MEMORANDUM RULING

REBECCA F. DOHERTY, District Judge.

Currently pending before this Court is a "Motion for Partial Summary Judgment" [Doc. 22] filed by defendants, Alpha Drilling, L.L.C., p/k/a Drilling Productivity Realized, L.L.C., Bravo Drilling, L.L.C., p/k/a P.C. Axxis, L.L.C. and Axxis Drilling, Inc. (collectively referred to as "Axxis").1 In their motion, defendants argue plaintiff was not a Jones Act seaman at the time of the second accident sued upon.2 Specifically, defendants move for a partial judgment, "holding that Plaintiff was not a Jones Act seaman at the time of his accident on October 20, 2007, thus Plaintiffs recovery for such accident, if any, is limited to compensation under the Louisiana Workmen's Compensation Act, La. R.S. 23:1021 et seq." [Doc. 22-1, p. 8] The motion is opposed by plaintiff [Doc. 24]. For the following reasons, the motion is DENIED.

I. Factual and Procedural Background

Plaintiff began working for Axis in 2003 as a floorhand.3 [Doc. 22-1, p. 2] After sustaining several injuries and while recuperating from surgery, "Axxis sent Plaintiff to crane operating school because working as a crane operator would be less strenuous on Plaintiffs body than roughnecking." [Id.] "Plaintiff returned to work with Axxis as a crane operator aboard the D/B JUSTICE on December 1, 2005." [Id.] Plaintiff alleges on February 9, 2006, while working as a crane operator for Axxis aboard the D/B JUSTICE, a self-propelled drilling barge, "his right lower extremity was crushed between [a] crane and the crane's door," resulting in injuries "to his right lower extremity and lower back." [Docs. 1, ¶ 11; 22-2, ¶ I; 24-1, ¶ 1]

On July 11, 2006, Cindy Lynch, Axxis' Personnel Manager, called plaintiff and instructed him to report to Axxis' office on July 13, 2006 at 8:30 a.m.4 [Doc. 24-2] At that time, Dr. Langford, plaintiffs treating physician, had placed plaintiff on a "no work status." [Docs. 24, p.2; 24-2, p. 13] On July 17, 2006, Ms. Lynch wrote to Dr. Langford asking whether plaintiff had reached maximum medical improvement ("MMI") with respect to his right knee. Dr. Langford responded by stating plaintiff had not reached MMI, and provided the following explanation:

[Doc. 24-1, p. 3]. On July 21, 2006, Ms. Lynch called Dr. Langford, requesting his opinion as to whether or not plaintiff was capable of light work, as Axxis wanted a light duty release for plaintiff. [Doc. 24, p. 3] On July 24, 2006, Dr. Langford changed plaintiffs work status to "light duty status (desk work)," adding "this release provided in compliance with employer request after latest diagnostic evaluation." [Doc. 24, p. 3]. On July 26, 2006, Ms. Lynch prepared a document addressed to plaintiff, stating in pertinent part as follows: "This is to notify you that you are being reassigned from our barge rig operations to our land/office operations. This is effective immediately and is a permanent reassignment." [Doc. 22-5] Plaintiff signed the notice of reassignment on August 7, 2006. [Doc.22-1, p.4; Doc.22-5].

Plaintiff remained on "light duty" for approximately nine months. On March 28, 2007, plaintiff underwent a Functional Capacity Evaluation ("FCE") at Axxis' request. [Doc. 24, p. 4] The report from the evaluation (dated April 13, 2007) stated plaintiff was capable of performing "medium level" work, his previous job as a crane operator constitutes medium level work, and therefore plaintiff would be able to return to his former job as a crane operator. [Doc. 24-2, pp. 19-20] The report is silent as to whether or not plaintiff could perform any job other than "crane operator." [Id.] Plaintiff was released to return to work at Axxis on April 19, 2007. [Doc. 22-1, pp. 2-3].

On some unspecified date after April 19, 2007, plaintiff was assigned to work as a galley hand on the land rig GEORGIA. [Doc. 22-1, p. 3]. Plaintiff testified at his deposition that Axxis continued to pay him the wages of a crane operator while he worked as a galley hand. [Doc. 24-2, p. 7] Plaintiff additionally testified Axxis only assigned him to land-based work temporarily, until a position for a crane operator became available. [Docs. 24, pp. 5-6; 24-2, pp. 3-7]. Defendants dispute the truth of the foregoing statement and have submitted the affidavit of Robert Dunn, President of Axxis, in which he asserts: "At no time did I inform Plaintiff that his position on the GEORGIA was temporary until a crane operator's position became available on a drilling barge."5 [Doc. 22-5, p. 8, ¶ 6]

On either October 19 or 20, 2007, while working as a galley hand on the GEORGIA, plaintiff alleges he injured his cervical spine while unloading a 148 quart cooler packed with ice and meat from the back of a flatbed truck.6 [Docs. 24-1, p. 5; 22-1, p. 3; 22-3, p. 19] Plaintiff subsequently filed suit in this Court, seeking damages for both the February 2006 and the October 2007 accidents. Thereafter, defendant filed the motion for partial summary judgment now pending before this Court.

II. Summary Judgment Standard

A party claiming relief, or a party against whom relief is sought, may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Fed. R. Civ. Proc. 56(a) and (b). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c)(l)(2).

Fed. R. Civ. Proc. 56(e). As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994):

The Supreme Court has instructed:

Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The Court later states:

Id. at 888-89, 110 S.Ct. 3177(internal quotations and citations omitted). The Fifth Circuit has further elaborated:

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).

Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Id. To the contrary, in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached. Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).

III. Applicable Law

To qualify as a seaman under the Jones Act, plaintiff bears the burden at trial of proving seaman status. Becker v. Tidewater, Inc., 335 F.3d 376, 390, n. 8 (5th Cir.2003)(citing Barrett v. Chevron, U.S.A., Inc., 752 F.2d 129, 132 (5th Cir. 1985)). To prove seaman status, plaintiff must show: (1) his duties "contribut[ed] to the function of the vessel or to the accomplishment of its mission," and (2) he has "a connection to a vessel in navigation (or to an identifiable group of such vessels7) that is substantial in terms of both its duration and its nature." Chandris. Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). "[S]atisfying the first prong of the test is relatively easy: the claimant need only show that he `do[es] the ship's work.' This threshold requirement is `very broad,' encompassing `all who work at sea in the service of a ship.'" Becker at 387-88 (quoting Chandris at 368, 115 S.Ct. 2172). The purpose of the second prong (i.e. the "substantial connection" requirement) is to "separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea." Chandris at 368, 115 S.Ct. 2172. "Importantly, this second prong constitutes a `status-based' standard—i.e., `it is not the employee's particular job that is determinative [of seaman status], but the employees connection to a vessel.'" Becker at 388 (quoting Chandris at 370, 115 S.Ct. 2172)(alterations in original).

When determining whether an employee is a seaman (as opposed to, for example, a land-based employee temporarily working aboard a vessel), the court looks to the "total circumstances of an individual's employment" and must consider both "[t]he duration of a worker's connection to a vessel and the nature of the worker's activities." Id. at 370, 115 S.Ct. 2172; see also Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 Fed.Appx. 93, 95 (5th Cir.2009). Thus, although the second prong "is not merely a temporal concept,... it necessarily includes a temporal element." Id. at 371, 115 S.Ct. 2172 (emphasis in original). "[A]n appropriate rule of thumb for the ordinary case [is]: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Id. at 371, 115 S.Ct. 2172 (suggesting summary judgment is appropriate if the plaintiff clearly cannot reach this threshold level).

While the general guideline looks to the entire length of a worker's employment with a particular employer, the Supreme Court carved out an exception to the 30 percent requirement in those situations where "a maritime worker's basic assignment changes." Id. at 372, 115 S.Ct. 2172; see also Zertuche at 95-96. In those situations where "a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position."8 Id. Although the Supreme Court in Chandris did not explicitly state the changes to the maritime worker's basic assignment must be "permanent," the Fifth Circuit in Becker appears to have read a "permanent change" requirement into the Chandris' exception to the general rule:

Becker at 390 (emphasis added). Thus, in this circuit, when changes to a maritime worker's duties are temporary, the fact-finder generally must look to the entire length of a worker's employment with a particular employer; however, where those changes to the worker's duties are permanent, the fact-finder should confine itself to evaluating only the activities of the worker's new assignment. Prior to Chandris, the Fifth Circuit held that the resolution of the effect of a prolonged shore assignment on the issue of seaman's status is itself a question of fact:

Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 453 (5th Cir.1980). This Court finds no indication in Chandris (or any other subsequent authority) which would call into question the foregoing analysis from Guidry, Finally, as noted in Guidry, the jurisprudence does not "suggest an indefinite reach for Jones Act status nor, if there is a limit, where it should be drawn." Id.

Finally, "[b]ecause the determination of whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact, it is usually inappropriate to take the question from the jury." In re Endeavor Marine Inc., 234 F.3d 287, 290 (5th Cir.2000)(citing Harbor Tug, 520 U.S. at 554, 117 S.Ct. 1535). "Nevertheless, summary judgment is mandated where the facts and the law will reasonably support only one conclusion." Id. (internal quotation marks and alterations omitted). See also Wallace v. Oceaneering Intern., 727 F.2d 427, 432 (5th Cir.1984)("The issue is to be left to the jury even when the claim to seaman status appears to be relatively marginal"); Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir. 1983)("While summary judgment on seaman status in Jones Act cases is rarely proper, and even marginal cases should go to the jury, it is in some circumstances possible to rule as a matter of law that a worker is not a seaman."); Barrios v. Louisiana Const. Materials Co., 465 F.2d 1157, 1162 (5th Cir.1972) ("[T]he issue is to be left to the jury even when the claim to seaman status appears to be a relatively marginal one").

IV. Analysis

Within their motion, defendants frame the issue and argument as follows:

[Doc. 22-1, pp. 3-4, 7 (footnotes omitted)]

Contrarily, plaintiff asserts "there are genuine issues of material fact with regard to whether he lost his seaman status due to a reassignment." [Doc. 24, p. 2] In support of his position, plaintiff argues:

[Doc. 24, pp. 4-5, 9 (footnotes omitted)]

Essentially, defendant argues its notice to plaintiff stating he had been permanently reassigned to land duties, coupled with the fact plaintiff worked solely on land for fifteen months prior to his second injury, terminated plaintiffs status as a seaman. [Doc. 25-1, p. 1]. In effect, defendant is arguing that this is one of the "rare cases" where only one conclusion can be drawn from the facts. See e.g. Bouvier at 90. In support of this argument, defendant cites the following language from Guidry:

Guidry, 614 F.2d at 453 (citing Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th Cir.1977)). However, the Court notes the language cited from Guidry was stated in the context of the appellate court's review of the trial court's issuance of a directed verdict in favor of defendant, after hearing the evidence at trial. Id. ("Because seaman status ordinarily is a jury question, a court may rarely conclude as a matter of law that an individual is or is not a seaman within the meaning of the Jones Act. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157, 1162 (5th Cir.1972). However, a court may hold that there is no reasonable evidentiary basis to support a jury finding that an injured person is a seaman and member of a crew of a vessel under the Jones Act. Beard v. Shell Oil Co., 606 F.2d 515 (5th Cir.1979). We conclude that there was no basis on which a jury could have found Guidry to be a seaman in Messina's employment, and that the trial judge was correct in directing a verdict in favor of Messina on this issue.")

Defendant additionally cites Smith v. Nicklos Drilling Co., 841 F.2d 598 (5th Cir.1988), Garner v. Pool Company of Texas, 595 So.2d 751 (La.App. 4 Cir.1992), and Mclnnis v. Parker Drilling Company, 2004-1887, (La.App. 4 Cir. 6/1/05), 905 So.2d 1153, in support of its position that this Court should grant summary judgment and find plaintiff was not a seaman at the time of the second accident. The foregoing cases are distinguishable from the matter before this Court. In Garner (a non-binding, state court appellate opinion), plaintiffs seaman status was not determined on summary judgment; rather, plaintiffs status was determined following a bench trial on his claim for maintenance and cure, which had been severed from his claims asserted under the Jones Act and general maritime law. Similarly, in Mclnnis (also a non-binding, state court appellate opinion), plaintiffs seaman status was decided at trial on the merits. However, in Smith (which is binding precedent), the court did determine plaintiff was not a seaman by way of summary judgment, finding plaintiffs transfer to a land-based assignment was permanent. Yet, as plaintiff correctly points out, the Smith Court's finding that only one conclusion could be drawn from the evidence was compelled by the fact that plaintiff was transferred to a land rig because the barge to which he had been assigned had been taken out of service. Smith, 841 F.2d at 599 ("[B]oth his work location and status were permanently changed when the floating rig on which he had worked was decommissioned. Smith argues that the permanency of this change should have been a fact for the jury to decide. The permanency, however, was undisputably established when the old barge rig was finally removed from service; he was never to return to the status of crewmember on that vessel.").9 In the present case, there is no indication that the D/B JUSTICE (or Axxis' fleet of vessels) has been sold or decommissioned.

As mentioned, defendant relies heavily on the notice, signed by plaintiff, stating plaintiff had been permanently transferred to land duties. [Doc. 22-1, p. 4]. However, whether plaintiff was transferred permanently, such that he lost seaman status, is disputed by plaintiff. Plaintiff supports his argument with his deposition, in which he testifies: 1) it was his understanding his assignment to land-based work was only temporary, effective until a crane operator position became available "on the barge"; and 2) during the period he worked on land he was paid the same amount he had been paid as a crane-operator. [Doc. 24-2, pp. 3-4, 6-7]. Given the length of time plaintiff was reassigned to shore, and the seemingly clear language of the notice of reassignment, it would certainly be reasonable for a jury10 to find plaintiff lost his seaman status. However, given the fact defendant paid plaintiff the wages of a crane operator during the period at issue, defendant arranged for plaintiff to undergo a Functional Capacity Evaluation wherein the examiner was asked to determine whether plaintiff could "NOW RETURN TO FORMER JOB"11 [Doc. 24-2, p. 20], the examiner answered the question affirmatively, the report is silent as to plaintiffs abilities to perform any job other than that of a crane operator, as well as plaintiffs testimony that his assignment to a land rig was only temporary until a position "on the barge" became available, this Court cannot find "the facts and the law will reasonably support only one conclusion." Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997)("The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, `summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion.'") (quoting McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991)).12 Were this Court to determine which interpretation of the facts is correct, by way of this motion for summary judgement, it would usurp the role of the jury in this matter as the finder of fact. Since more than one conclusion could reasonably be drawn concerning plaintiffs seaman status from these facts, partial summary judgement is not appropriate. Chandris, 515 U.S. at 373, 115 S.Ct. 2172 ("Removing the issue from the jury's consideration is only appropriate where the facts and the law will reasonably support only one conclusion") (Citation omitted). Accordingly, the motion for partial summary judgment [Doc. 22] is DENIED. summary judgement is not appropriate. Chandris, 515 U.S. at 373, 115 S.Ct. 2172 ("Removing the issue from the jury's consideration is only appropriate where the facts and the law will reasonably support only one conclusion") (Citation omitted). Accordingly, the motion for partial summary judgment [Doc. 22] is DENIED.

V. Conclusion

Due to the foregoing, the Court finds a genuine issue of material fact exists as to whether or not plaintiff was permanently reassigned to land duties, and thus lost his status as a Jones Act seaman. Accordingly, the motion for partial summary judgment [Doc. 22] is DENIED.