Giroir v. Cenac Marine Services, LLC
Filing
36
ORDER AND REASONS: ORDERED that 33 MOTION for expedited consideration is hereby GRANTED and that the 32 MOTION to continue is GRANTED, in part, and DENIED, in part. FURTHER ORDERED that the submission date on the 30 , 31 MOTIONS for summary ju dgment is hereby CONTINUED to Wednesday, March 6, 2018; that the plaintiff's opposition papers are due no later than Tuesday, February 26, 2019; and that any reply is due by Friday, March 1, 2019. FURTHER ORDERED that the final pre-trial conference is hereby CONTINUED to March 8, 2019 at 10:45 a.m. Signed by Judge Martin L.C. Feldman on 2/6/2019.(jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICKY GIROIR
CIVIL ACTION
V.
NO. 18-3595
CENAC MARINE SERVICES, LLC
SECTION “F”
ORDER AND REASONS
Before the Court are two motions: (1) the plaintiff’s motion
to continue the March 25, 2019 trial date and associated deadlines,
as well as the submission date on the defendants’ pending motions
for summary judgment; and (2) the plaintiff’s motion for expedited
consideration of the underlying motion to continue.
For the
reasons that follow, the motion to expedite is GRANTED, and the
motion to continue is GRANTED, in part, and DENIED, in part.
I.
This maritime personal injury action arises out of a seaman’s
claims that he sustained injuries while working aboard two vessels
owned by his employer.
On April 4, 2018, Ricky Giroir sued Cenac
Marine Services, LLC, asserting claims under the Jones Act and the
general maritime law.
Thereafter, this Court issued a Scheduling
Order, setting forth February 26, 2019 pre-trial conference and
March 25, 2019 jury trial dates.
In early December of 2018, the
plaintiff moved to continue the trial date and to extend the expert
1
report and discovery deadlines.
In that motion, plaintiff’s
counsel advised that Mr. Giroir had undergone an additional back
surgery in September of 2018 and that additional time was needed
for discovery.
plaintiff’s
The defendant, in opposition, denied that the
surgery
was
related
to
the
alleged
injuries
he
sustained while working for defendant and urged the Court that the
cited discovery issues would be rectified in a matter of days.
Accordingly, in its Order dated December 10, 2018, this Court
granted the plaintiff’s motion, in part, as to an extension of
expert report deadlines, and denied the motion, in part, as to a
continuance of the trial date and other pre-trial deadlines; the
Court also continued all discovery deadlines to January 29, 2019.
In the meantime, Cenac Marine filed two motions for summary
judgment,
seeking
dismissal
of
the
plaintiff’s
claims
for
maintenance and cure, unseaworthiness, and Jones Act negligence.
Those motions are currently noticed for submission on February 20,
2019.
Most recently, on February 5, 2019, Giroir filed a second
motion to continue the trial date and all discovery deadlines, as
well as an initial motion to continue the submission date on the
defendants’ pending motions for summary judgment; Giroir seeks
expedited consideration of his request for a continuance.
II.
In Giroir’s pending motion to continue, plaintiff’s counsel
advises that the parties have exchanged documents and responses to
2
interrogatories and that the plaintiff has been deposed, but that
no additional discovery has occurred.
He further relates that the
parties have been engaged in settlement discussions since January
16, 2019.
counsel
However, on the morning of February 5, 2019, defense
allegedly
expressed
a
desire
to
postpone
settlement
discussions until a decision is rendered on its pending motions
for summary judgment.
Conceding that he erroneously believed a
final settlement was “forthcoming,” plaintiff’s counsel submits:
Faced with a pending deadline to respond to
the pending motions for judgment and a
submission date of 20 February, coupled with
the lack of discovery of Cenac’s fact
witnesses, Complainant is in a time crunch to
file a response to the motions and lacks the
discovery to do so.
Under these circumstances, it appears that the plaintiff’s request
to modify the scheduling order and to continue the submission date
on the defendant’s pending motions for summary judgment is based
solely upon the failure of his counsel to timely begin preparing
a response to those motions.
Although plaintiff’s counsel asserts
a “lack of discovery of Cenac’s fact witnesses” as one ground for
his inability to comply with the current submission date, he fails
to satisfy the requirements of Federal Rule of Civil Procedure
56(d). 1
Specifically,
the
plaintiff
1
indicates
neither
why
Federal Rule of Civil Procedure 56(d) permits a district court
to defer considering a pending motion for summary judgment “[i]f
a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
3
additional discovery is needed, nor how such discovery would create
a genuine issue of material fact.
Therefore, the Court is not
persuaded that the plaintiff is unable to comply with the existing
submission
date,
or
continuance
of
that
the
“good
trial
date
cause”
and
exists
to
discovery
justify
a
deadlines.
Nonetheless, the Court finds that a brief continuance of the
summary judgment submission date and the pre-trial conference date
is appropriate; such a continuance would afford the plaintiff with
additional time to respond to the defendant’s pending dispositive
motions without prejudicing the defendant.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the
plaintiff’s
motion
for
expedited
consideration
is
hereby
GRANTED and that the plaintiff’s motion to continue is GRANTED, in
part, and DENIED, in part.
IT IS FURTHER ORDERED: that the
submission date on the defendants’ pending motions for summary
judgment is hereby CONTINUED to Wednesday, March 6, 2018; that the
opposition.” Rule 56(d) motions “are broadly favored and should
be liberally granted” because they “safeguard non-moving parties
from summary judgment motions that they cannot adequately oppose.”
Culwell v. City of Fort Worth, 468 F.3d 868, 872 (5th Cir. 2006).
Nonetheless, the party seeking a continuance “may not simply
rely on vague assertions that additional discovery will produce
needed, but unspecified, facts.”
Raby v. Livingston, 600 F.3d
552, 561 (5th Cir. 2010) (quoting Sec. & Exch. Comm’n v. Spence &
Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Instead, the
party must indicate (1) “why he needs additional discovery” and
(2) “how the additional discovery will create a genuine issue of
material fact.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442
(5th Cir. 1993).
4
plaintiff’s opposition papers are due no later than Tuesday,
February 26, 2019; and that any reply is due by Friday, March 1,
2019.
IT IS FURTHER ORDERED: that the pre-trial conference,
currently scheduled for February 26, 2019 at 10:30 a.m., is hereby
CONTINUED to March 8, 2019 at 10:45 a.m.
New Orleans, Louisiana, February 6, 2019
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?