Mullen v. Daigle Towing Service, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARK MULLEN CIVIL ACTION

v. NO. 19-11954

DAIGLE TOWING SERVICE, L.L.C., ET AL. SECTION “F”

ORDER AND REASONS

Before the Court is Lafarge North America’s motion for summary

judgment dismissing Mark Mullen’s claims. For the reasons that

follow, the motion is GRANTED.

Background

This Jones Act litigation arises from a seaman’s claim that

he slipped and fell on the deck of a barge he cannot name on a

date he does not know.

Mark Mullen worked as a deckhand for Daigle Towing Service

aboard a tugboat named the M/V MISS LAURIE. He says he slipped and

fell on the deck of an “undesignated rock barge” in the MISS

LAURIE’s tow. He does not know when, exactly, he fell; he did not

report the alleged fall; and he did not seek medical treatment

until months later. But he sued anyway.

At first, Mullen sued only his employer, Daigle Towing. He

later amended his complaint to add negligence and unseaworthiness

claims against Lafarge. In that first supplemental complaint, he

said he slipped on the deck of a Lafarge-owned “undesignated rock

barge” because the deck was “slick and not properly covered with

nonskid[.]” He soon changed his mind, though; he filed a second

supplemental complaint asserting that American Commercial Barge

Line——and not Lafarge——owned the “undesignated rock barge.”

Now, Lafarge moves for summary judgment, contending it had no

duty to maintain the “undesignated rock barge.” Lafarge says it

ceded control of all such barges two years before the alleged

incident, when it entered into a bareboat charter party with

American Commercial Barge Line. Mullen responds that he needs more

time for discovery and asks the Court to deny or defer summary

judgment. See FED. R. CIV. P. 56(d).

I.

Summary judgment is proper if the record discloses 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). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017) (citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003). Ultimately, to avoid summary

judgment, the non-movant “must go beyond the pleadings and come

forward with specific facts indicating a genuine issue for trial.”

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th

Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

In a non-jury case, the Court “has somewhat greater discretion

to consider what weight it will accord the evidence.” Jones v.

United States, 936 F.3d 318, 321 (5th Cir. 2019) (citation

omitted).

II.

Before turning to the merits, the Court considers Mullen’s

procedural objection: He says the Court should defer ruling on the

motion to allow him to take more discovery.1

The Court may defer ruling on Lafarge’s motion for summary

judgment if Mullen shows “by affidavit or declaration that, for

specified reasons, [he] cannot present facts essential to justify

[his] opposition.” FED. R. CIV. P. 56(d).

Mullen “may not simply rely on vague assertions that

additional discovery will produce needed, but unspecified

facts.” Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d

1 Mullen invokes Rule 56(b), governing the timing of summary

judgment motions. He means to invoke Rule 56(d), governing deferral

of summary judgment “when facts are unavailable to the nonmovant.”

Indeed, he asks the Court to “defer ruling upon [the] motion and

allow time to take discovery[.]” So the Court treats his request

as one for a Rule 56(d) deferral.

887, 894 (5th Cir. 2013) (per curiam) (citation omitted). Instead,

he must “set forth a plausible basis for believing that specified

facts, susceptible of collection within a reasonable time frame,

probably exist and indicate how the emergent facts, if adduced,

will influence the outcome of the pending summary judgment

motion.” Id. at 894.

He has not done so. He “set[s] forth” no basis——much less a

“plausible” one——for “believing” that discovery will disclose

facts sufficient to defeat Lafarge’s motion. Biles, 714 F.3d at

894. Short of evidence that the bareboat charter party is an out-

and-out forgery, which Mullen does not contend, it is unclear what

material facts he thinks he might discover. True, his counsel says

he cannot “confirm or refute the position taken by Lafarge” because

“discovery has not commenced against” American Commercial Barge

Line. But “Rule 56 does not require that any discovery take place

before summary judgment can be granted.” Mendez v. Poitevent, 823

F.3d 326, 336 (5th Cir. 2016) (quotations omitted; emphasis in

original). And it is a lack of diligence that has caused counsel’s

inability to “confirm or refute” Lafarge’s position eleven months

into this litigation.

Accordingly, because Mullen has neither “set forth a

plausible basis for believing that specified facts, susceptible of

collection within a reasonable time frame, probably exist,” Biles,

714 F.3d at 894, nor “indicate[d] how the emergent facts, if

adduced, will influence the outcome of the pending summary judgment

motion,” id., his Rule 56(d) objection is overruled. The

procedural objection resolved, the Court turns to the merits.

III.

Lafarge moves for summary judgment dismissing Mullen’s

negligence and unseaworthiness claims. The Court considers

negligence before unseaworthiness.

A.

Mullen alleges that Lafarge negligently failed to “maintain

the equipment” and “appurtenances” on an “undesignated rock

barge.” Negligence is “an actionable wrong under general maritime

law.” Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 592 (5th Cir.

2016) (citation omitted). It has four elements: (1) the defendant

owed a duty to the plaintiff; (2) the defendant breached that duty;

(3) the plaintiff suffered an injury; and (4) a causal connection

between the defendant’s conduct and the plaintiff’s injury. Id. at

592. The duty element is dispositive here.

In the maritime context, a defendant’s duty is generally one

of “ordinary care under the circumstances.” In re Great Lakes

Dredge & Dock Co., 624 F.3d 201, 211 (5th Cir. 2010). That duty

can extend to third parties. Thomas, 832 F.3d at 592. To decide if

a duty exists, courts consider “a number of factors, including

most notably the foreseeability of the harm suffered by the

complaining party.’” Thomas, 832 F.3d at 592 (quoting Consol.

Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir.

1987)). If a duty exists, it is owed “‘only with respect to the

interest that is foreseeably jeopardized by the negligent

conduct.’” In re Great Lakes Dredge & Dock Co., 624 F.3d at 211

(quoting Consol. Aluminum, 833 F.2d at 67).

Mindful of these authorities, Lafarge submits that it owed no

duty to maintain the “undesignated rock barge.” It makes two

arguments.

The first is simple. Lafarge says no evidence links it to the

“undesignated rock barge,” and no link means no duty. The Court

agrees. In opposition to summary judgment, Mullen does not invoke

any record evidence linking Lafarge to the “undesignated rock

barge.” Lafarge owed no duty to “maintain equipment” on a random

barge it never owned, operated, or controlled in any respect. See

generally In re Great Lakes, 624 F.3d at 211.

The second digs deeper. It assumes the “undesignated rock

barge” was among the “hopper barges” Lafarge once controlled.

Lafarge says it ceded control of all such barges more than two

years before Mullen’s alleged fall, when it entered into a bareboat

charter party with American Commercial Barge Line. That charter

party required American Commercial Barge Line, “at its sole cost

and expense,” to “maintain each Barge in its condition and repair

as of the delivery of the Barge[.]” From the language of this

charter party, and from general principles of maritime law, Lafarge

reasons that American Commercial Barge Line——and not it——owed

Mullen a duty to “maintain the equipment and appurtenances” on the

“undesignated rock barge.” The Court agrees.

The bareboat charter party between Lafarge and American

Commercial Barge Line was “tantamount to, though just short of, an

outright transfer of ownership” of the barges. Agrico Chem. Co. v.

M/V Ben W. Martin, 664 F.2d 85, 91 (5th Cir. 1981)(citation

omitted). It transferred “full possession and control of” the

barges to the charterer, American Commercial Barge Line. Walker v.

Braus, 995 F.2d 77, 80 (5th Cir. 1993). That transfer occurred in

December 2016, over two years before Mullen’s alleged fall. Lafarge

had no duty to maintain an “undesignated rock barge” it had no

legal right to possess or control; that duty belonged to American

Commercial Barge Line, the bareboat charterer.2 See, e.g., Reed v.

S. S. Yaka, 373 U.S. 410, 412–13 (1963) (“[B]arring explicit

statutory exemption, the bareboat charterer is personally liable

for the unseaworthiness of a chartered vessel.”).

2 Mullen offers no evidence that could support a finding that

Lafarge had the power to possess, control, or “maintain” the

“undesignated rock barge” on which he says he fell.

As an alleged tortfeasor, Lafarge is “accountable only to

those to whom a duty is owed.” Consol. Aluminum, 833 F.2d at 67.

The singular duty Mullen identifies is to “maintain equipment” on

the “undesignated rock barge.” But he cites no record evidence to

support a finding that Lafarge owed that duty. Accordingly, he

cannot prove the duty element of his negligence claim.3 The Court

therefore grants Lafarge’s motion for summary judgment on this

claim and turns to the unseaworthiness claim.4

B.

Mullen sued Lafarge for unseaworthiness under general

maritime law. He says that the “undesignated rock barge” was

unseaworthy “due to improperly maintained equipment and

appurtenances.” Lafarge contends that the claim fails as a matter

of law because a Jones Act seaman who is not a crew member cannot

maintain an unseaworthiness action against a non-employer vessel

owner.

3 A similar analysis would govern if the “undesignated rock

barge” were one of the barges Lafarge time-chartered for short-

term, “last-mile” deliveries. See Forrester v. Ocean Marine Indem.

Co., 11 F.3d 1213, 1215 (5th Cir. 1993) (“As a non-demise

charterer, the time charterer is thus not liable for claims of

negligence of the crew or for the unseaworthiness of the vessel.”).

4 Even if Mullen could prove the duty element, the Court would

enter summary judgment against him. He cannot prove causation: No

record evidence supports a finding that any act or omission of

Lafarge caused the alleged fall.

The Court agrees. As a Jones Act seaman, Mullen “cannot

maintain a Sieracki seaworthiness action against a vessel on which

he is not a crew member.” Smith v. Harbor Towing & Fleeting, Inc.,

910 F.2d 312, 315 (5th Cir. 1990). Because Mullen was not a crew

member of the “undesignated rock barge,” he cannot prevail on an

unseaworthiness claim against its alleged owner, Lafarge.° Id. at

315. The Court therefore grants Lafarge’s motion for summary

judgment dismissing Mullen’s unseaworthiness claim.

Iv.

Lafarge had no duty to maintain the “equipment and

appurtenances” on the “undesignated rock barge” on which Mullen

claims he fell. And even if Lafarge had such a duty, Mullen offers

no evidence of breach. Accordingly, IT IS ORDERED that: Lafarge’s

motion for summary judgment is GRANTED. Mullen’s claims against

Lafarge are DISMISSED with prejudice.

New Orleans, Louisiana, July 15, 2020

. \

UNITED STAWES DISTRICT JUDGE

° This assumes for argument’s sake that Lafarge has some

connection to the “undesignated rock barge” on which Mullen claims

to have fallen. As noted, however, Mullen cites no record evidence

to support any connection. Summary judgment is therefore warranted

on this independent ground.

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