IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20735

JOSHUA MCCOY, 

 Plaintiff - Appellant 

v. 

ENERGY XXI GOM, L.L.C.; WOOD GROUP USA, INCORPORATED; FLOW 

PETROLEUM SERVICES, INCORPORATED, 

 Defendants - Appellees 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:15-CV-2286

Before DAVIS, JONES, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Plaintiff-Appellant Joshua McCoy (“McCoy”) appeals the district court’s 

final judgment granting judgment as a matter of law in favor of DefendantsAppellees Energy XXI GOM, L.L.C. (“Energy”) and Wood Group USA, 

Incorporated (“Wood Group”), and dismissing his claims against DefendantAppellee Flow Petroleum Services, Incorporated (“Flow”) for lack of personal 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 9, 2017

Lyle W. Cayce

Clerk

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jurisdiction. For the reasons set forth below, we affirm the dismissal of Flow 

but otherwise reverse and remand. 

I. Background 

This lawsuit arises out of an incident that occurred on or about May 27, 

2015 on a fixed offshore platform, SMI 239D, located on the Outer Continental 

Shelf off the coast of Louisiana and owned by Energy. Wood Group was an 

operator on the platform and acted as an independent contractor for Energy. 

McCoy had been employed by Precision Crane & Hydraulics, a nonparty to this 

action, as a mechanic’s helper for approximately eight months prior to the 

incident. One of his routine duties was to purge crane tanks, which involves 

opening a valve, draining fluid into a container (being careful not to spill into 

the ocean), and closing the valve. 

McCoy had worked on a number of platforms, but he had only worked on 

SMI 239D a few times and had never worked on the crane tank at issue in the 

incident. He claims that on other platforms, Energy equipped crane tanks with 

ball valves and plumbing extending away from the tanks, which allowed him 

to drain the tanks easily through a hose using only his hand to open and close 

the ball valve. On the day of the incident, he was ordered to drain a crane tank 

on SMI 239D which had neither a ball valve nor plumbing. Instead, the tank 

had a hexagonal plug located at ground level, plus a workspace below the tank 

accessible by moving the grating panel adjacent to the plug. The movable 

grating panel sat flush against the tank, with a small cutout to give the plug 

clearance. 

McCoy claims that to properly drain the crane tank on SMI 239D, he had 

to move the grating panel to the side, climb down into the area below the tank, 

place spill containment pads and a bucket below the tank, and use a heavy 

wrench to loosen the plug. He claims the plug was so tight it required him to 

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use a hammer and large pipe wrench to loosen it, then carefully monitor the 

flow of hydraulic fluid, all while standing below the tank. When he finished 

draining the tank, the grating panel, which he had placed above him on the 

adjacent grating, fell onto his shoulder and then his foot, injuring him. To get 

off the platform, McCoy claims that Energy and/or its agent required him to 

transfer to a crewboat via a simple rope swing over the ocean, rather than a 

safer basket transfer. He claims that in the course of that transfer, he 

exacerbated his foot injuries. 

McCoy first sued Energy and Wood Group in Texas state court, asserting 

a number of negligence-based theories, including not only premises liability for 

failure to maintain and fix the unreasonably dangerous condition on the 

platform but also failing to take proper safety precautions, failing to warn of 

the dangerous condition, and forcing McCoy to use a rope swing when a safer 

transfer option was available. McCoy served his initial discovery with his state 

court petition. 

Energy and Wood Group timely removed the case to the United States 

District Court for the Southern District of Texas under federal question 

jurisdiction, specifically the Outer Continental Shelf Lands Act, 43 U.S.C. § 

1331 et seq. (“OSCLA”). The day after removal, the district court entered an 

order effectively prohibiting discovery without court approval, allowing only 

the disclosure of the principal facts and documents supporting each party’s 

case until such time as the court could fashion a management plan.

Defendants-Appellees never had to answer McCoy’s initial discovery. 

Thereafter the district court denied most requests for discovery. It 

permitted only the deposition of McCoy; the disclosure by the defendants of 

certain documents pertaining to the specific crane tank at issue on SMI 239D; 

photographs by Energy showing “the grating moved onto adjacent grating, the 

wrench in different positions on the plug, and the removed plug, with 

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measurements”; and “[v]ideo [taken by Energy after the accident] of the steps 

necessary to drain the tank.” At no point did the district court permit McCoy 

to take the deposition of any party, nor does it appear the court permitted 

discovery of the conditions on any other platform, or even discovery pertaining 

to other tanks on SMI 239D. The result is that the district court permitted 

narrow discovery on the specific work location at issue, as well as discovery on 

the identity of companies working on SMI 239D. 

As a result of this limited discovery, the court allowed McCoy to amend 

his complaint to add a claim against Flow on the ground that Flow, as Energy’s 

contractor, directly employed the “Person In Charge” who was present on the 

date of the accident and thus allegedly bore some responsibility for the safety 

conditions on the platform. Unlike Energy and Wood Group, which are both 

based out of Houston, Texas, Flow is based out of Lafayette, Louisiana, and 

allegedly has no contacts with Texas. Flow filed a motion to dismiss for lack of 

personal jurisdiction and improper venue, and McCoy filed a motion to transfer 

venue to the Western District of Louisiana, where venue would be proper as to 

all parties. 

Soon thereafter, the district court specified in a management order that 

Energy “may move for judgment,” and McCoy would have one week to respond. 

Both Energy and Wood Group filed motions for summary judgment, which 

McCoy opposed. All parties agreed that under OCSLA, Louisiana substantive 

law applies as the law of the state adjacent to the platform. McCoy objected to 

summary judgment because he was not allowed to conduct sufficient discovery.

As discussed in more detail below, the district court granted DefendantsAppellees’ motion for summary judgment because it found that McCoy’s 

“carelessness caused his injury. He will take nothing.” The district court found 

that McCoy was entirely at fault with respect to his negligence and premises 

liability claims relating to the primary incident involving the grating panel and 

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his negligence claim relating to the rope swing transfer to the crewboat. The 

court also denied McCoy’s requests for additional discovery; denied his motion 

to strike certain summary judgment evidence submitted by Energy and Wood 

Group; and dismissed Flow, implicitly denying McCoy’s motion to transfer 

venue. The court entered a final judgment in favor of Energy and Wood Group 

and against McCoy, dismissing McCoy’s claims against Flow. McCoy timely 

appealed, challenging essentially every part of the district court’s opinion. We

reverse and remand except with respect to the dismissal of Flow. 

II. Applicable Law 

Because the district court failed to apply the summary judgment 

standard and cited almost no relevant substantive law in its opinion, it is 

helpful to briefly review those principles. Under Fed. R. Civ. P. 56, summary 

judgment may only be granted “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.” We review the grant of summary judgment de novo.1 “We must 

view the evidence and draw reasonable inferences in the light most favorable 

to the nonmoving party.”2 “On summary judgment, . . . courts are precluded 

from weighing credibility.”3

As noted above, all parties agree that Louisiana substantive law applies 

via OCSLA, most relevantly La. Civ. Code arts. 2315 (general negligence) and 

2317.1 and 2322 (an owner or caretaker’s liability for a defective thing or 

building, respectively). Article 2315, the cornerstone of Louisiana tort law, 

provides: “Every act whatever of man that causes damage to another obliges 

him by whose fault it happened to repair it.”4 Article 2317.1 provides: 

 

1 Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014).

2 Id. 3 E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 701 (5th Cir. 2014).

4 La. Civ. Code Ann. art. 2315(A).

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The owner or custodian of a thing is answerable for damage 

occasioned by its ruin, vice, or defect, only upon a showing that he 

knew or, in the exercise of reasonable care, should have known of 

the ruin, vice, or defect which caused the damage, that the damage 

could have been prevented by the exercise of reasonable care, and 

that he failed to exercise such reasonable care. Nothing in this 

Article shall preclude the court from the application of the doctrine 

of res ipsa loquitur in an appropriate case.5

Similarly, Article 2322 provides: 

The owner of a building is answerable for the damage occasioned 

by its ruin, when this is caused by neglect to repair it, or when it 

is the result of a vice or defect in its original construction. However, 

he is answerable for damages only upon a showing that he knew 

or, in the exercise of reasonable care, should have known of the 

vice or defect which caused the damage, that the damage could 

have been prevented by the exercise of reasonable care, and that 

he failed to exercise such reasonable care. Nothing in this Article 

shall preclude the court from the application of the doctrine of res 

ipsa loquitur in an appropriate case.6

Louisiana courts employ duty-risk analysis to determine liability for 

general negligence, and that analysis also informs cases under Articles 2317.1 

and 2322: 

Under this analysis, plaintiff must prove that the conduct in 

question was a cause-in-fact of the resulting harm, the defendant 

owed a duty of care to the plaintiff, the requisite duty was breached 

by the defendant and the risk of harm was within the scope of 

protection afforded by the duty breached. Under the duty-risk 

analysis, all four inquiries must be affirmatively answered for 

plaintiff to recover.7

These factors are split between questions of fact and questions of law. In 

this case, McCoy alleges the crane tank posed an unreasonable risk of harm, 

especially compared to tanks on other platforms. In a case concerning whether 

 

5 La. Civ. Code Ann. art. 2317.1.

6 La. Civ. Code Ann. art. 2322.

7 Syrie v. Schilhab, 693 So. 2d 1173, 1176–77 (La. 1997) (citations omitted).

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an elevator posed an unreasonable risk of harm, the Louisiana Supreme Court 

focused on the duty and breach elements, explaining the fact-finder’s role in 

the inquiry: 

In order to avoid further overlap between the jury’s role as factfinder and the judge’s role as lawgiver, we find the analytic 

framework for evaluating an unreasonable risk of harm is properly 

classified as a determination of whether a defendant breached a 

duty owed, rather than a determination of whether a duty is owed 

ab initio. It is axiomatic that the issue of whether a duty is owed 

is a question of law, and the issue of whether a defendant has 

breached a duty owed is a question of fact. The judge decides the 

former, and the fact-finder—judge or jury—decides the latter. . . . 

Because the determination of whether a defect is unreasonably 

dangerous necessarily involves a myriad of factual considerations, 

varying from case to case, the cost-benefit analysis employed by 

the fact-finder in making this determination is more properly 

associated with the breach, rather than the duty, element of our 

duty-risk analysis. Thus, while a defendant only has a duty to 

protect against unreasonable risks that are not obvious or 

apparent, the fact-finder, employing a risk-utility balancing test, 

determines which risks are unreasonable and whether 

those risks pose an open and obvious hazard. In other words, 

the fact-finder determines whether defendant has breached a duty 

to keep its property in a reasonably safe condition by failing to 

discover, obviate, or warn of a defect that presents an 

unreasonable risk of harm.8

Under Louisiana law, “[a]s a general rule, ‘the owner or operator of a 

facility has the duty of exercising reasonable care for the safety of persons on 

his premises and the duty of not exposing such persons to unreasonable risks 

of injury or harm.’”9 As we have explained:

This duty extends to employees of independent contractors, for 

whose benefit the owner must take reasonable steps to ensure a 

safe working environment. [The platform owner] owed a duty to 

 

8 Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d 175, 185 (La. 2013)

(footnote and citations omitted; emphasis added).

9 Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994) (quoting Mundy v. 

Dep’t of Health & Human Res., 620 So. 2d 811, 813 (La. 1993)).

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[the plaintiff] and other workers aboard its platform to ensure that 

the platform was reasonably safe. As demonstrated by the plethora 

of regulations, work aboard an offshore platform is precarious at 

best. Slipping and losing one’s balance, a not unusual occurrence 

on oil-producing rigs, may become life threatening when the proper 

safety mechanisms are not in place. A broken ramp or a missing 

rail may become the cause of severe injury or death. Such safety 

features are required for the precise purpose of preventing undue 

consequences of falls which may end abruptly in the sea hundreds 

of feet below.10

Thus, the focus tends to be not on whether there was a duty in the first 

place but on whether a defendant breached the duty—a question of fact 

typically not suitable for summary judgment. As the Louisiana Supreme Court 

explained in Broussard, “the fact-finder . . . determines which risks are 

unreasonable and whether those risks pose an open and obvious hazard,” i.e., 

“whether defendant has breached a duty to keep its property in a reasonably 

safe condition by failing to discover, obviate, or warn of a defect that presents 

an unreasonable risk of harm.”11 Thus, unless the summary judgment evidence 

shows truly undisputed material facts, summary judgment is not appropriate. 

Finally, it is significant that Louisiana employs a pure comparative fault 

system under La. Civ. Code art. 2323: 

In any action for damages where a person suffers injury, death, or 

loss, the degree or percentage of fault of all persons causing or 

contributing to the injury, death, or loss shall be determined, 

regardless of whether the person is a party to the action or a 

nonparty, . . . . If a person suffers injury, death, or loss as the result 

partly of his own negligence and partly as a result of the fault of 

another person or persons, the amount of damages recoverable 

shall be reduced in proportion to the degree or percentage of 

negligence attributable to the person suffering the injury, death, 

or loss.12

 

10 Id. (footnotes omitted).

11 Broussard, 113 So. 3d at 185.

12 La. Civ. Code Ann. art. 2323(A).

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The Louisiana Supreme Court has explained that “[w]hen it adopted the 

comparative fault system, Louisiana abolished the contributory negligence 

feature, which completely barred the recovery of injury victims because of their 

fault, our tort law formerly embraced prior to 1980.”13 Because Louisiana law 

requires a full apportionment of fault among all potentially responsible parties, 

summary judgment is not appropriate if reasonable minds could disagree 

about the apportionment of fault.14 

III. Analysis 

A. Negligence and Premises Liability 

Regarding McCoy’s negligence claims, the district court failed to apply 

the summary judgment standard or the applicable substantive law, as set out 

above. The district court did note that McCoy claims, as set out above, that the 

work area was unreasonably dangerous, that other crane tanks on other 

platforms are not unreasonably dangerous, and that he was made to swing on 

a rope to a crewboat instead of using a safer method. Nevertheless, the district 

court found that “McCoy’s account and a review of the job site make plain: his 

carelessness was the cause of his accident.” The district court reached its 

primary conclusion that McCoy was fully at fault by rejecting McCoy’s 

deposition testimony: 

McCoy chose to move the grating. Rather than working below the 

tank, he could have stood on the grating adjacent to the tank. From 

there, he could have loosened the plug without moving the grating. 

 

13 Landry v. Bellanger, 851 So. 2d 943, 952–53 (La. 2003). 14 See, e.g., Allen v. Integrated Health Servs., Inc., 743 So. 2d 804, 807 (La. Ct. App. 

1999) (“Because we conclude that reasonable minds might differ as to the apportionment of 

fault under these circumstances, we hereby reverse the trial court’s grant of partial summary 

judgment which assessed the defendants with all the fault for the accident.”); Grabowski v. 

Smith & Nephew, Inc., 149 So. 3d 899, 908 (La. Ct. App. 2014), writ denied, 159 So. 3d 1057 

(La. 2015) (reversing the grant of summary judgment in favor of a medical sales 

representative defendant because the summary judgment record revealed a genuine dispute 

as to a material fact as to whether he was potentially at fault).

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He says the plug was tight and required a “thick wrench.” The 

wrench he used would have fit in the rectangular hole that cut into 

the grating. Further, he did not need a thick wrench to get leverage 

on a tight plug; he needed a long-handled wrench. 

The court then posited a number of other ways McCoy might have purged the 

crane tank in a safe manner before concluding: “As a matter of law, his 

placement of the grating and working from below, not actions by Energy or 

Wood Group, caused his injuries. He will take nothing on his negligence 

claims.” The court did not discuss the allegations McCoy made against Energy 

or Wood Group; it simply rejected them and found that McCoy was entirely 

liable for his injuries. 

The district court’s error is plain. The court’s characterization of McCoy’s 

testimony directly contradicts what McCoy said in his deposition, which is that 

Defendants-Appellees’ own negligence and the platform’s unreasonably 

dangerous conditions caused his injuries, at least in part. The only way to reach 

the conclusion the district court reached is to draw inferences against McCoy, 

the nonmovant, and/or to make a credibility determination—both strictly 

prohibited at the summary judgment stage. The district court allowed very 

limited discovery in this case, and the summary judgment still discloses major

genuine disputes as to material facts. The rest of the court’s opinion is infected 

with similar flaws, with the district court acting as a fact-finder rather than as 

a dispassionate arbiter of purely legal questions. 

Next, the district court concluded that McCoy could not prevail on his 

premises liability claims because it found that there was nothing “about this 

tank and this plug that made them unreasonably dangerous.” Specifically, the 

court found that “[b]ecause McCoy was experienced in his line of work and 

knew how to collect the fluid safely, it is not reasonable to expect that Energy 

and Wood Group would have foreseen this injury. Energy and Wood Group are 

not liable for McCoy’s lack of caution and ordinary care.” The district court 

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dismissed McCoy’s arguments regarding the use of safer ball valves and 

plumbing on other tanks because it found that “[t]he existence of a different 

plug design—safer or easier—does not make the existing plug unreasonably 

dangerous.” It also dismissed, without further discussion, McCoy’s other 

arguments pertaining to the condition of the valve, as follows: 

McCoy says that there was a cover-up, that someone from Energy 

or Wood Group said the tank was dangerous and that someone said 

they would change this plug to a safer one. A decision to change 

this plug does not show that it was unsafe at the time McCoy used 

it and is not an admission of negligence. [footnote omitted] 

With respect to this premises liability analysis, the district court did not 

cite to the applicable Louisiana Civil Code articles, and it cited to only a few 

inapposite cases in footnotes,15 including a Texas Supreme Court case that

does not apply to this action under Louisiana substantive law. 

The court again erred by drawing inferences against McCoy, weighing 

his deposition testimony against countervailing evidence (or the court’s own 

beliefs, as the case may be), and failing to acknowledge the existence of genuine 

disputes as to material facts on the premises liability issues. 

Finally, and again without citing any law or even McCoy’s allegations 

against Energy and Wood Group relating to the rope swing transfer, the 

 

15 The court cited to Walker v. Union Oil Mill, Inc., 369 So. 2d 1043 (La. 1979), which 

held that the owner of a soybean storage facility was not liable for the death of a 15-year-old 

boy who died after becoming trapped in a storage tank because the boy was not an employee, 

and even if he had been, his duties would not have placed him in that danger. That is not 

applicable to the instant case, where McCoy was performing the task in the course of his job, 

and he contends the job site was unreasonably dangerous. The court also cited to Henry v. 

Safeco Ins. Co., 498 So. 2d 1116 (La. Ct. App. 1986), writ denied, 501 So. 2d 235 (La. 1987), 

in which the appellate court overturned a jury verdict because it was undisputed that the 

plaintiff knew of the potential dangers posed by a “clearly visible” flooring condition and had 

been specifically warned by the homeowner about the slippery condition in the past. Here, 

whether the condition was open and obvious is very much a disputed question of fact. Indeed, 

the district court itself said that “it is not reasonable to expect that Energy and Wood Group 

would have foreseen this injury,” cutting against any finding that the condition was open and 

obvious. Thus, neither of those cases supports the district court’s conclusion.

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district court found that McCoy was entirely at fault for the transfer to the 

crewboat because “McCoy knew his foot was injured. He was the best judge of 

his ability to use the rope. He did not tell the rig’s crew that he needed a basket 

or helicopter. As a matter of law, his decision to swing, not actions by Energy 

or Wood Group, caused his additional injuries.” The district court erred by 

completely discounting McCoy’s own testimony, in violation of the summary 

judgment standard. 

Had the district court simply applied the summary judgment standard

and the applicable substantive law, it could not have granted summary 

judgment. Even on the limited record available under the court’s restrictive 

discovery plan, it is plain that most of the material facts are genuinely 

disputed. Accordingly, we reverse the district court’s grant of summary 

judgment in favor of Defendants-Appellees Energy and Wood Group and 

remand so this case may proceed. 

B. Discovery Issues 

In its opinion, the district court dismissed McCoy’s objections to the 

district court’s refusal to allow more discovery by explaining that it had limited 

“discovery to information that is relevant to McCoy’s claims and proportional 

to the needs of the case due to the cost and burden on Energy and Wood Group,” 

and it found that “McCoy has claimed facts that are contradicted by physical

facts and has elevated every trivial paperwork problem into danger or 

controversy.” The district court did not specify an instance where McCoy’s 

testimony was contradicted by other evidence or, more meaningfully, explain 

how conflicting evidence could be subject to summary judgment. The district 

court also rejected McCoy’s motion to strike certain evidence submitted by 

Energy and Wood Group. On appeal, McCoy objects to both of these. 

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“We review a district court’s decision to cut off discovery in order to rule 

on summary judgment for an abuse of discretion.”16 However, summary 

judgment is only appropriate “‘as long as the plaintiff has had a full 

opportunity to conduct discovery.’”17 

Although the district court may cut off discovery when the record 

shows that further discovery is not likely to produce the facts 

needed to withstand the motion for summary judgment, [w]hen a 

party is not given a full and fair opportunity to discover 

information essential to its opposition to summary judgment, the 

limitation on discovery is reversible error.18

The district court abused its discretion in refusing to allow McCoy to 

conduct sufficient discovery in this case to support the allegations he has fairly 

raised, including the condition of crane tanks on other platforms, the full 

conditions on SMI 239D, the legal relationships among Defendants-Appellees, 

and so on. This error would be reversible on its own, but it is essentially moot 

because we are reversing and remanding for the reasons set out above. Even 

the limited summary judgment evidence the district court allowed already 

reveals genuine disputes as to the material facts. On remand, both McCoy and 

Defendants-Appellees deserve the opportunity to conduct discovery over the 

full scope of the claims and defenses at issue. 

Because the district court’s decision to admit certain evidence submitted 

by Defendants-Appellees does not affect the outcome of this appeal, and the 

district court will have an opportunity to address all parties’ evidence at a later 

date, we deny McCoy’s remaining discovery arguments as moot. 

 

16 Brown v. Mississippi Valley State Univ., 311 F.3d 328, 332–33 (5th Cir. 2002) (citing 

Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000); Krim v. BancTexas Group, 

Inc., 989 F.2d 1435, 1441 (5th Cir. 1993)).

17 Id. at 833 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (1986) (emphasis in Brown)).

18 Id. (citations and internal quotation marks removed). 

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C. Dismissal of Flow and McCoy’s Motion to Transfer Venue 

Finally, the court dismissed Flow for lack of personal jurisdiction, 

implicitly denying McCoy’s motion to transfer venue. On appeal, McCoy argues 

the district court abused its discretion under 28 U.S.C. §§ 1406(a) and 1631, 

which permit transfer to another district in the interests of justice to cure 

venue and jurisdictional defects, by failing to transfer the case to the Western 

District of Louisiana. We might be inclined to agree with McCoy that transfer 

to the Western District of Louisiana might be a wise choice because Louisiana 

law controls this case, the witnesses are in Louisiana, and all DefendantsAppellees, including Flow, would be subject to personal jurisdiction in 

Louisiana. Nevertheless, we cannot say that the district court abused its 

discretion by dismissing Flow without prejudice rather than transferring to a 

better venue. Accordingly, we affirm the dismissal of Flow. 

IV. Conclusion 

For the reasons set out above, the district court’s judgment dismissing 

Defendant-Appellee Flow without prejudice and implicitly denying McCoy’s 

motion to transfer venue is AFFIRMED. Otherwise, the district court’s 

judgment is REVERSED and REMANDED for further proceedings not 

inconsistent with this opinion. 

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