United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Summary Judgment on the Grounds
of Government Contractor Immunity (Rec. Doc.
45) and a Motion for Summary Judgment and
Sanctions for Spoliation (Rec. Doc. 52)
filed by defendant, Boh Bros Construction Co. LLC,
(“Boh”), oppositions thereto (Rec. Doc. 78 and
82) filed by Plaintiff, Marybeth Guarisco, and replies (Rec.
Doc. 95 and 93) filed by Boh. Apart from cites to the
specific record document when appropriate, the Court will
treat defendant's two motions for summary judgment
(“MSJ”) as one motion articulating alternative
legal theories. Having considered the motions and legal
memoranda, the record, and the applicable law, the Court
finds the MSJ should be GRANTED.
AND PROCEDURAL BACKGROUND
backdrop of this case involves the Southeast Louisiana
Drainage Project (“SELA”), a federally-funded
enterprise cosponsored by the Sewerage and Water Board of New
Orleans (“SWB”) and the United States Army Corps
of Engineers (“the Corps”). SELA involves
extensive construction at multiple sites throughout Orleans,
Jefferson, and St. Tammany parishes and is designed to
improve flood control and drainage in urban areas. On January
23, 1997, the federal government entered into a Project
Cooperation Agreement with SWB outlining the roles and
responsibilities of the Government and SWB during
construction of the Orleans Parish SELA Project segments. The
Agreement specifically states that “…all work on
the Project … shall be exclusively within the control
of the Government.” Boh asserts that on November 26,
2013, the Corps issued Solicitation No. W912P8-14-R-001
seeking competitive bids for the Louisiana Avenue SELA
Project segment (“Project”). Boh was the
successful bidder selected by the Corps to act as general
contractor on the Project. (See Rec. Doc. 1-4).
instant dispute arises out of an automobile accident that
occurred on April 7, 2017 at the intersection of Louisiana
Avenue and Baronne Street in New Orleans, Louisiana
(“the Intersection”)-at the site of the Project.
Plaintiff alleges that Boh converted Louisiana Avenue's
two river-bound lanes into a two-way street and negligently
placed traffic control signs on the roadbed at the
intersection, thereby causing Plaintiff's accident. On
April 2, 2018, Plaintiff filed suit against Boh and its
insurance carrier, Illinois National Insurance Company, in
the Civil District Court for the Parish of Orleans. Boh
timely removed the case under Title 28 U.S.C. § 1442. On
April 4, 2019, this Court issued an order and reasons denying
Plaintiff's Motion to Remand (Rec. Doc. 28), finding in
part that Boh had a colorable defense for government contract
copious procedural disputes between the parties, Boh has
moved for summary judgment on two grounds. First, Boh argues
that it is entitled to government contractor immunity
(“GCI”), the same defense this Court recognized
as colorable in its order denying the motion to remand.
Second, Boh argues that Plaintiff has not provided facts
sufficient to prove the negligence elements of duty, breach,
or causation. Boh further asks this Court to impose sanctions
on Plaintiff for spoliation of evidence, alleging Plaintiff
intentionally altered and deleted photos at the accident to
better support her claim.
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398
(5th Cir. 2008). All reasonable inferences are drawn in favor
of the nonmoving party, but a party cannot defeat summary
judgment with conclusory allegations or unsubstantiated
assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
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
citations omitted). The nonmoving party can then defeat the
motion by either countering with sufficient evidence of its
own, 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.
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.
at 325; Little, 37 F.3d at 1075.
Mr. Fogerty's Testimony is Admissible as Summary Judgment
preliminary matter, the Court addresses Plaintiff's
contention that the deposition testimony of John Fogerty, the
Corps' resident engineer on the project, is inadmissible
under Federal Rule of Civil Procedure 32(a). Fogerty offered
the testimony in support of Boh's GCI claim in the
Sewell litigation. 2016 WL 7385701. The
Sewell litigation arose from several lawsuits filed
by businesses and homeowners adjacent to the Project, all
asserting various claims against the SWB and assorted
contractors, including Boh. Id. Rule 32(a) states
that a deposition from an earlier suit may only be used in a
later action if it “involve[s] the same subject matter
between the same parties, or their representatives or
successors in interest.” The parties hotly dispute
whether Plaintiff constitutes a “successor in
interest” to the plaintiffs who sued Boh in the
admissibility of evidence in a MSJ is not governed by Rule
32, however, but rather Rule 56. Rule 56 requires only that
summary judgment evidence “be capable of being
‘presented in a form that would be admissible in
evidence'” at trial, not that it actually be
presented in an admissible form. Therefore, as long as there
is no reason Boh could not depose Mr. Fogerty for this case,
or produce him at trial, then his deposition testimony from
prior litigation constitutes competent MSJ evidence. LSR
Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530,
534 (5th Cir. 2016). Numerous other district courts in this
Circuit have found that depositions failing the Rule 32
standard “may still be considered under Rule 56 summary
judgment purposes as if it were a sworn affidavit.”
New York Marine and General Insurance Company v.
Cardona, No. 17-246 2018 WL 6588582 *3 (W.D. Tex. 2018)
(citing In re Ward, 558 B.R. 771, 779 (Bankr. N.D.
Tex. 2016); Bingham v. Jefferson County, Tex., No.
1:11-CV-48, 2013 WL 1312563, at *1 (E.D. Tex. Mar. 1, 2013),
report and recommendation adopted as modified, No.
1:11-CV-48, 2013 WL 1312014 (E.D. Tex. Mar. 27, 2013) (citing
Vondriska v. Cugno, 368 Fed.Appx. 7, 8-9 (11th Cir.
2010) (unpublished); see also Kelley v. Price-Macemon,
Inc., 992 F.2d 1408, 1415 n.12 (5th Cir. 1993). Indeed,
the “weight of authority is that depositions can be the
equivalent of affidavits and are therefore admissible at the
summary judgment stage.” Alexander v. Casino Queen,
Inc., 739 F.3d 972, 978 (7th Cir. 2014).
as there does not appear to be any reason Mr. Fogerty's
testimony is not capable of being presented in an admissible
form, the Court finds that it may consider Mr. Fogerty's
deposition in the Sewell litigation as an affidavit
at this stage in the proceedings.
Government Contractor Immunity
an affirmative defense. As such, Boh must present evidence
showing it is entitled to GCI. If it does so, the burden
shifts to Plaintiff to raise a genuine issue of material fact
regarding the GCI. See Smith v. Xerox Corp, 866 F.2d
135 (5th. Cir. 1989).
argues at length that the Court should grant its GCI claim
under the “law of the case” doctrine (Rec. Doc.
45 at 13). The “law of the case” doctrine states
“that when a court decides on a rule of law, that
decision should govern the same issue in subsequent stages of
the case.” Lonatro v. Orleans Levee Dist.,
CIV.A. 11-357, 2011 WL 4460187 at *3 (E.D. La. Sept. 2011).
Here, the rule of law previously decided by this Court is
that Boh had a colorable claim for CCI sufficient to
justify removal. The standard of proof required to find a
claim is colorable is less than the standard required to
succeed on a MSJ. See Zeringue v. Crane Co., 846
F.3d 785, 789 (5th Cir. 2017); see also. Jefferson Cty.,
Ala. v. Acker,527 U.S. 423, 431 (1999) (a defendant
need not “win his case before he can have it