Menard v. Grand Isle Shipyard, Inc. et al
ORDER AND REASONS granting 44 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 4/10/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LLOG EXPLORATION COMPANY, LLC,
SECTION “R” (3)
ORDER AND REASONS
Defendants LLOG Exploration Company, LLC; LLOG Exploration
Offshore, LLC; and LLOG Exploration & Production Company, LLC
(collectively, “LLOG”) move for summary judgment on plaintiff Corey
For the following reasons, the Court grants LLOG’s
In early 2015, plaintiff Corey Menard was employed as a senior field
technician by Gly-Tech Services, and was assigned to work offshore on
LLOG’s Delta House Floating Production System, a semi-submersible oil-
R. Doc. 44.
exploration platform in the Mississippi Canyon.2 On or about January 22,
2015, plaintiff was aboard the M/V ARABIAN, a support vessel adjacent to
the Delta House. According to plaintiff, because of high winds and rough
seas, the M/V ARABIAN was moving back into shallow waters to give the
crew a break from the extreme conditions.3 Plaintiff alleges that before the
M/V ARABIAN moved, LLOG required plaintiff to go from the M/V
ARABIAN to the Delta House via a personnel basket transfer to collect
belongings left on the Delta House.4 Plaintiff further alleges that during his
attempted transfer, the extremely rough seas caused the personnel basket to
abruptly thrust upward and slam plaintiff, severely injuring his lower back.5
On January 20, 2016, plaintiff sued Grand Isle Shipyard, Gibson
Applied Technology, and LLOG, alleging that their negligence caused his
injury.6 Plaintiff amended his complaint on June 28, 2016, and added
Adriatic Marine, LLC, the owner and operator of the M/V ARABIAN, and
Wood Group Production Services, Inc. (Wood Group), the entity responsible
R. Doc. 1 at 3-4 ¶¶ 7, 8. At the time of the accident, LLOG
Exploration Offshore, LLC was the Bureau of Ocean Energy Management
qualified operator of the Delta House. R. Doc. 44-7 at 2 ¶ 10.
R. Doc. 53-6 at 2-3.
R. Doc. 1 at 4 ¶ 11; R. Doc. 53-6 at 2.
R. Doc. 1 at 4 ¶ 11.
Id. at 5-7 ¶¶ 14-16.
for operations on the Delta House, as defendants.7 Plaintiff seeks a judgment
of $3,000,000, punitive damages, attorneys’ fees, and costs.8
LLOG now moves for summary judgment on plaintiff’s negligence
claims, arguing that there is no evidence of negligence attributable to any of
the LLOG entities that caused or contributed to plaintiff’s alleged injuries,
and that as a matter of law LLOG is not liable for any negligent acts by the
Plaintiff filed a response in opposition, 10 and also
separately moved the Court to delay or defer consideration of LLOG’s motion
so that plaintiff can obtain additional discovery. 11 LLOG replied, 12 and filed
an opposition to plaintiff’s request to delay consideration of its summary
judgment motion. 13
Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
R. Doc. 26 at 3-4.
Id. at 7-8.
R. Doc. 44-1 at 2.
R. Doc. 53.
R. Doc. 50.
R. Doc. 60.
R. Doc. 56.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).
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.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “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.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the existence of a
genuine dispute of material fact, or “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).
Federal Rule of Civil Procedure 56(d) governs requests for additional
time for discovery before consideration of a pending motion for summary
judgment. It 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, 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)).
Here, plaintiff asserts that he has not yet had time to review LLOG’s
responses to plaintiff’s second set of discovery requests and that his motion
to compel an inspection of the Delta House is currently pending before
Magistrate Judge Knowles.14 But plaintiff’s motion does not identify what
specific facts he seeks, much less explain how those unspecified facts will
R. Doc. 50-2 at 2-3.
influence the outcome of LLOG’s summary judgment motion. Plaintiff’s
desire for additional information, without more, does not warrant a
continuance under Rule 56(d). Rule 56(d) “does not condone a fishing
expedition where a plaintiff merely hopes to uncover some possible evidence
of [value].” Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997) (internal
quotation omitted); see also 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
plaintiff gave “nothing more than a ‘speculative hope’ that discovery might
provide plaintiff with information supporting his claims”) (quoting Sweats
Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1567 (Fed. Cir. 1987)).
Additionally, even if plaintiff’s motion did specifically identify facts
that would affect the outcome of the pending summary judgment motion,
Rule 56(d) requires that plaintiff make this showing by affidavit or
declaration. Plaintiff’s motion and the attached documents include neither
an affidavit nor a declaration. This alone is sufficient grounds to deny
plaintiff’s motion. See Scotch v. Letsinger, 593 F. App’x 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 F. App’x 375, 377-78 (5th Cir. 2012) (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).
Because plaintiff’s motion is both procedurally and substantively
defective, the Court will not delay or defer consideration of LLOG’s motion
for summary judgment.
As an initial matter, the Court must determine the applicable law that
governs plaintiff’s negligence claims. Plaintiff’s complaint asserts admiralty
jurisdiction, under which general maritime law would apply.15
Alexander v. Kevin Gros Consulting & Marine Servs., Inc., No. 14-1273,
2016 WL 430413, at *4 (E.D. La. Feb. 4, 2016) (citations omitted). But
plaintiff also asserts, in the alternative, jurisdiction under the Outer
Continental Shelf Lands Act (OCSLA), which generally adopts the law of the
adjacent state as a supplement to federal law. See Rodrigue v. Aetna Cas. &
Sur. Co., 395 U.S. 352, 355 (1969). Essentially, if plaintiff was injured on the
M/V ARABIAN at sea or while en route to the Delta House, maritime law
applies, and if he was injured on the Delta House, Louisiana law applies
R. Doc. 1 at 1 ¶ 1.
through OCSLA. 16 See Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589
F.3d 778, 781 (5th Cir. 2009).
The parties’ briefs do not answer the choice of law question, instead the
parties brief the issues under both general maritime and Louisiana law. But
Plaintiff testified that he was injured when the personnel basket jerked up
while on the deck of the M/V ARABIAN, and not while he was en route or
aboard the Delta House. 17 Thus, as the evidence indicates that plaintiff was
on the M/V ARABIAN when injured, and not on the Delta House, general
maritime law applies.
To establish maritime negligence, a plaintiff must demonstrate “‘that
there was a duty owed by the defendant to the plaintiff, breach of that duty,
injury sustained by the plaintiff, and a causal connection between the
defendant’s conduct and the plaintiff’s injury.’” In re Great Lakes Dredge &
Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010) (quoting Canal Barge Co. v.
Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (internal modifications
omitted)). Under maritime law, a plaintiff is owed a duty of ordinary care
under the circumstances. Id. (citing Daigle v. Point Landing, Inc., 616 F.2d
825, 827 (5th Cir. 1980)).
The parties do not dispute that Delta House’s offshore location is
adjacent to the State of Louisiana.
R. Doc. 44-5 at 4.
LLOG argues that there is no evidence of any negligence attributable
to any of the LLOG entities that caused or contributed to plaintiff’s alleged
injuries.18 In support, LLOG submits the affidavit of Craig Mullett, LLOG’s
Offshore Construction Manager. 19
Mullett attests that there were no
employees of any of the LLOG entities on either the Delta House or the M/V
ARABIAN on January 22 or 23, 2015.20 Further, Mullett attests that the two
cranes on Delta House (that are used in personnel basket transfers) were not
operated by LLOG employees, and that no crane defects were reported to
LLOG in January, 2015. 21
Plaintiff’s complaint identified more than fifteen specific negligent
actions or inactions that LLOG allegedly took or failed to take, including
failing to properly transfer plaintiff from the M/V ARABIAN to the Delta
House, requiring plaintiff to make the transfer, failing to provide proper
safety precautions, etc. 22 Despite the allegations in plaintiff’s complaint,
however, plaintiff has submitted no evidence of any negligence by the LLOG
entities themselves that caused his injuries.
Plaintiff testified at his
deposition that he did not know if anyone with him on the day of the accident
R. Doc. 44-1 at 2.
R. Doc. 44-7.
Id. at 2-3 ¶¶ 14, 15.
Id. at 3 ¶¶ 17-19.
R. Doc. 1 at 5-6 ¶ 14.
was employed by any of the LLOG entities, and could not identify anything
that any LLOG employee did that was a cause of his accident. 23 Additionally,
he was not aware of any defects or problems with the crane used for the
personnel basket transfer that could have caused the accident. 24 Finally,
plaintiff testified in his deposition that the instruction to make the personnel
basket transfer came from the Offshore Installation Manager Chuck Breaux,
an employee of Wood Group. 25 Therefore, not only is there no evidence that
LLOG required defendant to make the personnel basket transfer at issue, but
also there is no evidence that any LLOG employee was present at the time of
the accident or directly influenced the decision to make the personnel basket
Given this absence of evidence, any argument that LLOG should be
liable for Menard’s injuries is based on either holding LLOG liable for the
acts of its contractor Wood Group, or liable as the time charterer of the M/V
Independent Contractor Liability
The Fifth Circuit has “consistently held” that a principal has no general
liability for the negligence of its “independent contractors over which he
R. Doc. 44-5 at 5-6.
Id. at 6.
R. Doc. 53-6 at 2; R. Doc. 60-1 at 12.
exercises no operational control.” Skinner v. Schlumberger Tech. Corp., 655
F. App’x 188, 192 (5th Cir. 2016) (quoting Wilkins v. P.M.B. Sys. Eng’g, Inc.,
741 F.2d 795, 800 (5th Cir. 1984)). 26 Therefore, the analysis of LLOG’s
liability for the actions of its independent contractor Wood Group is limited
to whether LLOG exercised operational control over the employees of Wood
LLOG points to the terms of the Master Service Agreement between
LLOG and Wood Group to argue that it had no operational control over
Wood Group. 27 The agreement states:
[LLOG] shall designate the work it desires to be performed and
the ultimate results to be obtained, but shall leave to Contractor
the methods and details of performance of the work, [LLOG]
being only interested in the results obtained and having no
control over the manner and method of performance. 28
The clear language of the agreement indicates that Wood Group had
exclusive control over the methods and performance of its employee’s work,
There is no appreciable difference between federal maritime law
and Louisiana law on this issue. See Alexander, 2016 WL 430413, at *4.
Though Louisiana law, and not general maritime law, imposes liability upon
the principal for damages caused by an independent contractor if the
independent contractor is performing an ultra-hazardous activity, a
personnel basket transfer is not an ultra-hazardous activity. See Newman v.
KMJ Servs., Inc., No. 04-2518, 2006 WL 3469563, at *2 (E.D. La. Nov. 30,
2006) (citing Mathis v. Lafayette Crewboat Servs., Inc., No. 93-3899, 1995
WL 550950, at *2 (E.D. La. Sept. 15, 1995)).
R. Doc. 44-8.
Id. at 1 ¶ 3.1.
and that LLOG expressly disclaimed any connection with the actual
performance of the services to be provided. Plaintiff has submitted no
evidence that LLOG gave specific instructions or directives to Wood Group
as to how its employees should work or how to perform any part of their
duties, and it is uncontested that no LLOG employee was present when
Menard’s accident occurred. Accordingly, as there is no dispute of material
fact indicating that LLOG exercised operational control over Wood Group’s
employees, as a matter of law LLOG is not liable for Wood Group’s allegedly
negligent acts. See Skinner, 655 F. App’x at 192-93; see also Coulter v.
Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997) (applying Louisiana law);
Newman, 2006 WL 3469563, at *2-3 (same).
Time Charterer Liability
Plaintiff also seeks to hold LLOG liable, as the time charterer of the
M/V ARABIAN, for the negligence of Adriatic Marine, the owner and
operator of the M/V ARABIAN. 29 The Fifth Circuit has held that a time
charterer “owes a hybrid duty arising from contract and tort to persons
including vessel passengers, to avoid negligent activity within ‘the sphere of
activity over which it exercises at least partial control.’” Callahan v. Gulf
Logistics, L.L.C., 456 F. App’x 385, 390 (5th Cir. 2011) (quoting Hodgen v.
R. Doc. 26 at 4 ¶ 5.
Forest Oil Corp., 87 F.3d 1512, 1520 (5th Cir. 1996)). The traditional spheres
of activity over which time charterer’s exercise control and thus owe a duty
include, inter alia, “choosing the vessel’s cargo, route, and general mission,
as well as the specific time in which the vessel will perform its assignment.”
Hodgen, 87 F.3d at 1520 (collecting cases). Caselaw also shows that “absent
special circumstances, a time charterer’s traditional sphere of control does
not extend to providing a safe means of ingress and egress [to and] from the
vessel.” Callahan, 456 F. App’x at 390 (citations omitted). The vessel owner
and time charterer may, however, vary the traditional assignment of control
by contract. Hodgen, 87 F.3d at 1520.
Both parties rely on the Blanket Time Charter Agreement between
LLOG and Adriatic Marine for their respective positions. The agreement
[LLOG] shall have the sole and exclusive right to the services and
full reach of each vessel time chartered [from Adriatic], but
nothing contained herein or elsewhere to the contrary shall be
construed as a demise of the vessel to [LLOG], and the entire
operation, navigation, management, control, performance and
use of each vessel shall be under the sole and exclusive command
of, and be actually accomplished by [Adriatic] as an independent
contractor, [LLOG] only interested in the results obtained.
[LLOG] shall, however, have the right to designate the voyages to
be undertaken and the services each vessel is to perform, subject
always to the sole right of [Adriatic] or the captain of each vessel
to determine whether the movement may be safely undertaken,
with the captain always being in charge. 30
The plain text of the agreement contains nothing indicating that LLOG had
control over decisions related to personnel transfers, and expressly reserves
the exclusive operation, navigation, management, control, performance and
use of the M/V ARABIAN to Adriatic.
This includes the decision to
determine whether any “movement may be safely undertaken.”31 Further,
plaintiff submits no evidence that LLOG’s conduct as a charterer was “more
broadly exercised or inconsistent with the terms of the charter agreement,”
Callahan, 456 F. App’x at 391, in relation to the personnel transfer. Plaintiff
also submits no evidence of “special circumstances” indicating that LLOG
had control over ingress and egress from the vessel. Thus, there is no
disputed issue of fact over LLOG’s lack of contractual and operational
control, and therefore as a matter of law LLOG is not liable for the allegedly
negligent actions of Adriatic. See Barron v. BP Am. Prod. Co., 590 F. App’x
294, 296-97 (5th Cir. 2014); D.C. Chem. Co. v. M/T ST. PETRI, 654 F. Supp.
2d 574, 578-80 (S.D. Tex. 2009).
Plaintiff attempts to resist this conclusion by arguing that: 1) the terms
of the agreement provide that LLOG has “the right to designate the voyages
R. Doc. 44-9 at 2 ¶ 11.
to be undertaken and the services each vessel is to perform;”32 and 2) the
decision to move the M/V ARABIAN into shallow waters is a “voyage” and
performing a personnel basket transfer is a “service.”33 This argument is
First, not only does plaintiff not cite a single case defining
“voyage” in this context to include a decision to move a vessel into shallow
waters, but also a nearly identical argument was recently rejected by the Fifth
Circuit in Callahan.
In Callahan, the plaintiff was aboard a support vessel preparing to
board a drilling rig via a personnel basket transfer in rough sea conditions.
456 F. App’x at 388. Shortly before the transfer, the vessel lunged, and the
plaintiff injured his back. Id. Plaintiff sued multiple defendants, including
the time charterer of the support vessel, alleging negligence. After the
district court granted the time charterer summary judgment, the Fifth
Circuit rejected the plaintiff’s argument that the time charterer owed plaintiff
a duty because the time charterer had authority to decide where and when
the personnel transfer would occur. Relying on an essentially identical
charter agreement, the Fifth Circuit held that the charterer “disavowed all
control” over “the means by which [the charterer’s] results were obtained,
R. Doc. 53 at 7-8.
including the decision to “determine the safety of a voyage.” Id. at 391.
Finally, the Fifth Circuit held that the time charterer’s “right to designate the
voyages to be undertaken” referred “only to [the time charterer’s]
designation of the general mission of the vessel but not to operational
matters such as the timing of personnel transfers.” Id. Callahan’s logic
applies equally here. Further, even assuming that a personnel transfer is a
service, LLOG expressly disclaimed management and control over the
method of execution of services provided by Adriatic, including whether the
movement could be safely undertaken. Plaintiff’s argument is unavailing.
Finally, plaintiff argues that at this stage he is entitled to all reasonable
inferences, and that with all reasonable inferences in his favor, there are
genuine issues of material fact that should preclude summary judgment. 34
While plaintiff is correct that he is entitled to all reasonable inferences, the
inferences must be justifiable. See Tolan v. Cotton, 134 S. Ct. 1861, 1863
(2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Plaintiff has pointed to no such reasonable or justifiable inferences that can
be drawn from this record.
R. Doc. 53 at 9-10.
For the foregoing reasons, LLOG’s motion for summary judgment is
New Orleans, Louisiana, this _____ day of April, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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