Hebert v. Pride International

Full title: PAUL A. HEBERT VERSUS PRIDE INTERNATIONAL, ET AL

Court: United States District Court, E.D. Louisiana

Date published: Mar 4, 2004

CIVIL ACTION No. 03-0804, SECTION: I/4 (E.D. La. Mar. 4, 2004)

Opinion

CIVIL ACTION No. 03-0804, SECTION: I/4

March 4, 2004

ORDER AND REASONS

LANCE AFRICK, Magistrate Judge

This matter is before the Court on a motion for summary judgment filed on behalf of defendant, ChevronTexaco ("Chevron").¹ Plaintiff, Paul A. Hebert, and intervenor, Production Management Industries ("PMI"), oppose the motion.² In a related motion, Chevron moves the Court to strike plaintiff's affidavit submitted in opposition to Chevron's motion for summary judgment because it contradicts Hebert's prior sworn deposition testimony.³

1 Rec. Doc. No. 34.

2 See Rec. Doc. Nos. 36, 37.

3 Rec. Doc. No. 40.

I. Summary Judgment Standard

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party carries its burden of demonstrating that there is no material factual dispute, the burden shifts to the nonmovant "to show that summary judgment should not lie." Hopper v. Frank, 16 F.3d 92; 96 (5th Cir. 1994). While the court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct, at 1356.

Materiality is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001).

II. Motion to Strike Affidavit

Chevron moves the Court to strike plaintiff's affidavit submitted in opposition to Chevron's motion for summary judgment because, according to Chevron, eighteen out of the twenty-four paragraphs of plaintiff's affidavit directly contradict plaintiff's prior deposition testimony. Plaintiff contends that the affidavit supplements his deposition testimony and, therefore, should be considered by the Court in ruling on the motion for summary judgment.

The Fifth Circuit is clear that a nonmoving party may not manufacture a dispute of fact to defeat a motion for summary judgment by submitting an affidavit that contradicts, without explanation, that party's own prior deposition testimony. Doe ex rel v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 136 n. 23 (5th Cir. 1992). However, "[w]hen an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment." S. W.S., 72 F.3d at 496 (citing Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988)); see also Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1984) (holding a court should not refuse to consider an affidavit when the affidavit is not "inherently inconsistent" with prior testimony).

After careful review of the affidavit and the deposition testimony, the Court finds that paragraph 19 of plaintiff's affidavit contradicts his prior deposition testimony.⁴ Accordingly, the Court will disregard paragraph 19 for purposes of evaluating whether genuine issues of material fact exist with respect to plaintiff's status as a "borrowed employee." The Court further finds that the remainder of plaintiff's affidavit supplements plaintiff's deposition testimony and that it is not inherently inconsistent with plaintiff's prior testimony. Accordingly, the Court will consider the remaining paragraphs of plaintiff's affidavit for purposes of ruling on defendant's motion for summary judgment. See id. III. Borrowed Employee Status

4 Paragraph 19 of plaintiff's affidavit states:

That if Chevron Texaco fired affiant off of its platform affiant would not lose his job with PMI unless he had violated PMI's policies.

Rec. Doc. No. 40, Ex. A, affidavit of Paul A. Hebert, ¶ 19. In his prior sworn deposition, plaintiff was asked about the conditions under which he could be fired by PMI:

Q. When you said probable cause, you're talking about things like, violation of good work policy, practices?

A. PMI would follow suit.

Q. In other words, if Chevron fired you, PMI would fire you too?

A. If you had probable cause. If it put their contract at risk.

Id. Ex. B, at p. 99. plaintiff's statements cannot be reconciled if a factual situation arose where Chevron fired plaintiff for cause, plaintiff's conduct put PMI's contract with Chevron at risk, yet plaintiff did not violate PMI's policies.

Chevron moves for summary judgment on the ground that plaintiff was a borrowed employee and, therefore, plaintiff's exclusive remedy against Chevron for his alleged injury is worker's compensation benefits under the Longshore and Harbor Workers' Compensation Act ("L.W.H.C.A."), 33 U.S.C. § 901-950, which is applicable to this action pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, et seq. ⁵

5 It is undisputed that the platform on which plaintiff's alleged injury occurred was on the Outer Continental Shelf in the Gulf of Mexico.

In order to determine borrowed employee status, a court considers nine factors:

(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 the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee?

Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir. 1993) (citing Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969)); Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir.). Although some cases in the Fifth Circuit have considered the first factor — control — to be the central factor in the inquiry, see e.g., Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986), the Fifth Circuit has stressed that no single factor, or combination of them, is determinative of borrowed employee status. Brown, 984 F.2d at 676 n. 2; Melancon v. Amoco Production Co., 834 F.2d 1238, 1244, 45 n. 12 (noting that in Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977), the Fifth Circuit deemphasized the control factor when applying the borrowed employee doctrine in the LHWC A context and it instead stressed the importance of the fourth, fifth, sixth, and seventh factors); West v. Kerr-McGee Corp., 765 F.2d 526, 531 (5th Cir. 1985)("[N]either control nor any other single answer to the inquiries is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship.") (citation and internal quotation omitted). Ordinarily, the issue of borrowed employee status is a question of law to be determined by the Court. Brown, 984 F.2d at 674. However, some cases involve conflicting evidence and factual disputes with respect to the borrowed employee issue and require findings by a fact-finder. See id. (citing Melancon, 834 F.2d at 1245 n. 13); West, 765 F.2d at 531; Alday v. Patterson Truck Lines, Inc., 750 F.2d 375, 378 (5th Cir. 1985). In such cases, summary judgment is not appropriate. See West, 765 F.2d at 531.

Considering the motion, the memoranda of law submitted by the parties, the summary judgment evidence and the law, the Court finds that there are genuine issues of material fact with respect to plaintiff's status as a borrowed employee which preclude granting summary judgment.

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that the motion filed on behalf of defendant, ChevronTexaco, to strike the affidavit of plaintiff, Paul A. Herbert, is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that the motion filed on behalf of defendant, Chevron Texaco, for summary judgment is DENIED.