Perry v. Kirby Offshore Marine Hawaii, Inc.

MOTION for Partial Summary Judgment Normand R. Lezy appearing for Defendant Kirby Offshore Marine Hawaii, Inc.

D. Haw.January 4, 2017

COX, WOOTTON, LERNER, GRIFFIN & HANSEN LLP NORMAND R. LEZY 6297-0 E-Mail: nlezy@cwlfirm.com MICHAEL J. NAKANO 6940-0 E-Mail: mnakano@cwlfirm.com Davies Pacific Center, Suite 1099 841 Bishop Street Honolulu, Hawaii 96813 Telephone: (808) 744-7020 Facsimile: (808) 744-7030 Attorneys for Defendant KIRBY OFFSHORE MARINE HAWAII, LLC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NOHEA D. D. PERRY Plaintiffs, vs. KIRBY OFFSHORE MARINE HAWAII, LLC; and DOES 1 through 10, in personam; and the NOHO-LOA, in rem, O.N. 06537840, Defendants. CIVIL NO. 16-00321 HG-KSC DEFENDANT KIRBY OFFSHORE MARINE HAWAII, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF MOTION; CERTIFICATE OF SERVICE DEFENDANT KIRBY OFFSHORE MARINE HAWAII, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT COMES NOW Defendant KIRBY OFFSHORE MARINE HAWAII, LLC, by and through its attorneys COX, WOOTTON, LERNER, GRIFFIN & HANSEN LLP, and hereby files this Motion for Partial Summary Judgment. Case 1:16-cv-00321-HG-KSC Document 49 Filed 01/04/17 Page 1 of 2 PageID #: 143 This motion is brought under Fed.R.Civ.P. Rule 7 and 56(a) and LR7.2 and LR56.1 of the Rules of the United States District Court for the District of Hawaii, and is based upon on the attached Memorandum in Support of Motion, the Separate Concise Statement of Material Facts, the declarations and exhibits being filed contemporaneously, and the records on file with the Court, and such other and further matters that may arise at the time of the hearing. DATED: Honolulu, Hawaii, January 4, 2017. /s/ Normand R. Lezy NORMAND R. LEZY MICHAEL J. NAKANO Attorneys for Defendant KIRBY OFFSHORE MARINE HAWAII, LLC Case 1:16-cv-00321-HG-KSC Document 49 Filed 01/04/17 Page 2 of 2 PageID #: 144 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII NOHEA D. D. PERRY Plaintiffs, vs. KIRBY OFFSHORE MARINE HAWAII, LLC; and DOES 1 through 10, in personam; and the NOHO-LOA, in rem, O.N. 06537840, Defendants. CIVIL NO. 16-00321 HG-KSC MEMORANDUM IN SUPPORT OF MOTION MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION Plaintiff NOHEA D.D. PERRY (“Plaintiff”) has asserted causes of action against Defendant KIRBY OFFSHORE MARINE HAWAII, LLC (“KOMH”) for negligence under the Jones Act, 46 U.S.C. §30104, and unseaworthiness under the general maritime law. II. STATEMENT OF FACTS A. Plaintiff’s Causes of Action Against KOMH. Plaintiff alleges that on September 7, 2013, she was injured while employed by KOMH and working aboard the vessel NOHO-LOA. See Defendant Kirby Offshore Marine Hawaii, LLC’s Separate and Concise Statement of Material Facts in Support of Motion for Partial Summary Judgment (“SCSMF”), Paragraph Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 1 of 15 PageID #: 145 2 1. KOMH has admitted that on September 7, 2013, it employed Plaintiff and was the owner of the vessel NOHO-LOA. See SCSMF, Paragraphs 2 and 3. Plaintiff has asserted causes of action against KOMH for negligence under the Jones Act, 46 U.S.C. §30104, and as owner of the vessel NOHO-LOA for unseaworthiness under the general maritime law in connection with her alleged September 7, 2013 accident. See SCSMF, Paragraphs 4 and 5. B. Plaintiff’s September 13, 2013 Recorded Interview. On September 13, 2013, Plaintiff submitted to a recorded interview regarding the facts and circumstances of her alleged September 7, 2013 accident. See SCSMF, Paragraph 6. During that recorded interview, Plaintiff conceded the following facts. On September 7, 2013, Plaintiff was working for KOMH as a deckhand aboard the vessel NOHO-LOA. See SCSMF, Paragraph 9. The vessel was tied up pierside. See SCSMF, Paragraph 10. The Master of the vessel NOHO-LOA was Capt. John Panella. See SCSMF, Paragraph 11. At the time of Plaintiff’s alleged accident there was nobody else aboard the vessel NOHO-LOA other than Plaintiff. See SCSMF, Paragraph 12. Plaintiff’s alleged accident occurred at about 8:45 p.m. See SCSMF, Paragraph 13. Capt. Panella instructed Plaintiff to organize stuff that was laying out Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 2 of 15 PageID #: 146 3 on the deck and put it into a locker. See SCSMF, Paragraph 14. Plaintiff had performed similar work previously. See SCSMF, Paragraph 15. At about 7:45 p.m., Plaintiff performed an engine room check for 10 minutes and then went up on deck and started putting gear away in the deck locker. See SCSMF, Paragraph 16. At the time that Plaintiff’s alleged accident occurred she was moving a coil of garden hose that was laying on the deck. See SCSMF, Paragraph 17. When Plaintiff moved the coil of garden hose it caught on a loose chain that was hanging over a chain that secured a skiff to the deck of the vessel NOHO- LOA. See SCSMF, Paragraph 18. The chain was up off the deck and was hanging loose. See SCSMF, Paragraph 19. Plaintiff alleges that she injured herself when she pulled on the weight of the coil of hose and chain and twisted her back. See SCSMF, Paragraph 20. Plaintiff saw the chain before she moved the coil of hose but she “didn’t think it would get in the way of the hose.” See SCSMF, Paragraph 21. The area of the vessel NOHO-LOA where Plaintiff was working was illuminated and she did not have any problems seeing what she was doing at the time her alleged accident occurred. See SCSMF, Paragraph 22. Plaintiff did not think that she needed somebody else to help her with the work that she was performing at the time her alleged accident occurred. See SCSMF, Paragraph 23. Plaintiff was not under any Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 3 of 15 PageID #: 147 4 time limit and was not required to rush to finish the work that she was performing at the time her alleged accident occurred. See SCSMF, Paragraph 24. Plaintiff was not tired and did not feel overworked at the time her alleged accident occurred. See SCSMF, Paragraph 25. Plaintiff did not think that there was anything that the other crewmembers of the vessel NOHO-LOA could have done to avoid her alleged accident. See SCSMF, Paragraph 26. Plaintiff did not think that there was anything that the Master of the vessel NOHO-LOA, Capt. Panella, could have done to avoid her alleged accident. See SCSMF, Paragraph 27. Plaintiff did not think that there was anything that KOMH did wrong that caused her alleged accident. See SCSMF, Paragraph 28. Plaintiff agreed that she could have avoided her alleged accident by either moving the coil of hose out of the way of the chain or the chain out of the way of the coil of hose. See SCSMF, Paragraph 29. C. Plaintiff’s Failure to Respond or Object to KOMH’s Request for Admission. On September 13, 2016, Plaintiff was served with a Fed.R.Civ.P. 36 request for admission requesting that she admit that all statements she made during her September 13, 2013 recorded interview were truthful. See SCSMF, Paragraph 7. Plaintiff failed to respond or object to KOMH’s request for admission as required by Fed.R.Civ.P. 36. See SCSMF, Paragraph 8. Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 4 of 15 PageID #: 148 5 D. The Factual Basis for Plaintiff’s Jones Act Negligence and Unseaworthiness Causes of Action Against KOMH. The only facts identified by Plaintiff upon which she bases her contentions that KOMH was negligent under the Jones Act, 46 U.S.C. §30104, or that the vessel NOHO-LOA was unseaworthy in connection with her alleged September 7, 2013 accident are that “the hose I tried to carry and stow away got caught on a hanging chain which should not have been there hanging down.” See SCSMF, Paragraph 30. III. STANDARD OF REVIEW Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999). The party seeking summary judgment bears the initial burden of showing the basis for its motion and identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). The moving party, however, has no burden to negate or disprove Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 5 of 15 PageID #: 149 6 matters on which the opponent will have the burden of proof at trial. The moving party need not produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325. The moving party must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. That burden is met simply by pointing out to the district court that there is an absence of evidence to support the non-movant's case. Id. If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The opposing party must present admissible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1997)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The court views the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of declarations, admissions, evidence obtained through discovery, and matters judicially noticed. Fed.R.Civ.P. 56(c); Celotex, 477 Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 6 of 15 PageID #: 150 7 U.S. at 324. The opposing party cannot, however, stand on its pleadings or simply assert that it will be able to discredit the movant's evidence at trial. Fed.R.Civ.P. 56(e); T.W. Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on mere allegations or denials. Fed.R.Civ.P. 56(e); Gasaway v. Northwest Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). When the non-moving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); see also National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997); Kim v. Coach, Inc., 2016 U.S. Dist. LEXIS 15531, *6-8 (D. Haw. Feb. 9, 2016). IV. ARGUMENT A. The Statements Made by Plaintiff in Her Recorded Interview are Admissible Evidence for Purposes of Summary Judgment. The statements made by Plaintiff in her September 13, 2013 recorded statement are admissions of a party-opponent and are therefore admissible under FRE 801(d)(2)(A). The statements are admissible under FRE 801(d)(2) because they are being offered against Plaintiff and are statements made by the party in an individual capacity. Fed.R.Civ.P. 801(d)(2). Admissions by a party-opponent are not considered hearsay under FRE 801(d)(2) and can be considered by a court in a motion for summary judgment. Woods v. City of Chicago, 234 F.3d 979, 987-988 (7th Cir. 2000)(a court may Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 7 of 15 PageID #: 151 8 consider any material that would be admissible or usable at trial on a motion for summary judgment)(citing Aguilera v. Cook County Police & Corrs. Merit Bd., 760 F.2d 844, 849 (7th Cir. 1985)). B. Plaintiff’s Failure to Respond or Object to KOHM’s Request for Admission Deems Admitted that Her Statements in Her Recorded Interview are Truthful. KOMH served Plaintiff with a request for admission requesting that she admit that all statements she made during her September 13, 2013 recorded interview were true. Plaintiff failed to respond or object to KOMH’s request for admission as required by Fed.R.Civ.P. 36. Accordingly, it is deemed admitted that Plaintiff’s statements made in her recorded interview are truthful. “A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed.R.Civ.P. 36(a)(3). Once admitted, a matter is “conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Fed.R.Civ.P. 36 (b). Additionally, “[i]n [the Ninth Circuit], it has long been the case that summary judgment may be properly based on matters deemed admitted due to a party's failure to respond to a request for admissions.” Whitaker v. Blackstone Consulting, Inc., 2016 U.S. Dist. LEXIS 10067 *8 (D. Haw. 2016) (quoting Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 8 of 15 PageID #: 152 9 O’Campo v. Hardisty, 262 F.2d 621, 623-24 (9th Cir. 1958) (affirming summary judgment based on unanswered requests for admissions)). C. Plaintiff Cannot Meet Her Burden of Proof on Either Her Cause of Action for Jones Act Negligence or Her Cause of Action for Unseaworthiness Under the General Maritime Law. 1. Plaintiff’s Cause of Action for Jones Act Negligence Fails Because the Undisputed Facts Do Not Support a Finding that Plaintiff Can Prove by a Preponderance of the Evidence that KOMH Had Notice of an Unsafe Condition In order to prevail on her cause of action for Jones Act negligence Plaintiff must prove by a preponderance of the evidence that, inter alia, KOMH had notice that the condition that she alleges caused her accident was unsafe. The only facts that Plaintiff points to, that “the hose [she] tried to carry and stow away got caught on a hanging chain which should not have been there hanging down,” fails to meet that burden. To the contrary, Plaintiff’s statements in her recorded interview prove that there was no unsafe condition and that her alleged accident was caused only by her inattention. To prevail on a claim that an employer failed to provide a safe place to work a plaintiff must prove by a preponderance of the evidence the elements of a Jones Act negligence claim. MacDonald v. Kahikolu, Ltd., 2007 U.S. Dist. Lexis 94511 *18 (D. Haw. 2007). The elements of a Jones Act negligence claim are duty, breach of the duty, notice and causation. Id. (citing Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 662 (9th Cir. 1997)). Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 9 of 15 PageID #: 153 10 “The law does not require that an employer provide an injury-free workplace. A shipowner has the duty to use reasonable care in furnishing [its] employees with a safe place to work.” Id. (citation omitted). Although an employer’s duty to provide a safe workplace is broad, “the employer must have notice and the opportunity to correct an unsafe condition before liability will attach.” Id. at *19 (citing Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993)). “It is a fundamental principle that, under the Jones Act, an employer must have notice and the opportunity to correct an unsafe condition before liability will attach.” Id. (quoting Perkins v. American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 599 (6th Cir. 2001)). Plaintiff cannot prove by a preponderance of the evidence that KOMH had notice that the condition that she alleges caused her accident was unsafe. The only facts that Plaintiff points to in support of her Jones Act Negligence claim are that “the hose [she] tried to carry and stow away got caught on a hanging chain which should not have been there hanging down.” That is a conclusory allegation, not a statement of fact, and does not constitute probative evidence. To the contrary, Plaintiff’s statements in her recorded interview prove that there was in fact no unsafe condition and that her alleged accident was caused only by her inattention. Plaintiff has conceded that:  She saw the chain before she moved the coil of hose but she “didn’t Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 10 of 15 PageID #: 154 11 think it would get in the way of the hose.”  The area of the vessel NOHO-LOA where she was working was illuminated and she did not have any problems seeing what she was doing at the time her alleged accident occurred;  She did not think that she needed somebody else to help her with the work that she was performing at the time her alleged accident occurred.  She was not under any time limit and was not required to rush to finish the work that she was performing at the time her alleged accident occurred.  She was not tired and did not feel overworked at the time her alleged accident occurred.  She did not think that there was anything that the other crewmembers of the vessel NOHO-LOA could have done to avoid her alleged accident.  She did not think that there was anything that the Master of the vessel NOHO-LOA, Capt. Panella, could have done to avoid her alleged accident.  She did not think that there was anything that KOMH did wrong that caused her alleged accident. Plaintiff admitted that she could have avoided her alleged accident by simply moving the coil of hose out of the way of the chain or the chain out of the way of the coil of hose. It is plain that Plaintiff’s alleged accident was caused only by her inattention, not by any unsafe condition that KOMH had notice of. Plaintiff’s cause of action for Jones Act negligence therefore fails. 2. Plaintiffs Cause of Action for Unseaworthiness Fails Because the Undisputed Facts Do Not Support a Finding that Plaintiff Can Prove by a Preponderance of the Evidence that a Piece of the Vessel NOHO-LOA’s Equipment was Not Reasonably Fit for its Intended Use In order to prevail on her cause of action for unseaworthiness under the Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 11 of 15 PageID #: 155 12 general maritime law Plaintiff must prove by a preponderance of the evidence that, inter alia, that a piece of the vessel NOHO-LOA’s equipment was not fit for its intended purpose. Again, the only facts that Plaintiff points to, that “the hose [she] tried to carry and stow away got caught on a hanging chain which should not have been there hanging down,” fails to meet that burden. To the contrary, Plaintiff’s statements in her recorded interview prove that there was no unfit piece of equipment and that her alleged accident was caused only by her inattention. The general maritime law imposes a duty on a shipowner to provide a seaworthy vessel. MacDonald v. Kahikolu, Ltd., 2007 U.S. Dist. Lexis 94511 at *23. The duty is absolute and requires that the vessel, as well as its gear and crew, be reasonably fit for their intended use. Id. (citing Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 502-03, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971)). While the duty is absolute, “an owner is not obligated to furnish an accident-free ship. The standard is not perfection, but reasonable fitness[.]”Id. (citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1969)). To prevail on a claim for unseaworthiness a plaintiff must prove that (1) the warranty of unseaworthiness extended to her and her duties, (2) her injury was caused by a piece of ship’s equipment or appurtenance, (3) the equipment used was not fit for its intended use, and (4) the unseaworthy condition proximately caused her injuries. Id. at 24 (citing Ribitzki, 111 F.3d at 664). Merely because an Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 12 of 15 PageID #: 156 13 accident or injury occurs does not establish that vessel or its equipment were unseaworthy. Id.; see also Fechtig v. Sea Pac. Inc. 2006 U.S. Dist. LEXIS 78581 *54 (N.D. Cal. 2006). Plaintiff cannot prove by a preponderance of the evidence that a piece of the vessel NOHO-LOA’s equipment was not fit for its intended purpose. The only facts that Plaintiff points to in support of her unseaworthiness claim are that “the hose [she] tried to carry and stow away got caught on a hanging chain which should not have been there hanging down.” That is a conclusory allegation, not a statement of fact, and does not constitute probative evidence. To the contrary, for the same reasons detailed in the preceding section, Plaintiff’s statements in her recorded interview prove that there was in fact no unfit piece of equipment aboard the vessel NOHO-LOA and that her alleged accident was caused only by her inattention. The mere fact that Plaintiff alleges that an accident occurred while she working aboard the vessel NOHO-LOA does not prove that the vessel or its equipment were unseaworthy. It is plain that Plaintiff’s alleged accident was caused only by her inattention, not by any unfit piece of equipment aboard the vessel NOHO-LOA. Plaintiff’s cause of action for unseaworthiness under the general maritime law therefore fails. Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 13 of 15 PageID #: 157 14 IV. CONCLUSION For the reasons set forth above, Defendant KIRBY OFFSHORE MARINE HAWAII, LLC respectfully requests that the Court GRANT its Motion for Partial Summary Judgment and dismiss Plaintiff NOHEA D. D. PERRY’s causes of action for Jones Act negligence and unseaworthiness under the general maritime law. DATED: Honolulu, Hawaii, January 4, 2017. /s/ Normand R. Lezy NORMAND R. LEZY MICHAEL J. NAKANO Attorneys for Defendant KIRBY OFFSHORE MARINE HAWAII, LLC Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 14 of 15 PageID #: 158 LR7.5(e) CERTIFICATION The undersigned certifies that this Memorandum in Support of Motion submitted in support of Defendant KIRBY OFFSHORE MARINE HAWAII, LLC’s Motion for Partial Summary Judgment contains 3,275 words in Times New Roman, 14-point font. DATED: Honolulu, Hawaii, January 4, 2017. /s/ Normand R. Lezy NORMAND R. LEZY MICHAEL J. NAKANO Attorneys for Defendant KIRBY OFFSHORE MARINE HAWAII, LLC Case 1:16-cv-00321-HG-KSC Document 49-1 Filed 01/04/17 Page 15 of 15 PageID #: 159 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on the dates and by the method of service noted below, a true and correct copy of the foregoing was served on the following at their last known addresses: Served Electronically through CM/ECF and hand delivery: Name Email Address Date Douglas Thomas Moore, Esq. 820 Mililani Street, Suite 701 Honolulu, HI 96813 DTMlawoffice@gmail.com 01/04/2017 DATED: Honolulu, Hawaii, January 4, 2017. /s/ Normand R. Lezy NORMAND R. LEZY MICHAEL J. NAKANO Attorneys for Defendant KIRBY OFFSHORE MARINE HAWAII, LLC Case 1:16-cv-00321-HG-KSC Document 49-2 Filed 01/04/17 Page 1 of 1 PageID #: 160