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Cox Operating, L.L.C. v. Settoon Towing, LLC
United States District Court, E.D. Louisiana
December 5, 2018
COX OPERATING, L.L.C.
SETTOON TOWING, L.L.C., ET AL.
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is Cox Operating, L.L.C.'s (“Cox”)
motion for an adverse inference at trial.
Specifically, Cox requests that the Court order that a
certain e-mail be considered admissible as a party-opponent
statement against Settoon Towing, L.L.C.
(“Settoon”) as a sanction pursuant to Federal
Rule of Civil Procedure 11. For the following reasons, the
motion is denied.
case concerns a 2016 accident in which a vessel owned by
Settoon allided with a well owned by Cox (the
“allision”). The e-mail underlying the present
dispute was sent by Scott Lerille (“Lerille”)-who
was at some point in time a Settoon employee-to Mike Ellis,
Settoon's then-president. Lerille sent the e-mail three
days after the allision occurred. Cox asserts that the e-mail
is critical to proving “Settoon's privity and
knowledge of the negligence that caused the [a]llision”
at trial. According to the parties' briefs, the
dispute unfolded as follows:
• On May 18, 2018, Cox moved for partial summary
judgment, relying in part on Lerille's e-mail to
demonstrate that Settoon “admitted that [its]
‘management failures' caused the
• On June 5, 2018, Settoon filed its opposition and a
motion to strike the e-mail, arguing that it was inadmissible
hearsay. In its memorandum in support of the motion to
strike, Settoon contended that Lerille resigned before
sending the e-mail. Additionally, Settoon stated that
“Lerille never worked at Settoon
again.” It is undisputed that such statement is
• Settoon states that the misstatement was a mistake:
Settoon “enlisted the assistance of a special counsel .
. . to assist in drafting [the] [m]otion to [s]trike.”
The special counsel “read the part of the . . .
deposition transcript in which it was discussed that Lerille
quit right after the allision” and “inadvertently
concluded . . . that after [Lerille] quit the first time,
” he never worked for Settoon again.
• The day after Settoon filed its motion to strike,
Cox's counsel called Settoon's counsel to discuss the
misstatement. Settoon's counsel stated that he would file
a motion for leave to substitute the memorandum with a
corrected version. However, before he could do so (and only
two days after the motion was filed), the Court denied
Cox's motion for partial summary judgment and dismissed
the motion to strike as moot.Settoon argues that
“[t]here was therefore no longer any mistaken
memorandum pending before the Court.”
• Counsel for both parties again spoke about the issue,
and Settoon's counsel advised Cox's counsel that he
would still correct the misstatement-this time in a motion
in limine Settoon intended to file seeking exclusion
of the e-mail at trial.
• Settoon states, however, that it decided not to file
such a motion after it learned that Cox had subpoenaed
Lerille to testify live at trial because “it became
clear to Settoon that . . . [t]here would be no hearsay
• Thereafter, counsel for both parties spoke about the
issue for a third time. Settoon states that it proposed the
submission of a joint stipulation correcting the error and
that “Cox's counsel represented that he would get
back to Settoon in response to the
proposal.” According to Settoon, Cox filed the
present motion instead.
moves the Court to enter “an order granting an adverse
inference as to the admissibility of the [e-mail] as a
non-hearsay statement of party opponent” pursuant to
Federal Rule of Civil Procedure 11 as a sanction ...
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