Bordelon Marine, LLC v. Bibby Subsea ROV, LLC

Filing 42

ORDER AND REASONS granting 31 MOTION to Reopen Case. FURTHER ORDERED: Show Cause Hearing set for 11/30/2016 08:30 AM before Judge Lance M Africk, as stated herein. FURTHER ORDERED that declarant Wesley Bordelon attend the show cause hearing in person. FURTHER ORDERED that Bibby Subsea's pre-hearing brief is due 10/26/2016, as stated herein. FURTHER ORDERED that Bordelon's response to Bibby's pre-hearing brief is due 11/4/2016, not to exceed fifteen pages.FURTHER ORDERED that any pre-hearing brief filed on behalf of Mr. Reich is due 11/4/2016, not to exceed ten pages. FURTHER ORDERED that any pre-hearing brief by Reich, Album, & Plunkett is due 11/4/2016, not to exceed five pages. FURTHER ORDERED that, should Bibby wish to file a reply, Bibby's reply to all the briefs is due 11/11/2016, not to exceed 15 pages. Signed by Judge Lance M Africk on 10/17/2016.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BORDELON MARINE, LLC

CIVIL ACTION

VERSUS

No. 16-1106

BIBBY SUBSEA ROV, LLC

SECTION I

ORDER AND REASONS
Bordelon Marine (“Bordelon”) filed suit against Bibby Subsea (“Bibby”) in
Louisiana state court last fall. Bordelon’s suit sought to collect on, among other
things, unpaid services that Bordelon had provided Bibby in relation to the M/V
SHELIA BORDELON. The complaint alleges that invoice 15-58 is due for those
services. 1 The truth of the factual statements in the complaint was verified by Wesley
D. Bordelon, the President of Bordelon Marine. 2
Bibby removed the case to federal court, and moved to stay the matter pending
arbitration. 3 This Court subsequently compelled arbitration. 4

This Court’s order

noted that the parties had agreed to arbitrate “any dispute arising out of or in
connection with” Bibby’s charter of the SHELIA BORDELON, and that Bordelon had
not raised a “cogent argument” that the state court lawsuit involving, among other

Invoice 15-58 is for “the services of the M/V Wes Bordelon utilized to deliver
approximately 68,000 gals of potable water to the M/V Shelia Bordelon.” R. Doc. No.
31-2, at 11.
2 R. Doc. No. 1-1, at 8.
3 R. Doc. No. 11.
4 R. Doc. No. 27, at 19.
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invoices, invoice 15-58, did not “have a significant relationship” with the SHELIA
BORDELON’s charter. 5
Notwithstanding this Court’s order compelling arbitration, Bordelon recently
filed a second collection lawsuit in Louisiana state court to attempt to collect on
invoice 15-58.

Bibby now moves 6 to enjoin Bordelon’s recently filed state court

proceedings, as well as for sanctions. Since Bibby filed its motion, the arbitration
regarding the SHELIA BORDELON has concluded because Bordelon failed to file any
claims in the arbitration. 7
For the following reasons, the Court finds that Bordelon violated its order
compelling arbitration, but defers the question of sanctions until after a show cause
hearing.
I.
Bordelon’s recent lawsuit violated this Court’s prior order compelling
arbitration. Its arguments to the contrary are both irrelevant and incredible.
First, having previously alleged, in a complaint verified by its president, no
less, that invoice 15-58 relates to services provided “in relation to the M/V SHELIA
BORDELON,” 8 Bordelon cannot now abandon those allegations and claim that
somehow invoice 15-58 was not a part of the dispute that this Court previously
compelled to arbitration. See, e.g., McCreary v. Richardson, 738 F.3d 651, 659 n.5

R. Doc. No. 27, at 18-19. The order, however, did not explicitly mention invoice 1558.
6 R. Doc. No. 31.
7 R. Doc. No. 41-1, at 1.
8 R. Doc. No. 1-1, at 3.
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(5th Cir. 2013) (explaining the general principle that “factual statements in the
pleadings constitute binding judicial admissions”).

Accordingly, Bordelon’s

contention that invoice 15-58 is distinct from the SHELIA BORDELON lawsuit
comes too late in the case to matter given that Bordelon included allegations relating
to invoice 15-58 in its complaint. Thus, this Court need not even consider Bordelon’s
jury-rigged explanation as to why invoice 15-58 was not part of the dispute over the
SHELIA BORDELON in order to conclude that Bordelon violated this Court’s prior
order.
Second, even if this Court were to consider Bordelon’s explanation, Bordelon’s
newfound account of the parties’ contractual relationship cannot withstand any
degree of scrutiny. Until at least March 2016, Bordelon appears to have been still
claiming that invoice 15-58 related to the dispute regarding the SHELIA
BORDELON. As Bordelon’s lead counsel noted in a March 2016 letter to Bibby’s
counsel,
As to the dispute over the M/V SHELIA BORDELON, we have been
advised only one dispute remains. Enclosed herewith is a copy of Bordelon’s
invoice #15-58 . . . which reflects a . . . charge for the M/V WES BORDELON
delivering approximately 68,000 gallons of potable water to the M/V SHELIA
BORDELON, while it was under charter to Bibby. Please also note that the
invoice was issued on net thirty (30) terms and was due on July 23, 2015.
Through March, Bibby has incurred $480.00 in interest. Therefore, the total
settlement of all claims relating to the M/V SHELIA BORDELON would
require payment of at least $4,480.00. 9
So it appears as though Bordelon did not start to create the false narrative that
invoice 15-58 “has nothing to do with the . . . charter agreement . . . pertaining to the

9

R. Doc. No. 38-1, at 3.
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SHELIA BORDELON” 10 until after this Court compelled Bordelon to arbitration in
July 2016. 11 In addition, the additional evidence submitted in support of Bordelon’s
motion belies Bordelon’s assertion that the dispute over invoice 15-58 is entirely
unrelated to the dispute over the SHELIA BORDELON. 12
Third, the Court’s conclusion on this point is unchanged by the fact that the
arbitration panel has since dismissed the arbitration because Bordelon did not submit
a claim in the arbitration. Bordelon’s self-serving failure to raise invoice 15-58 in
arbitration is not compelling evidence that the invoice was not part of the parties’
dispute regarding the SHELIA BORDELON charter. After all, the picayune value of
the invoice—which does not appear to exceed the jurisdictional maximum for small
claims court in Orleans Parish—is dwarfed by the significant strategic value of
maintaining parallel state court litigation given the parties’ broader dispute. And, in
any case, the arbitration panel’s ultimate dismissal cannot exonerate Bordelon’s prior
choice to file parallel state court litigation in violation of this Court’s order.
The arbitration agreement that this Court enforced required arbitration of
“any dispute arising out of or in connection with” the charter of the SHELIA
BORDELON. 13 Given both Bordelon’s original verified complaint and the evidence
submitted in support of this motion, it is incontrovertible that the dispute over invoice

R. Doc. No. 31-2, at 20 (August 26, 2016 letter from Bordelon’s counsel).
R. Doc. No. 27.
12 For example, the subject line on the email Bordelon attached discussing invoice 1558 was “settlement of accounts related to M/V Shelia Bordelon”. See R. Doc. No. 365, at 5-6.
13 R. Doc. No. 27, at 18.
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15-58 is substantially related to the charter of the SHELIA BORDELON and is part
of the dispute that this Court compelled to arbitration. Thus, Bordelon’s recent state
court collection lawsuit attempting to collect on invoice 15-58 violated this Court’s
prior order compelling arbitration, and the only question is the proper remedy.
II.
The conduct of both Bordelon Marine and its counsel in this matter has been
unacceptable. To the extent that Bordelon wished to challenge this Court’s order
compelling arbitration, it should have sought a stay of this Court’s order compelling
arbitration pending its ongoing appeal to the Fifth Circuit. Instead, Bordelon has
attempted to circumvent an order of the Court through the filing of a vexatious
lawsuit (or at the very least a premature one). Further, in opposing Bibby’s attempts
to enjoin Bordelon’s latest lawsuit, Bordelon’s counsel appears to have (1) filed
meritless papers in this Court for the “improper purpose[s]” of harassment, causing
unnecessary delay, and increasing the cost of litigation, Fed. R. Civ. P. 11(b)(1), as
well as (2) supported those meritless papers with “factual contentions” that lack
“evidentiary support” and are self-contradictory, Fed. R. Civ. P. 11(b)(4).
That course of behavior not only wastes the resources of this Court, the
Louisiana state courts, and the parties, but it also seriously damages the professional
reputation of Bordelon in a district where it is a repeat litigant. Furthermore, the
Court cannot help but note that, by this point, counsel for Bordelon has what amounts
to his own personal sanctions jurisprudence in this district. See, e.g., Tajonera v.
Black Elk Energy Offshore Operations, No. 13-366, 2015 WL 9311968, at *8 (E.D. La.

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2015) (Brown, J), aff’g No. 13-366, Dkt. 714 (E.D. La. 2015) (North, M.J.); Howard v.
Offshore Lifeboats, LLC, 2015 WL 3796458, at *3 (E.D. La. 2015) (Morgan, J.), aff’g
2015 WL 965976, at *11-12 (E.D. La. 2015) (North, M.J.); XL Specialty Ins. Co. v.
Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 2155242, at *3 (E.D. La. 2014)
(Vance, C.J.), aff’g No. 12-2071, Dkt. 166 (E.D. La. 2014) (Wilkinson, M.J.); Bordelon
Marine, Inc. v. F/V KENNY BOY, No. 09-3209, 2011 WL 164636, at *6 (E.D. La.
2011) (Knowles, M.J.); Landers v. Kevin Gros Offshore, L.L.C., 2009 WL 2046587, at
*4 (E.D. La. 2009) (Shushan, M.J.); cf. Lytal Enters., Inc. v. Newfield Exploration Co.,
2006 WL 3366128, at *4-5 (E.D. La. 2006) (Wilkinson, M.J.) (sanctioning client).
There will be consequences for Bordelon’s conduct. However, as the Court is
contemplating potentially significant monetary and non-monetary sanctions, the
Court wishes to hear the explanation for Bordelon’s conduct in-person before acting.
In addition, the Court recognizes that the conclusion of the arbitration may affect the
proper remedy. Thus, the Court will defer the determination of the proper remedy
for Bordelon’s conduct until after a show cause hearing.
III.
Accordingly,
IT IS ORDERED that this matter is REOPENED.
IT IS FURTHER ORDERED that, on November 30, 2016 at 8:30 AM,
Bordelon Marine, Reich, Album, & Plunkett, and Robert S. Reich are ordered to
appear before this Court to SHOW CAUSE as to why they should not be sanctioned
under Rule 11 or any other applicable statutory or inherent power of this Court for

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the course of conduct outlined in this order as well as their violation of this Court’s
order compelling arbitration.

In addition, they should be prepared to discuss (1)

whether this Court’s ability to award monetary sanctions is limited to (i) Bibby
Subsea’s costs in bringing this motion and opposing the state court collection suit, or
(ii) whether this Court can impose additional sanctions to deter future noncompliance with court orders; (2) whether any sanctions awarded should run against
(i) Bordelon Marine, (ii) Reich, Album & Plunkett, or (iii) Mr. Reich personally, see
Fed. R. Civ. P. 11(c)(1) (“Absent exceptional circumstances, a law firm must be held
jointly responsible for a violation committed by its partner, associate, or employee.”);
and (3) what non-monetary sanctions would be appropriate in addition to monetary
sanctions, including, but not limited to, additional mandatory CLE classes and/or
referral to the Lawyers’ Disciplinary Committee for the Eastern District of Louisiana
for possible reprimand or suspension. 14
IT IS FURTHER ORDERED that declarant Wesley Bordelon attend the
show cause hearing in person.
IT IS FURTHER ORDERED that Bibby Subsea’s pre-hearing brief is due
October 26, 2016. Bibby’s brief should address (i) the propriety, given the apparent
conclusion of the arbitration, of enjoining the state court under the Anti-Injunction
Act and the traditional factors governing the award of equitable relief, (ii) the
sanctions that this Court can theoretically award against either Bordelon Marine or

The Court notes that, should the Court decide to impose sanctions, Bordelon and
Mr. Reich may have a conflict of interest at the hearing.

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Mr. Reich, and (iii) the proper sanctions in this case. Bibby’s brief shall not exceed
fifteen pages. Bibby’s brief should be accompanied by evidence of Bibby’s costs and
fees for (i) bringing this motion and (ii) opposing the recently filed state court
litigation attempting to collect on invoice 15-58.
IT IS FURTHER ORDERED that Bordelon’s response to Bibby’s pre-hearing
brief is due November 4, 2016. Bordelon’s brief shall not exceed fifteen pages.
IT IS FURTHER ORDERED that any pre-hearing brief filed on behalf of Mr.
Reich is due November 4, 2016. The brief shall not exceed ten pages.
IT IS FURTHER ORDERED that any pre-hearing brief by Reich, Album, &
Plunkett is due November 4, 2016. The brief shall not exceed five pages.
IT IS FURTHER ORDERED that, should Bibby wish to file a reply,
Bibby’s reply to all briefs is due November 11, 2016. The reply brief shall not
exceed 15 pages.
New Orleans, Louisiana, October 17, 2016.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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