Opinion
Civil Action No: 99-1586, SECTION: "R"(4)
May 25, 2000
ORDER AND REASONS
Plaintiffs, Shelba and Frank Gregg, and third-party defendants, Wilhelmsen Shipowning A.S. and Barber Ship Management A.S., both move the Court to reconsider its Order of April 19, 2000, granting in part the motion of defendant, T.L. James Co., Inc., for summary judgment. Also before the Court is James' motion for summary judgment, seeking to dismiss plaintiffs' remaining claim against it. For the following reasons, the Court DENIES the motions for reconsideration and the motion for summary judgment.
I. BACKGROUND
This is a negligence action brought under the General Maritime Law. Shelba and Frank Gregg seek damages for injuries that Frank allegedly suffered on July 19, 1998 when he fell while being transported from a dredging operation on the Mississippi River aboard the M/V TRINITY, an uninspected surveying boat owned by James. At the time of the accident, Captain Jeffrey Burks, a James employee, was navigating the TRINITY through a wake allegedly created by the M/V TEXAS, a vessel owned by Wilhelmsen and chartered by Barber. James impleaded Wilhelmsen and Barber, along with the TEXAS in rem, on January 20, 2000. None of the parties requested a trial by jury.
On March 28, 2000, James moved for summary judgment, seeking to dismiss all of plaintiffs' claims against it. The Court partially granted James' motion on April 19, 2000. In relevant part, the Court granted summary judgment in James' favor on the issues of James' negligence in navigating the TRINITY and failing to warn Gregg of the approaching wake; denied summary judgment on James' alleged failure to instruct Mr. Gregg to sit in the passenger seating area of the TRINITY, rather than in the wheelhouse; and granted summary judgment against plaintiffs on their claim that James violated the federal manning statute, 46 U.S.C. § 8104(b). ( See Order Reasons dated April 19, 2000, at 7-9.) Plaintiffs now move to reconsider the grant of summary judgment on the statutory violation issue. Wilhelmsen and Barber move to reconsider the grant of summary judgment on whether James is liable for negligently navigating the wake. James argues that the Court should now grant summary judgment on plaintiffs' remaining claim — whether James negligently failed to instruct Mr. Gregg to sit in the passenger seating area of the TRINITY.
II. DISCUSSION
A. Motions to Reconsider
The Federal Rules of Civil Procedure do not recognize a motion to reconsider in haec verba. See Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir. 1994). Nevertheless, the Fifth Circuit has held that a motion to reconsider a dispositive pretrial motion may be classified under either Rule 59 or Rule 60, depending upon the time of filing. See id. If it is filed within ten days of the court's judgment, a motion for reconsideration is treated as a Rule 59(e) motion "to alter or amend" the judgment. See id.; Pryor v. United States Postal Service, 769 F.2d 281, 285 (5th Cir. 1985). If filed more than ten days post-judgment, a motion for reconsideration falls under Rule 60(b) as a motion for "relief from judgment." See Lavespere, 910 F.3d at 173. Here, plaintiffs filed their motion for reconsideration less than ten days after this Court entered its order on James' summary judgment motion. Accordingly, the Court analyzes plaintiffs' motion under Rule 59(e). Because Wilhelmsen filed its motion for reconsideration more than ten days after the Court issued its judgment, however, its motion is addressed under Rule 60(b).
1. Plaintiffs' Motion for Reconsideration, Rule 59(e)
The district court has considerable discretion to grant or deny a motion under Rule 59(e). Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993); Lavespere, 910 F.2d at 174. The court must "strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts." Bohlin, 6 F.3d at 355. Courts in this district have held that a moving part must satisfy at least one of the following four criteria to prevail on a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; and (4) the motion is justified by an intervening change in the controlling law. See Fidelity Deposit Co. v. Omni Bank, 1999 WL 970526, at *3 (E.D. La. Oct. 21, 1999); Jupiter v. BellSouth Telecomms., Inc., 1999 WL 796218, at *1 (E.D. La. Oct. 5, 1999); Burma Navigation Corp. v. Seahorse, 1998 WL 781587, at *1 (E.D. La. Nov. 3, 1998); Fields v. Pool Offshore, Inc., 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998), aff'd, 182 F.3d 353 (5th Cir. 1999).
Here, plaintiffs argue that the Court erred when it granted summary judgment in James' favor on the issue of whether James violated the federal manning statute, 46 U.S.C. § 8104(b). Plaintiffs' arguments are most apposite to the first and third factors, that the motion is necessary to prevent a manifest error of law or to prevent manifest injustice. In its Order, the Court held that, even assuming the statute applied and shifted the burden to James to prove that a violation of the statute could not have caused the accident, the record contained no evidence to support a causal connection between the manning requirement and plaintiffs' remaining claim that James negligently failed to instruct Mr. Gregg where to sit aboard the TRINITY. As James pointed out, the accident occurred in the first half-hour of Burks' shift. Moreover, plaintiffs did not allege that Burks did not see the approaching wake due to fatigue. The Court therefore found that no genuine issue of material fact existed as to causation, an essential element of plaintiffs' claim.
Plaintiffs assert nothing in their motion that justifies reconsideration of this claim. Accordingly, the motion is denied.
2. Wilhelmsen's Motion for Reconsideration, Rule 60(b)
A Rule 60(b) motion is governed by more exacting substantive requirements than a Rule 59(e) motion. See Lavespere, 910 F.2d at 173. Under Rule 60(b) the court will grant relief from a final judgment or order only upon a showing of one of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Wilhelmsen and Barber argue that the Court should reconsider its judgment granting summary judgment against plaintiffs on the ground that James negligently navigated the TRINITY at the time of the accident. In support, they offer the report of Ian Cairns, a proffered expert in maritime navigation and operation. Cairns issued his report on May 3, 2000, after this Court entered its Order partially granting summary judgment. The Court therefore treats third-party defendants' motion as one brought under Rule 60(b)(2) on the grounds of newly discovered evidence.
To prevail on a Rule 60(b) motion based on newly discovered evidence, the movant must demonstrate "(1) that it exercised due diligence in obtaining the information and (2) `the evidence is material and controlling and clearly would have produced a different result if presented before the original judgment.'" New Hampshire Ins. Co. v. Martech USA, Inc., 993 F.2d 1195, 1200-01 (5th Cir. 1993) (footnote omitted) ( quoting Brown v. Petrolite Corp., 965 F.2d 38, 50 (5th Cir. 1992)). In its Order granting summary judgment on the issue of whether James negligently navigated the TRINITY at the time of Mr. Gregg's accident, the Court relied on the affidavit and report of James' proffered marine safety expert Captain Norman Antrainer as well as Mr. Gregg's deposition testimony. ( See Order Reasons dated April 19, 2000, at 7-9.) Antrainer opined that the operational skills of Burks, and the subsequent conduct of the TRINITY at the time of the alleged accident, complied with good maritime practice. ( See id. at 7.) The Court noted that plaintiffs offered no specific evidence to refute this conclusion. In fact, when asked by defense counsel if Burks did anything wrong that contributed to his accident, Mr. Gregg testified that he was not familiar enough with boat operations to respond.
Wilhelmsen and Barber now contend that summary judgment was inappropriate on the negligent navigation claim in light of Cairns' opinion that the TRINITY should have been able to handle any wake created by the TEXAS. According to Wilhelmsen and Barber, "[w]hile there is no direct testimony that the navigation was improper, the circumstantial evidence may lead the Court to that conclusion. . . ." (Mem. Supp. Mot. Reconsider, at 2-3.) James has proffered the expert report of Captain Antrainer, in which Antrainer stated that Burks acted in accordance with good maritime practice when he navigated the TRINITY in an attempt to avoid the TEXAS' oncoming wake. As Wilhelmsen and Barber concede, Cairns' report expresses no opinion that Burks improperly navigated the TRINITY. The Court therefore finds Cairns' opinion insufficient to establish a genuine issue of material fact on the negligent navigation claim and denies third-party defendants' motion to reconsider on this ground.
As Wilhelmsen and Barber note, Cairns opines that Mr. Gregg's injuries occurred as a result of James failure to provide an adequate seating area for him. ( See Wilhelmsen Barber Mot. Reconsider Ex. A, Cairns Report, at 5-6.) This evidence is irrelevant to their motion to reconsider, however, as the Court did not grant summary judgment against plaintiffs on their claim that James negligently failed to advise Mr. Gregg to sit in the passenger seating area of the TRINITY, rather than in the wheelhouse.
B. James' Motion for Summary Judgment
1. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere, 910 F.2d at 178 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon allegations and denials. See id. at 324, 106 S.Ct. at 2552.
The Fifth Circuit has "arguably articulated an even more lenient standard for summary judgment in certain nonjury cases." Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 273 n. 15 (5th Cir. 1987). The panel in Phillips Oil noted that "while the standard for summary judgment `mirrors the standard for directed verdict-under Federal Rule of Civil Procedure 50(a), [in] the same fashion in nonjury cases it mirrors the standards for dismissals provided by Rule 41(b).'" a U.S. Fidelity and Guaranty Co. v. Planters Bank Trust Co., 77 F.3d 863 (5th Cir. 1996) ( citing Professional Managers, Inc. v. Fawer, Brian, Hardy Zatzkis, 799 F.2d 218, 223 (5th Cir. 1986)). In Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 (5th Cir. 1978), the Fifth Circuit explained:
Under Rule 41(b), the defendant in a nonjury case may move for dismissal after the plaintiff has presented his evidence, on the grounds that the plaintiff has demonstrated no right to relief. See FED. R. CIV. P. 41(b).
There is no litmus test that infallibly distinguishes those issues that are `factual' from those that are `legal' or `mixed.' . . . as we approach the point where facts and the application of legal rule to them blend, appraising evidentiary facts in terms of their legal consequences and `applying' law to fact become inseparable processes.
Therefore, in a nonjury case the court is encouraged to draw inferences, even when they appear to be factual, if a "trial on the merits would reveal no additional data." Id. at 1124.
2. Discussion
On April 19, 2000, the Court denied James' motion for summary judgment as to plaintiffs' claims that James negligently failed to advise Mr. Greggs to sit in the passenger seating area of the TRINITY, rather than in the wheelhouse. As the Court previously noted, the owner of a ship in navigable water owes a duty to exercise reasonable care under the circumstances to all of its passengers. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406 (1959). The Fifth Circuit has held that shipowners are generally held to a high degree of care for the safety of their passengers. See Smith v. Southern Gulf Marine Co. No. 2, Inc., 791 F.2d 416, 420 (5th Cir. 1986). In determining the level of care a shipowner owes its passengers, the Court considers a number of factors bearing on the "circumstances of each case," including "the experience of the crew, the type of carrier involved, the dangers to the passengers peculiar to that type of carrier, the carrier's degree of control over the passengers, and the carrier's ability to take precautions against such dangers. Id. at 421. This Court considered these factors in denying summary judgment in James' favor on plaintiffs' failure to instruct claim. The Court found that "[a]s Captain, Burks could control where his passengers sat and he knew that the [stool on which Mr. Greggs sat] was not affixed [to] the floor; nevertheless, he customarily permitted passengers like plaintiff to sit in the wheelhouse." (Order Reasons dated April 19, 2000, at 10.) The Court also noted that the TRINITY had a designated area for passenger seating, Greggs had no prior experience operating vessels or working on the river, and James' expert did not address the propriety of Burks' failure to require Mr. Gregg to sit in the passenger area during the voyage. Based on the foregoing factors, the Court found that an issue of fact existed as to whether James exercised reasonable care under the circumstances to its passenger Mr. Gregg.
James now moves for summary judgment again on the failure to instruct claim. It argues that the Kermarec duty of reasonable care "does not encompass a duty to ask passengers about information concerning their experience in maritime matters nor the duty to instruct passengers where to ride." (Mem. Supp. Summ. J., at 3.) In support, James cites Summers v. Motor Ship Big Ron Tom, 262 F. Supp. 400 (D.S.C. 1967) and Aronowitz v. Molero, 273 F. Supp. 226 (E.D. La. 1967). These cases do not support James' contention that, as a matter of law, a shipowner owes no duty to inquire as to its passengers experience or to instruct them where to ride. Rather those cases both examined the actions of the vessels' captains and concluded that, under the circumstances, the shipowner had exercised reasonable care. See Summers, 262 F. Supp. at 404-05 (finding passenger was jumping up and down with motion of the vessel and disregarded warning from master of vessel to be seated); Aronowitz, 273 F. Supp. at 228 (conditions encountered were obvious to passengers, all experienced fishermen). The Court, the factfinder in this case, has reviewed both of the cases cited by James in light of the circumstancesof this case and finds nothing in them to justify granting summary judgment as a matter of law in James' favor. Accordingly, James' motion for summary judgment is denied.
III. CONCLUSION
For the foregoing reasons, the Court DENIES the motions of plaintiffs and third-party defendants to reconsider its Order of April 19, 2000 and DENIES James' motion for summary judgment.