     Case: 16-31049   Document: 00514027367     Page: 1   Date Filed: 06/09/2017




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

                                 No. 16-31049                             FILED
                                                                       June 9, 2017
                                                                     Lyle W. Cayce
ELWOOD LEE,                                                               Clerk

                                           Plaintiff – Appellant
v.

OFFSHORE LOGISTICAL AND TRANSPORT, L.L.C.,

                                           Defendant – Appellee




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge:
      Elwood Lee (“Lee”) appeals the summary judgment entered against him
in favor of Offshore Logistical & Transports LLC (“Offshore”) on his Jones Act
and maritime claims for negligence and unseaworthiness arising out of an
alleged injury Lee suffered. As explained below, we VACATE and REMAND
for reconsideration in light of the current Federal Rule of Civil Procedure 56.
      We give only a brief discussion of the facts, because this appeal turns on
the procedural ruling of the district court. Lee claims that he was employed
by Offshore on its vessel, the M/V BALTY. He states that he fell while walking
on the decks of the vessel. Offshore filed a motion for summary judgment
challenging various aspects of Lee’s proof.     Ultimately, the district court
concluded that Lee failed to bring forward evidence that would support a
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                                 No. 16-31049
finding of causation between Offshore’s acts or omissions and Lee’s injuries.
In so doing, the district court discounted as inadmissible the signed but
unsworn report of Captain James P. Jamison which Lee filed in the record.
The district court did not make a finding that the report could not be placed in
admissible form.
      In discounting Captain Jamison’s opinions, the district court relied on a
prior version of Federal Rule of Civil Procedure 56 and cases thereunder,
specifically old Rule 56(e) regarding affidavits. In 2010, Rule 56 was amended
to clarify and streamline the procedures regarding summary judgment motions
and to make clear the process for supporting assertions of fact and objecting
thereto. See FED. R. CIV. P. 56, advisory committee’s note to 2010 amendment
(“Subdivision (c) is new. It establishes a common procedure for several aspects
of summary-judgment motions . . . .”). Rule 56(c)(1) was amended to state as
follows:
            (1) Supporting Factual Positions. A party
            asserting that a fact cannot be or is genuinely disputed
            must support the assertion by:
                  (A) citing to particular parts of materials
                  in the record, including depositions,
                  documents,        electronically      stored
                  information, affidavits or declarations,
                  stipulations (including those made for
                  purposes of the motion only), admissions,
                  interrogatory answers, or other materials
                  ....
FED. R. CIV. P. 56(c)(1)(A).
      “Although the substance or content of the evidence submitted to support
or dispute a fact on summary judgment must be admissible . . . , the material
may be presented in a form that would not, in itself, be admissible at trial.” 11
MOORE’S FEDERAL PRACTICE - CIVIL ¶ 56.91 (2017); see also Fraternal Order of
Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (holding

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                                  No. 16-31049
that a “proponent need only ‘explain the admissible form that is anticipated’”
(quoting FED. R. CIV. P. 56, advisory committee’s note to 2010 amendment));
Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532,
538 (4th Cir. 2015) (recognizing that a “court may consider . . . the content or
substance of otherwise inadmissible materials where the ‘the party submitting
the evidence show[s] that it will be possible to put the information . . . into an
admissible form.’” (alteration in original) (quoting 11 JAMES WM. MOORE ET AL,
MOORE’S FEDERAL PRACTICE – CIVIL ¶ 56.91[2] (3d ed. 2015))); Jones v. UPS
Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012) (determining that a
district court may consider a statement “if the statement could be reduced to
admissible evidence at trial or reduced to admissible form.” (citation omitted)).
      Thus, the rule expressly contemplates that affidavits are only one way
to “support” a fact; “documents . . . declarations, [and] other materials” are also
supportive of facts. FED. R. CIV. P. 56(c)(1)(A). To avoid the use of materials
that lack authenticity or violate other evidentiary rules, the new rule allows a
party to object “that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible as evidence.” FED. R. CIV. P.
56(c)(2); see also advisory committee’s note to 2010 amendment (“The objection
functions much as an objection at trial, adjusted for the pretrial setting. The
burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated.”). The district
court dismissed Captain Jamison’s report solely because it was not sworn
without considering Lee’s argument that Captain Jamison would testify to
those opinions at trial and without determining whether such opinions, as
testified to at trial, would be admissible.
      Before the district court, Offshore made other arguments and
contentions about Captain Jamison’s report that were not addressed by that
court. However, no alternate ground for affirmance was briefed before our
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                                 No. 16-31049
court, and, on this record, we decline to rule upon these points in the first
instance.   Cf. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008)
(holding that a court of appeals “may affirm a grant of summary judgment on
any grounds supported by the record and presented to the court below”
(emphasis added)); see also Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d
577, 583–84 (5th Cir. 2004) (indicating that we court cannot make a certain
evidentiary evaluation for the first time on appeal).       We VACATE and
REMAND for consideration of the summary judgment evidence under current
Rule 56 including whether the particular material to which objection is lodged
can or cannot “be presented in a form that would be admissible at trial.”
      VACATED and REMANDED.




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