The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
PHI, INC. CIVIL ACTION NO. 6:13-cv-00015
VERSUS MAGISTRATE JUDGE HANNA
APICAL INDUSTRIES, INC., ET AL. BY CONSENT OF THE PARTIES
MEMORANDUM RULING
Currently pending is the motion for summary judgment and/or motion for
judgment on the pleadings that was filed by defendant Apical Industries, Inc. (Rec.
Doc. 350). The motion is opposed. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained below, the motion is
DENIED.
Background
In December 2011, the engine in one of PHI’s helicopters failed, causing the
pilot to make an emergency landing in the Gulf of Mexico. The pilot successfully
engaged the helicopter’s float system and landed in the water. The pilot and
passenger safely exited the helicopter in life rafts and were recovered without injury.
After the helicopter remained afloat for some time, one of the floats deflated and the
helicopter capsized. The helicopter’s engine and electronic components were
completely immersed in salt water, rendering the helicopter a total loss.
PHI filed suit in Louisiana state court against Rolls-Royce Corporation (the
manufacturer of the engine), Apical Industries, Inc. (the manufacturer of the float
system), and Offshore Helicopter Support Services, Inc. (“OHS”) (the company that
maintained and serviced the float system), seeking to recover for the loss of the
helicopter. The suit was removed to federal court. PHI’s claim against Rolls-Royce
was then severed and transferred to the United States District Court for the Southern
District of Indiana, and it was settled before trial.
In November 2017, PHI’s claims against Apical and OHS were tried to a jury.
Before trial, this Court excluded evidence regarding the cause of the engine failure
and Rolls-Royce’s liability. Following trial, the jury found that the right-hand rear
float manufactured and sold by Apical contained a redhibitory defect that caused the
loss of the helicopter. The jury also found that OHS was not liable. The jury
awarded $2,180,000 in damages. Because Apical was not responsible for the loss
of the engine, the sum of $450,230.00 was deducted from the jury’s award to account
for the value of the engine, leaving a net award of $1,729,770.
Apical appealed, and the Fifth Circuit Court of Appeals vacated the verdict in
part and remanded the matter for trial. Apical then filed the instant motion for
summary judgment and/or judgment on the pleadings. (Rec. Doc. 350).
Law and Analysis
A. The Applicable Standards
Under Fed. R. Civ. P. 12(c), a party may move for judgment on the pleadings
after the pleadings are closed but early enough not to delay trial. A motion for
judgment on the pleadings under Rule 12(c) is subject to the same standard as a
motion to dismiss under Rule 12(b)(6).1 The central issue is whether, in the light
most favorable to the plaintiff, the complaint states a valid claim for relief.2
Although the factual allegations in the pleadings must be accepted as true, a plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.”3
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof
of its existence or nonexistence might affect the outcome of the lawsuit under the
1 Ackerson v. Bean Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009); Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008).
2 Doe v. MySpace, Inc., 528 F.3d at 418; Hughes v. Tobacco Institute, Inc., 278 F.3d 417,
420 (5th Cir. 2001).
3 Doe v. MySpace, Inc., 528 F.3d at 418 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
applicable governing law.4 A genuine issue of material fact exists if a reasonable
jury could render a verdict for the nonmoving party.5
B. Do PHI’s Factual Allegations Constitute Judicial Admissions?
In support of its motion, Apical argued that certain factual allegations set forth
in PHI’s amended complaint and reiterated in other pleadings filed in this lawsuit
and in the Indiana action constitute judicial or evidentiary admissions that “establish
all factual elements necessary for the Court to rule as a matter of law that the Rolls-
Royce engine was defective and that Rolls-Royce is solidarily liable with Apical for
the $1,729,770 in damages awarded to PHI for the loss of is Helicopter.” (Rec. Doc.
350-1 at 5). Apical directed the court’s attention to the allegations set forth in
Paragraphs 7 and 11 through 19 of PHI’s first amended complaint, which was filed
into the suit record in January 2013 (Rec. Doc. 15) and argued that those allegations,
when deemed to be judicial or evidentiary admissions, are sufficient to support the
conclusion that Rolls-Royce’s engine was defective, caused the incident in which
PHI’s helicopter was lost, and warrant a finding that Rolls-Royce was solidarily
liable with Apical for PHI’s proven damages.
4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000).
5 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. at 252); Hamilton v. Segue Software, Inc., 232 F.3d at 477.
“A judicial admission is a formal concession in the pleadings or stipulations
by a party or counsel that is binding on the party making them. Although a judicial
admission is not itself evidence, it has the effect of withdrawing a fact from
contention.”6 Statements made by a party in pleadings or briefs may be treated as
binding judicial admissions of fact.7 Factual allegations in a party’s pleadings in one
case may be admissible as evidentiary admissions of that party in another case.8
Whether to treat such statements as binding facts is within the court’s discretion.9
To qualify as a judicial admission, the statement must be (1) made in a judicial
proceeding; (2) contrary to a fact essential to the theory of recovery; (3) deliberate,
clear, and unequivocal; (4) such that giving it conclusive effect meets with public
policy; and (5) about a fact on which a judgment for the opposing party can be
based.10 “A statement. . . may be considered a judicial admission if it was made
intentionally as a waiver, releasing the opponent from proof of fact.”11 A party may
6 Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001).
7 City Nat. Bank v. U.S., 907 F.2d 536, 544 (5th Cir. 1990); Davis v. A.G. Edwards and Sons,
Inc., 823 F.2d 105, 108 (5th Cir. 1987); White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th
Cir. 1983).
8 Hardy v. Johns-Manville Sales Corp., 851 F.2d 742, 745 (5th Cir. 1988).
9 City Nat. Bank v. U.S., 907 F.2d at 544; McGee v. O & M Boat Co., 412 F.2d 75, 76 (5th
Cir. 1969).
10 Heritage Bank v. Redcom Laboratories, Inc., 250 F.3d 319, 329 (5th Cir. 2001).
11 Martinez v. Bally's Louisiana, Inc., 244 F.3d at 476.
not rebut a judicial admission made in its pleadings with new evidence or
testimony.12
In this case, Apical seeks to have this Court deem it judicially admitted that
the Rolls-Royce engine in the lost helicopter was defective and its defective
condition was a cause of the incident in which the helicopter was lost. But there is
no indication that PHI intended, when these allegations were included in its
pleadings, to release any party, including itself, from the burden of having to prove
these alleged facts nor were these alleged facts contrary to PHI’s theory of recovery.
PHI countered that “statements concerning the liability of the settling defendants are
at best evidentiary admissions, which are not conclusive.”13 Furthermore, an
exception to the rule that a party’s factual allegations constitute evidentiary
admissions exists when inconsistent positions are taken in pleadings in a
complicated joinder situation, involving the contingent liability of third parties.14
This case certainly presented a complicated joinder situation, which arguably
warrants deviation from the general rule. Furthermore, even if the cited factual
allegations were deemed to be judicial admissions by PHI, PHI would be precluded
12 Giddens v. Community Educ. Centers, Inc., 540 Fed. App’x 381, 391 n. 3 (5th Cir. 2013)
(citing Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987)).
13 Whatley v. Armstrong World Industries, Inc., 861 F.2d 837, 839 n. 2 (5th Cir. 1988).
14 Hardy v. Johns-Manville Sales Corp., 851 F.2d 742, 746 n. 5 (5th Cir. 1988) (citing
Continental Insurance Company of New York v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971)).
from attempting to disprove those facts at trial but Apical’s burden of proving that
Rolls-Royce’s engine was defective and caused the helicopter to crash would not be
lessened. Therefore, deeming PHI’s factual allegations to be judicial admissions
would not be enough to satisfy Apical’s burden under either Rule 12(c) or Fed. R.
Civ. P. 56.
Exercising its discretion, this Court therefore declines to find that the cited
allegations in PHI’s amended complaint constitute judicial or evidentiary admissions
sufficient to support either judgment on the pleadings or summary judgment in
Apical’s favor.
C. The Mandate Rule
This Court further finds that Apical’s argument must yield to the mandate rule.
The mandate rule is a specific application of the general doctrine of law of the case.15
Under the mandate rule, a district court “must implement both the letter and the spirit
of the appellate court’s mandate and may not disregard the explicit directives of that
court.”16 As the Fifth Circuit has said, “[t]he mandate rule requires a district court
15 United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).
16 United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (quoting United States v. Matthews,
312 F.3d at 657).
on remand to effect our mandate and to do nothing else.”17 In implementing the
mandate, the district court must “tak[e] into account the appellate court's opinion
and the circumstances it embraces.”18 “The mandate rule simply embodies the
proposition that a district court is not free to deviate from the appellate court’s
mandate.”19
The Fifth Circuit has recognized “several exceptions to the rule, including
where the district court considers new evidence, where there is an intervening
change in law, or where ‘the earlier decision is clearly erroneous and would work a
manifest injustice.’”20 Thus, “it is a discretionary rule that can be set aside in certain
circumstances.”21
17 Deutsche Bank National Trust Co. v. Burke, 902 F.3d 548, 551 (5th Cir. 2018) (citation
omitted); Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (citation
omitted).
18 United States v. Lee, 358 F.3d at 321 (quoting Sobley v. Southern Natural Gas Co., 302
F.3d 325, 333 (5th Cir.2002) (citing Tollett v. City of Kemah, 285 F.3d 357, 364 (5th Cir. 2002)
(internal citation omitted)).
19 Boeta v. Federal Aviation Administration, 736 Fed. App’x 453, 456 (5th Cir. 2018) (quoting
United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998), abrogated on other grounds as
recognized in United States v. Farias, 481 F.3d 289, 291-92 (5th Cir. 2007)); Tollett v. City of
Kemah, 285 F.3d 357, 364 (5th Cir. 2002) (citations omitted).
20 Webb v. Davis, 940 F.3d 892, 897 (5th Cir. 2019) (quoting United States v. Pineiro, 470
F.3d 200, 205-06 (5th Cir. 2006)).
21 Webb v. Davis, 940 F.3d at 897 (citing United States v. Teel, 691 F.3d 578, 583 (5th Cir.
2012)).
Apical did not argue that any of these exceptions to the mandate rule are
applicable in this case. Apical did not present any new evidence, did not point out a
change in the law, and did not argue that the Fifth Circuit’s ruling was clearly
erroneous or would be unjust if applied. However, neither Apical nor PHI directly
addressed the mandate rule in their briefing.
Instead, Apical focused on the effect of certain factual allegations contained
in PHI’s first amended complaint and argued that those allegations, when deemed to
be judicial or evidentiary admissions, are sufficient to support the conclusion that
Rolls-Royce’s engine was defective, caused the incident in which PHI’s helicopter
was lost, and warrant a finding that Rolls-Royce was solidarily liable with Apical
for PHI’s damages. But Apical’s argument is contrary to the Fifth Circuit’s express
finding that there is a genuinely disputed material issue of fact that must be resolved
by a jury. Therefore, adopting Apical’s argument would require this Court to
deliberately fail to comply with the mandate rule.
In this case, compliance with the mandate rule will require this Court to hold
a jury trial. In its ruling issued as mandate, the Fifth Circuit Court of Appeals
expressly found that “a dispute of fact exists as to whether damages for any non-
waived defects are recoverable.”22 The Fifth Circuit further found that “this dispute
22 PHI, Inc. v. Apical Industries, Inc., 946 F.3d 772, 776 (5th Cir. 2020).
of fact is material, and thus should have been put to the jury, because Rolls-Royce
may be a solidary obligor under Louisiana law along with Apical. Should a jury so
find, Apical would be entitled to a reduction in the damages award against it.”23 In
other words, the Fifth Circuit concluded that there is a genuinely disputed issue of
material fact concerning whether a defective condition of the Rolls-Royce engine
caused the loss of the helicopter. The Fifth Circuit further stated that it was
“require[ing] a trial on whether Rolls-Royce is also responsible for the loss of the
helicopter such that it is a solidary obligor, along with Apical, entitling Apical to a
reduction in the amount of damages it owes to PHI.”24 The Fifth Circuit also noted
that a jury finding is required on the issue of solidary liability because it presents a
mixed question of law and fact.25 Near the end of its ruling, the Fifth Circuit
reiterated that it was “requiring a trial on this issue.”26 Furthermore, the Fifth Circuit
referenced PHI’s amended complaint in its ruling.27 Therefore, it must be assumed
that the Fifth Circuit was aware of the allegations set forth in the cited paragraphs of
the amended complaint. Still, however, the Fifth Circuit found that a material factual
23 PHI, Inc. v. Apical Industries, Inc., 946 F.3d at 776.
24 PHI, Inc. v. Apical Industries, Inc., 946 F.3d at 779.
25 PHI, Inc. v. Apical Industries, Inc., 946 F.3d at 779.
26 PHI, Inc. v. Apical Industries, Inc., 946 F.3d at 779.
27 PHI, Inc. v. Apical Industries, Inc., 946 F.3d at 774 n. 1.
dispute exists that must be resolved by a jury. Thus, the Fifth Circuit – without
specifically mentioning the concept of judicial or evidentiary admissions – failed to
find that the factual allegations set forth in PHI’s amended complaint are sufficient
to support summary judgment on the issue of Roll-Royce’s liability for the loss of
the helicopter. Critically, the Fifth Circuit clearly stated that this issue must be
decided by a jury.
In opposition to Apical’s motion, PHI argued that the motion should be denied
because it was untimely and because Apical failed to raise the solidary obligation
issue as an affirmative defense. This Court finds that both of those arguments are
subsumed by the mandate rule. The Fifth Circuit ordered that a new trial be held to
resolve the issue of whether Rolls-Royce’s engine caused the loss of the helicopter
and, if so, whether Apical and Rolls-Royce are solidary obligors. This Court cannot
find that Apical waived the solidary obligation issue because that would result in a
failure to comply with the appellate court’s mandate that the issue be put to a jury.
Similarly, this Court cannot grant summary judgment in Apical’s favor because that
would result in a failure to comply with the appellate court’s mandate.
Consequently, PHI’s timeliness and waiver arguments are irrelevant. This Court
was ordered to hold a jury trial, and that is what it will do.
Conclusion
In this case, compliance with the mandate rule requires that this Court hold a
jury trial. The Fifth Circuit Court of Appeals expressly found that certain genuine
issues of material fact exist, vacated this Court’s judgment in part, and remanded the
action to this Court, requiring that a jury trial be held. Accordingly,
IT IS ORDERED that Apical’s motion for summary judgment or judgment
on the pleadings (Rec. Doc. 350) is DENIED.
IT IS FURTHER ORDERED that a jury trial will be scheduled in due course.
Signed at Lafayette, Louisiana, this 7" day of May 2020.
_ fe
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
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