Mark Hilton v. Kirby Inland Marine, L.P.

Case: 16-40823 Document: 00513876963 Page: 1 Date Filed: 02/15/2017

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

No. 16-40823 FILED
February 15, 2017
Lyle W. Cayce
MARK HILTON, Clerk

Plaintiff - Appellant

v.

KIRBY INLAND MARINE, L.P.; TUBAL-CAIN MARINE SERVICES,
INCORPORATED; TUBAL-CAIN GAS FREE SERVICES,
INCORPORATED,

Defendants - Appellees

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:15-CV-93

Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Summary judgment was granted in favor of the defendants, Kirby Inland
Marine and Tubal-Cain. We AFFIRM.
At oral argument before this court, the attorney for the plaintiff Mark
Hilton stated he was abandoning the issue that the district court erred in

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
 Case: 16-40823 Document: 00513876963 Page: 2 Date Filed: 02/15/2017

No. 16-40823
failing to remand this case to state court. That concession, which is a sound
one, obviates the need to analyze the district court’s denial of a remand.
As to Hilton’s summary-judgment claims, we have examined the parties’
briefs and the district court’s comprehensive opinion. We agree with the
district court’s reasoning that Kirby did not breach any of the duties outlined
in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 166–76 (1981).
We further agree that Tubal-Cain neither owned, occupied, nor controlled the
barge on which Hilton was injured. See Allen Keller Co. v. Foreman, 343
S.W.3d 420, 426 (Tex. 2011). The district court did not err in its grant of
summary judgment.
AFFIRMED.

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