Blaze v. McMoRan Oil & Gas L L C et al

REPLY to Response to Motion re MOTION for Summary Judgment

W.D. La.December 19, 2017

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION LEROY J. BLAZE, JR., Plaintiff. VERSUS MCMORAN OIL & GAS, LLC, ET AL., Defendants. CIVIL CASE DOCKET NO. 16-1552 MAG. JUDGE HANNA JURY DEMAND REPLY TO EAGLE’S OPPOSITION TO EATON’S MOTION FOR SUMMARY JUDGMENT Eaton Oil Tools, Inc. (“Eaton”) files this reply memorandum to the opposition to its motion for summary judgment (“MSJ”) filed by Eagle Consulting, LLC, and its insurer Lloyd’s Syndicate 1036 (hereinafter collectively “Eagle”) for the following reasons: 1. Eagle lacks standing to oppose Eaton’s MSJ and its attempt to manufacture standing by filing a frivolous cross-claim, which it concedes fails to state a cause of action, provides grounds to strike Eagle’s opposition [See Docs. 97, 101: Eaton’s Motion to Dismiss Cross-claim]; 2. Eagle has had ample time to conduct discovery, over a year, including the 5 months since Eaton’s MSJ was filed, to investigate and gather evidence of Eaton’s fault and its failure to do so is not a legitimate basis for denying Eaton’s MSJ; 3. The case law is clear that mere knowledge by Eaton of any change in procedure does not give rise to a duty to intervene in the absence of operational control; and 4. Eagle’s reference to a phantom “defect” in the swivel (for which there is no evidence) and immaterial factual disputes have no bearing on Eaton’s duty or causation since plaintiff never made the pup joint up to the swivel. Eagle has no evidence to the contrary and cannot rely on an unverified complaint to oppose summary judgment. Eagle’s opposition is nothing more than a last attempt to cloud the issues by suggesting Eaton’s MSJ is premature even though the plaintiff has admitted – repeatedly – that he cannot prove the essential legal elements of his case against Eaton.1 Eagle, therefore, lacks both the substantive and 1 See Doc. 80, Doc. 104, plaintiff’s certificates of no opposition to Eaton’s MSJ and motion to dismiss with prejudice, respectively. Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 1 of 11 PageID #: 871 2 the procedural capacity to intervene on plaintiff’s behalf and litigate an issue that plaintiff himself has abandoned. A. Eagle lacks standing to oppose Eaton’s MSJ. Louisiana district courts routinely hold that a co-defendant that does not have a direct cause of action against the moving party lacks standing to oppose that party’s motion for summary judgment where the plaintiff himself has declined to do so. In an obvious attempt to circumvent this rule of law, Eagle filed a frivolous cross-claim which it concedes does not state a claim against Eaton,2 then argues that its admittedly baseless cross-claim somehow “make[s] certain there is no issue of standing to oppose Eaton’s motion.” [Doc. 107 at p. 3]. Eaton has fully briefed Eagle’s dismal attempt at manufacturing standing in its motion to dismiss, which is adopted and incorporated by reference [Doc. 97]. Eagle cites Coleman v. Anco Insulations, Inc., 196 F. Supp. 3d 608 (M.D. La. 2016), as support for its position that standing exists, but Coleman does not stand for the premise for which it is cited. In Coleman, the plaintiff sued his former employer, Pilkington North America, when he was diagnosed with malignant mesothelioma. Co-defendant Safety National, one of Pilkington’s potential insurers, moved for summary judgment on the grounds that plaintiff could not prove it issued a policy for which coverage may exist. The plaintiff did not oppose the motion. Pilkington, however, filed an opposition on the grounds that Safety National’s motion was premature because, as a potential insured under a Safety National policy, it had the right to issue discovery and determine for itself whether such a policy existed. The court concluded that Pilkington had standing to do so because further discovery would determine whether it had a direct cause of action against Safety National as an insured under its policy. 2 See Doc. 107 at p. 2, “Eagle and Lloyd’s also note that they are aware of the case law holding that cross-claims against co-defendants may not be allowed under Louisiana comparative fault statute.” Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 2 of 11 PageID #: 872 3 Unlike Coleman, Eagle admits that no amount of additional discovery will reveal the existence of a direct cause of action against Eaton. Eagle recognizes that its sole issue with Eaton involves comparative fault, which it recognizes is an affirmative defense and not a legal cause of action under Louisiana law. Coleman emphasizes the rule that a co-defendant must have a direct relationship with the moving party in order to oppose that party’s motion for summary judgment. No such relationship exists between Eagle and Eaton nor does Eagle believe that it may. Eagle, therefore, lacks standing and its opposition should be stricken from the record. B. Eagle has not made the required showing for invoking the safe harbor provision found in Rule 56(d). Eagle cites Rule 56(d) as grounds for denying Eaton’s MSJ, but Eagle has not made the requisite showing to invoke this safe harbor provision. Rule 56(d) states in relevant part, If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. (Emphasis added). Eagle has not made the required showing because at all relevant times, Eagle has had direct access to two key witnesses who can testify about Eaton’s alleged involvement and potential comparative fault: Jack Watkins and Donald “Buck” Bozeman, Eagle’s two company men. Eagle has had access to these individuals for more than a year since being served and more than five months since Eaton filed its MSJ, yet during that time it has not procured an affidavit or obtained a sworn statement from either of them regarding. If evidence of Eaton’s alleged comparative fault existed, it could have be obtained from Eagle’s own company men who were present at all pertinent times. Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 3 of 11 PageID #: 873 4 The uncalled witness rule gives rise to the presumption that the testimony of Eagle’s company men would not be favorable to its position that further discovery may implicate Eaton as a possible cause of the accident. The definitive statement of the uncalled-witness rule, sometimes referred to as the missing-witness rule, was issued by the Supreme Court in Graves v. United States nearly a century ago: ‘The rule … is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.’ Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046 (5th Cir. 1990), quoting Graves v. United States, 150 U.S. 118, 14 S. Ct. 40, 37 L. Ed. 1021 (1893). Likewise, as this court held in Pontiff v. Wood Grp. PSN, Inc., 2015 U.S. Dist. LEXIS 113725, at 3-4 (W.D. La. 08/25/2015), Hanna, J., The ‘uncalled-witness rule’ applies when a party is aware of a witness possessing relevant information but chooses not to present that witness’s testimony. In such a case, the fact that the witness was not produced creates the presumption that the testimony, if presented, would have been unfavorable to the party that failed to call the witness. Bozeman and Watkins are in the best position to provide statements that support Eagle’s position, yet Eagle did not attach an affidavit from either of them as part of its opposition. As such, it must be presumed from Eagle’s failure to do so that they would not have supported Eagle’s comparative fault theory. C. Eagle cannot oppose Eaton’s MSJ on the grounds that additional discovery is needed because it has not been diligent in its discovery efforts. Eagle cannot rely on the fact that discovery is not complete to oppose Eaton’s MSJ because it has not been diligent in its discovery efforts. Rule 26(f) states that all parties are jointly responsible for ensuring that the parties meet and confer, set up a discovery plan and ensure that Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 4 of 11 PageID #: 874 5 discovery commences in a timely manner.3 When a party has had a fair opportunity to do so, then its lack of due diligence does not form a valid basis for denying another party’s motion for summary judgment. See Lupton v. Usagencies Mgmt. Servs., 2013 U.S. Dist. LEXIS 102656, at *3 (M.D. La. 07/23/2013) (plaintiff had a fair opportunity to conduct discovery and her lack of due diligence during the five months prior to having to file an opposition did not justify denying defendant’s summary judgment.) Moreover, in Krim v. BancTexas Grp., 989 F.2d 1435, 1442 (5th Cir. 1993), the Fifth Circuit instructed that, [T]he denial of the plaintiff’s motion for a Rule 56(f) continuance and entry of summary judgment for defendants was appropriate, despite the fact that the court had not yet ruled on plaintiff’s motion to remand to state court. The case had been pending before the federal court for over four months prior to the date set for a hearing on defendants’ motions for summary judgment. We did not consider plaintiff’s failure to explain his delay in completing discovery to be excused by the fact that the district court had not yet ruled on plaintiff’s motion to remand. Id., citing Carriere v. Sears, Roebuck & Co., 893 F.2d 98 (5th Cir.1990) (Emphasis added). Krim, therefore, makes clear that every party bears equal responsibility for ensuring the timely commencement of discovery, so the fact that Eagle may have been dilatory in their efforts to commence discovery, or even start an investigation with its own company men, does not create a legal basis for denying Eaton’s MSJ. Further, the lack of urgency in getting the Rule 26(f) report filed so that formal discovery could commence does not justify Eagle’s lack of diligence in securing discovery responses.4 Eagle could have petitioned the court for assistance with expediting this process at any time, but it chose not to do so. Rule 37(f) states: 3 See Fed. R. Civ. P. 26(f)(2), “[t]he attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the [Rule 26(f)] conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan.” 4 The parties did not file the Rule 26(f) report until August 3, 2017 [Doc. 51]. Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 5 of 11 PageID #: 875 6 If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure. Given Eagle’s lack of due diligence on this issue, it cannot rely on the fact that discovery is not complete as a valid basis for denying Eaton’s MSJ. Unlike Eagle, Eaton would not have its hands tied by the lack of movement in the case. Although it was precluded from issuing formal discovery until the Rule 26(f) report had been filed, Eaton began investigating the claims and working to resolve the claims against it almost immediately following service. Eagle tries to scandalize Eaton’s investigative efforts by suggesting that it was improper for Eaton to “meet and confer” or “cooperate” with other parties, including the plaintiff and his attorney, but doing so only highlights Eagle’s complete lack of understanding of the federal rules and the legislative intent behind those rules. The federal and local rules encourage – and even require – that the parties meet and confer to resolve their differences at every possible stage of the proceedings. Indeed, the very purpose of these rules is to ensure cooperation among the parties.5 Eaton’s efforts culminated in confirming that it played no role in the accident, and as soon as it could begin formal discovery, it obtained formal admissions from plaintiff and filed its MSJ. Not only does plaintiff not oppose Eaton’s MSJ, but he also later amended his complaint to acknowledge that Eaton played no role in causing the accident [Doc. 67 at ¶ 33], and filed certificates of no opposition to both Eaton’s MSJ and its motion to dismiss [Doc. 80, Doc. 104]. Eagle would have this court believe that this was the result of some 5 See Fed. R. Civ. P. 26(a)(1) (requiring parties to certify that they have met and conferred in good faith in order to resolve their dispute before seeking a protective order); Fed. R. Civ. P. 26(a) (requiring the parties to meet and confer as soon as possible after suit has been filed to work together to set a discovery plan and agree on stipulations); Fed. R. Civ. P. LR 37.1 (requiring the parties to meet and confer “for purposes of amicably resolving the issues” before moving to compel discovery). Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 6 of 11 PageID #: 876 7 sort of collusion with the plaintiff, although it is clear that Eaton conducted itself in a manner consistent with both the federal and local rules. D. Eagle has not shown how additional discovery would implicate Eaton’s liability for purposes of comparative fault. “To obtain a continuance of a motion for summary judgment in order to obtain further discovery, a party must indicate to the court by some statement, preferably in writing (but not necessarily in the form of an affidavit), why he needs additional discovery and how the additional discovery will create a genuine issue of material fact.” Krim, supra, 989 F.2d at 1442.6 The party requesting more time to conduct discovery may not simply rely on vague assertions or speculation that additional discovery might produce certain unspecified evidence that would justify denying the motion for summary judgment at a later date. Id. Moreover, the mere fact that some discovery may remain outstanding is not, itself, good grounds for continuing or denying a motion where there is no indication that the unanswered discovery will reveal information that could preclude summary judgment on the merits. “A plaintiff’s entitlement to discovery before a ruling on a motion for summary judgment is not unlimited and may be cut off when the record shows that the requested discovery will not be likely to produce facts he needs to withstand a summary judgment motion.” Id. at 1443, quoting Netto v. Amtrak, 863 F.2d 1210 (5th Cir. 1989). Eagle admits that the purpose of its opposition and purported “cross-claim” is to prevent Eaton’s dismissal “at this stage” should further discovery indicate that it may have some comparative fault for the accident (See, e.g. Doc. 107 at p. 5, requesting the court to deny Eaton’s motion “...at least until such time as discovery can be conducted to explore fault or negligence of Eaton….”). Eagle, however, fails to explain why it could not procure this evidence from its own company men 6 Citing International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266-67 (5th Cir.1991), and Washington v. Allstate Ins. Co., 901 F.2d 1281, 1286 (5th Cir.1990). Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 7 of 11 PageID #: 877 8 (See Section “B,” supra, uncalled witness rule). It even admits that further discovery more than likely will implicate Superior not Eaton. [See Doc. 107 at p. 14, “It is expected that all defendants will eventually establish facts to show that it was up to Superior to determine the details of how this operations, and the work of its employees (including plaintiff), was to be carried out …. At that point, McMoRan, Total Safety and Eagle may well all seek dismissal by summary judgment.”] Eagle, therefore, has not met its burden of proving that additional discovery is needed before the court can decide Eaton’s liability on the merits. E. Eagle’s opposition does not create a genuine issue of material fact for trial. In a final attempt to gain some traction on this issue, Eagle cites to what it claims are issues of fact that preclude summary judgment. However, issues of fact that are not material to the case do not preclude summary judgment.7 For example, Eagle claims that an issue exists as to whether the swivel was malfunctioning on the date of the accident [Doc. 107 at p. 15], but even assuming this to be true, this “fact” is not material to the case because plaintiff admits that he was not using the swivel when he fell. As a result, any alleged malfunction did not cause the accident and is immaterial. Even still, the evidence shows that no equipment failures were reported on the day of the accident;8 therefore, there is no evidence to support Eagle’s claim that the swivel malfunctioned. Eagle also argues that issues remain as to plaintiff’s positioning inside the basket when he fell, but here again his location is not “material” to the case. Eagle contends that Womack, Eaton’s employee on duty at the time of the accident, testified plaintiff fell when they immediately began 7 See Rodriguez v. Lozano, 108 F. App’x 823, 825 (5th Cir. 2004) (reversing district court’s decision and granting summary judgment because “the fact issues found to preclude summary judgment … are immaterial….”); Lytle v. Bexar Cty. Tex., 560 F.3d 404, 409 (5th Cir. 2009) (finding that any disputed fact issues were not material, and the district court’s denial of summary judgment was improper.) 8 See Exhibit “A” at FMOG 0667, 0671, 0676, 0681, 0685. Also, the fact that the swivel was replaced after the accident does not implicate a defect since swivels are replaced as a matter of maintenance because it is more efficient than dismantling the entire swivel for routine maintenance. The aforementioned Superior records also confirm there was no defect noted at the time of the accident. Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 8 of 11 PageID #: 878 9 walking with the pup joint, while plaintiff has claimed that he was “beneath the power swivel” when he fell [Doc. 107 at pp. 11-12], but whether plaintiff was two feet or five feet from the swivel is not a material issue because plaintiff has admitted that the swivel played no role in the accident as he never made the pup joint up to the swivel. Next, Eagle contends that the fact that Eaton had stop-work authority somehow imputes liability on Eaton. However, Eaton’s mere presence on the platform or knowledge of the alleged change in procedure is not enough to trigger a duty to issue a stop work order.9 According to this court’s holdings in Spisak and Mixon, cases where stop work authority likely existed, in order for Eaton to owe a duty to plaintiff, Eaton must have “operational control” over the work being performed. Eaton has briefed the issue of operational control extensively in its MSJ, which is reiterated by reference. Nothing in Eagle’s opposition creates an issue of material fact as to whether Eaton had operational control. This court has defined “operational control” to mean the person or party who had control over the work being performed.10 Eagle would have this court extend the definition of “operational control” to include anyone who had knowledge of the work plan or exercised control over any piece of equipment being used on the McMoRan job.11 However, as this court ruled in 9 See Graham v. Amoco Oil Co., 21 F.3d 643, 648 (5th Cir. 1994); Spisak v. Apache Corp., 2017 U.S. Dist. LEXIS 34864 (W.D. La. 03/10/2017), Hanna, J.; Mixon v. Anadarko Petroleum Corp., 2010 U.S. Dist. LEXIS 67151 (W.D. La. 07/06/2010), Hanna, J. This issue and these cases are discussed at length in Eaton’s motion for summary judgment all of which is incorporated by reference [Doc. 106]. 10 Because Eagle has no evidence to contradict plaintiff’s admission, affidavits and deposition testimony that Eaton had no “control” over plaintiff, Eagle tries to “cherry pick” one of several operations being conducted throughout a 24-hour period, milling, and suggests operating the swivel somehow elevates Timmy Womack to the person in charge of the entire McMoRan job. This is ridiculous and there is ample documentation that Eaton’s one employee on duty at the time of the accident “supervised” no one other than himself. There were several other activities besides milling, e.g., tripping pipe, crane operations, circulating the well, etc. that were integral to the McMoRan job that were performed by someone other than Eaton. See Exhibit “A” at FMOG000664, 0669, 0673, 0678, 0683, which identify Eaton as “3rd Party Personnel.” See also Exhibit “B”, FMOG000653-0655. 11 See Doc. 107 at p. 21, alleging that “…Eaton had operational control over this equipment;” p. 25, “[Eaton’s] employee also had operational control over the power swivel involved in the procedure.”] See also Exhibit “A” at FMOG000664, 0669, 0673, 0678, 0683, which identify Eaton as “3rd Party Personnel.” Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 9 of 11 PageID #: 879 10 Spisak and Mixon, mere knowledge of the procedure and/or Eaton’s control over one component of “the work” does not translate into operational control over the entire project. Eagle’s entire argument, therefore, fails to create an issue of material fact for trial. Finally, Eagle uses plaintiff’s unverified complaint to create the above described “issues of fact,” but it is well settled that a non-movant may not rely on the facts alleged in an unverified complaint to avoid summary judgment. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (complaint did not constitute summary judgment evidence because it was unverified).12 Eagle’s opposition, therefore, fails to create an issue of material fact for trial both procedurally and on the merits of its brief. CONCLUSION For the reasons provided above and in its MSJ, Eaton prays that this honorable court strike Eagle’s opposition and grant its motion, dismissing it with prejudice. Respectfully submitted, LOEB LAW FIRM /s/ Lauren Fajoni Bartlett J. SCOTT LOEB – TA (#25771) NICOLE S. LOEB (#25772) LAUREN FAJONI BARTLETT (#28311) 1180 West Causeway Approach Mandeville, Louisiana 70471 Tel.: (985) 778-0220 Email: sloeb@loeb-law.com nloeb@loeb-law.com lbartlett@loeb-law.com 12 See also Long v. Am. Nat’l Prop. & Cas. Co., 2008 U.S. Dist. LEXIS 57250, at *10 (E.D. La. 07/28/2008) (“Long’s complaint is not verified. Accordingly, the allegations contained therein do not constitute competent summary judgment evidence and, therefore, they do not suffice to raise a genuine issue of material fact as to whether Long timely submitted an adequate proof of loss pertaining to the SFIP benefits being sought in this case.”) Wilber v. Tharaldson Employee Mngmt, Co., 2005 U.S. Dist. LEXIS 27435, 2005 WL 3018262, at *12 n. 11 (E.D. Tex. 11/10/2005) (“[A]n unverified complaint does not constitute competent summary judgment evidence.”); Scott v. DMN, Inc., 31 Fed. Appx. 836, at *1 (5th Cir. 2002) (the non-movant party opposing a summary judgment may not rest its arguments on an unverified complaint); Solo Serve Corp. v. Westone Assoc., 929 F.2d 160, 165 (5th Cir. 1991) (when a movant has filed a properly supported motion for summary judgment, the non-movant cannot rely on the facts alleged in an unverified complaint to avoid summary judgment). Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 10 of 11 PageID #: 880 11 Attorneys for Eaton Oil Tools, Inc., Defendant CERTIFICATE OF SERVICE I do hereby certify that on this 19th day of December, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which, if they are subscribed, will send a notice of electronic filing to all counsel of record. Those parties who are not so subscribed have been served by email, hand delivery, facsimile and/or by first class mail delivery in accordance with Rule 5 of the Federal Rules of Civil Procedure. /s/ Lauren Fajoni Bartlett LAUREN FAJONI BARTLETT Case 6:16-cv-01552-PJH Document 110 Filed 12/19/17 Page 11 of 11 PageID #: 881