Homer et al v. DNOW L.P. et al

Filing 117

ORDERED that the 72 Motion for Summary Judgment is GRANTED. Plaintiffs' claims against DNOW, L.P. are hereby DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 4/4/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL JASON HOMER, SR.,
ET AL.
Plaintiffs

CIVIL ACTION

VERSUS

NO. 16-1210

DNOW L.P., ET AL.
Defendants

SECTION: “E” (3)
ORDER AND REASONS

Before the Court is Defendant DNOW, L.P.’s (“DNOW”) motion for summary
judgment.1 The motion is unopposed.2 For the reasons that follow, DNOW’s motion for
summary judgment is GRANTED.
BACKGROUND
This is a personal-injury case. On January 8, 2016, Michael Jason Homer, Sr., and
his wife, Liese Homer (collectively, “Plaintiffs”), filed suit in the 29th Judicial District
Court for the Parish of St. Charles, State of Louisiana, against Defendants DNOW, L.P.;
Sellstrom Manufacturing Company (“Sellstrom”); RTC Fall Protection, a subsidiary of
Sellstrom; Capital Safety USA; and Hagemeyer N.A., Inc.3 The action was removed to
federal court on February 11, 2016, on the basis of diversity of citizenship.4
According to the state-court petition, at the time of the incident-in-question,5
Plaintiff Michael Jason Homer, Jr. (“Homer” or “Plaintiff”), was employed by DOW
Chemical as a Manufacture and Engineer Technologist.6 The petition alleges that, on the
R. Doc. 72.
R. Doc. 88.
3 R. Doc. 1-2 at 7–8.
4 R. Doc. 1.
5 The state-court petition, as filed in the Court’s record, does not indicate the date on which the alleged
incident took place, though it appears portions of the state-court filings were cut off when scanning them
to be filed.
6 R. Doc. 1-2 at 8.
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day of the incident, temperatures were “cold enough to freeze water,” which thereby
caused DOW Chemical’s water pipes to “freeze[]” and “bust[]” and several leaks to
develop.7 According to Homer, he was assigned the task of stopping the leaks by “closing
the main valve,” which was elevated “22 feet up into the pipe rack.”8 The petition states,
“Following his advisor’s instructions, [Homer] grabbed his safety harness manufactured
by defendant, Capital Safety[,] and the harness lanyard manufactured by defendants
Sellstrom and/or RTC[,] which were purchased by DOW Chemical through defendant,
DNOW and/or Hagemeyer, and proceeded to take care of the busted line with another
technician.”9
As Homer reached the stairs, he untied the lanyard from his harness to retie it to
the next location, and the non-retractable lanyard became wrapped around his left ankle,
causing him fall 22 feet down to a concrete slab onto his back.10
The Plaintiffs brought claims against Sellstrom and RTC as the manufacturers of
the lanyard and harness, and against Capital Safety as the purchaser of the lanyard and
harness, and DNOW and Hagemeyer as the distributors of the lanyard and harness.
Plaintiffs contend the Defendants never instructed or warned DOW Chemical or any of
its employees that the subject harness was unsafe to use as it did not have a retractable
lanyard creating an unsafe working condition.11

R. Doc. 1-2 at 8.
R. Doc. 1-2 at 8.
9 R. Doc. 1-2 at 8.
10 R. Doc. 1-2 at 9.
11 R. Doc. 1-2 at 10–11. On June 30, 2016, the Court granted Sellstrom’s motion to dismiss for lack of
personal jurisdiction. R. Doc. 34. The Court denied Plaintiffs’ motion for reconsideration on November 8,
2016. R. Doc. 39.
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On March 20, 2017, DNOW filed a motion for summary judgment, arguing it was
not the distributor of either the harness or the lanyard at issue in this case. 12 The Plaintiffs
responded to DNOW’s motion, and do not oppose dismissal of their claims against
DNOW.13
STANDARD OF LAW
Summary judgment is appropriate only “if 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.”14 “An issue is material if its resolution could affect the outcome of the action.” 15
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”16 All reasonable inferences are drawn in favor of the nonmoving party.17
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.18
If the dispositive issue is one on which the moving party will bear the burden of
persuasion 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.’” 19 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving

R. Doc. 72.
R. Doc. 88.
14 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
15 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
16 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
17 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
18 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
19 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
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party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.20
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) affirmatively demonstrating there is no evidence in the record to establish
an essential element of the nonmovant’s claim.21 When proceeding under the first option,
if the nonmoving party cannot muster sufficient evidence to dispute the movant’s
contention that there are no disputed facts, a trial would be useless, and the moving party
is entitled to summary judgment as a matter of law.22 When, however, the movant is
proceeding under the second option and is seeking summary judgment on the ground that
the nonmovant has no evidence to establish an essential element of the claim, the
nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by
the moving party.”23 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant.24 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue

Celotex, 477 U.S. at 322–24 (Brennan, J., dissenting).
Id. at 331–32.
22 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249–50 (1986).
23 Celotex, 477 U.S. at 332–33.
24 Id.
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for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).”25 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”26
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’”27
LAW AND ANALYSIS
DNOW seeks summary judgment on the Plaintiffs’ claims against it, arguing there
exist no disputed issues of material fact and it is entitled to judgment as a matter of law
because it was not the distributor of either the harness or lanyard at issue in this case. 28
Plaintiffs bring claims against DNOW under the Louisiana Products Liability Act
(“LPLA”). The Plaintiffs do not allege DNOW is a manufacturer under the LPLA. Under
Louisiana tort law, to establish the liability of a non-manufacturer seller of a product, a
plaintiff must show: (1) the product sold by the seller was defective; (2) the seller had
actual or constructive knowledge that the product it sold was defective and (3) the seller

Celotex, 477 U.S. at 332–33, 333 n.3.
Id.; see also First National Bank of Arizona, 391 U.S. at 289.
27 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
28 R. Doc. 72-1.
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failed to declare the defect.29 Before reaching this analysis, however, the Plaintiffs must
show DNOW was in fact a non-manufacturer seller or distributor of the lanyard or
harness.
DNOW, as movant on summary judgment, bears the burden of submitting
affirmative evidence that negates an essential element of the Plaintiffs’ claim or
demonstrating there is no evidence in the record to establish an essential element of the
Plaintiffs’ claim. DNOW contends the undisputed evidence shows it was neither seller of
neither the harness nor the lanyard at issue. In support of its position, DNOW submits
the sworn affidavit of Courtney E. Greenway, an employee of DNOW, which states
“DNOW, L.P. is not the regular supplier of fall protection equipment to Dow Chemical”
and “at no time between 2008 and 2015 did DNOW L.P. sell any Sellstrom Lanyards with
[the] model number [of the Plaintiff’s harness and lanyard] to Dow Chemical or Union
Carbide.”30 DNOW also submits the deposition testimony of Jeanine Algate, the safety
director at Dow Chemical Company, in which she testified Defendant Hagemeyer North
America, Inc. is the usual supplier for all of the fall protection equipment and she is not
aware of any distributors other than Hagemeyer who would have provided fall protection
equipment to Dow.31
DNOW has provided sufficient affirmative evidence to negate the Plaintiffs’ claims
that it was the seller of the harness or lanyard. As a result, the burden shifts to the
Plaintiffs to point to record evidence that creates a genuine dispute of material fact with
respect to whether DNOW was, in fact, a non-manufacturer seller. The Plaintiffs have not
attempted to do so, and concedes “DNOW, L.P. did not supply the harness and lanyard at
Ayala v. Enerco Grp., 569 Fed. App’x 241, 245 (5th Cir. 2014).
R. Doc. 72-5.
31 R. Doc. 72-7 at 29, 42; R. Doc. 72-8 78, 83–85.
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issue in this case.”32 In fact, Plaintiffs “do not oppose the dismissal [of] their claims
against DNOW L.P. with prejudice.”33
DNOW has shown there exists no genuine dispute as to any material fact and it is
entitled to judgment as a matter of law.
Accordingly,
CONCLUSION
IT IS ORDERED that DNOW, L.P.’s motion for summary judgment is
GRANTED, and the Plaintiffs’ claims against DNOW, L.P. are hereby DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana, this 4th day of April, 2017.
_____________ _______ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

32
33

R. Doc. 88 at 2.
Id. at 3.
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