In the matter of: Magnolia Fleet, LLC et al
ORDER AND REASONS denying 145 Motion for Reconsideration. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE MAGNOLIA FLEET
ORDER AND REASONS
Before the Court is Claimant Carl Swafford’s Motion for Reconsideration
(Doc. 145). For the following reasons, the Motion is DENIED.
This action arises out of an incident on December 30, 2015 in which the
M/V PINTAIL capsized, allegedly causing the death of James D. Swafford. On
June 30, 2016, Magnolia Fleet, L.L.C., as owner, and River Construction, Inc.,
as operator, of the M/V PINTAIL (collectively, “Petitioners”) filed a Complaint
for Exoneration or Limitation of Liability. On July 12, 2016, this Court issued
a stay of the prosecution of any proceedings outside of the limitation action.
Claimants Carla Guileyardo, Jeffrey Jenkins, American Longshore Mutual
Association, Ltd., and Carl Swafford answered with claims in this matter.
On October 13, 2017, this Court granted Petitioners’ request for
dismissal of all claims by Carl Swafford (“Swafford”), the decedent’s father.
This Court held that Swafford was not entitled to recover survival, wrongful
death, or non-pecuniary damages. In addition, the Court held that Swafford
had failed to create a genuine issue of material fact regarding his entitlement
to pecuniary damages.
In the instant motion, Swafford moves for reconsideration of this Court’s
dismissal of his claim for pecuniary damages, alleging it was erroneous and
A Motion for Reconsideration of an interlocutory order is governed by
Federal Rule of Civil Procedure 54(b), which states that: “[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” “Under Rule 54(b), ‘the trial court is free to reconsider and reverse
its decision for any reason it deems sufficient, even in the absence of new
evidence or an intervening change in or clarification of the substantive law.’” 1
“‘[T]he power to reconsider or modify interlocutory rulings is committed to the
Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. 2017)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
discretion of the district court, and that discretion is not cabined by the
heightened standards for reconsideration’ governing final orders.” 2
LAW AND ANALYSIS
Claimant argues that this Court erred in dismissing his claim for
pecuniary damages. In doing so, he submits additional evidence not previously
before this Court, which he claims creates a material issue of fact as to his
entitlement to pecuniary damages.
Under both general maritime law and the Jones Act, survivors are
entitled to recover “pecuniary damages for loss of support and for loss of
household services.” 3 Accordingly, Claimant may recover for the support and
services of the decedent if he can show actual financial dependence or the
anticipation of future support or services to be rendered to him by the
In initially dismissing Claimant’s claim for pecuniary damages, the
Court stated that:
Petitioners submit evidence showing that Swafford did not receive
any support or household services from his son prior to his death.
Swafford has failed to prove otherwise. Indeed, in response to this
motion Swafford attaches only an unsworn, unauthenticated,
hearsay document entitled “Proof of Loses” in which he lists,
without evidentiary support, the monthly expenses that he alleges
Id. (quoting Saint Annes Dev. Co. v. Trabich, 443 Fed. App’x. 829, 831–32 (4th Cir.
Neal v. Barisich, Inc., 707 F. Supp. 862, 869 (E.D. La.), aff’d, 889 F.2d 273 (5th Cir.
In re Omega Protein, Inc., No. 1:09-640, 2010 WL 5141775, at *2 (S.D. Miss. Dec. 13,
the decedent paid prior to his death. Such inadmissible evidence
is insufficient to create a material issue of fact. 5
Claimant now asks this Court to reconsider its holding and submits an
affidavit in which he swears to the same amounts previously outlined in the
“Proof of Loses” document and portions of his deposition testimony in which he
discussed living with the decedent and sharing bills. Claimant offers no
credible explanation, however, as to why this evidence was not submitted with
his opposition to Petitioners’ Motion for Summary Judgment. Claimant’s own
exhibit shows that his deposition was taken on March 8, 2017. 6 Certainly, he
had ample time to receive and review the transcript of his deposition in
preparation for the opposition due September 26, 2017. In addition, Claimant
does not explain why he waited until now, on the eve of trial, after all of his
claims have been dismissed with prejudice, to prepare an affidavit. Claimant
has given this Court no good cause to consider these late filed exhibits.
Even so, Claimant’s new found evidence is insufficient to create a
material issue of fact. Claimant has not submitted any evidence of his financial
reliance on his son besides his own self-serving testimony.
outlined in Claimant’s affidavit are wholly conclusory and appear to this Court
to have been plucked from thin air. “[U]nsupported allegations or affidavits
setting forth ultimate or conclusory facts and conclusions of law are
insufficient” to support a motion for summary judgment. 7 Claimant offers no
bills, check stubs, account statements, invoices or other documents to prove his
7 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
living expenses and the amount to which the decedent contributed to those
expenses. Accordingly, Claimant has again failed to create a material issue of
fact regarding his entitlement to pecuniary damages.
For the foregoing reasons, the Motion is DENIED.
New Orleans, Louisiana this 17th day of November, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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