Huntington v. Kirby Inland Marine, L.P.
ORDER AND REASONS: ORDERED that the 14 Motion for Summary Judgment or Motion to Dismiss Case is hereby GRANTED as unopposed. The plaintiffs lawsuit is hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIRBY INLAND MARINE, LP
ORDER AND REASONS
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.
No memoranda in opposition to the
defendant’s motion for summary judgment or to dismiss pursuant to
Rules 56, 37, and 41, noticed for submission on September 13, 2017,
has been submitted.
Accordingly, because the motion is unopposed, and further, it
appearing to the Court that the motion has merit, 1 IT IS ORDERED:
David Huntington sued Kirby Inland Marine, LP, seeking to recover
for injuries “to his back and other parts of his body,” which he
alleges he suffered in 2015 as a result of Kirby Inland’s Jones
Act negligence as well as the unseaworthiness of its vessel, the
M/V AJAX. About four months after a scheduling order issued, Mr.
Huntington’s counsel sought and was granted permission to withdraw
as counsel. In granting the motion to withdraw as counsel, the
Court ordered that Mr. Huntington must enroll counsel within 14
days or to become familiar with the rules of Court to proceed pro
se. No new counsel enrolled. Mr. Huntington failed to respond to
efforts by defense counsel to obtain responses to written discovery
requests. And, Mr. Huntington failed to appear for his scheduled
deposition. The defendant’s motion to compel the plaintiff’s
answers to written discovery requests as well as to compel the
plaintiff to appear for his deposition was granted as unopposed.
Notwithstanding the August 2, 2107 compel order, Mr. Huntington
has not participated in his lawsuit; he has neither contacted the
Court nor defense counsel. The defendant now moves for summary
judgment or to dismiss the plaintiff’s claims as a discovery
sanction or for failure to prosecute.
No opposition has been
filed. It appears from the record that the plaintiff has abandoned
his lawsuit against Kirby Inland.
As grounds for summary judgment, Kirby Inland points to
answers the plaintiff gave when he was interviewed following his
reported back pain in which Mr. Huntington states that he cannot
pinpoint a particular situation or event that triggered his back
pain; he stated that there was no incident or episode that gave
rise to his complaint, that “it was just...[n]othing really new...”
Kirby Inland also notes that the plaintiff is deemed to have
admitted the statements made within the requests for admission
directed to the plaintiff, which he never answered.
plaintiff is deemed to have admitted that Kirby was not negligent
in any way that would cause his injuries and that its vessel was
not unseaworthy in any way that would cause his injuries entitles
Kirby Inland to judgment as a matter of law dismissing the
Even if the Court did not reach the defendant’s request for
summary judgment, Kirby Inland’s requests that the plaintiff’s
claims be dismissed as a discovery sanction or for failure to
prosecute likewise have merit.
There is nothing in the record
excusing the plaintiff’s failure to participate in his case since
his counsel withdrew in July 2017. Not only is there no evidence
in the record demonstrating that the plaintiff can prove any of
the elements of his Jones Act negligence and unseaworthiness
claims, there is nothing in the record to indicate that the
plaintiff wishes to pursue his case such that some lesser sanction
would prompt the plaintiff to participate in the litigation that
he instigated. Finally, the plain record of delay by the plaintiff
(which is attributable solely to Mr. Huntington) together with the
plaintiff’s disregard of the magistrate judge’s order compelling
him to participate demonstrates that the plaintiff simply
disregards Court orders, making it unlikely that a lesser sanction
would prompt diligent prosecution of this case. Dismissal of the
plaintiff’s case with prejudice is warranted.
that the defendant’s motion for summary judgment or to dismiss
pursuant to Rules 56, 37, and 41 is hereby GRANTED as unopposed.
The plaintiff’s lawsuit is hereby dismissed with prejudice.
New Orleans, Louisiana, September 15, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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