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 Grand Isle Shipyard’s Motion for Partial Summary
Judgment Dismissal of BEEOO’s Claims for Attorney’s Fees and Litigation Costs.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
various oil and gas wells.4 BEEOO filed an Answer and Counterclaim, alleging that
1 R. Doc. 247.
2 R. Doc. 278 (Response in Opposition); R. Doc. 313 (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.
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.
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
In connection with its breach of contract claim, BEEOO seeks various
attorney’s fees, expert fees, and litigation costs related to other matters, including the
Tajonera litigation. Earlier in this litigation, GIS filed a motion for partial summary
judgment in which it argued that BEEOO is not entitled to such fees and costs.12
Chief Judge Brown, to whom this matter was originally assigned, denied that
motion.13 In her ruling, Chief Judge Brown found that there existed genuine issues
of material fact that precluded summary judgment on the issue of whether the Master
Service Agreement, which provides for an recovery of attorneys’ fees and costs “in any
legal action in which Black Elk prevails, in whole or in part, brought against
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. 97.
13 R. Doc. 225.
CONTRACTOR based on a breach of this agreement,”14 applies in this matter. She
noted that while the Master Service Agreement provides for recovery of attorneys’
fees and costs in any legal action, no portion of the Master Service Agreement
provided that BEEOO is entitled to fees and costs from prior litigations, which appear
to be the basis for those fees and costs in this matter. Chief Judge Brown further
noted that there was “some support” for BEEOO’s position that a party may recover
attorney’s fees incurred in previously litigations as breach-of-contract damages if
they were foreseeable damages that arose from a breach of contract.15 Judge Brown
pointed to Kadlec Medical Center v. Lakeview Anesthesia Associates,16 a Fifth Circuit
case which held that, at least in the tort setting, attorneys’ fees incurred in a prior
litigation may be awarded as economic damages in a later suit. Although at least one
other court has held that the logic of Kadlec does not apply to breach of contract
claims, Chief Judge Brown questioned this holding because the rationale relied upon
in Kadlec, based in the Restatement (Second) of Torts, is similar to the Louisiana
Civil Law Treatise. In sum, Chief Judge Brown found that “BEEOO may be able to
recover attorneys’ fees for the original litigation if it can prove that GIS’ wrongful act
prompted the previous litigation. There are clearly material facts in dispute
regarding whether GIS’ wrongful act prompted the previous litigation. Additionally,
the Court notes that neither party has fully briefed these issues. Accordingly,
granting summary judgment at this time would be premature.”17 Chief Judge Brown
14 Id.
15 R. Doc. 225 at 16-17.
16 527 F.3d 412 (5th Cir. 2008).
17 R. Doc. 225 at 19.
also declined to address whether the Louisiana Oilfield Indemnity Act (“LOIA”)
prohibited BEEOO from collecting damages for prior litigations because BEEOO was
not “making a claim herein for defense and indemnity from GIS under the MSA.”18
GIS now reurges its Motion, seeking essentially the same relief it did
previously: an order dismissing BEEOO’s claims for attorneys’ fees, expert fees, and
litigation costs in connection with other civil cases and regulatory matters.19 GIS
reiterates its argument that Louisiana law does not allow for recovery of attorneys’
fees absent a specific contractual provision which allows for such fees. GIS also
stresses that the LOIA prohibits the collection of such fees in this case. GIS provides
a summary of the fees purportedly at issue in this Motion, which it represents makes
up over half of BEEOO’s claim. Finally, GIS argues that the fees at issue are not
“general damages” that can be recovered for this purported breach of contract.
BEEOO has filed an Opposition,20 in which it argues that GIS seeks wholesale
dismissal of an entire category of costs which include attorneys’ fees, expert fees, and
litigation costs, without examining why those fees were incurred. BEEOO seems to
argue that GIS improperly categorizes many of these fees as “attorneys’ fees” when
many of the fees were unconnected to the Tajonera litigation, pointing out that
several of the law firms had already been working on legal matters for BEEOO.
BEEOO asserts that “[w]hile GIS is correct that some of the legal costs supporting
BEEOO’s claim fit within that category [incurred in anticipation of or defense of the
18 R. Doc. 225 at 20 (citing R. Doc. 105 at 13).
19 R. Doc. 247.
20 R. Doc. 278.
Tajonera case], the majority do not.”21 BEEOO also argues that the terms of the
MSA do not preclude attorney’s fees, that the fees that BEEOO seeks are foreseeable
and direct damages of GIS’s breach, and that the “previous litigation” exception to
the American Rule applies in this matter. BEEOO argues that LOIA does not apply
to this dispute, as LOIA does not apply to breach of contract claims such as those at
issue, and it has yet to be determined if the work on BEEOO’s platform “pertains to
a well.” Finally, BEEOO argues that issues of material fact preclude a finding of
legal costs as “special, indirect, or consequential damages.”
GIS filed a Reply.22 GIS first argues that BEEOO fails to properly contest
various certain assertions in GIS’s Local Rule 56.1 Statement of
Contested/Uncontested Facts, and therefore those assertions must be deemed
admitted. Specifically, GIS alleges that Uncontested Fact Nos. 13-16, 27-29, and 42-
49 have not properly been disputed and therefore must be deemed admitted. GIS
also argues that Louisiana law does not recognize attorney’s fees as compensatory
damages, and that Louisiana law as a matter of policy does not allow Attorney Fees
and Costs to be recovered under LOIA which it argues applies in this matter since it
“pertains to a well.”23 GIS further argues that the Master Service Agreement does
not apply to West Delta 32, apparently arguing that any language included in the
MSA regarding attorneys’ fees is irrelevant to this matter. Finally, GIS presses that
Chief Judge Brown’s order denying GIS’s original motion on this topic is not “relevant
21 Id at 10 (emphasis in original).
22 R. Doc. 313.
23 Id.
or pertinent” to this Motion because Chief Judge Brown raised a new legal theory the
parties had not yet briefed, and the parties have now briefed the issue.
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.24 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.”25 While all reasonable
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.”26 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.27
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.”28 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
24 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).
25 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)
(citations omitted).
26 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
27 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
28 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
reasonable fact-finder to return a verdict in favor of the moving party.”29 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.30 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.’”31
III. ANALYSIS
BEEOO aptly characterizes GIS’s instant Motion as a second bite at the apple,
stating that, despite the passage of time, “neither the law, nor the facts have changed.
Rather, GIS hope for a different result now that the case has been transferred.”32
Chief Judge Brown’s previous order denying summary judgment on this issue is law
of the case insomuch as it determined that summary judgment on this issue is
inappropriate barring a significant change in circumstances. “The law of the case
doctrine ‘expresses the practice of courts generally to refuse to reopen what has been
decided, not a limit to their power.’”33 “The doctrine applies not only to issues decided
explicitly, but also to everything decided ‘by necessary implication.’”34
29 Id. at 1265.
30 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
31 Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
32 R. Doc. 278 at 1.
33 Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 246 (5th Cir. 2006) (citing Messinger v.
Anderson, 225 U.S. 436 (1912)).
34 Id. (citing Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989)).
Here, Chief Judge Brown issued an order in this case denying partial summary
judgment on this exact issue. She did so because (1) issues of material fact existed as
to whether GIS and BEEOO are parties to the MSA;35 and (2) material facts existed
regarding whether GIS’s wrongful act prompted the previous litigation.36 After
finding that there is a genuine issue of material fact in dispute as to whether GIS’s
wrongful act prompted the previous litigation, Chief Judge Brown also noted in the
Conclusion that “Additionally, the Court notes that neither party has fully briefed
these issues.”37 Here, although the parties have now briefed the issue of whether to
follow the reasoning of Kadlec Medical Center v. Lakeview Anesthesia Associates38
and Theriot v. State Farm Mutual Auto Insurance Company,39 the issues of material
fact that Chief Judge Brown found precluded summary judgment on this issue remain
at play.40 Indeed, much of the argument made by GIS is the exact same argument
that Chief Judge Brown found non-dispositive of this issue.41 Further, there are other
disputed issues that make summary judgment on this issue inappropriate at this
35 R. Doc. 225 at 16.
36 Id. at 19.
37 Id. at 20.
38 527 F.3d 412 (5th Cir. 2008).
39 No. 17-1688, 2019 WL 1320009, at *3 (W.D. La. Mar. 22, 2019).
40 In its Reply, GIS argues that BEEOO’s failure to cite evidence in contesting each alleged fact GIS
stated in its Rule 56.1 Statement of Contested and Uncontested Facts is significant and alters the
status of this litigation. GIS overreads the precedents it relies on and the Local Rules, and also
misunderstands many of BEEOO’s objections GIS’s Statement of Contested and Uncontested Facts.
As an initial matter, the Court notes that many of the facts listed in GIS’s Rule 56.1 Statement have
questionable relevance to this Motion. Further, many of BEEOO’s objections dealt with GIS’s
characterization of the evidence it cited to, and contrary evidence wouldn’t necessarily exist for such
an objection. Moreover, the cases GIS relies on deal with situations where parties failed to present
evidence in opposition to the heart of a summary judgment motion, not where they failed to cite
evidence in response to assertions made in a statement required by local rules. GIS’s argument seeks
too much, and the Court declines to deem those facts admitted at this stage.
41 Compare R. Doc. 97-1 (GIS’s Memorandum in Support of its Initial Motion) with R. Doc. 247-2 (GIS’s
Memorandum in Support of its Instant Motion) (making similar, and at times verbatim, arguments).
juncture. For example, even were the Court to find that BEEOO may not collect
attorneys’ fees, the parties dispute even which costs are properly characterized at
attorneys’ fees. Accordingly, the Court will again deny summary judgment.’
IV. CONCLUSION
IT IS HEREBY ORDERED that GIS’s Motion is DENIED.
New Orleans, Louisiana, February 23, 2021.
WENDY B. VI TER
UNITED STATES DISTRICT JUDGE
42 The Court notes that it reads Chief Judge Brown’s Order narrowly, insomuch as it found that
summary judgment on this issue was inappropriate notwithstanding further factual development. For
clarity, the Court does not find that it is law of the case that Theriot is inapplicable here, or that the
damages at issue are necessarily recoverable under the reasoning of the Restatement (Second) of Torts.
Indeed, that exact question was discussed but left open by Chief Judge Brown’s opinion. Those issues
remain pending a determination following trial in this matter.