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

Filing 374

ORDER: IT IS HEREBY ORDERED that 363 Motion in Limine is GRANTED insomuch as BEEOO seeks to exclude the broad category of any document filed by GIS and/or BEEOO in any lawsuit. IT IS FURTHER ORDERED that BEEOO's Motion is DENIED in all other respects. Signed by Judge Wendy B Vitter on 5/14/2021. (Reference: All Cases)(jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GRAND ISLE SHIPYARDS, INC.

CIVIL ACTION

VERSUS

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

BLACK ELK ENERGY OFFSHORE
OPERATIONS, LLC

SECTION D (5)

ORDER
Before the Court is Black Elk Energy Offshore Operations, LLC’s Motion in
Limine. 1 The Motion is opposed. 2

After careful consideration of the parties’

memoranda, the record, and the applicable law, the Court denies the Motion, except
insomuch as BEEOO seeks to exclude the broad category of “any document filed by
GIS and/or BEEOO in any lawsuit.”
I.

BACKGROUND
Grand Isle Shipyards, Inc. (“GIS”) alleges that Black Elk Energy Offshore

Operations, LLC (“BEEOO”), 3 breached an agreement between the parties to pay for
services rendered in connection with BEEOO’s drilling and production operations on

R. Doc. 363.
R. Doc. 365.
3 The Court recognizes that the Honorable Richard Schmidt (Ret.), as BEEOO’s liquidating trustee, is
the proper party to this litigation. See R. Doc. 42. For ease of reference and consistency, the Court
refers to this party as BEEOO.
1
2

various oil and gas wells. 4 BEEOO filed an Answer and Counterclaim, alleging that
GIS’s work on Black Elk’s West Delta 32 oil platform resulted in millions of dollars
in damages to BEEOO. 5 Specifically, BEEOO alleges that GIS is responsible for an
explosion that took place at the West Delta 32 platform on November 16, 2012. 6 That
explosion has been the subject of extensive litigation in this district, including
Tajonera v. Black Elk Energy Offshore Operations, LLC, 7 United States v. Black Elk
Energy Offshore Operations, LLC, 8 United States v. Don Moss, 9 and United States v.
Chris Srubar. 10 BEEOO’s tort and fraud claims have been dismissed as prescribed,
but it continues to assert a breach of contract claim. 11
This Court issued a series of orders in response to previous motions in limine
and motions for partial summary judgment filed by the parties. As relevant here, the
Court found that evidence of BEEOO’s negligence was relevant only to the extent GIS
can demonstrate an antecedent breach of contract, and that GIS had not
demonstrated such a breach. 12 The Court also found that evidence to BEEOO’s
Incidence of Noncompliance (“INC”) history was relevant to the issue of whether

See generally R. Doc. 20 (Second Amended Complaint). GIS also brought a series of other claims,
including claims under the Louisiana Oil Well Lien Act. See id.
5 See generally R. Doc. 76 (Answer and First Amended and Supplemental Counterclaim).
6 See id. at 10 ¶ 16.
7 Civil Docket No. 13-366.
8 Criminal Docket No. 15-197-1.
9 Criminal Docket No. 15-197-2.
10 Criminal Docket No. 15-197-6.
11 R. Doc. 70; R. Doc. 76.
12 R. Doc. 329.
4

BEEOO’s damages were foreseeable. 13 Pursuant to the Court’s order, the parties
have also filed a revised proposed Pretrial Order into the record. 14
BEEOO has filed a Motion in Limine seeking to exclude certain evidence that
GIS seeks to introduce. 15 BEEOO first seeks to exclude pleadings and filings in other
legal cases, and specifically to exclude certain documents from BEEOO’s bankruptcy.
BEEOO contends that these documents are not relevant to the instant dispute. Next,
BEEOO seeks to exclude factual bases from various criminal matters related to this
dispute. BEEOO contends that the admissions in the factual bases have already been
included as stipulations in this case, and are therefore not relevant other than for
impeachment purposes. Finally, BEEOO argues that evidence of BSEE’s Incidents of
Noncompliance (“INC”) records should be excluded, as the information of BEEOO’s
INCs alone offers nothing relevant to this matter.
In its Opposition, 16 GIS argues that the pleadings it seeks to introduce from
other cases are relevant to its argument regarding the status of BEEOO’s liquidation
trust, and that certain orders in other cases have affected this case. GIS further
argues that the factual bases in related criminal matters are relevant because they
add additional detail regarding the work of certain individuals on West Delta 32, and
are relevant to GIS’s argument that the acts and omissions of Srubar and Moss must
be imputed to BEEOO. Finally, GIS argues that the Court has already ruled that

R. Doc. 332.
R. Doc. 360.
15 R. Doc. 363.
16 R. Doc. 365.
13
14

BEEOO’s INC history is admissible as relevant to the foreseeability of BEEOO’s
damages.
II.

ANALYSIS
A.

Documents in Other Cases

BEEOO first seeks to exclude four exhibits related to other litigations. These
documents include (1) GIS’s Proof of Claim (OBJ001); (2) the Bankruptcy Court’s
Order Lifting the Stay (OBJ002); (3) GIS’s Notice of Appeal related to the standing
dispute (OBJ003); and (4) any document filed by GIS and/or BEEOO in any lawsuit
(OBJ004).

The first three documents relate to BEEOO’s ongoing bankruptcy

proceedings. GIS contends that as a result of an issue that has been litigated in
BEEOO’s bankruptcy, BEEOO lacks standing to bring its counterclaims in this
litigation. This issue has been specifically preserved in the parties’ proposed Pretrial
Order as Contested Issue of Law No. 21, which reads: “Whether the Liquidating
Trust expired by its own terms on July 25, 2019 and the Trustee has lacked standing
since that date.” 17

The first three exhibits at issue here, OBJ001-OBJ003, are

relevant to this contested issue of law insomuch as they demonstrate that GIS is a
creditor in BEEOO’s bankruptcy, that this matter is not subject to the bankruptcy
stay, and that GIS is also pursuing this legal argument in the Southern District of
Texas. Accordingly, the Court overrules BEEOO’s objections to OBJ001-OBJ003, and
will admit these exhibits into evidence at trial.

17

R. Doc. 360 at 20.

BEEOO also seeks to exclude OBJ004, which is listed in the proposed pretrial
order as “[a]ny document filed by GIS and/or BEEOO in any lawsuit.” 18
referenced exhibit is plainly overbroad.

The

Moreover, the Court cannot assess the

relevance of any such category of documents in the abstract. The Court will therefore
grant BEEOO’s Motion insomuch as it seeks to exclude any possible document filed
by either party in another lawsuit. The Court notes that in the exhibits submitted to
the Court, BEEOO’s answers to interrogatories in the Tajonera litigation are labeled
as OBJ004. That exhibit lists 52 interrogatories with responses by BEEOO which
deal with a variety of topics relevant to this litigation. Such admissions may be used
by GIS to argue that BEEOO has previously made a judicial admission or for
impeachment purposes. Further, BEEOO makes no argument in its Motion as to
why this exhibit should be excluded.

Accordingly, the Court will not exclude

BEEOO’s answers to interrogatories in the Tajonera litigation at this time. BEEOO
may move to exclude this document when GIS seeks to admit it at trial.
B.

Factual Basis Documents

The next set of documents that BEEOO seeks to exclude are factual basis
documents entered into by both parties and various witnesses in related criminal
matters, which are labeled OBJ005-OBJ007 and OBJ009. 19 BEEOO does not argue
that OBJ005, the factual basis of BEEOO, and OBJ009, the factual basis of GIS, are
irrelevant standing alone.

Rather, BEEOO argues that these factual bases are

Id. at 45.
See OBJ005 (Factual Basis of BEEOO); OBJ006 (Factual Basis of Don Moss); OBJ007 (Factual Basis
of Chris Srubar); OBJ009 (Factual Basis of GIS). The Court notes that BEEOO has withdrawn its
objection to OBJ008 (Factual Basis of Curtis Danton).
18
19

cumulative of stipulations already made in the parties’ proposed Pretrial Order, and
are therefore irrelevant. Given that the two exhibits at issue number only fifteen
pages in total (in a case with thousands of documents and hundreds of exhibits), the
Court does not find the risk of cumulation of evidence requires exclusion of these
exhibits.

Accordingly, the Court overrules BEEOO’s objections to OBJ005 and

OBJ009, and will admit these exhibits into evidence at trial.
BEEOO argues that OBJ006, the factual basis of Don Moss, and OBJ007, the
factual basis of Chris Srubar, are irrelevant. GIS counters that these documents are
relevant to its estoppel defense, the existence of an oral contract for work at West
Delta 32, and “probative of GIS’ allegation that the acts and omissions of SRUBAR
and MOSS must be imputed to BEEOO.” 20
Because Moss’s and Srubar’s factual bases have been largely incorporated into
the parties’ proposed pretrial order, 21 the primary risk from allowing the factual
bases into evidence is that they are cumulative, not that they are irrelevant. As the
documents are only sixteen pages, the Court does not find the risk of cumulation
requires exclusion of these exhibits. Moreover, GIS represents that this evidence may
be relevant to the terms of an oral contract. The bar for relevance is low, 22 and this
is a bench trial, so there exists no risk of unfair prejudice. 23 The Court will therefore
admit OBJ006 and OBJ007 into evidence. That said, GIS is cautioned not to attempt
R. Doc. 365 at 4.
See R. Doc. 360 at 5-9.
22 See Fed. R. Evid. 401.
23 See, e.g., Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981) (holding that
concerns over undue prejudice under Federal Rule of Evidence 403 have “no logical application to
bench trials.”); In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, No.
MDL 2179, 2012 WL 295048, at *4 n.7 (E.D. La. Feb. 7, 2012) (same).
20
21

to use these exhibits for purposes that run afoul of the Court’s previous orders.
Specifically, the Court ordered that there would be no allocation of fault at trial under
La. Civ. Code article 2003 as GIS had failed to establish an antecedent breach of
contract when BEEOO clearly moved for summary judgment on that issue. 24 The
Court later denied GIS’s Motion for Interlocutory Appeal when GIS sought to make
arguments it could have—but did not—make previously. 25 Indeed, the order GIS
cites to in arguing that this evidence is relevant to impute liability from Moss and
Srubar to BEEOO dealt only with the timing of this argument, not with the
substance. 26 Accordingly, GIS may not introduce this evidence to argue “that the acts
and omissions of SRUBAR and MOSS must be imputed to BEEOO[,]” 27 and therefore
that BEEOO’s damages should be reduced under article 2003 or article 2323.
C.

INC History

Finally, BEEOO seeks to exclude three exhibits related to BEEOO’s INC
history labeled OBJ012, OBJ013, and OBJ015. 28 The Court has already ruled that
evidence of BEEOO’s INCs may be relevant to the foreseeability of damages. 29
BEEOO seeks to circumnavigate this ruling by arguing that INCs of other companies
are necessarily irrelevant, and then stating that BEEOO’s INC history when viewed
in a vacuum is also irrelevant. But BEEOO’s argument is circular—the relevance of
other companies’ INC histories are relevant specifically because they demonstrate
R. Doc. 329.
R. Doc. 359.
26 See R. Doc. 336.
27 R. Doc. 365 at 4.
28 The Court notes that OBJ012 and OBJ015 are duplicates and cumulative. It is unclear why GIS
seeks to introduce both.
29 R. Doc. 332 at 4-8.
24
25

whether BEEOO’s was issued more INCs than other companies. Accordingly, the
Court overrules BEEOO’s objections and will admit OBJ012, OBJ013, and OBJ015
into evidence at trial.
III.

CONCLUSION

IT IS HEREBY ORDERED that BEEOO’s Motion in Limine is GRANTED
insomuch as BEEOO seeks to exclude the broad category of “any document filed by
GIS and/or BEEOO in any lawsuit.” IT IS FURTHER ORDERED that BEEOO’s
Motion is DENIED in all other respects.
New Orleans, Louisiana, May 14, 2021.

______________________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE