United States District Court, E.D. Louisiana
ORDER AND REASONS
the court is Defendant's “Motion for Partial
Summary Judgment” (Rec. Doc. 18), Plaintiff's
“Opposition to Motion for Summary Judgment” (Rec.
Doc. 29), Defendant's “Reply Memorandum in Further
Support of Motion for Partial Summary Judgment” (Rec.
Doc. 32), Plaintiff's “Motion for Denial or
Continuance of Defendant's Motion for Partial Summary
Judgment Under FRCP 56” (Rec. Doc. 28), and
Defendant's “Response/Memorandum in Opposition to
Plaintiff's Motion for Denial or Continuance of Motion
for Partial Summary Judgment” (Rec. Doc. 26). For the
reasons set forth below, IT IS ORDERED that
the Defendant's Motion for Partial Summary Judgment is
GRANTED. IT IS FURTHER
ORDERED that Plaintiff's Motion for Denial or
Continuance of Defendant's Motion for Partial Summary
Judgment Under FRCP 56 is DENIED as moot and
unnecessary as a fruitless exercise.
AND PROCEDURAL HISTORY
Derrick Baker (“Baker”) was employed by the
defendant American River Transportation Co.
(“ARTCO”), as a deckhand on defendant's
towboat, the M/V Louisiana Sun (Rec. Docs. 18-3 and 29-1).
Baker was injured on November 3, 2015, while attempting to
loosen a wire cable that attached a barge to the M/V
Louisiana Sun (Rec. Docs. 18-3 and 29-1). On behalf of ARTCO,
Baker was provided immediate medical treatment at Prime
Occupational Medicine, where he was diagnosed with a
laceration to his lower lip and a chipped tooth (Rec. Docs.
18-2). Baker was also referred to, and seen by, a dentist to
evaluate his chipped tooth (Rec. Doc. 18-3). He was cleared
and returned to work shortly after, until his termination
about three (3) months later on February 16, 2016 (Rec. Docs.
18-13 and 29-1). On September 12, 2016, Baker filed suit
against ARTCO for Jones Act negligence, unseaworthiness, and
maintenance and cure, alleging that the wire injury that
occurred on November 3, 2015, struck his face, injured his
lip and teeth, as well as his eye, and introduced foreign
bodies into his bloodstream and eye (Rec. Doc. 2).
contends that Baker will be unable to carry his burden of
proof at trial, i.e., that Baker's eye injury arose
during or within the scope of his course of employment with
ARTCO. (Rec. Doc. 18-1). ARTCO argues that it has provided
Baker “ample opportunity to provide evidence”
that his eye injury was a result of his service on the M/V
Louisiana, and that Baker has failed to deliver. (Rec. Doc.
18-1). Baker's response counters that ARTCO has not
proved that there are no genuine issues of material fact.
Baker further contends that ARTCO's motion is premature
(Rec. Doc. 29), and moves under Federal Rule of Civil
Procedure 56(d) to defer ruling on this motion until after
discovery is completed. (Rec. Doc. 29).
AND LEGAL FINDINGS
Federal Rule of Civil Procedure 56, summary judgment is
appropriate only if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The movant must point to “portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. Although the Court must
consider the evidence with all reasonable inferences in the
light most favorable to the nonmoving party, the non-movant
must produce specific facts to demonstrate that a genuine
issue exists for trial. Webb v. Cardiothoracic Surgery
Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
“[w]hile Rule 56(d) motions for additional discovery
are broadly favored and should be liberally granted, the
party filing the motion must demonstrate how additional
discovery will create a genuine issue of material
fact.” Jacked Up, L.L.C. v. Sara Lee Corp.,
854 F.3d 797, 816 (5th Cir. 2017) (quoting Smith v.
Reg'l Transit Auth., 827 F.3d 412, 422-23 (5th Cir.
2016)). “In particular, the party opposing summary
judgment must set forth a plausible basis for believing that
specified facts, susceptible of collection within a
reasonable time frame, probably exist and indicate how the
emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.” Id.
(citations and internal quotation marks omitted). Therefore,
it is necessary to consider the basis for ARTCO's motion
for summary judgment and the facts that Baker alleges could
be discovered to present a genuine issue of material fact.
instant matter, Baker has not provided sufficient evidence to
support his allegations that an eye injury was sustained
during the scope of his employment with ARTCO. Under Rule 56,
it is Baker's responsibility to present essential facts
that the eye injury arose within the scope of his employment.
Baker alleges his eye injury was the result of the
abovementioned November 2015, incident where a wire struck
him in the face (Rec. Doc. 2). However, the uncontested facts
show that on multiple occasions ARTCO requested any and all
evidence substantiating the claim for maintenance and cure
for Baker's injury (Rec. Doc. 29-1 and 18-13, ¶15).
To date, Baker has not provided any medical records or
evidence substantiating allegations that his eye injury was a
result of either the wire incident or any other injury during
his employment with ARTCO.
argument hinges on the idea that there is genuine issue of
material fact because none of the medical reports
specifically “exclude” the eye as part of his
injury. However, that is an erroneous interpretation of a
plaintiff's burden of proof. The absence of evidence is
not evidence. Baker is required, and has failed, to point to
specific facts that would create a genuine issue of triable
fact regarding any injury to his eye. The uncontested facts
prove at best that Baker received an injury to his face in
November 2015. He received medical treatment for his injuries
and shortly thereafter returned to work. The uncontested
facts also show that sometime after his termination in
February 2016, Baker inquired about medical treatment for an
eye injury. He fails, however, to provide any evidence that
would allow for an evaluation that his eye injury arose at
any time while Baker was in the service of the ARTCO.
does not contest the need for reasonable reliance upon
medical expert opinion for causation purposes. However, he
has not offered such evidence relative to his alleged eye
injury. Further, his reliance upon two recently completed
witness depositions has not shown evidence of an eye injury
while in the service of the vessel at issue. Suggestion and
speculation on this limited issue does not create admissible
evidence of a material factual dispute.
alternative, Baker requested a continuance of the submission
of the instant matter. The scheduling order provided a
discovery closure date of August 29, 2017. However, no
relevant evidence has been presented ...