The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GRAND ISLE SHIPYARDS, INC. CIVIL ACTION
VERSUS NO. 15-129
C/W 15-154; 15-153;
15-905; 19-11825;
19-11826; 19-11827
BLACK ELK ENERGY OFFSHORE SECTION D (5)
OPERATIONS, LLC
ORDER
Before the Court is Black Elk Energy Offshore Operations, LLC’s Motion for
Partial Summary Judgment Regarding Whether the Failure by Black Elk Energy
Offshore Operations, LLC to Pay Invoices of Grand Isle Shipyards, Inc. Constitutes
a Breach of Contract.1 The Motion is fully briefed.2 After careful consideration of the
parties’ memoranda, the record, and the applicable law, the Court denies the Motion.
I. BACKGROUND
Grand Isle Shipyards, Inc. (“GIS”) alleges that Black Elk Energy Offshore
Operations, LLC (“BEEOO”),3 breached an agreement between the parties to pay for
services rendered in connection with BEEOO’s drilling and production operations on
1 R. Doc. 253.
2 R. Doc. 268 (Response in Opposition); R. Doc. 318 (Reply).
3 The Court recognizes that the Honorable Richard Schmidt (Ret.), as BEEOO’s liquidating trustee, is
the proper party to this litigation. See R. Doc. 42. For ease of reference and consistency, the Court
refers to this party as BEEOO.
various oil and gas wells.4 BEEOO filed an Answer and Counterclaim, alleging that
GIS’s work on Black Elk’s West Delta 32 oil platform resulted in millions of dollars
in damages to BEEOO.5 Specifically, BEEOO alleges that GIS is responsible for an
explosion that took place at the West Delta 32 platform on November 16, 2012.6 That
explosion has been the subject of extensive litigation in this district, including
Tajonera v. Black Elk Energy Offshore Operations, LLC,7 United States v. Black Elk
Energy Offshore Operations, LLC,8 United States v. Don Moss,9 and United States v.
Chris Srubar.10 BEEOO’s tort and fraud claims have been dismissed as prescribed,
but it continues to assert a breach of contract claim.11
According to the parties’ Proposed Pretrial Order, GIS’s breach of contract
claim deals with payments it alleges it is owed on various invoices post-dating the
explosion. GIS and BEEOO entered into a Business Alliance Agreement in 2010, and
GIS provided labor, materials, supplies, and other goods and services to BEEOO in
connection with its oil and gas wells.12 It is uncontested that, when GIS did work for
BEEOO, “BEEOO’s construction superintendent would review the GIS invoice along
with its backup documentation and attempt to match it to its respective daily
construction report. Once all documentation was reviewed and verified and
4 See generally R. Doc. 20 (Second Amended Complaint). GIS also brought a series of other claims,
including claims under the Louisiana Oil Well Lien Act. See id.
5 See generally R. Doc. 76 (Answer and First Amended and Supplemental Counterclaim).
6 See id. at 10 ¶ 16.
7 Civil Docket No. 13-366.
8 Criminal Docket No. 15-197-1.
9 Criminal Docket No. 15-197-2.
10 Criminal Docket No. 15-197-6.
11 R. Doc. 70; R. Doc. 76.
12 R. Doc. 171 at 4 ¶¶ 1-2.
approved, the construction superintendent would approve the work and authorize
payment by GIS.”13 Following the explosion in November 2012, BEEOO stopped
making payments on GIS’s invoices.14
Earlier in this litigation, GIS moved for partial summary judgment on its
breach of contract claim, seeking a judgment as a matter of law that BEEOO owed
GIS $3,353,309.58 for unpaid invoices.15 Chief Judge Brown issued an order denying
GIS’s Motion.16 In that order, Chief Judge Brown stated with respect to the West
Delta 32 Invoices that “[e]xamining GIS’ proffered evidence under the Louisiana
standard for oral contracts, the Court finds that GIS has presented sufficient evidence
to prove the existence of an oral contract between the parties.”17 Chief Judge Brown
declined to grant summary judgment as she found that GIS did not meet its burden
of establishing beyond peradventure all elements of its claim. Specifically, she stated
that “GIS must prove a breach of contract with respect to each individual claim.”18
She continued “[v]iewed in this manner, GIS provides scant evidence in support of its
motion that establishes the essential elements of any of its breach of contract claims.
13 Id. at 4 ¶ 3.
14 Id. at 4 ¶ 4.
15 R. Doc. 125. The Court notes there has been some discrepancy over the exact amount that GIS
claims that it is owed. Compare R. Doc. 268 (GIS’s Opposition to the instant Motion claiming
$3,186,431.57 in damages before removing the D&R Invoices and $3,081,556.07 after removing the
D&R Invoices) with R. Doc. 125-2 (GIS’s original motion seeking summary judgment on this issue,
requesting $3,359,309.58 in damages). The parties’ Proposed Pretrial Order indicates that the amount
owed on unpaid invoices is a contested issue of fact. See R. Doc. 171 at 12.
16 R. Doc. 194.
17 Id. at 12.
18 Id. at 13.
There is no description of each of the separate work projects, and no clear dates,
project details, or invoice amounts attached to each work project.”19
GIS then re-urged its motion for partial summary judgment, highlighting
additional evidence in support of its claim.20 This Court denied the re-urged
Motion.21 In doing so, the Court found that “although there appears to be evidence
that GIS is owed money, there are still genuine issues of material fact as to the
amount and projects.”22 It further found that GIS “still has not presented sufficient
evidence to establish that BEEOO failed to perform the obligation or the amount of
resulting damages.”23 The Court highlighted that the relevant caselaw required a
movant to “establish beyond peradventure all of the essential elements of the claim
or defense” to warrant judgment in its favor.24
BEEOO now moves for summary judgment, essentially seeking dismissal of
GIS’s breach of contract claim.25 BEEOO points to the language in Chief Judge
Brown’s Order stating that GIS has provided “scant evidence” to support its claim.
BEEOO further argues that a review of the parties’ proposed Pretrial Order
demonstrates that GIS lacks evidence to corroborate any oral testimony regarding a
contract, as required by Louisiana law.
19 Id.
20 R. Doc. 249.
21 R. Doc. 318.
22 Id. at 7.
23 Id.
24 R. Doc. 318 at 9 (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
25 R. Doc. 253.
GIS opposes the Motion.26 GIS argues that not only can it establish that
BEEOO breached the parties’ agreement, but that in its re-urged motion for partial
summary judgment, it established that BEEOO owes it damages as a matter of law.
GIS again highlights the evidence it believes establishes a breach of contract by
BEEOO, specifically BEEOO’s corporate deposition in which BEEOO”s
representative testified that BEEOO did not object to the amounts billed by GIS for
materials or GIS labor and only objects to the amount billed for D&R labor.
BEEOO has filed a Reply,27 in which it stresses that while GIS has established
the existence of an oral agreement regarding work on the West Delta 32 Platform, it
has not established the existence of an oral agreement as to each of the projects at
issue. BEEOO further argues that GIS has failed to provide evidence which Chief
Judge Brown indicated was required in her initial order denying partial summary
judgment.
II. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine disputed issue as
to any material fact, and the moving party is entitled to judgment as a matter of
law.28 When assessing whether a dispute regarding any material fact exists, the
Court considers “all of the evidence in the record but refrain[s] from making
credibility determinations or weighing the evidence.”29 While all reasonable
26 R. Doc. 268.
27 R. Doc. 312.
28 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).
29 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)
(citations omitted).
inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions or “only
a scintilla of evidence.”30 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.31
If the 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.”32 The
non-moving party can then defeat summary judgment by either submitting 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.”33 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.34 The burden then shifts to the nonmoving party who 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.’”35
30 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
31 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
32 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
33 Id. at 1265.
34 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
35 Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
III. ANALYSIS
Under Louisiana law, the essential elements of a breach of contract claim are
“(1) the obligor’s undertaking an obligation to perform; (2) the obligor failed to
perform the obligation (the breach); and (3) the failure to perform resulted in damages
to the obligee.”36 Further, in Louisiana, “[a]n oral contract for more than five hundred
dollars may be proved by the testimony of ‘one witness and other corroborating
circumstances.’”37 “While the plaintiff’s own testimony can meet the one witnesses
requirement, the corroborating circumstances ‘must come from a source other than
the plaintiff.’”38 The corroborating evidence need only be general in nature; each
specific detail of the alleged contract does not need to be corroborated;”39 and “[t]he
trier of fact has great latitude in what to accept as corroborating evidence.”40
Here, although GIS has not previously presented enough evidence for the
Court to grant summary judgment in its favor,41 it has presented sufficient evidence
to avoid dismissal of its claim. This evidence includes the declaration of Bryan
Pregeant,42 the deposition testimony of John Hoffman, BEEOO’s founder and former
CEO,43 the deposition of BEEOO’s corporate representative, and the narrative
36 Favrot v. Favrot, 68 So. 3d 1099, 1108-09 (La. App. 4 Cir. 2011).
37 Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 406 (5th Cir. 2000) (quoting La. Civ. Code art. 1846).
38 Id. (quoting Diversified Marine Servs., Inc. v. Jewel Marine, Inc., 222 So. 3d 1008, 1014 (La. App. 1
Cir. 2017)).
39 Kessler v. Popich, 240 F. App’x 618, 621 (5th Cir. 2007) (citing Gulf Container Repar Servs., Inc. v.
FIC Bus. & Fin. Ctrs., Inc., 735 So. 2d 41, 43 (La. App. 5 Cir. 1999)).
40 Worldwide Detective Agency, Inc. v. Cannon Cochran Mgmt. Servs., Inc., 502 F. App’x 408, 411 (5th
Cir. 2012) (citing B.M. Albrecht Elec., Inc. v. Griffin, 413 So. 2d 246, 247 (La. App. 4 Cir. 1982)).
41 See R. Doc. 318.
42 R. Doc. 249-3 at 1-10.
43 R. Doc. 249-6.
summary of the relevant invoices.*4 Relevant here is that when a party such as GIS
seeks summary judgment, it “must establish beyond peradventure a//of the essential
elements of the claim... to warrant judgment in [its] favor.”4° Although the Court
previously denied GIS’s re-urged Motion for Partial Summary Judgment, it did not
find that GIS could not establish its claim at trial. Rather, it stated that “although
there appears to be evidence that GIS is owed money, there are still genuine issues
of material fact as to the amount and projects.”46 And at trial, “[t]he trier of fact has
great latitude in what to accept as corroborating evidence.” 47 Accordingly, the Court
declines to grant BEEOO’s motion to issue an order determining that GIS cannot
carry its burden of proof at trial with reference to its claim that BEEOO breached a
contract with GIS.
IV. CONCLUSION
IT IS HEREBY ORDERED that BEEOO’s Motion for Partial Summary
Judgment is DENIED.
New Orleans, Louisiana, February 22, 2021.
obey Be Vitter
WENDYB. VITTER
UNITED STATES DISTRICT JUDGE
44R. Doc. 249-3 at 172-451.
4% Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (th Cir. 1986).
46R, Doc. 318.
47 Worldwide Detective Agency, Inc. v. Cannon Cochran Mgmt. Servs., Inc., 502 F. Appx 408, 411 (th
Cir. 2012) (citing B.M. Albrecht Elec., Inc. v. Griffin, 413 So. 2d 246, 247 (La. App. 4 Cir. 1982)).