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

Filing 318

ORDER AND REASONS: IT IS HEREBY ORDERED that 249 Motion for Partial Summary Judgment is DENIED. Signed by Judge Wendy B Vitter on 5/11/2020. (Reference: All Cases)(jeg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GRAND ISLE SHIPYARDS

CIVIL ACTION

VERSUS

NO. 15-129-WBV-MBN
C/W 15-154; 15-153;
15-905; 19-11825;
19-11826; 19-11827

BLACK ELK OFFSHORE OPERATIONS, LLC

SECTION D(5)

ORDER
Before the Court is Plaintiff Grand Isle Shipyards, Inc.’s Re-Urged Motion for
Partial Summary Judgment.1 The motion is fully briefed.2 After careful consideration
of the parties’ memoranda and the applicable law, the Court DENIES the re-urged
motion for partial summary judgment.3
I.

BACKGROUND

For the sake of judicial efficiency, the Court adopts the factual and procedural
background as stated in the July 22, 2019 Order, denying Plaintiff Grand Isle
Shipyards, Inc.’s (“GIS”) original motion for partial summary judgment. 4 On
November 4, 2019, GIS re-urged its motion, arguing against the Court’s finding that

R. Doc. 249.
R. Doc. 271 Response in Opposition; R. Doc. 316 Reply.
3 R. Doc. 249.
4 R. Doc. 194 Order Denying R. Doc. 125 Motion for Partial Summary Judgment.
1
2

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GIS did not present sufficient evidence to establish the essential elements of any of
its breach of contract claims.5 In that July 22, 2019 Order, the Court found that the
plaintiff had proven the existence of an oral contract but had not proven all of the
essential elements of its breach of contract claim for each individual work project:
Viewed in this manner, GIS provides scant evidence in support of its
motion that establishes the essential elements of any of its breach of
contract claims. There is no description of each of the separate work
projects, and no clear dates, project details, or invoice amounts attached
to each work project. GIS merely attaches to the motion hundreds of
pages of difficult-to-read documents that were filed in the bankruptcy
proceeding as part of GIS’ LOWLA claims in multiple, separate cases
that are not all before this Court. Further, GIS does not provide any
evidence in its motion that BEEOO approved any of the invoices that it
claims it submitted to BEEOO. Therefore, GIS has not presented
sufficient evidence to establish that BEEOO failed to perform the
obligation or the amount of resulting damages. Because GIS does not
establish beyond peradventure all of the essential elements of any
breach of contract claim, summary judgment must be denied.
R. Doc. 194, pp. 13-14 (internal citations omitted). GIS re-urges its motion for partial
summary judgment “to highlight the evidence demonstrating each of the elements of
GIS's breach of contract claim with respect to each individual invoice.”6 GIS submits
that 1,434 invoices remain unpaid, which have an aggregate balance of
$3,186,431.57.7 Of the 1,434 unpaid invoices, ten (10) allegedly include charges for
D&R Labor Resources, LLC (“D&R”) workers. These ten (10) invoices include
$48,725.12 in charges for D&R workers, along with $56,150.38 in charges for GIS
labor, Gulf South labor, and rentals.8 GIS states the total amount due on the D&R

R. Doc. 194, p. 13.
R. Doc. 249, pp. 1-2.
7 Id. at p. 4.
8 Id.
5
6

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invoices is $104,875.50.9 The total outstanding balance due on the 1,308 signed Non
D&R Invoices is $2,939,656.40.10 Additionally, GIS states that Defendant Black Elk
Offshore Operations, LLC (“BEEOO”) refused to sign work tickets associated with
116 of the allegedly undisputed invoices, despite ordering and accepting the goods
and services.11 The total outstanding balance on the unsigned Non-D&R Invoices is
$141,899.67.12
GIS submits that BEEOO does not object the amount that GIS billed BEEOO for
materials or GIS labor.13 GIS states that BEEOO’s sole objection to GIS’s claim is the
amount billed for D&R labor.14 GIS states that BEEOO’s 30(b)(6) deposition and the
testimony of the founder and former BEEOO CEO, John Hoffman, underscore the
lack of dispute over BEEOO’s liability for the unpaid invoices.15
In response, BEEOO argues that GIS fails to acknowledge the Court’s findings in
its July 22, 2019 Order and thus fails to cure or address the issues of law and fact
that BEEOO argues still preclude summary judgment on GIS’s breach of contract
claim.16 BEEOO submits that the only evidence GIS offers to support the requisite
evidence of the first element of a breach of contract claim, that BEEOO undertook an
obligation to GIS, is testimony of a witness for the party and sufficient corroborating

Id.
Id. at p. 5.
11 Id.
12 Id.
13 Id. at p. 6.
14 Id.
15 Id. at p. 7; R. Doc. 249-2, ¶¶ 35-37.
16 R. Doc. 271, p. 1.
9

10

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evidence.17 The defendant alleges that GIS lacks proof of oral contracts between
BEEOO and GIS for each of the invoices discussed in GIS’s motion for partial
summary judgment.18 Specifically, the Court, in its previous Order, analyzed the
evidence GIS presented and while finding that an oral contract existed for the work
GIS did on West Delta 32 (the platform that suffered an explosion on November 12,
2016), the Court explicitly found that GIS did not meet its burden of proving an oral
contract existed with respect to each of the more than $3 million in invoices GIS
claims are owed by BEEOO for work at other locations.19
BEEOO argues that rather than submit additional evidence or testimony to
establish a breach of oral contract for each of its invoices relating to work and
equipment on platforms and locations other than West Delta 32, GIS submits another
Affidavit from its Vice-President, Bryan Pregeant, and additional documents,
including alleged unpaid invoices. BEEOO argues that these documents do not
establish GIS’s allegation that “BEEOO expressly promise[d] to pay GIS for its
Services.”20 The defendant argues that, contrary to GIS’s claims, none of GIS’s
invoices are undisputed and none of GIS’s invoices have been approved by BEEOO.
In support of this, BEEOO cites the Declaration of BEEOO’s former Vice-President
of Operations, Cliff Joe Bruno, which BEEOO filed in opposition to the original
motion for partial summary judgment. In the Declaration, Cliff Joe Bruno “very

Id. at pp. 5-6, citing R. Doc. 194, p. 13.
R. Doc. 271, p. 6.
19 Id. at p. 4.
20 Id. at p. 7.
17
18

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clearly testified . . . that BEEOO has not approved payment of the GIS invoices
contained within GIS’s Proof of Claim in BEEOO’s Bankruptcy, which are the very
same invoices presented in this Motion.”21 BEEOO argues that the fact that Mr.
Bruno testified that GIS’s invoices were not approved, alone, establishes a material
issue of fact, defeating the re-urged motion.22
The defendant further disputes the allegations that GIS has put forth “undisputed
evidence” as to the breach of contract claims: “To be clear—no BEEOO representative
has ever testified that each time BEEOO sent a request for work to GIS constituted
an oral and written contract.”23 The defendant argues that the plaintiff submits to
the Court “evidence” that comprises summary representations and self-serving
testimony. Regarding the alleged 116 invoices that GIS claims BEEOO orally
approved and wrongfully refused to sign, the defendant rejoins that nothing in the
record suggests that there was anything wrongful in the refusal to sign. The
defendant offers the possibility that the refusals “could just as easily signal an
indication that the work or equipment included therein was not provided or not
satisfactory.”24
The defendant asserts that there are significant, disputed issues of material fact
concerning GIS’s entitlement to more than $3 million through the alleged unpaid
invoices and the issue of D&R’s status as a subcontractor in breach of the contracts

Id. at p. 7. “BEEOO has not approved payment of the GIS invoices contained within GIS's Proof of
Claim in BEEOO's Bankruptcy.” R. Doc. 133-1, ¶ 5.
22 R. Doc. 271, p. 8.
23 Id.
24 Id. at p. 11.
21

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with the defendant. Therefore, BEEOO urges, the Court must deny GIS’s re-urged
motion.
The plaintiff rejoins, quoting testimony from Mr. Bruno, in which Mr. Bruno
states that BEEOO’s sole objection to the invoices is amounts billed for D&R Labor.
Mr. Bruno went on to theorize the amount GIS is owed, stating “You know, I believe
if you perform goods and services legitimately, you should be paid for it.” 25
II.

LEGAL STANDARD

Summary judgment is proper if the movant shows there is no genuine dispute as
to any material fact and that it is entitled to judgment as a matter of law. 26 If the
movant shows the absence of a disputed material fact, the non-movant “must go
beyond the pleadings and designate specific facts showing that there is a genuine
issue for trial.”27 The Court views facts and draws reasonable inferences in the nonmovant’s favor.28 The Court neither assesses credibility nor weighs evidence at the
summary judgment stage.29
Under Louisiana law, to assert a breach of contract claim, the plaintiff must show:
“(1) the obligor undertook an obligation to perform; (2) the obligor failed to perform
the obligation, resulting in a breach; and (3) the failure to perform resulted i n

R. Doc. 316, pp. 2-3.
FED. R. CIV. P. 56(a).
27 McCarty v. Hillstone Restaurant Grp., Inc., 864 F. 3d 354, 357 (5th Cir. 2017).
28 Vann v. City of Southaven, Miss., 884 F. 3d 307, 309 (5th Cir. 2018).
29 Gray v. Powers, 673 F. 3d 352, 354 (5th Cir. 2012) (internal citation omitted).
25
26

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damages to the obligee.” 30 “[The] party who demands performance of an obligation
must prove the existence of the obligation.” 31
III.

ANALYSIS

After careful consideration of the parties’ memoranda, the applicable law, and the
Court’s previous Order, although there appears to be evidence that GIS is owed
money, there are still genuine issues of material fact as to the amount and projects.
The plaintiff’s statements that each invoice is undisputed are contradicted by the fact
that the plaintiff does not provide evidence that an oral contract exists for each
project. Although the plaintiff cites to testimony, in which BEEOO representatives
acknowledged that the plaintiff is owed something, the plaintiff mostly cites to its
own statement of contested/uncontested facts.32 It still has not presented sufficient
evidence to establish that BEEOO failed to perform the obligation or the amount of
resulting damages. The plaintiff interprets the Court’s previous Order, stating,
the Court reasoned that GIS failed to demonstrate a breach as to each
individual invoice, stating: “There is no description of each of the
separate work projects, and no clear dates, project details, or invoice
amounts attached to each work project. . .” a position that GIS
respectfully disagrees with. Nonetheless, this Court has clearly
determined that an agreement between the parties existed by which GIS
would provide its Services in exchange for payment from BEEOO.
R. Doc. 316, p. 5. The plaintiff interprets the Court’s Order narrow-mindedly. In the
paragraph preceding the quoted section, the Court clearly states

Sanga v. Perdomo, 167 So. 3d 818, 822 (5th Cir. 2014); La. Civ. Code art. 1994; Favrot v. Favrot, 10–
0986 (La. App. 4 Cir. Feb. 9, 2011), 68 So.3d 1099, 1109.
31 La. Civ. Code art. 1831.
32 R. Doc. 249-2.
30

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The existence of an oral contract, however, is not enough to support
judgment as a matter of law on GIS’ breach of contract claim. The Fifth
Circuit has made clear that when a plaintiff such as GIS moves for
summary judgment on a claim, “the movant…must establish beyond
peradventure all of the essential elements of the claim or defense to
warrant judgment in [its] favor.” GIS does not meet this burden here.
The oral contract that is evinced by Pregeant and Bruno’s statements
merely proves that the parties had a working relationship wherein GIS
would perform services and BEEOO would pay for said services.
However, both sides admit that GIS completed multiple work projects
for BEEOO over the years. GIS is attempting to collect $3,359,309.58 in
damages, an amount that is comprised of dozens of work projects which
were initiated, completed, invoiced, and reviewed separately. Thus, GIS
must prove a breach of contract with respect to each individual claim.
R. Doc. 194, p. 13. The Court thoroughly discussed Mr. Bruno’s testimony in its
previous Order, and found that Mr. Bruno’s statements merely prove a working
relationship. The Court finds there are still genuine issues of material fact as to the
approval and amount of each project.
The Court’s July 22, 2019 Order found the existence of an oral contract as to West
Delta 32. As stated in the previous Order, “Examining GIS’ proffered evidence under
the Louisiana standard for oral contracts, the Court finds that GIS has presented
sufficient evidence to prove the existence of an oral contract between the parties.”33
This sentence was referring to the immediately preceding language, which
specifically related to the work on West Delta 32. The Court has thoroughly reviewed
the documents attached to the re-urged motion—especially what appears to be
spreadsheets of amounts due regarding West Delta 32 in the 461 page document
attached to the motion.34 However, this “evidence” does not appear to be invoices
R. Doc. 197, p. 12.
R. Doc. 249-3, pp. 142-143. This information was also before the Court in the original motion. R. Doc.
125, pp. 161-162.
33
34

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approved and unpaid by BEEOO. The Fifth Circuit has made clear that the movant
“must establish beyond peradventure all of the essential elements of the claim or
defense to warrant judgment in his favor.”35 In light of this requirement, the plaintiff
still provides insufficient evidence to meet this burden in its re-urged motion.
IV.

CONCLUSION

IT IS HEREBY ORDERED that Plaintiff Grand Isle Shipyards, Inc.’s ReUrged Motion for Partial Summary Judgment (R. Doc. 249) is DENIED.
New Orleans, Louisiana, this the 11th day of May, 2020.

______________________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE

35

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original).