Filed: Aug. 14, 1992
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No.92-4002 Summary Calendar _ NATHAN JOSEPH CORMIER, JR. and FELICIA MARIE LEJEUNE CORMIER, Plaintiffs-Appellants, VERSUS PENNZOIL EXPLORATION & PRODUCTION COMPANY, ET AL., Defendants, CLEMCO INDUSTRIES CORP., Defendant-Appellee. _ Appeals from the United States District Court for the Western District of Louisiana _ (July 8, 1992) Before JOLLY, DAVIS and SMITH, Circuit Judges. PER CURIAM: Nathan Cormier appeals the district court's dismissal
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No.92-4002 Summary Calendar _ NATHAN JOSEPH CORMIER, JR. and FELICIA MARIE LEJEUNE CORMIER, Plaintiffs-Appellants, VERSUS PENNZOIL EXPLORATION & PRODUCTION COMPANY, ET AL., Defendants, CLEMCO INDUSTRIES CORP., Defendant-Appellee. _ Appeals from the United States District Court for the Western District of Louisiana _ (July 8, 1992) Before JOLLY, DAVIS and SMITH, Circuit Judges. PER CURIAM: Nathan Cormier appeals the district court's dismissal ..
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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No.92-4002
Summary Calendar
_____________________________________
NATHAN JOSEPH CORMIER, JR.
and FELICIA MARIE LEJEUNE CORMIER,
Plaintiffs-Appellants,
VERSUS
PENNZOIL EXPLORATION & PRODUCTION COMPANY, ET AL.,
Defendants,
CLEMCO INDUSTRIES CORP.,
Defendant-Appellee.
______________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
______________________________________________________
(July 8, 1992)
Before JOLLY, DAVIS and SMITH, Circuit Judges.
PER CURIAM:
Nathan Cormier appeals the district court's dismissal of his
action on summary judgment against defendant Clemco Industries,
Inc. We affirm.
I.
Nathan Cormier and his wife Felicia LeJeune Cormier filed a
complaint in district court alleging that Mr. Cormier injured his
leg on April 16, 1990, while he was sandblasting aboard a platform
located beyond the seaward boundaries of Louisiana in the Gulf of
Mexico. Cormier alleged that his injuries occurred when a deadman
control on a sandblasting hose malfunctioned in close proximity to
his body. Cormier named Clemco Industries, Inc. (Clemco) as a
defendant in the complaint, contending that Clemco manufactured the
deadman control at issue.
On October 2, 1991, Clemco filed a motion for summary
judgment, arguing that it did not manufacture the device that
injured Cormier. Cormier opposed the motion and requested
additional time to reply. The district court denied the motion for
additional time on October 16, 1991. On December 2, 1991, the
district court granted summary judgment. The court entered final
judgment pursuant to Fed. R. Civ. P. 54(b). Only Nathan Cormier
filed a notice of appeal. The appellant's brief purports to be on
behalf of Nathan and his wife.
II.
A.
Cormier argues that the district court erred in granting
summary judgment because a factual dispute exists concerning the
manufacturer of the deadman control at issue. This Court reviews
the grant of summary judgment motion de novo, using the same
criteria used by the district court in the first instance. Johnson
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v. Odom, 910 F.2d 1273, 1277 (5th Cir. 1990). The Court reviews
the evidence and inferences to be drawn therefrom in the light most
favorable to the non-moving party.
Id.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment is appropriate if the "'pleadings, depositions, answers to
interrogatories, 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 a judgment as a matter of
law.'" Celotex Corp. v. Catrett,
477 U.S. 317, 322,
106 S. Ct.
2548,
91 L. Ed. 2d 265 (1986)(quoting Rule 56(c)). If the moving
party meets the initial burden of establishing that there is no
genuine issue, the burden shifts to the non-moving party to produce
evidence of the existence of a genuine issue for trial.
Id. A
factual dispute is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Beck v. Somerset Technologies, Inc.,
882 F.2d 993, 996 (5th Cir.
1989)(citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248,
106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986)).
In response to a subpoena duces tecum, Cormier's employer,
Tim Meaux, the president of Meaux Services, Inc. (MSI), produced a
deadman control which was manufactured by Pauli & Griffin Company.
Cormier testified at his deposition that the deadman control
produced by his employer did not look like the one that was
involved in his accident. Cormier further testified that he did
not know who manufactured the offending deadman control. R. 1,
153. Dave Hansel, the vice president of Clemco, stated in an
affidavit that: "Based upon Mr. Cormier's description of the
'deadman handle' and the photographs, the control handle involved
in Mr. Cormier's accident was not manufactured or supplied by
Clemco Industries."
Cormier produced two affidavits, one executed by his attorney
and the other executed by Mary Jeanette Rush, who was acting at
counsel's instruction, both of which indicated that the affiants
were told by someone named "Brenda" at MSI that the deadman control
involved in the accident was manufactured by Clemco. When
affidavits are used to support or oppose a summary judgment motion,
they "`shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify as to the
matters stated therein.'" Akin v. Q-L Investments, Inc., 959 F.2d
521, 530 (5th Cir. 1992) (quoting Rule 56(e)). Neither of the
affidavits offered by Cormier is based on personal knowledge; both
rely on hearsay statements. Neither the district court nor this
Court may properly consider hearsay evidence in affidavits and
depositions. Martin v. John W. Stone Oil Distributor, Inc.,
819
F.2d 547, 549 (5th Cir. 1987).
Based upon the summary judgment evidence that was not
objectionable, the district court properly concluded that no
genuine issue of material fact was presented.
B.
Cormier also contends that the district court abused its
discretion in denying his motion to stay the appellees' motion for
summary judgment pursuant to Fed. R. Civ. P. 56(f). To obtain a
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Rule 56(f) continuance, the nonmovant must present specific facts
explaining how postponement of a ruling on the motion will enable
him to rebut the movant's showing of the absence of a genuine issue
of fact. See Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285
(5th Cir. 1990). A plaintiff's entitlement to discovery prior to
a ruling on a summary judgment motion may be cut off when, within
the trial court's discretion, the record indicates that further
discovery will not likely produce facts necessary to defeat the
motion. Fisher v. Metropolitan Life Ins. Co.,
895 F.2d 1073, 1078
(5th Cir. 1990). The grant or denial of a continuance pursuant to
Rule 56(f) is to be disturbed on appeal only if the district
court's decision reflects an abuse of discretion. Paul Kadair,
Inc. v. Sony Corp. of America,
694 F.2d 1017, 1029-30 (5th Cir.
1983).
Cormier's motion for continuance offered only a vague
discovery plan "suggesting to the Court that the depositions of
employees of Meaux Services, Inc. and possibly others should be
taken regarding who was in fact the manufacturer of the subject
equipment." The memorandum in support of the motion indicated
only that discovery was still proceeding and that he was unable to
locate the offending deadman control. In addition, one month
elapsed between the time the court denied Cormier's motion for
continuance and the scheduled hearing on Clemco's summary judgment
motion. Cormier took no discovery during that time. Nor did
Cormier or his attorney appear at the hearing on the motion for
summary judgment to oppose the motion or advance any plans they had
5
to discover the manufacturer of the allegedly defective part.
Based on this information, the district court was entitled to
conclude that the appellant was not likely to discover additional
helpful information and did not abuse its discretion in denying
appellant's motion for continuance.
AFFIRMED.
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