United States District Court, S.D. Illinois
For John McKinney, Plaintiff: Dennis M. O'Bryan, O'Bryan, Baun et al., Generally Admitted, Birmingham, MI.
For American River Transportation Company, Defendant: Douglas E. Gossow, LEAD ATTORNEY, Goldstein & Price, Generally Admitted, St. Louis, MO.
Michael J. Reagan, United States District Judge.
MEMORANDUM AND ORDER
A. Introduction and Procedural History
In August 2012, John McKinney filed suit in this Court, presenting claims for
negligence under the Jones Act, 46 U.S.C. 30101, et seq., and for unseaworthiness, maintenance, cure, and wages under general maritime law. Named as Defendant was McKinney's former employer, American River Transportation Company (ARTCO). McKinney alleged that he was injured on February 16, 2011, while serving as a crew member above an ARTCO vessel and that ARTCO's " tortious acts" caused or contributed to McKinney's damages, including medical expenses, loss of earnings and earning capacity, pain and suffering, humiliation and mental anguish, and aggravation of prior condition " if any there be" (Complaint, Doc. 2, p. 2). The complaint sought to recover damages plus interest, costs, attorney's fees and expenses ( id. ).
The original complaint alleged only that McKinney was injured on February 16, 2011 while trying to straighten a bowed tow in the course of his employment. A first amended complaint (Doc. 18) added three other claims from different dates:
(1) August 16, 2010 -- ARTCO refused to provide maintenance and cure when Plaintiff suffered " serious headaches after ejaculation; " 
(2) September 21, 2011 - Plaintiff was injured when his " fellow employee failed to exercise reasonable care and fell on Plaintiff," due to the
(3) unseaworthy condition of the ARTCO vessel;  and December 6, 2011 to January 13 (or 31), 2012 -- ARTCO did not pay Plaintiff the maintenance to which he was entitled to after his employment ended and before he reached MMI. 
The amended complaint does not contain separate counts for separate claims. Plaintiff invokes subject matter jurisdiction under the Jones Act " for negligence" and under general maritime law " for unseaworthiness, maintenance, cure and wages" (Doc. 18, p. 1).
The case is set for November 15, 2013 final pretrial conference and December 2, 2013 jury trial before the undersigned District Judge. A settlement conference was set for March 28, 2013, canceled when the parties advised the Court that a settlement conference would be futile at that time, and rescheduled as a June 28, 2013 status conference before the Honorable Stephen C. Williams, United States Magistrate Judge.
Now pending before the Court is Plaintiff's April 10, 2103 motion to compel payment of maintenance and cure and motion for summary judgment, with supporting memorandum and exhibits (Docs. 23, 24). The motion ripened after the filing of supplemental briefs on June 24, 2013. For the reasons delineated below, the Court denies Plaintiffs motion.
B. Standard Governing Summary Judgment
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment should 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." Anderson v. Donahoe , 699 F.3d 989, 994 (7th Cir. 2012), citing Fed. R. Civ. P. 56(a). A " genuine issue of material fact remains " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly Healthcare, LLC , 656 F.3d 540, 547 (7th Cir. 2011), citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment has been described as the " put up or shut up moment" in the case, at which " the non-moving party is required to marshal and present the court with the evidence she contends will prove her case," evidence on which a reasonable jury could rely. Porter v. City of Chicago , 700 F.3d 944, 956 (7th Cir. 2012), citing Goodman v. Natl Sec. Agency, Inc. , 621 F.3d 651, 654 (7th Cir. 2010).
In assessing a summary judgment motion, the district court views all facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party. Anderson v. Donahoe , 699 F.3d at 994, citing Ault v. Speicher , 634 F.3d 942, 945 (7th Cir. 2011). Accord Righi v. SMC Corp. , 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson , 634 F.3d 895, 899 (7th Cir. 2011). Before the nonmovant can benefit from this favorable view of the evidence, however, he must first actually place some evidence before the court. Montgomery v. American Airlines, Inc. , 626 F.3d 382, 389 (7th Cir. 2010).
An additional word regarding the burden of proof is warranted here. The Supreme Court has reminded district courts that " in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby , 477 U.S. at 254. Rule 56 imposes an initial burden of production on the movant for summary judgment - he must demonstrate that a trial is not needed. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A few months ago, the Court of Appeals for the Seventh Circuit reiterated how this burden works in the typical case - i.e., when the summary judgment motion is filed by the party that does not bear the ultimate burden of persuasion at trial:
Where the nonmovant bears the ultimate burden of persuasion on a particular issue, ... the requirements that Rule 56 imposes on the moving party are not onerous. It does not require the moving party to " support its motion with affidavits or other similar materials negating the opponent's claim." Id. ( emphasis in original ). Rather, the movant's initial burden " may be discharged by 'showing' - that is pointing] out to the district court - that there is an absence of evidence to support the nonmoving party's case."
Upon such a showing, the nonmovant must then " make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322. The nonmovant need not depose her own witnesses or produce evidence in a form that would be admissible at trial, but she must " go beyond the pleadings" ... to demonstrate that there is evidence " upon which a reasonable jury could properly proceed to find a verdict" in her favor."
Modrowski v. Pigatto , 712 F.3d 1166, 2013 WL 1395696, *2 (7th Cir. April 8, 2013). See also Marcatante v. City of Chicago , 657 F.3d 433, 439 (7th Cir. 2011); Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 648-49 (7th Cir. 2011),
citing Celotex, 477 U.S. at 323.
In the case at bar, though, Plaintiff seeks summary judgment. When the party moving for summary judgment also bears the burden of persuasion at trial, that party's initial summary judgment burden is higher. When a summary judgment movant bears the burden of persuasion at trial (e.g., the movant is the plaintiff, or the movant is a defendant asserting an affirmative defense), he must establish all the essential elements of her claim (or defense). See Celotex , 477 U.S. at 322. See also Surles v. Andison , 678 F.3d 452, 455-56 (6th Cir. 2012) (if summary judgment movant is plaintiff, she must show that the record contains evidence satisfying her burden of persuasion); Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998)(at summary judgment stage, party that bears burden of persuasion at trial must come forward with sufficient evidence of each essential element of its prima facie case); Moore's Federal Practice § 56.13(1) (3d ed. 2000).
To summarize, if the summary judgment movant does not bear the burden of proof at trial, he can prevail just by showing an absence of evidence to support any essential element of the nonmovant's case. But if the summary judgment movant does bear the burden of proof at trial, he can prevail only by proving each element of his case with evidence sufficiently compelling that no reasonable jury could return a verdict for the nonmovant. Celotex , 477 U.S. at 331 (" If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial" ). See also Anderson , 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202; Lewis v. Kordus , 2010 WL 3700020 (E.D. Wisc. 2010) (unreported). The case at bar fits in the latter category.
C. Analysis Of Plaintiff's Motion For Summary Judgment 
Plaintiff moved for summary judgment only on his Jones Act negligence claim. He also seeks to obtain a judgment in his favor (compelling ARTCO to pay an award of maintenance and cure) on two other claims in the amended complaint (the maintenance and cure claims). However, he identified no procedural mechanism that allows him to avoid a trial and prevail pretrial on his claims of maintenance and cure via generic motion or " motion to compel." The Court solicited the parties' input on the question of whether Plaintiff sought judgment on his maintenance and cure claims by ...