Thibodeaux v. Chevron U.S.A. Inc. et al
ORDER AND REASONS: IT IS ORDERED that Defendant's 51 motion for summary judgment is DENIED WITHOUT PREJUDICE. Signed by Judge Ivan L.R. Lemelle on 8/15/2017. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHEVRON U.S.A., INC., ET AL.
ORDER AND REASONS
Before the Court is Defendant Jade Marine, Inc.’s “Motion for
opposition memorandum. Rec. Doc. 54. Defendant then requested, and
was granted, leave to file a reply memorandum. Rec. Doc. 57. After
further discovery, Defendant requested, and was granted, leave to
file a supplemental memorandum. Rec. Doc. 61. Pursuant to this
Court’s Order (Rec. Doc. 59), Plaintiff timely filed a response to
the supplemental brief (Rec. Doc. 61). For the reasons discussed
IT IS ORDERED that Defendant’s motion for summary judgment
(Rec. Doc. 51) is DENIED WITHOUT PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of injuries suffered by Plaintiff Isaac
Thibodeaux (“Plaintiff”) on April 28, 2016. Rec. Doc. 1 at ¶ IV.
On that date, Plaintiff used a swing rope to transfer from a
platform to the M/V MR. CLINT (“CLINT”), owned and operated by
Defendant Chevron U.S.A., Inc. (“Chevron”). Id. at ¶¶ V, VII.
[P]laintiff on the vessel, causing him to land in the” Gulf of
Mexico, where he was forced to stay “for an extended period,
grasping onto the leg of the platform . . . .” Id. at ¶ VII.
Plaintiff also alleges in his original complaint that the M/V
REVELATION (“REVELATION”), owned and operated by Defendant Jade
Marine, Inc. (“Jade Marine”), was an unseaworthy vessel because it
did not have a properly-trained crew. Id. at ¶¶ VI, VIII. Plaintiff
clarified in his amended complaint that the REVELATION “failed to
follow industry custom and/or applicable Chevron safety rules
and/or policies by dropping off and leaving [P]laintiff on the
platform alone.” Rec. Doc. 15 at ¶ VII. In the instant motion,
Jade Marine explains that it was “hired by Chevron to provide
passenger and equipment transportation services” and that, on the
day of the accident, Jade Marine transported Plaintiff to platform
BMI #10 via the REVELATION. Rec. Doc. 51-2 at 1-2. After an hour,
the REVELATION was instructed to transfer personnel at a different
Plaintiff unattended on the platform. Id.
When Plaintiff completed his work aboard the BMI #10, he
radioed for the CLINT to pick him up. Rec. Doc. 51-2 at 2. After
Plaintiff subsequently fell into the water, the CLINT was unable
to retrieve him and contacted the REVELATION for assistance. Id.
The REVELATION “arrived on scene within fifteen to twenty minutes
and was able to retrieve [Plaintiff] from the water without
incident.” Id. at 2-3.
Plaintiff amended his complaint a second time to add Defendant
Plaintiff alleges employed the captain of the CLINT at all relevant
times. Rec. Doc. 29 at ¶ 2. In each complaint, Plaintiff alleged
that Defendants acted negligently. Rec. Docs. 1, 15, 29 at ¶ VIII.
THE PARTIES’ CONTENTIONS
Jade Marine argues that Plaintiff has not cited to “any
policy promulgated by Chevron or industry custom” that would
require Jade Marine or the REVELATION to standby at the platform
Accordingly, it maintains that there is no evidence that it owed
a duty to Plaintiff. Id. at 6.
Plaintiff responds that Jade Marine’s motion is premature.
Rec. Doc. 54 at 3. He moves under Federal Rule of Civil Procedure
56(d) to defer ruling on this motion until after discovery is
completed. Id. at 5.
Jade Marine counters that this matter has been pending for a
year and a significant amount of written discovery has been
completed. Rec. Doc. 57 at 1.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to
affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Rule 56(d) nevertheless provides that “[i]f a nonmovant shows
by affidavit . . . that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may:
defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.” FED. R. CIV. P. 56(d). “While Rule 56(d)
motions for additional discovery are broadly favored and should be
liberally granted, the party filing the motion must demonstrate
how additional discovery will create a genuine issue of material
fact.” Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 816 (5th
Cir. 2017) (quoting Smith v. Reg’l Transit Auth., 827 F.3d 412,
422-23 (5th Cir. 2016)). “In particular, the party opposing summary
judgment must set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable
time frame, probably exist and indicate how the emergent facts, if
adduced, will influence the outcome of the pending summary judgment
motion.” Id. (citations and internal quotation marks omitted).
Therefore, it is necessary to consider the basis for Jade Marine’s
motion for summary judgment and the facts that Plaintiff alleges
could be discovered to present a genuine issue of material fact.
“General principles of negligence law determine whether the
defendant was negligent in this maritime tort action.” Bourg v.
Hebert Marine, Inc., No. 86-2266, 1988 WL 2690, at *3 (E.D. La.
Jan. 14, 1988) (citing Casaceli v. Martech Int’l, Inc., 774 F.2d
1322, 1328 (5th Cir. 1985); Daigle v. Point Landing, Inc., 616
F.2d 825, 827 (5th Cir. 1980); S. C. Loveland, Inc. v. E. W.
Towing, Inc., 608 F.2d 160, 165 (5th Cir. 1979)); see also In re
Signal Int’l, LLC, 579 F.3d 478, 491 (5th Cir. 2009). “Negligence
is the doing of some act which a reasonably prudent person would
not do or the failure to do something which a reasonably prudent
person would do under like circumstances.” Bourg, 1988 WL 2690, at
*3 (citing Tiller v. Atl. Coast Line R. Co., 318 U.S. 54 (1943)).
Specifically, “[t]he plaintiff must demonstrate that there was a
duty owed by the defendant to the plaintiff, breach of that duty,
injury sustained by plaintiff, and a causal connection between
defendant’s conduct and the plaintiff’s injury.” In re Cooper/T.
Smith, 929 F.2d 1073, 1077 (5th Cir. 1991) (citing Thomas v.
Express Boat Co., 759 F.2d 444, 448 (5th Cir. 1985)).
“The existence of a duty vel non is a question of law.”
Authement v. Ingram Barge Co., 977 F. Supp. 2d 606, 612 (E.D. La.
2013) (citing In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d
201, 211 (5th Cir. 2010)). “[T]he determination of whether a party
owes a duty to another depends on a variety of factors, ‘most
notably the foreseeability of the harm suffered by the complaining
party.’” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 377 (5th
Cir. 2000) (quoting Consol. Aluminum Corp. v. C.F. Bean Corp., 833
F.2d 65, 67 (5th Cir. 1987)). Generally, “a plaintiff is owed a
duty of ordinary care under the circumstances.” In re Great Lakes,
624 F.3d at 211 (citations omitted).
Jade Marine relied on various pieces of evidence to support
its motion. For example, when asked to “state in specific factual
detail each act or omission of each and every person that you
allege either caused or contributed to the alleged incident,”
Plaintiff has retained to [sic] Commander Don Green to
address the safety issues involved in this case.
Commander Green’s preliminary report has been produced
and a supplemental report will be produced in accordance
with the Court’s Scheduling Order. Nevertheless, in the
spirit of cooperation, the acts or omission[s] that
caused or contributed to this incident include, but are
not limited to: there being an unmanned platform without
any means of escape or rescue in the event of an
emergency; . . . the failure of the [REVELATION] to
follow industry custom and/or applicable Chevron safety
rules and/or policies by dropping off and leaving
[P]laintiff on the platform alone.
Rec. Doc. 51-6 at 16-17.
In his “OPINIONS” section, Plaintiff’s expert stated that
[REVELATION], left him alone on the unmanned platform without any
means of escape or rescue in the event of an emergency” and that
“[t]he failure of [the REVELATION] to standby the platform until
[Plaintiff] finished his work created a hazardous condition and
directly contributed to the cause of this incident.” Rec. Doc. 517 at 6.
It is my opinion that the [REVELATION] failed to consider
or appreciate the dangers and potential hazards of
leaving [Plaintiff] alone on an unmanned platform, which
had no man overboard ladders installed for access by
persons falling overboard or other means of escape in
the event of an emergency.
Id. Nonetheless, the expert specifically stated that he did not
know “whether or not Chevron has a policy regarding personnel such
as [Plaintiff] to be left alone on a platform . . . .” Id.
In a root cause analysis and an investigation report, both
produced by Chevron, neither Jade Marine nor the REVELATION is
cited as a cause of the accident. Rec. Docs. 51-8 at 1; 51-5 at 4,
Finally, Jade Marine cited to Chevron’s admission that it was
not customary for personnel transfer vessels to remain at a
platform until the personnel finished their work if another dropoff or pick-up was requested and that there was no Chevron policy
requiring the REVELATION to remain at a platform until personnel
finished their work. Rec. Doc. 51-4 at 5. Consequently, Jade Marine
necessary information to prepare its discovery responses, have
responsibilities.” Rec. Doc. 57 at 3.
In its supplemental memorandum, Defendant cites to various
incident, Chevron’s safety policies, and portions of the CLINT’s
captain’s deposition testimony. Rec. Doc. 60. First, Plaintiff
testified that he worked alone on platforms around sixty percent
of the time (Rec. Doc. 60-2 at 10), he was unaware of any rule
prohibiting him from working alone on a platform (id.), and he did
not ask the REVELATION to stay near the platform or exert stopwork authority when the REVELATION left (id. at 16-17). Second,
Plaintiff did not state in his investigation report that the
REVELATION should not have left him. Id. at 24. Third, Chevron’s
Solitary Worker Guidelines merely required transport vessels to be
within one hour of a person working aboard a platform alone (Rec.
Doc. 60-3 at 2) and the REVELATION was only twenty minutes from
the BMI #10 at the time of the incident. Finally, the captain of
the CLINT on the day of the incident testified that it was common
practice to drop personnel off on a platform where they would be
working alone (Rec. Doc. 60-5 at 6-7) and that, to his knowledge,
no one has ever exercised stop-work authority because of that
practice (id. at 9).
In response, Plaintiff’s attorney, Tammy D. Harris, submitted
an affidavit stating that discovery is in its infancy and that the
following discovery has not been resolved:
the Jade Marine crew’s
job descriptions, emails between Jade Marine and Chevron regarding
the terms of the Master Time Charter (“MTC”) between them, the onhire letter referenced in the MTC, the standard of performance
Plaintiff argues that it is possible that such discovery could
reveal that a captain or supervisor was told never to leave
personnel on the platform alone and/or to check the platform for
a safe means of escape for a man overboard before leaving personnel
alone. Rec. Doc. 54 at 4.
In his memorandum, Plaintiff further responds that he has not
had the opportunity to depose his expert, who is qualified to offer
his opinion that Plaintiff should not have been left on the
platform alone. Rec. Doc. 54 at 5. Plaintiff maintains that Chevron
does not need to blame Jade Marine in order for Plaintiff to have
a negligence claim against Jade Marine. Id. at 9. Plaintiff also
produces evidence that Jade Marine was contractually required to
present a crew with “significant expertise” that would comply with
“applicable laws and regulations . . . .” Id. at 6 (citing Rec.
Doc. 54-2 at 2, 4). Because the Coast Guard regulations require
facilities on the Outer Continental Shelf to be equipped with
various means of escape (see 33 C.F.R. § 143.101), Plaintiff
maintains that, pursuant to its contract, Jade Marine knew or
should have known that leaving Plaintiff on a platform with no
safe means of escape would be dangerous (Rec. Doc. 54 at 8).
In response to Defendant’s supplemental memorandum, Plaintiff
reiterates that the motion is “grossly premature.” Rec. Doc. 61 at
1. He specifically notes that the REVELATION captain is set to be
deposed on September 9, 2017 and that no Jade Marine witnesses
completed a “Good Catch” report following the incident in which he
indicated that “the unsafe act [he] observed” was corrected by
“not put[ting] out perrsonell [sic] alone on platforms.” Rec. Doc.
61-2 at 1. Addressing the new evidence submitted by Defendant,
Plaintiff notes that he testified that he was unaware of the
REVELATION’s job scope and/or standard procedures (Rec. Doc. 60-2
at 17-18); the report he completed discussed the attempted transfer
and its aftermath, not the events leading up to the transfer; and
that the CLINT captain is not a Jade Marine employee and therefore
cannot testify to Defendant’s duties (Rec. Doc. 61 at 2-3).
Jade Marine relies on Koprowski v. Legacy Offshore, LLC, in
which the plaintiff was working on a vessel owned by Aries Marine
and chartered to Newfield Exploration. No. 09-321, 2010 WL 4705111,
at *1 (W.D. La. Nov. 12, 2010). The plaintiff alleged that, on two
occasions, he breathed oxygen for 50 minutes, instead of the
prescribed 39 minutes, during decompression. Id. As to Aries
Marine, he alleged that the vessel’s crane was not equipped with
a swivel, making the “stage” unsafe and the vessel unseaworthy.
Id. at *2. Aries Marine argued on summary judgment that there was
no evidence that it breached a duty of reasonable care; it pointed
to the plaintiff’s deposition testimony that “he had no complaints
about the vessel and did not see anything about the vessel that
may have contributed to his injuries.” Id. at *4. The plaintiff
responded that Aries Marine was negligent in failing to provide
the “Launch and Recovery System” (“LARS”) “to ensure the safe and
expedient transfer of divers to and from the water and to provide
a stable platform on which to complete in-water decompression.”
Id. The Court characterized the arguments in the following way:
[P]laintiff claims Aries Marine “failed to recognize the
duty to provide [a] properly rated launch and recovery
system,” without citing any authority, whether factual
or jurisprudential, for the existence of such a duty. In
its motion for summary judgment, Aries Marine argues and
presents evidence to support its argument that it owed
no duty, by way of contract, operation of law, or
otherwise, to provide a LARS system; that it in no way
interfered with the possible use or placement of a LARS
system on its vessel; and that it had no responsibility
for diver decompression, or timing within that process
. . . .
Id. at *6. The plaintiff merely argued that, by agreeing to provide
the crane for diving support, Aries Marine necessarily involved
itself in the diving operation; his expert consequently found that
“this raise[d] serious issue [sic] of liability on the part of the
vessel operator.” Id. at *7. The court found that the expert’s
position offered, “in effect, a legal opinion” and the expert
“lack[ed] the authority to establish such a duty.” Id. Essentially,
the court held that there was no evidence that Aries Marine owed
a duty to provide a LARS system, exercised control over the diving
process, or that it “breached the duty of reasonable care it owed
to the plaintiff by offering its crane . . . .” Id. at *9 (emphasis
in original). It accordingly entered summary judgment dismissing
the plaintiff’s negligence claim under the general maritime law.
Id. at *10.1
In his original response, Plaintiff argued that Koprowski is
distinguishable because (1) the parties had deposed the plaintiff
and at least one witness in that case; (2) the plaintiff testified
that he had no complaints about the vessel; (3) the witness
testified that he did not know of any reason to believe the
defendant contributed to the plaintiff’s injuries; and (4) the
plaintiff did not come forward with “any authority, whether factual
or jurisprudential, for the existence of . . . a duty,” while,
here, Plaintiff has a pending deposition of a key REVELATION
witness to complete for the purposes of developing the factual
record. Rec. Doc. 54 at 8-9.
Plaintiff’s complaint and responses to interrogatories allege
that Jade Marine did not follow industry custom and/or Chevron
policies when the REVELATION left him alone on the platform. Rec.
presented by Jade Marine, particularly Chevron’s responses to
In its reply memorandum, Jade Marine cites to other cases in support of its
motion. See, e.g., Laughlin v. Falcon Operators, Inc., 166 F. Supp. 2d 501 (E.D.
La. 2001), judgment entered, No. 00-1484, 2001 WL 474284 (E.D. La. May 3, 2001);
Canal Barge Co. v. Sun Coast Contracting Servs., LLC, No. 14-254, 2015 WL
423040, at *1 (E.D. La. Feb. 2, 2015). However, like Koprowski, neither of these
cases presented a Rule 56(d) problem. Therefore, those cases are necessarily
requests for admissions and Chevron’s Solitary Worker Guidelines,
suggests that it was not customary, or required by Chevron policy,
for a vessel to remain at a platform until personnel completed
their work. Rec. Doc. 51-4 at 5. However, Plaintiff has not had
the opportunity to depose the captain of the REVELATION, who could
conceivably contradict these responses. Because the Court cannot
weigh the evidence or determine credibility on a motion for summary
judgment (Blank v. Bell, 634 F. App’x 445, 447 (5th Cir.), cert.
denied, 136 S. Ct. 2036 (2016) (citations omitted)), such testimony
could present a genuine issue of material fact precluding summary
judgment. Plus, Plaintiff presented the REVELATION captain’s “Good
Catch” report, which suggests, at the very least, a need to clarify
the factual statements therein.
This Court’s scheduling order
provides that discovery does not have to be completed until January
30, 2018 and that dispositive motions must be filed in sufficient
time to permit hearing thereon no later than February 9, 2018.
opportunity to further develop the factual record as noted above.
IT IS ORDERED that Defendant Jade Marine’s motion for summary
judgment (Rec. Doc. 51) is DENIED WITHOUT PREJUDICE to re-urge
after the noted deposition is completed, pursuant to Federal Rule
of Civil Procedure 56(d). The Court is not moved by conclusory
statements about other “possible” evidence that remains unresolved
in this year-old case. Moreover, the proposed expert opinion
appears to offer, at this juncture, nothing more than inadmissible
legal conclusions about Jade Marine's conduct.2
New Orleans, Louisiana, this 15th day of August, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
Notably, the claims against Chevron and Danos remain viable.
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