     Case: 17-30910      Document: 00514500083         Page: 1    Date Filed: 06/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 17-30910                             June 5, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JOHN FORNAH,

              Plaintiff - Appellant

v.

SCHLUMBERGER TECHNOLOGY CORPORATION,

              Defendant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-14354


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Following an offshore accident, Plaintiff-Appellant John Fornah filed
this tort suit in federal district court against multiple defendants, all of whom
settled and were dismissed from the suit, except Defendant-Appellee
Schlumberger Technology Corporation (“Schlumberger”). The district court
granted Schlumberger’s motion for summary judgment and dismissed
Fornah’s suit with prejudice. For the reasons that follow, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                         I. Facts & Procedural History
         In 2015, Chevron Corporation (“Chevron”) hired Schlumberger to assist
in a plugging and abandonment project. Specifically, Schlumberger was to
perform coiled tubing wellbore cleanout in the Bay Marchand Field where
Chevron U.S.A. Inc. owned a fixed platform on the Outer Continental Shelf in
the Gulf of Mexico, about five miles off the coast of Louisiana. The contract
between Chevron and Schlumberger, titled “International Master Agreement
No. IMA/001A,” provided that Schlumberger was an independent contractor.
         Chevron also hired Tetra Applied Technologies, LLC (“Tetra”) to assist
with the project. Tetra provided a crew for plugging and abandoning services.
The contract between Tetra and Chevron, titled “Master Services Contract No.
CW692570,” provided that Tetra was an independent contractor.
         Chevron also hired Alliance Offshore, LLC (“Alliance”) to assist with the
project.    Alliance owned and operated the M/V MISS LYNNE, a liftboat
adjacent to the platform, as well as a crane that was used to lift and move the
hoses in Schlumberger’s coiled tubing job. Alliance was also an independent
contractor.
         Chevron’s project was conducted 24 hours a day, with two 12-hour
shifts—a day shift and a night shift. Schlumberger provided a standard six-
person crew consisting of a supervisor and two assistants for each 12-hour
shift.
         Fornah was employed by Tetra as a rigger and his job duties included
handling hoses such as those in the coiled tubing job. Tetra supervisor Michael
Bergeron gave directions to Fornah with respect to completing his job duties.
On September 15, 2015, Bergeron instructed Fornah that he was responsible
for handling the hoses for the coiled tubing job. Specifically, once Alliance
began operating its crane on the adjacent lift boat to lift Schlumberger’s coiled
tubing injector head into position, it was Fornah’s job to guide the tubing hoses
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                                       No. 17-30910
during the crane lift. According to Fornah, while he was guiding the tubing,
acting alone, he jerked an attached hose to untangle it from scaffolding and
felt a pain in his back and shoulder. 1 Fornah continued to work without
mentioning the incident to anyone and two days later, reported that he was
injured. The incident was never reported to Schlumberger.
       On September 1, 2016, Fornah filed suit against Tetra, Alliance, the M/V
MISS LYNNE, Schlumberger, and Chevron U.S.A. Inc. In his suit, Fornah
sought to recover maintenance and cure under general maritime law and also
advanced claims of Jones Act negligence against Tetra, unseaworthiness of the
vessel, and negligence claims under general maritime law against Alliance,
Schlumberger, and Chevron. Specifically, Fornah claimed that Alliance was
negligent in failing to stop an unsafe liftboat operation and that Schlumberger
was negligent in conducting unsafe coiled tubing operations and for failing to
provide a sufficient coiled tubing crew. Schlumberger moved for summary
judgment on grounds that Schlumberger and Tetra were co-independent
contractors of Chevron, that Schlumberger exercised no supervisory or
operational control over Tetra personnel, and that Schlumberger owed no duty
to Fornah besides that of ordinary care and did not breach that duty. Before
the district court ruled on Schlumberger’s summary judgment motion, it was
informed that Fornah had settled his claims with all parties except
Schlumberger.




       1 Fornah testified in his deposition that, at the time of the alleged incident, at least
three other Tetra employees were working on the deck where he was working within five to
seven feet of him. Fornah testified that he did not ask any of the other Tetra employees for
help because they looked busy and he thought he could handle the job alone. The Tetra
supervisor came and went on deck where Fornah was working. There were no Schlumberger
employees or supervisors in the area where Fornah was working at the time of the alleged
incident.
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      Approximately ten days later, the district court granted Schlumberger’s
motion for summary judgment. In its reasons for judgment, the district court
determined that Fornah’s negligence claims were governed by Louisiana law.
The district court then conducted a duty-risk analysis and concluded that,
because     Schlumberger   and     Tetra   were     co-independent     contractors,
Schlumberger did not have a duty to protect Tetra’s employee, Fornah, and
because Schlumberger owed no duty, it could not be in breach. Fornah filed
this appeal.
                           II. Standard of Review
      We conduct a de novo review of a district court’s ruling on summary
judgment, applying the same standard as the district court. Robinson v. Orient
Marine Co., 505 F.3d 364, 365 (5th Cir. 2007) (citation omitted). Summary
judgment is appropriate if the record evidence shows that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a
matter of law. Id. at 366; Fed. R. Civ. P. 56(a). “Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to
defeat a motion for summary judgment.” See Brown v. City of Hous., 337 F.3d
539, 541 (5th Cir. 2003) (citation omitted). “[R]easonable inferences are to be
drawn in favor of the non-moving party.” Robinson, 505 F.3d at 366 (citation
omitted).
                                 III. Discussion
      On appeal, Fornah argues that “Schlumberger maintained operational
control, at least in part, of the specialized coiled tubing operations in which
Fornah participated.” Fornah claims that this assertion is supported by the
affidavit of former Tetra supervisor, Steven Passman. Fornah also claims that
the facts are in dispute as to whether Schlumberger was responsible for
staffing the task of guiding the coiled tubing hoses that Fornah was handling
when he was allegedly injured. He concludes on these grounds that summary
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judgment was improperly rendered and that this court should reverse and
remand. We disagree.
      Neither party disputes that Fornah’s alleged injuries occurred on a fixed
platform in federal waters on the Outer Continental Shelf and thus, federal
jurisdiction is established pursuant to the Outer Continental Shelf Lands Act
(“OCSLA”). See 43 U.S.C. §§ 1333(a)(1) (“The Constitution and laws and civil
and political jurisdiction of the United States are extended to the subsoil and
seabed of the outer Continental Shelf[.]”); 1349(b) (“[T]he district courts of the
United States shall have jurisdiction of cases and controversies arising out of,
or in connection with . . . any operation conducted on the outer Continental
Shelf which involves exploration, development, or production of the minerals .
. . or which involves rights to such minerals[.]”). Under the OCSLA, federal
law generally applies to disputes such as the one herein. Tetra Techs., Inc. v.
Cont’l Ins. Co., 814 F.3d 733, 738 (5th Cir. 2016). However, when there are
“gaps in the federal law,” the law of the adjacent state, here Louisiana, is
adopted and applied as surrogate federal law “[t]o the extent that [the adjacent
state’s law is] applicable and not inconsistent with [the OCSLA] or with other
Federal laws and regulations.” Id.
      Fornah disagrees with the district court’s application of Louisiana law to
his negligence claims and urges this court to instead apply general maritime
law, although he concedes that “Louisiana’s duty/risk negligence formulation
is effectively identical to the federal maritime negligence standard, and would
yield an identical result.” We conclude that the district court properly applied
Louisiana law to Fornah’s negligence claims and continue to do so on appeal.
      “[T]hree requirements must be met for state law to apply as surrogate
federal law under the OCSLA.” Id. The dispute “must arise on a situs covered
by OCSLA (i.e., the subsoil, seabed, or artificial structures permanently or
temporarily attached thereto)[,]” “[f]ederal maritime law must not apply of its
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own force[,]” and “[t]he state law must not be inconsistent with Federal law.”
Id. Here, there is no dispute that Fornah’s alleged injuries occurred on a “situs
covered by the OCSLA” as they occurred on a fixed platform located on the
Outer Continental Shelf. There is also no dispute that Louisiana negligence
law is not inconsistent with federal maritime negligence law. The dispute on
this issue rather, is whether federal maritime law applies of its own force.
Fornah contends that it does. Specifically, he contends that the negligence of
the Alliance crane operator gives rise to federal admiralty jurisdiction and the
application of general maritime law. He also notes that this case involves the
traditional maritime activity of transporting and unloading vessel cargo. We
are unpersuaded by his position.
      As the district court noted, for maritime law to apply of its own force,
there must be both a maritime location and a connection to general maritime
activity. See Petrobras America, Inc. v. Vicinay Cadenas, S.A., 815 F.3d 211,
216 (5th Cir. 2016) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 534 (1995)). The Supreme Court and this court,
however, have both concluded that work performed on oil production platforms
affixed to the Outer Continental Shelf is not maritime in nature because it is
primarily related to oil and gas exploration. Petrobras, 815 F.3d at 218; see
also Thibodeaux v. Grasso Prod. Mgmt., Inc., 370 F.3d 486, 493 (5th Cir. 2004)
(“Both this court and the Supreme Court have expressed the opinion that work
commonly performed on oil production platforms is not maritime in nature.”
(citing Herb’s Welding Inc. v. Gray, 470 U.S. 414, 423–24 (1985))). Thus, we
agree with the district court that maritime law does not apply of its own force
in these proceedings and consequently, that Louisiana law applies to Fornah’s
negligence claims.
      In Louisiana, “[e]very act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.” La. C.C. art.
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2315(A). Louisiana employs a “duty-risk analysis” to determine whether to
impose liability. Duncan v. Wal-Mart La., LLC., 863 F.3d 406, 409 (5th Cir.
2017); Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627, 632–33 (La. 2006).
Under this analysis, a plaintiff must show:
      [F]irst, that the defendant had a duty to conform his conduct to a
      specific standard (duty); second, that the defendant’s conduct
      failed to conform to the appropriate standard (breach); third, that
      the defendant’s substandard conduct was a cause in fact of the
      plaintiff’s injuries (cause in fact); fourth, that the defendant’s
      substandard conduct was a legal cause of the plaintiff’s injuries
      (legal cause); and fifth, that the plaintiff suffered actual damages
      (damages).

Duncan, 863 F.3d at 409. “Whether the defendant owes a duty is a threshold
question and is a question of law.” McCarroll v. Wood Grp. Mgmt. Servs., Inc.,
561 F. App’x 407, 410 (5th Cir. 2014).
      This court has acknowledged that independent contractors owe each
other “the duty to refrain from gross, willful or wanton negligence, and . . . from
creating an unreasonable risk of harm or a hazardous condition.” Id. (citing
Lafont v. Chevron, U.S.A., 593 So. 2d 416, 420 (La. App. 1st Cir. 1991)).
“Independent contractors do not generally owe a duty to protect the employee
of another independent contractor beyond the exercise of ordinary care that is
owed to the public generally.” Id. This court has also recognized that, in
determining whether one independent contractor owes a duty to another
independent contractor’s employee, relevant considerations are whether one
independent contractor employs, shares a contract with, or supervises the
other’s employee. Id.
      Neither party disputes that both Tetra and Schlumberger were
independent contractors of Chevron and that Fornah was employed solely by
Tetra when he was allegedly injured.             The record also reflects that
Schlumberger and Chevron were parties to the International Master
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Agreement and that Tetra and Chevron were parties to the Master Services
Contract. Tetra and Schlumberger were not parties to the same contract with
Chevron, nor did they have a contract with each other. The remaining question
then becomes whether there is evidence in the record that Schlumberger
personnel exercised supervisory control over Fornah when he was allegedly
injured during the coiled tubing operations.
      As previously noted, at the safety meeting prior to the beginning of
Fornah’s shift on September 15, 2015, Bergeron, Fornah’s Tetra supervisor,
informed Fornah that he was responsible for handling the hoses for the coiled
tubing job. It was Bergeron’s decision to task Fornah alone, rather than with
additional crewmen.       Fornah conceded in his deposition that he was not
directed to handle the hoses for the coiled tubing job by anyone from
Schlumberger. 2
      At the time of the incident, three Tetra employees were working on the
deck where Fornah was working and Fornah’s Tetra supervisor came and went
periodically on deck where he was working. There were no Schlumberger
employees or supervisors in the area where Fornah was working at the time of
the alleged incident. Fornah never asked for help or additional crewmen from
anyone since he believed he could handle the job alone and because the other
nearby Tetra employees looked busy. Although Tetra and Schlumberger, as
independent contractors hired by Chevron, worked simultaneously to fulfill
their contractual individual duties owed to Chevron, there is no evidence in the




      2   Fornah cites to the part of Chevron and Schlumberger’s International Master
Agreement which states that Schlumberger has control, supervision and direction over its
equipment. To the extent that Fornah is suggesting that Schlumberger’s ownership of the
hoses somehow results in its liability for Fornah’s alleged injuries, we disagree. As the
district court correctly observed, there is no evidence in the record that the hoses were
intrinsically dangerous nor does ownership of the hoses somehow factor into a finding of
negligence.
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record that Schlumberger personnel supervised Tetra employees at any point
during these time periods. 3         Moreover, Fornah never reported his alleged
injuries to anyone at Schlumberger.
       For these reasons, we agree with the district court that Fornah failed to
produce evidence supporting his argument that Schlumberger owed a duty to
Fornah, or any Tetra employee, “beyond the exercise of ordinary care that is
owed to the public generally.” McCarroll, 561 F. App’x at 410 (citing Lafont,
593 So. 2d at 420). Likewise, Fornah failed to present any evidence that
Schlumberger breached the duty owed between independent contractors to
“refrain from gross, willful or wanton negligence, and . . . from creating an
unreasonable risk of harm or a hazardous condition.” Id.(4)
                                     IV. Conclusion
       For the foregoing reasons, the district court’s summary judgment in
favor of Defendant-Appellee Schlumberger Technology Corporation is
affirmed.



       3  Fornah attempts to rely on his September 5, 2017 affidavit wherein he states that
he took orders and was supervised by Schlumberger “during operations related to the coiled
tubing operation” while he was assigned to the M/V MISS LYNNE. To the extent that these
statements can be read as contradicting Fornah’s previous deposition testimony from May
23, 2017 wherein he stated that he was assigned the specific task of handling the hoses for
the coiled tubing operation by his Tetra supervisor Michael Bergeron, we decline to consider
the affidavit as competent summary judgment evidence. See S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 495–96 (5th Cir. 1996) (“It is well settled that this court does not allow a
party to defeat a motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony. . . When an affidavit merely supplements rather than
contradicts prior deposition testimony, the court may consider the affidavit when evaluating
genuine issues in a motion for summary judgment.”).
        4 Fornah dedicates part of his argument on appeal to the content of former Tetra

supervisor Steven Passman’s affidavit which generally describes Passman’s experiences
when he was employed with Tetra. The district court rejected the content of the affidavit
concluding that Passman’s unsubstantiated statements regarding his past personal
experiences as a Tetra supervisor have no bearing on the events that took place on the day
Fornah was allegedly injured. We agree. See Brown v. City of Hous., 337 F.3d 539, 541 (5th
Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.”).
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