June 2017
Notes From Your Updater - Representative Byrne (R-AL) introduced a bill the Longshore and Harbor Workers' Compensation Clarification Act of 2017 (H.R. 2354) to amend the Longshore and Harbor Workers' Compensation Act to provide a definition of recreational vessel for purposes of such Act.
On May 2, 2017, Representative Gene Green (D-TX) introduced the Domestic Maritime Centers of Excellence Act of 2017 (H. R. 2286) to authorize the Secretary of Transportation to designate certain entities as centers of excellence for domestic maritime workforce training and education, and for other purposes. Representative Green issued a news release explaining the measure.
FIFTH CIRCUIT ADDRESSES LAST RESPONSIBLE EMPLOYER RULE
BOLLINGER SHIPYARDS, INC., ET AL. V. DIRECTOR, OWCP, ET AL. [WORTHEY]
Kenneth Worthey worked on and off at Bollinger Shipyards for about fifteen years. He was a welding supervisor, a job that involved exposure to welding fumes, sandblasting dust, industrial cleaning solvents, and other fumes and chemicals. In 2008, his physician told him that he could no longer wear a respirator due to airway obstruction. Following a medical release to fix some knee and shoulder problems, Worthey sought to return to work for Bollinger in March 2010. Bollinger required him to be examined before returning and was diagnosed with chronic obstructive pulmonary disease, told he could not return to work, advised to see a pulmonologist, and recommended that he apply for social security disability. Instead, Worthey applied to work for Thoma-Sea Shipbuilders. Worthey passed Thoma-Sea's pre-employment physical and worked as a welding supervisor from March 29 through May 18, 2010, when he was fired for sleeping on the job. Worthey subsequently filed claims under the LHWCA seeking compensation for, among other health problems, his respiratory condition. The main question in Worthey's administrative proceeding was which employer would be responsible for paying his benefits and medical expenses. An administrative law judge initially concluded that Bollinger was solely liable because it failed to rebut the Act's presumption that it caused Worthey's pulmonary disease. The Benefits Review Board remanded the case, however, requiring the ALJ to also determine whether Thoma-Sea could rebut the Act's presumption and to more closely identify the date of the onset of Worthey's disability. After undergoing the required analysis, the ALJ reaffirmed its earlier conclusion that Bollinger was solely liable, and the Board affirmed. Bollinger sought judicial review of the administrative ruling. The appellate court began its analysis by noting that the ALJ found that Bollinger was the last responsible employer under Cardillo, which mandates the responsible employer in an occupational disease case is the last employer during whose employment the claimant was exposed to injurious stimuli, prior to the date the employee became aware that he was suffering from an occupational disease arising from the employment. Bollinger attempted to rely on a complication that has arisen in applying this "last responsible employer" rule, asking the appellate court to apply the First Circuit's rule that focuses solely on the date of disability in determining the last responsible employer. The appellate court declined to decide how to deal with the situation when the diagnosis and disability dates are different, because the ALJ found that both of these events occurred on March 22, 2010 when Worthey was examined for re-employment at Bollinger’s request. Bollinger tried to challenge the timing of the disability finding on appeal, but did not do so before the Board so that argument was forfeited. In any event, there was more than substantial evidence to support the finding that the doctor's diagnosis in March, which included recommending that Worthey apply for disability, is the date on which Worthey was disabled. That Worthey worked for a number of weeks after that date did not dictate a contrary conclusion. To implicate Thoma-Sea, Bollinger pointed to Worthey's later tests showing a decline in his pulmonary function after working for Thoma-Sea. But the ALJ considered this evidence before concluding that Thoma-Sea did not contribute to Worthey's disability. The ALJ was more convinced by other evidence that implicated Bollinger. The Board was therefore correct in concluding that the ALJ relied on substantial evidence in finding that liability rested solely with Bollinger, the employer for whom Bollinger worked for several years as opposed to the one for whom he worked less than two months. The petition for review of the decision of the Benefits Review Board was denied. (5th Cir, May 17, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 8842
EMPLOYER PAYING LHWCA BENEFITS & EMPLOYEE SUES FOR DISCRIMINATION
EGLAND V. DIRECTOR, OWCP, ET AL. [P.C. PFEIFFER COMPANY, INC.]
Joseph R. Egland filed a claim against P.C. Pfeiffer Company under the LHWCA, alleging that, in violation of Section 48a of the Act, P.C. Pfeiffer refused to allow him to return work. The ALJ found that Egland was still disabled per the 2010 LHWCA decision awarding benefits, which had not been modified; therefore, pursuant to Section 48a Egland could not establish a discriminatory act by Pfeiffer, nor could he be reinstated to his job. Accordingly, the ALJ denied the discrimination claim. Egland appealed and the Board initially remanded the case, finding that the ALJ erred in failing to properly consider a modification in the temporary partial disability award under §922, based upon Egland’s allegation at his hearing that he was capable of returning to work. In his decision on remand, the ALJ found that he could not grant modification under Section 22 because any request therefor was not timely. The ALJ found Egland entitled to a presumption of discrimination under Section 48a but that employer rebutted the presumption. The ALJ then found, based on the totality of the evidence, that Egland did not establish that Pfeiffer committed a discriminatory act against him motivated by his filing a compensation claim. Accordingly, the ALJ denied the claim of discrimination under Section 48a. Egland took a second appeal to the BRB, which affirmed the ALJ’s denial of Egland’s Section 48a claim. Egland appealed the BRB’s decision affirming the ALJ denial of Egland's claim. In a short per curiam opinion, the appellate court found that the ALJ weighed the evidence and determined that Egland set forth a prima facie case and that he was entitled to a presumption of discrimination under Section 48a. But the ALJ then determined that Pfeiffer rebutted Egland's presumption of discrimination and that Egland failed to meet the burden of persuasion for his claim. The BRB held that substantial evidence supported the ALJ's conclusion that Egland did not establish that employer's action in not allowing claimant to return to work was motivated by Egland’s filing a compensation claim. Finding no error, the appellate court affirmed the decision of the BRB. (5thCir, May 2, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 7772
PLAINTIFF’S ATTORNEY UNABLE TO DEFEND HIS $400 PER HOUR RATE
MCDONALD V. NAVY EXCHANGE SERVICE COMMAND, ET AL.
Cathy McDonald filed claims under the Act seeking benefits for back injuries sustained in the course of her work for employer. The parties reached a settlement pursuant to Section 8(i) of the Act, wherein employer agreed to pay claimant $95,699.88 for release of her claims. The settlement agreement was approved by the administrative law judge. Thereafter, McDonald’s counsel filed fee petitions for an attorney’s fee of $161,496, representing 403.74 hours of attorney work at an hourly rate of $400, plus $27,805.24 in costs. Employer filed objections, to which claimant’s counsel filed two reply briefs; employer filed a sur-reply brief. After making reductions in the requested hourly rate, the number of hours and costs, the administrative law judge approved an attorney’s fee, payable by employer, totaling $101,368.26, representing 245.49 hours of attorney work at $305 per hour, and $26,493.81 in costs. On appeal, claimant’s counsel challenged the administrative law judge’s hourly rate determination, as well as his reduction in the number of compensable hours. Employer responded, urging affirmance of the administrative law judge’s attorney’s fee award. Upon review of the ALJ’s reductions in the requested hours, the BRB agreed with counsel that the ALJ erroneously denied 5.5 of the 11 hours claimed by counsel to prepare for, and attend the hearing. However, the Board also found that the ALJ sufficiently explained his reasons for the other reductions made to the requested hours. The board concluded that counsel has not demonstrated an abuse of the ALJ’s discretion with regard to these reductions. The ALJ’s attorney fee order was modified to reflect inclusion of 5.5 hours for work relating to the hearing. In all other respects, the ALJ’s attorney fee order was affirmed. McDonald timely moved for reconsideration of the Board’s decision and order, contending that the Board erred by not modifying the administrative law judge’s attorney’s fee award to include an additional $2,440 in fees, representing 8 hours of time at the hourly rate of $305, which was inappropriately disallowed by the ALJ. The Board reviewed the ALJ’s decision which reflected that while he explicitly awarded counsel a fee for 8 hours relating to a doctor’s deposition, he nevertheless also denied the entire 16 hours claimed by counsel for such work. In light of this inconsistency, the Board modified its earlier decision to reflect counsel’s entitlement to a fee for 8 hours of work on the deposition which the ALJ approved, but did not include, in his award of an attorney’s fee. In all other respects, the Board’s decision and order was affirmed. McDonald then petitioned the circuit court for review of the Board’s decision, which largely affirmed the ALJ’s attorney's fee order, arguing that the Board acted arbitrarily and capriciously and abused its discretion in upholding the ALJ's calculation of her attorney's fee. The appellate court McDonald's contentions of error, finding that the record supported the Board's Decision that counsel did not carry his burden of establishing that his proposed rate of $400 was in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. The appellate court also agreed that the ALJ was within his right to disallow the hours that counsel claimed for his "Reply to Opposition to Fee Application," which greatly exceeded the scope of counsel’s "Amended Application for Attorneys' Fees and Costs," and, in any event, failed to establish a reasonable hourly rate. The petition for review was denied. (9thCir, May 25, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 9150
COURT AWARDS BIG DAMAGES IN §905(B) CASE (CONT.)
KOCH, ET AL. V. UNITED STATES OF AMERICA
Ricky Koch alleged sustaining a personal injury while descending an allegedly dimly lit stairwell aboard a vessel owned by the Maritime Administration of the United States Department of Transportation. Koch boarded the vessel on behalf of Economy Iron to submit bids on areas of the vessel in need of repair. There were six other contractors present, all of whom were taken by the vessel’s chief engineer on a "walkthrough" of the vessel. After inspecting various areas on the vessel, the parties arrived at a stairwell, where the fluorescent lights did not fully illuminate. Each contractor had a flashlight, but Koch did not use his flashlight, choosing instead to use both hands to hold handrails on opposite sides of the stairwell. Koch fell backwards and struck the bulkhead or some other piping behind him, immediately complaining of discomfort in his knees, neck, and back. Koch later underwent multiple surgeries and was eventually found to be permanently and totally disabled. Koch and his wife filed suit under §905(b) of the LHWCA, with the wife claiming that the stress of working a full-time job and taking care of her husband has taken its toll and the stress has adversely affected the marital relationship. The court initially noted that the United States had waived sovereign immunity to admiralty suits through the Public Vessels Act and the Suits in Admiralty Act, and the Kochs' claims were governed by the PVA. Because the lights above the stairwell not fully illuminate, the court found that the United States failed to exercise reasonable care to prevent injuries, thereby breaching a duty owed to Koch. Because Koch undoubtedly suffered personal injury, the remaining question was whether the negligence of the United States caused his injuries. The United States argued Koch could not establish causation, because all of his injuries resulted from pre-existing conditions and because Koch failed to use reasonable care under the circumstances. The court rejected both arguments, holding that the United States had failed to carry its burden of establishing Koch's damages were caused by pre-existing conditions and that Koch acted with reasonable care under the circumstances. The court awarded total damages in the amount of $2,833,337.09, which included $150,000 for loss of consortium [see August 2015 Longshore Update]. The Government filed a timely notice of appeal, contending that, prior to his accident, Koch had become disabled by his painful chronic osteoarthritis in both his knees, as well as the degenerative disc disease in his cervical spine and carpal tunnel syndrome. Although Koch's preexisting conditions were undisputed, the district court rejected the Government's argument that Koch had been disabled by them prior to his accident. The appellate court found that the record showed that, prior to his accident, and despite multiple pre-existing injuries, Koch was an active, convivial man who enjoyed going to work. Although he frequently experienced pain while working, particularly in his knees, Koch performed his work activities with vigor and without restriction. Koch was equally active at home. The district court found that as a result of the injuries he sustained aboard the U.S. vessel and the treatment he had received and would receive for those injuries, Koch would never work again. The appellate court affirmed this factual finding by the district court as not clearly erroneous. The appellate court concluded that the district court did not apply the wrong legal standard in the case with regard to Koch's preexisting medical conditions. The "eggshell skull" rule was not limited to cases involving only latent or unmanifested preexisting conditions. A review of the entire record in the case did not leave the appellate court with a definite and firm conviction that a mistake had been committed, so that it could characterize as clearly erroneous the district court's finding that Koch had not been disabled by his deteriorating spinal condition and his osteoarthritic knee condition prior to his accidental fall aboard the U.S. vessel. Finally, the Government asserted that the district court erred by unfairly limiting the testimony of its expert, and by crediting the testimony of Koch's treating physicians over that of its expert because of that limitation. After a thorough review of the record, the appellate court was satisfied that the district court did not abuse its discretion in ruling to exclude the additional testimony by the Government’s expert. The judgment of the district court was affirmed. (5th Cir, May 12, 2017) 2017 U.S. App. LEXIS 8486
COURT HOLDS CHILD SUPPORT MAY BE PAID FROM LHWCA BENEFITS
STATE OF TENNESSEE V. GONZALEZ-PEREZ
Jose Ramon Gonzalez-Perez and Deedra Climer Bass are the parents of the minor child Claudia Christina Gonzalez. In September of 1998 an order was entered directing Gonzalez to pay $436.46 per month in child support. Gonzalez was injured on the job, and as a result of those injuries Gonzalez receives monthly compensation benefits of $2,263.73 under the Longshore and Harbor Workers' Compensation Act. At some point, the State became involved in the case, pursuant to Title IV-D of the Social Security Act, and brought a contempt action against Gonzalez, arguing that although benefits under LHWCA are not assignable under §916, the defendant was and is able to pay child support and willfully refused to pay. The allegations of the petition were sustained and Gonzalez was held in contempt for failure to pay child support. Gonzalez appealed the juvenile court order finding him in contempt for non-payment of child support. Gonzalez argued that the compensation receives pursuant to the LHWCA is exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt under §916 of the LHWCA. Gonzalez argued that all of his compensation funds are shielded by the LHWCA. The appellate court found this argument to be without merit. Following the logic of Gonzalez’s argument, none of his living expenses could be paid by the funds obtained through the Act, as they are "debts" he accrues. The LHWCA may shield Gonzalez’s funds from collection through an income assignment order, but at no time was Gonzalez relieved of his duty to support his only child. The appellate court found that Gonzalez’s funds had been shielded only by the discretion of Gonzalez and his Trustee, and the support order was a valid order. The appellate court found and held that although the benefits Gonzalez receives are exempt from levy, execution, attachment, etc., Gonzalez may be found guilty of contempt, because the LHWCA does not preempt the inclusion of the benefits Gonzalez receives from the calculation of child support and Gonzalez had the present ability to pay child support and willfully failed to do so making Gonzalez guilty of contempt. The appellate court affirmed the order of the juvenile court finding Gonzalez in contempt for non-payment of child support. (Tenn. App Ct, May 19, 2017) 2017 Tenn. App. LEXIS 334
LHWCA AND/ OR OCSLA DO NOT APPLY HERE (CONT.)
MAYS, ET AL. V. CHEVRON PIPE LINE CO., ET AL.
Peggy Mays (individually and as personal representative of the Estate of James Mays), Daphne Lanclos, Brent Mays and Jared Mays (collectively, "plaintiffs") brought this tort suit against Chevron Pipe Line Company and Chevron Midstream Pipelines, LLC for damages arising out of a workplace accident that resulted in the death of James Mays. Prior to Mays' death, Chevron Pipe Line and Furmanite America, Inc. (Mays' employer) entered into a Master Services Contract, whereby Furmanite agreed to provide control valve maintenance services for Chevron Pipe Line at its onshore and offshore facilities. Mays was sent by Furmanite to the Chevron platform to perform valve maintenance services. While Mays and others were removing the operator cap/bonnet cover plate from the valve, the pressure barrier was breached, causing the operator cap/bonnet cover plate and valve stem to be expelled. Mays was struck in the head by these objects and died as a result. After suit was filed, Chevron Pipe Line moved for summary judgment arguing because the accident occurred in state waters, the LWCA applied and under that act, Chevron Pipe Line was deemed Mays'"statutory employer" and was thus immune from suit in tort. In its original ruling, the court found plaintiffs had not established a substantial nexus between Mays' death and Chevron Pipe Lines' extractive operations on the outer Continental Shelf, and therefore, plaintiffs had failed to demonstrate a material fact existed with regard to whether the LHWCA applied through the OCSLA extension [see March 2016 Longshore Update]. Thereafter, the court granted plaintiffs' motion for reconsideration upon additional argument supplied, and reversed its prior ruling based upon the argument presented, finding summary judgment in defendant's favor to be unwarranted. The Court found the evidence was sufficient to raise an issue of material fact for trial - namely, whether there existed a "substantial nexus" between Mays' death and extractive operations on the shelf [see February 2017 Longshore Update]. Chevron now moves the court to certify its Ruling and Order on reconsideration for interlocutory appeal pursuant to 28 U.S.C. § 1292 (b), arguing that the court's ruling involved a controlling question of law. The court pointed out that, like the mixed question of law and fact inherent in determining whether a sufficient nexus exists to find one a Jones Act seaman, the substantial nexus standard the Supreme Court has instituted for the OCS is, also, a mixed question of law and fact. Chevron did not explain how the court's determination that a genuine issue of material fact existed as to whether there was a substantial nexus between Mays' injury/death and Chevron’s extractive operations involved a controlling issue of law, rather merely declares it to be. The ruling and order issued by the court for which Chevron sought an interlocutory appeal did not declare a legal determination as a matter of law, rather, the court found Chevron had failed to meet its burden of pointing to the absence of evidence in the record showing a significant causal link between Mays' death and Chevron's operations on the OCS. As the court's determination did not declare a controlling issue of law as required for certification under § 1292(b), Chevron’s motion to certify the ruling and order for interlocutory appeal was denied. (USDC WDLA, May 16, 2017) 2017 U.S. Dist. LEXIS 75269
LONGSHOREMAN’S SECTION 905(B) CLAIM TIME BARRED BY OREGON STATUTE
SMITH V. EVRAZ INC., NA
Cecil F. Smith had been a longshoreman and marine clerk. Smith was working for Jones Stevedoring as a marine clerk when he stepped into a pothole five inches deep at a slab yard and allegedly tore his left Achilles tendon. EVRAZ Inc., NA subleased the slab yard where Smith was injured. Smith brought his lawsuit in state court, alleging negligence against EVRAZ, who timely removed the lawsuit to federal court. Smith was seeking damages for a personal injury that he allegedly sustained, when he stepped into a pothole five inches deep while working at a slab yard controlled and subleased by EVRAZ. Defendant moved for summary judgment, asserting that Smith’s claim was barred by Oregon's two-year statute of limitations for negligence actions. Under Oregon law, a personal injury claim not arising on contract shall be commenced within two years of the claim's accrual. The question before the court was whether Smith's negligence claim was barred by Oregon's applicable two-year statute of limitations as a matter of law. To answer that, the court had to determine whether the Discovery Rule tolled the running of the two-year period to some date after January 7, 2013, the date of Smith's injury, within two years of the date of filing. If EVRAZ's role in causing Smith's injury was inherently discoverable on the day of the accident, the Discovery Rule did not toll the statute of limitations, and EVRAZ's motion for summary judgment had to be granted. Smith filed his complaint against EVRAZ on December 20, 2016, almost four years after the day of his accident. Smith's personal injury was immediately apparent to him on January 7, 2013. Smith argued that the Discovery Rule tolled the Oregon statute of limitations to a date within two years of December 20, 2016, because Smith did not immediately know that EVRAZ was contractually responsible for maintaining the pavement at the slab yard and Smith's investigation into which entity had the contractual duty to fix potholes at the slab yard was delayed by the complexity of the lease agreement. Based on the undisputed facts, EVRAZ argued that its role in causing Smith's injury was inherently discoverable on January 7, 2013, and that as a result, Smith's negligence claim accrued on that day, as a matter of law. The court agreed with EVRAZ that the admitted and undisputed facts were sufficient to raise a substantial possibility that each of the three elements (harm, causation, and tortious conduct) existed as to EVRAZ. The court found that every reasonable juror would agree that Smith either knew or reasonably should have known of the substantial possibility that EVRAZ was the responsible party on January 7, 2013. EVRAZ’s motion for summary judgment was granted. (USDC DOR, MAY 22,2017) 2017 U.S. Dist. LEXIS 77075
COURT HOLDS THAT GENERAL MARITIME LAW DOES NOT APPLY IN OCSLA CASE
GENNUSO V. APACHE CORPORATION, ET AL.
Donald Gennuso was employed by Greene's Energy Services, LLC. Greene's entered into a contract with Apache Corporation, whereby Greene's would provide workers and equipment to flush a pipeline on an offshore platform so that an Apache oil well on the platform could be plugged and abandoned. Apache also contracted with Stella Maris, LLC to provide an individual, Brian Ray, to accompany the Greene's crew to the platform and assist with the flushing operation. Williams Field Services Group, LLC was the owner of the platform, and Eni US Operating Co. Inc. was its operator. Greene's sent a crew of five men, including Gennuso, to the platform to perform the flushing operation. Gennuso claimed that he was injured during the rigging-up procedure while lifting a three-inch joint of pipe so that another Greene's employee could connect the joint to another piece of equipment. Williams, Eni, Apache, and the other defendants all moved for summary judgment, arguing that Louisiana state law applied in this case through the operation of the Outer Continental Shelf Lands Act (OCSLA). Gennuso opposed the motion, arguing that maritime law applied. It was undisputed that the tort alleged in the case did not occur on navigable water. It was also undisputed that this "platform-located" incident was not caused by a vessel on navigable water such that the Admiralty Extension Act might apply. While Gennuso did not correctly invoke OCSLA for jurisdictional purposes, because jurisdiction is invested in the district courts by the OCSLA jurisdictional statute a plaintiff does not need to expressly invoke OCSLA in order for it to apply. The jurisdictional statute provides federal district courts with jurisdiction over cases and controversies arising out of, or in connection with any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf. Based on the allegations of the complaint, as amended, and the undisputed facts that this Court may consider in determining its jurisdiction, there is no viable argument to counter the application of OCSLA's jurisdictional statute to vest this Court with subject-matter jurisdiction. Once it is determined that a federal court has jurisdiction under OCSLA, the court must then examine the OCSLA choice of law provision and decide whether state, federal, or maritime law applies to that particular case. Therefore, the court concluded it did not have jurisdiction under general maritime law. Considering the evidence, the law, and the arguments of the parties, the court found that Louisiana law applied to the issues presented in the case, and the motion for summary judgment filed by defendants was granted. (USDC WDLA, May 11, 2017) 2017 U.S. Dist. LEXIS 72252
DUAL CAPACITY DOCTRINE INVOLKED INCORRECTLY
PRIDEMORE V. HRYNIEWICH, ET AL.
The City of Norfolk entered a contract with Willard Marine, Inc. to make certain improvements and repairs to the City's 29-foot SAFE Boats police patrol boat. The contract further provided that, in preparation for Willard's redelivery of the SAFE boat to the City, Willard must perform sea trial with a Norfolk Harbor Patrol representative to demonstrate that the contract work was complete. Richard J. Hryniewich, a Norfolk police officer, was at the helm of the boat during the required sea trials. Plaintiffs, Timothy B. Pridemore and David L. Glover, who are Willard employees, were on board during the sea trials as Willard representatives. At approximately three-quarters throttle, Hryniewich initiated a turn, and the boat suddenly and violently capsized. As a result, plaintiffs allegedly sustained injuries. Plaintiffs filed personal injury actions against defendants pursuant to maritime law, alleging negligence and gross negligence. Defendants in turn filed third-party complaints against Willard, alleging breach of contract, contractual indemnity, breach of the warranty of workmanlike service, equitable or common law indemnity and contribution, unseaworthiness, and general maritime negligence. Willard filed Special Pleas in Bar against defendants/third party plaintiffs Hryniewich and the City, alleging that the Longshore and Harbor Workers' Compensation Act provides the exclusive remedy for any injuries Pridemore and Glover incurred while under Willard's employ and therefore barred the causes of action and recovery sought in defendants' third party complaints. Although defendants acknowledged that the LHWCA ordinarily provides exclusive relief to injured employees and prohibits a negligent vessel from shifting liability to an employer, they asserted that they nevertheless were entitled to indemnity and/or contribution from Willard for negligence pursuant to the maritime "dual capacity doctrine." Defendants also respond that their breach of contract claim is unrelated to any LHWCA limitation. The court held that the City, as a shipowner, could not invoke the dual capacity doctrine against a non-vessel owner and because Willard was not a vessel for purposes of the doctrine and did not adopt a distinct non-employer persona, the dual capacity doctrine could not be invoked against it. The court found, however, that defendants had sufficiently alleged a breach of contract claim. The court therefore sustained in part and overruled in part Willard's Pleas in Bar. (Va. Cir Ct., May 19, 2017) 2017 Va. Cir. LEXIS 83
COURT REFUSES TO ALLOW EMPTY CHAIR AT TRIAL
ARMSTRONG V. NATIONAL SHIPPING COMPANY OF SAUDI ARABIA, ET AL.
Jordan Armstrong, a longshoreman, filed this lawsuit suing for damages stemming from an accident that occurred, in which he was injured by a forklift that rolled forward down a ramp on a ship where Armstrong was working, crushing him. He originally alleged three causes of action—negligence under the Longshore and Harbor Workers' Compensation Act, breach of implied warranty, and common law negligence—against various defendants. Discovery closed in the case and all dispositive motions have been filed and decided. The case is now set for jury trial. Defendants moved to designate responsible third parties pursuant to Texas Civil Practice and Remedies Code § 33.004. They move to designate REEM, the non-responsive defendant in the case, because it was the actual owner and shipper of the forklift at the time of the accident. As such, if there was a duty to warn, then the duty applied to REEM since it knew that the forklift would be shipped overseas. Defendants also moved to designate four of Armstrong’s co-workers as responsible third parties, asserting that their negligent supervision and/or negligence in failing to wait for plaintiff to unlash the front of the forklift first and move out of the way directly caused plaintiff's alleged injuries and damages. The court found that if it were to allow the requested designations, Armstrong would have the burden of defending an "empty chair" at trial. This burden would be exacerbated by the fact that discovery had closed, dispositive motions have been ruled on, and trial is set to take place in less than a month. Under these circumstances, the court did not believe that justice required tolling the statute of limitations to allow defendants to designate responsible third parties this late in the case, and so soon before trial. Defendants’ motions for leave to designate third parties was denied. (USDC SDTX, May 17, 2017) 2017 U.S. Dist. LEXIS 74921
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #280. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005. However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
And on the Admiralty front . . .
HIGH COURT'S BNSF RULING A ROADBLOCK FOR FORUM-SHOPPING
BNSF RAILWAY CO.V. TYRRELL
The Federal Employers’ Liability Act (FELA) makes railroads liable in money damages to their employees for on-the-job injuries, much the same as the Jones Act (which incorporates FELA by reference) does for seamen. Robert Nelson, a North Dakota resident, brought a FELA suit against BNSF Railway Company in a Montana state court, alleging that he had sustained injuries while working for BNSF. Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, also sued BNSF under FELA in a Montana state court, alleging that Brent had developed a fatal cancer from his exposure to carcinogenic chemicals while working for BNSF. Neither worker was injured in Montana. Neither incorporated nor headquartered there, BNSF maintained less than 5% of its work force and about 6% of its total track mileage in the State. Contending that it was not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, BNSF moved to dismiss both suits. Its motion was granted in Nelson’s case and denied in Tyrrell’s. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF because the railroad both did business in the State within the meaning of 45 U. S. C. §56 and was found within the State within the compass of Mont. Rule Civ. Proc. 4(b)(1). The due process limits articulated in Daimler, the court added, did not control because Daimler did not involve a FELA claim or a railroad defendant. On certiorari to the U.S. Supreme Court, the Court first noted that §56 did not address personal jurisdiction over railroads. Instead, §56's first relevant sentence provides that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” The Court noted that it has comprehended that sentence as a venue prescription, not as one governing personal jurisdiction. The second relevant sentence of §56 refers to concurrent subject-matter jurisdiction of state and federal courts over FELA actions. None of the cases featured by the Montana Supreme Court in reaching its conclusion resolved a question of personal jurisdiction. The Court held that the Montana courts’ exercise of personal jurisdiction under Montana law did not comport with the Fourteenth Amendment’s Due Process Clause. A state court may exercise general jurisdiction over out-of-state corporations when their affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State. Noting that BNSF is not incorporated or headquartered in Montana and its activity there was not so substantial and of such a nature as to render the corporation at home in that State, the supreme Court reversed and remanded the case. (Sup. Ct, May 30, 2017) 2017 U.S. LEXIS 3395
Updater Note: While not a Jones Act case, this opinion is certainly relevant and important to seaman cases, as it is an in personum case and should apply equally in FELA and Jones Act cases. The Supreme Court ruled that Montana courts cannot assert in personam jurisdiction over claims made by nonresident employees who were injured while working outside the state, agreeing with the railroad’s argument that such suits must be brought in the state where the employer is incorporated or headquartered. Thanks to Ken Engerrand, of Brown Sims, Houston, TX, for bringing the case to my attention.
CLAWBACK MOTION STINGS FISH PROCESSOR
IN RE: DEEPWATER HORIZON
The district court appointed a Special Master to examine and investigate suspicious past or pending claims submitted to the Deepwater Horizon Economic Claims Center (DHECC). The district court further ordered the Special Master to initiate legal action to "clawback" any already paid fraudulent claims. The Special Master and the Claims Administrator filed a joint clawback motion seeking to recoup $1,034,228.42 that the DHECC paid to Crystal Seafood Company, Inc. In order to obtain this $1,034,228.42, Crystal was required to and did swear that it did not constitute a "failed business" under the terms of the settlement agreement. The Special Master and the Claims Administrator alleged that this misstatement constituted fraud, and sought to have the district court order Crystal and any individuals who benefitted from Crystal's misstatement to remit the full $1,034,228.42 to the DHECC. The district court granted the clawback motion without a hearing, holding that there was no genuine dispute of material fact that Crystal was a failed business under the terms of the settlement agreement and that Crystal's sworn statement to the contrary constituted fraud. The district court then went on to pierce Crystal's corporate veil and hold two of Crystal's officers jointly and severally liable with Crystal for the $1,034,228.42 owed. Crystal appealed the district court order holding Crystal and two of its officers jointly and severally liable for a $1,034,228.42 payment that Crystal received pursuant to the BP settlement. The appellate court found that Crystal was properly held liable for repayment of the amount it received pursuant to a settlement of oil spill damage claims, as it misrepresented itself as an ongoing business when it filed its claim and it knew or should have known that it was a "failed business" and therefore ineligible for payment under the settlement terms. The appellate court further held that Crystal lacked standing to argue that its officers should not have been held personally liable for the judgment, as there was no genuine obstacle preventing the officers from protecting their own interests. The judgment of the district court was affirmed. (5th Cir, May 12, 2017) 2017 U.S. App. LEXIS 8463
FIFTH CIRCUIT ADDRESSES VICARIOUS LIABILITY ISSUE
DAVIS V. DYNAMIC OFFSHORE RESOURCES, LLC
Dynamic Offshore Resources LLC owned and operated an offshore platform, on which Thomas Davis, a crane mechanic employed by Gulf Crane Services, was allegedly injured during a personnel-basket transfer to the platform. No Dynamic employees were present at the platform. Independent contractors employed the lead operator, the crane operator, and all other workers on the platform. Davis brought suit against Dynamic for negligence and gross negligence. The district court granted summary judgment to Dynamic, holding that it was not vicariously liable for the alleged negligence of its independent contractors. Davis appeals the district court's grant of summary judgment to Dynamic. The appellate court found that personnel basket transfers were not ultra-hazardous activity because they required substandard conduct to cause injury. The court also found that Dynamic did not authorize an unsafe working condition that caused injury to Davis. The judgment of the district court was affirmed. (5th Cir, May 12, 2017) 2017 U.S. App. LEXIS 8464
AND THE BEAT GOES ON . . .
IN RE: DEEPWATER HORIZON
This was yet another case dealing with the settlement agreement that sought to reimburse claimants for economic losses related to the BP oil spill. The appeal addressed the computation of economic losses arising out of the BP oil spill and based on the BP Settlement Agreement. In an attempt to adhere to the circuit court’s decision in Deepwater Horizon I, 732 F.3d 326 (5th Cir. 2013), the district court approved a policy adopted by the Claims Administrator known as Policy 495. Policy 495 consisted of five methodologies pursuant to which the Claims Administrator is to calculate claimant compensation: one Annual Variable Margin Methodology ("AVMM") and four Industry-Specific Methodologies ("ISMs"). Class Counsel challenged all five. The appellate court found that class counsel did not present evidence sufficient for the appellate court to find that the district court's approval of the AVMM constituted clear error where the parties intended for all similarly situated claimants to be treated alike. Matching unmatched profit and loss statements promoted this goal. The settlement agreement granted each claimant the right to choose his or her compensation period, consisting of three or more consecutive months between May and December 2010. Because the ISMs infringed upon that right, the appellate court held that the district court's approval of them was in error. The appellate court affirmed as to the AVMM, reversed as to the ISMs, and remanded for proceedings. (5thCir, May 22, 2017) 2017 U.S. App. LEXIS 8915
APPELLATE COURT AFFIRMS DISMISSAL OF RICO CLAIM
MITSUI OSK LINES, LTD. V. SEAMASTER LOGISTICS, INC., ET AL.
This case involved a Racketeer Influenced and Corrupt Organizations Act (RICO) claim filed by Mitsui OSK Lines, LTD. (MOL) against SeaMaster Logistics, Inc. and Toll Global Forwarding (Americas) Inc. MOL alleged that Toll Global and SeaMaster's fraudulent wire and mail transmissions proximately caused it domestic injuries. MOL appealed the district court’s dismissal of its RICO claim. The appellate court note that in order to show proximate cause, MOL must prove some direct relation between the injury asserted and the injurious conduct alleged and that mere "but-for" or factual causation was insufficient. The appellate court agreed that defendants' use of U.S. mails and wires did not proximately cause MOL's injuries. Those injuries were the direct result of Toll Global’s and SeaMaster's false Shenzhen door declarations, which induced MOL to issue payments to Rainbow and forego the higher origin receiving charges and space protection premiums to which it otherwise would have been entitled. The false wire and mail transmissions at issue may have facilitated the overall arrangement, but their role in the scheme was insufficiently direct to constitute a proximate cause of MOL's injuries. Thus, the appellate court accepted that the defendants engaged in fraudulent activity resulting in losses to MOL, but found that fraudulent wire and mail transmissions were not shown to be the proximate cause of the losses. The judgment of the district court was affirmed. (9th Cir, May 23, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 8980
AT-WILL EMPLOYMENT IS EXACTLY WHAT IT SAYS IT IS
MCPHERSON V. FISHING COMPANY OF ALASKA
Michael McPherson signed an "Employment At-Will Contract" with Fishing Company of Alaska in September 2015. Fishing Company agreed to pay McPherson $200 per day as an assistant engineer on a Fishing Company vessel. The contract also said that Fishing Company employed McPherson at will and could terminate him at any time, with or without notice and with or without cause. The contract period was 90 days. Fishing Company fired McPherson 18 days into the contract period. McPherson sued, alleging Fishing Company wrongfully fired him. He asked for lost wages and other relief, asserting that because 46 U.S.C. § 10601 requires a fishing agreement to include a "period of effectiveness," he could not be fired without cause during that period. The parties filed cross motions for partial summary judgment. The trial court granted Fishing Company's motion. The trial court then entered a final judgment in favor of Fishing Company. McPherson appealed the trial court's summary judgment dismissal of his lawsuit against Fishing Company. McPherson claimed that the "period of effectiveness" term in his employment contract prohibited Fishing Company from firing him without cause during that period. The appellate court disagreed holing that, because McPherson's contract contained an at-will employment provision and the statute requiring a period of effectiveness does not change the historical rule of at-will employment in maritime contracts, it affirmed the trial court’s judgment. (Wash. App. Ct., May 30, 2017) 2017 Wash. App. LEXIS 1268
COURT REFUSES TO RULE ON EMPLOYER’S MCCORPENDEFENSE (CONT.)
RINEHART V. NATIONAL OILWELL VARCO L.P., ET AL.
This case arises out of injuries allegedly sustained by Donald Rinehart, while he was employed as a Jones Act seaman in his capacity as an engineer aboard a vessel operated by the bareboat charterer Starfleet Marine Transportation, Inc. Rinehart alleged that he was ordered by the vessel's captain to assist with loading pallets aboard the docked ship. National Oilwell Varco, L.P. (NOV) owned the mobile crane and hook used in loading the pallets and employed the crane operator. Rinehart claimed he was injured when a pallet fork slipped from the crane's hook onto the back of his head while loading pallets onto the vessel's deck. Rinehart has since undergone multiple complex surgical procedures with alleged permanent scarring; severe headaches with substantial neurological deficits, including memory loss and a severely-diminished reading ability; and the inability to swallow normal food, so that he must eat through a feeding tube surgically-implanted into his stomach. Rinehart filed suit under the Jones Act and general maritime law requesting a jury trial and seeking recovery for the damages he sustained. Starfleet moved for partial summary judgment on Rinehart’s claims for maintenance and cure, maintaining that Rinehart had pre-existing back injuries that he concealed from Starfleet, and therefore was not entitled to maintenance and cure. The court had previously denied Starfleet's motion for partial summary judgment on Rinehart’s claims for maintenance and cure because Rinehart had not specifically claimed maintenance and cure in his complaint [see January 2017 Longshore Update]. The court had also previously granted NOV’s motion for partial summary judgment, seeking to dismiss Rinehart’s claims against it for punitive damages, holding as established in Scarborough, all the court must determine is whether Rinehart was a seaman and whether NOV was his employer, since a seaman may not recover punitive damages against a non-employer third party [see May 2017 Longshore Update]. Starfleet then asserted a counterclaim seeking a declaratory judgment that they do not owe maintenance and cure, and Rinehart responded with his own counterclaim, asserting a claim for maintenance and cure. Starfleet now maintains that the question of maintenance and cure is properly before the court. According to Starfleet, Rinehart intentionally withheld his preexisting back condition on his pre-employment medical questionnaires specifically inquiring about a history of back problems. Rinehart disagreed, arguing he filled out the form truthfully and in a manner consistent with the instructions given him, arguing that he was told the questions only related to his ability to perform his duties on the job. Starfleet pointed out that the preexisting injury and the current injury in question were both to the lumbar region, which satisfied the third McCorpen prong requiring a connection between the information plaintiff withheld and the injury alleged in the lawsuit. Rinehart, however, pointed to physician testimony and other evidence suggesting his prior injury was not the same as the current injury, arguing the issue should be sent to the jury. The court found that Rinehart pointed to genuine issues of material fact surrounding his prior injuries and his honesty when filling out pre-employment paperwork. Both parties point to conflicting medical testimony and evidence. At this stage in the proceeding, the court held that it must draw all reasonable inferences in favor of the non-moving party. While this Court may take all evidence into account, it cannot make the credibility determinations required to resolve the instant issue. Accordingly, because issues of fact and credibility remain, The issue was not ripe for summary judgment and must be resolved by a trier of fact. Starfleet's motion for partial summary judgment was denied. (USDC EDLA, May 17, 2017) 2017 U.S. Dist. LEXIS 74995
SCARBOROUGH IS THE PRECEDENT THE COURT MUST FOLLOW
ROCKETT V. BELLE CHASSE MARINE TRANSPORTATION, LLC, ET AL.
Darrin Rockett, filed his seaman’s complaint against Belle Chasse Marine, LLC and St. John Fleeting, LLC., seeking damages for injuries he allegedly sustained in a maritime accident. Rockett, a Jones Act seaman, alleged that he was employed as the captain of a vessel in navigation owned, operated and controlled by Belle Chasse, and that he sustained injuries to his head and other parts of his body when that vessel struck a buoy. Rockett alleged that St. John owned, maintained, or was otherwise responsible for the buoy, which was improperly marked, maintained, and/or positioned. Rockett's claims against Belle Chasse included a negligence claim under the Jones Act, and general maritime law claims for unseaworthiness and failure to pay maintenance and cure, along with punitive damages related to the failure to pay maintenance and cure. Rockett alleged a general maritime law negligence claim against St. John, and sought punitive damages associated with that claim. In response, St. John moved to dismiss arguing that under Fifth Circuit precedent, Rockett, a Jones Act seaman, could not recover non-pecuniary damages, including punitive damages, from a third-party non-employer for a general maritime law negligence claim. Rockett argued that the court should follow other sections of the court which have held that Scarboroughwas effectively overruled by Atlantic Sounding Co. v. Townsend, and that in light of, Townsend, a seaman should be permitted to seek punitive damages against a third-party non-employer tortfeasor under general maritime law. The court pointed out that, as other courts in the district have recognized, although Townsend may give hope to seamen wishing to obtain punitive damages for unseaworthiness claims against their employers and non-employers, the court must refuse to assume the Fifth Circuit has changed its position on personal injury claims falling outside the scope of Townsend. Further, the Court notes that the Fifth Circuit's decision in Scarborough, which held that a seaman may not recover punitive damages against either his employer or a non-employer, was binding on the court and had never been overruled. The court thus concluded that the United States Court of Appeals for the Fifth Circuit has not overruled Scarborough, and it is the law of the Fifth Circuit that neither a seaman nor a seaman's survivors can recover punitive damages from a non-employer third-party for negligence and unseaworthiness claims under general maritime law. Therefore, St. John's motion to dismiss was granted, and Rockett's punitive damages claim against it was dismissed with prejudice. (USDC EDLA, May 22, 2017) 2017 U.S. Dist. LEXIS 77043
DEATH AND PERSONAL INJURY CASES ARE INDISTINGUISHABLE ON PUNITIVES
SCHUTT V. ALLIANCE MARINE SERVICES LP, ET AL.
Jeremy Schutt claimed that he sustained significant personal injuries while working aboard the floating production storage and offloading unit Owned by Alliance Marine Services LP. Schutt filed a seaman's complaint for damages and brought claims under the Jones Act and general maritime law, including claims for punitive damages against the defendants as a group pleading. The punitive damages claim related not only to any arbitrary and unreasonable failure to pay maintenance and cure benefits but also for any gross negligence of either defendant, or unseaworthiness of the vessel as may be allowed under general maritime law. Defendants moved for partial summary judgment on Schutt’s punitive damages claim. The court began its analysis by noting that in the Fifth Circuit a Jones Act seaman may not recover non-pecuniary damages against a non-employer third party under general maritime law. Schutt argues that Scarborough, Milesand McBride were distinguishable from the instant controversy because they both involved wrongful death versus personal injury. However, the court noted that Schutt had failed to cite any case law that would indicate that controlling authority would treat the issues of punitive damages different under personal injury claims versus wrongful death. The crux of the appellate court's decision is based on punitive damages not being appropriate under the Jones Act or general maritime law and therefore whether punitive damages are based on wrongful death or personal injury, their impropriety remains the same under both of the aforementioned legal schemes. Given the law of the circuit the court found that it was appropriate to grant the defendants' partial motion for judgment on the pleadings regarding punitive damages. (USDC EDLA, May 26, 2017) 2017 U.S. Dist. LEXIS 80902
COURT DISMISSES JONES ACT & UNSEAWORTHINESS CLAIMS, BUT NOT STATUS
DUBUISSON V. A.I.S., INC. OF MASSACHUSETTS
A.I.S., Inc. of Massachusetts moved for summary judgment on Richard Dubuisson's Jones Act negligence and unseaworthiness claims. Acknowledging that A.I.S. neither owned nor operated the vessel upon which his alleged injury occurred, Dubuisson conceded, in responding to A.I.S.’s motion, that he lacked a viable unseaworthiness claim against his employer. Accordingly, the court granted that aspect of A.I.S.’s motion as unopposed. After carefully considering the parties' competing submissions and applicable law, the court also found that Dubisson’s Jones Act negligence claim likewise should be dismissed. Even if Dubisson was found to enjoy Jones Act seaman status, he failed to point to evidence sufficient to support the existence of a triable issue with respect to whether A.I.S. had any reason to believe that the vessel captain would not provide Dubuisson and his co-workers with a safe place to work aboard the vessel. Dubuisson did not contest A.I.S.'s assertion that it was Industrial Economics, Inc., not A.I.S., that hired Captain Tolbert to provide vessel transportation for the A.I.S. biologists/oyster samplers. And, in any event, Dubuisson pointed to no criticism of Captain Tolbert's services other than his own. As such, the court found no evidentiary basis for submitting the question of A.I.S's alleged negligence to a jury for determination. A.I.S.’s motion for summary judgment relative to Dubuisson’s Jones Act negligence and unseaworthiness claims was granted and both causes of action were dismissed with prejudice. (USDC EDLA, May 10, 2017) 2017 U.S. Dist. LEXIS 73660
In a separate ruling in the same case, the court addressed A.I.S.’s motion for summary judgment relative to Dubuisson's alleged "seaman status" for purpose of his maintenance and cure claims. After carefully considering the parties' competing submissions and applicable law, the court found that Dubuisson undisputedly spent 31% of the time aboard Captain Tolbert's vessel during the August 17 - December 1, 2015 oyster sampling project, and A.I.S. acknowledged that Dubuisson’s duties contributed to accomplishment of the vessel's mission. The court, on the instant showing made, was not in a position to conclude that Dubuisson lacked seaman status as a matter of law. Rather, that question was appropriately left to the trier-of-fact, the jury, for determination. A.I.S.’s motion for summary judgment directed at seaman status was denied. (USDC EDLA, May 10, 2017) 2017 U.S. Dist. LEXIS 73659
COURT FINDS QUESTIONS OF FACT PRECLUDE SUMMARY JUDGMENT
BEAUCHAINE V. ENTERPRISE MARINE SERVICES, LLC, ET AL.
Bradley Beauchaine filed this action under the Jones Act against his employer, Enterprise Marine Services, LLC, alleging that he was injured while working as a seaman aboard a vessel owned and operated by Enterprise. Beauchaine alleges that he slipped and fell while scrubbing the vessel, causing him to sustain injuries to his right hand, thumb and knee. Beauchaine alleged that Enterprise's negligence caused the accident in that Enterprise failed to provide a safe place to work and allowed a dangerous slip and fall hazard to exist on the vessel. Beauchaine also alleged claims against Enterprise for unseaworthiness and failure to pay maintenance and cure. Enterprise moved for partial summary judgment, arguing that they were entitled to summary judgment on Beauchaine’s Jones Act claim because the undisputed evidence demonstrated that Beauchaine was solely at fault for his alleged accident. Beauchaine argued that there were disputed issues of material fact that precluded summary judgment on his Jones Act claim. While Enterprise argued that Beauchaine's testimony proved that Enterprise was not negligent in causing Beauchaine's alleged accident because Beauchaine had all of the materials necessary to do the job, the court found that Beauchaine had pointed out several disputed issues of material fact that precluded summary judgment, including Enterprise's potential negligence regarding the application of non-skid material, the drainage of water from the decks, the placement of water sources on the vessel and the sufficiency of the crew. Therefore, Enterprise's motion for summary judgment was denied. (USDC EDLA, May 25, 2017) 2017 U.S. Dist. LEXIS 80234
COURT FIND YACHT MASTER HAD SUFFICIENTLY PLEADED SEAMAN STATUS
HICKS V. SHELTON
This is an admiralty case arising out of a personal injury allegedly sustained by David Hicks, who worked aboard a pleasure yacht owned by the Walter and Lilie Shelton. Shelton hired Hicks to perform maintenance and repair jobs on the yacht, under the guidance of the yacht's master. Hicks was eventually hired to take over the position of the yacht's master on a part-time basis, although his position continued to include general maintenance and repair duties. Eventually, Hicks was hired on a full-time basis as the yacht's master and lived aboard the yacht where he worked full-time on the yacht's maintenance and repairs. Hicks was working to move the yacht from its location, when he fell approximately seven feet onto the concrete dock and landed on his elbows. As a result of this injury, Hicks underwent a number of surgeries. After the Sheltons terminated Hicks, he filed suit against the Sheltons for failure to pay maintenance and cure and for damages arising out of the Sheltons' negligent failure to provide medical treatment under the Jones Act. The Sheltons moved to dismiss the complaint, alleging that Hicks failed to plead facts in support of his status as a seaman under the Jones Act. The Sheltons contended that while Hicks had established that he was employed by Hilton Head Boatworks, he had failed to show that he was employed by the Sheltons such that he would qualify for seaman status under the Jones Act. Hicks countered that the complaint sufficiently set forth factual assertions to support his claim that the Sheltons employed him on a full-time basis as master of the yacht, and that was sufficient to fulfill the test for a seaman. The court found that Hicks was employed on a full-time basis to work aboard the yacht beginning in November of 2014 until his termination on June 22, 2016. Hicks was living aboard the yacht and working on a full-time basis in cleaning, maintaining, and repairing the yacht, clearly spending more than 30 percent of his time "in service" of the yacht. While some of Hicks's duties were on-shore, the court found that Hicks had alleged sufficient facts for the court to find that his duties were not those of a land-based worker with an incidental connection to the vessel, but rather that Hicks was employed full-time as a master of the yacht. Hicks also alleged that he has employed by the Sheltons for over 18 months, and that at the time of his accident he was employed as master of the yacht and lived aboard it. This was sufficient for the court to find that his connection to the yacht was substantial in both duration and nature, and thus, that he fulfilled the two prongs for seaman status under the Jones Act outlined in Chandris. Therefore, the court denied the Sheltons’ motion to dismiss. (USDC DSC, May 8, 2017) 2017 U.S. Dist. LEXIS 69529
WE DID NOT GET PAID WHAT WE WERE PROMISED (CONT.)
DUNN, ET AL V. HATCH MARINE ENTERPRISE, LLC, ET AL.
Plaintiffs were employed by defendants as deckhands aboard a fishing vessel for the 2013 salmon season. They alleged that Bryce Hatch verbally promised them a ten percent share of the catch. While the value of the catch is estimated at the time of the vessel's return, buyers typically pay more than the estimate, and the crew is entitled to have this upward adjustment added to the value of the catch for purposes of computing the ultimate share due each seaman. Both plaintiffs allege that their agreements were verbal in nature and never reduced to writing. Defendants continue to allege that plaintiff Dunn had a written agreement, and proffered a contract with Dunn's signature affixed. Dunn counters that his signature was forged. In an earlier decision, the court dismissed all claims against Bryce Hatch individually; dismissed claims for punitive damages under maritime law and wage penalties under state law sought under a breach of contract claim brought under §10601, §11107, and §§10602(a), (b) & (c); required plaintiffs to amend their complaint to allege the fraud claim with particularity; and granted plaintiffs time to conduct discovery on whether Hatch concealed the payment of an adjustment by the buyer and understated the amount the buyer paid for the catch [see September 2016 Longshore Update]. After conducting discovery, plaintiffs claim that they had discovered evidence that Hatch understated the amount the buyer paid for the catch and found no evidence that Hatch concealed the payment of an adjustment by the buyer. Plaintiffs filed their amended complaint, and Hatch responded by filing a second motion to dismiss, seeking to dismiss the fraud claim and the allegations in the amended complaint that continued to allege claims against Bryce Hatch personally and continued to seek punitive damages for violation of the statutory wage claims. The amended complaint contained a single allegation of fraud, alleging that Hatch forged Dunn's signature on a written contract and mailed the fraudulently altered contract of employment to counsel for the plaintiff in an effort to avoid the consequences of failing to have a written contract of employment as required by 46 U.S.C. §10601. The court pointed out that, while submitting a forged document to a court or to counsel constitutes litigation fraud, forgery does not constitute a cause of action for fraud under Idaho law because it arose after the work for which Dunn sought wages, and Dunn did not rely on it in any way. Thus, the fraud claim must be dismissed. The issue of forgery remained, however, in two respects. First, if Dunn's written contract was forged, he had a mere oral contract and was entitled to enhanced damages under maritime law. Second, if Dunn's contract was forged, Hatch and/or defense counsel could be subjected to substantial sanctions. Thus, while the dismissal of the fraud claim took away plaintiffs' last opportunity to collect punitive damages, the forgery issue remained alive in the case and, if proven, would result in enhanced damages and sanctions. The amended complaint also carried forward claims dismissed by the court in its earlier decision, and it referred to punitive damages in several paragraphs although no claim remained that could support an award of punitive damages. Therefore, the court ordered stricken the reference to personal liability of Bryce Hatch and the reference to punitive damages. (USDC DID, May 8, 2017) 2017 U.S. Dist. LEXIS 70175
PUTATIVE SEAMAN’S NEW YORK LABOR LAW CLAIMS ARE DISMISSED
BARBOSA V. THE CITY OF NEW YORK
Anthony Barbosa, a construction worker, brought this action alleging violations of the Industrial Code for injuries stemming from his alleged trip and fall over exposed rebar at his work site. Barbosa’s complaint also asserted claims pursuant to the Jones Act. Barbosa moved for partial summary judgment on liability specifically for violation of Industrial Code § 23-1.7(e) under Labor Law § 241(6). He withdrew all claims under the Jones Act, Labor Law § 240(1), and Industrial Code §§ 23-1.2, 23-1.16, 23-8.4 and 23-5 that were claimed under Labor Law § 241(6) in his opposition to the City's motion for summary judgment. The City moved for summary judgment as to Barbosa’s remaining causes of action under Labor Law § 241(6), and Labor Law § 200. Barbosa argues that because he worked within an area that contained tripping hazards (the exposed rebar) the City violated Industrial Codes §§23-1.7(e)(1) and (2). The City argued that §23-1.7(e)(1) was inapplicable to the case because Barbosa did not fall within a passageway, and the exposed rebar was within the working area and was an integral part of the job site. According to photographic evidence and Barbosa’s own testimony, he was not walking through a passageway, rather he was actively engaged in drilling work and retrieving a hose to continue his job drilling holes on top of the precast through the pile cap. While the rebar might have been "all over the place", it was not strewn haphazardly, rather it was exposed in neat rows ready to connect to concrete. Therefore, the court concluded that §23-1.7(e)(1), which deals with passageways, was not applicable. There was also no cause of action under the latter section, §23-1.7(e)(2), which deals with scattered debris, materials, and/or sharp projections. Accordingly, the City of New York's motion for summary judgment was granted and Barbosa’s motion for partial summary judgment was denied. The complaint was dismissed. (NY Sup. Ct, May 1, 2017, UNPUBLISHED) 2017 N.Y. Misc. LEXIS 1775
COURT ADDRESSES CROSS MOTIONS ON INDEMNIFICATION ISSUES
KNOX V. BISSO MARINE, LLC, ET AL.
Patrick Knox allegedly sustained injuries during a personnel basket transfer while employed by Coastal Towing, LLC, and working as a crew member. Knox initially became ill and needed to be evacuated to shore for treatment. To effect the evacuation, Knox first transferred to a Bisso Marine's vessel, and then to a REC Marine Logistics, LLC vessel. A crane was used to transfer Knox via personnel basket from one vessel to the other. According to Knox, during the transfer the crane operator slammed the personnel basket onto the deck of the REC Marine vessel causing Knox to be ejected. Knox claimed serious injuries to his neck, back, hip, knee and other parts of his body as a result of the incident. Litigation in the case was initiated by Coastal, Knox's employer and owner/operator of his assigned vessel, who sought a declaratory judgment that REC was responsible for the incident and must indemnify Coastal for all sums paid to Knox. REC filed a third-party demand against Dawn Services, LLC, seeking defense and indemnity under Dawn's contract with Bisso. Knox was granted leave to intervene to assert claims against Bisso, REC, and Coastal. The defendants moved for summary judgment on the cross claims/third-party demands between Bisso, REC, and Dawn. REC moved for summary judgment on its third-party demand against Dawn, contending that the Master Subcontractor Agreement between Bisso and Dawn inures to its benefit such that Dawn owes contractual defense and indemnity to REC. Th court noted that REC's interpretation would mean that Dawn agreed to indemnify not only the Bisso corporate family but also all of the numerous subcontractors that performed work for Bisso. This gargantuan undertaking was not what the contract suggested. REC's legal arguments were grounded on a plethora of district court cases, none of which constituted controlling authority, most of which could be distinguished, and none of which suggest to the court that Dawn owed indemnity to a collateral subcontractor of the third degree. Bisso moved for summary judgment against REC on the cross claims for contribution and contractual indemnity that REC has asserted against Bisso in conjunction with Knox's claim. Bisso argues that REC contractually waived these claims as part of its brokerage agreement with Kilgore. The court found REC's opposing position unpersuasive. As Bisso pointed out, given that the express goal of the Kilgore-REC brokerage agreement was to charter REC's vessels to third parties, interpreting the interplay between Sections 5 and 2.B as REC suggests would render nugatory the very protections that Kilgore had in place for itself, which would be unreasonable. The court was persuaded that REC contractually waived the very claims that it now asserted against Bisso. Dawn's cross motion for summary judgment was granted insofar as Dawn sought a ruling that it need not provide contractual defense and indemnity to REC in conjunction with Knox's claim. The motion for summary judgment filed by REC was denied and Bisso’s and Dawn’s motions were granted. (USDC EDLA, May 15, 2017) 2017 U.S. Dist. LEXIS 73757
COURT DENIES UNOPPOSED MOTION TO CONTINUE TRIAL
KING VERSUS GULFMARK AMERICAS, INC.
Kortney King was employed by GulfMark Americas, Inc. as a seaman. King claimed he was carrying groceries on the steps near the second floor of his vessel when he slipped on melted ice and fell down the steps. The fall allegedly caused injuries to King's back, head, legs, and hands. King filed his seaman’s suit alleging that the fall was caused solely by the negligence of GulfMark, and that the vessel was unseaworthy at the time of his fall. King further alleged that that he was entitled to maintenance and cure from GulfMark, as well as compensatory and punitive damages, attorneys' fees, and costs. GulfMark moved to continue trial, arguing that King’s medical uncertainty warranted the continuance, as King’s treating physician had recommended surgery, but surgery had not yet occurred. The motion was unopposed. The court noted that this was the exact reason King gave the court in King’s previous motion to continue, which was granted last year. Gulfmark’s motion gave no indication why the surgery, which was recommended at least as far back as last year, had not yet occurred, and there was also no indication if the surgery was even scheduled. As such, the court found that GulfMark had not shown good cause to warrant a second continuance. GulfMark’s motion was denied. (USDC EDLA, May 4, 2017) 2017 U.S. Dist. LEXIS 67924
COURT GRANTS DISMISSAL, BUT NOT FOR THE REASON REQUESTED
RIOS V. UNITED STATES OF AMERICA
Luis Rios was a member of the crew of a vessel owned, operated or controlled by the United States. Rios and a fellow crew member were working on a hose that was not depressurized. When the hose uncoupled, it propelled into Rios, and allegedly tossed him approximately ten feet and caused him to sustain injuries to his back and hip. Rios submitted an initial presentment letter pursuant to 46 U.S.C. § 30901via certified mail. There was no dispute that the United States Attorney's Office for the Southern District of Texas and the United States Department of Justice received the presentment letter. However, neither the Department of Transportation nor the Maritime Administration received the initial presentment letter. Rios mailed a second presentment letter pursuant to the Maritime Administration. The Maritime Administration received this second letter and forwarded the second letter to the Navy, the entity that owned and operated the vessel in question. Rios then filed this lawsuit against the United States of America, alleging that he sustained physical injuries due to its negligence in violation of §905(b) of the LHWCA. The United States moved to dismiss under FRCP 12(b)(1), on the basis that Rios did not properly exhaust the administrative requirements under the Admiralty Extension Act prior to bringing his case in federal court. Before examining whether Rios met the administrative requirements in §30101(c)(2), the court first assessed whether the AEA applied in the case. The court concluded that Rios's injury occurred on land, so it next considered whether a vessel on navigable waters caused that injury. The court found that the record indicated that neither the vessel nor its appurtenances caused Rios's injuries. Rios alleged that he was injured when he was struck with a hose that was not depressurized properly. But the hose at issue was not an appurtenance of the vessel. Therefore, the court concluded that the hose was not part and parcel of the vessel and the AEA did not apply. Even If the AEA applied, the court agreed that Rios had failed to satisfy the AEA administrative exhaustion requirement. Although the United States did not raise other grounds for dismissal based upon FRCP12(b)(1) in its papers, at the motion hearing, the United States argued that if the AEA did not apply in this case, Rios must rely upon another waiver of sovereign immunity to allow him to sue the United States government in federal court. In his complaint, Rios asserts that this court has jurisdiction pursuant to 28 U.S.C. §§1333 and 1333(1), which provides federal courts with maritime jurisdiction. But the court found that Rios's claim did not fulfill the "location" prong of the Grubart test. Even if Rios could establish a "connection" to maritime activity, the court held that it does not have admiralty jurisdiction because Rios is unable to establish the required "location" prong of the Grubarttest. Thus, the court dismissed the action for lack of subject matter jurisdiction. (USDC DMA, May 5, 2017) 2017 U.S. Dist. LEXIS 68999
COURT DECLINES TO DECIDE LIMITATION ISSUE ON SUMMARY JUDGMENT
BRAND, ET AL., V. UNITED STATES OF AMERICA, ET AL.
Ronald Brand, Cheryl Brand, the Brands' minor child, and Allison Tashlik and Adam Rinne, commenced this action after a collision between an 18-foot Bayliner Capri power boat operated by Ronald Brand, which contained the other plaintiffs, along with two non-party minors, as passengers, and a 23-foot SAFE patrol boat belonging to the United States Customs and Border Patrol, which contained three CBP agents. Prior to the collision, the plaintiffs' boat was traveling southbound on the river, moving diagonally from the east side of the river towards the west side with the intention of making a right-hand turn into an inlet, which is on the west side of the river. At that time, the CBP boat was traveling southbound on the river along the west side of the river, and was behind and to the right of the plaintiffs' boat just prior to reaching the inlet. Just before the collision, while the boats were approaching close to each other, Brand proceeded to veer left towards the center of the river before making an approximately 90-degree right turn towards the mouth of the inlet. The CBP boat operator, not being aware that the plaintiffs' boat was going to turn right after veering to the left, attempted to pass the plaintiffs' boat on its right side, which resulted in the CBP boat "t-boning" the right side of the bow of the plaintiffs' boat. As a result of the collision, the CBP boat ended up on top of the bow of the plaintiffs' boat, causing significant damage to the plaintiffs' boat and serious injury to one of the plaintiffs and minor injuries to three other plaintiffs. The CBP boat sustained no measurable damage and none of its crew was injured. The plaintiffs' alleged claims for negligence and vicarious liability, gross negligence, and negligent entrustment pursuant to the Federal Tort Claims Act, the Public Vessels Act, and the Suits in Admiralty Act. The United States filed a third-party complaint, pursuant to FRCP 14(c) against Brand, wherein it alleged that the collision was due to his negligent operation of the plaintiffs' boat. The United States also asserted its entitlement to the exemptions from and limitations of liability provided by law to an owner and operator of a vessel. The plaintiffs moved for partial summary judgment as to this affirmative defense. The court noted that Section 30505 was applicable to the United States pursuant to the PVA, which states that the United States is entitled to the exemptions from and limitations of liability provided by law to an owner, charterer, operator, or agent of a vessel. The court concluded, in agreement with the position argued by the United States, that the limitation of liability issue cannot be resolved through summary judgment because the evidence of record, viewed in favor of the United States, the non-moving party, established that there are genuine issues of material fact as to whether Brand or agents of the United States were negligently responsible for causing the two boats to collide. Because the determination of what acts of negligence caused the collision, the first step in the limitation of liability analysis, could be determined by the court as a matter of law based on the submitted record. The plaintiff’s motion for partial summary judgment was denied. (USDC DAZ, May 4, 2017) 2017 U.S. Dist. LEXIS 68221
NO RIGHT TO JURY TRIAL IN LIMITATION PROCEEDING
IN RE: SPIRIT CRUISES, LLC
This limitation action arose out of an allision between a chartered vessel, the M/V SPIRIT OF BALTIMORE, and a floating dock. Spirit Cruises, LLC, the owner of the vessel, filed its verified complaint for exoneration from or limitation of liability, And the court issued an order enjoining the commencement or further prosecution of actions and proceedings against plaintiff in connection with the voyage of the vessel and set the limitation fund at $1,850,000. Thereafter, twenty-eight people filed claims with the court, seeking an aggregate of more than $2.8 million. Seventeen claimants filed a demand for jury trial or otherwise pleaded such a request. Some of the claimants also counterclaimed. Spirit filed a motion to strike the claimants' jury demands, arguing that the claimants did not have the ability to request a jury trial in the limitation proceeding. The claimants filed a consolidated opposition to the motion. In particular, Spirit pointed out that there is more than one claimant and the total of the claims exceeds the limitation fund amount of $1,850,000. The claimants argued dismissal of their demands for jury trial was premature, because many facts remain yet to be discovered, both through the discovery process in this litigation and based on the Coast Guard's yet to be completed investigation. In its reply, Spirit reasserted its view that there was no right to trial by jury in this limitation action. The court noted that if claimants prevail on the limitation of liability action, they would be permitted to elect to continue in that proceeding in admiralty or to file suit in state or federal court. But, at this time, claimants did not have a right to proceed by way of a jury trial as to the applicability of the Limitation of Liability Act. The court granted the motion insofar as claimants sought to proceed by way of a jury in the limitation action on the issue of exoneration from or limitation of liability. However, the motion was granted without prejudice to claimants' rights to renew their requests for trial by jury in the event that future proceedings would permit a jury trial. (USDC DMD, May 25, 2017) 2017 U.S. Dist. LEXIS 80480
COURT ALLOWS BIFURCATION BUT REFUSES REMAND IN LIMITATION ACTION
IN RE: AMERICAN BOAT COMPANY LLC, ET AL.
Patrick Titus was killed during the course of his employment as a crew member of a vessel owned by American Boat Company, LLC and Strait Maritime Group, LLC and operated by owner pro hac vice Western Rivers Boat Management, Inc. The incident occurred at a facility owned by Bear Industries. Three lawsuits resulted from this incident: Adams, et al v. Western Rivers Boat Management, Inc., et al, the current action for exoneration from or limitation of liability brought by Western Rivers; and Crosswell, et al v. Western Rivers Boat Management, Inc., et al. Following the filing of the limitation action, the two state court actions were stayed. Answers and Claims in this proceeding were filed by four groups of claimants, each of whom claim damages against Western Rivers: Bear Industries; Kathryn Hammes-Ciraolo, individually and as a personal representative of the Estate of Patrick James Titus; Jordan Adams, as Next Friend and on Behalf of T.T., a Minor and Heir to the Estate of Patrick Titus; and James Crosswell, individually and as Heir of the Estate of Patrick Titus. The Titus Claimants requested a jury trial. Hammes-Ciraolo, on behalf of the Titus Claimants, moved to bifurcate the matter, pursuant to the Savings-to-Suitors Clause, and requested that, after the court adjudicated the exoneration from or limitation of liability issue, the court return all non-limitation issues to the state court actions. Bear Industries and Western Rivers agree that the matter should be bifurcated such that the Court should determine the limitation issue without a jury, but also moved that the court retain jurisdiction and empanel a jury to decide the issues of fault and damages since this was a multi-claimant matter, and the Titus Claimants had failed to agree to the required stipulations to return to state court. The court noted that the claims of the Titus Claimants were alleged to exceed the value of the vessel, which Western Rivers attests to be approximately $2.5 million. Further, the Titus Claimants had not indicated any intent to stipulate that they will not seek to enforce a greater damage award in state court. Thus, bifurcation allowing the Titus Claimants to proceed in state courts would be inappropriate as the court could not protect Western Rivers' right to limitation. Moreover, such an order would result in at least three separate, duplicative, and expensive trials, which would be inconvenient and would not serve judicial economy. The cases relied upon by the Titus Claimants were inapposite as they do not involve multi-claimant scenarios as presented here. Accordingly, the Titus Claimants' motion to bifurcate was denied. Bear Industries requested that the court try all limitation issues and preside over a jury trial to resolve claimants' personal injury and contribution. The court found that this procedure would avoid prejudice to either party. Bear Industries' motion to bifurcate trial between the bench and a jury in the limitation forum was granted. The motion to bifurcate filed on behalf of the Titus Claimants was denied. The motion to bifurcate by Bear Industries, Inc. was granted. (USDC MDLA, May 16, 2017) 2017 U.S. Dist. LEXIS 74285
MARITIME CRANE OPERATOR TRIES TO CIRCUMVENT FLSA OVERTIME RULE
ADAMS V. ALL COAST, LLC.
This lawsuit was filed by William Adams, individually and on behalf of all others similarly situated, against All Coast, LLC, asserting claims arising under the Fair Labor Standards Act. Adams alleged that All Coast owned and operated a fleet of lift boats for the offshore oil and gas industry. Adams further alleged that he was employed by All Coast "as an able-bodied seaman and crane operator primarily responsible for operating a crane that serviced offshore oil and gas platforms. Adams claimed that he was not exempt from the FLSA overtime provisions and that he regularly worked in excess of forty hours per week, but was paid a flat sum on a day rate basis. Adams therefore alleged that All Coast violated the FLSA by misclassifying him and other similarly situated employees as exempt from the overtime wage provisions of the Act. Adams further alleged that All Coast failed to keep proper time and pay records of hours worked by, and wages paid to, nonexempt employees. All Coast moved to dismiss this collective action on the basis that Adams alleges that he was employed as an able-bodied seaman, and seaman are exempt from the overtime requirements of the FLSA pursuant to 29 U.S.C. §213(b)(6). The court found there was a genuine issue of material fact as to whether the work delineated in the job tickets was the work Adams most often performed in his particular position and the primary purpose of the position he occupied. Drawing, as the court must, every inference in favor of Adams, the court declined to find that All Coast had established the applicability of the exemption as a matter of law. The testimony of Adams and/or his co-employees would be useful in this regard but that discovery has not yet been undertaken. Given the paucity of discovery conducted in this case, the motion for summary judgment was denied as premature without prejudice to the right of All Coast to re-assert the motion upon completion of discovery pertinent to the work Adams most often performs in his particular position and the primary purpose of the position he occupies. (USDC WDLA, April 28, 2017) 2017 U.S. Dist. LEXIS 76116
CRUISE PASSENGER’S LOSS OF CONSORTIUM CLAIM DISMISSED SUMMARILY
CORNBLATT V. ROYAL CARIBBEAN CRUISES LTD
This is a maritime personal injury action brought by Howard Cornblatt and his wife against Royal Caribbean Cruises, Ltd. seeking recovery for damages allegedly sustained by Ann Cornblatt while aboard Royal Caribbean’s vessel. Ann Cornblatt allegedly fell and sustained injuries due to the negligent manner in which Royal Caribbean’s employee conducted himself. Although the details of the incident were murky, the court gathered that Ann Cornblatt's injury was due to a juggling-related incident. Howard Cornblatt, had a derivative claim for loss of consortium. Royal Caribbean moves to dismiss the loss of consortium cause of action for failure to state a claim, arguing the claim brought on behalf of Howard Cornblatt for loss of consortium was not a basis for relief under general maritime law. The court agreed, finding that there was no doubt that, under Eleventh Circuit precedent, loss of consortium is not permitted under general maritime law. Royal Caribbean’s motion to dismiss the loss of consortium cause of action was granted and count II of plaintiffs' complaint was dismissed with prejudice. (USDC SDFL, May 11, 2017) 2017 U.S. Dist. LEXIS 72898
COURT BLOCKS 30(B)(6) DEPOSITION IN DISCOVERY DISPUTE
DELGADO V. MAGICAL CRUISE COMPANY, LIMITED
Jorge Delgado served as a crewmember aboard Magical Cruise Company, Limited (MCCL) ships. During the course of his shipboard employment, Delgado allegedly suffered a herniated disk injury as a result of the alleged negligence of MCCL. Delgado was medically disembarked and repatriated to his native country of Peru. After Delgado reached maximum medical improvement, he filed this lawsuit. The discovery deadline was set to expire June 5, 2017, neither party had yet taken the deposition of the other. On May 15, 2017, Delgado noticed his own deposition to occur on May 25, 2017 "via Skype" and served a Notice of Taking Deposition of MCCL’s corporate representative, to occur May 30, 2017. MCCL objected to both depositions on various grounds. MCCL’s motion was denied to the extent it sought to quash the deposition of Delgado, compel Delgado to obtain a visa in order to come to Florida, for an award of costs, and for an extension of time to make expert witness disclosures. MCCL’s motion was granted to the extent it sought an extension of time to complete Delgado's deposition. The court held that Delgado may be deposed in Peru by remote means at a time mutually convenient to the parties, but no later than July 31, 2017. If taking the deposition by videographic means proved to be demonstrably insufficient and MCCL was able to show good cause, MCCL may move to tax the costs of defense counsel taking the deposition in person in Peru. MCCL also moved for a protective order and to quash Delgado's unilateral Notice of Deposition of MCCL’s 30(b)(6) corporate representative, contending that it was not timely served, was not coordinated with defense counsel, and MCCL’s chosen counsel is not available on the date selected, or any other date prior to the expiration of discovery. The court pointed out that Delgado chose to wait until the waning days of discovery to serve his notice of deposition on MCCL. There were consequences to such a choice. The court found no showing of good cause for the unreasonable delay. Therefore, the court declined to extend the discovery deadline to accommodate Delgado's failure to timely secure MCCL’s deposition. MCCL’s motion was granted to the extent it sought to preclude the taking of the corporate MCCL’s motion as to fees and costs was denied. (USDC MDFL, May 30, 2017) 2017 U.S. Dist. LEXIS 81943
Quotes of the Month . . .“Some of the biggest cases of mistaken identity are among intellectuals who have trouble remembering the are not God.”--Thomas Sowell
"A positive attitude may not solve all your problems, but it will annoy enough people to make it worth the effort." -- Herm Albright
"Talent is God given. Be humble. Fame is man-given. Be grateful. Conceit is self-given. Be careful." - - John Wooden
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