Lee et al v. Pearl River Basin Land and Development Company, LLC et al
ORDER & REASONS granting 32 Motion for Summary Judgment and denying as moot 98 Motion for Extension of Deadlines; denying 72 Motion to Dismiss Case; granting 67 Motion for Extension of Deadlines; denying 100 Motion to Strike and granting 100 Motion for Extension of Deadlines. Signed by Judge Martin L.C. Feldman on 6/14/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER ELIZABETH LEE,
wife of and CRAIG LEE
PEARL RIVER BASIN LAND
AND DEVELOPMENT COMPANY, LLC, ET AL.
ORDER AND REASONS
Before the Court are several motions: (1) The Town of Pearl
River's motion for summary judgment; (2) Pearl River Basin Land and
Development Company, LLC's motion to dismiss; (3) the plaintiffs'
motion for extension of time to provide expert reports; and (4)
defendants' motions to strike plaintiffs' expert witnesses or, in
the alternative, request to extend deadline for defendants to
provide expert reports.
For the reasons that follow, the motion
for summary judgment is GRANTED; the motion to dismiss is
the plaintiffs' motion for extension of time to provide expert
reports is GRANTED; the Town's motion to strike plaintiffs' expert
plaintiffs' expert witnesses is DENIED, and its request for an
extension to provide expert reports is GRANTED.
This lawsuit arises from personal injuries allegedly sustained
when the plaintiff, while operating his skiff on a tributary of the
Pearl River in St. Tammany Parish, hit his head on an unmarked and
On April 1, 2012 Craig Lee was operating his 21-foot center
console fishing boat on the Pump Slough waterway in Pearl River,
Louisiana. Suddenly and without warning, his head struck the unlit
and unmarked bridge constructed across the waterway.1
On April 1,
In the complaint, the plaintiffs allege that Mr. Lee's
boat allided with unlit and unmarked support pilings to a bridge
constructed across the waterway but Mr. Lee has submitted an
affidavit in which he specifies that his head hit the bridge. In an
unsworn submission, the plaintiffs submit the following factual
[O]n April 1, 2012...Plaintiff, Craig
Allen Lee, was operating his boat along with a
friend at night after checking fishing lines
when suddenly...he was struck in the head by
an unmarked, unlit, bridge crossing over the
Pump Slough waterway with supporting pilings.
The impact from the blow rendered Mr. Lee
unconscious, and he stopped breathing. He was
resuscitated by the other passenger in the
boat, who then brought the boat to the shore
where an ambulance picked him up and
transported him to LSU Interim Hospital.
...Mr. Lee sustained serious injuries,
including, but not limited to, a broken neck,
a large laceration over the right side of his
skull, a skull fracture with bilateral
Due to the severe
injuries, Mr. Lee remained as an inpatient for
12 days at LSU.
[Thereafter] Mr. Lee was
transferred from LSU to Touro Hospital for
inpatient rehabilitation due to the traumatic
brain injury that was caused by the trauma of
the April 1, 2012 incident....
accident he has been unable to return to work,
and his wife has had to seek employment
outside of the home. [T]his has been a life
altering event for Mr. Lee and his family, and
their future is now uncertain due to his
significant, debilitating injuries.
None of these facts are of record.
2013 Lee and his wife sued Pearl River Basin Land and Development
Louisiana, and three fictitious insurers in state court.
that same day, the Lees sued PRBL, the Town of Pearl River, and the
three fictitious insurers in this Court.
The Lees allege PRBL's
negligence in failing to adequately mark the support pilings that
caused Mr. Lee's injuries; they allege that the State of Louisiana
(named as a defendant only in the state court proceedings) owned
the water bottom/bed of the "pump slough", a navigable body of
water; and they allege that the Town of Pearl River owned or
maintained the property on which the bridge is attached and
breached its duty to insure that it was not hazardous.
seek to recover an estimated $2,000,000 in damages for Mr. Lee's
physical and mental injuries, as well as Mrs. Lee's loss of
The Town of Pearl River answered in this federal litigation on
June 19, 2013, and PRBL filed its answer and amended answer in
Counsel participated in a scheduling conference,
after which time the Court issued a scheduling order, selecting the
pretrial conference date (July 24, 2014), the jury trial date
(August 25, 2014), and corresponding deadlines for discovery and
On December 18, 2013 PRBL filed a motion to compel discovery,
which was granted on January 13, 2014.
In granting the motion to
compel, Magistrate Judge Roby also ordered that an award of
reasonable expenses, including attorney's fees be awarded against
plaintiffs in PRBL's favor pursuant to Federal Rule of Civil
Procedure 37(a)(5)(A). Magistrate Judge Roby ultimately determined
plaintiffs pay PRBL not later than 20 days from her February 11,
Although the January 13 order required plaintiffs to
provide complete responses to PRBL's discovery within 10 days from
On February 18, 2014, the Town of Pearl River filed a motion
for summary judgment and a request for oral argument on its motion,
noticing the motion for submission on March 26, 2014.
noticed the plaintiffs' depositions four times but, each time,
plaintiffs' counsel has advised that plaintiffs were unavailable,
even when plaintiffs' counsel had previously agreed to the date. On
plaintiffs' depositions were to be taken, plaintiffs filed a motion
to quash the depositions based on plaintiffs' intent to seek
voluntary dismissal; after granting the defendants' motion to
expedite hearing on the motion to quash, Magistrate Judge Roby
denied the motion.
Shortly after requesting to quash their
depositions on March 10, the plaintiffs filed a motion to dismiss
without prejudice so that plaintiffs could proceed only with their
state court lawsuit.
On April 2, 2014 this Court denied the
plaintiffs' motion, observing:
The plaintiffs' request to dismiss their lawsuit is,
at best, dilatory. It is presented more than 11 months
after the lawsuit was filed. The request comes after the
defendants have answered; after counsel participated in
a scheduling conference and a scheduling order issued;
after a motion to compel was decided adversely to
plaintiffs and plaintiffs were taxed attorney's fees;
after a dispositive motion for summary judgment and
accompanying request for oral argument was filed; and
after the plaintiffs have persistently obstructed
discovery efforts initiated by defendants, including by
filing a motion to quash, which was decided adversely to
plaintiffs. Plaintiffs cannot simply file a lawsuit in
federal court, sit back and refuse to advance the case,
and be granted an unconditional without prejudice
dismissal with a dispositive motion scheduled for hearing
and the trial date five months away.
See Order and Reasons dated April 2, 2014. Meanwhile, on March 14,
2014, the magistrate judge had denied the plaintiffs' request that
magistrate judge's order denying their motion to quash, but this
Court affirmed the magistrate judge's ruling.
The Town of Pearl River now seeks summary judgment and PRBL
seeks dismissal of the plaintiffs' claims; alternatively, both
witnesses or provide defendants more time to submit their expert
And, the plaintiffs seek an extension of time to provide
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
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.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
The plaintiffs allege that the Town of Pearl River "owned
and/or maintained the property on which the bridge is attached to
and had a duty to insure that it did not represent a hazard to the
Petitioner Craig Allen Lee, as it had 'garde' of the entire area."
The Town submits that summary judgment in its favor is warranted
because (1) it is undisputed that the Town does not own the bridge
in question; (2) it does not own or have custody or control over
the property to which the bridge is attached; and (3) it owed no
duty to Mr. Lee under general maritime or Louisiana law.
plaintiffs do not dispute that general maritime law and Louisiana
law apply to this case; their only asserted basis for imposing
liability on the Town is that the Town "has garde over the bridge
at issue and/or the land to which the bridge is attached."
It is undisputed that this litigation, which arises from an
alleged tort that occurred on navigable waters, falls within the
Court's maritime tort jurisdiction. "With admiralty jurisdiction
comes the 'application of substantive admiralty law.'" In re: Oil
Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on
April 20, 2010, 808 F. Supp. 2d 943, 951 (E.D. La. 2011)(quoting
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545
(1995)), aff'd, In re Deepwater Horizon, 745 F.3d 157 (5th Cir.
Likewise, the parties do not dispute that admiralty does
not exclude application of state law "when the state action does
not run counter to federal laws or the essential features of an
exclusive federal jurisdiction."
Id. (quoting Romero v. Int'l
Terminal Operating Co., 358 U.S. 354, 375 n.42 (1959)).
When a moving vessel collides with a fixed object, there is a
rebuttable presumption that the moving vessel is at fault.
Oregon, 158 U.S. 186, 197 (1895). This presumption can be rebutted
if the plaintiff proves that the allision was caused by an Act of
stationary object. See Bunge Corp. v. M/V Furness Bridge, 558 F.2d
790, 794-95 (5th Cir. 1977).
Here, the plaintiff contends that the
Town had garde over the area to which the bridge is attached and,
maritime law or state law applies, the plaintiff's theory fails on
To establish negligence under general maritime law, "the
plaintiff must demonstrate that there was a duty owed by the
defendant to the plaintiff, breach of that duty, injury sustained
by plaintiff, and a causal connection between defendant's conduct
and the plaintiff's injury." In re Cooper/T. Smith, 929 F.2d 1073,
1077 (5th Cir. 1991), cert. denied, Abshire v. Gnots-Reserve, Inc.,
502 U.S. 865 (1991).
"[F]ederal regulations governing maritime
conduct establish the applicable standard of care if the plaintiff
belongs to the class of persons the regulation is designed to
protect and the statute intends to protect against the risk of harm
Serigne v. Cox Operating, LLC, No. 06-5861, 2008
Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1471-72 (5th
33 C.F.R. § 118.1 requires that "all persons owning or
operating bridges over the navigable waters of the United States
... shall maintain at their own expense the lights and other
signals required by this part."
Applying this regulation to the
summary judgment record, which establishes that the Town neither
construction or maintenance), it follows that there is no duty
imposed by federal law on the Town to install or maintain lights on
the bridge over the pump slough.
Plaintiffs point to no other
federal regulation or provision of maritime law that would impose
a duty on the Town to light the bridge.
Turning to whether state law imposes such a duty, Louisiana
Civil Code article 2317.12 provides:
La.Civ.Code art. 2317 instructs that "[w]e are
responsible, not only for the damage occasioned by our own act, but
for that which is caused by ... the things which we have in our
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon
a showing that he knew or, in the exercise of reasonable
care, should have known of the ruin, vice, or defect
which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.
La.C.C. art. 2317.1.
Ownership presumptively establishes the
requisite benefit, control, and authority to find garde.
Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La. 1991).
But even absent ownership a person can have custody or garde over
something if he "bears such a relationship as (1) to have the right
of direction and control over [it], and (2) to draw some kind of
benefit from [it]." See Anh Ngoc Vo v. Chevron, U.S.A., Inc., No.
2013)(Engelhardt, J.)(quoting King v. Louviere, 543 So.2d 1327,
1329 (La. 1989)); see also Coulter v. Texaco, 117 F.3d 909, 913 (5th
Both factors must be present.
injury is caused by a specific thing, that thing is considered "the
object" with respect to the issue of custody; and, the property on
which the injury occurred is not considered "the object" unless an
inherent defect in the property caused the injury.
See Doughty v.
Insured Lloyds Ins. Co., 576 So. 2d 461, 464 (La. 1991)(defective
machinery located on the property was considered "the object", not
the property itself); see also Dupree v. City of New Orleans, 765
So. 2d 1002 (La. 2000)(where cause of the injury was a cave-in on
a New Orleans city street, property was considered "the object"
with respect to the issue of custody).
Does the Town have garde over the bridge?
The Town submits that it does not under these circumstances of
The Town does not own or operate the bridge over the pump
The Town does not maintain, have custody of, derive a benefit
from, or have control over the bridge.
The U.S. Army Corps of Engineers issued the permit to PRBL to
construct the bridge sometime before Hurricane Katrina.
The Town does not own the property on which the bridge was
connected; the State of Louisiana owns the property connected
to the bridge.
The property connected to the bridge consists of a parking
lot, grassy area with park benches, and the boat launch into
the pump slough, all of which are free to use by the public.
The Town cuts the grass of the bridge-adjacent property, as
The plaintiffs counter that they have competent evidence
showing that the Town "has garde over the bridge at issue and/or
the land to which the bridge is attached"; plaintiffs submit that:
Sometime before Mr. Lee's accident, one Ronald Marshall
complained to the Mayor of Pearl River "about the bridge"
and the Mayor's response was "It's not my problem, go to
the Corps of Engineers."
No navigational lights or reflective markings were
installed on the bridge crossing the pump slough at the
time of Mr. Lee's accident.
The land upon which the west end of the bridge rests and
the surrounding land adjacent to it, including a boat
launch, parking lot and gravel road leading up to it, as
well as park benches and street lights, is maintained by
The plaintiffs submit that the Town's activities "demonstrate that
the area where the bridge
custody and control."
... is situated is within Pearl River's
Moreover, plaintiffs suggest, the parties
genuinely dispute material facts respecting garde that preclude
summary judgment; in particular, the plaintiffs submit that the
Town failed to add lights to the bridge despite attracting people
to the area to boat.
But there are no facts in dispute that, if
resolved in the plaintiffs' favor, would permit a finding that the
Town had garde over the bridge.
The Court finds no genuine dispute as to any material issues
of fact as to whether the Town had garde over the bridge.
plaintiffs do not contend that the Town owned the bridge or
obtained the permit to build the bridge many years ago. Therefore,
the plaintiffs must prove that the Town exercised direction and
control over the bridge, and that it derived substantial benefit
from it, in order to rebut the presumption that the owner of the
bridge maintained garde of it.
The plaintiffs have failed to do
so. Their evidence respecting direction and control is specific to
the land adjacent to the bridge -- not to the object of injury, the
Mr. Lee was not injured by sitting on a defective
park bench, traversing an unlit parking lot, or tripping in tall
grass in the area adjacent to the bridge.
He was injured, during
a nighttime pleasure boat outing, when his head struck the bridge.
Accordingly, although the summary judgment record definitively
-- at the very most -- that the Town has custody,
direction, and control over the land adjacent to the bridge, the
plaintiffs' attempt to bootstrap custody of a park and boat launch
adjacent to a bridge to custody over the bridge itself must fail.
Cf. Baker v. Murphy Oil USA, Inc., 816 So. 2d 329, 333 (La. App. 4
Cir. 2002)("As a general principle 'a landowner is not usually held
The plaintiffs have not shown that the Town has
direction and control over the bridge, the object that actually
caused Mr. Lee's injury. Because the Town does not have custody or
garde of the bridge, it did not have a legal duty to prevent its
allegedly hazardous, unlit condition from harming Mr. Lee.
Town's motion for summary judgment is granted.
PRBL seeks dismissal of the plaintiffs' claims against it
based on plaintiffs' well-chronicled, bordering on contempt of
court, failures to comply with this Court's discovery orders, or on
the ground that plaintiffs have failed to diligently prosecute
The plaintiffs counter that, at most, lesser
personally are not at fault for the delays and PRBL has not been
Pursuant to Federal Rule of Civil Procedure 37, the Court may
impose sanctions, including dismissal of lawsuit in whole or in
part, for a party's failure to cooperate in discovery, failure to
comply with a Court order, or failure to attend its own deposition.
Relatedly, Federal Rule of Civil Procedure 41(b) allows the Court
to dismiss with prejudice a lawsuit "[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order."
Fifth Circuit has "consistently recognized ... that dismissal with
prejudice 'is an extreme sanction that deprives a litigant of the
opportunity to pursue his claim.'"
See Callip v. Harris County
Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985)(citation
Dismissal with prejudice is appropriate when (1) there
plaintiffs, and (2) the district court has expressly determined
that lesser sanctions would not prompt diligent prosecution, or the
record shows that the district court employed lesser sanctions that
proved to be futile.
Alternatives to dismissal include
the "[a]ssessment of fines, costs, or damages against the plaintiff
With respect to dismissing a case as a sanction for
violating a discovery order, the Fifth Circuit instructs that:
[S]everal factors ... must be present before a
district court may dismiss a case with
prejudice as a sanction for violating a
discovery order: (1) "the refusal to comply
results from willfulness or bad faith and is
accompanied by a clear record of delay or
contumacious conduct;" (2) the violation of
the discovery order must be attributable to
the client instead of the attorney, (3) the
substantially prejudice the opposing party;"
and (4) a less drastic sanction would not
substantially achieve the desired deterrent
Moore v. Citgo Refining and Chemicals Co., L.P., 735 F.3d 309, 316
(5th Cir. 2013)(quoting Doe v. Am. Airlines, 283 Fed.Appx. 289, 291
(5th Cir. 2008)(per curiam)).
dismissal, dismissal without prejudice, and explicit warnings."
dismissals with prejudice involve one or more of these "aggravating
factors": "(1) delay attributable directly to the plaintiff, rather
than his attorney; (2) actual prejudice to the defendant; and (3)
delay caused by intentional conduct."
Id. at 1519.
As of the filing of PRBL's motion to dismiss,
plaintiffs still had not produced written discovery responses
(despite being moderately sanctioned for not doing so by the
magistrate judge) and plaintiffs still had not appeared for their
Lesser sanctions, PRBL submits, did not prompt
discovery orders, PRBL insists, notwithstanding the fact that
Magistrate Judge Roby imposed monetary sanctions for discovery
abuses and this Court's prior warnings that dilatory conduct would
be met with dismissal of their case.
interrogatories, and that plaintiffs have been deposed.
not dispute this, but continues to insist that dismissal is an
appropriate sanction because it has been prejudiced by plaintiffs'
pattern of delay. But "the sanction of dismissal with prejudice is
reserved for 'the most egregious circumstances.'" Callip, 757 F.2d
The record patently establishes the plaintiffs' chronic
failure to timely comply with discovery requests and other dilatory
conduct. The plaintiffs now whimper that they have since complied,
particularly convincing, the Court's warnings have perhaps finally
Moreover, absent from the record is any
aggravating factor such as actual prejudice to PRBL,4 or delay
attributable either directly to the plaintiffs or to bad faith by
prejudice is not yet warranted.
Finally, the Court considers the parties' requests to extend
plaintiffs' motion for an extension to provide expert reports is
Likewise, PRBL's motion to strike plaintiffs' expert
witnesses is DENIED, and its motion to extend its deadline to
provide expert reports is GRANTED.
Assuming the parties cannot
agree on extensions, the plaintiffs' expert reports (if still
It seems that any prejudice can be cured by extending
deadlines for PRBL. If PRBL requests the plaintiffs' consent to
extending any deadlines PRBL needs extended, the Court expects
plaintiffs' cooperation. If plaintiffs refuse to cooperate, PRBL
can seek relief from the Court.
The Court will not tolerate
another example of delay and will seriously consider dismissal with
prejudice. Last warning. Moreover, the Court will also consider
a request to sanction counsel under 28 U.S.C. § 1927.
outstanding) must be delivered to counsel for defendant not later
than June 11, 2014, and counsel for defendant must deliver its
expert reports not later than July 11, 2014.
Accordingly, The Town of Pearl River's motion for summary
judgment is GRANTED and its motion to extend its deadline to submit
expert reports is DENIED as moot; PRBL's motion to dismiss is
DENIED; the plaintiffs' motion for extension of time to provide
expert reports is GRANTED; PRBL's request to strike plaintiffs'
expert witnesses is DENIED, and its motion to extend its deadline
to provide expert reports is GRANTED.
New Orleans, Louisiana, June 4, 2014
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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