrowed servant status.
3.
Was There An Agreement or Understanding Between Grand Isle and
D&R?
The Parties seem to agree that D&R and Grand Isle entered into a Master Service Contract
that provides in pertinent part:
It is expressly understood that Contractor is an independent Contractor and that
neither Contractor nor Contractor’s principales [sic], partners, employees, or
subcontractors, or servants, agents, or employees are servants, agents, or employees
of Grand Isle. Grand Isle shall designate the services it desires to be performed and
the ultimate results to be obtained, but shall leave to Contractor the methods and
details of performance, Grand Isle being interested only in the results obtained, and
having no control over the manner and method of performance.139
Based on this provision, it would seem that D&R maintained control over Tajonera and that
Tajonera is not a borrowed employee of Grand Isle. Grand Isle argues, however, that the parties’
conduct modified their contractual agreement pursuant to the MSA.140 Plaintiffs contend that the
MSA contains the parties’ agreement that D&R would control D&R employees, and that the conduct
of the parties clearly demonstrates that D&R and Grand Isle behaved in accordance with the
contract.141 Plaintiffs further point to Mark Pregeant’s declaration to the Department of Homeland
Security, which allegedly demonstrates that the parties intended D&R to maintain control over its
employees.142
138
Rec. Doc. 425 at p. 12.
139
Id. (citing Rec. Doc. 395-5 at p. 1).
140
Rec. Doc. 394-2 at p. 8.
141
Rec. Doc. 425 at pp. 12-13.
142
Id. (citing Rec. Doc. 425-17).
23
Notwithstanding the express language of the MSA, courts have found contract provisions
similar to the one at issue here do not prohibit a finding of borrowed servant status where the
workplace realities are otherwise. Indeed, the Fifth Circuit has held the terms of the contract
between the borrowing employer and payroll employer do not ordinarily provide a sufficient basis
to deny summary judgment when the remaining Ruiz factors point toward borrowed servant status.143
For instance, in Brown v. Union Oil Co. of California, the Fifth Circuit faced similar provisions in
a contract between lending and borrowing employers that purported to prohibit the plaintiff’s
borrowed employee status.144 The Court found that such contract provisions do not automatically
prevent borrowed employee status from arising because the parties’ actions in carrying out the
contract can impliedly modify or waive the express provision.145 “Whether the parties had an
understanding that modified the contract may raise disputed factual issues.”146 The Court held that
conflicting evidence regarding whether the parties impliedly modified the contract raised a factual
dispute that should be determined by a fact-finder.147
Here, as in Brown, there is conflicting evidence regarding whether the parties’ conduct
modified the contract provision purporting to prohibit borrowed employee status. Grand Isle
contends that Tajonera received his daily duty assignments from Grand Isle employees, and that this
course of conduct impliedly modified the MSA.148 Plaintiffs, on the other hand, assert that the
143
Alexander v. Chevron, U.S.A., 806 F.2d 526, 529 (5th Cir. 1986), citing Gaudet v. Exxon Corp., 562 F.2d
351, 358 (5th Cir. 1977).
144
Brown v. Union Oil Co. of California, 984 F.2d 674, 677 (5th Cir. 1993).
145
Id. at 677-78 (citing Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 amended on reh’g in part sub nom.
Melancon v. Amoco Prods. Co., 841 F.2d 572 (5th Cir. 1988).
146
Id. (citations omitted).
147
Brown, 984 F.2d at 678.
148
Rec. Doc. 394-2 at p. 8.
24
parties’ actions in carrying out the contract did not alter the MSA.149 As in Brown, this raises a
factual dispute that should be determined by a fact-finder.
4.
Did the Employee Acquiesce in the New Work Situation?
The issue to be resolved under this factor is whether Tajonera had an opportunity to observe
the conditions under which he was working and whether, after such an opportunity he chose to
continue working.150 The Fifth Circuit has found borrowed servant status where the plaintiff worked
for only one day. In Capps v. N.L. Baroid-NL Indus., Inc, a case upon which Grand Isle relies, a
roustabout was injured on the first day of a new assignment and had been sent to a different location
and/or company on each day of his employment with Davis. The Fifth Circuit found that “when he
went to work for Davis, he acquiesced to the fact that Davis would constantly send him to new work
situations.”151 In Fontenot v. Mobil Oil Exploration & Producing Southeast, Inc., the plaintiff had
been employed by Thibeaux & Son Construction, Inc. for one year, but had been injured after only
two days of work on a Mobile Oil platform.152 The Fifth Circuit found that he had acquiesced to his
employment situation because Thibeaux regularly sent him to temporary work places, and because
“Fontenot had attended at least two safety meetings by his third day of work at the platform and had
at no time objected to Mobile’s authority over him. By failing to complain, plaintiff acquiesced to
his new work environment.”153
Here, unlike in Capps, the Parties do not argue that Tajonera was sent to new work situations
149
Rec. Doc. 425 at p. 12.
150
Brown, 984 F.2d at 678.
151
Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986).
152
Fontenot v. Mobil Oil Exploration & Producing Se., Inc., 997 F.2d 881 (5th Cir. 1993).
153
Id.
25
daily. Grand Isle argues that Tajonera’s work with D&R was only with Grand Isle, and that Tajonera
would travel from vacations in the Philippines to work for Grand Isle regularly from November 2008
through November 2012.154 Plaintiffs argue that WD 32 was the first Black Elk platform that
Tajonera worked on, and that seven days is insufficient time to appreciate work conditions on a new
platform.155 Here, like in Fontenot, Tajonera had worked for the same nominal employer for four
years. Plaintiffs present no evidence that Tajonera objected to his work on the WD 32 platform, nor
do they refute Grand Isle’s assertion that Tajonera would regularly return to work with D&R after
vacations. Furthermore, the Parties do not seem to dispute that, like in Fontenot, Tajonera attended
at least one safety meeting on the WD 32 without complaint.156 Accordingly, this factor favors a
finding of borrowed employee status.
5.
Did the Original Employer Terminate Its Relationship with the
Employee?
This factor does not require a lending employer to completely sever his relationship with the
employee, because such a requirement would effectively obliterate the borrowed employee
doctrine.157 Instead, this factor evaluates the lending employer’s relationship with the lending
employee while the borrowing occurs.158 The Fifth Circuit has held that the fact that a plaintiff had
no contact with his lending employer and was supervised totally by the borrowing employer’s
personnel while on the job site is sufficient to meet this Ruiz factor.159
154
Rec. Doc. 394-2 at p. 9.
155
Rec. Doc. 425 at p. 14.
156
Id. at p. 9.
157
Melancon, 834 F.2d at 1246 (citing Capps, 784 F.2d at 617–18).
158
Capps, 784 F.2d at 617–18.
159
Hotard, 308 F. App’x at 742.
26
Grand Isle argues that day-to-day instructions were given by Grand Isle supervisors, and
D&R’s contact with its employees was limited to coordinating who would go out on a job.160
However, D&R presents contrary evidence that on the day Tajonera was injured, a D&R foreman
was in charge of the D&R employees at the LACT unit, and the D&R foreman filled out the daily
WP/SEA worksheet which outlined how work was to be performed that day.161 D&R additionally
argues that its supervisors retained administrative control, including “directing the work of
employees, appraising employees’ productivity and efficiency, handling employee complaints and
grievances, disciplining employees, planning work, determining work techniques, apportioning work
among employees, determining the type of equipment/tools to be used, and safety and security.”162
Both sides have presented contradictory evidence regarding whether D&R terminated its
relationship with Tajonera. Accordingly, this disputed issue of fact should be decided by a jury.
6.
Who Furnished the Tools of Performance?
This factor emphasizes whether the borrowing or the lending employer furnished the
employee’s tools, place of performance, and other necessities, such as food, lodging, and
transportation.163 The case law supports a distinction between providing the place of performance
and major tools for doing the work, and providing the protective equipment necessary to do the job
safely. In Owen v. Chevron U.S.A., Inc., the Fifth Circuit found borrowed employee status when
the borrowing employer furnished the place of performance, the principal pieces of equipment (a
wireline unit and lubricator), transportation, lodging, and food, while the direct employer provided
160
Rec. Doc. 394-2 at p. 9.
161
Rec. Doc. 425 at p. 15.
162
Id. at pp. 15–16.
163
See Melancon, 834 F.2d at 1246.
27
tool boxes, hand tools, safety equipment and certain specialized tools.164 In Melancon, the Fifth
Circuit affirmed the district court’s finding that this factor favored borrowed employee status even
when the lending employer furnished the welding equipment, because the borrowing employer
furnished the place of employment, transportation, food, and lodging.165 In both Owen and
Melancon, the work site was on an oil and gas drilling platform off the coast of Louisiana.
Grand Isle argues that it supplied the tools, personal protective gear, and place of
performance of the work.166 Plaintiffs appear to concede that Grand Isle supplied equipment such
as torches and tanks, but argues that D&R supplied personal protective equipment including a mask,
apron, and welding gauntlets.167 Plaintiffs additionally state that meals, lodging, and the place of
performance were provided by Black Elk via its contract with Grand Isle.168 Therefore here, like
Owen and Melancon, the borrowing employer furnished the place of employment, meals, lodging,
transportation, and some equipment, while the lending employer provided protective gear. The
Court accordingly finds that this factor favors borrowed employee status in this case.
7.
Was the New Employment Over a Considerable Length of Time?
The Fifth Circuit has noted that “[w]here the length of employment is considerable, this
factor supports a finding that the employee is a borrowed employee; however, the converse is not
true.”169 In Fontenot, the Fifth Circuit found this factor to be neutral since the plaintiff had been
164
Owen v. Chevron U.S.A. Inc., 8 F.3d 20 (5th Cir. 1993).
165
Melancon, 834 F.2d at 1246.
166
Rec. Doc. 394-2 at p. 10.
167
Rec. Doc 425 at p. 18.
168
Id.
169
Capps, 784 F.2d at 618.
28
working for Mobil, the borrowing employer, for only two days before the date of the accident.170
Similarly, the Fifth Circuit found in Capps that this factor was neutral when the employee only
worked in the new work situation for three days.171 The Court accordingly finds that this factor is
neutral here because Tajonera was working on WD 32, where he was injured, for one week prior to
his accident.
8.
Who Had the Right to Discharge the Employee?
The Fifth Circuit has stated that the proper focus when considering who has the right to
discharge the employee is whether the borrowing employer has the right to terminate the borrowed
employee’s services; the issue is not whether the borrowing employer could discharge the employee
from the lending employer.172 Grand Isle argues that if it had objected to any D&R employee on a
particular job, the Grand Isle supervisor, Curtis Dantin, had the authority to remove the D&R
employee.173 Plaintiffs present contrary evidence that if Grand Isle complained about a D&R
employee, D&R would “talk to the person what about the problem [sic]. And when there is a
problem, we move them to a different platform [sic].”174 According to Plaintiffs, D&R had the
ultimate authority to remove a worker.175 This disputed issue of fact should be decided by a jury, as
both parties have presented contradictory evidence.
170
Fontenot, 997 F.2d at * 3.
171
Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir. 1986).
172
Capps, 784 F.2d at 618.
173
Rec. Doc. 394-2 at p. 11.
174
Rec. Doc. 425 at p. 20 (citing Malagapo deposition, 184:17–185:3).
175
Id. at p. 19.
29
9.
Who Had the Obligation to Pay the Employee?
The Fifth Circuit has held that an arrangement whereby the lending employer pays the
employee and is reimbursed by the borrowing employer for the wages supports a finding of
borrowed employee status.176 Grand Isle argues that D&R employees were guaranteed twelve hours
per day, with overtime pay as authorized by the Grand Isle supervisor, and that D&R would then
bill Grand Isle based on time tickets, and Grand Isle would pay D&R for the employees’ time.177
According to Grand Isle, this factor favors borrowed employee status because Tajonera’s earnings
were determined by the hours he worked at the direction of a Grand Isle supervisor.178 In contrast,
Plaintiffs argue that D&R paid Tajonera pursuant to a contract, and not pursuant to the hours that
he worked.179 Plaintiffs point to Malagapo’s testimony, in which he states that D&R employees
would be paid even when they did not work, and that he did not know if D&R ever received hourly
work tickets from Grand Isle.180 The Court therefore finds a genuine dispute of material fact
regarding whether Tajonera was paid by Grand Isle or D&R.
V. Conclusion
After analyzing the nine Ruiz factors, the Court finds that disputed issues of material fact
176
See Hotard v. Devon Energy Prod. Co. L.P., 308 F. App’x 739, 742 (5th Cir. 2009); Capps, 784 F.2d at
618; see also Brown, 984 F.2d at 679 (finding that this factor favors finding borrowed employee status where the
borrowing employer must verify the employee's time tickets).
177
Rec. Doc. 394-2 at p. 11.
178
Id.
179
Rec. Doc. 425 at p. 20 (citing Rec. Doc. 425-11).
180
Id. at pp. 20–21 (citing Rec. Doc. 425-5, Malagapo deposition).
30
exist with respect to factors 1, 3, 5, 8, and 9. Accordingly,
IT IS HEREBY ORDERED that Grand Isle’s “Motion for Summary Judgment” is
DENIED.
NEW ORLEANS, LOUISIANA, this ____ day of October, 2014.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
31
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