United States District Court,

D. Kentucky,

Southern Division,

Pikeville.

Elizabeth CHRISTENSEN, Administratrix of the Estate of Mayfield Pennington, Plaintiff,

v.

ATS, INC., et al., Defendants.

 

Civil No. 14–24–ART.

Signed May 30, 2014.

 

Michael Shane Hall, Shane Hall Attorney at Law, PLLC, Pikeville, KY, for Plaintiff.

 

Daniel E. Murner, Elizabeth Johnson Winchell, Landrum & Shouse LLP, Lexington, KY, for Defendants.

 

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

*1 Just as Cerberus stood watch at the entrance to Hades, the plaintiff’s many-headed theory of tort liability guards against removing this case from state to federal court. This Court lacks jurisdiction over this matter unless the defendants can demonstrate that none of the plaintiff’s theories could possibly succeed against defendant Bailey’s Furniture, LLC, whose presence as a defendant destroys federal diversity jurisdiction. Since the defendants have successfully defeated each of the plaintiff’s theories, the Court will deny the plaintiff’s motion to remand this case to the Kentucky court whence it came and dismiss Bailey’s Furniture as a defendant.

 

BACKGROUND

The trouble started when Bailey’s Furniture placed an order for mattresses with Corsicana Bedding. R. 1–2. Edward O. Carter, a truck driver employed by ATS, Inc., R. 1 at 2–3, picked up those mattresses from Corsicana Bedding and transported them to Bailey’s Furniture, in Salyersville, Kentucky, R. 12–2. After Carter left Bailey’s Furniture, he continued on his way toward Pikeville, Kentucky. Id. En route, he collided with Mayfield Pennington’s vehicle, and Pennington died as a result of injuries sustained during the accident. R. 1–1 at 6–10; R. 12–3.

 

The plaintiff, as administratrix of Pennington’s estate, filed suit in state court. R. 1–1 at 4. She brought state-law tort claims against three defendants: ATS, a Minnesota citizen; Carter, a Tennessee citizen; and Bailey’s Furniture, a Kentucky citizen. Id . at 5. As relevant here, she alleged that Bailey’s Furniture was negligent when it failed to exercise ordinary care in transacting business with ATS and Carter. Id. at 9. She also alleged, pursuant to Ky.Rev.Stat. § 446.070, that Bailey’s Furniture was negligent per se because it violated a state statutory duty of care. Id. at 9–10. The defendants quickly removed the case to federal court pursuant to 28 U.S.C. § 1441, R. 1, and the plaintiff moved to remand the case shortly thereafter, R. 9.

 

DISCUSSION

Because the plaintiff presented no federal question in her state-court complaint, only one possible basis for federal jurisdiction remains: diversity. The Court possesses diversity jurisdiction under 28 U.S.C. § 1332 where there is complete diversity between the parties. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005). That is, a plaintiff cannot share her state of citizenship with any defendant and still pursue her claims in federal court. In this case, both the plaintiff and Bailey’s Furniture are Kentucky citizens. See R. 1 at 2; see also 28 U.S.C. § 1332(c)(2) (ascribing the decedent’s citizenship to the legal representative of his estate).

 

To avoid remand for lack of diversity jurisdiction, the defendants contend that the plaintiff fraudulently joined Bailey’s Furniture to defeat federal jurisdiction. R. 1 at 2–3. Under the doctrine of fraudulent joinder, federal courts may sever a non-diverse defendant from the case if the claim against him is so frivolous that its only conceivable purpose is to destroy diversity and prevent removal. Murriel–Don Coal Co. v. Aspen Ins. UK Ltd., 790 F.Supp.2d 590, 594 (E.D.Ky.2011). To obtain this relief, the removing party must demonstrate that the plaintiff has “no colorable cause of action” against the non-diverse defendant. Saginaw Hous. Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir.2009). If the plaintiff has even a “glimmer of hope,” then any charge of fraudulent joinder fails, Murriel–Don Coal Co., 790 F.Supp.2d at 597 (internal quotation marks and citation omitted), and the Court must remand the case to state court for want of subject-matter jurisdiction, Saginaw Hous. Comm’n, 576 F.3d at 624.FN1

 

I. The Plaintiff Did Not State a Colorable Claim of Negligence Per Se.

*2 The plaintiff’s first claim is for negligence per se. In Kentucky, negligence per se is “merely a negligence claim with a statutory standard of care substituted for the common law standard of care.” Young v. Carran, 289 S.W.3d 586, 588–89 (Ky.Ct.App.2008) (internal quotation marks omitted). The legislature codified this common law doctrine as Ky.Rev.Stat. § 446.070, which provides that “[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.”   Young, 289 S.W.3d at 589. Interpreting this statute, Kentucky courts have identified several conditions that must exist before liability may attach. First, § 446.070’s “any statute” language refers only to Kentucky statutes and does not include federal law or local ordinances. Id . Next, the statute in question cannot provide an inclusive civil remedy. Id. The plaintiff must be within the class of persons the statute is intended to protect, id., and the legislature must have intended the statute to prevent the type of occurrence that took place, McCarty v. Covol Fuels No. 2, LLC, No. 4:10–cv–11, 2013 WL 5657599, at *6 (W.D.Ky. Oct.16, 2013) (citing Lewis v. B & R Corp., 56 S.W.3d 432, 438 (Ky.Ct.App.2001)). Finally, the violation must have been a substantial factor in causing the plaintiff’s injury. Id.

 

The fate of the plaintiff’s motion to remand hangs on whether Bailey’s Furniture had, and breached, a statutory duty of care. Analyzing this requires the Court to unpack the legal equivalent of Russian matryoshka dolls: a series of nested federal and state regulations and statutes. See McClung v. Songer Steel Servs., Inc. ., No. 2:12–341, 2014 WL 793133, at *9 n. 8 (W.D.Pa. Feb.26, 2014) (describing matryoshka dolls as “a set of wooden dolls of decreasing size placed one inside the other” (internal quotation marks omitted)). As the plaintiff explains, pursuant to the Federal Motor Safety Carrier Regulations (“FMCSR”), no one may operate a commercial motor vehicle without tires bearing a sufficiently deep tread groove pattern.FN2 R. 10 at 6 (citing 49 C.F.R. § 393.75); see also R. 10–1 (police report citing Carter for violating this regulation). Kentucky has absorbed this portion of the FMCSR into its administrative regulations. 601 Ky. Admin. Reg. 1:005. Administrative regulations have the force and effect of law in Kentucky, see Centre College v. Trzop, 127 S.W.3d 562, 566 (Ky.2003), and a Kentucky statute renders it unlawful “for the owner, or any other person, employing or otherwise directing the operator of any vehicle, to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law,” Ky.Rev.Stat. § 189.224. The upshot is this: for Bailey’s Furniture to have violated a statutory duty of care, it must (1) be an owner or other person, (2) have employed or otherwise directed Carter, and (3) have required or knowingly permitted him to operate his vehicle upon the highway with a tread groove pattern that violated the FMCSR.

 

*3 The first prong of this analysis poses no problems for the plaintiff: Bailey’s Furniture plausibly qualifies as an “other person.” The second prong is harder, but ultimately tilts in the plaintiff’s favor. Bailey’s Furniture did not employ Carter (ATS did), but what does it mean to direct him? Might something as simple as giving Carter instructions on how to continue on his journey (e.g., “turn left at the light, merge onto the highway, and drive straight for 15 miles”) suffice? Common sense counsels against giving the word “direct” such an expansive interpretation that it captures the recipients of shipments. See R. 18 at 2 (describing a parade of horribles that could ensue if Kentucky makes buyers liable for tortious behavior during the course of the delivery of goods by a third party hired by the seller); Collins v. Buddy Moore Trucking, Inc., No. 11–173, 2012 WL 424890, at *3 (E.D.Ky. Feb.9, 2012) (same). But common sense alone does not rule the day in fraudulent joinder cases, and the Court acknowledges that “direct” remains ambiguous in the absence of Kentucky precedent interpreting the statutory language. See Banks v. Dep’t of Educ., Bureau of Rehab., 462 S.W.2d 428, 430 (Ky.1971) (making only a passing reference to § 189.224 in the only known state case to rely on the statute). The Court must resolve any ambiguities in the controlling state law in favor of the plaintiff. Walker v. Philip Morris USA, Inc., 443 F. App’x 946, 951 (6th Cir.2011) (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.1994)). “All doubts as to the propriety of removal are resolved in favor of remand.” Id. (citing Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999)). Accordingly, the Court will assume that even de minimis directions by the recipient of a shipment of goods could trigger liability under § 189 .224.

 

The plaintiff’s ship ultimately founders on the rocky shoals of the third prong. The relevant statutory language is this: “knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law.” Ky.Rev.Stat. § 189.224. Construed according to ordinary principles of statutory interpretation, the word “knowingly” applies to the entire object of the transitive verb, “to permit.” See Flores–Figueroa v. United States, 556 U.S. 646, 650–53, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) (explaining how to construe statutes containing “knowingly” according to ordinary usage and statutory interpretation principles). Thus, in the statute at issue here, knowingly modifies “in any manner contrary to law”—meaning that Bailey’s Furniture must have known of the wretched state of Carter’s tread grooves for liability to arise under § 189.224. And the plaintiff has not alleged—not in her complaint, and not elsewhere—that Bailey’s Furniture knew that Carter was driving an unsafe vehicle in violation of the FMCSR. In fact, she has suggested the opposite: that Bailey’s Furniture “was in the best and last position to observe [the condition of] the commercial motor vehicle” and failed to do so. R. 10 at 7.

 

*4 Without any reason to believe that Bailey’s Furniture violated § 189.224, the plaintiff has no “glimmer of hope” that her claim against Bailey’s Furniture for negligence per se might succeed. See Ky.Rev.Stat. § 446.070 (providing that “[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation” (emphasis added)). The outcome of her motion to remand therefore turns on her sole remaining claim against Bailey’s Furniture.

 

II. The Plaintiff Has No Colorable Claim For Negligence.

In order to state a negligence claim under Kentucky law, the plaintiff must establish (1) a duty on the part of Bailey’s Furniture, (2) a breach of that duty, and (3) injury. Collins, 2012 WL 424890, at *2 (citing Mullins v. Commonwealth Life Ins. Co. ., 839 S.W.2d 245, 247 (Ky.1992)). The plaintiff points to three sources that might supply Bailey’s Furniture’s duty of care: a contract, the common law, and the FMCSR. For the reasons discussed below, none of these vested Bailey’s Furniture with a duty toward Pennington. Accordingly, the plaintiff cannot sustain a negligence claim against Bailey’s Furniture.

 

The plaintiff first proposes a contractually created duty of care. Specifically, the plaintiff argues that a contract between Corsicana Bedding and ATS required those parties to ensure that Carter operated his vehicle with ordinary care and in compliance with applicable law. R. 10 at 5. As a third-party beneficiary, Bailey’s Furniture supposedly also had to adhere to the contract’s terms. Id. As far as the Court can tell, however, this contract and its terms spring entirely from the plaintiff’s imagination. The parties have provided the Court with no shipping contract, just with a sales invoice prepared by Corsicana Bedding after Bailey’s Furniture placed an order for its wares, R. 1–2. Nor have they described any specific terms that the contract, if it existed, contained. The Court cannot pull a contractual provision out of thin air, apply it to a third party like Bailey’s Furniture, and pronounce itself satisfied that Bailey’s Furniture owed a duty of care to Pennington. Cf. Collins, 2012 WL 424890, at *3 (citing Penco, Inc. v. Detrex Chem. Indus., Inc., 672 S.W.2d 948, 951 (Ky.Ct.App.1984)) (“Kentucky courts disfavor reading broad duties into contracts when it is not clear that a party intended to take on the responsibility.”).

 

Second, the plaintiff draws on the common law to suggest that Bailey’s Furniture had the ability to exercise control over Carter while he waited on its premises, such that it assumed a duty for the condition of his vehicle. R. 15 at 8–10. In such claims, “the alleged tortfeasor’s ability to control the person causing the harm assumes primary importance.” Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 851 (Ky.2005) (emphasis in original). That is, the alleged tortfeasor must have had some sort of leverage over the person under control, and that leverage must relate to the harm caused by that person, “such that its exercise would restrict the person’s ability to cause harm.” Id. at 853. As the defendants rightly point out, Bailey’s Furniture’s relevant conduct consisted solely of ordering products from another company. That company, Corsicana Bedding, independently arranged for delivery by ATS, which employed and directed Carter. R. 12 at 6. Bailey’s Furniture therefore stood at two degrees of removal from Carter. Bailey’s Furniture could not have, for example, sent Carter off on a delivery that ATS had not expressly authorized him to make. Nor could it have ordered him to remain on its premises indefinitely. Therefore, the Court finds that Bailey’s Furniture lacked any ability to control Carter in any manner giving rise to a duty of reasonable care.

 

*5 Finally, the plaintiff argues that Bailey’s Furniture, as a registered motor carrier, had a heightened duty of care thanks to the FMCSR. R. 15 at 4–5. The responsibilities imposed by the FMCSR on motor carriers apply to Bailey’s Furniture only when it engages in the transportation of goods or passengers. See 49 C.F.R. § 390.5; Camp v. TNT Logistics Corp., 553 F.3d 502, 507 (7th Cir.2009). Bailey’s Furniture did not act in its capacity as a motor carrier when it interacted with Carter and ATS. Consequently, Bailey’s Furniture had no heightened duty of care simply by virtue of its status as a registered motor carrier.

 

Like the plaintiff’s negligence per se claim, the plaintiff’s negligence claim fails to pass “Go.” Since Bailey’s Furniture owed Pennington no applicable duty of care, there is no reasonable basis to predict that a Kentucky court would hold it liable for negligence in relation to Pennington’s death.

 

CONCLUSION

Ultimately, no hope remains that the plaintiff might prevail on her negligence or negligence per se causes of action. The Court will therefore sever Bailey’s Furniture as a defendant under the fraudulent joinder doctrine, thereby rendering all defendants diverse from the plaintiff and ensuring that the Court has diversity jurisdiction over this action.

 

Accordingly, it is ORDERED that

 

(1) The plaintiff’s motion to remand, R. 9, is DENIED.

 

(2) The Clerk shall TERMINATE Bailey’s Furniture as a defendant.

 

(3) Bailey’s Furniture’s motion to dismiss, R. 13, is DENIED AS MOOT.

 

FN1. The Court has previously explained that the doctrine of fraudulent joinder makes little sense, because it “requires federal courts to exercise jurisdiction where none exists over questions of state law that the state courts are better suited to address themselves.” Murriel–Don Coal Co., 790 F.Supp.2d at 597. However, fraudulent joinder remains the law of this circuit, so the Court will faithfully apply that doctrine.

 

FN2. The plaintiff also insinuates that someone violated 49 C.F.R. § 397.17. R. 10 at 6. But that regulation applies only to motor carriers engaged in the transportation of hazardous materials. § 397 .1. The Court has no cause to believe that Carter was carrying anything but mattresses and consequently finds this regulation inapplicable. See R. 10–1 (describing the cargo under Carter’s care as “Household Goods”).

United States District Court,

M.D. Louisiana.

CASHMAN EQUIPMENT CORP.

v.

INLAND MARINE SERVICES, LLC.

 

Civil Action No. 11–00329.

Signed May 30, 2014.

 

Scott D. Brownell, Covington, LA, for Cashman Equipment Corp.

 

David Carlyle Voss, Cerise Katherine Potts, David W. Carley, Edwin Allen Graves, Jr., Graves Carley, L.L.P., Baton Rouge, LA, for Inland Marine Services, LLC.

 

RULING

SHELLY D. DICK, District Judge.

*1 Before the Court is Inland Marine Services, LLC’s Motion for Summary JudgmentFN1 as to Cashman Equipment Corporation’s claims. Cashman has filed a Memorandum in OppositionFN2 to which Inland has filed a ReplyFN3. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1333. For the following reasons, Inland’s Motion is granted in part and denied in part.

 

FN1. Rec. Doc. 33.

 

FN2. Rec. Doc. 39.

 

FN3. Rec. Doc. 42.

 

I. INTRODUCTION AND PROCEDURAL HISTORY

In August of 2009, Inland chartered the use of Cashman’s dredge, consisting of a barge—the JMC 5—and its crane—a Manitowoc 4600.FN4 The First Charter lasted for approximately one month, and the terms were formalized by two legal instruments: a Barge Bareboat Charter and an Equipment Lease Agreement. FN5 The following June, the parties entered into a Second Charter subject to a similar contractual agreement; FN6 however, this time, the charter ended under much less amicable circumstances. Approximately two months into the second charter, Cashman reclaimed its dredge from Inland and terminated the Second Charter for alleged non-payment of the charter hire.FN7 Unable to work through this impasse, Cashman filed this maritime lawsuit on May 17, 2011, asserting breach of contract claims.

 

FN4. Rec. Doc. 1, p. 2.

 

FN5. Rec. Doc. 1, pp. 2–3; Rec. Doc. 33–1, p. 5; Rec. Doc. 39–2, p. 2. The dredge went off-hire on August 23, 2009. Rec. Doc. 33–4. The parties entered the Barge Bareboat Charter and Equipment Lease Agreement on August 12, 2009. The Equipment Lease Agreement provided that the rental period for the equipment would begin on August 13, 2009. Rec. Doc. 33–4, p. 1.

 

FN6. Rec. Doc. 33–1, p. 12; Rec. Doc. 39–2, p. 5. The dredge went on-hire on June 8, 2010.

 

FN7. Rec. Doc. 33–1, p. 16; Rec. Doc. 39–2, p. 7. Cashman terminated the second charter and retook possession of the dredge on or about September 28, 2010. The dredge went off-hire on the same date.

 

Cashman seeks to recover unpaid repair costs for its equipment as a result of Inland’s neglect, inaction, and negligence during the First and Second Charters, as well as unpaid charter hire costs arising out of the Second Charter.FN8 As to those repair costs arising out of the First Charter, Inland was not informed of such invoices until Cashman filed the pending lawsuit.FN9 Nevertheless, Cashman now seeks to recover for labor and equipment costs arising out the First Charter to gas free the generator room (invoice 500482),FN10 for the removal and replacement of generators on the JMC 5 (invoices 21706, 271163, 280008, and 33126),FN11 to replace the potable water pump (invoice 143437),FN12 and “to get [the] barge ready for job” and “to get [the] barge ready to go out to [Inland]” (invoices 12548, 12535, and 1651).FN13 As for the Second Charter, Cashman contends that Inland caused damage to its crane and seeks recovery for costs associated with Mike Evans Crane Services, LLC’s invoices 895, 962, and 959.FN14

 

FN8. Rec. Doc. 33–1, p. 2; Rec. Doc. 39–2, p. 1. Specifically, the invoices are for the following: 21706 (exchanging two generator specs and two core engines); 271163 (cutting inserts to remove generator); 280008 (installation of deck cut out); 21761 (installation of 6–71 generator engine); and 33126 (deck cut out). Rec. Doc. 33–1, pp. 6–7; Rec. Doc. 39–2, p. 3.

 

FN9. Rec. Doc. 33–1, p. 11; Rec. Doc. 39–2, p. 5.

 

FN10. Rec. Doc. 33–1, p. 6; Rec. Doc. 39–2, p. 2.

 

FN11. Rec. Doc. 33–1, p. 8; Rec. Doc. 39–2, p. 3.

 

FN12. Rec. Doc. 33–1, pp. 8–9; Rec. Doc. 39–2, p. 3.

 

FN13. Rec. Doc. 33–1, pp. 9–10; Rec. Doc. 39–2, p. 4.

 

FN14. Rec. Doc. 33–1, p. 14; Rec. Doc. 39–2, p. 6. Cashman specifically “[a]dmitted that MECS performed some services to the JMC 5 and purported to bill for those services in the referenced invoices”.

 

In response to Cashman’s claims and demands, Inland filed an Answer, Affirmative Defenses, and Counterclaim.FN15 In its counterclaim, Inland alleges claims of breach of warranty asserting that Cashman knew or should have known that the leased equipment had latent defects rendering it unseaworthy and unable to be used for its intended purpose. Moreover, Inland contends it was unaware of the latent defects. Inland seeks to recover monetary expenses for lost revenue due to its inability to use the leased equipment and for additional costs and expenses it incurred to obtain a replacement dredge to meet its contractual obligations with third parties.

 

FN15. Rec. Doc. 7.

 

Upon the completion of fact discovery, Inland filed the pending Motion in which it contends that there are no genuine issues of material fact as to Cashman’s claims for First and Second Charter repair costs and unpaid charter hire.

 

II. LAW

 

A. Summary Judgment Standard

 

*2 “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.” FN16 “When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.” FN17 A party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s case.” FN18 If the moving party satisfies its burden, “the non-moving party must show that summary judgment is inappropriate by setting ‘forth specific facts showing the existence of a genuine issue concerning every essential component of its case.’ “ FN19 However, the non-moving party’s burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” FN20

 

FN16. Fed.R.Civ.P. 56(a).

 

FN17. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, at 398–99 (5th Cir.2008).

 

FN18. Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, at 494 (5th Cir.2003)(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5 Cir.1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, at 323–25, 106 S.Ct. at 2552)).

 

FN19. Rivera v. Houston Independent School Dist., 349 F.3d 244, at 247 (5th Cir.2003)(quoting Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998)).

 

FN20. Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, at 315 (5th Cir.1995)(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

 

Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ “ FN21 All reasonable factual inferences are drawn in favor of the nonmoving party.FN22 However, “[t]he Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.” FN23 “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.” ‘ “ FN24

 

FN21. Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir.2007)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

 

FN22. Galindo v. Precision American Corp., 754 F.2d 1212, at 1216 (5th Cir.1985).

 

FN23. RSR Corp. v. International Ins. Co., 612 F.3d 851, at 857 (5th Cir.2010).

 

FN24. Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, at 713 (5th Cir.1994)(quoting Anderson, 477 U.S. at 249).

 

B. Rule 56(d) of the Federal Rules of Civil Procedure—Facts Unavailable

In its opposition memorandum, Cashman seeks relief under Rule 56(d) of the Federal Rules of Civil Procedure due to the unavailability of certain sworn testimony from Cashman’s employee, Durrel “Skip” Broussard (Broussard), and witness Mike Evans (Evans). On December 9, 2013, this Court granted Cashman’s motion to substitute the executed affidavit of Broussard for the unexecuted affidavit attached to the opposition memorandum; therefore, the Rule 56(d) motion is now moot as to this particular issue. The only remaining issue is whether the Court should defer ruling on the instant motion to allow Cashman the opportunity to depose Evans.

 

Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specific reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” The Fifth Circuit has explained that in order to obtain additional discovery under Rule 56(d), a party “must show (1) why [it] needs additional discovery and (2) how that discovery will create a genuine issue of material fact.” FN25 However, “if the litigants have ‘not diligently pursued discovery, … [they are] not entitled to relief’ under Rule 56(d).” FN26

 

FN25. Beattie v. Madison County School Dist., 254 F.3d 595, at 606 (5th Cir.2001).

 

FN26. Guidry v. Georgia Gulf Lake Charles, L.L.C., 479 Fed.Appx. 642, at 644 (5th Cir.2012)(quoting Beattie v. Madison County School Dist., 254 F.3d 595, 606 (5th Cir.2001).

 

*3 Cashman contends that it should be able to depose Evans because the “circumstances that led to his ‘unavailability’ create the appearance that Inland and/or Mr. Evans provided or procured his testimony voluntarily to Inland while simultaneously impeding Cashman’s ability to do the same.” FN27 Cashman argues that seven days prior to the discovery deadline, Inland canceled Evans’ deposition. When Cashman attempted to reschedule the deposition, Evans claimed to be unavailable at any date prior to the discovery deadline; Cashman contends that this lack of availability was driven by a separate, ongoing lawsuit between Cashman and Evans. Inland opposes Cashman’s request and provides evidentiary support for its position. Email documents attached to Inland’s reply memorandum show that counsel for Inland informed counsel for Cashman five days in advance of the unnoticed deposition that it would not be deposing Evans.FN28 Email correspondence also shows that on October 24, 2013, Inland agreed to a joint motion to extend all deadlines, after learning from Cashman about Evans’ inability to be deposed until after the discovery deadline had lapsed.FN29 Cashman, however, never filed such a motion. Therefore, without an extension of the established discovery and dispositive motion filing deadlines, Inland timely filed the pending summary judgment motion.

 

FN27. Rec. Doc. 39, p. 2.

 

FN28. Rec. Doc. 42–1, p. 2.

 

FN29. Rec. Doc. 42–2, pp. 2–3.

 

As previously explained, the burden rests on the movant in a Rule 56(d) motion to explain why the additional discovery time is necessary and how it will create a genuine issue of fact. Notably, however, this burden will not be satisfied if a party has not been diligent is seeking such discovery. The Court finds that Cashman’s failure to timely file an unopposed or joint motion to extend all deadlines, including the discovery deadlines, exposes Cashman’s lack of diligence in seeking discovery from Evans. Accordingly, the Court will not defer ruling on Inland’s summary judgment motion, and Cashman’s Rule 56(d) motion shall be denied as to Evans.

 

III. ANALYSIS

 

A. Contractual Language as to Invoices for Repairs

 

In its Complaint FN30, Cashman alleges that the First and Second Charters were “formalized by the execution of two contracts, a Barge Bareboat Charter for use of the JMC 5, and an Equipment Lease Agreement.” On August 12, 2009, the parties entered the Equipment Lease Agreement (Equipment Lease) and Barge Bareboat Charter (Bareboat Charter) for the First Charter, with the rental period and charter hire beginning on August 13, 2009.FN31 As for the Second Charter, the parties entered into the agreements on June 4, 2010; however, the rental period and charter hire did not begin until June 8, 2010. FN32

 

FN30. Rec. Doc. 1.

 

FN31. Rec. Doc. 33–4, pp. 65, 68–69, and 72.

 

FN32. Rec. Doc. 33–4, pp. 92, 95, and 98.

 

The Bareboat Charter explicitly covered the agreement between Cashman and Inland for the use or hire of the bareboat barge or JMC 5 (Vessel).FN33 Two sections stand out as emphasizing the need for the JMC 5 to be returned in the same condition upon the termination of the charter, minus ordinary wear and tear. Section 4 states that

 

FN33. April 13, 2009. Rec. Doc. 33–4, p. 69; Rec. Doc. 39–1, p. 9; (“OWNER hereby agrees to bareboat charter to CHARTERER, and CHARTERER agrees to hire bareboat, barge known as JMC 5 (hereinafter ‘the Vessel’).”).

 

*4 The Vessel shall be picked up at [CASHMAN’S] yard … Upon termination, the Vessel shall be delivered to [CASHMAN] in like good order and condition as when received ordinary wear and tear excepted, at [CASHMAN’S] yard … and the Charter Hire shall continue until such redelivery. If on return of the Vessel, CASHMAN is put to any expense of repairs of the hull, superstructure, electrical circuitry or air conditioning, fuel supply, water supply and sewage disposal system of the Vessel or cleaning of the Vessel to put it in the same good, seaworthy and clean condition as upon delivery, [INLAND] agrees to reimburse [CASHMAN] for said expense and to pay charter hire until date barge is returned to same good, seaworthy and clean condition.FN34

 

FN34. Rec. Doc. 33–4, p. 69; Rec. Doc. 39–1, p. 9.

 

Similarly, Section 8 of the Bareboat Charter provides:

 

[INLAND] agrees to maintain the Vessel in a good and seaworthy condition during the term of this charter and will redeliver the Vessel to [CASHMAN] in the same good and seaworthy condition as when the Vessel was received, ordinary wear and tear excepted.

 

a) [CASHMAN] shall cause, at [INLAND’S] cost, an on-charter survey to be conducted prior to possession of the Vessel by [INLAND], and an off-charter survey to be conducted at the termination of the charter at the time of physical redelivery of the Vessel to [CASHMAN]. It is agreed by both parties that the said survey shall be conclusive proof as to the damage, if any, sustained by the Vessel during the time of this charter. [INLAND] to remove all weldments flush to deck and paint such areas to [CASHMAN’S] satisfaction.

 

b) In the event of damage greater than wear and tear is noted by the survey, then it shall be [INLAND’S] duty to: (i) repair the Vessel or cause the Vessel to be repaired at its own cost; and (ii) pay the Charter Hire until the Vessel is either repaired to [CASHMAN’S] satisfaction or is placed back into charter service by [CASHMAN]. Failure to comply with the requirements of subclause (i) of this paragraph within five (5) days of notification required repairs will authorize [CASHMAN] to perform said repairs or cause the repairs of the Vessel to be made as [INLAND’s] agent and to recover the full cost of same from [INLAND].

 

c) The cost of said repairs shall be payable by [INLAND] immediately upon presentation to it of the repair invoice.

 

d) In the event [CASHMAN] performs repairs or caused repairs to be performed by others on the Vessel, then [INLAND] shall be conclusively bound by the amount of said repair invoice and waives its right to contest the reasonableness of the amount thereof.

 

e) It is further understood and agreed that in the event damage is noted as per this numbered paragraph, then physical redelivery of the Vessel by [INLAND] shall not constitute acceptance of the Vessel by [CASHMAN] nor a release or termination of [INLAND’s] obligation hereunder to repair the damage and pay Charter Hire … FN35

 

FN35. Rec. Doc. 33–4, p. 70; Rec. Doc. 39–1, p. 10.

 

As for the Equipment Lease, it was to be read in conjunction with the Bareboat Charter.FN36 Under both charters, the only equipment listed as being subject to the Equipment Lease between the parties was the crane (Manitowoc 4600). Additionally, the Equipment Lease constituted the full agreement between the parties and it could only be modified in writing and signed by the parties executing the agreement.FN37

 

FN36. Rec. Doc. 33–4, p. 68; Rec. Doc. 39–1, p. 16.

 

FN37. Rec. Doc. 33–4, p. 68; Rec. Doc. 39–1, p. 16.

 

*5 Section 12 of the Equipment Lease required an inspection of the crane prior to Inland taking possession of it “to establish the condition of the equipment at the beginning of the lease period.” FN38 A second inspection was also required “[a]t the termination of the lease period … to determine the condition of the leased equipment … to determine if the equipment has sustained any damage during the lease period.” FN39 According to the language of the Equipment Lease, this was to ensure that the crane was returned to Cashman “in as good a condition as it was originally provided to [Inland].” FN40

 

FN38. Rec. Doc. 33–4, p. 67; Rec. Doc. 39–1, p. 15.

 

FN39. Rec. Doc. 33–4, p. 67; Rec. Doc. 39–1, p. 15.

 

FN40. Rec. Doc. 33–4, p. 67; Rec. Doc. 39–1, p. 15.

 

Section 8 of the Equipment Lease set forth the maintenance and operation requirements for the equipment, providing as follows:

 

[INLAND] shall see that the Equipment is used in a reasonable and responsible fashion and shall never subject the equipment to careless or needless rough usage. [INLAND] shall at all times insure that that the personnel employed to operate and maintain the equipment are competent, experienced and properly licensed personnel … Responsibility to maintain the equipment shall at all times be exclusively with [INLAND] at all times during the Rental Period. [INLAND] shall at its own expense maintain the Equipment in good operating condition, well-greased, oiled, cleaned and repaired and in such condition shall return it to [CASHMAN] absent reasonable wear and tear. [INLAND] shall promptly inform [CASHMAN] of any damage to the Equipment including normal wear and tear. If [CASHMAN] observes a condition which, if allowed to continue unabated, would lead to serious damage, [INLAND], must provide immediate corrective action to remedy that situation. The cost of all repairs (parts and labor) will be borne solely by [INLAND]. In the event the Equipment is rendered not serviceable or otherwise damaged during the Rental Period, the obligation of [INLAND] to pay the stated rental rate shall continue to accrue until the Equipment is restored to its original condition at the inception of the lease (but excluding normal wear and tear).FN41

 

FN41. Rec. Doc. 33–4, p. 66; Rec Doc. 39–1, p. 14.

 

The parties agree that pursuant to the Bareboat Charter an on-charter survey and an off-charter survey was conducted for both charters to “objectively determine whether any damages to the hull of the JMC 5 had occurred during the charter for which [Inland] would be responsible.” FN42 The surveys of the hull were performed by Bachrach & Wood (B & W).FN43 The parties also agree that on-charter and off-charter surveys of the crane were performed for both the charters by Mike Evans Crane Services, LLC (MECS).FN44 Both B & W and MECS were companies that Cashman typically engaged to inspect and repair its equipment.FN45

 

FN42. Rec. Doc. 33–1, p. 3; Rec. Doc. 39–2, p. 2.

 

FN43. Rec. Doc. 33–1, p. 3; Rec. Doc. 39–2, p. 2.

 

FN44. Rec. Doc. 33–1, pp. 3–4; Rec. Doc. 39–2, p. 2.

 

FN45. Rec. Doc. 33–1, p. 3; Rec. Doc. 39–2, p. 2.

 

B. First Charter Invoices

 

1. Coral Marine 500482 Invoice—Gas Freeing

 

Inland seeks summary judgment as to Cashman’s claim for reimbursement of payments it made to Coral Marine for services to gas free the generator room of the JMC 5, as reflected in Invoice 500482.FN46 These services were rendered in between the First and Second Charter on May 28, 2010 and total $3,200.00. During the corporate deposition of Cashman, it was acknowledged that Invoice 500482 would be attributed to the First Charter. The B & W off-charter survey of the steel spud/crane barge for the JMC 5 specifically notes that “[a]s a result of on charter no new damage was found.” FN47 According to B & W’s survey report, “[a]t the time of the off charter, subject vessel was found to be in essentially the same condition as existed at the time of the on charter, with no noted exceptions.” FN48 Similarly, the on-charter and off-charter inspections conducted by MECS reflected no change in the crane. According to Stephen Loupe, member and manager of Inland, Cashman never invoiced or sought back-charges from Inland for any repairs in connection with the First Charter.FN49

 

FN46. Rec. Doc. 33–4, pp. 120–21; 124. Cashman is seeking to recover those costs that it paid to Coral Marine Service who performed the services.

 

FN47. Rec. Doc. 33–4, p. 79.

 

FN48. Rec. Doc. 33–4, pp. 80–81.

 

FN49. Rec. Doc. 33–3, p. 3.

 

*6 In its opposition memorandum, Cashman contends that Inman has overlooked the fact that the JMC 5 consisted of three component parts—the crane, the hull, and the living quarters—all of which were subject to evaluations. Cashman asserts that Inland, a sophisticated charterer, “was aware the scope of these surveys was limited by component and referred to the survey reports with the requisite level of specificity,” which is reflected in an email communication from Inland to Cashman which states: “The date of Off Charter on the JMC–5 is Saturday, February 14th. Both the crane and hull surveys were completed this date.” FN50 Therefore, Cashman argues that because the on-charter and off-charter surveys performed by B & W and MERC are incomplete, they cannot be relied upon to support a summary judgment motion as to those charges related to the component parts of the living quarters arising out of the First Charter, such as gas freeing, generator replacement, and the replacement of the potable water pump.

 

FN50. Rec. Doc. 39–1, p. 53.

 

Cashman further claims that gas freeing is a “service” and not a repair, and is “not a physical condition that is ever documented or called out in a ‘condition’ survey;” therefore, “these services are not within the scope of the surveys upon which Inland relies.” FN51 In support of its position, Cashman relies on Broussard’s attestation that gas freeing is not a physical condition identified in a condition survey and within the industry, “survey reports do not mention [ ] gas freeing. Gas freeing is unrelated to the ‘condition of the barge’ or ‘damage to the barge.’ “ FN52 Cashman further submits unsubstantiated argument that Inland should be responsible for these charges for two reasons: (1) when Inland acquired the JMC 5 it did not require gas freeing, but upon the JMC 5’s return after the First Charter, gas freeing was required; and (2) Inland’s use of the JMC 5 is what prompted the need for gas freeing. Aside from these conclusory statements, Cashman offers no additional evidentiary support for its position.

 

FN51. Rec. Doc. 39, p. 12.

 

FN52. Rec. Doc. 43–2, p. 2.

 

The Court finds that Cashman has failed to identify specific evidence in the record that supports its claim that Inland owes payment for gas freeing. According to the off-hire surveys performed at the conclusion of the First Charter, it is clear that there was no documented damage attributed to Inland. Nevertheless, even when the Court takes into account Cashman’s contention that the on-hire and off-hire inspection surveys would not reflect whether services such as gas freeing was required, the Court cannot overlook the simple fact that Cashman has failed to provide any evidentiary support in support of its assertions that such a service was, in fact, necessary after Inland’s use of the JMC 5, or how Inland’s use of the JMC 5 prompted the need for gas freeing. “[U]nsubstantiated assertions are not competent summary judgment evidence.” FN53 Furthermore, Broussard’s generalizations about the purpose of gas freeing fail to shed any light on why such a service was necessary at the close of Inland’s First Charter with Cashman. Accordingly, the Court finds that Inland is entitled to summary judgment as to the Coral Marine Invoice 500482 for gas freeing.

 

FN53. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998).

 

2. Generator Invoices 21706, 271163, 280008, 21761, and 33126

*7 Cashman seeks reimbursement from Inland for repairs made to and for the replacement of the generators on the JMC 5 as reflected in Invoices 21706, 271163, 280008, 21761, and 33126. The parties do not dispute that services or repairs to the generators were rendered on various dates between May 31, 2010 and June 9, 2010.FN54 It is also undisputed that Cashman is seeking reimbursement for a total amount of $7,999.23.FN55

 

FN54. Rec. Doc. 33–1, pp. 6–8. Invoice 21706 was issued by Diesel Source, Inc. to Cashman for services rendered on May 31, 2010; Invoice 271163 was issued by Michael Coon to Cashman for services rendered on June 1, 2010; Invoice 280008 was issued by Shawn Priestly to Cashman on June 7, 2010; Invoice 21761 was issued by Diesel Source, Inc. to Cashman for services rendered on June 9, 2010; and Invoice 33126 was issued by Shawn Priestly to Cashman for services rendered on May 31, 2010.

 

FN55. Rec. Doc. 33–1, pp. 6–8. Cashman backcharged Inland as follows: $14,000 for Invoice 21706; $166.25 to Inland on Invoice 271163; $341.25 for Invoice 280008; $3,246.48 for Invoice 21761; $166.25 for Invoice 33126.

 

Inland relies heavily on the testimony of Broussard to support its summary judgment motion as to the generator invoices. Broussard testified that the off-charter surveys for the First Charter made no mention of any damage to the generators, and that to his knowledge no documentation existed that would capture the condition of the generator during the off-hire inspection. FN56 Importantly, Broussard testified that he conducted the inspection of the generators when he was working with Inland to determine if they were operational.FN57 According to Broussard, if the generators were operational when they came off-charter, there would not be any issue . FN58 In this case, Broussard testified that, when Inland returned the JMC 5 after the First Charter, he made no notations that would indicate that the generators were not operational.FN59

 

FN56. Rec. Doc. 33–5, p. 5.

 

FN57. Rec. Doc. 33–5, p. 5.

 

FN58. Rec. Doc. 33–5, p. 6.

 

FN59. Rec. Doc. 33–5, p. 6. When asked, “[y]ou did not note that the generators were ever not operations when they came back from being chartered by Inland,” Broussard answered “[t]hat’s correct.”

 

Broussard also testified that it was his understanding that a Cashman employee had actually lived on-board the JMC 5 for a week or two in between the First and Second Charters.FN60 He further testified that this employee was “probably running a generator and freshwater pump.” Notably, Broussard could not determine whether the repairs took place before or after the employee resided on the JMC 5.

 

FN60. Rec. Doc. 33–5, pp. 10–11.

 

In opposition, Cashman reasserts its argument that none of the survey reports relied upon by Inland pertain to damages and/or repairs to the living quarters, where the generators were located; therefore, there would be no inspection of the generators within such surveys. Relying on this premise, Cashman argues that Inland has simply established that the crane and hull inspectors never examined the generators.

 

The Court finds that Cashman has once again failed to provide some evidence creating a genuine issue of material fact as to Inland’s responsibility for these repairs. While all inferences must be viewed in a light most favorable to the non-movant, the non-movant here, Cashman, has offered not one scintilla of evidence upon which it is making its claim for reimbursement for these generator costs. Cashman has offered no evidence (e.g., documentation noting defects in generators) to show that these repairs were necessary and caused by Inland’s use. Even if these off-survey inspections do not assess damages to the so-called living areas, Cashman has offered nothing in response justifying these expenditures. Without more, no reasonable juror could find in Cashman’s favor. Accordingly, the Court finds that Inland is entitled to summary judgment as to the generator invoices 21706, 271163, 280008, 21761, and 33126.

 

3. Potable Water Pump Invoice 143437

*8 Inland seeks summary judgment as to Cashman’s Invoice 143437 in the amount of $499.40 for the replacement of a potable water pump. These services were rendered by Power Specialties, Inc., on or about June 8, 2010.FN61 Reiterating its earlier arguments, Cashman contends that, because the water pump is a component of the living quarters, it was beyond the scope of the off-charter survey reports relied upon by Inland and, therefore, summary judgment is inappropriate. Again, the Court is well-aware of its responsibility to consider all inferences in a light most favorable to the nonmovant; however, there is also a responsibility placed upon the non-movant in summary judgment motions. Specifically, Cashman has the burden to set forth specific facts showing the existence of a genuine issue of material fact. In this case, Cashman has offered no evidence showing why the potable water pump needed to be replaced and, more importantly, how Inland bears any responsibility for this repair. The Court finds that Cashman has simply failed to satisfy its burden and that Inland is entitled to summary judgment as to Invoice 143437 for the replacement of the potable water pump.

 

FN61. Rec. Doc. 33–1, pp. 8–9; Rec. Doc. 39–2, p. 3.

 

4. Preparatory Work Invoices 12548, 12535, and 1651 FN62

 

FN62. Cashman contends Invoice 1651 is really factually attributable to generator cost.

 

Cashman seeks reimbursement from Inland for expenditures made to Ashland Services and Cashman Scrap & Salvage to perform various services and labor in late May and early June of 2010.FN63 According to Cashman’s corporate representative’s testimony, these repairs were necessary because the barge needed to be cleaned and prepared to go onto the job, or the Second Charter. FN64 For instance, Invoice 12548 in the amount of $702.00 was paid to Ashland Services to get the barge ready to go on charter to Inland.FN65 Invoice 12535 was paid for cleaning the downstairs area in the barge after the welders completed replacing the generators.FN66 Cashman charged Inman half of the total invoice, or $495.00.FN67 Inland contends that summary judgment is appropriate on these “preparatory” charges.

 

FN63. Rec. Doc. 33–4, pp. 47; 59.

 

FN64. Rec. Doc. 33–4, p. 48.

 

FN65. Rec. Doc. 33–4, p. 47; Rec. Doc. 33–4, p. 155 specifically states, “labor to get the barge ready to out to Inland Marine.”

 

FN66. Rec. Doc. 33–4, pp. 58–59; Rec. Doc. 33–4, p. 167 specifically states, “labor to get the barge ready for job.” See also, Rec. Doc. 33–4, p. 169.

 

FN67. Rec. Doc. 33–4, p. 64.

 

As for Invoice 1651, Cashman contends that this payment totaling $4,457.50 was paid to Cashman Scrap & Salvage to remove generators from the barge and clean-up associated therewith and was mischaracterized as preparatory work.FN68 The Court agrees with Cashman’s position. Nevertheless, the Court finds, for those reasons discussed above, that Inland should prevail on Cashman’s claim for generator repairs/replacement costs associated with Invoice 1651.FN69

 

FN68. Rec. Doc. 33–4, p. 60.

 

FN69. Cashman only seeks to recover half of the total invoice amount; in other words, Cashman is seeking to recoup $2,228.75. Rec. Doc. 33–1, pp. 9–10; Rec. Doc. 39–2, p. 4.

 

As for Invoices 12548 and 12535, Cashman could not identify which charter these costs were attributed to during deposition testimony.FN70 As to the First Charter, Cashman admitted that the off-charter surveys mentioned nothing about the need for any such housekeeping upon the return of the JMC 5. FN71 Additionally, the Court finds that, while Section 4 of the Bareboat Charter allows for recovery of costs for cleaning in order to “put it in the same good, seaworthy and clean condition as upon delivery”, Cashman has offered no evidence showing that such cleaning was necessary at the termination of the First Charter or attributable to Inland.

 

FN70. Rec. Doc. 33–4, pp. 58–59, and 61.

 

FN71. Rec. Doc. 33–4, p. 51.

 

*9 To the extent these charges could be attributed to the Second Charter, Cashman explained that these repairs were necessary because the “barge needed to be cleaned and prepared to go on the job.” FN72 When pressed further, Cashman’s corporate deponent acknowledged that charterers are not typically charged for preparatory work; rather, they are only charged if Cashman is “preparing it specifically for that [charterer’s] project.” FN73 Cashman could not identify any specific purpose of Inland’s Second Charter which would have required the work contained in these preparatory invoices.FN74 Additionally, Cashman’s corporate deponent admitted that there was no contractual authority—neither in the Equipment Lease nor the Bareboat Charter—that required Inland to be responsible for Cashman’s cleaning of the barge.FN75 Moreover, Cashman admitted that, in between the charters, Cashman employees were staying on the barge.FN76 According to Broussard, it was his understanding that a Cashman employee had resided on the JMC 5 for one to two weeks and was using it as living quarters.FN77

 

FN72. Rec. Doc. 33–4, p. 48–49.

 

FN73. Rec. Doc. 33–4, p. 49.

 

FN74. Rec. Doc. 33–4, p. 50.

 

FN75. Rec. Doc. 33–4, p. 50.

 

FN76. Rec. Doc. 33–4, pp. 53–54. Cashman admitted in its own Response to Statement of Uncontested Facts that invoice 12535 was issued for services rendered, more specifically, for labor to get barge ready for job.” Rec. Doc. 33–1, p. 9; Rec. Doc. 39–2, p. 4.

 

FN77. Rec. Doc. 33–5, pp. 10–11

 

In its opposition, Cashman addresses only one of the invoices—invoice 12548—but offers no evidentiary support to create a genuine issue of material fact. FN78 Cashman contends that, because the JMC 5 was not chartered to anyone else in between the two charters, “[i]t is irrelevant whether labor is classified as being necessary as a result of Charter no. 1 or ‘in preparation’ for Charter no. 2,” and that “[i]f the services reflected in invoice 12548 were to remedy conditions caused by Inland during Charter no. 1, then Inland is properly responsible for those charges.” FN79 Cashman offers no additional evidence to support its position.

 

FN78. [Missing Text].

 

FN79. Rec. Doc. 39, p. 14.

 

The Court finds that Cashman’s argument as to invoice 12548 “does not rise above the level of mere speculation and conjecture” and is, therefore, insufficient to defeat summary judgment.FN80 Cashman fails, yet again, to produce any evidence showing that these costs, or those costs sought in Invoice 12535, were necessary after Inland’s use of the JMC 5, or were necessary for Inland’s specific purpose under the Second Charter. Accordingly, Inland’s motion shall be granted as to Invoices 12548 and 12535.

 

FN80. Kelly v. Labouisse, 364 Fed. Appx. 895, at 897 (5th Cir.2010).

 

C. Second Charter Issues Invoices

 

1. Is Inland responsible for Invoices 895, 962, and 959?

 

Inland contends that the undisputed evidence shows that it is not responsible for the invoices FN81 related to repairs to house rollers, bearings, and the crane performed during the Second Charter, because these repairs are attributable to Cashman’s refusal to perform suggested maintenance and to properly make certain repairs prior to the Second Charter. Inland further argues that, unbeknownst to it, these substantial repairs existed at the commencement of the Second Charter and could not have resulted from Inland’s use of the JMC 5.

 

FN81. Invoices 895, 962, and 959. Rec. Doc. 33–4, p. 29 (Invoice 895 was billed for parts to repair the rollers on the crane on the turntable, the house rollers and bearings, and air valve); Rec. Doc. 33–4, p. 31 (Invoice 962 was billed for labor to repair bucket for crane while the crane was on charter); Rec. Doc. 33–4, p. 193 (Invoice 959 for labor and material to replace the roller path bolts).

 

Prior to the Second Charter, Inland admits that a visual inspection of the crane and hull was performed and there were no apparent defects to either that had not already been identified by Evans or B & W in their respective inspection reports and/or surveys .FN82 According to Inland, from June 8, 2010 through June 26, 2010, the crane on the JMC 5 was only operated by experienced and skilled operators within the functional ability and operational limits of the crane.FN83 However, on June 26, 2010, the bearings on the house rollers went out and MECS was called out to perform repairs which lasted approximately 22 days. Thereafter, the crane broke down again and required additional repairs.FN84 In total, the crane was down for repairs for approximately 29 days.

 

FN82. Rec. Doc. 33–3, p. 3.

 

FN83. Rec. Doc. 33–3, p. 4.

 

FN84. Steven Loupe testified that the crane broke down again after an hour of Inland’s attempt to resume dredging. Rec. Doc. 33–3, p. 4.

 

*10 At some point before the start of the parties’ second charter, Evans was contacted by Cashman to inspect the JMC 5. In his affidavit Evans states that, as a result of his inspection, he determined that the front and rear rollers needed to be replaced, that new bolts be used and re-torqued, that the house roller pads be rewelded, and that the ring be welded down.FN85 Evans based his recommendation on his “experience that the nature of the repair was such that, if left untreated, it would result in further damage to the house rollers in the near future.” FN86 In spite of his suggestion, Evans attests that Cashman only authorized him to replace the rear house rollers and to re-torque the old bolts. According to Evans, Cashman said they would weld the ring down.

 

FN85. Rec. Doc. 33–6, p. 2.

 

FN86. Rec. Doc. 33–6, p. 2.

 

In response, Cashman offers the testimony of Broussard who oversaw the repairs to the JMC 5, including the replacement of the ring, the rear house rollers, and the re-torquing and replacement of ring bolts.FN87 According to Broussard, he disagreed with Evans’ opinion about the need to replace the front house rollers based on his own inspection, and he felt that Evans’ suggested repair method of welding down the crane was improper.FN88 Broussard contends that he oversaw the replacement of the ring bolts and that Evans’ statements to the contrary are wrong.FN89

 

FN87. Rec. Doc. 43–2, p. 2.

 

FN88. Rec. Doc. 43–2, p. 3.

 

FN89. Rec. Doc. 43–2, p. 3.

 

The Court finds that, based on the conflicting evidence about whether certain repairs were, in fact, necessary and whether certain repairs were performed appropriately, there is a genuine issue of material fact in dispute as to causation of damage to the house rollers and the crane. Accordingly, it would be improper for the Court to grant summary judgment as to the three invoices relating to repair of the JMC 5’s house rollers and crane at this juncture. Therefore, Inland’s motion for summary judgment shall be denied as to this issue.

 

2. Inland’s failure to pay charter hire during Second Charter

It is undisputed that Inland failed to pay the charter hire owed to Cashman for the period of time during the Second Charter.FN90 In fact, Inland admits that it withheld charter hire payment totaling $102,877.69.FN91 As a result of Inland’s failure to pay, Cashman terminated the Second Charter and seized possession of the JMC 5.FN92 The JMC 5 went off hire on September 28, 2010.FN93

 

FN90. Rec. Doc. 33–1, p. 16; Rec. Doc. 39–2, p. 7.

 

FN91. Rec. Doc. 33–1, p. 16; Rec. Doc. 33–3, p. 4.

 

FN92. Rec. Doc. 33–1, p. 16; Rec. Doc. 30–2, p. 7.

 

FN93. Rec. Doc. 33–1, p. 16; Rec. Doc. 39–2, p. 7.

 

Inland contends that it failed to pay the charter hire only for those time periods when the JMC 5 was inoperable resulting from Cashman’s breach of warranty and failure to provide a dredge in good condition suitable for the purposes it was leased.FN94 Inland further argues that, unbeknownst to it, the JMC 5 needed repairs to the house rollers at the commencement of the Second Charter which could not be attributed to Inland’s use.FN95 Under these circumstances, Inland argues that Cashman cannot rely on the contractual waivers. This argument, however, rests in part, upon a finding that Cashman’s decision not to make certain repairs and how it elected to make such repairs caused damage to the house rollers and crane.FN96 Based on the Court’s prior finding that there is a genuine issue of material fact as to what caused the disrepair of the house rollers and crane, based on the evidence supplied by the parties, the Court will look to the plain language of the contract entered by the parties for guidance on the issue of charter hire.

 

FN94. Rec. Doc. 33–7, p. 15. Inland contends that Cashman breached its obligation to deliver the dredge “in good condition suitable for the purpose for which it was leased” under Louisiana law. (La.C.C. art. 2684). Inland further contends that pursuant to articles 2696 and 2697, Cashman warranted that the dredge was free from unknown and known vices and defects.

 

FN95. Rec. Doc. 33–7, p. 15.

 

FN96. As to the breach of warranty, this will go more toward what Cashman and Inland were each aware of regarding the condition of the barge prior to the Second Charter.

 

*11 Section 3 of the Bareboat Charter sets forth the Charter Hire of $1,500.00 per day for the use or hire of the JMC 5.FN97

 

FN97. Rec. Doc. 33–4, p. 69; Rec. Doc. 39–1, p. 9.

 

Additionally, Section 7(a) of the Equipment Lease between the parties for the Second Charter provides as follows:

 

Monthly Rental Rates shall not be subject to any deductions on account of any non-working time in the month but the amount of the rent payable for any fraction of a month, after the Minimum Rental Period specified, will be at the rate of 1/30th of the monthly rate for each calendar day.FN98

 

FN98. Rec. Doc. 33–4, p. 92; Rec. Doc. 39–1, p. 13.

 

The Court finds that the plain language of the contract could not be any clearer. Inland was not permitted to take any deductions from its monthly rental rates for any nonworking time. Until the issue of causation is resolved as to the Second Charter, the plain language of the contract controls. Accordingly, the Court denies summary judgment as to Inland’s failure to pay the charter hires for the Second Charter.

 

IV. CONCLUSION

Accordingly, Inland Marine Services, LLC’s Motion for Summary Judgment FN99 is hereby GRANTED as to First Charter Invoices 500482 (gas freeing); 21706, 271163, 280008, 21761, 33126, and 1651 (collectively for generators); 143437 (replacement of potable water pump); and 12548 and 12535 (collectively for cleaning and preparation of barge). Inland’s Motion for Summary Judgment FN100 is hereby DENIED as to the Second Charter Invoices 895, 962, and 959, and as to the Second Charter’s unpaid charter hire.FN101

 

FN99. Rec. Doc. 33.

 

FN100. Rec. Doc. 33.

 

FN101. Rec. Doc. 33.

 

It is further ordered, that Cashman’s request for relief under Rule 56(d) of the Federal Rules of Civil Procedure is hereby DENIED.FN102

 

FN102. Rec. Doc. 39.