Chuc Nguyen v. Am. Commercial Lines

SECTION “B” (4)

ORDER AND REASONS

Before the Court are defendants' partially opposed motion for summary judgment to dismiss the claims of all individual plaintiffs for damage to personal property and loss of subsistence use of natural resources (Rec. Docs. 177, 191, 195) and an opposed motion for summary judgment to dismiss plaintiffs' claims for lost profits/loss of earning capacity (Rec. Docs. 178, 188, 195).^[1] For the reasons stated below, IT IS ORDERED that the motion for summary judgment on claims for damage to personal property (Rec. Doc. 177)is GRANTED, without objection on that aspect of the motion, and DENIED regarding claims for loss of subsistence use of natural resources (Rec. Doc. 177; and

IT IS FURTHER ORDERED that the motion for summary judgment on claims for lost profits/loss of earning capacity (Rec. Doc. 178) is DENIED.

I. FACTS AND PROCEDURAL HISTORY

This action arises from the aftermath of a collision between Barge DM-932, a tank barge owned by defendant American Commercial Lines LLC (“ACL”), and the M/V TINTOMARA. Rec. Doc. 175-1 at 1. As a result of the collision on July 23, 2008, oil spilled from Barge DM-93, and therefore, the Mississippi River was closed to vessel traffic from July 23, 2008 to July 28, 2008. Rec. Doc. 178-1 at 20. ACL was the designated “Responsible Party” under the Oil Pollution Act (OPA), 33 U.S.C. § 2701 et seq., meaning regardless of fault, ACL must resolve various third-party claims related to the oil spill. Rec. Doc. 175-1 at 1-2.

Plaintiffs are D&C Seafood, Inc., a seafood wholesaler, and 223 individual plaintiffs-commercial fishers-who harvest and sell seafood in and around the waters off the lower Mississippi River. Rec. Doc. 175-1 at 2. They assert claims against defendants for: (1) damages to real or personal property, (2) loss of subsistence use of natural resources, and (3) loss of profits or impairment of earning capacity. Rec. Doc. 1 at 6.

This Court received notice of an automatic stay of proceeding when ACL filed for bankruptcy in February 2020. Without providing any notice of the dissolution of the stay, defendants filed the current motions for summary judgment in March 2021.^[2]

II. LAW AND ANALYSIS

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and

present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court will not assume in the absence of any proof that the nonmoving party could or would prove the necessary facts, and will grant summary judgment 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 [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 358 (5th Cir. 2017).

B. Claim for Lost Profits or Loss of Earning Capacity

Under the Oil Pollution Act of 1990 (OPA), “plaintiffs must establish that their economic losses were due to the injury, destruction, or loss of property or natural resources that resulted from the discharge.” In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 168 F.Supp.3d 908, 916 (E.D. La. 2016); see also In re Taira Lynn Marine Ltd. No. 5, LLC, 444 F.3d 371, 382 (5th Cir. 2006) (citing 33 U.S.C. § 2702(a), (b)(2)). “[I]t is a simple question of causation.” Bouquet Oyster House, Inc. v. United States, No. 09-3537, 2011 WL 5187292, at *7 (E.D. La. Oct. 31, 2011).

Plaintiffs' evidence is minimally sufficient to show that a genuine issue of material fact remains as to whether plaintiffs incurred damages for lost profits/loss earnings capacity resulting from the July 23, 2008 oil spill. They provide a variety of evidence to prove that the oil spill caused lost profits and loss of earning capacity for each individual plaintiff. On...