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Pitre v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

April 30, 2018


         SECTION “R” (5)



         Defendants Lamorak Insurance Company and Huntington Ingalls, Inc. move for summary judgment.[1] Plaintiffs move to dismiss their claims against these defendants without prejudice.[2] For the following reasons, the Court grants summary judgment and denies plaintiffs' motion as moot.

         I. BACKGROUND

         This case arises out of alleged asbestos exposure at Avondale Shipyard in Avondale, Louisiana.[3] Steward Pitre worked as a pipefitter for Avondale Shipyard from 1964 to 1972.[4] Mr. Pitre developed lung cancer, allegedly as a result of exposure to asbestos at Avondale and passed away on July 15, 2016.[5]

         On April 6, 2017, Mr. Pitre's wife and children filed suit in state court asserting claims for wrongful death and survival under Louisiana law.[6]Plaintiffs named numerous defendants, including Huntington Ingalls, Inc. (Avondale) and Lamorak Insurance Company.[7] Plaintiffs alleged that Mr. Pitre was exposed to asbestos during his employment at Avondale, and that his injuries were caused by the negligence of Avondale and three deceased Avondale executive officers.[8] Lamorak was sued as the alleged insurer of Avondale and its executive officers.[9]

         On July 24, 2017, Avondale and Lamorak removed this action on the basis of federal officer jurisdiction.[10] Plaintiffs filed a contested motion to amend their complaint, which the Magistrate Judge granted.[11] Plaintiffs also moved to remand to state court.[12] On December 6, 2017, the Court denied Avondale and Lamorak's motion to review the Magistrate Judge's order, and denied plaintiffs' motion to remand.[13]

         Avondale and Lamorak now move for summary judgment.[14] Plaintiffs move to voluntarily dismiss their claims against these two defendants without prejudice.[15]


         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) (internal citation omitted). 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 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)).


         Avondale and Lamorak move for summary judgment on the grounds that plaintiffs' claims against them are subject to the exclusivity provisions of the Longshore and Harbor Workers' Compensation Act (LHWCA).[16]Plaintiffs offer no substantive opposition to this motion. Instead, they move for dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(2).[17] Plaintiffs represent that they intend to pursue a LHWCA claim in lieu of a tort suit against Avondale and Lamorak.[18] Defendants Foster Wheeler LLC, CBS Corporation, and General Electric Company support plaintiffs' motion for voluntary dismissal, and ask the Court not to rule on the summary judgment motion.[19]

         Rule 41(a)(2) permits a plaintiff to dismiss her claims “only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). Dismissal without prejudice is not justified when a request for voluntary dismissal is “intended to avoid an imminent adverse result on summary judgment.” Harris v. Devon Energy Prod. Co., LP, 500 Fed.Appx. 267, 269 (5th Cir. 2012); see also In re FEMA Trailer Formaldahyde Prod. Liab. Litig., 628 F.3d 157, 162 (5th Cir. 2010). Avondale and Lamorak's motion for summary judgment was submitted to ...

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