from the United States District Court for the Eastern
District of Louisiana
REAVLEY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge.
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.
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 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
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
(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).
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 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 (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)).
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.
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 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 ...