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Giroir v. Cenac Marine Services, LLC

United States District Court, E.D. Louisiana

May 23, 2019

RICKY GIROIR
v.
CENAC MARINE SERVICES, LLC

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court are two motions by the defendant: (1) motion for summary judgment on the plaintiff's remaining claims for maintenance and cure benefits and negligence under the general maritime law; and (2) motion to strike the plaintiff's jury demand. For the reasons that follow, the motion for summary judgment is GRANTED, and the motion to strike is DENIED as moot.

         Background

         This maritime personal injury action arises out of a relief captain's claim that he sustained injuries on two separate occasions while working aboard vessels owned by his employer.[1]

         Ricky Giroir began working for Cenac Marine Services, LLC (“CMS”) in November of 2013 as a relief captain and allegedly suffered injuries to his lower back in September of 2015 and his right knee in November of 2017. He also had an extensive medical and surgical record pre-dating his tenure with CMS; that record includes an injury to his right knee sustained during his adolescence for which he underwent arthroscopic surgery.

         On November 22, 2017, Mr. Giroir allegedly sustained an injury to his right knee in connection with his assignment as a relief captain aboard the M/V CHRISTINE CENAC.[2] About three weeks later, on December 15, 2017, Mr. Giroir completed an incident report, in which he described the incident as follows: “While crew changing the flat boat rocked causing me to fall on my right knee and twisting left ankel [sic].”

         According to medical records, Giroir reported to Terrebone General Medical Center's Emergency Room on November 22, 2017 at 5:55 p.m. The attending nurse practitioner documented her interaction with Mr. Giroir as follows:

42-year-old male presents emergency department with right knee and left ankle pain onset 1 hour prior to arrival. He reports having chronic right knee issues stating “it gave out on me and one [sic] my knee gave out on me I twisted my left ankle.” Swelling noted to left ankle.[3]

Giroir was then referred to Dr. William Kinnard, who performed a total knee replacement surgery on December 11, 2017.

         On April 4, 2018, Mr. Giroir sued Cenac Marine Services, LLC, alleging that the defendant's negligence under the Jones Act and the unseaworthiness of its vessels under the general maritime law caused his injuries in 2015 and 2017; he also alleged that the defendant owes him maintenance and cure for both incidents. In response, CMS filed a counterclaim on July 26, 2018, seeking to recover payments made to and on behalf of Mr. Giroir for maintenance and cure that are not related to his work activity with the company.

         On January 29, 2019, CMS moved for summary judgment in its favor, dismissing the plaintiff's Jones Act and unseaworthiness claims, as well as his maintenance and cure claim with respect to his alleged back injury. In its Order and Reasons dated March 6, 2019, the Court granted both motions. The following day, the Court continued the March 8, 2019 pre-trial conference and March 25, 2019 trial dates to allow for settlement negotiations and motion practice directed to the issues remaining in the case.

         CMS now moves for summary judgment on the plaintiff's remaining claims: (1) maintenance and cure benefits related to his alleged right knee injury; and (2) general maritime law negligence. The defendant also moves to strike the plaintiff's jury demand.

         I.

         A.

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. 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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks and citation omitted). Ultimately, “[i]f the evidence is merely colorable . . . or is not significantly probative, ” summary judgment is appropriate. Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must “resolve factual controversies in favor of the nonmoving party, ” it must do so “only where there is an actual controversy, that is, when both parties have submitted ...


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