IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31049

ELWOOD LEE, 

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 

United States Court of Appeals

Fif h Circuit

FILED

June 9, 2017

Lyle W. Cayce

Clerk

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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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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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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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