Petri v. Kestrel Oil & Gas Props., L.P.

• Decision Date: 15 March 2012
• Docket Number: H–10–CV–497.,Civil Action Nos. H–09–3994,H–10–CV–122
• Court: U.S. District Court — Southern District of Texas
• Parties: Debbie Ann PETRI, as Administrator of the Estate of Paul Torres, Deceased, and as Guardian and Next Friend of Patrick Damian Torres, a Minor Child and Sole Heir of the Estate of Paul Torres, Deceased, Plaintiffs, Trinidad O. Torres and Jesusita M. Torres, Intervenors, v. KESTREL OIL & GAS PROPERTIES, L.P., et al., Defendants.

878 F.Supp.2d 744

Debbie Ann PETRI, as Administrator of the Estate of Paul Torres, Deceased, and as Guardian and Next Friend of Patrick Damian Torres, a Minor Child and Sole Heir of the Estate of Paul Torres, Deceased, Plaintiffs,Trinidad O. Torres and Jesusita M. Torres, Intervenors,

v.KESTREL OIL & GAS PROPERTIES, L.P., et al., Defendants.

Civil Action Nos. H–09–3994, H–10–CV–122, H–10–CV–497.

United States District Court,

S.D. Texas,

Houston Division.

March 15, 2012.

Alto V. Watson, III, Gilbert T. Adams, Law Offices of Gilbert T. Adams PC, Beaumont, TX, for Plaintiffs.

Jill Annette Schaar, John Baxter Hall, Marcus Alvin Carter, Roger L. McCleary, Jon C. Vicklund, Beirne, Maynard & Parsons, Robert D. Brown, Donato Minx, et al., Houston, TX, Charles H. Smith, Smith Moore PLLC, Dallas, TX, for Defendants.

OPINION AND ORDERS OF SUMMARY JUDGMENT

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced wrongful death and survivor action brought by Debbie Ann Petri as Administrator Paul Torres' estate and as Guardian and Next Friend of his minor heir, Patrick Damian Torres, removed from state court on federal jurisdiction under the Outer Continental Shelf Lands Act, are the following motions: (1) Defendant Peregrine Oil & Gas II, L.L.C's motion for summary judgment (# 125) ¹; (2) Defendants Malcolm Good and Rotorcraft Leasing Company's motion for summary judgment (# 134) and motion to consider their unopposed motion for summary judgment (# 292); (3) Defendants Shell Offshore Inc. and Shell Oil Company's motion for summary judgment (# 145) and motion to consider their unopposed motion for summary judgment (# 296); (4) Defendant Wood Group Production Services, Inc.'s motion for partial summary judgment (# 146), motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(e) ( # 156), and motion to bifurcate trial of separate issues (# 208); (5) Peregrine Oil & Gas II, L.L.C.'s motion in limine (# 218); and (6) Wood Group Production Services, Inc.'s motion in limine (# 220).

The governing pleading is Plaintiffs' Second Amended Original Complaint (# 130). It alleges that Plaintiff Decedent Paul Torres (“Torres”) was working in the course and scope of his employment for Wood Group Production Services, Inc. on an unseaworthy oil rig owned and/or operated by Defendant Peregrine Oil and Gas II, LLC when he was swept off the rig by heavy seas and killed. ² The complaint asserts gross negligence and/or malice against Defendant Wood Group Production Services, Inc., negligence against Shell Oil Company and Shell Offshore, Inc., and negligence and gross negligence against the other Defendants, acting in concert and individually, jointly and severally. The Court will address the specific claims against each as it reviews the relevant motions.

Standard of Review

Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).³ The movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law governing the claims identifies the essential elements and thus indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where the non-movant bears the burden of proof at trial, the movant need only point to the absence of evidence to support an essential element of the non-movant's case; the movant does not have to support its motion with evidence negating the non-movant's case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

If the movant succeeds, the non-movant must come forward with “evidence such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The non-movant “must come forward with ‘specific facts showing there is a genuine issue for trial.’ ” Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A factual dispute is deemed ‘genuine’ if a reasonable juror could return a verdict for the nonmovant, and a fact is considered ‘material’ if it might affect the outcome of the litigation under the governing substantive law.” Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5th Cir.1993). Summary judgment is proper if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp., 477 U.S. at 322–23, 106 S.Ct. 2548;Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). Although the court draws all reasonable inferences in favor of the non-movant, the non-movant “cannot defeat summary judgment with conclusory, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Med. Center, 476 F.3d 337, 343 (5th Cir.2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant's burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir.1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). Pleadings are not competent summary judgment evidence. Little, 37 F.3d at 1075;Wallace v. Texas Tech. U., 80 F.3d 1042, 1045 (5th Cir.1996).

A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. EEOC v. Chevron Phillips, 570 F.3d 606, 612 n. 3 (5th Cir.2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir.1999). Nor does the court have to sift through the record in search of evidence to support opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998).

A motion for summary judgment cannot be granted merely because no opposition has been filed, even though a failure to respond violates a local rule. Hibernia National Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985), citing John v. State of La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 709 (5th Cir.1985). “The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion regardless of whether any response was filed.” Id., citing id. at 708. A decision to grant summary judgment based only on default is reversible error. Id. Even if a plaintiff fails to file a response to a dispositive motion despite a local rule's mandate that a failure to respond is a representation of nonopposition, the Fifth Circuit has rejected the automatic granting of dispositive motions without responses without the court's considering the substance of the motion. Watson v. United States, 285 Fed.Appx. 140, 143 (5th Cir.2008), citing Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir.2006), and John v. Louisiana, 757 F.2d 698, 708–09 (5th Cir.1985). “The mere failure to respond to a motion is not sufficient to justify a dismissal with prejudice.” Id.

Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” When a district court reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965,citing5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) [“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ”), citing Twombly, 127 S.Ct. at 1974.See also Alpert v. Riley, No. H–04–CV–3774, 2008 WL 304742, *14 (S.D.Tex. Jan. 31, 2008). “ ‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). Dismissal is appropriate when the plaintiff fails to allege “ ‘enough facts to state a claim to relief that is plausible on its face’ ” and therefore fails to “ ‘raise a right to relief above the speculative level.’ ” Montoya, 614 F.3d at 148...