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Menard v. LLOG Exploration Company, LLC

United States District Court, E.D. Louisiana

April 10, 2017


         SECTION “R” (3)



         Defendants LLOG Exploration Company, LLC; LLOG Exploration Offshore, LLC; and LLOG Exploration & Production Company, LLC (collectively, “LLOG”) move for summary judgment on plaintiff Corey Menard's claims.[1] For the following reasons, the Court grants LLOG's motion.

         I. BACKGROUND

         In early 2015, plaintiff Corey Menard was employed as a senior field technician by Gly-Tech Services, and was assigned to work offshore on LLOG's Delta House Floating Production System, a semi-submersible oil- exploration platform in the Mississippi Canyon.[2] On or about January 22, 2015, plaintiff was aboard the M/V ARABIAN, a support vessel adjacent to the Delta House. According to plaintiff, because of high winds and rough seas, the M/V ARABIAN was moving back into shallow waters to give the crew a break from the extreme conditions.[3] Plaintiff alleges that before the M/V ARABIAN moved, LLOG required plaintiff to go from the M/V ARABIAN to the Delta House via a personnel basket transfer to collect belongings left on the Delta House.[4] Plaintiff further alleges that during his attempted transfer, the extremely rough seas caused the personnel basket to abruptly thrust upward and slam plaintiff, severely injuring his lower back.[5]

         On January 20, 2016, plaintiff sued Grand Isle Shipyard, Gibson Applied Technology, and LLOG, alleging that their negligence caused his injury.[6] Plaintiff amended his complaint on June 28, 2016, and added Adriatic Marine, LLC, the owner and operator of the M/V ARABIAN, and Wood Group Production Services, Inc. (Wood Group), the entity responsible for operations on the Delta House, as defendants.[7] Plaintiff seeks a judgment of $3, 000, 000, punitive damages, attorneys' fees, and costs.[8]

         LLOG now moves for summary judgment on plaintiff's negligence claims, arguing that there is no evidence of negligence attributable to any of the LLOG entities that caused or contributed to plaintiff's alleged injuries, and that as a matter of law LLOG is not liable for any negligent acts by the other defendants.[9] Plaintiff filed a response in opposition, [10] and also separately moved the Court to delay or defer consideration of LLOG's motion so that plaintiff can obtain additional discovery.[11] LLOG replied, [12] and filed an opposition to plaintiff's request to delay consideration of its summary judgment motion.[13]


         Summary judgment is warranted when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

         If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).

         Federal Rule of Civil Procedure 56(d) governs requests for additional time for discovery before consideration of a pending motion for summary judgment. It permits a district court to deny or defer consideration of a motion for summary judgment, allow time to take discovery, or “issue any other appropriate order” when “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). 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 seeking to continue a motion for summary judgment to obtain further discovery must demonstrate (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). In other words, the plaintiff must identify specific facts, susceptible of collection, and indicate how those facts “‘will influence the outcome of the pending summary judgment motion.'” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014) (quoting Raby, 600 F.3d at 561)).

         Here, plaintiff asserts that he has not yet had time to review LLOG's responses to plaintiff's second set of discovery requests and that his motion to compel an inspection of the Delta House is currently pending before Magistrate Judge Knowles.[14] But plaintiff's motion does not identify what specific facts he seeks, much less explain how those unspecified facts will influence the outcome of LLOG's summary judgment motion. Plaintiff's desire for additional information, without more, does not warrant a continuance under Rule 56(d). Rule 56(d) “does not condone a fishing expedition where a plaintiff merely hopes to uncover some possible evidence of [value].” Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997) (internal quotation omitted); see also Jason v. Parish of Plaquemines, No. 16-2728, 2016 WL 4623050, at *4-5 (E.D. La. Sept. 6, 2016) (denying plaintiff's request to defer consideration of motion for summary judgment because plaintiff gave “nothing more than a ‘speculative hope' that discovery might provide plaintiff with information supporting his claims”) (quoting Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1567 (Fed. Cir. 1987)).

         Additionally, even if plaintiff's motion did specifically identify facts that would affect the outcome of the pending summary judgment motion, Rule 56(d) requires that plaintiff make this showing by affidavit or declaration. Plaintiff's motion and the attached documents include neither an affidavit nor a declaration. This alone is sufficient grounds to deny plaintiff's motion. See Scotch v. Letsinger, 593 F. App'x 276, 278 (5th Cir. 2014) (“Because Scotch did not submit either an affidavit or a declaration, the district court did not err in denying Scotch's request.”); Leza v. City of Laredo, 496 F. App'x 375, 377-78 (5th Cir. 2012) (affirming denial of Rule 56(d) motion because movant did not present affidavit or declaration); see also Sandusky Wellness Ctr., LLC v. Medco Health Sols, Inc., 788 F.3d 218, 226 (6th Cir. 2015).

         Because plaintiff's motion is both procedurally and substantively defective, the Court will not delay or defer consideration of LLOG's motion for summary judgment.


         As an initial matter, the Court must determine the applicable law that governs plaintiff's negligence claims. Plaintiff's complaint asserts admiralty jurisdiction, under which general maritime law would apply.[15] See Alexander v. Kevin Gros Consulting & Marine Servs., Inc., No. 14-1273, 2016 WL 430413, at *4 (E.D. La. Feb. 4, 2016) (citations omitted). But plaintiff also asserts, in the alternative, jurisdiction under the Outer Continental Shelf Lands Act (OCSLA), which generally adopts the law of the adjacent state as a supplement to federal law. See Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969). Essentially, if plaintiff was injured on the M/V ARABIAN at sea or while en route to the Delta House, maritime law applies, and if he was injured on the Delta House, Louisiana law applies through OCSLA.[16] See Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 781 (5th Cir. 2009).

         The parties' briefs do not answer the choice of law question, instead the parties brief the issues under both general maritime and Louisiana law. But Plaintiff testified that he was injured when the personnel basket jerked up while on the deck of the M/V ARABIAN, and not while he was en route or aboard the Delta House.[17] Thus, as the evidence indicates that plaintiff was on the M/V ARABIAN when injured, and not on the Delta House, general maritime law applies.

         To establish maritime negligence, a plaintiff must demonstrate “‘that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant's conduct and the plaintiff's injury.'” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010) (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (internal modifications omitted)). Under maritime law, a plaintiff is owed a duty of ordinary care under the circumstances. Id. (citing Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)).

         LLOG argues that there is no evidence of any negligence attributable to any of the LLOG entities that caused or contributed to plaintiff's alleged injuries.[18] In support, LLOG submits the affidavit of Craig Mullett, LLOG's Offshore Construction Manager.[19] Mullett attests that there were no employees of any of the LLOG entities on either the Delta House or the M/V ARABIAN on January 22 or 23, 2015.[20] Further, Mullett attests that the two cranes on Delta House (that are used in personnel basket transfers) were not operated by LLOG employees, and that no crane defects were reported to LLOG in January, 2015.[21]

         Plaintiff's complaint identified more than fifteen specific negligent actions or inactions that LLOG allegedly took or failed to take, including failing to properly transfer plaintiff from the M/V ARABIAN to the Delta House, requiring plaintiff to make the transfer, failing to provide proper safety precautions, etc.[22] Despite the allegations in plaintiff's complaint, however, plaintiff has submitted no evidence of any negligence by the LLOG entities themselves that caused his injuries. Plaintiff testified at his deposition that he did not know if anyone with him on the day of the accident was employed by any of the LLOG entities, and could not identify anything that any LLOG employee did that was a cause of his accident.[23] Additionally, he was not aware of any defects or problems with the crane used for the personnel basket transfer that could have caused the accident.[24] Finally, plaintiff testified in his deposition that the instruction to make the personnel basket transfer came from the Offshore Installation Manager Chuck Breaux, an employee of Wood Group.[25] Therefore, not only is there no evidence that LLOG required defendant to make the personnel basket transfer at issue, but also there is no evidence that any LLOG employee was present at the time of the accident or directly influenced the decision to make the personnel basket transfer.

         Given this absence of evidence, any argument that LLOG should be liable for Menard's injuries is based on either holding LLOG liable for the acts of its contractor Wood ...

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