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In re Complaint of Columbia Leasing L.L.C.

United States District Court, E.D. Virginia, Norfolk Division

January 10, 2014


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[Copyrighted Material Omitted]

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For In the Matter of the Complaint of Columbia Leasing L.L.C. as Previous Owner, and Columbia Coastal Transport, L.L.C., as Present Owner and Previous Owner Pro Hac Vice of the Barge Columbia Houston Official No. 694869 and its Employee, Larry Ward, for Exoneration from or Limitation of Liability, Plaintiff: Patrick Michael Brogan, LEAD ATTORNEY, Christopher N. Harrell, Philip Norton Davey, Davey & Brogan PC, Norfolk, VA.

For John R Mullen, II, Karen Mullen, Claimants: Lance Arlington Jackson, Montagna Klein Camden LLP, Norfolk, VA.

For Ceres Marine Terminals, Inc., CERES TERMINALS INCORPORATED, Claimants: John Early Holloway, LEAD ATTORNEY, Barry Jason Barlow, Troutman Sanders LLP, Norfolk, VA.

For John R Mullen, II, Cross Claimant: Lance Arlington Jackson, Montagna Klein Camden LLP, Norfolk, VA.

For Ceres Marine Terminals, Inc., Cross Defendant: John Early Holloway, LEAD ATTORNEY, Barry Jason Barlow, Troutman Sanders LLP, Norfolk, VA.


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This matter is before the Court on a motion for summary judgment filed by Columbia Coastal Transport, L.L.C. (" Columbia Coastal" ) and Larry Ward (" Ward" ) (collectively " Plaintiffs" ), as well as a motion filed by John R. Mullen, II and Karen Mullen (" the Mullens" ) pursuant to Fed.R.Civ.P. 56(d), asserting that they cannot present facts essential to justify their opposition to the summary judgment motion. After examination of the record of this matter as a whole, the Court has determined that a hearing on the instant motion is unnecessary, as the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. Fed.R.Civ.P. 78(b); E.D. Va. Loc. Civ. R. 7(J). For the reasons discussed below, the Mullens' Rule 56(d) motion is DISMISSED AS MOOT and Plaintiffs' motion for summary judgment is GRANTED.


The facts in this case are largely undisputed. Longshoreman John Mullen (" Mullen" ) alleges that he was injured at the Portsmouth Marine Terminal (" PMT" ) in Portsmouth, Virginia on August 31, 2009, when attempting to board the COLUMBIA HOUSTON (" the barge" ), owned by Columbia Leasing, LLC (" Columbia Leasing" ) and bareboat chartered to Columbia Coastal. ECF No. 19. On that date, Ward was the port captain employed by Columbia Coastal. Columbia Coastal hired tug boats to tow the barge to the dock and a stevedore (" Ceres" ) to conduct the loading and unloading of containers to and from the barge. Ceres contracted with Express Container Services (" Express" ) to service the refrigerated containers on the barge. Mullen, a refrigerated container (" reefer" ) mechanic employed by Express, was scheduled to disconnect the power to the reefer units on the barge when it arrived at the PMT on August 31, 2009.

When the barge was docked at the PMT, a three-to-four-foot gap separated the barge from the dock, at least in part because of the bumpers/fenders between the dock and the barge. Although a ladder was permanently affixed to the side of the barge, because of the gap between the barge and the dock, the ladder could be used only when it aligned sufficiently with a bumper/fender located on the dock, which rarely occurred. In addition, Mullen was the only reefer mechanic assigned to the barge. The refrigerated containers were located in multiple sections of the barge. This required Mullen to board the barge at various times and locations in order to service the particular container being loaded or unloaded. Thus, for more than twenty years, the stevedores at the PMT chose to use a forklift and metal basket, located on the dock, to provide access from the dock to the barge. On August 31, 2009, at approximately 4:00 a.m., Mullen was required to service a

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refrigerated unit located near the barge's ladder. He entered a metal basket situated on the prongs of a Ceres-owned forklift. The forklift's prongs were inserted into slots on the bottom of the basket. A Ceres employee then lifted the basket on the forklift and drove toward the barge in order to deliver Mullen to the barge. However, as the basket approached the barge, the end of one of the forklift's prongs caught the side of the barge's ladder during the maneuvering of the metal basket, causing Mullen to be thrown about inside the basket when the prong was dislodged.

The Mullens filed a personal injury lawsuit in Portsmouth Circuit Court against Columbia Leasing, Columbia Coastal, Ward, and Ceres. On December 13, 2012, Columbia Leasing, Columbia Coastal, and Ward (collectively " Limitation Plaintiffs" ) filed in this Court a Complaint seeking exoneration from or limitation of liability. ECF No. 1. On February 25, 2013, this Court issued an injunction, pursuant to the Limitation of Liability Act, 46 U.S.C. § 30501, et seq., staying activity in the Portsmouth Circuit Court lawsuit. ECF No. 10 (amended February 28, 2013, ECF No. 11). On April 11, 2013, Ceres filed an Answer and Claim, seeking contribution from Limitation Plaintiffs in the event that " Ceres and Columbia are found jointly liable for the Mullens['] injuries." Ceres' Answer & Claim at ¶ 11, ECF No. 14. On April 23, 2013, the Mullens filed their Amended Answer, Claims, and Crossclaims to the Limitation Plaintiffs' Complaint. ECF No. 19. The Mullens asserted claims for personal injury under maritime law (by Mullen) and loss of consortium (by Mullen's wife) against Columbia Coastal and Ward.[1] According to the Mullens, both Mr. Mullen's injuries and Mrs. Mullen's loss of consortium were " a direct and proximate result of the negligence" of Columbia Coastal and/or Ward. Id. ¶ ¶ 24, 28. By order of May 6, 2013, the Court scheduled a December 17, 2013 trial date. ECF No. 20.[2] On August 28, 2013, Plaintiffs filed the instant motion for summary judgment against the Mullens. ECF No. 46. The Mullens filed their brief in opposition on September 11, 2013. ECF No. 55. In their response, the Mullens also seek relief under Federal Rule of Civil Procedure 56(d), requesting that the Court deny Plaintiffs' motion for summary judgment as to Ward or, in the alternative, delay its ruling as to Ward until the Mullens can complete their discovery. Plaintiffs filed a reply brief on September 17, 2013. ECF No. 56. Accordingly, the matter is now ripe for decision.


The Federal Rules of Civil Procedure provide that a district court shall grant summary judgment in favor of a movant if such party " shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The mere existence of some alleged factual dispute between the parties " will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the pleadings,

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affidavits, deposition transcripts, and other discovery materials demonstrate that there is no genuine dispute as to a material fact, " it is the 'affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.'" Hostettler v. Auto-Owners Ins. Co., 744 F.Supp.2d 543, 545 (E.D. Va. 2010) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

If a movant has properly advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere allegations of the pleadings, but instead must set forth specific facts in the form of exhibits and sworn statements illustrating a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At that point, " the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In doing so, the judge must construe the facts and all " justifiable inferences" in the light most favorable to the non-moving party, and the judge may not make credibility determinations. Id. at 255; T-Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380, 385 (4th Cir. 2012). After viewing the evidence in the non-movant's favor, " the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented." Anderson, 477 U.S. at 252. Because a ruling on summary judgment " necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits[,] . . . [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to overcome a defendant's well-founded summary judgment motion. Id. Accordingly, if the non-movant's evidence " is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50.


A. The Mullens' Rule 56(d) Motion

Plaintiffs filed their summary judgment motion on August 28, 2013. On September 5, 2013, the Mullens filed a Motion to Compel " complete" Answers and Responses from Columbia Coastal to certain interrogatories and requests for production. ECF No. 51. The Mullens alleged that Columbia Coastal had " objected to some but not all of the requested discovery," but asserted that the Motion to Compel should be granted because the " requested discovery is reasonable" and " within the scope of discovery authorized by Fed.R.Civ.P. 26(b)(1)." Defs.' Mem. in Supp. at 1, ECF No. 52. On September 10, 2013, the Mullens filed a Second Motion to Compel the depositions of Columbia Coastal and Ward. ECF No. 53. The Mullens claimed that Plaintiffs' " refusal to make themselves available for deposition is prejudicing the Mullens' efforts to present their claims to this Court" and to respond to Plaintiffs' " Motion for Summary Judgment." Defs.' Mem. in Supp. of Second Mot. to Compel at 4, ECF No. 54.

On September 11, 2013, one day after filing their Second Motion to Compel, the Mullens filed their response to Plaintiffs' Motion for Summary Judgment. Pursuant to Federal Rule of Civil Procedure 56(d), the response requested that the Court deny Plaintiffs' Motion for Summary Judgment as to Ward or, alternatively, delay ruling on the motion until the Mullens could complete the necessary discovery to adequately respond to Plaintiffs' Motion for Summary Judgment. Defs.' Br. in Opp'n at 24, ECF No. 55. As required by Rule 56(d), Mullens' counsel stated in a

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sworn declaration that he had been " unable to develop facts necessary to oppose the Motion for Summary Judgment filed by Petitioner Larry Ward" and that he specifically needed " complete responses to the Mullens' federal discovery to Columbia Coastal and the deposition of Larry Ward," in order to oppose Ward's summary judgment motion, Jackson Decl. ¶ ¶ 4, 12, ECF No. 55-4. Counsel listed the information he " expect[ed] to obtain," asserting that such information would " enable [him] to oppose Larry Ward's Motion for Summary Judgment." Id. ¶ 12.

On September 23, 2013, counsel for Plaintiffs responded to both of the Mullens' Motions to Compel, asserting that Columbia Coastal had " recently" provided the discovery requested in the Mullens' first Motion to Compel and that counsel thus " anticipate[d] that [the Mullens] will withdraw [the] motion to compel or at least state what they believe remains outstanding so that [Plaintiffs] may rectify if possible." Pls.' Br. in Opp'n at 2, ECF No. 57. Counsel for Plaintiffs also asserted that counsel had recently scheduled the depositions of Columbia Coastal and Ward to be taken on October 9, 2013. Id. Thus, counsel requested that the Court find both ...

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