Dukes v. Zafiro Marine

Filing 48

ORDER AND REASONS granting 38 Motion for Summary Judgment. The plaintiff's claims against BP are hereby dismissed. Signed by Judge Martin L.C. Feldman on 4/27/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOSEPH DUKES

CIVIL ACTION

v.

NO. 15-4948

ZAFIRO MARINE, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is BP Exploration & Production Inc.’s motion
for summary judgment.

For the reasons that follow, the motion is

GRANTED.
Background
This

litigation

arises

from

personal

injuries

allegedly

suffered by the plaintiff when he rolled his ankle climbing down
a three-rung ladder from his upper bunk located in living quarters
on a vessel.
In

September

Instrumentation

2014,

and

Joseph

Dukes

Electrical

(I&E)

was

employed

technician

as
by

an
MMR

Contractors, Inc. (MMR) on BP Exploration & Production Inc.’s
Thunder Horse, an offshore installation in the Gulf of Mexico,
just south of Louisiana.

I&E technicians worked 12-hour shifts on
1

the Thunder Horse and spent the remaining 12 hours of the day on
the M/V SAMPSON, a large quarters vessel located near the Thunder
Horse.

CVI Global Lux Oil and Gas 4 S.a.r.l. was or is the

registered owner of the SAMPSON, which BP had time chartered from
a company called Harkand Gulf Contracting, LTD.
The SAMPSON was time chartered to BP pursuant to a contract
between BP and Harkand entitled Contract for Accommodation Vessel
for Global Projects Organization – Gulf of Mexico.

The Contract

provides that the operation, care, and maintenance of the vessel
and the equipment on the vessel were the exclusive obligation of
Harkand: “CONTRACTOR [Harkand] shall be wholly responsible for the
proper navigation, operation, care and maintenance of all VESSELS
and associated PLANT.”

Harkand was also solely responsible for

ensuring that the SAMPSON remained in class, was fully certified
for services performed, that the vessel conformed to all relevant
legislation, and that the vessel was manned in compliance with all
regulations.

Among

provides

Harkand

that

other

things,

“shall

the

ensure

Contract

adequate

specifically

provision

and

maintenance of PLANT, including: ...a) Accommodation.”
Another contract entitled a Bridging Document also governed
the BP-Harkand relationship.

The Bridging Document specified

transfer personnel procedures once the SAMPSON was within 500
2

meters of the Thunder Horse and the SAMPSON approach directives.
The Bridging Document obliges BP to provide three SAMPSON-specific
support positions to be present on the SAMPSON during overall
project operations: (1) a BP Company Vessel Representative (CVR);
(2) BP Flotel Personnel on Board Coordinator (POB); and (3) a BP
Marine Representative.

The BP CVR was the “single point-of-

contact” for SAMPSON operations and one of the CVR’s express duties
was to “assist with room assignments” on the SAMPSON.

One of the

POB Coordinator’s responsibilities was for “bunk allocation.”
These contractual provisions were executed in accordance with
the contracts.

Dukes testified that a “BP Company Man” made the

room assignments on the SAMPSON.

Dukes’s bunk -- the upper bunk

with one bunk below it -- was one of over 200 bunks.

It had a

three-rung ladder attached to the frame of the top bunk by metal
“L” shaped brackets.

Dukes slept in this same upper bunk and used

the same ladder for at least six days until the incident that forms
the basis of this lawsuit occurred.
On September 14, 2014, at approximately 4:30 a.m., 1 when Dukes
was climbing down from his upper bunk, he placed his right foot on
the top rung of the ladder, but the ladder slid “no more than two

At this time, Dukes was working his second 14 on/7 off hitch; he
worked the day shift and slept at night on the SAMPSON.
3
1

or three inches” along the upper bunk framing to which it was
attached.

This sliding 2 allegedly caused him to twist his right

ankle, lose his balance, and fall to the floor.

Dukes then “got

up [and] walked it off,” took a shower, “got my boots on, laced
them up tight, [and] went to work” at 6:00 a.m.
Dukes worked a full day aboard the Thunder Horse and returned
to the SAMPSON that night.

He says he advised the BP Company Man

on the morning of his fall that he had twisted his ankle in his
room, but he did not specifically tell him about having slipped on
the ladder.

Later that afternoon following his hitch, Dukes spoke

with the BP Company Man, who offered Dukes the medic’s room to
sleep in that night, which had an available lower bunk.

Dukes

changed rooms.
When he woke up the next morning, Dukes says his ankle was
swollen and that he could not work. He was treated by the SAMPSON’s
medic, completed two incident reports, then at his request he was
taken by helicopter for medical treatment.

In one report, Dukes

described what happened to his ankle: “climbing out of top bunk
when right foot rolled.”

In the other report, Dukes wrote:

On Saturday morning 9-14-14 @ 4:30 AM I was climbing
down from my bunk in room 107 when my right foot rolled

There was no movement of the vessel or any rough seas that caused
this.
4

2

or twisted on me. I walked around the room for a minute
then got dressed and went to work. After work I cleaned
up and went to bed. On the morning of the 15th I could
not put much pressure on my right foot, went to medic
and he wrapped my foot with bandage.

Dukes made no reference to any fall in either report.
suggest that the ladder had moved.

Nor did he

He now says he fell and, as a

consequence of his fall, he alleges that he injured not only his
ankle, but has since suffered additional latent injuries to his
left hip, lower back, and left shoulder.
On October 2, 2015, Dukes sued Zafiro Marine, alleging that
Zafiro’s negligence and the unseaworthiness of the SAMPSON caused
his ankle, leg, hip, and back injuries.

Dukes later added BP

Exploration & Production, Inc. as a defendant, alleging that BP
controlled Zafiro Marine’s work pursuant to a contract and that
BP’s negligence, in addition to Zafiro Marine’s negligence and the
SAMPSON’s unseaworthiness, caused his injuries.

Dukes has amended

his complaint several times in an attempt to name the correct owner
of the SAMPSON:

Zafiro was replaced with ZM Industries Limited,

which was later replaced with CVI Global Lux Oil and Gas, which is
a non-existent entity.

CVI Global Lux Oil and Gas 4 S.a.r.l. has

since appeared as the registered owner of the SAMPSON; it allege
in its answer that it has owned the vessel “at various times.”
Finally, Zurich American Insurance Company intervened in this
5

litigation, alleging that it issued to MMR a workers’ compensation
and employer liability policy, that it paid worker’s compensation
benefits to plaintiff pursuant to the policy and Louisiana law,
and that it is entitled to recover all compensation and medical
expenses paid or to be paid and is entitled to a credit for future
medical benefits for compensation that may be paid to Dukes.
Disclaiming responsibility for the SAMPSON’s seaworthiness or
the safety of its living quarters, BP now moves for summary
judgment dismissing the plaintiff’s claims against it.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "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 (1986).

The

mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion.
6

See id.

Ultimately, "[i]f

the evidence is merely colorable . . . or is not significantly
probative," summary judgment is appropriate. Id. at 249 (citations
omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal

quotation

marks

and

citation

omitted)

(“[T]he

nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of a claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
regard,

the

non-moving

party

must

adduce

competent

See

In this
evidence,

including but not limited to sworn affidavits and depositions, to
buttress his claims.

See Donaghey v. Ocean Drilling & Exploration

Co., 974 F.2d 646, 649 (5th Cir. 1992).

However, affidavits or

pleadings which contradict earlier deposition testimony cannot
create a genuine issue of material fact sufficient to preclude an
entry of summary judgment.

See S.W.S. Erectors, Inc. v. Infax,

Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck
& Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007)
7

(citations omitted).

Although the Court must "resolve factual

controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."

Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).
“If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify
its opposition,” the Court may issue any appropriate order, such
as an order deferring consideration of the motion or denying it,
or allowing additional time for discovery.

Fed. R. Civ. P. 56(d).

As another Section of this Court recently summarized requests for
additional time for discovery under Rule 56(d):
[Rule 56(d)] permits a district court to deny or defer
consideration of a motion for summary judgment, allow
time to take discovery, or “issue any other appropriate
order” when “a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.”
Fed. R. Civ. P. 56(d). Nonetheless, the party seeking
a continuance “may not simply rely on vague assertions
that additional discovery will produce needed, but
unspecified, facts.” Raby v. Livingston, 600 F.3d 552,
561 (5th Cir. 2010)(quoting Sec. & Exch. Comm’n v. Spence
& Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)).
Instead, the party seeking to continue a motion for
summary judgment to obtain further discovery must
demonstrate (1) “why he needs additional discovery” and
(2) “how the additional discovery will create a genuine
issue of material fact.” Krim v. BancTexas Grp., Inc.,
989 F.2d 1435, 1442 (5th Cir. 1993). In other words,
8

the plaintiff must identify specific facts, susceptible
of collection, and indicate how those facts “’will
influence the outcome of the pending summary judgment
motion.’” McKay v. Novartis Pharm. Corp., 751 F.3d 694,
700 (5th Cir. 2014)(quoting Raby, 600 F.3d at 561).
Menard v. LLOG Exploration Co., LLC, No. 16-498, 2017 WL 1317568,
at *2 (E.D. La. Apr. 10, 2017)(Vance, J.).
II.
A.
BP submits that it is entitled to judgment as a matter of law
dismissing the plaintiff’s claims against it because, as it merely
time chartered the vessel, BP owed no duty to the plaintiff with
respect to the safety of his room or the bunk ladder.

BP submits

that, consistent with the contractual provisions governing their
relationship, all responsibility for the condition of the bunk was
vested with Harkand and none with BP.

BP submits that there is no

genuine dispute that, as time charterer, it did not control the
physical operation of the SAMPSON, nor was it responsible for the
safety or seaworthiness of the vessel.

Dukes counters that BP

assumed a duty regarding the safety of the rooms by staffing a
company man on board, who assigned the rooms and told Dukes to
come to him for “anything that had to do with” the vessel.

Because

Dukes fails to identify a genuine dispute as to a material fact
concerning BP’s liability, BP is entitled to judgment as a matter
of law.
9

B.
Because Dukes is an Outer Continental Shelf worker, the
Longshore & Harbor Workers Compensation Act, through the Outer
Continental Shelf Lands Act, governs liability for his alleged
injuries.

Section 905(b), the exclusive remedy for offshore

workers, provides:
In the event of injury to a person covered under this
Act caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the provisions
of section 33 of this Act.... The remedy provided in
this subsection shall be exclusive of all other remedies
against the vessel except remedies available under this
Act.

33 U.S.C. § 905(b).

While the definition of a “vessel” under the

LHWCA includes “time charterers,” a time charterer’s liability is
more limited than the liability of an owner or demise charterer.
Hudson v. Schlumberger Tech. Corp., 452 Fed.Appx. 528, 536 (5th
Cir. 2011); Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830
F.2d 1332, 1338-39, 1343 (5th Cir. 1987).
“In a time charter the vessel owner retains possession and
control of the vessel; provides whatever crew is needed and is
responsible for normal operating expenses.

Further, in a time

charter the owner fully equips and maintains the vessel, makes
10

repairs as needed and provides insurance on the vessel.”
v. Braus, 995 F.2d 77, 81 (5th Cir. 1993).

Walker

Thus, in a time charter

arrangement, the vessel owner remains responsible for its vessel’s
seaworthiness, dangerous conditions on board, pilot navigational
errors, crew negligence, and a reasonably safe means of ingress
and egress for those boarding or leaving the vessel.

Moore v.

Philips Petroleum Co., 912 F.2d 789 (5th Cir. 1990)(internal
citations omitted).
generally

not

unseaworthiness.

Given this arrangement, a time charterer is

liable

for

crew

negligence

or

vessel

See Forrester v. Ocean Marine Indem. Co., 11

F.3d 1213, 1215 (5th Cir. 1993).

But a time charter may be liable

for its own negligence in its capacity as a time charterer where
the harm occurs “within the charterer’s traditional sphere of
control

and

responsibility

or

has

been

transferred

[to

charterer] by the clear language of the charter agreement.”

the

Kerr-

McGee Corp., 830 F.2d at 1339-43; Hodgen v. Forest Oil Corp., 87
F.3d 1512, 120 (5th Cir. 1996)(a time charter’s duty is to “avoid
negligent actions within the sphere of activity over which it
exercises at least partial control.”), overruled on other grounds
by, Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778
(5th Cir. 2009).

The “spheres of activity” in which a time

charterer has control include “choosing the vessel’s cargo, route,

11

and general mission, as well as the specific time in which the
vessel will perform its assignment.”
Here,

the

BP-Harkand

Hodgen, 87 F.3d at 1520.

Contract

confirms

the

traditional

allocation of responsibility of the seaworthiness of the vessel to
Harkand.

The Contract provides that the operation, care, and

maintenance of the vessel and the equipment on the vessel were the
exclusive obligation of Harkand: “CONTRACTOR [Harkand] shall be
wholly responsible for the proper navigation, operation, care and
maintenance of all VESSELS and associated PLANT.” 3

Among other

things, the Contract specifically provides that Harkand “shall
ensure adequate provision and maintenance of PLANT, including:
...a) Accommodation.”

Consistent with BP’s more limited sphere of

responsibility, the BP-Harkand Bridging Document provided that BP
staff

the

SAMPSON

representatives

with

who

certain

were

support

positions,

responsible

for

including

directing

room

assignments and bunk allocation.
Nothing
reflects

in

the

charterer,

the

parties’

BP,

BP-Harkand
intent

to

responsibilities

Contract
shift
for

or

Bridge

from

Harkand

such

things

as

Document
to

time

vessel

“PLANT” is defined
as “all materials, machinery, apparatus,
supplies, property and equipment (including all VESSELS), which is
owned, leased, rented, chartered or operated by CONTRACTOR
GROUP....” And, “VESSEL” was defined to include the SAMPSON.
12

3

seaworthiness that would alter the traditional sphere of control
and responsibility sufficient to shift liability. To the contrary,
the

relevant

provisions

of

these

agreements

indicate

that

operational responsibility, as well as care and maintenance of the
SAMPSON, was vested with Harkand.

The relevant contracts are

unambiguous and expressly provide that Harkand is responsible for
the condition of the vessel and explicitly requires Harkand to
maintain the accommodation facilities.

To be sure, the agreements

contain no “clear statement” that the charter parties intended to
shift responsibility for vessel unseaworthiness or vessel crew
negligence to the charterer.
1339-43.

See Kerr-McGee Corp., 830 F.2d at

Because the contracts do not alter BP’s traditional

limited sphere of control as time charterer, it cannot be held
accountable for Dukes’s accident.
Hudson v. Schlumberger Tech. Corp. reinforces this result.
BP submits that its contract with Harkand is similar to the BPAlpha contract in Hudson because it vests responsibility for
maintenance of the accommodations and safety on Harkand, not BP.
The Court agrees.

In Hudson, the plaintiff sued his employer, the

vessel owner, and the time charterer, BP, for damages arising out
of injuries he suffered when he stepped in an uncovered “pad-eye”
hole while performing seismic activities on board the M/V CCOMMANDER.

452 Fed.Appx. 528, 536 (5th Cir. 2011).
13

The vessel

was owned and operated by Alpha. BP, the time charterer, had a
representative on the vessel with the right to view inspections of
the vessel by the owner, but the time charter did not provide that
BP was responsible for the maintenance of the vessel and BP did
not in any practical way exercise control over the maintenance of
the vessel; accordingly, the Fifth Circuit held that BP as time
charterer

was

not

liable

for

the

plaintiff’s

injuries.

Id.

(affirming the district court’s grant of summary judgment in favor
of BP because BP was not responsible for maintaining the safety of
the vessel’s aft deck, either by custom or agreement, and the
plaintiff had no Section 905(b) claim against BP as a matter of
law). Given the similarities, the outcome in Hudson dictates the
same result here.

Although BP had a company representative on

board, there is no record evidence indicating that the company
representative exercised any control over the maintenance of the
bunk beds; nor does the contract give that responsibility to BP.
That responsibility remained with Harkand. 4

As a matter of law,

BP is not liable under § 905(b) for Dukes’s injuries alleged here.

Here, the Contract provides that Harkand, not BP, has
responsibility for the safety of the work. And, like in Hudson,
Harkand ensured the quality of the work. The BP-Harkand Contract
also states that it is the owner’s responsibility to carry out
tests and inspections; BP merely has the right to witness any
inspection. BP had the right to audit the vessels, but the charter
contract did not require it to do so.
Most notably, it was
14
4

Dukes

fails

to

point

to

any

provision

of

the

parties’

agreements that demonstrates an intent by the parties to alter the
typical allocation of charter responsibilities such that BP was
obliged to maintain the accommodations on the SAMPSON and should
be held liable for Dukes’s injuries.

Indeed, the only evidence

offered by the plaintiff, his own deposition testimony, confirms
that BP acted in accordance with its limited contractual duties as
time charterer.

Dukes testified that BP did not operate the

SAMPSON vessel.

He testified that he thinks, in hindsight, that

his room was unsafe, 5 but he agreed that BP did not design the bunk

Harkand’s responsibility to undertake the maintenance of the
vessel and to ensure it was fit for service.
5 Nevertheless, Dukes testified that there was nothing unsafe about
his bunk at the time of the incident:
Q: Is it fair to say it’s your testimony that you believe the room
was unsafe?
A: Looking back now, yes.
Q: Looking back now in hindsight it was unsafe?
A: Yes.
Q: At the time, up until your incident, did you have any reason to
believe the room was unsafe?
A: No.
Q: Okay. And tell me if I’m being inaccurate. It’s your testimony
that you fault BP for not making sure that the SAMPSON people had
a room that was safe enough?
A: Right, Yes.
15

or its ladder.

When asked to link his injury to BP’s conduct,

Dukes testified:
I feel it was BP’s responsibility to make sure that
whatever [the] SAMPSON had on that boat was safe for me
to be in. BP felt the need to have a member of their
employment on the boat at all times that took charge of
everybody coming on the boat and where they slept, what
time they – you know, when they were supposed to meet
for their transfers. BP man handled all of that. So I
feel that BP is the reason they didn’t do – as far as
the rooms go, when they put us in that situation of BP
wasn’t going do somehow take some type of, I guess
responsibility, say these rooms are safe for everybody,
there are no issues or anything.

In other words, Dukes’s theory of BP’s liability is anchored
in the fact that the contracts required, and his experience showed,
that a BP company man was on board and responsible for making room
and bunk assignments.

But this is insufficient to demonstrate

that BP exceeded its traditional time charterer role and assumed
liability

for

the

safety

conditions

of

the

vessel.

Dukes’s

testimony does not indicate that the BP company representative
inspected or controlled the quality of the bunks; his testimony
indicates that the BP company man was merely on board to deal with
personnel issues.
of law.

Dukes’s theory of liability fails as a matter

Simply having a representative of a charterer on board

does not shift operational responsibility or liability to the
charterer.

See Forrester, 11 F.3d at 1217 (when a time charterer
16

has on board an employee who gives general safety instructions,
that is insufficient to prove that a time charterer exceeded its
traditional role and assumed liability for the safety conditions
of the vessel); see also Roby v. Hyundai Marine, 700 F. Supp. at
323 (contractual language authorizing a charterer to appoint a
cargo supervisor was not clear language that the charter party
intended to shift operational control of the cargo loading and
unloading to the time charterer).
C.
1.

There Is No Evidence in the Record that Supports a
General Maritime Negligence Claim.

Dukes admits that BP did not operate the SAMPSON; that BP was
not contractually responsible for cleaning the bunks or rooms on
the SAMPSON; that BP was not contractually responsible for ensuring
that the bunk ladders did not slide or move.

Nevertheless, Dukes

attempts to manufacture a factual dispute concerning whether BP
assumed a duty to keep workers aboard the SAMPSON safe, a duty he
says arises under general maritime law.

His attempt fails as a

matter of law.
Because a BP company man was present on board and assigned
bunks, Dukes’s argument goes, “there remain questions about the
duties which BP placed on these ‘company men,’ and the extent of
17

the company man’s role on the M/V SAMPSON.” Dukes offers no
evidence to support his speculation that perhaps these company men
might testify that their duties varied from the relevant contracts;
the only evidence he offers actually shows that BP conformed to
the limited responsibilities delegated by the time charter and
Bridging Document.

BP assigned rooms and bunks, as called for by

the time charter.

There is simply no evidence in the record that

would show, or present a genuine dispute regarding, whether BP
acted in a way in which a duty was imposed under general maritime
law, BP breached the duty, or the injury sustained by Dukes was
caused by BP’s conduct in assigning rooms and bunks.

See In re

Great Lakes Dredge & Dock Co., 624 F.3d 201, 211 (5th Cir. 2010).
Dukes’s suggestion that his testimony alone is sufficient to defeat
summary judgment, while true in theory, fails in practice where,
as here, his testimony simply confirms BP’s submission.
2.

Dukes’s Vague Request for Additional Discovery Fails
Under Rule 56(d).

In a final attempt to avoid summary judgment, Dukes requests
additional discovery, which he says is needed to explore the
relationship between BP and Harkand.
two

paragraphs

at

the

end

of

his

The request, which comprises
opposition

memorandum,

procedurally and substantively flawed and is therefore denied.
18

is

First, Dukes’s request that the Court delay ruling on BP’s
summary judgment motion is procedurally defective.

That the

plaintiff failed to include either an affidavit or a declaration
in support of the Rule 56(d) request is sufficient grounds to deny
the motion.

See Scotch v. Letsinger, 593 Fed.Appx. 276, 278 (5th

Cir. 2014)(“Because Scotch did not submit either an affidavit or
a declaration, the district court did not err in denying Scotch’s
request.”); Leza v. City of Laredo, 496 Fed.Appx. 375, 377-78 (5th
Cir. 2012)(rejecting the plaintiff’s argument that the affidavit
requirement is “redundant, inappropriate, and bureaucratic” and
affirming denial of Rule 56(d) motion because movant did not
present affidavit or declaration); see also Sandusky Wellness
Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 226 (6th Cir.
2015).

Here, Dukes fails to submit a sworn statement in support

of his request for additional time to complete discovery.

His

request fails for this reason alone.
Second, his request that the Court defer ruling on BP’s motion
for summary judgment is substantively defective.

Dukes is not

entitled to additional discovery to prove his speculative theory
that BP may have acted in a way that altered the traditional
allocation of responsibility spheres between owner and charterer.
Dukes hopes to depose a representative of Harkand to determine
“whether

BP’s

position

on

Harkand’s
19

role

is

also

Harkand’s

understanding of its position.”

Dukes insists that “there remain

questions about the duties which BP placed on [its] ‘company men,’
and the extent of the company man’s role on the M/V SAMPSON.”

But

a non-movant must be diligent in its pursuit of discovery and may
not rest on vague allegations that discovery may produce needed
but unspecified facts to avoid an otherwise properly supported
summary judgment motion. See Beattie v. Madison County Sch. Dist.,
254 F.3d 595, 606 (5th Cir. 2001)(although Rule 56(d) motions are
generally favored, the nonmoving party must show that he has
diligently

pursued

discovery,

as

well

as

show

why

he

needs

additional discovery and how the additional discovery will create
a genuine issue of material fact).

Here, Dukes fails to explain

why he had not previously obtained the discovery he now seeks. 6

This case was filed in October 2015. The original trial date was
continued just last month upon joint request by the parties because
the plaintiff had not yet reached Maximum Medical Improvement.
Why significant discovery progress was not made under the original
scheduling order is not explained. The plaintiff simply suggests
that it only recently received the relevant contracts and the
identity of the BP company men, who are not currently employed by
the defendants and have not responded to requests for depositions.
The plaintiff offers no explanation as to why he did not pursue
the discovery he now seeks within the deadlines fashioned by the
initial scheduling order.
Notably, Dukes was asked in his
deposition on November 30, 2016 about the documents he claims he
just received, and he was specifically asked about Harkand, a
company he now says “may even need to be added as a defendant” if
Harkand representatives are deposed and testify consistently with
BP’s submission here. This suggests that the plaintiff has not
been diligent in seeking discovery and is no reason to delay in
ruling on BP’s motion for summary judgment.
20
6

And, more critically, he fails to show how the additional discovery
is not simply a fishing expedition, but, rather, will create a
genuine issue of material fact.

He merely says that the BP company

men need to be deposed, as does a Harkand representative, to
determine whether they will testify that they conducted themselves
consistently with the terms of the relevant contracts. The summary
judgment rules do not countenance delay tactics based on nothing
more than hope that the evidence one did not diligently pursue may
uncover evidence to support a claim. 7
Accordingly, BP’s motion for summary judgment is GRANTED.
The plaintiff’s claims against BP are hereby dismissed.
New Orleans, Louisiana, April 27, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

“Rule 56(d) ‘does not condone a fishing expedition where a
plaintiff merely hopes to uncover some possible evidence of
[value].’” Menard, 2017 WL 1317568, at *2 (citing Duffy v. Wolle,
123 F.3d 1026, 1041 (8th Cir. 1997) and Jason v. Parish of
Plaquemines, No. 16-2728, 2016 WL 4623050, at *4-5 (E.D. La. Sept.
6, 2016)(denying plaintiff’s request to defer consideration of
motion for summary judgment because the plaintiff gave “nothing
more than a ‘speculative hope’ that discovery might provide
plaintiff with information supporting his claims”)(quotation
omitted)).
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7