Byron G. Francois v. Ports America Louisiana, L.L.C.; Ceres Gulf, Inc.; New Orleans Terminal LLC; And Unknown Hit-And-Run Driver

BYRON G. FRANCOIS * NO. 2020-CA-0440

VERSUS *
COURT OF APPEAL
PORTS AMERICA *
LOUISIANA, L.L.C.; CERES FOURTH CIRCUIT
GULF, INC.; NEW ORLEANS *
TERMINAL LLC; AND STATE OF LOUISIANA
UNKNOWN HIT-AND-RUN *******
DRIVER

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-11874, DIVISION “F”
Honorable Christopher J. Bruno, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Paula A. Brown)

Keith A. Doley
ATTORNEY AT LAW
1554 North Broad Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

José R. Cot
Robert K. Denny
HURLEY & COT
365 Canal Street, Suite 2750
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

VACATED AND REMANDED

MARCH 10, 2021

JCL
This is a tort case. Plaintiff/appellant, Byron G. Francois (“Francois”),
RLB
appeals the March 20, 2020 judgment of the district court, which granted summary
PAB
judgment in favor of defendants/appellees, Ceres Gulf, Inc. (“Ceres”) and New

Orleans Terminal, L.L.C. (“NOT”), and dismissed all claims against Ceres and

NOT. For the reasons that follow, we vacate the judgment and remand for further

proceedings.

This litigation arises from an alleged hit-and-run accident on December 4,

2017 at the Napoleon Avenue Container Terminal located in the Port of New

Orleans. On November 28, 2018, Francois filed a petition for damages alleging

that he sustained personal injuries when an unknown driver operating a “yard

mule” vehicle rear-ended the tractor-trailer that Francois was operating. In his

petition, Francois alleged that the yard mule was owned and operated by Ceres,

NOT,1 and/or Ports America Louisiana, L.L.C. (“Ports America”), all of which are

companies providing stevedoring services in the Port of New Orleans.

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NOT is a joint venture between Ceres and a nonparty, Container Marine Terminals, L.L.C.

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In response, on February 8, 2019, Ceres and NOT filed a dilatory exception

of vagueness, contending that Francois failed to allege specific facts supporting

that they owned the yard mule in question. The record does not reflect any hearing

or ruling on this exception has gone forward, and Ceres and NOT did not file an

answer or affirmative defenses to Francois’ petition. On March 20, 2019, Ports

America filed a cross claim against NOT and Ceres alleging damage to its chassis

trailer as a result of the accident.

On August 23, 2019, NOT and Ceres Gulf filed a motion for summary

judgment, arguing Francois had no evidence of their involvement in or liability for

the accident. In support of their motion, NOT and Ceres introduced, in relevant

part, the affidavit of NOT manager Kristopher Calkins (“Calkins”), attesting that

Ceres does not own any yard mules and that NOT reviewed its equipment and

found no evidence of a damaged yard mule or NOT driver with knowledge of

Francois’ accident. Calkins also attested that the area where the accident allegedly

occurred is operated by Ports America. The hearing was initially set on October 4,

2019, but was continued on Francois’ unopposed motion. The hearing was again

continued to January 10, 2020 on Ceres and NOT’s unopposed motion.

On December 20, 2019, Ports America filed an opposition to summary

judgment, arguing that discovery is incomplete and that factual disputes exist as to

whether NOT employees performed work in the vicinity of the accident scene.

Ports America introduced affidavits by its employees Jason Reitmeyer and Anita

Dargan, attesting that NOT exclusively conducts railcar operations in the area

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where the accident occurred, along with a “dashcam” video purportedly showing a

NOT top loader vehicle near the scene of the accident.

Francois likewise filed an opposition on December 23, 2019, arguing that

discovery is ongoing and that NOT and Ceres have been uncooperative in

obtaining said discovery and identifying the yard mule driver. Francois also

introduced Anita Dargan’s affidavit in support of his opposition but did not

introduce any additional evidence. On January 3, 2020, Ceres and NOT filed a

reply memorandum arguing that Francois failed to adequately investigate the

accident or conduct necessary discovery.

The summary judgment hearing went forward on January 10, 2020, at which

time Francois made an oral motion requesting 90 days in which to conduct

discovery. The district court denied the requested continuance from the bench, and

on March 30, 2020, the district court rendered summary judgment dismissing the

claims against NOT and Ceres. This appeal followed, in which Francois raised two

assignments of error:

I. The trial judge erred, as a matter of law, in granting summary
judgment dismissing with prejudice appellant’s claims where
Ceres Gulf, Inc. and New Orleans Terminal, LLC utterly failed
to meet the burden of proof imposed upon them by Code of
Civil Procedure Article 966, and genuine issues of material fact
remain in dispute.

II. It was an abuse of the trial court’s discretion to refuse to allow
additional time for appellant to complete discovery prior to
granting summary judgment and dismissing appellant’s suit.

“Appellate courts review a judgment granting or denying a motion for

summary judgment de novo.” Serpas v. Univ. Healthcare Sys., 16-0948, p. 2 (La.

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App. 4 Cir. 3/8/17), 213 So.3d 427, 428 (quoting Louisiana High Sch. Athletics

Ass’n, Inc. v. State, 12-1471, p. 18 (La. 1/29/13), 107 So.3d 583, 598).2 Ordinarily,

a motion for summary judgment may be granted only “[a]fter an opportunity for

adequate discovery...” La. C.C.P. 966(A)(3).

When discovery is alleged to be incomplete, it is within the district court’s

discretion either to hear the summary judgment motion or to grant a continuance to

allow for further discovery. Roadrunner Transportation Sys. v. Brown, 17-0040, p.

11 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272 (citations omitted). The

standard of review for a district court’s choice to hear a motion for summary

judgment or to grant a continuance, in this procedural context, is an abuse of

discretion standard. Id., 17-0040, p. 11, 219 So.3d at 1272-73 (citing Rivarde v.

City of New Orleans, 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403).

2
An appellate court, using the same standard used by the district court, must determine:

whether there is a genuine issue of material fact and whether the mover is entitled
to judgment as a matter of law….

…[A] “genuine issue” is a “triable issue.” ... An issue is genuine if reasonable
persons could disagree. If ... reasonable persons could reach only one conclusion,
there is no need for a trial on that issue. ... A fact is “material” when its existence
or nonexistence may be essential to plaintiff’s cause of action under the applicable
theory of recovery.

Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, pp. 4-5 (La. 5/22/07),
958 So.2d 634, 638 (internal citations omitted).

La. C.C.P. art. 966(D)(1) sets forth a shifting burden of proof as follows:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear
the burden of proof at trial on the issue that is before the court on the motion for
summary judgment, the mover’s burden on the motion does not require him to
negate all essential elements of the adverse party’s claim, action, or defense, but
rather to point out to the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense. The burden is
on the adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not entitled to
judgment as a matter of law.

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“Although the language of [Louisiana Code of Civil Procedure] article 966

does not grant a party the absolute right to delay a decision on a motion for

summary judgment until all discovery is complete, the law does require that the

parties be given a fair opportunity to present their case.” Serpas, 16-0948, p. 2, 213

So.3d at 429 (quoting Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention

Grp.), 03-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969). “Unless

plaintiff shows a probable injustice a suit should not be delayed pending discovery

when it appears at an early stage that there is no genuine issue of fact.” Rivarde,

15-0655, p. 7, 190 So.3d at 405 (citations omitted).

With respect to an inadequate discovery claim, this court has identified the

following four relevant factors to be considered:

(i) whether the party was ready to go to trial,

(ii) whether the party indicated what additional discovery was needed,

(iii) whether the party took any steps to conduct additional discovery
during the period between the filing of the motion and the hearing on
it, and

(iv) whether the discovery issue was raised in the trial court before the
entry of the summary judgment.

Roadrunner, 17-0040, pp. 11-12, 219 So.3d at 1273 (citing Bass P’ship v.

Fortmayer, 04-1438, p. 10 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75; Greenhouse

v. C.F. Kenner Associates Ltd. P’ship, 98-0496, p. 3 (La. App. 4 Cir. 11/10/98),

723 So.2d 1004, 1006).

Applying those factors to the record on appeal, we are unable to conclude

that there has been an opportunity for adequate discovery.

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First, no party indicates readiness for trial. There was no trial date set or any

scheduling order or deadlines in which the parties were required to complete

discovery. In the Civil District Court of the Parish of Orleans, Local Rule 9.14

specifies the district court’s procedure – that cases may be set for trial upon a

written motion by a party certifying, among other things, that all depositions and

discovery have been completed, and that the matter is ready to be set for trial.

Ceres and NOT did not file an answer to Francois’ petition, and the record reflects

no resolution of those defendants’ exception of vagueness. Regarding the second

and third factors, it is evident from the record that discovery was in its infancy

when the motion for summary judgment was filed. No depositions had been taken,

and the record does not bear out what discovery was done in the period between

the motion for summary judgment’s filing and the district court’s ruling. Francois

does not explain what specific discovery he will do if afforded more time, though

he argues he seeks Ceres’ and NOT’s cooperation in identifying the at-fault yard

mule and driver, presumably through written and deposition discovery. Turning to

the fourth factor, both Francois and Ports America opposed summary judgment on

the basis of inadequate discovery, and Francois requested two continuances of the

summary judgment hearing, the second of which specifically cited the need for

more time to conduct discovery. Taken together, these factors support Francois’

position that the district court abused its discretion in failing to allow adequate

discovery before ruling on Ceres and NOT’s motion for summary judgment.

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This Court has found summary judgment premature where the party

opposing summary judgment was not afforded a reasonable opportunity to take

relevant depositions prior to being required to defend against the motion for

summary judgment. Serpas, 16-0948, p. 2, 213 So.3d at 429 (citing Doe v. ABC

Corp., 00-1905, p. 11 (La. App. 4 Cir. 6/27/01), 790 So.2d 136, 143); see also

Milton-Gustain v. Salvage Store, Inc., 19-01854, pp. 1-2 (La. 2/10/20), 289 So.3d

48, 48. We recognize that, unless plaintiff shows “probable injustice,” courts will

refuse to delay determination of summary judgment under the guise of pending

discovery, when it appears at an early stage of the litigation that no genuine issues

of fact exist. See Rivarde, 15-0655 at p. 7, 190 So.3d at 405 (quotations omitted).

The record here does not support such a result. A scant nine months elapsed

between the filing of this lawsuit and the filing of Ceres and NOT’s summary

judgment motion. While Ceres and NOT point to some lack of diligence in

Francois’ discovery efforts, we find no indication at this stage that any party

completed its discovery or had adequate opportunity to do so, and it remains too

early in the litigation to determine whether material factual disputes remain.

On the particular facts of this case, summary judgment was prematurely

granted.3 We, therefore, vacate the judgment of the district court and remand this

matter for further proceedings.

VACATED AND REMANDED

3
Because we find the prematurity issue dispositive, we pretermit consideration of Francois’
remaining assignment of error.

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