Jurich v. Compass Marine, Inc. et al

Filing 155

ORDER denying 130 Motion for Summary Judgment; denying 141 Motion to Certify Class; granting 143 Motion for Summary Judgment. Plaintiff's remaining counts against the defendant are dismissed with prejudice. Signed by Chief Judge William H. Steele on 11/7/2013. (adk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NICHOLAS JURICH, et al.,
Plaintiffs,
v.
COMPASS MARINE, INC., et al.,
Defendants.

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) CIVIL ACTION 12-0176-WS-B
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ORDER

This matter is before the Court on the remaining parties’ competing
motions for summary judgment. (Docs. 130, 143). The parties have filed briefs
and evidentiary materials in support of their respective positions, (Docs. 131-32,
139-40, 144-45, 152-54), and the motions are ripe for resolution.
BACKGROUND
This action was begun against six defendants by four plaintiffs alleging
seven causes of action. (Docs. 1, 41). The Court dismissed four defendants
pursuant to Rule 4(m), and a fifth was dismissed with the parties’ agreement.
(Docs. 60, 85). The sole remaining defendant is Compass Marine, Inc.
(“Compass”), a maritime employment placement agency. The parties then
stipulated to the dismissal of plaintiff Wilbur Smith and of all but one cause of
action. (Doc. 124). The sole remaining claim is a seaman’s claim for wages under
general maritime law.
While this action was pending before the Court, Smith filed another,
naming a different maritime employment placement agency as a defendant, along
with a former employer. Smith v. Seaport Marine, Inc., Civil Action No. 12-0501WS-B. The complaint in Smith and the amended complaint herein were filed by

the same counsel and contain substantively identical allegations and the same
causes of action. As in this case, the parties in Smith stipulated to the dismissal of
all claims save for a seaman’s claim for wages under general maritime law. (Id.,
Docs. 1, 60).
DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
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respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003). But there is no burden on the Court to identify unreferenced
evidence supporting a party’s position. Accordingly, the Court limits its review to
the exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited.
In Smith, this Court recently granted the defendants’ motion for summary
judgment. Smith v. Seaport Marine, Inc., ___ F. Supp. 2d ___, 2013 WL 5878965
(S.D. Ala. 2013). For reasons that appear below, the Court concludes that Smith
dictates the same resolution here.
The plaintiffs’ claim depends upon the existence of a violation of 46 U.S.C.
§ 11109(b), which provides that “[a]n assignment or sale of wages or salvage
made before the payment of wages does not bind the party making it,” with an
exception not applicable here. In Smith, this Court ruled that “the summary
judgment record, viewed in the light most favorable to Smith, does not establish a
violation of § 11109(b).” 2013 WL 5878965 at *6. Smith stressed that the
paycheck mailing agreement (“PMA”), which authorized his employer to mail his
payroll checks directly to Seaport Marine until the agreed placement fee was paid,
provided that it was “irrevocable” until full payment was received. The Court
ruled that this language rendered the PMA inconsistent with Section 11109(b) but
that its mere presence in the PMA could not of itself violate the statutory
provision. The Court acknowledged that a different situation might be presented if
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the term “factored into the course of dealings between these parties in any way,”
but no such evidence was presented. Id. at *7 & n.16.
The Smith Court further ruled that, even had the plaintiff shown a statutory
violation, and even if such a violation would open the door for judicial creation,
under the tottering “wards of admiralty” doctrine, of a damages remedy not
provided by Congress, the equities disfavored creation of such a remedy, given
Smith’s failure to show that he had been wronged or damaged by inclusion of the
term “irrevocable” in the PMA. 2013 WL 5878965 at *9-10.
The language of the PMA and other contractual documents in this case is
indistinguishable from that in Smith, as are the plaintiffs’ arguments. Unless there
is a meaningful difference in the evidence presented, then, Smith instructs that the
same result must obtain here as there. The plaintiffs make an effort to show such a
difference, but to no avail.
The Smith Court listed several ways by which a plaintiff might show that
the appearance of the term “irrevocable” indeed “factored into the course of
dealings” between the parties. One of these ways, the Smith Court suggested,
would be to present evidence that the plaintiff attempted to revoke the PMA and
was rebuffed. 2013 WL 5878965 at *7. This is the only avenue by which the
plaintiffs attempt to avoid Smith.
Plaintiffs Jurich and Wood have submitted brief declarations. Each
consists of a single (and identical) substantive sentence: “My attempt to revoke
the agreement with Compass when it took my entire final paycheck was denied by
Compass.” (Doc. 152, O’Bryan Declaration, Exhibit B; Doc. 153, Attachment).
Unfortunately for them, they have also submitted their deposition testimony,
which recounts everything they did when the defendant withheld their entire final
paychecks (after they were terminated before paying the defendant its agreed fee),
and that testimony on its face reflects that, while they questioned whether they
were in fact terminated and/or whether their terminations triggered the defendant’s

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contractual right to withhold their final paychecks, they never sought to revoke the
contracts in general or the PMAs in particular. (Doc. 152 at 5-8).
“When a party has given clear answers to unambiguous questions which
negate the existence of any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.” Van T. Junkins & Associates, Inc.
v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984). This rule captures the
plaintiffs’ attempt to create a fact issue as to whether they tried to revoke the
PMAs. Because their effort fails, their case remains governed by Smith; without a
foiled attempt to revoke, there is no violation of Section 11109(b) on which to peg
a judicially-created remedy, and without such an attempt the equities continue to
disfavor creation of such a remedy even had there been a violation.
CONCLUSION
For the reasons set forth above, the plaintiffs’ motion for summary
judgment is denied and the defendant’s motion for summary judgment is granted.
The plaintiffs’ remaining claims against the defendant are dismissed with
prejudice. Judgment shall be entered accordingly by separate order. The
plaintiffs’ motion for class certification, (Doc. 141), is denied as moot.
DONE and ORDERED this 7th day of November, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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