United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is A&M Dockside Repair, Inc.'s and Helix
Resources, LLC's joint motion for partial summary
judgment. Because A&M was Skipper's
borrowing employer for the purposes of the LHWCA, the Court
grants the motion.
case arises out of a workplace accident. At the time of the
accident, plaintiff Walter Skipper was employed by
third-party defendant Helix Resources, LLC, as a painter and
blaster. On August 11, 2017, plaintiff was working
on a barge in a shipyard that is owned and operated by
defendant A&M Dockside Repair, Inc. In the course of
performing his duties, plaintiff allegedly fell into an open
manhole cover on the barge and suffered severe
22, 2018, Skipper filed a complaint alleging negligence
against A&M and Cashman Equipment Corporation, a party
that owned the barge and has since been dismissed from the
case. On January 17, 2019, the Court granted
A&M's motion for leave to file a third-party
complaint against Helix. A&M and Helix have now filed a
joint motion for partial summary judgment on the basis that
Skipper was a borrowed servant of Helix, that A&M was
acting as Skipper's borrowing employer, and that
therefore compensation and medical payments are Skipper's
sole remedy under the Longshore & Harbor Workers'
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) (en
banc) (per curiam). “When assessing whether a dispute
to any material fact exists, [the Court] consider[s] 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)
(quoting 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2738 (2d ed.
1983)); 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
nonmoving party.” EEOC v. Simbaki, Ltd., 767
F.3d 475, 481 (5th Cir. 2014).
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) (quoting Golden Rule Ins. Co. v. Lease, 755
F.Supp. 948, 951 (D. Colo. 1991)). “[T]he nonmoving
party can defeat the motion” by either countering with
evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact, ” or by
“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 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 resolution. 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
and Helix argue for partial summary judgment under the
Longshore & Harbor Workers' Compensation Act. The
LHWCA limits the remedy of a longshoreman or harbor worker
against his employer to compensation and medical benefits.
See 33 U.S.C. § 933(i) (“The right to
compensation or benefits under this chapter shall be the
exclusive remedy to an employee when he is injured . . . by
the negligence or wrong doing of any other person . . . in
the same employ.”). It is undisputed that Skipper is a
longshoreman or harbor worker and is thus covered by the
LHWCA. A&M and Helix argue that Skipper was the
“borrowed servant” of Helix, that A&M was
borrowing plaintiff, and therefore Skipper's remedies are
limited by the LHWCA. See Gaudet v. Exxon Corp., 562
F.2d 351, 355 (5th Cir. 1977) (analyzing the borrowed servant
defense in the context of the LHWCA).
opposes the motion for partial summary judgment on two
grounds. First, Skipper argues that the borrowed servant
defense has been waived, because it was not properly asserted
in A&M's answer. Second, Skipper argues that genuine
issues of fact remain that preclude a grant of summary
judgment. The Court addresses each argument in turn.
argues that defendants' motion for partial summary
judgment must be denied because both A&M and Helix failed
to raise it as an affirmative defense in their answers.
Affirmative defenses are pleadings governed by Rule 8 of the
Federal Rules of Civil Procedure. A defendant is required to
“state in short and plain terms its defenses to each
claim asserted against it” and “affirmatively
state any avoidance or affirmative defense.”
Fed.R.Civ.P. 8(b)(1)(A), 8(c)(1). In Woodfield v.
Bowman, 193 F.3d 354 (5th Cir. 1999), the Fifth Circuit
held that affirmative defenses are subject to the same
pleading requirements as a complaint and articulated a
“fair notice” standard for pleading affirmative
defenses. Id. at 362. Under this standard, a
defendant is required to plead an affirmative defense
“with enough specificity or factual particularity to
give the plaintiff ‘fair notice' of the defense
that is being advanced.” Id. (citation
omitted). Failure to adequately plead an affirmative defense
can result in a waiver of the defense. Rogers v.
McDorman, 521 F.3d 385 (5th Cir. 2008).
failure to strictly comply with Rule 8(c) does not always
result in waiver. The purpose of the rule “is to give
the opposing party notice of the affirmative defense and a
chance to argue why it should not apply.” Pasco v.
Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (citation
omitted). Therefore, “an affirmative defense is not
waived if the defendant ‘raised the issue at a
pragmatically sufficient time and [plaintiff] was not
prejudiced in its ability to respond.'”
Id. at 577 (quoting Allied Chem Corp. v.
Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)). The Court
does “not take a formalistic approach to determine
whether an affirmative defense was waived.”
Id. Rather, it “look[s] at the overall context
of the litigation” to determine whether “evidence
of prejudice exists and sufficient time to respond to the
defense remains before trial.” Id. Indeed, the
Fifth Circuit has “repeatedly rejected waiver arguments
when a defendant raised an affirmative defense for the first
time at summary judgment-or even later.” Motion
Med. Tech., LLC v. Thermotek, Inc., 875 F.3d 765, 772
(5th Cir. 2017).
therefore necessary to determine whether defendants raised
the defense “at a sufficiently pragmatic time, ”
and whether plaintiff was prejudiced in his ability to
respond. Motion Med. Tech., 875 F.3d at 771. Here,
Skipper first had reasonable notice the borrowed servant
defense may be asserted months ago, when Helix appeared in
the suit. Indeed, in its answer to A&M's third-party
complaint, which is part of the record of this case, Helix
asserts that “Mr. Skipper was on a mission for his
employer and performing employment-related
activities” and that because Helix was Skipper's
employer, Skipper has “no right to seek tort remedies
from Helix, nor any other party to attempt to pass through
alleged fault to Helix.” Helix also alleged that
Skipper's “sole remedy against it is for
compensation under the Louisiana Worker's Compensation
Act or, alternatively, under the Longshoremen's and
Harbor Workers' Compensation Act.” Although
Helix does not incant the words “borrowed servant
defense” these allegations offer reasonable notice to
Skipper that the defense would be asserted in this case.
Given that Helix's answer was submitted in February,
plaintiff had reasonable notice, and the defense was raised
in a sufficiently pragmatic time.
is not prejudiced by the Court's consideration of the
borrowed servant defense at this juncture. Plaintiff provides
fulsome, reasoned responses to defendants' arguments in
his opposition. Skipper even cites to various exhibits,
including deposition testimony, in his
response. And although plaintiff asserts that
there still exist genuine issues of fact, he argues these are
issues the trier of fact must decide-not that additional
discovery is required to resolve the issues. Indeed, Skipper
does not request additional time for discovery or suggest
that additional discovery would cure any prejudice he may
Skipper had adequate notice that the borrowed servant defense
would be asserted and is not prejudiced in responding to the
defendants' motion for partial summary judgment, the
Court finds that defendants did not waive the borrowed
Genuine Issues of Fact
also avers that the motion for partial summary judgment must
be denied because issues of material fact still exist with
respect to whether A&M was acting as Skipper's
borrowing employer. The Fifth Circuit has held that “in
absence of substantial evidence to the contrary . . . the
issue of whether a relationship of borrowed servant exist[s]
is a matter of law.” Ruiz v. Shell Oil Co.,
413 F.2d 310, 341 (5th Cir. 1969). Here, the relevant facts
are not in dispute. Rather, plaintiff disputes the legal
conclusion that should be drawn from the facts. This is a
question of law for the Court.
have developed a nine factor test to determine whether
borrowed servant status exists. The nine factors are:
(1) Who has control over the employee and the work he is
performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of the
minds between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with