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Environmental, Safety & Health Consulting Services v. Crest Energy Partners, L.P.

United States District Court, E.D. Louisiana

May 21, 2015



HELEN G. BERRIGAN, District Judge.

Before this Court are two Motions for Summary Judgment by plaintiff, Environmental, Safety & Health Consulting Services, Inc. ("ESH"). The first motion seeks summary judgment as to ESH's claims against defendant, Crest Energy Partners, L.P. ("Crest"), and the second motion seeks summary judgment as to Crest's counterclaims against ESH. Rec. Docs. 44, 45. Also before the Court are Crest's briefs in opposition to both motions, and ESH's reply briefs. Rec. Docs. 49, 50, 51-2, 52-2.

The motions are before the Court on the briefs without oral argument. After reviewing the memoranda of the parties, the record in the case and the applicable law, the Court grants ESH's motions as set forth below.


This dispute arises out of Crest's purported failure to pay eight invoices for ESH's work in emptying and decontaminating storage tanks for Crest. The Court has already granted summary judgment to ESH in connection with three of the invoices. Rec. Doc. 39. As discussed in detail in the Court's Order and Reasons of September 18, 2013, the contract governing this work, known as the Master Service Agreement ("MSA") provided that each job by ESH would be the subject of a Scope of Work ("SOW") which would describe the work to be performed; the job location; equipment, services, supplies, personnel to be provided by ESH, materials to be purchased by ESH, and consideration to be paid. Rec. Doc. 20-2.

The MSA further provided that in the event that Crest wished to withhold payment due to a good faith dispute:

The Company [Crest] shall notify Contractor [ESH], in writing, of any withholding of payment within fifteen (15) days of invoice date. The notice shall indicate the specific amount(s) the Company intends to withhold, the reasons and contractual basis for the withholding(s), and the specific measure(s) Company requests that Contractor take to address the Company's concerns.

Rec. Doc. 20-2 at 6.

In late May 2012, the first SOW was issued and ESH began the agreed upon work. Rec. Doc. 1 at 9. After successfully cleaning and decontaminating two tanks and being paid in full, on October 22, 2012 Crest issued a third SOW for the cleaning of Tank 1564 ("October SOW"). Rec. Doc. 45-8. Work on Tank 1564 was divided into two phases. In Phase I, also known as the "pump-down phase", ESH was to remove liquids from the tank. In Phase II, ESH was to remove and clean out the sludge and solids remaining in the tank. Rec. Doc. 49-10 at 5.

The Court previously ruled that the MSA and October SOW governed the work done by ESH in connection with Tank 1564 and Crest's payment on any invoices issued for such work. Rec. Doc. 39 at 8. Under the October SOW, ESH was to invoice Crest for completed work every two weeks, and Crest's payment was due fifteen days from the invoice date. Rec. Doc. 45-8. ESH issued the invoices in dispute on May 2, May 10, May 15, May 28, and May 29, 2013. Rec. Doc. 44-5. The parties agree that Crest expressed in writing its dissatisfaction with the pace and quality of ESH's work on four occasions: May 14, 2013; May 13, 2013; June 27, 2013, and June 27, 2013. Rec. Doc. 44-6. The Court previously found that the first time that Crest stated its intent to withhold payment was on June 27, 2013. Rec. Doc. 39 at 9.

ESH now moves for summary judgment on its claim for breach of contract on the remaining five invoices, arguing that Crest has shown no issues of material fact regarding its obligation to pay these invoices. Rec. Doc. 44. ESH also moves for summary judgment to dismiss Crest's counterclaim of breach of contract and fraudulent inducement. Rec. Doc. 45.


a. Summary Judgment

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is material if it would affect the outcome of the suit under the applicable law. Fiess v. State Farm Lloyds, 392 F.3d 802, 807 (5th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). Where the moving party bears the burden of proof at trial as the plaintiff, or as a defendant asserting an affirmative defense, that party must support its motion with "credible evidence... that would entitle it to directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). In such a case the moving party must "establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); see also Access Mediquip L.L.C. v. United Healthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011). Credible evidence may include depositions, documents, affidavits, stipulations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P. 56(c). Moreover, in evaluating a motion for summary judgment by the party with the underlying burden of ...

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