Donation v. BP Exploration & Prod., Inc., CIVIL ACTION NO. 14-1525

• Decision Date: 03 February 2016
• Docket Number: CIVIL ACTION NO. 14-1525
• Parties: EDWARD WISNER DONATION ET AL. v. BP EXPLORATION & PRODUCTION, INC.
• Court: U.S. District Court — Eastern District of Louisiana

EDWARD WISNER DONATION ET AL. v. BP EXPLORATION & PRODUCTION, INC.

CIVIL ACTION NO. 14-1525

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

February 3, 2016

MAGISTRATE JUDGE JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTIONS

Plaintiff, the Edward Wisner Donation ("Wisner"), is a juridical entity that owns coastal Louisiana land, including what is known as Fourchon Beach. Wisner's land allegedly was damaged by the Deepwater Horizon explosion and oil spill in the Gulf of Mexico on April 10, 2010. It was also used in the response and cleanup efforts undertaken after the disaster. Defendant, BP Exploration & Production, Inc. ("BP"), is the adjudicated principal wrongdoer responsible for both the disaster and the cleanup. See generally In re Oil Spill by Oil Rig Deepwater Horizon, 21 F. Supp. 3d 657 (E.D. La. 2014). On August 23, 2010, Wisner and BP entered an Access Agreement that granted BP access to Wisner's Fourchon Beach property "for the purpose of cleanup operations related to the [Deepwater Horizon] oil spill." Record Doc. No. 132-4, Plaintiff's Exh. 2, Access Agreement, ¶ 1. This breach of contract action arises from that agreement.

Both parties filed motions for partial summary judgment. Record Doc. Nos. 132 (plaintiff), 134 (defendant). Wisner seeks summary judgment on two issues: "(1) as a matter of clear interpretation of the contract, the Access Agreement may only be reasonably interpreted to require BP to restore the damage caused by its clean-up operations; and (2) BP's failure to provide Wisner with waste manifests, critical reports, and oil testing" breached the contract. Plaintiff's memorandum in support, Record Doc. No. 132-1 at p. 1. BP seeks summary judgment on all of plaintiff's claims, except for a certain portion of plaintiff's expenses ($142,375.91) allegedly due under the contract, as to which BP admits there are disputed issues of fact for trial. Record Doc. No. 134-33 at pp. 8-9.

Having considered the voluminous written submissions, the record, the oral arguments of counsel and the applicable law, IT IS ORDERED that plaintiff's motion for partial summary judgment is DENIED, and that defendant's motion for partial summary judgment is GRANTED IN LIMITED PART AND DENIED IN SUBSTANTIAL PART for the following reasons.

I. APPLICABLE STANDARDS

(A) Standards for Summary Judgment Motions

"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is 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).

Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate elements of the nonmoving party's case. Capitol Indem. Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "[A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produceadmissible evidence to carry its burden as to [a particular material] fact." Advisory Committee Notes, at 261.

A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). No genuine dispute of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).

To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must cite to particular evidence in the record to support the essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex rel. Patton v. Shaw Servs., L.L.C., 418 F. App'x 366, 371 (5th Cir. 2011). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F. App'x at 371.

If the movant bears the burden of proof on an issue, either because the movant is the plaintiff or is a defendant asserting an affirmative defense, the movant must "'establish beyond peradventure all of the essential elements of the [claim or] defense'" to warrant judgment in its favor. United States v. Renda Marine, Inc., 667 F.3d 651, 659 (5th Cir. 2012) (quoting Addicks Serv., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir. 2010)). "This means that [a moving plaintiff] must demonstrate that there areno genuine and material fact disputes on any of the essential elements of each claim." Robax Corp. v. Prof'l Parks, Inc., No. 3:07-CV-1399-D, 2008 WL 3244150, at *2 (N.D. Tex. Aug. 8, 2008) (citing Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)) (quotation omitted); accord Lloyd v. Lawrence, 472 F.2d 313, 318 (5th Cir. 1973).

"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted) (emphasis in original). "Conclusory allegations unsupported by specific facts . . . will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Nat'l Ass'n of Gov't Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249).

"Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotationomitted) (emphasis in original); accord Duron v. Albertson's LLC, 560 F.3d 288, 291 (5th Cir. 2009).

(B) Standards of Contract Interpretation

This breach of contract action is governed by Louisiana substantive law. "The contract is the law between the parties. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. Courts may not disregard a clear and explicit clause of a contract." Indus. Roofing & Sheet Metal Works, Inc. v. J.C. Dellinger Mem'l Trust, 751 So. 2d 928, 933 (La. App. 2d Cir. 1999) (citations omitted); accord Clovelly Oil Co. v. Midstates Petroleum Co., 112 So. 3d 187, 192 (La. 2013).

"In Louisiana the construction of an unambiguous contract is a question of law." Tubos de Acero de Mex., S.A. v. Am. Int'l Inv. Corp., 292 F.3d 471, 486 (5th Cir. 2002). "The meaning and intent of the parties to the written contract in such cases must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence." First S. Farm Credit, ACA v. Gailliard Farms, Inc., 880 So. 2d 223, 225 (La. App. 2d Cir. 2004). Louisiana's rules of contract construction

"do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of [a] new contract when the terms express with sufficient clearness the parties' intent. The fact that one party may create a dispute about the meaning of a contractual provision does not render the provision ambiguous."

Chevron USA Inc. v. Santa Fe Snyder, 69 F. App'x 658, 2003 WL 21355979, at *2 (5th Cir. May 22, 2003) (quoting Campbell v. Melton, 817 So. 2d 69, 76 (La. 2002)).

"The words of a contract 'are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning.'" Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 181 (5th Cir. 2007) (citing La. Civ. Code art. 2047) (quoting Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003)); accord Clovelly Oil Co., 112 So. 3d at 192.

"[A] contract must be viewed as a whole and, if possible, practical effect given to all its parts, according to each the sense that results from the entire agreement so as to avoid

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