Crutchfield et al v. Sewerage & Water Board of New Orleans et al

Filing 307

ORDER AND REASONS denying without prejudice 235 Motion for Partial Summary Judgment. Signed by Judge Helen G. Berrigan on 03/04/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RONDA CRUTCHFIELD, ET AL

CIVIL ACTION NO. 13-cv-4801

VERSUS

SECTION “C”

SEWERAGE & WATER BOARD OF
NEW ORLEANS, ET AL

HON. HELEN BERRIGAN

Order and Reasons
Before the Court is plaintiffs’ Motion for Partial Summary Judgment. Rec. Doc. 235.
Defendants, Sewerage and Water Board of New Orleans (“SWB”), Bhate Geosciences
Corporation (“Bhate”), Liberty Mutual Fire Insurance Company (“Liberty”) and Hill Brothers
Construction Company, Inc. (“Hill Bros.”) oppose the motion. For the reasons discussed herein,
the Court DENIES WITHOUT PREJUDICE plaintiffs’ Motion.

I.

Factual background
The plaintiffs bring this proposed class action lawsuit alleging that defendants’

construction of the Dwyer Road Intake Canal inflicted damage to plaintiffs’ and proposed class
members’ property in the surrounding area. Rec. Doc. 1-2. The Dwyer Road Intake Canal is a
federally funded project administered by the United States Army Corps of Engineers

(“USACE”). Rec. Doc. 1 at 2. This case was originally filed in Orleans Civil District Court. Rec.
Doc. 1-2. It was removed pursuant 28 U.S.C. §1442(a)(1) because Hill Bros. claims it is a
government contractor immune from suit. Rec. Doc. 1 at 3. Since April 1, 2014, the parties have
engaged in discovery limited to class certification issues. Rec. Doc. 66. On January 16, 2015
plaintiffs filed a renewed motion to certify class action. Rec. Doc. 277. Plaintiffs now move for
partial summary judgment, arguing that Hill Bros.’ claim of government contractor immunity
should be dismissed. Rec. Doc. 235.

II.

Standard of review
Summary judgment is proper when the record indicates that there is not a “genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56. A genuine issue of fact exists if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1996).
A party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of ‘[discovery], together
with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d
265 (1986). Once the initial burden is met, the nonmoving party must “designate specific facts
showing there is a genuine issue for trial” using evidence cognizable under Rule 56. Id. at 324,
106 S. Ct. at 2253. “[U]nsubstantiated assertions” and “conclusory allegations” will not defeat a
properly supported motion for summary judgment. Hopper v. Frank, 16 F.3d 92, 97 (5th Cir.
1994); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 3188, 111 L. Ed. 2d

695 (1990). “If the evidence is merely colorable, or is not significantly probative,” summary
judgment is appropriate. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511 (internal citations
omitted). “Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248, 106 S. Ct. at 2510.
When reviewing a motion for summary judgment, a court must view the evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Daniels v. City
of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001). Summary judgment does not allow a
court to resolve credibility issues or weigh evidence. Int’l Shortstop, Inc. v. Rally’s, Inc., 939
F.2d 1257, 1263 (5th Cir. 1991).

III.

Law and Analysis
Hill Bros. states an affirmative defense that it is immune from liability on the basis of the

“government contractor defense.” Boyle v. United Technologies Corp., 47 U.S. 500 (1988);
Hercules v. U.S., 516 U.S. 417 (1996). Rec. Doc. 267 at 28. Plaintiff, in its motion for partial
summary judgment, argues that Hill Bros. lacks evidence required to establish that it is entitled
to this defense, and that the defense should be stricken. Rec. Doc. 235-1 at 1. Plaintiff claims that
in order to assert the government contractor defense, Hill Bros. must establish that it fully
complied with the Army Corps of Engineers’ (“Corps”) specifications, but that Hill Bros.
violated these specifications on numerous occasions. Id. at 3-4.
In response, SWB, Hill Bros., and Bhate put forth substantially similar arguments. They
argue that the motion is premature because the lawsuit is still in the pre-certification stage, and
that discovery on these issues has not been completed. Rec. Doc. 254 at 1. Defendants also argue
that the motion relies on hearsay and incompetent evidence. Id. Finally, defendants argue that

they are not required to show total compliance with the Corps’ specifications, but rather need
only show that the Corps supervised and controlled the implementation of the specifications and
accepted the final product. Rec. Doc. 290 at 12.
The Court will first discuss whether the motion is ripe for adjudication. As previously
noted, since April 1, 2014, the parties have engaged in discovery limited to class certification
issues. Rec. Doc. 66. In his order establishing a precertification plan, Magistrate Judge Michael
North ordered that the parties submit briefing on Hill Bros.’ immunity defense, whether the
defense should be addressed in advance of a decision on class certification, and whether the
precertification plan should include matters necessary to adjudicate the defense. Id. at 10-11. The
parties subsequently submitted briefing on this issue on April 30, 2014. Rec. Docs. 94, 95, 96.
On July 1, Judge North issued an amended precertification discovery plan. Rec. Doc. 180.
Notably, Judge North did not allow for discovery on the Hill Bros.’ immunity defense or
otherwise rule on the issue of immunity. As a result, no discovery has been conducted on the
issue of government contractor immunity—the subject of the instant motion.
The lack of discovery on this issue is highlighted by the significant gaps in plaintiffs’
evidentiary support for this motion. As SWB points out, plaintiffs have not provided the Court
with the contract that explicitly sets forth specifications approved by the Corps. Rec. Doc. 254 at
4. They have also provided incomplete copies of the Corps’ Scope of Work. The portion that
plaintiffs attached merely requires the contractor to record and document vibrations exceeding
0.25 inches per second and notify the Government Resident Inspector of vibrations above that
level. Rec. Doc. 235-3 at 1. It does not state that vibrations exceeding 0.25 inches per second
constitute a violation of the specifications. Plaintiffs also provide an excerpt from a Hill Bros.
contract that states similar requirements, but the excerpt does not establish if these are

specifications imposed by the Corps. Rec. Doc. 235-1. Thus, contested issues of fact remain as to
what the Corps’ precise specifications regarding dewatering and vibration levels were and
whether vibrations exceeding 0.25 inches per second actually constituted a violation of these
specifications. Plaintiffs’ reliance on incomplete documentation and hearsay supports that
adjudication of this issue should be postponed until the parties have conducted further discovery.
Accordingly, IT IS ORDERED that plaintiffs’ motion is DENIED WITHOUT
PREJUDICE.
New Orleans, Louisiana this 4th day of March, 2015.

_________________________________
U.S. DISTRICT COURT JUDGE
HELEN G. BERRIGAN