Grand Isle Shipyards, Inc. v. Black Elk Offshore Operations, L.L.C. et al

Filing 195

ORDER denying 122 Motion for Partial Summary Judgment. Signed by Chief Judge Nannette Jolivette Brown on July 22, 2019. (Reference: 15-129)(mp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GRAND ISLE SHIPYARDS, INC.

CIVIL ACTION

VERSUS

CASE NO. 15-129

BLACK ELK ENERGY OFFSHORE
OPERATIONS, LLC

SECTION: “G” (5)

ORDER AND REASONS
Before the Court is the Trustee of the Black Elk Liquidating Trust, Richard Schmidt’s
(hereinafter “BEEOO”),1 “Motion for Partial Summary Judgment.”2 In this litigation, Plaintiff
Grand Isle Shipyards, Inc. (“GIS”) claims that Defendant BEEOO failed to pay GIS for goods and
services connected to BEEOO’s oil operations.3 BEEOO filed the instant motion for partial
summary judgment, arguing that the workers from D&R Resources, LLC that GIS used for its
services on BEEOO’s platform were borrowed employees of GIS.4 In opposition, GIS argues that
the issue of borrowed employees is not relevant to BEEOO’s breach of contract claim and the
Court has already ruled against this finding in prior litigation.5 Having considered the motion, the
memoranda in support and opposition, the record, and the applicable law, the Court will deny the
motion.

1

Though Richard Schmidt is the active Defendant in the case as the trustee of the Black Elk Liquidating Trust, the
Court refers to Defendant as Black Elk Energy Offshore Operations, LLC (“BEEOO”) for continuity between the
briefings in the record.
2

Rec. Doc. 122.

3

Rec. Doc. 1-1 at 2.

4

Rec. Doc. 122-1 at 1.

5

Rec. Doc. 127.

1

I. Background
A.

Factual Background
In the second amended complaint, GIS alleges that BEEOO breached the terms of the

parties’ agreement by failing to pay for services rendered. 6 GIS asserts that BEEOO contracted
with GIS for GIS to provide goods and services in support of BEEOO’s oil operations, but GIS
contends that it never received payment for the services.7 GIS avers that BEEOO is liable for
breach of contract, bad faith breach of contract, and detrimental reliance.8 GIS also seeks relief
through quantum meruit, a well lien act claim under the Louisiana Oil Well Lien Act (“LOWLA”)
and a request for a writ of sequestration and judgment on BEEOO’s property.9
B.

Procedural Background
On December 5, 2014, GIS filed a petition against BEEOO in the 17th Judicial District

Court for the Parish of Lafourche, State of Louisiana.10 GIS asserted a claim under the Oil Well
Lien Act.11 On January 21, 2015, BEEOO removed the case to this Court, asserting diversity
jurisdiction.12 On March 17, 2015, BEEOO answered the petition and asserted a counterclaim
against GIS.13 In the counterclaim, BEEOO alleged that GIS engaged in fraud, breach of contract,
breach of warranty, and negligence surrounding GIS’ work on BEEOO’s oil platform West Delta
32 (“West Delta 32”).14 On March 23, 2015, GIS amended the complaint to add claims for breach

6

Rec. Doc. 20 at 2–3.

7

Id. at 3.

8

Id. at 4–5.

9

Id. at 3–4.

10

Rec. Doc. 1-1.

11

Id.

12

Rec. Doc. 1.

13

Rec. Doc. 14.

14

Id.

2

of contract, bad faith breach of contract, detrimental reliance, and quantum meruit.15 On June 3,
2015, GIS filed a second amended complaint, removing several of the properties for which it
alleged claims.16
On August 11, 2015, certain creditors of BEEOO filed an involuntary petition for relief
under Title 11 of the United States Code against BEEOO in the United States Bankruptcy Court
for the Southern District of Texas.17 On August 19, 2015, this Court issued an order staying and
administratively closing the case in light of the automatic bankruptcy stay.18 On July 13, 2016, the
bankruptcy court issued an order confirming the liquidation plan regarding BEEOO and appointing
Richard Schmidt as the liquidation trustee.19 On May 10, 2018, this Court reopened the case and
substituted Trustee Richard Schmidt in the place of BEEOO.20
At a December 19, 2018 oral argument on GIS’ motion to dismiss, BEEOO admitted that
its fraud and negligence claims were prescribed under Louisiana law.21 Accordingly, on December
26, 2018, the Court dismissed BEEOO’s fraud and negligence claims.22 On May 21, 2019, BEEOO
filed the instant motion for partial summary judgment.23 On May 28, 2019, GIS filed an

15

Rec. Doc. 16.

16

Rec. Doc. 20.

17

See Rec. Doc. 29-2.

18

Rec. Doc. 32.

19

Rec. Doc. 34-1 at 23–24, 26–27.

20

Rec. Doc. 42. Though Richard Schmidt is the active Defendant in the case, the Court refers to Defendant as
BEEOO for continuity between the briefings.
21

Rec. Doc. 70 at 1.

22

Id. at 1–2.

23

Rec. Doc. 122.

3

opposition.24 With leave of Court, BEEOO filed a reply in further support of the motion on June
4, 2019.25
II. Parties’ Arguments
A.

BEEOO’s Arguments in Support of the Motion for Partial Summary Judgment
BEEOO requests that the Court rule that the D&R Resources, LLC (“D&R”) workers used

by GIS on the West Delta 32 can be legally classified as borrowed employees of GIS.26 BEEOO
begins by contending that during litigation in Tajonera v. Black Elk Energy Offshore Operations,
LLC,27 GIS submitted a motion arguing that the workers GIS obtained from D&R were borrowed
employees.28 BEEOO alleges that GIS listed multiple factual allegations in support of its argument
that the D&R workers were borrowed employees of GIS.29 BEEOO avers that it does not dispute
the facts that GIS pled in the Tajonera litigation regarding the D&R workers, and BEEOO now
asserts that applying the Fifth Circuit’s borrowed employee test in Ruiz v. Shell Oil Co.,30 to these
undisputed facts, the nine factors weigh in favor of a finding that the D&R workers were borrowed
employees.31
BEEOO contends that under Ruiz, “[t]he factor of control is perhaps the most universally
accepted standard for establishing an employer-employee relationship.”32 BEEOO insists that the

D&R workers were under the control of GIS because they took orders from GIS’ personnel,

24

Rec. Doc. 127.

25

Rec. Doc. 136.

26

Rec. Doc. 122-1 at 1.

27

Civil Action No. 13-366.

28

Rec. Doc. 122-1 at 1–2.

29

Id. at 2.

30

413 F.2d 310, 312-13 (5th Cir. 1969).

31

Id.

32

Id. at 4 (quoting Perron v. Bell Maint. and Fabricators, Inc., 970 F.2d 1409, 1412 (5th Cir. 1992)).

4

including GIS’ supervisor Curtis Dantin, and D&R did not supervise the day-to-day activities of
the D&R workers.33 Next, though the contractual agreement between D&R and GIS states that the
D&R workers were independent contractors, in Melancon v. Amoco Prod. Co.,34 the Fifth Circuit
held that the course of conduct controls.35 Based on this, BEEOO asserts that it is uncontested that
the D&R workers were doing the work of GIS, and this course of conduct establishes that D&R
and GIS understood that the D&R workers were borrowed employees.36 BEEOO contends that
day-to-day control of GIS over the D&R workers established that “D&R terminated its relationship
with the employees.”37
Regarding the factor of whether the D&R workers acquiesced in the new work situation,
BEEOO states that the D&R workers did not have a prior work arrangement because they traveled
directly from the Philippines, and there is no evidence that did not consent to the arrangement with
GIS.38 In support of the factor of who furnished the tools for performance, BEEOO argues that
even if the D&R workers supplied coveralls and small tools that they used for work, GIS provided
the other tools, food, and lodging, and this is sufficient under Fifth Circuit case law.39 On the factor
of length of employment, BEEOO contends that the Court previously found this factor was neutral
because the D&R workers only worked on the West Delta 32 for one week prior to the incident.40

33

Id. at 5.

34

834 F.2d 1238, 1244 (5th Cir. 1988).

35

Rec. Doc. 122-1 at 6.

36

Id.

37

Id. at 7.

38

Id..

39

Id. at 8.

40

Id.

5

BEEOO alleges, however, that the parties “agree that the D&R workers’ employment for GIS was
for a much longer time period.”41
On the factor of who had the right to terminate the employee, BEEOO proffers that “the
Court must determine whether the borrowing employer had the right to terminate its relationship
with the borrowed employee.”42 BEEOO claims that “it is clear” that GIS could remove a D&R
worker from the job if GIS was unsatisfied with the work.43 Likewise, regarding who had the
obligation to pay the employee, BEEOO asserts that regardless of D&R’s role in disbursing payroll
funds to the workers, GIS was responsible for determining the number of hours each D&R
employee worked, the number of overtime hours allowed, and the ultimate payment on these
hours.44 Taking the nine factors together, BEEOO argues that they weigh in favor of borrowed
employee status.

45

Accordingly, BEEOO urges the Court to rule that the D&R workers used by

GIS on the West Delta 32 were borrowed employees of GIS.46
B.

GIS’ Arguments in Opposition to the Motion for Partial Summary Judgment
In opposition, GIS argues that the Court should deny the motion because the issue of

whether the D&R workers were GIS’ borrowed employees is irrelevant to BEEOO recovering on
its breach of contract claim.47 GIS contends that vicarious liability is only relevant to tort claims,
but BEEOO’s tort claims were already dismissed by the Court as prescribed.48 GIS asserts that

41

Id.

42

Id. at 8–9.

43

Id. at 9.

44

Id.

45

Id.

46

Id. at 9.

47

Rec. Doc. 127 at 1.

48

Id. at 3.

6

BEEOO conflates tort and contract claims, and in Babin v. Quality Energy Services,49 the Fifth
Circuit cautioned courts that they “must scrutinize tort claims masquerading as contract claims,
especially where a litigant seeks to avoid prescription.”50 GIS avers that Babin applies here and
the Court should not rule on an issue that is not part of BEEOO’s contract claim. 51 Nevertheless,
GIS argues that even if the D&R workers were borrowed employees of GIS, “D&R can still be
responsible for the fault of its employees.”52
GIS also argues that, as BEEOO notes, the Court already considered the issue of borrowed
employee status as part of GIS’ motion for summary judgment in the Tajonera case.53 GIS alleges
that in opposition to that motion, BEEOO argued that issues of fact existed regarding the issue of
borrowed employee status.54 According to GIS, the Court reviewed the evidence and found that,
as BEEOO and other parties argued, there were disputed issues of material fact on factors 1, 3, 5,
8, and 9 of the Ruiz factors.55 GIS avers that BEEOO has now changed its position and wants to
argue that there are no disputed issues of fact on the Ruiz factors.56 However, GIS asserts that
“BEEOO offers no additional evidence in connection with its prior denials, other than for its
convenience it has now changed its position. BEEOO offers nothing new in what is really a request

49

877 F.3d 621 (5th Cir. 2017).

50

Rec. Doc. 127 at 3 (citing Babin, 877 F.3d at 625).

51

Id.

52

Id. at 4 (citing Washington v. Fieldwood Energy, LLC, 2018 U.S. Dist. LEXIS 63, *11-12, E.D. La. 2018).

53

Id. at 2.

54

Id.

55

Id. at 2.

56

Id. at 3.

7

for the Court to reconsider its previous denial of GIS’ Motion for Summary Judgment.”57
Therefore, GIS urges the Court to deny BEEOO’s motion for partial summary judgment.58
C.

BEEOO’s Arguments in Further Support of the Motion for Partial Summary Judgment
In reply, BEEOO urges the Court to grant the motion because the issue of borrowed

employee status is both “relevant and undisputed.”59 BEEOO insists that the issue of borrowed
employee status is part of proving vicarious liability of an employer, and vicarious liability is not
a concept that is limited to tort claims.60 BEEOO asserts that vicarious liability is relevant to its
breach of contract claim because GIS will blame D&R workers for any breach of contract, and
BEEOO believes that if the Court declares that GIS is vicariously liable for the D&R workers, this
asserted defense will fail.61 Ultimately, BEEOO desires to prove that GIS is liable for any acts of
its borrowed D&R workers that may have contributed to breach of contract.62
BEEOO also argues that the issue of borrowed employee status is undisputed in this case and
that is all that matters to the Court’s decision.63 BEEOO asserts that in the Tajonera litigation, it merely
filed a “me too” memo in opposition to GIS’ motion for summary judgment, and BEEOO did not offer
any facts or legal arguments of its own in opposition to GIS’ borrowed servant’s argument.64 BEEOO
also alleges that it filed its opposition before it had completed discovery, and by the end of discovery,
it no longer had any facts to contest GIS’ assertion that the D&R workers were borrowed employees.65

57

Id.

58

Id. at 1.

59

Rec. Doc. 136 at 1.

60

Id. at 2.

61

Id.

62

Id.

63

Id. at 1–2.

64

Id. at 3.

65

Id.

8

BEEOO now highlights that “there are no longer any parties in [this case] who contend that the D&R
workers were not the borrowed servants of GIS,” and GIS has not presented any facts in its opposition
that dispute this issue.66 For these reasons, BEEOO requests that the Court rule that the D&R workers

used by GIS on the West Delta 32 were borrowed employees.67
III. Legal Standard
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.”68 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.”69 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.”70
If the record, as 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.71 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.72

66

Id. at 1 n.1.

67

Id. at 4.

68

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).
69

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

70

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

71

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

72

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

9

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. 73 “To satisfy this burden, the movant
may either (1) submit evidentiary documents that negate the existence of some material element
of the opponent’s claim or defense, or (2) if the crucial issue is one on which the opponent will
bear the ultimate burden of proof at trial, demonstrate that the evidence in the record insufficiently
supports an essential element of the opponent’s claim or defense.”74 If the moving party satisfies
its initial burden, the burden shifts to the nonmoving party to “identify specific evidence in the
record, and articulate” precisely how that evidence supports his claims.75 In doing so, the
nonmoving party may not rest upon mere allegations or denials in its pleadings, but rather must
set forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.”76
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.” 77 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

73

Celotex, 477 U.S. at 323.

74

Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (citing Little v. Liquid Air Corp., 939 F.2d 1293,
1299 (5th Cir. 1991)).
75

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
76

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992); see also Bellard v. Gautreaux,
675 F.3d 454, 460 (5th Cir. 2012).
77

Little, 37 F.3d at 1075.

10

documents that cannot be presented in a form that would be admissible in evidence at trial do not
qualify as competent opposing evidence.78
IV. Analysis
BEEOO urges the Court to rule that the D&R workers were GIS’ borrowed employees.79
GIS argues that the Court should deny the motion because the issue is irrelevant to BEEOO
recovering on its breach of contract claim.80 BEEOO, however, insists that the issue of borrowed
employee status is relevant because it “anticipates that as part of GIS’ defense, it will be blaming
other parties for the damages sustained by Black Elk.”81 BEEOO likens the issue of borrowed
employee status in this litigation to the issue that arose in the Tajonera litigation.82
However, the Court finds that unlike in the Tajonera litigation, the issue of borrowed
employee status is not properly before the Court in this matter. In the Tajonera litigation, GIS
specifically raised the defense of borrowed employee status in its answers to several of the
negligence claims filed in that litigation.83 Additionally, in Tajonera, GIS filed a motion for
summary judgment specifically requesting that the Court rule upon its asserted defense of
borrowed employee status.84 Conversely, in this litigation, the record does not reflect that GIS has
asserted a borrowed employee defense in any of the pleadings or briefings.85 Under Louisiana law,
tort immunity under the borrowed employee doctrine is an affirmative defense that must be

78

Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

79

Rec. Doc. 122-1 at 1.

80

Rec. Doc. 127 at 1.

81

Rec. Doc. 136 at 2.

82

Id. at 3–4.

83

See, e.g., Civil Action No. 13-366, Rec. Docs. 300, 301, 308.

84

Civil Action No. 13-366, Rec. Doc. 394.

85

See, e.g., Rec. Docs. 14, 20.

11

pleaded and proven by the party asserting the defense.86 There is no longer a pending negligence
claim against GIS, and GIS is directly asserting that it does not consider the issue of borrowed
employee status to be relevant to the claims that remain in the litigation—breach of contract and
breach of warranty.87 Therefore, it appears that in this matter, GIS is neither asserting the defense
of borrowed employee status nor espousing the argument that such a defense will be applicable to
BEEOO’s breach of contract claims.
Despite these assertions by GIS, BEEOO insists that as part of GIS’ defense, GIS may
attempt to blame other parties, such as the GIS workers, for the alleged breach of contract.88
Therefore, BEEOO urges the Court to decide the issue in advance of trial because doing so would
preempt GIS’ ability to place liability on the D&R workers. The Court declines BEEOO’s request
for several reasons. First, BEEOO is engaging in guess work when it “anticipates” that GIS may
raise an argument that the D&R workers’ status precludes a finding of breach of contract. GIS
directly contends that the issue of borrowed employee status is not at issue in the current litigation,
and BEEOO’s anticipation does not actually place the issue before the Court. Where an issue is
not raised, federal courts do not render advisory opinions.89 If the issue of borrowed employee
status is actually raised as a defense by GIS, the Court may address the matter at that time.90
Second, BEEOO does not cite any case law for its assertion that the borrowed employee
defense, as analyzed under Ruiz, is applicable in this litigation. The issue of borrowed employee

86

Billeaud v. Poledore, 603 So. 2d 754, 755 (La. App. 5 Cir. 1992) (citing Brumbaugh v. Marathon Oil Co., 507
So.2d 872, 874–75 (La. App. 5 Cir.), writ denied, 508 So. 2d 824 (La. 1987)).
87

Rec. Doc. 127 at 1–2.

88

Rec. Doc. 141 at 2.

“[A] federal court has neither the power to render advisory opinions nor “to decide questions that cannot affect the
rights of litigants in the case before them.” John Doe #1 v. Veneman, 380 F.3d 807, 814 (5th Cir. 2004) (Preiser v.
Newkirk, 422 U.S. 395, 401 (1975)).
89

90

The Court does not herein address whether a borrowed employee defense will be timely if raised at a later point in
the litigation.

12

status was applicable in the Tajonera litigation in the context of claims that were rooted in GIS’
negligence. Here, BEEOO’s negligence claim has prescribed and it is unclear that GIS will be able
to utilize the borrowed employee defense in response to a breach of contract claim. Therefore, in
addition to the lack of an actual issue before the Court, the Court will not engage in analysis that
may be inapplicable to the facts at hand.
V. Conclusion
For the foregoing reasons, the Court finds that the issue of borrowed employee status is not
properly before the Court at this time, and the Court will not issue an advisory opinion.
Accordingly,
IT IS HEREBY ORDERED that Trustee Richard Schmidt’s “Motion for Partial
Summary Judgment.”91 is DENIED.

22nd
NEW ORLEANS, LOUISIANA, this _____ day of July, 2019.

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

91

Rec. Doc. 122.

13