O'Berry v. ENSCO International, Inc et al

Filing 117

ORDER AND REASONS denying 86 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan on 8/21/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIS D. O’BERRY,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-3569

ENSCO INTERNATIONAL,
LLC, ET AL.
Defendants

SECTION: “E” (1)

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment filed by the Plaintiff,
Willis D. O’Berry. 1 The Defendants oppose this motion. 2 For the following reasons, the
Plaintiff’s Motion for Partial Summary Judgment is DENIED.
BACKGROUND
On April 21, 2016, Plaintiff, Willis D. O’Berry, filed his Seaman Complaint against
the Defendants. 3 Plaintiff alleges that on or about March 17, 2015, he was a mandatory
participant in a water survival training course required by Defendants and taught by their
agent, SMTC Global. 4 This course, which Plaintiff concedes was taught ashore, included
participating in a simulated at-sea escape from a downed helicopter and boarding of life
rafts. 5 Plaintiff, who was then sixty-two years old, alleges he had great difficulty getting
out of the water and into a life raft. 6 Plaintiff alleges that, because of his age, he should
have had a medical clearance before engaging in such arduous physical activity but did

R. Doc. 86.
R. Docs. 91, 107, 108.
3 R. Doc. 1.
4 R. Doc. 36, at 3-4.
5 R. Doc. 1, at 1.
6 R. Doc. 36, at 3.
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not. 7 Plaintiff alleges that, while struggling to climb into a life raft from the water, he was
injured when he was grabbed at the neck by fellow participants and was roughly hauled
aboard the raft. 8 Plaintiff alleges that, as a result, he suffered serious cervical neck injuries
for which a lumbar fusion operation was required. 9 Plaintiff alleges he has not been paid
maintenance and cure. 10
On May 16, 2017, the Plaintiff filed his Motion for Partial Summary Judgment.11
Plaintiff’s motion relates to both Jones Act issues and general maritime law issues.
Plaintiff seeks summary judgment on the following Jones Act issues: (1) that Plaintiff was
a Jones Act seaman during the March 15-17, 2015 time period when he attended the
“HUET” re-certification training course; (2) that Ensco Limited was Plaintiff’s Jones Act
employer during the March 15-17, 2015 time period when he attended the “HUET” recertification training course; (3) that Plaintiff was “in the course and scope of his
employment” during the March 15-17, 2015 time period when he attended the “HUET”
re-certification training course; and (4) that SMTC Global was Ensco Limited’s agent
during the March 15-17, 2015 time period when Plaintiff attended the “HUET” recertification training course. 12 Plaintiff seeks summary judgment on the following general
maritime law issues: (1) that Plaintiff was “in the service of his ship” during the March 1517, 2015 time period when Plaintiff attended the “HUET” re-certification training course;
and (2) that Ensco, Limited, under the general maritime law, was obligated to pay

Id. at 4
Id.
9 Id.
10 Id.
11 R. Doc. 86.
12 Id. at 1.
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maintenance and cure to Plaintiff if he was injured during the March 15-17, 2015 time
period when he attended the “HUET” re-certification training course. 13
LEGAL STANDARD
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
party to direct the Court’s attention to something in the pleadings or other evidence in the

Id. at 1-2.
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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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) 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
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
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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either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue 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
The Defendants argue that the Plaintiff’s Motion for Partial Summary Judgment
should be denied because foreign law, and not the Jones Act or the general maritime law
of the United States, applies to the Plaintiff’s claims. 28 Even assuming the Jones Act or
the general maritime law of the United States applies to the Plaintiff’s claim, there are
genuine issues of material fact that preclude summary judgment regarding the four Jones
Act issues and the two general maritime law issues raised in the Plaintiff’s motion.

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. 91 at 4.
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The Jones Act provides a negligence cause of action for seaman “injured in the
course of employment.” 29 Under the general maritime law of the United States, a seaman
is entitled to maintenance and cure for injuries suffered “while in the service of the
vessel.” 30 “[T]he Supreme Court has already held that the meaning of the term ‘course of
employment’ under the Jones Act is equivalent of ‘the service of the ship’ formula used in
maintenance and cure cases.” 31
The Fifth Circuit has explained that “the test for whether a Jones Act employee was
acting within the course and scope of his employment is whether his actions at the time
of the injury were in furtherance of his employer’s business interests.” 32 Plaintiff admits
that the incident in question occurred during a training course on-shore while Plaintiff
was on leave. 33 Plaintiff, however, argues he was in the course and scope of his
employment when he participated in the “HUET” training because, in part, he was
contractually obligated to take the course 34 and the Defendants filled out all of the
paperwork and paid the tuition for the course. 35 In support of its argument that Mr.
O’Berry was not injured in the course and scope of his employment, or in the service of
his vessel, the Defendants have produced the sworn declaration of Paula Hall, Manager
of HR Middle East/Africa for Ensco Limited, in which she states that although the HUET
training was required by the Operators of the vessel Mr. O’Berry worked on, the training
was not required at this particular time and occurred when Mr. O’Berry was onshore
42 U.S.C. § 30140. See also, e.g., Beech v. Hercules Drilling Company, L.L.C., 691 F.3d 566, 570 (5th
Cir. 2012) (“In 1920, Congress enacted the Jones Act to create ‘a negligence cause of action for ship
personnel against their employers.” (citations omitted)).
30 See, e.g., Johnson v. Cenac Towing, Inc., 544 F.3d 296, 301 (5th Cir. 2008) (citations omitted).
31 Daughdrill v. Diamond M. Drilling, Co., 447 F.2d 781, 783 (5th Cir. 1971) (citing Braen v. Pfiefer Oil
Transportation Co., 361 U.S. 129 (1959)).
32 Beech, 691 F.3d at 574.
33 See R. Doc. 86-1 at 2 ¶¶16-17.
34 R. Doc. 86-2 at 4 (citing R. Doc. 86-6).
35 Id.(citing R. Doc. 86-3 at ¶11, R. Doc. 86-8).
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during his leave from the vessel. 36 As a result, there is a factual dispute as to whether
Plaintiff’s actions at the time of his injury were in furtherance of his employer’s business
interests. As the Fifth Circuit explained in Beech v. Hercules Drilling Company, L.L.C.,
“Deciding where an employee’s conduct falls on the course and scope of employment
continuum is necessarily a fact-intensive inquiry, and courts have few bright line
principles to guide them.” 37 Because a material issues of fact remain as to whether Mr.
O’Berry was injured in the course and scope of his employment, or while in the service of
the ship, summary judgment on the issues raised in the Plaintiff’s Motion for Partial
Summary Judgment is improper at this time. 38
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that the Plaintiff’s Motion for Partial Summary Judgment 39 is
DENIED.
New Orleans, Louisiana, this 21st day of August, 2017.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 91-4 at ¶¶ 5-6.
Beech, 691 F.3d at 577.
38 Other material issues of fact remain precluding summary judgment, such as, whether SMTC Global was
Ensco Limited’s agent during the time period when Plaintiff attended the “HUET” re-certification training
course.
39 R. Doc. 86.
36
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