SIM LAKE, District Judge.
Contango Operators, Inc. ("Contango") owns a pipeline that runs along the floor of the Gulf of Mexico. In February of 2010 a dredge owned by Weeks Marine, Inc. ("Weeks Marine") struck and ruptured that pipeline. Contango and Certain Underwriters Severally Subscribing to Combined Cover Note JHB-CJP-1718
Having reviewed the motions, the record, and the relevant law, the court is persuaded that all pending motions should be denied.
Under the Rivers and Harbors Act of 1899 ("RHA"), 33 U.S.C. § 403, no submarine structure may be built in the navigable waters of the United States unless authorized by the United States Army Corps of Engineers (the "Corps"). Accordingly, in September of 2007 Contango filed with the Regulatory Division of the Corps an application for a permit to construct a natural gas pipeline in the Gulf of Mexico off the coast of Louisiana.
After completing the pipeline in April of 2008 Contango provided as-built drawings that illustrated the intersection of the pipeline and the Atchafalaya channel to the Minerals Management Service ("MMS"), the National Ocean Service ("NOS"), and the United States Coast Guard (the "Coast Guard").
In April of 2009 the Corps began to solicit bids on a contract for the dredging of the Atchafalaya channel.
The National Oceanic and Atmospheric Administration ("NOAA") is the federal agency tasked with the publication of nautical charts. Prior to November 25, 2009, the relevant NOAA charts — Electronic Navigational Chart ("ENC") US4LA21E and Raster Navigational Chart ("RNC") 11351 — displayed the Atchafalaya channel without the Contango pipeline.
Weeks Marine's non-self-propelled dredging vessel, the G.D. MORGAN, struck the Contango pipeline on February 24, 2010.
Contango filed its amended complaint on July 27, 2011, bringing negligence causes of action against the United States and Weeks Marine.
Weeks Marine moves for reconsideration of the court's October 26, 2011, Memorandum Opinion and Order granting the United States' motion to dismiss Weeks Marine's cross-claim.
"[T]he Federal Rules of Civil Procedure do not recognize a general motion for reconsideration." St. Paul Mercury Insurance Company v. Fair Grounds Corporation, 123 F.3d 336, 339 (5th Cir. 1997). The court's October 26, 2011, Memorandum Opinion and Order was interlocutory, not final. See Moody v. Seaside Lanes, 825 F.2d 81, 85 & n. 3 (5th Cir. 1987) (explaining that only the resolution of an entire adversary proceeding is "final"). Courts reconsider interlocutory orders under Rule 54(b), which provides that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of [a final judgment]."
The standard of review for interlocutory decisions differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). "[R]econsideration of an interlocutory decision is available under the standard `as justice requires.'" Judicial Watch v. Department of the Army, 466 F.Supp.2d 112, 123 (D.D.C.2006) (citations and quotation marks omitted); see also Dos Santos v. Bell Helicopter Textron, Inc. District, 651 F.Supp.2d 550, 553 (N.D.Tex.2009) ("whether to grant such a motion rests within the discretion of the court"). The standard requires a determination of "whether reconsideration is necessary under the relevant circumstances." Judicial Watch, 466 F.Supp.2d at 123. Underlying a motion for reconsideration is "the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Id.
Weeks Marine argues that notwithstanding the CDA the court may exercise supplemental jurisdiction over the cross-claim pursuant to Federal Rule of Civil Procedure 13(g), which provides that any party may bring a cross-claim against a co-party if the cross-claim "arises out of the transaction or occurrence that is the subject matter of the original action."
Weeks Marine cites to no law that authorizes the court to disregard the requirements of the CDA. A district court generally may exercise jurisdiction over a Rule 13(g) cross-claim for which there is no independent basis for jurisdiction. See 28 U.S.C. § 1367 ("the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III"). But Rule 13(g) and § 1367 do not provide an end-run around the specific jurisdictional prerequisites in the CDA. The CDA contains no special exception for cross-claims, and the court declines to read one into the statute. Furthermore, under Fifth Circuit precedent a defendant's cross-claim against the United States based on a government contract is subject to the CDA. Trevino, 865 F.2d at 1489. Because the court concluded in its October 26, 2011, Memorandum Opinion and Order that Weeks Marine's cross-claim was essentially contractual, the court reaffirms its prior holding that the CDA divests the court of jurisdiction.
The interests of judicial economy, fairness, and justice do not alter this conclusion. Congress has dictated an administrative process within which government contractors must abide. Moreover, Weeks Marine is not forever barred from having its day in court — the Fifth Circuit has held that district courts may exercise jurisdiction over appeals from the administrative determination of claims. See Bethlehem Steel Corp. v. Avondale Shipyards, Inc., 951 F.2d 92, 93-94 (5th Cir.1992). Therefore, Weeks Marine may pursue such an appeal at the appropriate time; but the court will not override the administrative and appeals processes. Because justice does not require reconsideration of the court's October 26, 2011, Memorandum Opinion and Order, see Judicial Watch, 466 F.Supp.2d at 123, Weeks Marine's Motion for Reconsideration (Docket Entry No. 60) will be denied.
Rule 56 of the Federal Rules of Civil Procedure mandates summary judgment "if the movant 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). A party moving for summary judgment "bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). When the nonmoving party would bear the ultimate burden of proof at trial, the moving party may satisfy its summary judgment burden by "`showing' — that is, pointing out to the
Once the movant has carried this burden the nonmovant must show that material facts exist over which there is a genuine issue for trial. Reyna, 401 F.3d at 349 (citing Celotex, 106 S.Ct. at 2553-54). The parties may support the existence or nonexistence of a genuine fact issue by either (1) citing to particular parts of the record, including depositions, documents, electronically stored information, affidavits or declarations, admissions, and interrogatory answers, or (2) showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(A)-(B). In reviewing this evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).
The United States, Weeks Marine, and Contango have filed separate motions for summary judgment regarding the defendants' liability: United States' Motion for Summary Judgment on Liability (Docket Entry No. 50); Weeks Marine's Motion for Summary Judgment on Liability (Docket Entry No. 61); Contango's Cross-Motion for Summary Judgment on United States' Liability (Docket Entry No. 62); and Contango's Cross-Motion for Summary Judgment on Weeks Marine's Liability (Docket Entry No. 83). Each defendant attempts to shift all liability to the other, and each reasons that it discharged any duty owed to Contango. Contango argues that no defendant conformed with the requisite standard of care and that the defendants are jointly and severally liable for the damages.
Contango and the United States dispute the scope of the United States' duty. In its motion for summary judgment the United States argues that the duty it owed to Contango was discharged either when the updated NOAA charts were published or when LNM 48/09 was issued.
Contango disputes the United States' characterization of the United States' duty: "[The Corps] had a continuing duty to notify its dredging contractor of hazards that [the Corps] became aware of during the course of the contract."
To establish a negligence claim under admiralty law the plaintiff bears the burden to show that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; and (3) the breach caused the plaintiff's alleged injuries. Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.2000). The duty owed — i.e., the obligation to conform to a certain standard of care — is a question of law for the court. Theriot v. United States, 245 F.3d 388, 400 (5th Cir.1998). Whether that duty was breached is a question of fact. Id. at 394. In an allision
Id. (internal quotation marks omitted). In their briefs the parties focused on three Fifth Circuit cases dealing with the scope of the United States' duty.
In Bardeleben in February of 1964 a tugboat dropped its anchor on a submarine pipeline that had been laid pursuant to a permit from the Corps. 451 F.2d at 140, 141. The pipeline owner sought to affirm the district court's finding that the United States was liable. Id. at 142. The tugboat was carrying a chart — issued by the United States Coast and Geodetic Survey
Michigan Wisconsin involved an allision between a dredger-contractor and a pipeline. The pipeline had been constructed pursuant to a permit from the Corps, but the specifications attached to the dredger's government contract did not show the pipeline crossing the area to be dredged. 551 F.2d at 948. The contract also contained two "site inspection clauses" in which the dredger agreed to take steps "reasonably necessary to ascertain the nature and location of the work and the general and local conditions which can affect the work and the cost thereof" and to "acknowledge that he ha[d] investigated and satisfied himself as to the conditions affecting the work." Id. at 949 (internal quotation marks omitted). After the accident the pipeline owner sued the dredger for damages. Id. at 947. The dredger filed a third-party complaint, arguing that the United States was at fault for providing specifications that failed to show the pipeline. Id. at 947.
The district court in Michigan Wisconsin found in favor of the pipeline owner and against the dredger, and dismissed the dredger's third-party complaint. Id. Affirming the judgment against the dredger
The facts of Southern Natural Gas are similar to those of Michigan Wisconsin: the Corps issued permits to a pipeline company to construct several submarine pipelines; the Corps also issued dredging permits to several dredgers; and the dredging permits specifically prohibited dredging near some pipelines, but did not make any specific mention of the plaintiff company's pipelines. Southern Natural Gas, 711 F.2d at 1251. The dredger subsequently struck one of the plaintiff company's pipelines. Id. at 1254. Affirming the district court's judgment against the United States, the Fifth Circuit held that "by specifically prohibiting dredging activities in the vicinity of one gas company's pipelines, the Corps was obligated to prohibit dredging near other companies' pipelines in the area." Id. at 1256. The court further held that "[t]he Corps knew that the dredging companies' activities would be incompatible with the submarine gas pipelines, and that a great potential for an accident existed. The Corps had the power to prevent this danger. Its failure to do so subjects it to liability under the [SAA]." Id. The Fifth Circuit characterized the United States' duty as a "duty to warn," which the court hypothetically noted may be satisfied by a "simple notice or warning of a particular hazard or activity, or the prohibition of a certain activity." Id.
As plaintiff, Contango bears the burden of proof at trial on its negligence claims. To prevail on its motion for summary judgment the United States must therefore show that there is an absence of evidence to support Contango's case. See Celotex, 106 S.Ct. at 2554. To prevail on its cross-motion for summary judgment Contango must present evidence that would require a directed verdict if the evidence went uncontroverted at trial. See Int'l Shortstop, 939 F.2d at 1264-65.
The United States owed Contango a duty of reasonable care. See Theriot, 245 F.3d at 400; Southern Natural Gas, 711 F.2d at 1254. The scope of this duty depends on the foreseeability of
Michigan Wisconsin and Southern Natural Gas
The court declines to apply the duty defined in Bardeleben to this case. Although the United States argues that Bardeleben was not "limited to just the United States' duty in publishing charts,"
Having concluded that the scope of the United States' duty to use reasonable care included a duty to warn or notify Weeks Marine about the omission of the Contango pipeline in the contract specifications, the court must address whether this duty was breached. Breach is a question of fact. See Theriot, 245 F.3d at 394. The dicta in Southern Natural Gas — that the United States' duty in that case may have been discharged by a "simple notice or warning of a particular hazard or activity, or the prohibition of a certain activity" — is instructive. See Southern Natural Gas, 711 F.2d at 1256. The court reads Southern Natural Gas to require more than mere notice to the maritime public to carry out a proper "notice or warning." The United States was required to act reasonably in providing a notice or warning to Weeks Marine. The question of breach is therefore a question of the effect of the updated NOAA charts and LNM 48/09.
The court concludes that whether the United States discharged its duty to provide a notice or warning to Weeks Marine by publishing the updated NOAA charts and issuing LNM 48/09 is a fact issue for trial. The evidence does not establish whether the information did or did not reach Weeks Marine in a manner sufficient to notify Weeks Marine of the pipeline. While the Weeks Marine Project Engineer downloaded the earlier version of RNC 11351, that chart did not include the Contango pipeline.
Moreover, there is a factual dispute as to whether the Project Engineer relied on NOAA charts at all in practice. The United States contends that its duty to warn was discharged in part by evidence that the Project Engineer compared information from other pipeline owners with the information provided in the out-of-date
Similar fact issues are present with respect to LNM 48/09. The United States argues that Weeks Marine's Office Engineer should have reviewed LNM 48/09, should have noticed the announcement of the location of the Contango pipeline, and could have determined the pipeline's exact location based on the GPS coordinates by using Google Earth.
The United States also argues that all liability should be shifted to Weeks Marine because the Project Engineer was aware of other material discrepancies — not involving the Contango pipeline — between the contract specifications and other charts in her possession.
Accordingly, neither the United States nor Contango has demonstrated that no genuine issue of material fact exists with respect to the United States' liability in this action. The United States has failed to establish that there is an absence of evidence to support Contango's claims, and Contango has failed to present evidence that would require a directed verdict at trial. Summary judgment in favor of either the United States or Contango is therefore inappropriate.
Weeks Marine, citing Michigan Wisconsin, 551 F.2d 945, argues that it acted as a reasonable dredger would when it relied on the assertions from the Corps that only five pipelines were implicated by the project.
Contango argues that Weeks Marine owed Contango a duty of care to avoid striking the pipeline and that Weeks Marine's failure to independently investigate the existence of pipelines in the area to be dredged constituted a breach of that duty.
The resolution of Weeks Marine's motion for summary judgment on liability, and Contango's cross-motion on that issue, follows from the principles set out in the above discussion on the United States' liability. Weeks Marine's duty to Contango was one of reasonable care, see Theriot, 245 F.3d at 400, and the scope of that duty is defined by the foreseeability of the harm suffered by Contango. See Great Lakes Dredge, 624 F.3d at 211. The court concludes that an allision with a submarine pipeline is a foreseeable consequence of dredging when the dredger is not aware of
Whether this duty was breached is a question of fact. See Theriot, 245 F.3d at 394. Michigan Wisconsin is instructive as to the reasonableness of Weeks Marine's actions. Important for purposes of applying Michigan Wisconsin to this case is the fact that in Michigan Wisconsin neither NOAA nor the Coast Guard had issued charts or announcements that identified the ruptured pipeline. Although the court rejects Contango's argument that Weeks Marine was under a duty to independently investigate the accuracy of the specifications, see Michigan Wisconsin, 551 F.2d at 953, the court cannot conclude as a matter of law that Weeks Marine acted reasonably under the circumstances in relying solely on the contract specifications, given the availability of the updated NOAA charts and LNM 48/09.
The primary factual dispute is evinced in Contango's own briefs. Contango cites to evidence that Weeks Marine was in possession of, and actually reviewed, the updated NOAA charts and LNM 48/09.
Moreover, the court concludes that like the "site inspection clauses" in Michigan Wisconsin, the fact that the contract indicated that "unidentified pipelines" may exist does not automatically shift the potential liability flowing from the United States' representations in the contract specifications. Contango has not cited to any summary judgment evidence that compels the conclusion that Weeks Marine's failure to investigate "unidentified pipelines" amounted to a breach of Weeks Marine's duty. The contract states that "[a]ny unidentified pipelines ... that may be found within the limits of the work, during the course of dredging shall not be
There is also a factual dispute as to what constitutes "over-dredging" and as to whether any over-dredging on the part of Weeks Marine amounted to negligence. The dredging contract called for the Atchafalaya channel to be dredged at a width of 400 feet and a depth of twenty-two feet "mean low gulf" ("MLG").
Because the summary judgment record reveals genuine disputes as to material facts pertaining to Weeks Marine's liability,
In Contango's Motion for Summary Judgment on Weeks Marine's Fault (Docket Entry No. 66) Contango argues that a presumption of fault applies against Weeks Marine because its dredge, the G.D. MORGAN, allided with Contango's stationary pipeline.
Where a non-self-propelled vessel and a stationary object allide, the rule of THE LOUISIANA, 3 Wall. (70 U.S.) 164, 18 L.Ed. 85 (1865), creates a presumption of fault that shifts the burden of proof to the party in control of the vessel. Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 604 (5th Cir.2010). In allisions involving a sunken stationary object, the presumption only applies where the party in control of the vessel "knew or should have known" of the existence of the stationary object. Delta Transload, Inc. v. Motor Vessel, Navios Commander, 818 F.2d 445, 450 (5th Cir.1987). The party invoking the presumption bears the burden to prove knowledge. Id. at 450-51.
To rebut the presumption, the party against whom the presumption applies bears the burden of disproving fault by a preponderance of the evidence. James v. River Parishes Co., Inc., 686 F.2d 1129, 1133 (5th Cir.1982). The Fifth Circuit has outlined three ways in which a defendant can rebut the presumption. "The defendant can demonstrate that: (1) the allision was the fault of the stationary object; (2) that the moving vessel acted with reasonable care; or (3) that the allision was an unavoidable accident." Id. at 605 (internal quotation marks omitted).
As the party moving for summary judgment Contango bears the initial burden to demonstrate that the presumption applies and that there is an absence of evidence to support a rebuttal of the presumption. See Celotex, 106 S.Ct. at 2554. If the presumption applies, as the party in control of the vessel, Weeks Marine bears the burden to demonstrate that material facts exist over which there is a genuine issue for trial. See Reyna, 401 F.3d at 349. As the non-moving party at the summary judgment stage, Weeks Marine is not required to disprove fault by a preponderance of the evidence — that standard applies only at trial.
The court concludes that summary judgment on the matter of Weeks Marine's fault is precluded by fact issues relating to Weeks Marine's knowledge and exercise of due care. Genuine issues of material fact exist as to whether Weeks Marine knew or should have known of the existence of the pipeline. As discussed in the preceding section regarding Weeks Marine's liability generally, the parties dispute whether Weeks Marine actually reviewed — or pursuant to industry practice should have reviewed — the updated NOAA charts and LNM 48/09. Therefore, the court concludes that Contango has failed to demonstrate that no genuine issues of material fact exist as to the applicability of the presumption. See Delta Transload, 818 F.2d at 450-51. There are also factual disputes as to whether Weeks Marine employed due care. Even assuming that the presumption applies, the court concludes that Contango has failed to establish that
Weeks Marine and Contango have filed separate motions on the government contractor defense: Weeks Marine's Motion for Summary Judgment on Government Contractor Defense (Docket Entry No. 59) and Contango's Cross-Motion for Summary Judgment on Government Contractor Defense (Docket Entry No. 82). Weeks Marine argues that "[t]he actions of Weeks [Marine] were the actions of the [United States] and thus, Contango must look to the [United States] for compensation."
"Government contractor immunity is derived from the government's immunity from suit where the performance of a discretionary function is at issue." Kerstetter v. Pacific Scientific Co., 210 F.3d 431, 435 (5th Cir.2000). Government contractors are therefore "entitled to assert the government's sovereign immunity in suits arising from [discretionary function] activities." Bynum v. FMC Corp., 770 F.2d 556, 564 (5th Cir.1985). The Suits in Admiralty Act contains a discretionary function exception: While the United States has waived its immunity from tort suits under the Act, the exception bars suits against the United States for discretionary actions based on policy-considerations. Wiggins v. United States Through Dept. of Army, 799 F.2d 962, 965 (5th Cir.1986).
A defendant asserting the government contractor defense must also establish that it did not exceed its authority in performing the contract. In Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 60 S.Ct. 413, 414, 84 L.Ed. 554 (1940), the Court held that if the "authority to carry out the project was validly conferred" and the contractor has not "exceeded his authority" in acting on behalf of the United
Because the government contractor defense is an affirmative one, Weeks Marine bears the burden of proof at trial. Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 802 (5th Cir.1993). To prevail on summary judgment Weeks Marine must present evidence that establishes each element of that defense as a matter of law. See Shanks, 169 F.3d at 992. To prevail on its cross-motion Contango must show that there is an absence of evidence to support the affirmative defense. Celotex, 106 S.Ct. at 2554.
Weeks Marine has failed to establish that it is entitled to assert the United States' sovereign immunity. The United States owed a duty of care to Contango, and there are genuine issues of material fact as to whether that duty was breached. No sovereign immunity has been established. The court therefore concludes that there is no governmental immunity from which an immunity may be derived for the benefit of Weeks Marine.
Moreover, Weeks Marine has also failed to establish that it acted without negligence. There is no dispute that the authority to carry out the dredging project was validly conferred. But there is a genuine issue of fact as to whether Weeks Marine exceeded its authority in carrying out the dredging project. Unlike the contractors in Ackerson, Weeks Marine is alleged to have acted negligently in performing the dredging activities, the subject of the government contract. The court's conclusion that there are genuine issues of material fact as to Weeks Marine's liability for negligence therefore compels the conclusion that Weeks Marine is not entitled to judgment as a matter of law based on the government contractor defense. Similarly, the genuine issue of material fact regarding Weeks Marine's negligence compels the conclusion that Contango has failed to establish that there is an absence of evidence to support Weeks Marine's assertion of the government contractor defense. The court therefore concludes that summary judgment in favor of either party is not appropriate.
In their answers to Contango's amended complaint the United States and Weeks Marine both assert as an affirmative defense
Contango, Weeks Marine, and the United States were co-defendants in the prior action, a personal injury case arising out of a gas explosion alleged to have been caused by the rupture to the pipeline. The Louisiana court held that Contango was not at fault for the incident because Contango was not required to physically mark the pipeline and because — following the submission of as-built drawings to MMS and NOS — "the pipeline was marked on the NOAA chart prior to the explosion."
Under the doctrine of res judicata, also known as claim preclusion, a judgment on the merits in a prior suit may bar a subsequent suit based on the same cause of action. Four elements must be satisfied for res judicata to bar a subsequent suit: (1) the parties in the prior action and the pending action must be identical; (2) the judgment in the prior action must have been rendered by a court of competent jurisdiction; (3) the prior action must have concluded with a final judgment on the merits; and (4) the same claim or cause of action must be involved in both the prior action and the pending action. United States v. Davenport, 484 F.3d 321, 326 (5th Cir.2007). The party asserting that res judicata bars an action bears the burden to establish the elements of the doctrine as a matter of law. Grynberg v. BP P.L.C., 855 F.Supp.2d 625, 649 (S.D.Tex.2012).
Contango argues that the first three elements of res judicata are satisfied "as they are matters of fact."
Contango's statement of the law regarding the fourth element of res judicata is correct, but that principle does not apply here. For purposes of res judicata the dispositive question is not whether comparative negligence was at issue in both cases; instead, the question is whether the "same claim or cause of action" was involved in both cases. See Davenport, 484 F.3d at 326. There is no claim or cause of action in this case involving comparative negligence — Weeks Marine and the United States are asserting comparative negligence as an affirmative defense. Res judicata, when it applies, bars claims or causes of action, not affirmative defenses. The court therefore concludes that Contango has failed to establish the elements of res judicata as a matter of law.
Collateral estoppel, also known as issue preclusion, is a separate doctrine that precludes a party from litigating an issue if (1) the same parties were involved in a prior action; (2) the issue at stake is identical to the one involved in the prior action; (3) the issue was actually litigated in the prior action; and (4) the determination of the issue in the prior action was a necessary part of the judgment. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 572 (5th Cir.2005). In cases concerning offensive collateral estoppel, the party seeking preclusion must also demonstrate that "no special circumstances exist that would render preclusion inappropriate or unfair." Universal Am. Barge v. J-Chem, Inc., 946 F.2d 1131, 1136 (5th Cir.1991). "Collateral estoppel does not preclude litigation of an issue unless both the facts and the legal standard used to assess them are the same in both proceedings." Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1422 (5th Cir.1995). The party asserting that collateral estoppel bars an action bears the burden of proof on the elements of those doctrines. Matter of King, 103 F.3d 17, 19 (5th Cir. 1997).
Contango argues that the issue at stake here — "Contango's fault for the allision" — is the same issue that was raised in the prior action.
The resolution of the motion for summary judgment on collateral estoppel turns on the level of generality at which
The court concludes that genuine issues of material fact exist as to all issues of liability, the government contractor defense, and res judicata and collateral estoppel. The court also concludes that reconsideration of its October 26, 2011, Memorandum Opinion and Order is not warranted. Accordingly,