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LLC v. Oceaneering International, Inc.

United States District Court, E.D. Louisiana

April 20, 2018


         SECTION “R” (3)



         Plaintiff Wright's Well Control Services, LLC moves for summary judgment on defendant Oceaneering International, Inc.'s counterclaims.[1]For the following reasons, the Court grants the motion.

         I. BACKGROUND

         The facts and allegations that follow are limited to what is relevant to the motion before the Court.[2] Plaintiff Wright's Well Control Services, LLC (WWCS) and defendant Oceaneering International, Inc. (Oceaneering) both provide hydrate remediation services for the oil and gas industry. A hydrate is an ice-like solid that forms when water becomes mixed with oil and/or gas at high pressure and low temperature.[3] Hydrates can cause a pipeline to become blocked by “hydrate plugs, ” resulting in a loss of production.[4] This dispute concerns systems developed by both parties for removing hydrates from subsea, deepwater pipelines.

         In 2008, ATP Oil and Gas Corporation contracted with Oceaneering to remove hydrates from a pipeline.[5] At the time, Oceaneering had a hydrate remediation skid designed to clear hydrate plugs in smaller tubing; Oceaneering had not yet used it on a pipeline.[6] Oceaneering successfully cleared some, but not all, of the hydrate plugs from ATP's pipeline in early 2009.[7] ATP then contracted with WWCS to conduct further hydrate remediation in ATP's pipeline, even though WWCS did not yet have a complete hydrate remediation system.[8] WWCS developed its hydrate remediation system specifically for high-volume, deepwater applications.[9]The parties worked together on this job for ATP, and allegedly executed a Reciprocal Nondisclosure of Confidential and Proprietary Information Agreement (NDA) on December 11, 2009.[10]

         WWCS asserts that it completed the design and manufacture of its hydrate remediation system by early 2010.[11] WWCS's system successfully cleared the remaining hydrates in ATP's pipeline by March 2010.[12] The parties worked together on several additional jobs using WWCS's system. According to WWCS, it has not used its hydrate remediation system since January 2011.[13] Oceaneering developed its Flowline Remediation System (FRS) from 2009 to 2011. WWCS alleges that Oceaneering developed the FRS using confidential information disclosed under the NDA.[14]

         WWCS filed its initial complaint on May 21, 2015.[15] The fourth amended complaint, which is the operative complaint, was filed on February 27, 2017.[16] Oceaneering filed its answer and counterclaims on March 16, 2017.[17] Oceaneering counterclaimed for unfair competition under 15 U.S.C. § 1125, Texas state law unfair competition, breach of contract, unjust enrichment, and attorney's fees. The Court dismissed Oceaneering's counterclaim for attorney's fees on November 20, 2017.[18] WWCS now moves for summary judgment on Oceaneering's remaining counterclaims.[19]


         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. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         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)).


         WWCS moves for summary judgment on Oceaneering's counterclaims on the ground that insufficient evidence supports these claims. In addition to arguing that there is sufficient evidence in support of its counterclaims, Oceaneering urges the Court to strike WWCS's motion and to dismiss WWCS's breach of contract claim as untimely.

         The Court further notes that each party's briefs are full of vitriol and accusations of ethical violations by the other party. Such vitriolic statements and unfounded accusations add nothing to the parties' arguments. The parties shall refrain from this type of argumentation in any oral or written statements to this Court.

         A. Untimeliness of WWCS's Motion

         Oceaneering first argues that WWCS's motion should be stricken for untimeliness.[20] Under the Court's scheduling order, the deadline to file non-evidentiary pretrial motions-including summary judgment motions-was March 13, 2018.[21] WWCS filed its motion for summary judgment one week later, on March 20. Thus, WWCS's motion is untimely.

         The Court nevertheless declines to strike WWCS's motion. A district court has broad discretion to extend filing deadlines and to accept late-filed motion papers. See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995). Moreover, Oceaneering fails to explain how it is prejudiced by the one-week delay in the filing of WWCS's motion. Therefore, the Court proceeds to the merits of the summary judgment motion.

         B. Oceaneering's Counterclaims

         1. Unfair Competition in Violation of 15 U.S.C. § 1125

         Oceaneering's first counterclaim alleges that WWCS violated Section 43 of the Lanham Act, 15 U.S.C. § 1125, by falsely designating the origin of an Oceaneering schematic.[22] Specifically, WWCS allegedly instructed a third party, Gulf Coast Manufacturing, to replace Oceaneering's logo on a schematic with WWCS's logo.[23] According to Oceaneering, “WWCS passed off this derivative work as its own to third parties when advertising and bidding on remediation projects.”[24]

         Section 43 of the Lanham Act provides in relevant part:

Any person who, on or in connection with any goods or services, . . . uses in commerce . . . any false designation of origin, . . . which-
(A) is likely to cause confusion, or to cause mistake, or to deceive . . . as to the origin . . . of his or her goods, . . . or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, . . .
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1). Oceaneering's claim asserts reverse passing off, or reverse palming off, which involves “selling or offering for sale another's product that has been modified slightly and then labeled with a different name.” Roho, Inc. v. Marquis, 902 F.2d 356, 359 (5th Cir. 1990); see also Hunn v. Dan Wilson Homes, Inc., 789 F.3d 573, 588 (5th Cir. 2015). This claim requires evidence of both “use of false designation of origin and false representation in interstate commerce.” Roho, 902 F.2d at 358. Oceaneering provides neither. First, Oceaneering cites no evidence that WWCS used its modified schematic in interstate commerce. Second, the schematic portrays WWCS's system, including the separator with the internal ball valve.[25] Of course, the use of WWCS's logo on the schematic does not falsely designate the origin of the WWCS system.

         Oceaneering raises an additional allegation in support of its § 1125 claim in response to WWCS's summary judgment motion: that WWCS passed off Oceaneering's ROV as its own by removing Oceaneering's logo from photographs of the ROV and publishing those photographs in presentations and industry journals.[26] This allegation is not properly before the Court because it was not included in Oceaneering's pleadings. See Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.”). Moreover, Oceaneering fails to point to any evidence of damages it sustained because of WWCS's purported violations of the Lanham Act. For these reasons, WWCS is entitled summary judgment on Oceaneering's Lanham Act counterclaim.[27]

         2. Unfair Competition in Violation of Texas Law

         Oceaneering's state law unfair competition claim is based on two alleged actions: (1) a WWCS employee “snooped” on Oceaneering's FRS, and WWCS incorporated, or plans to incorporate, information obtained by snooping into its own system; and (2) WWCS obtained and misused information about Oceaneering's bid on the BP project.[28]

         In support of its allegations of snooping, Oceaneering cites a January 2011 email chain between Ben Comperry, purportedly a WWCS employee, and David Wright, WWCS's founder. Comperry sent three photographs of Oceaneering's “new skid” and relayed information about the skid, including that it had “cameras all over it.”[29] Comperry explained in another email that he was “snooping” on Oceaneering.[30] In response, Wright stated that WWCS “will be adding camera and ROV arms to ours, ” and told Comperry: “Do not snoop to[o] much. We do not need any conflict with Oceaneering on subsea tools. The[ir]s and ours.”[31]

         To show that WWCS obtained and misused Oceaneering's bid information, Oceaneering first points to an email chain between Wright and JP Kenny employee Michael Dohm. Wright asked Dohm to send him the “Oceaneering gas separator” on October 25, 2012.[32] At the time, Oceaneering and WWCS were bidding against each other on a hydrate remediation project for BP. Dohm sent Wright a presentation and a document describing Oceaneering's FRS.[33] According to Oceaneering, WWCS then modified its bid.[34]

         Texas unfair competition “requires that the plaintiff show an illegal act by the defendant which interfered with the plaintiff's ability to conduct its business. Although the illegal act need not necessarily violate criminal law, it must at least be an independent tort.” Taylor Publ'g Co. v. Jostens, Inc., 216 F.3d 465, 486 (5th Cir. 2000) (citation omitted). Oceaneering does not identify the independent tort upon which its state law unfair competition claim relies, but its allegations sound in misappropriation of trade secrets and tortious interference with potential business relations. “A trade secret misappropriation in Texas requires: (a) the existence of a trade secret; (b) a breach of a confidential relationship or improper discovery of the trade secret; (c) use of the trade secret; and (d) damages.” Taco Cabana Int'l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1123 (5th Cir. 1991). Tortious interference with prospective business relations requires: “(1) a reasonable probability or expectation of entering into a contractual relationship; (2) intentional and malicious conduct by the defendant that prevents consummation of the contract; (3) no justification or privilege shields the defendant; and (4) actual harm or damages caused by defendant's conduct.” Small Bus. Assistance Corp. v. Clear Channel Broad., Inc., 210 F.3d 278, 281 n.1 (5th Cir. 2000).

         Regarding misappropriation of trade secrets, Oceaneering has pointed to evidence that WWCS improperly obtained photographs and information about Oceaneering's new skid from Comperry. It is disingenuous for WWCS to argue that Wright told Comperry not to snoop; the email clearly states: “Do not snoop to[o] much.”[35] Nevertheless, ...

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