Fontenette v. Blue Marlin Services LLC et al

Filing 64

MEMORANDUM RULING re 52 MOTION for Summary Judgment filed by Blue Marlin Services L L C, 58 MOTION for Partial Summary Judgment filed by Apache Corp, Cal Dive Offshore Contractors Inc. The Court grants defendants moti ons for partial summary judgment and dismisses plaintiffs claims against all defendants under the Jones Act and plaintiffs claim against Blue Marlin under the general maritime law. Signed by Judge Tucker L Melancon on 5/30/2012. (crt,Davenport, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Fontenette

Civil Action No. 11-0584

versus

Judge Tucker L. Melançon

Blue Marlin Services LLC, et al

Magistrate Judge C. Michael Hill

MEMORANDUM RULING
Before the Court is an unopposed 1 motion for summary judgment filed by defendant
Blue Marlin Services of Acadiana L.L.C. (“Blue Marlin”) [Rec. Doc. 52] and a motion for
Partial Summary Judgment filed by defendants Apache Corporation (“Apache”) and Cal Dive
Offshore Contractors Inc. (“Cal Dive”) [Rec. Doc. 58] 2 seeking dismissal of plaintiff, John
Fontenette’s, claims under the Jones Act against all defendants and dismissal of plaintiff’s
claims for vessel unseaworthiness under the general maritime law against Blue Marlin.
The fact that the motions are unopposed does not necessarily mean defendants should
prevail on the merits. “A motion for summary judgment cannot be granted simply because
there is no opposition, even if failure to oppose violated a local rule. The movant has the
burden of establishing the absence of a genuine issue of material fact and, unless he has done
so, the court may not grant the motion, regardless of whether any response was filed.” Hetzel
v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5 th Cir. 1995)(citing Hibernia Nat'l Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985)). However,
failure to file an opposition and statement of contested material facts requires the Court to
deem defendants’ statements of uncontested material facts admitted for purposes of the
motion. Local Rule 56.2W.

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Plaintiff filed a Response of No Opposition to the motions on May 7, 2012. R. 62.

In their motion, Apache and Cal Dive “adopt ... the factual statements, law, argument and
exhibits” of Blue Marlin’s motion. R. 58-3.

Background
The undisputed facts of this matter, R. 52-4, Stmt. Of Uncontested Fact, provide that
plaintiff worked for Blue Marlin as a galley hand from June 2009 to October 2009. Blue
Marlin provides contract labor, including catering services and steward personnel, to
numerous customers on various types of land based and offshore facilities, including jack up
barges and fixed platforms. Plaintiff worked approximately five months for Blue Marlin,
from June 22, 2009 to October 5, 2009 and was randomly assigned to various locations and
companies based on the needs of Blue Marlin’s customers. During his employment, plaintiff
worked with five Blue Marlin customers on five separate assignments. From June 22, 2009
to June 29, 2009, plaintiff was assigned to work for Hilcorp Energy Company at their Calliou
Island facility on a fixed platform for eight days, 120 hours. Id, Exh. A. From July 2, 2009
to August 5, 2009, plaintiff was assigned to work on El-296B, a fixed platform owned by
Apache, for 36 days, 578 hours. Id. From August 14, 2009 to August 25, 2009 plaintiff was
assigned to work on El330D, a fixed platform, for 12 days, 213 hours. Id. From September
15, 2009 to September 22, 2009, plaintiff was assigned to work on Basic-11, a fixed platform
owned by Basic Energy Services, for eight days, 87 hours. Id.
Plaintiff’s final assignment with Blue Marlin was from September 28, 2009 to
October 4, 2009 on the M/V BRAVE. Plaintiff’s alleged injury occurred on October 4
during his first hitch working onboard the M/V BRAVE. The M/V BRAVE is a pipe lay
barge owned and operated by Cal-Dive.3 Id. Prior to the injury at issue, plaintiff had never
worked on the M/V BRAVE nor any other vessel owned, operated, or controlled by CalDive. Id., Exh. B, Plaintiff’s 3/2/12 Deposition. Blue Marlin does not own or operate any

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In his Third Amended Complaint, plaintiff alleges that he was contracted to Apache and/or
Cal Dive through Blue Marlin. R. 28, ¶1.

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vessels. Id., Exh. A, Declaration of Charles Sommier.
Based on plaintiff’s timesheets, he worked for various Blue Marlin customers for 71
days, for a total of 1,081 hours. Id. Of those 1,081 hours, 998 hours were aboard platforms
and 83 hours were aboard the vessel, M/V BRAVE. Id. Thus, plaintiff spent approximately
7.6% of his time working aboard the M/V BRAVE (83 vessel hours ÷ 1,081 total hours =
7.6%). Id. Plaintiff testified in his March 2, 2012 deposition that during his 71 days of work
while employed with Blue Marlin, he spent approximately eleven days working on vessels,
four days on a barge owned by Apache, out of Fourchon, Louisiana, and seven days on a rig
out of Venice Louisiana. Thus, 15.5 % (11÷21 days) of plaintiff’s entire employment with
Blue Marlin was spent on vessels. R. 52, Exh. B, Depo. Of Plaintiff, p. 123.
Plaintiff filed this action against Blue Marlin, Apache and Cal Dive alleging claims
for: (1) negligence under the Jones Act; (2) maintenance and cure; (3) compensatory
damages for unreasonable failure to pay and maintenance and cure; and, (4) vessel
unseaworthiness under general maritime law. R. 1, 5, 9, 28.
Summary Judgment Standard
Summary judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under Rule
56(c), the moving party bears the initial burden of “informing the district court of the basis
for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir.2002). The party
moving for summary judgment must demonstrate the absence of a genuine issue of material
fact but need not negate the elements of the nonmovant’s case. Exxon Corp. v. Oxxford
Clothes XX, Inc., 109 F.3d 1070, 1074 (5th Cir.1997). When the moving party, has met its

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Rule 56(c) burden, the nonmoving party, cannot survive a summary judgment motion by
resting on the mere allegations of its pleadings. “[T]he nonmovant must identify specific
evidence in the record and articulate the manner in which that evidence supports that party’s
claim.” Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 301
(5th Cir.2004) (citation omitted).
Analysis
Only “seamen” can recover damages under the Jones Act. Whether an injured worker
is a Jones Act seaman is a mixed question of law and fact and therefore usually a jury
question; however, summary judgment is mandated where the facts and the law reasonably
support only one conclusion. In re Endeavor Marine Inc., 234 F.3d 287, 290 (5th Cir.2000).
The Supreme Court has established a two-part test to determine seaman-status:
“First ... an employee’s duties must contribute to the function of the vessel or
to the accomplishment of its mission ...
“Second, and most important for our purposes here, a seaman must have a
connection to a vessel in navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its duration and its nature.”
Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 346 (5 th Cir. 1999)(quoting
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)) (citations and internal quotation marks
omitted). The Fifth Circuit has analyzed the temporal element of the relationship between
a plaintiff and a vessel (or fleet of vessels) in terms of percentage of work performed on
vessels and has declined to find seaman status where the employee spent less than 30 percent
of his time aboard a subject vessel or fleet of vessels. See Chandris at 371, citing Barrett v.
Chevron, U.S.A., Inc., 781 F.2d 1067, 1075 (5th Cir.1986).
Defendants contend that plaintiff is not a Jones Act seaman, because he did not have
a connection to a vessel or identifiable fleet of vessels in navigation that was substantial in
terms of both duration and nature. It is undisputed that, plaintiff worked for Blue Marlin for

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less than five months, received five separate assignments, and worked for five different
customers. Plaintiff was never permanently assigned to any particular vessel or company and
did not work on any vessel with any regularity or consistency. R. 52, Exh. A. According to
his timesheets, plaintiff spent approximately 7.6% of his time working aboard the M/V
BRAVE and, based on plaintiff’s own testimony, approximately 15.5% of his time aboard
vessels during the entirety of his employment with Blue Marlin - significantly less than the
30% rule of thumb recognized by the United States Supreme Court and the Fifth Circuit. Id.
As plaintiff cannot demonstrate that he had a connection to any vessel or fleet of vessels,
which was substantial in duration, his cause of action under the Jones Act must fail.
As the Court has found that plaintiff is not a seaman, his claim to maintenance and
cure cannot stand. “Maintenance and cure is the implied contractual right of a seaman who
is injured in the service of the ship, regardless of fault, to payments from the shipowner
through the time of maximum recovery. The shipowner’s obligation to pay maintenance and
cure to an injured seaman is not based on fault but results from the relationship of ship and
seaman.” Badeaux v. Magnolia Fleet, L.L.C., 2011 WL 765781, 7 (E.D.La. 2011) (citing
Isthmian Lines, Inc. v. Haire, 334 F.2d 521, 523 (5th Cir.1964)).
Nor can plaintiff maintain a cause of action for unseaworthiness against Blue Marlin.
Only owners and operators may be liable for the unseaworthiness of a vessel. See, e.g.,
Baker v. Raymond Intern., Inc., 656 F.2d 173, 181 (5th Cir.1981) (explaining that to be held
liable for breaching the duty to provide a seaworthy vessel, the defendant “must be in the
relationship of an owner or operator of the vessel.”). It is undisputed that Blue Marlin does
not own or operate any vessels.4

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In his Third Amended Complaint, plaintiff stated that the “Complaint incorrectly names
Blue Marlin, LLC owner of the vessel, The BRAVE, which in fact is owned by Cal Dive....” R.
28.

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Conclusion
Plaintiff cannot demonstrate that he had a connection to a vessel or identifiable fleet
of vessels under common ownership or control that was substantial in duration or nature, and
therefore cannot maintain a cause of action under the Jones Act. As such, plaintiff is not
entitled to maintenance and cure. As Blue Marlin did not own or operate the M/V BRAVE,
plaintiff cannot maintain a cause of action for unseaworthiness under the general maritime
law against Blue Marlin. Accordingly, the Court will grant defendants’ motions for partial
summary judgment and dismiss plaintiff’s claims against all defendants under the Jones Act
and plaintiff’s claim against Blue Marlin under the general maritime law.

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