Lovell v. Quality Energy Services, Inc.
ORDER & REASONS: granting 38 Motion for Summary Judgment; FURTHER ORDERED that Plaintiff's complaint in this matter is hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 8/14/14. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
QUALITY ENERGY SERVICES, INC.
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
38) filed by Defendant, Quality Energy Services, Inc. ("QES"), as
well as an Opposition (Rec. Doc.
47) by Plaintiff Justice Lovell
("Plaintiff") and QES's Reply (Rec. Doc. 55). Having considered the
motion, the parties’ submissions, the record, and the applicable
law, the Court finds, for the reasons expressed below, that the
motions should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
At all pertinent times, Plaintiff was employed as a wireline
assistant by QES. On August 9, 2012, Plaintiff was working for QES
on a platform owned by Dynamic Offshore Resources, L.L.C., which is
not a party to this suit. Plaintiff alleges that on the date of the
accident, he was positioned on the platform and was in the process
of opening a well when his right leg fell through a piece of
plastic grating that was not properly secured. Plaintiff was
crutches, physical therapy, and injections. Plaintiff alleges that
he continued to experience persistent pain over the next seven (7)
months, at which time an orthopaedic surgeon diagnosed Plaintiff
with osteochondritis dissecans, at which point Plaintiff underwent
Plaintiff filed his Seaman Complaint (Rec. Doc. 1) against QES
on April 18, 2013, seeking maintenance and cure, as well as
punitive damages . On July 29, 2014, QES filed the instant Motion
for Summary Judgment (Rec. Doc. 38), arguing that Plaintiff is not
a seaman and that summary judgment should therefore be entered
against Plaintiff in this case.
QES argues that Plaintiff is not a seaman for two main
(1) Plaintiff cannot establish a connection to a vessel or
identifiable fleet of vessels that was substantial in terms of both
duration and nature; and
(2) Even if Plaintiff could establish a substantial connection
to a fleet of vessels, Plaintiff has failed to meet the Fifth
Circuit's threshold requirement that Plaintiff spend at least
thirty percent (30%) of his time in service of a vessel or fleet of
A. No Substantial Connection
QES argues that Plaintiff worked almost entirely on platforms,
which are not considered vessels, and that any work that Plaintiff
performed on jack-up rigs was done on various jack-ups that were
constitute a fleet. Plaintiff argues: "There is no evidence in the
record to support [QES's] argument that the various jack-up rigs
that he worked on are not under the ownership or control of the
same entity, other than the self-serving Affidavit of a [QES]
employee." (Rec. Doc. 47, p. 6). Plaintiff alleges that QES failed
to answer discovery directed toward the ownership of the various
jack-up rigs and requests that the Court grant Plaintiff additional
time to determine the ownership of the jack-up rigs to determine
whether they are owned by a common entity and thus whether they
could qualify as a fleet. QES contends that no further discovery is
necessary in this case because even construing all facts in the
light most favorable to Plaintiff, there is no genuine issue of
material fact as to whether Plaintiff is a seaman.
B. Thirty Percent Rule
QES also argues that even assuming, arguendo, that Plaintiff
had a substantial connection to a fleet of vessels, Plaintiff has
admitted that he spent, at most, eighteen percent (18%) of his
total work time on jack-up rigs, which fails to meet the Fifth
Circuit's thirty percent (30%) threshold requirement. Plaintiff
argues that the thirty percent rule is not a bright-line rule and
that the Court would be justified in departing from that thirty
percent guideline in this case. Plaintiff claims that he can likely
show that he spent "at least 28% of his time on vessels" and that
the correct figure is "closer to 30%" than the eighteen percent
(18%) that QES has calculated. (Rec. Doc. 47, p. 7-8).
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56©);
Little v. Liquid Air Corp., 37 F.2d 1069, 1075 (5th Cir. 1994).
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."
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008). The Court will examine the evidence in
the light most favorable to the nonmoving party. Naquin v. Fluor
Daniel Servs. Corp., 935 F. Supp. 847, 848 (E.D. La. 1996) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). While
all reasonable inferences are drawn in favor of the nonmoving
party, a party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little, 37 F.2d at 1075.
A Court ultimately must be satisfied that "a reasonable jury could
not return a verdict for the nonmoving party." Delta, 530 F.3d at
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would 'entitle it to a directed verdict
if the evidence went uncontroverted at trial.'" Int'l Shortstop,
Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
"showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
A. No Substantial Connection
To overcome summary judgment, the burden of proof is on
Plaintiff to submit sufficient evidence of a connection to a vessel
or identifiable fleet of vessels that was substantial in terms of
both duration and nature. See Roberts v. Cardinal Servs., Inc., 266
submissions, the Court finds that Plaintiff has failed to produce
evidence sufficient to show a genuine issue of material fact as to
the common ownership or control of any of the jack-up rigs. The
Court agrees with QES that additional discovery on that issue is
not warranted because even if Plaintiff were able to establish a
substantial connection to a fleet of vessels, Plaintiff would still
not be entitled to seaman status, as discussed below.
B. Thirty Percent Rule
The thirty percent rule of thumb is set forth in the Chandris
Generally, the Fifth Circuit seems to have identified an
appropriate rule of thumb for the ordinary case: A worker
who spends less than about 30 percent of his time in the
service of a vessel in navigation should not qualify as
a seaman under the Jones Act. This figure of course
serves as no more than a guideline established by years
of experience, and departure from it will certainly be
justified in appropriate cases. As we have said, “[t]he
inquiry into seaman status is of necessity fact specific;
it will depend on the nature of the vessel and the
employee's precise relation to it.” Wilander, 498 U.S.,
at 356, 111 S.Ct., at 818. Nevertheless, we believe that
courts, employers, and maritime workers can all benefit
from reference to these general principles. And where
undisputed facts reveal that a maritime worker has a
clearly inadequate temporal connection to vessels in
navigation, the court may take the question from the jury
by granting summary judgment or a directed verdict. See,
e.g., Palmer, 930 F.2d, at 439.
Chandris, Inc. v. Latsis, 515 U.S. 347, 371 (1995).
In the instant case, Plaintiff admits that at the very
maximum, he spent only twenty-eight percent (28%) of his time in
the service of a vessel in navigation. The Court finds that even if
Plaintiff had submitted sufficient evidence to show a substantial
connection to a fleet of vessels, no deviation from the thirty
percent rule is warranted in this case because Plaintiff is the
type of worker who has only a "transitory or sporadic connection to
a vessel in navigation" and therefore is not the type of worker who
considered a seaman. See Chandris, 515 U.S. at 368.1
The Court therefore finds that QES's motion should be granted
and that Plaintiff's claims for maintenance and cure and punitive
damages should be dismissed with prejudice.2
According to the Chandris Court:
The fundamental purpose of this substantial connection requirement
is to give full effect to the remedial scheme created by Congress
and to separate the sea-based maritime employees who are entitled to
Jones Act protection from those land-based workers who have only a
transitory or sporadic connection to a vessel in navigation, and
therefore whose employment does not regularly expose them to the
perils of the sea.
Chandris, Inc. v. Latsis, 515 U.S. at 368.
Plaintiff admits that he has no viable claim for unseaworthiness and has
clarified that he never intended to make such a claim in his complaint. (Rec.
Doc. 47, p. 3). Therefore, the Court need not address any potential claim for
IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Rec. Doc. 38) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's complaint in the abovecaptioned matter is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 14th day of August, 2014.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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