Fornah v. Tetra Applied Technologies, LLC et al
ORDER AND REASONS: IT IS ORDERED that Schlumberger's 41 motion for summary judgment is hereby GRANTED. The plaintiff's claims against Schlumberger are hereby dismissed with prejudice, as set forth in document. Signed by Judge Martin L.C. Feldman on 10/23/2017. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TETRA APPLIED TECHNOLOGIES, LLC, ET AL.
ORDER AND REASONS
Before the Court is Schlumberger Technology Corporation’s
motion for summary judgment. For the reasons that follow, the
motion is GRANTED.
This personal injury case arises from an offshore accident
during a coiled tubing operation decommissioning a well on a plug
and abandon project in which the plaintiff alleges he was injured
as a result of being the only rigger assigned to guide various
hydraulic hoses, which were metal reinforced, filled with heavy
viscous fluids, and suspended overhead by crane.
In 2015, as part of plugging and abandonment efforts, Chevron
Corporation hired Schlumberger Technology Corporation to perform
coiled tubing wellbore cleanout in the Bay Marchand Field. Chevron
U.S.A. Inc. owned a fixed platform there on the outer continental
shelf in the Gulf of Mexico, approximately five miles off the coast
The Chevron-Schlumberger contract provides that
Schlumberger is an independent contractor:
The Work provided by [Schlumberger] [is] as an
independent contractor, and [Schlumberger] and the
members of Contractor Group are not employees, agents or
[Schlumberger] has complete control, supervision and
direction over its equipment and personnel, and over the
manner and method of performance of the Work.
instructions or directions of any kind given by
[Chevron] do not relieve [Schlumberger] of its duties
and obligations as an independent contractor.
Tetra Applied Technologies, LLC provided a crew for plugging and
Pursuant to Tetra’s Master Services Contract
with Chevron, Tetra was also an independent contractor of Chevron:
The Services are provided by [Tetra] as an independent
contractor, and [Tetra] and the members of the
representatives of [Chevron] or Company Group. [Tetra]
has complete control, supervision and direction over its
equipment and personnel, and over the manner and method
of performance of the Services.
Another Chevron independent contractor, Alliance Offshore, L.L.C.,
owned and operated a liftboat adjacent to the platform, M/V MISS
LYNNE, and operated the crane being used to lift and move the hoses
in Schlumberger’s coiled-tubing job as part of Chevron’s plug and
abandonment effort. 1 The plug and abandonment work for Chevron was
Schlumberger provided a six person crew, consisting of a supervisor
Schlumberger, this crew size was standard for the type of work and
equipment it provided.
John Fornah worked for Tetra as a rigger.
He had received
training in rigging. As a rigger, his job duties included handling
He took direction from his Tetra supervisor, Michael
Bergeron, in performing his duties, which included handling hoses.
Bernard, who was the overall supervisor onsite for Schlumberger’s
portion of the Chevron work, as was customary, the liftboat and
Tetra crew assisted with overall operations provided to Chevron,
but no Schlumberger employee directed or supervised the activities
of the Tetra crew. 2
Mr. Fornah claims that on September 15, 2015, he injured his
neck, back, and shoulder after being instructed by his Tetra
supervisor to guide a tubing hose during a crane lift.
attempted to perform this task by himself because other Tetra coworkers were busy and he did not see anyone available to help him.
Similarly, Mr. Fornah himself testified that his Tetra
supervisor, Michael Bergeron, told him in the meeting before his
shift that he was responsible for handling the hoses.
More specifically, according to Fornah, prior to beginning the
September 15, 2015 night shift, during a safety meeting, Tetra
supervisor Bergeron instructed him to handle the hoses.
was positioned on the deck of the platform.
At least three Tetra
employees were also on the platform’s deck, five to seven feet
supervisor, who came and went on the platform.
supervisor or employees were on the platform in Fornah’s vicinity.
The Alliance-operated crane, located on an adjacent liftboat,
lifted Schlumberger’s coiled tubing injector head into position.
Fornah said that, acting alone, he jerked an attached hose to get
it untangled from scaffolding and felt a pain in his back and
Fornah continued to work, and worked two additional hitches.
Two days after that September 15 incident, he reported that he was
During the Chevron work, no one reported to Schlumberger
any incident or injury to a Tetra employee.
On September 1, 2016,
Fornah sued Tetra Applied Technologies, LLC, Alliance Offshore,
L.L.C., the M/V CHARLESTON (f/k/a M/V MISS LYNNE), Schlumberger
Technology Corporation, 3 and Chevron U.S.A. Inc.
Fornah seeks to
On November 9, 2016, Fornah amended his complaint, naming the
recover maintenance and cure under general maritime law and also
alleges Jones Act negligence on the part of his employer, Tetra;
negligence claims under general maritime law against Alliance (for
failing to stop an unsafe lift operation), Schlumberger (for
failing to provide a full coiled tubing crew and for negligent
supervision), and Chevron. 4
Schlumberger now moves for summary
judgment dismissing the plaintiff’s claims.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court has been informally advised that Fornah has settled
his claims against Chevron, Alliance, and Tetra.
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party.
See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
OCSLA Choice of Law
Fornah’s alleged injuries occurred on a fixed platform in
federal waters on the Outer Continental Shelf.
It is undisputed
that federal jurisdiction is predicated on the Outer Continental
Shelf Lands Act (OSCLA), 43 U.S.C. § 1331 et seq. 5
jurisdiction is established, as it is here, the Court turns to the
The Outer Continental Shelf Lands Act established the Outer
Continental Shelf as a federal enclave. 43 U.S.C. § 1333(a)(1).
In so doing, Congress broadly conferred on the federal courts
jurisdiction to hear claims arising out of or related to oil
production on the Outer Continental Shelf.
Id. at § 1349(b);
Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir.
2013)(The OCSLA “asserts exclusive federal question jurisdiction
over the OCS by specifically extending ‘[t]he Constitution and
laws of the civil and political jurisdiction of the United
States...[to the OCS].”).
statute’s choice of law provision to determine the law applicable
to particular claims.
OCSLA calls for federal law to apply to all claims arising
out of oil and gas production activities on the Outer Continental
Shelf. 43 U.S.C. § 1333. OCSLA federalizes the law of the adjacent
state when it is “applicable and not inconsistent with...other
federal laws and regulations.”
This means that state law, as
borrowed federal law, will be applied only when already extant
federal law leaves a void or gap in coverage:
State law is called on as applicable where it is
necessary to fill federal voids and where state law
supplemented gaps in the federal law. Where there is a
federal law or procedural practice which adequately
cope(s) with the full range of potential legal problems
the state law—here prescription—is not applicable, for
the deliberate choice of federal law, federally
administered, requires that applicable be read in terms
of necessity—necessity to fill a significant void or
Huson v. Chevron Oil Co., 430 F.2d 27, 31 (5th Cir. 1970)(internal
citations and quotations omitted), aff’d, 404 U.S. 97 (1971).
Simply put, “OCSLA extends federal law to the Outer Continental
Shelf and borrows adjacent state law as a gap-filler.”
Exploration & Prod., Inc. v. AmClyde Engineered Prods. Co., Inc.,
448 F.3d 760, 772, amended on reh’g on different grounds, 453 F.3d
652 (5th Cir. 2006).
The OCSLA choice of law provision states:
(1) The...laws...of the United States are extended to
the subsoil and seabed of the outer Continental Shelf
and to all...devices permanently or temporarily attached
exploitation]...to the same extent as if the outer
Continental Shelf were an area of exclusive Federal
jurisdiction located within a State....
(2)(A) To the extent that they are applicable and not
inconsistent with this subchapter or with other Federal
laws and regulations...the civil and criminal laws of
each adjacent State...are hereby declared to be the law
of the United States for that portion of the subsoil and
seabed of the outer Continental Shelf, and artificial
islands and fixed structured erected thereon, which
would be within the area of the State if its boundaries
were extended seaward to the outer margin of the outer
43 U.S.C. § 1333(a)(1), (2)(A).
In order for state law to apply
as a surrogate to federal law under OCSLA, three requirements must
(1) The controversy must arise on a situs covered by
structures permanently or temporarily attached thereto).
(2) Federal maritime law must not apply of its own force.
(3) The state law must not be inconsistent with Federal
Texaco Exploration, 448 F.3d at 774 (citation omitted).
The parties dispute whether the second requirement is met.
In support of his argument that maritime law applies of its own
force, the plaintiff merely suggests that “the negligence of the
constitutes vessel negligence, giving rise to federal admiralty
jurisdiction, and with it, the...general maritime law.”
plaintiff fails to persuade the Court that his arguments regarding
Alliance’s alleged negligence have any bearing on the plaintiff’s
claims against Schlumberger in which the plaintiff alleges that he
was injured moving hoses on a fixed platform.
For maritime law to apply of its own force, there must be
both a maritime location and a connection to a traditional maritime
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527, 534 (1995).
The plaintiff offers no arguments
persuading the Court that either element of this test is met here.
To the contrary, incidents that occur as a result of offshore
drilling operations are generally not maritime in nature.
e.g., Texaco Exploration, 448 F.3d at 771 (“Texaco’s complaint ...
arises not from traditionally maritime activities but from the
development of the resources on the Outer Continental Shelf ...
[t]o the extent that maritime activities surround the construction
work underlying the complaint, any connection to maritime law is
eclipsed by the construction’s connection to the development of
the Outer Continental Shelf”); Thibodeaux v. Grasso Prod. Mgmt.
Inc., 370 F.3d 486, 493 (5th Cir. 2004)(“Both this court and the
performed on oil production platforms is not maritime in nature”);
Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th
Cir. 2003)(applying Louisiana law in a lawsuit involving personal
injuries on a drilling platform on the outer continental shelf off
the coast of Louisiana); Hufnagel v. Omega Servs. Indus., Inc.,
182 F.3d 340, 349 (5th Cir. 1999)(“Construction work on fixed
offshore platforms bears no significant relation to traditional
maritime activity”). 6
governed by the law of Louisiana, the state adjacent to that
portion of the seabed where he was injured.
The Court is compelled
As the Fifth Circuit noted in a recent unpublished opinion:
The Outer Continental Shelf Lands Act mandates that when
disputes arise involving fixed structures erected on the
outer continental shelf, the applicable laws of the
adjacent state will be applied to the extent not
inconsistent with other federal laws and regulations.
42 U.S.C. § 1333(a)(1); see also Rodrigue v. Aetna Cas.
& Sur. Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 23 L.Ed.2d
360 (1969)(“The [Outer Continental Shelf] Lands Act
makes it clear that federal law, supplemented by state
law of the adjacent State, is to be applied to these
artificial islands as though they were federal enclaves
in an upland State.”). Thus, Louisiana law applies here.
Voces v. Energy Resource Technology, G.O.M., L.L.C., --- Fed.Appx.
---, 2017 WL 3225702, at *3 n.6 (5th Cir. July 28, 2017)(affirming
application of Louisiana law to claims arising from the death of
a welder who was killed while employed by an independent contractor
working to remove the principal company’s oil and gas platform
located on the outer continental shelf off the coast of Louisiana).
negligence principles -- the straightforward test is the same. 7
Independent Contractor Negligence
"Every act whatever of man that causes damages to another
obliges him by whose fault it happened to repair it."
Code art. 2315(A).
"Every person is responsible for the damage he
occasions not merely by his act, but by his negligence, his
imprudence, or his want of skill."
La. Civ. Code art. 2316.
Courts employ the duty-risk analysis to determine whether to impose
liability based on these broad negligence principles.
v. Essen Lane Daiquiris, 923 So. 2d 627, 633 (La. 2006).
duty-risk analysis requires a plaintiff seeking to recover for
negligence or negligent misrepresentation to prove five elements:
(1) the defendant had a duty to conform his conduct to
a specific standard (the duty element);
See Barker v. Hercules Offshore, Inc., 713 F.3d 208, 214 (5
Cir. 2013)(choosing not to decide whether federal, state, or
maritime law provides the substantive rule of decision for the
plaintiff’s OCSLA claim because the result is the same regardless
of which law is applied). It is also notable that, although the
plaintiff insists that maritime law applies, he concedes that
Louisiana law would yield an identical result, and he nevertheless
directs the Court to apply precisely the same Louisiana case
literature governing the duty of one independent contractor to
another independent contractor, invoking Lafont v. Chevron U.S.A.,
Inc., 593 So. 2d 416 (La.App. 1 Cir. 1991).
(2) the defendant's conduct failed to conform to the
appropriate standard (the breach element);
(3) the defendant's substandard conduct was a cause in
fact of the plaintiff's injuries (the cause-in-fact
(4) the defendant's substandard conduct was a legal
cause of the plaintiff's injuries (the scope of
liability or scope of protection element); and
(5) the actual damages (the damages element).
Lemann, 923 So.2d at 633 (citation omitted).
Schlumberger submits that it is entitled to judgment as a
matter of law dismissing Fornah’s negligence claim against it due
to the absence of the threshold duty element and the absence of
any evidence of breach of any duty.
The Court agrees.
Whether a defendant owes a duty is a question of law.
With respect to independent contractor duty in particular:
Independent contractors do not generally owe a duty to
protect the employee of another independent contractor
beyond the exercise of ordinary care that is owed to the
public generally. Lafont v. Chevron, U.S.A., 593 So.2d
416, 420 (La.App. 1 Cir. 1991)(citing 65 C.J.S.
Negligence, § 63 (113) (1966)).
contractor owes another independent contractor at least
“the duty to refrain from gross, willful or wanton
negligence, and at the most the duty to refrain from
creating an unreasonable risk of harm or a hazardous
McCarroll v. Wood Group Mgmt. Servs., Inc., 561 Fed.Appx. 407, 410
5th Cir. 2014)(unpublished).
One independent contractor owes no
duty to another independent contractor’s employee where it does
not employ, share a contract, or actually supervise the plaintiff.
correctly explained, in Parker v. Petroleum Helicopters, Inc.,
2002 WL 461655 at *1 (E.D.La. Mar. 20, 2002)).
In considering whether Schlumberger owed a duty to Tetra
employee Fornah, the Court first observes that there is no dispute
that Schlumberger neither employed Fornah, nor did Schlumberger
have a contractual agreement with Fornah’s employer, Tetra.
is there any evidence in the summary judgment record, Schlumberger
submits, indicating that it exercised supervisory authority over
The Court agrees.
Absent from the record is any evidence indicating that on
September 15, 2015 Schlumberger exercised supervisory control over
Schlumberger General Field Specialist Chadwick Bernard, who was
the overall supervisor onsite for Schlumberger’s portion of the
assisted with overall operations provided to Chevron, but no
Schlumberger employee directed or supervised the activities of the
Fornah offers no countervailing evidence.
himself unequivocally admits that Schlumberger did not directly
supervise him on September 15, 2015; he testified during his
deposition that his Tetra supervisor, Michael Bergeron, directly
ordered Fornah to handle the hoses during the meeting prior to the
shift when the incident occurred. 8
There is simply no evidence
indicating that Schlumberger assumed supervisory authority over
Fornah on the date and time of his alleged accident.
...on that job, were you assigned to a certain task?
Which is who?
Who gave you that assignment?
So Bergeron told you to handle the hoses for that
At that particular time, I was helping with the
And you were told to do that by your supervisor, in
the 1800 hour meeting?
Fornah urges that genuine disputes as to material facts
preclude summary judgment. But he fails to single out any evidence
in the summary judgment record that would support his theory that
Schlumberger owed him a duty at the time of the accident, let alone
that it breached the duty or that any breach caused his injury.
Recognizing that his own testimony undermines his argument that
Schlumberger exercised supervisory control over Fornah prior to
and during the operations in which Fornah was injured, Fornah
attempts to manufacture a factual controversy by submitting the
affidavit of former Tetra employee Steven Passman.
September 15, 2015 and he last worked on the Chevron project two
months prior to Fornah’s incident.
Absent personal knowledge of
the events leading up to and transpiring on September 15, 2015,
Passman’s speculative assumptions based on his past experiences
Schlumberger exercised supervisory control over Fornah during the
pre-shift meeting, or while he was performing his assigned task
(the task Fornah admits was assigned by his Tetra supervisor).
Fornah’s reliance on Passman’s generic, unsubstantiated statements
demonstrate a misapprehension of summary judgment procedure. 9
Court underscores that "the nonmoving party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions,
[I]t was absolutely unusual for a single rigger to be
assigned the task of monitoring and manipulated (sic)
the several dozen tubes which were suspended along with
the injector head from Alliance’s crane.
staffing would have required at least two, and possibly
three riggers for that task, and on joint coiled tubing
operations involving both Tetra and Schlumberger, it was
common for riggers from each company to work together as
a two or three man team.
Despite this, and despite
having been involved in pre-operation JSA meetings where
staffing would have been addressed, Schlumberger failed
to provide support riggers to Fornah and Tetra, failed
to ensure that additional personnel were provided to
assist Fornah once the JSA assigned only Fornah to the
subject task, and failed to properly supervise or stop
the operation which left Fornah as the sole rigger for
his assigned task.... Fornah would have been supervised
during the coiled tubing operation by supervisors of any
or all of the team member entities [including
Schlumberger]. While it is anticipated that Schlumberger
might dispute that account as a general proposition, or
as it pertained to this particular instance, it remains
in dispute whether contractors other than Tetra were
supervising Fornah at the time of his injury. Naturally,
the existence of such a dispute precludes the Court from
granting the instant Motion.
Fornah’s disregard of summary judgment procedure borders on
Only the existence of a genuine dispute as to a
material fact precludes summary judgment. A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Fornah offers no
concrete evidence in support of his “general proposition” that it
is possible that each independent contractor may have, at times,
reasonable jury could return a verdict for Fornah based on
or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d
312, 319 (5th Cir. 2007)(internal quotation marks and citation
“If the evidence is merely colorable . . . or is not
Anderson, 477 U.S. at 249 (citations omitted).
Fornah offers more “general propositions” in an attempt to
defeat summary judgment.
He argues that Chevron and each of its
independent contractors “were to act as a team regardless of
This adds nothing to, and finds no support in, the
That “everyone works as a team” is standard operating
procedure on a plug and abandonment job is of no probative value
and stops well short of carrying the plaintiff’s burden to show
Finally, Fornah’s attempt to anchor Schlumberger liability based
suggestion, let alone evidence in the record, that the hoses were
That another person perhaps should have
been tasked to help Fornah has no bearing on Schlumberger’s motion
for summary judgment where, as here, the record indicates that
Tetra staffed Fornah on the particular task he was undertaking
when he was injured, and there is no evidence that Schlumberger
was obliged to staff or supervise Tetra employees for Tetra work.
In conclusion, summary judgment in Schlumberger’s favor is
The plaintiff has failed to persuade the
supervisor Bernard, who was present on the Chevron job in September
supervised the activities of any Tetra crew, including Fornah.
Fornah himself agrees insofar as he testified that, during the
pre-shift meeting, his Tetra supervisor tasked him with handling
the hoses and that no Schlumberger personnel were in his vicinity
on the platform deck at the time he was injured.
and unsubstantiated assertions do not call into question the issue
of supervision on September 15, 2015 because his speculation is
not probative of the events on that day.
The record demonstrates
that Tetra, not Schlumberger, directed and exercised supervisory
control over Fornah at the relevant time.
Because there is no
genuine controversy to be resolved at trial, Schlumberger is
entitled to judgment as a matter of law. 10
Schlumberger’s motion for summary judgment as premature pending
Accordingly, for the foregoing reasons, IT IS ORDERED: that
Schlumberger’s motion for summary judgment is hereby GRANTED.
plaintiff’s claims against Schlumberger are hereby dismissed with
New Orleans, Louisiana, October 23rd 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
“discovery [that could] reveal a continued factual dispute,” the
request is now moot. The Court continued the hearing on the motion
for summary judgment until after the close of discovery.
plaintiff never added any additional evidence into the record.
The Court has been informally advised that Fornah has settled
his claims against Chevron, Alliance, and Tetra. Yet the plaintiff
has only requested dismissal of his claims without prejudice as to
Tetra, Alliance, and the liftboat. As counsel has been advised on
more than one occasion, once motions to dismiss without prejudice
pending finalization of settlement are filed into the record (and
granted by the Court), the motions for summary judgment filed by
Chevron, Alliance, and Tetra, and the cross-motion filed by the
plaintiff as to Alliance, will be moot. Unless and until counsel
formally moves to dismiss all claims against the purportedly
settling defendants, those parties must still comply with all of
the deadlines in the scheduling order, including submit a jointlyprepared pretrial order in advance of the upcoming pretrial
conference. If counsel’s failure to file the appropriate dismissal
papers could be considered vexatious conduct wasteful of party and
Court resources, the Court will not hesitate to issue an order to
show cause as to why sanctions should not be imposed pursuant to
28 U.S.C. § 1927.
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