Kemp v. ABC Insurance Company et al
ORDER granting 4 Motion for Summary Judgment filed by CWT Commodities USA, LLC. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILHELMSEN SHIPS SERVICE, INC., ET AL.
ORDER AND REASONS
Before the Court is Defendant’s, CWT Commodities (USA), LLC
(“CWT”), “Motion for Summary Judgment” (Rec. Doc. 4), Plaintiff’s,
Kiara Kemp, opposition thereto (Rec. Doc. 6), and Defendant’s
Plaintiff’s claims against it dismissed with prejudice on the
grounds that there is no genuine issue of material fact that CWT
had no duty to the Plaintiff and, hence, no liability for the
Plaintiff’s action, so as to warrant summary judgment. For the
reasons stated more fully herein, IT IS ORDERED that Defendant’s
Motion is GRANTED.
CONTENTIONS OF PARTIES
Defendant argues that there is no genuine issue of material
fact that it cannot be found liable for Plaintiff’s injury. (Rec.
Doc. 4-1 at 2). Specifically, Plaintiff was injured when she
boarded the M/V UNITED TENORIO to inventory the cargo and a large
bundle of rebar sprung free of its casing and violently struck
her, due to its alleged negligent packaging, loading, storage, and
transportation. (Rec. Doc. 6 at 1-2). Defendant maintains that, as
a freight forwarder, it cannot be held liable because CWT did not
package, load, store, or transport the rebar; CWT was not the
shipper of the rebar; CWT had no responsibility to supervise the
loading of the rebar or inspect its stowage; CWT did not hire or
have responsibility for the stevedors who loaded the rebar; CWT
was not involved in or responsible for the preparation of a stowage
or loading plan; CWT was not the owner of the rebar; neither CWT
nor any of its employees ever had possession of the rebar; CWT was
not the owner or charterer of the M/V UNITED TENORIO; and CWT did
not have an office or any employees in New Orleans at the time of
Plaintiff’s injury. (Rec. Doc. 4-1 at 2) (citing Rec. Doc. 4-4).
Defendant contends that, as a freight forwarder for the owner of
the rebar, its only duty was to coordinate and facilitate getting
the rebar from New Orleans to its ultimate destination. (Rec. Doc.
4-1 at 2-3).
Plaintiff argues that, based on information and belief, the
rebar was negligently packaged, loaded, stored and/or transported.
(Rec. Doc. 6 at 1) (citing Rec. Doc. 6-1 at 1). Further, Plaintiff
argues that, according to the Bill of Lading, CWT was the Shipper,
Forwarder, and Cosignee of the M/V UNITED TENORIO. (Rec. Doc. 6 at
3) (citing Rec. Doc. 6-1 at 1). In light of the foregoing,
Plaintiff concludes that CWT must have been involved with the
transporting of the rebar, so as to create a genuine issue of
material fact. (Rec. Doc. 6 at 3). Plaintiff further avers that
summary judgment should be denied as Plaintiff needs additional
time to conduct discovery. (Rec. Doc. 6 at 3).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the pleadings, depositions,
affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986).
A genuine issue exists if the evidence
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Although the Court must consider the evidence with all
reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.
Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
informing the district court of the basis for its motion. Celotex,
477 U.S. at 323. The movant must point to “portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits’ which it believes demonstrate
the absence of a genuine issue of material fact.” Id. (citing Fed.
R. Civ. P. 56). If and when the movant carries this burden, the
nonmovant must then go beyond the pleadings and use affidavits,
evidence to establish a genuine issue.
Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“[W]here the non-movant bears the burden of proof at trial,
the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
Sears Roebuck and Co., 16 F.3d 616 (5th Cir. 1994). Accordingly,
conclusory rebuttals of the pleadings are insufficient to avoid
Travelers Ins. Co. v. Liljeberg Enter., Inc.,
7 F.3d 1203, 1207 (5th Cir. 1993).
Defendant CWT has met its burden of demonstrating the absence
of a genuine issue of material fact and Plaintiff has failed to
rebut the same. Specifically, Defendant first cites law implying
that freight forwarders are not typically liable in these types of
incidents. (Rec. Doc. 4-1 at 2) (citing
Couch v. Cro-Marine
Transport, 44 F. 3d 319 (5th Cir. 1995); Kirksey v. Tonghai
Maritime, 535 F. 3d 388 (5th Cir. 1995)). Second, Defendant
Defendant’s lack of involvement in the incident. (Rec. Doc. 4-1 at
2) (citing Rec. Doc. 4-4). To rebut this, Plaintiff provides an
alleged Bill of Lading which lists CWT as the Shipper, Forwarder,
and Cosignee, and her own affidavit which simply restates what is
listed on the Bill of Lading and maintains that the rebar was
negligently packaged, loaded, stored and/or transported upon her
information and belief. (Rec. Docs. 6-1, 6-2). In Plaintiff’s
opposition, she suggests that this establishes that Defendant CWT
loading, storing, and/or transporting of the rebar. (Rec. Doc. 6
at 3). Not only does this Court find that Plaintiff’s evidence
fails to prove as much, or even a genuine issue of material fact,
this Court also notes that Plaintiff’s evidence is overwhelmingly
improper. Plaintiff is not a knowledgeable affiant as required
under Fed. R. Civ. P. 56(c)(4) for the testimony given and the
internal document. At most, that document pertains to transport of
the cargo from New Orleans to St. Louis after its offloading from
the M/V UNITED TENORIO onto barges owned by Plaintiff’s employer.
This Court does, however, take note of Plaintiff’s argument
regarding incomplete discovery as a reason to postpone a grant of
summary judgment, mostly in light of this case only recently being
removed to this Court, such that discovery has not yet taken place.
(Rec. Doc. 1). Under Rule 56(d), “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.” Fed. R. Civ. P. 56(d). Rule
granted.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010).
However, the Rule 56(d) movant “must set forth a plausible basis
for believing that specified facts, susceptible of collection
within a reasonable time frame, probably exist and indicate how
the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.” Id.
“liberally granted[,]” id., the Court finds such relief is not
warranted here. Of particular import, Plaintiff has not actually
filed a motion pursuant to Rule 56(d), but has merely suggested
that “Louisiana Courts of Appeal have reversed summary judgments
granted by the trial court when there was still discovery to be
conducted.” (Rec. Doc. 6 at 3). The U. S. Fifth Circuit has
recently declined to grant a Rule 56(d) motion when no such motion
782 F.3d 224, 238 (5th Cir. 2015) (declining to grant Appellant
relief when he “never filed a Rule 56(d) motion in response to
Appellees' motion for summary judgment, and [did] not identif[y]
any discovery that he was unable to take”). Plaintiff’s reference
to Louisiana case authority is irrelevant in this instance and
does not provide a basis for relief in this federal action.
Further, Plaintiff has not “set forth a plausible basis for”
this Court to believe that there are “specified facts” that
“probably exist” and “will influence the outcome of the pending
summary judgment motion.” Raby, 600 F.3d at 561. Rather, Plaintiff
states that she “has not had time to conduct discovery to verify
and/or dispute all of [D]efendants’ involvement” and that she
“needs an appropriate amount of time to issue discovery as well as
depose the relevant individuals cited in [D]efendant’s summary
judgment.” (Rec. Doc. 6 at 3). In addition to the aforementioned
reasons, the Court finds that Defendant’s motion must prevail in
the absence of Plaintiff pointing to specific facts that she
believes are discoverable and dispositive to this motion. See
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 257 (5th
articulate specifically what facts he needed to respond to the
In light of the foregoing, IT IS ORDERED that Defendant’s
Motion for Summary Judgment is GRANTED.
New Orleans, Louisiana, this 20th day of January, 2016.
UNITED STATES DISTRICT JUDGE
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