Jurich v. Compass Marine, Inc. et al

Filing 60

ORDER DISMISSING without prejudice the defendants ABC Shipping Co., TiburonDivers, K&K Offshore, LLC, and Ranger Offshore, Inc.. Signed by Chief Judge William H. Steele on 11/8/2012. (tgw)

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

The original complaint was filed March 9, 2012 and included among the
named defendants ABC Shipping Co. (“ABC”). (Doc. 1 at 1). The first amended
complaint was filed June 29, 2012 and added as defendants K&K Offshore, LLC
(“K&K”), Tiburon Divers, and Ranger Offshore, Inc. (“Ranger”). (Doc. 41 at 1).
None of these defendants have appeared in this action. As to ABC, it appears that
no summons was ever requested. As to the other three defendants, summons
issued, (Doc. 42), but no return of service was ever filed. After reporting these
facts, the Court ordered the plaintiffs to show cause why their action as to these
four defendants should not be dismissed without prejudice pursuant to Rule 4(m).
(Doc. 57). The plaintiffs have responded. (Doc. 58).
As for ABC and Tiburon Divers, the plaintiffs have no objection to their
dismissal under Rule 4(m). (Doc. 58 at 1). Accordingly, these defendants are due
to be dismissed.
As for K&K and Ranger, the plaintiffs sent their registered agents a notice
and request for waiver under Rule 4(d).1 The certified mail receipts reflect their
1

Left unexplained is why the plaintiffs requested summonses directed to these
defendants via these same agents but, after receiving them, did not serve them but sent
notices and requests for waiver instead.

receipt by the agents on July 5. Counsel states that, in his experience, such receipt
is usually followed by a notice of appearance and that he “naively expected an
appearance to be filed, became overly fixated on the motions to dismiss, and lost
sight of the 120 days deadline for effectuating personal service per FRCP 4(m).”
(Doc. 58 at 2).
The plaintiffs’ failure to perfect service on K&K and Ranger within 120
days after filing the amended complaint exposes their action as to these defendants
to dismissal without prejudice under Federal Rule of Civil Procedure 4(m).
However, “if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” Id. Good cause exists “only when
some outside factor such as reliance on faulty advice, rather than inadvertence or
negligence, prevented service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir.
1991). In particular “inadvertence of [the] attorney” does not constitute good
cause. Anderson v. Iron Will, Inc., 2008 WL 2157145 at *2 (S.D. Ala. 2008)
(internal quotes omitted). Because the plaintiffs have shown only counsel’s
inadvertence, they have not shown good cause.
Absent good cause, the Court may, but need not, allow additional time.
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005); accord
Lepone-Dempsey v. Carroll County Commissioners, 476 F.3d 1277, 1281-82 (11th
Cir. 2007). In determining whether to exercise its discretion to extend the time for
service despite the lack of good cause, a court considers whether the defendant is
evading service, whether it is concealing defects in service, and whether the statute
of limitations will bar the re-filing of the lawsuit should it be dismissed.
Horenkamp, 402 F.3d at 1132. This is “not an exhaustive list” of factors a court
may consider. Lepone-Dempsey, 476 F.3d at 1182.
Although invited by the Court to address Rule 4(m), the plaintiffs did not
do so. Even without their input, it is plain that K&K and Ranger are not evading
service or concealing defects in service, since the plaintiffs have not attempted
service. The Court thus turns to the statute of limitations factor.
2

As to K&K, the objectionable conduct occurred in and after August 2011.
(Doc. 41 at 4). Therefore, only a limitations period of one year or less could bar
the re-filing of suit against K&K. As to Ranger, the objectionable conduct
occurred sometime in 2009. (Id.). Therefore, any claim subject to a two-year
limitations period was time-barred before the amended complaint was filed, and
any claim subject to a four-year limitations period will not be time-barred should
this action be dismissed. Only claims subject to a three-year limitations period
could be both timely when filed and untimely if re-filed.
Invoking Alabama law, the plaintiffs bring claims for conversion,
conspiracy, money had and received, breach of contract, and breach of fiduciary
duty. (Doc. 41 at 6-9). The Alabama statute of limitations for conversion, breach
of contract, and money had and received is six years.2 The Alabama statute of
limitations for conspiracy and breach of fiduciary duty is two years.3 None of
these limitations periods has expired since the amended complaint was filed, and
therefore dismissal would not place the plaintiffs in a worse position.
The plaintiffs do not bring these claims specifically as state law causes of
action. Instead, they assert them as federal claims under the general maritime law,
adopted to fill in gaps in that federal law. (Doc. 41 at 1-2; Doc. 50 at 30). Since
they are being presented as federal claims, they are subject to a federal limitations
period, and the Alabama periods thus do not directly control. However, “[w]hen
2

Ex parte Prudential Insurance Co., 785 So. 2d 348, 352 (Ala. 2000)
(conversion) (citing Ala. Code § 6-2-34(3)); Hollander v. Nichols, 19 So. 3d 184, 192 n.3
(Ala. 2009) (breach of contract) (citing Ala. Code § 6-2-34(9)); Johnson v. Life Insurance
Co., 581 So. 2d 438, 443 (Ala. 1991) (money had and received).
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Garris v. A&M Forest Consultants, Inc., 623 So. 2d 1035, 1039 (Ala. 1993)
(conspiracy) (citing Ala. Code § 6-2-38(l)); Hensley v. Poole, 910 So. 2d 96, 101 (Ala.
2005) (breach of fiduciary duty) (citing Ala. Code § 6-2-38(l)). The plaintiffs’
conversion claim as against the employer defendants (including K&K and Ranger) is
based on their status as principals of defendant Compass Marine, Inc. (Doc. 41 at 6).
Such a claim is subject to a two-year limitations period rather than the six-year period
generally applicable to conversion claims. Ex parte Prudential, 785 So. 2d at 352 (citing
Ala. Code § 6-2-38(n)).

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Congress has not established a statute of limitations for a federal cause of action,
the settled practice is for federal courts to borrow the forum state’s limitations
period for the most analogous state law cause of action,” at least “when it is not
inconsistent with federal law or policy to do so” and “there does not exist a more
closely analogous federal statute of limitations.” Harrison v. Digital Health Plan,
183 F.3d 1235, 1238 (11th Cir. 1999) (internal quotes omitted). Applying that rule
to these non-statutory causes of action, the Court has been presented no reason to
believe either that the Alabama periods would not be utilized or, if they are not
utilized, that a federally crafted limitations period would be less favorable to the
plaintiffs.
The plaintiffs also assert a civil RICO claim. (Doc. 41 at 10-15). Such
claims are subject to a four-year limitations period. Pacific Harbor Capital, Inc.
v. Barnett Bank, N.A., 252 F.3d 1246, 1251 (11th Cir. 2001). Dismissal under Rule
4(m) would not impair the plaintiffs’ ability to re-file this claim.
Finally, the plaintiffs bring a general maritime law claim for seaman’s
wages. (Doc. 41 at 4-5; Doc. 56 at 3). It has been held that, in the context of a
statutory wage claim under 46 U.S.C. § 10313, there is no limitations period but
only a laches analysis. Priyanto v. M/S Amsterdam, 2009 WL 1160229 at *12
(C.D. Cal. 2009); see generally Venus Lines Agency, Inc. v. CVG International,
Inc., 234 F.3d 1225, 1230 (11th Cir. 2000) (“[I]n admiralty claims, the equitable
doctrine of laches generally controls whether a party’s delay in bringing a claim
should bar the suit.”). Laches analysis begins with identifying the analogous state
limitations period. See id. (utilizing Florida statute of limitations). Alabama
actions to recover wages must be brought within two years. Ala. Code § 6-238(m). When suit is filed within the statutory limitations period, “the defendant
must show inexcusable delay and resulting prejudice in order to establish a laches
defense.” Venus Lines, 234 F.3d at 1230. The Court has been given no reason to
believe that K&K could meet this burden should the plaintiffs re-file, barely one
year after the challenged conduct occurred. As to Ranger, the analogous
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limitations period had expired before it was sued, so even now the plaintiffs bear
the burden to “prove either absence of prejudice or excuse for delay to repel a
claim for laches,”4 and the Court has been given no reason to believe they could
meet such a burden now but could not do so in a promptly re-filed suit.
In summary, the plaintiffs have offered no good cause for failing to serve
K&K and Ranger and thus are not entitled as of right to additional time to attempt
service. The prescribed factors for the Court to consider in weighing whether to
grant a discretionary extension of time do not support such an extension, and the
plaintiffs declined to identify any other factors the Court should consider in this
instance. Certainly the plaintiffs’ inattention to the case does not furnish grounds
for a discretionary extension.5
For the reasons set forth above, defendants ABC Shipping Co., Tiburon
Divers, K&K Offshore, LLC, and Ranger Offshore, Inc. are dismissed without
prejudice.
DONE and ORDERED this 8th day of November, 2012.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

4

Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209, 1215 (5th Cir. 1980).

5

The record reflects that the plaintiffs took absolutely no steps to serve K&K or
Ranger and took no steps to monitor their initial effort to obtain these defendants’
appearance without service of process. Being “overly fixated on the motions to dismiss”
hardly excuses this nonchalance, especially given that the plaintiffs’ last briefs on the
motions were filed July 27 and their last filing related to the motions was filed August 15.
(Docs. 50, 51, 54).

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