Stevens v. Newfield Exploration Company Inc. et al

Filing 102

RULING denying Star Engineering Services, Inc's 95 Motion for Summary Judgment. Signed by Judge James J. Brady on 3/6/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CLAYTON JAMES STEVENS
CIVIL ACTION
VERSUS
NO. 07-176-JJB-CN
NEWFIELD EXPLORATION COMPANY,
ET AL
RULING ON DEFENDANT STAR’S MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss (doc. 95) by Star
Engineering Services, Inc. (“Star”) one of multiple defendants in this case. The
Plaintiff, Clayton Stevens (“Stevens”) and one of Star’s co-defendants, Paloma
Energy Consultants, L.L.C. (“Paloma”),filed separate oppositions, (docs. 99 and
98, respectively), to which Star replied (doc. 101). There is no need for oral
argument. For the following reasons, the motion is denied.
BACKGROUND
Stevens was working as a pipefitter on a fixed platform in the Gulf of
Mexico on February 23, 2006 when he was injured by a 50-75 pound valve that
knocked him to the ground. He claims an investigation into the accident shows a
jack stand designed to hold the pipe he was working on had not been properly
secured to the platform. (Doc. 99). The jack stand failed, apparently causing the
pipe to shift, which in turn knocked the valve into Stevens. The relevant facts for
this motion are the date of the accident and the fact that Star had performed—or
was in the process of performing—an inspection and analysis of the damage

done to the platform by Hurricane Katrina.

He filed suit against various parties,

in 2007. However, it was not until November 4, 2011, that Star was named a
party to the suit in the Fourth Supplemental and Amended Complaint. (Doc. 91).
This motion revolves around the question of whether Star was brought into the
suit in a timely fashion. Star claims the face of the complaint makes it clear that
the five-year preemptive period set forth in Louisiana Revised Statutes Title 9,
section 5607 has expired and seeks dismissal under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (Doc. 95). In the alternative, Star points to evidence in
the record in support of a motion for summary judgment. Stevens and Paloma
each claim the motion should be denied as the five-year period has not run.
STANDARD OF REVIEW
Rule 12(b)(6) provides for dismissal for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). In reviewing the complaint, courts
accept all well-pleaded facts in the complaint as true. C.C. Port, Ltd. v. DavisPenn Mortg. Co., 61 F.3d 288, 289 (5th Cir. 1995). Courts do not, however,
accept as true all legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Instead, “the complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Id. (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). If the Court looks beyond
the complaint, it is to treat the motion as one for summary judgment. Arvie v.
Bailey, 1 F.3d 1237 (5th Cir. 1993).
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A motion for summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine dispute as to any material fact and that
the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(a).

If the dispositive issue is one on which the nonmovant will bear the

burden of proof at trial, the moving party satisfies its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmovant’s
claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant has the
burden of proof at trial, it must demonstrate the absence of material facts and
entitlement to judgment as a matter of law. Id. at 321.
LAW AND DISCUSSION
The five-year peremptive period in question is provided by La. R.S. 9:5607,
and provides in pertinent part:
A. No action for damages against any professional engineer . .
. shall be brought unless filed in a court of competent jurisdiction
and proper venue at the latest within five years from:
(1) The date of registry in the mortgage office of acceptance of
the work by owner; or
(2) The date the owner has occupied or taken possession of the
improvement, in whole or in part, if no such acceptance is
recorded; or
(3) The date the person furnishing such services has completed
the services with regard to actions against that person, if the
person performing or furnishing the services, as described herein,
does not render the services preparatory to construction, or if the
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person furnishes such services preparatory to construction but the
person furnishing such services does not perform any inspection of
the work.
***
C. The five-year period of limitation provided for in Subsection
A of this Section is a peremptive period within the meaning of Civil
Code Article 3458 and in accordance with Civil Code Article 3461,
may not be renounced, interrupted, or suspended.
***
Stevens and Paloma do not dispute that Star qualifies as the type of party the
statute is intended to cover.1

The question before the Court is when the five-

year clock began to run.
The Court notes that the first two triggers do not apply to this situation:
there is no evidence any acceptance was filed in the mortgage registry and the
owner never seems to have relinquished possession in the first place—further,
the Court reads these provisions as applying to construction work, not
inspections of existing buildings. Plaintiff’s interpretation—that the clock does not
begin to run until the latest of the three requisites is met—is nonsensical. (Doc.
99 at 4). First, this is not what the statute says. Second, the effect of this would
be that the five-year peremptive period would never begin until a notice of
acceptance is filed. Paragraph (2) specifically provides for such an occasion and
renders this interpretation inapplicable. As neither applies to this situation, the
third provision will govern.

1

Although Stevens claims there may be other bases for challenging the applicability of the statute to be addressed
in the future.

4

The third paragraph starts the clock upon the completion of the services
being furnished “with regard to actions against that person.” The parties agree
the services furnished were not preparatory to construction.

Star argues the

allegedly improper inspection was completed before Stevens was injured and
thus the clock started when the inspection was completed. (Doc. 95-1 at 4).
Paloma and Stevens argue the completion of the services came at the end of the
totality of Star’s work, sometime in March 2007. If Star is right and its work
ended prior to the accident, then the five-year peremptive period will have run.
First, as to Star’s Motion to Dismiss, Star points to the Fourth Amended
Complaint and Plaintiff’s allegation that “[s]ome time prior to September 23,
2006, Star . . . [was] retained by the owners and/or operators of the platform to
inspect the platform for damage and provide recommendations for upgrade
and/or repair.” (Doc. 91 at 1). Star interprets this to allege that Star improperly
inspected the platform more than five years prior to his November 4, 2011
amended complaint. Therefore, in Star’s eyes, the claim is perempted. (Doc.
101 at 1). The Court finds the complaint does not allege when Star’s inspection
was completed but that the documents in the record resolve the issue.
Therefore, the Motion to Dismiss will be converted into a Motion for Summary
Judgment.
Star points to a report dated January 20, 2006 as evidence that its
inspection was completed before the accident and thus, more than five years
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prior to the amended complaint. Id.
this might prevail.

Were it the only document in the record,

However, the Court finds that the invoices and progress

reports in the record indicate that the services being furnished were not
completed until sometime in March or April of 2007, thus making the suit against
Star timely under the statute.

All of these documents contain the same job

number, 7064M, as the January 20 report and refer to various phases of work. In
particular, later reports indicate that “damage assessment” was completed in
April of 2006, well after the January 20 report Star relies on. (see, e.g. doc. 98-6
at 48). The invoices from Star, which seek payment for work done into March,
2007,

all

include

the

notation,

“Re:

Mississippi

Canyon

357/

Evaluation/Inspection of/ Hurricane Katrina Damages/ Star Job No. 7064M.” (See
e.g. doc. 98-5 at 29). A project log from the week of March 4, 2007 includes the
terms “job closure report,” and lists the same job number 7064M. In short, the
evidence indicates Star was hired to do one job: to inspect, evaluate, and
recommend repairs for the damages to the platform caused by Hurricane Katrina.
This job was numbered 7064M, started in January of 2006, and continued into
March of 2007. If Star wished for this work to have been broken up into several
separate jobs, it should have done so. As it did not, and when considering the
principle that peremptive periods are to be narrowly applied, the Court finds the
services furnished were not completed until sometime in March of 2007.
Therefore, the five-year peremptive period began to run at that time. As Plaintiff

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amended his complaint to add Star in November of 2011, the five year clock had
not run out. Therefore, Star’s Motion for Summary Judgment is denied.

CONCLUSION
For these reasons, Star’s motion (doc. 95) is DENIED.

Signed in Baton Rouge, Louisiana, on March 6, 2012.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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