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Guarisco v. Boh Brothers Construction Co., LLC

United States District Court, E.D. Louisiana

October 3, 2019


         SECTION: "J"(3)

          ORDER & REASONS


         Before 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.


         The 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).

         The 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 immunity.

         After 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.


         Summary 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.

         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 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.

         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. at 325; Little, 37 F.3d at 1075.


         I. Mr. Fogerty's Testimony is Admissible as Summary Judgment Evidence

         As a 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 Sewell litigation.

         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).

         Consequently, 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.

         II. Government Contractor Immunity

         GCI is 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).

         Boh 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 removed.”). ...

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