Cormier v. Pennzoil Exploration & Production Co.

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 14, 1992
• Docket: 92-4002
• Status: Published

Opinion

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.

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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

2 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

4 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.