Parker v. Darby
Filing
11
ORDER granting 3 --motion to dismiss; dismissing the action with prejudice; directing the Clerk to TERMINATE any pending motion and to CLOSE the case. Signed by Judge Steven D. Merryday on 5/18/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GARY PARKER,
Plaintiff,
v.
CASE NO. 8:15-cv-401-T-23EAJ
BRYAN DARBY,
Defendant.
____________________________________/
ORDER
Gary Parker sues (Doc. 2) for negligence and alleges that he sustained
personal injuries while aboard Bryan Darby’s boat. Darby moves (Doc. 3) to dismiss
because the limitation for a maritime tort bars Parker’s claim. Parker responds
(Doc. 7) that the maritime limitation is inapplicable because “this is not a maritime
case.”
Admiralty jurisdiction exists where “the tort occurs on navigable waters and
the tort bears a significant relationship to traditional maritime activity.” Sanders v.
Placid Oil Co., 861 F.2d 1374, 1376–77 (5th Cir. 1988) (Jolly, J.) (citing Foremost Ins.
Co. v. Richardson, 457 U.S. 668 (1982)); see also Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 534 (1995) (“[A] party seeking to invoke federal
admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy
conditions both of location and of connection with maritime activity.”). In other
words, a party must satisfy both a “locality test” and a “nexus test.” Sea Vessel, Inc. v.
Reyes, 23 F.3d 345, 348 (11th Cir. 1994).
The locality test examines whether the tort occurred on navigable water. Sea
Vessel, Inc., 23 F.3d at 348. Darby’s boat “was suspended in a boat lift over . . . St.
Joseph’s Sound” when the alleged tort occurred. (Doc. 3 at 3; Doc. 2-1 at 4)
St. Joseph’s Sound is navigable water. Further, “[t]hat the boat is raised above the
water does not affect whether it is in ‘navigable waters’ for the purposes of maritime
jurisdiction.” Hupp v. Danielson, 2013 WL 3208588, at *3 (S.D. Tex. June 24, 2013)
(Costa, J.); see also Sea Vessel, Inc., 23 F.3d at 348 (“The Supreme Court has said that
a vessel in dry dock is on water, not on land, for purposes of admiralty
jurisdiction.”). Thus, the alleged tort occurred on navigable water.
Under the nexus test, a party invoking admiralty jurisdiction must
demonstrate (1) that the tort has a “potentially disruptive impact on maritime
commerce” and (2) that a “substantial relationship” exists “between the activity
giving rise to the incident and traditional maritime activity.” Sisson v. Ruby, 497 U.S.
358, 362, 364 (1990). Parker alleges that he sustained “significant permanent
injuries” while “cleaning” and performing “maintenance” on Darby’s boat. (Doc. 2
¶¶ 4, 5). “[A]n onboard injury which occurred during the . . . maintenance . . . of a
vessel” potentially disrupts maritime commerce. Alderman v. Pac. N. Victor, Inc.,
95 F.3d 1061, 1064 (11th Cir. 1996).
The “substantial relationship” component of the nexus test considers the
defendant’s, rather than the plaintiff’s, behavior. Jerome B. Grubart, Inc., 513 U.S.
at 539. Darby’s conduct, which includes storing his boat on a boat lift, substantially
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relates to traditional maritime activity. Hupp v. Danielson, 2013 WL 3208588, at *4;
see also Sisson v. Ruby, 497 U.S. at 365 (holding that storing a boat at a marina on
navigable water substantially relates to traditional maritime activity). Also, Darby’s
maintenance of his boat substantially relates to traditional maritime activity. See
Sisson v. Ruby, 497 U.S. at 365 (“[M]aintenance of a vessel . . . on navigable waters is
substantially related to ‘traditional maritime activity.’”); Sea Vessel, Inc., 23 F.3d
at 351 (“[R]outine repair of a vessel in a dry dock on navigable waters bears a
significant relationship to a traditional maritime activity such that admiralty
jurisdiction attaches.”).
Because Darby satisfies both the locality test and the nexus test and because
admiralty jurisdiction attaches, “it follows that substantive admiralty law applies.”
Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1547 (11th Cir. 1994). Under 46 U.S.C.
§ 30106, “a civil action for damages for personal injury . . . arising out of a maritime
tort must be brought within 3 years after the cause of action arose.”1 Although the
alleged tort occurred “[o]n or about October 25, 2011” (Doc. 2 ¶ 2), Parker waited
In an attempt to avoid the three-year limitation, the plaintiff argues, “Title 46 U.S.C.
§ 30501 applies ONLY to seagoing vessels, but does not apply to pleasure yachts . . . .” (Doc. 7 at 2)
However, Section 30501 merely defines the term “owner.” Rather than citing Section 30501, the
plaintiff might have intended to cite Section 30506, which excludes certain vessels from certain
limits on liability. But Section 30506 does not alter the three-year limitation established in Section
30106. Further, “[t]he term ‘vessel’ in admiralty law is not limited to ships engaged in commerce.”
Thomas J. Schoenbaum, Admiralty and Maritime Law, Vol. 2, § 3-6 (5th ed. 2011). Thus, to the
extent the plaintiff argues that admiralty jurisdiction cannot extend to a “recreational vessel,” the
argument fails.
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until January 29, 2015, to sue.2 The three-year limitation bars Parker’s tort claim.3
Accord Mink, 29 F.3d at 1548–49 (“Mink’s attempt to recast his maritime tort claim in
the form of a state law contract claim must fail in the face of the clear Congressional
mandate of § 736a [the predecessor to Section 30106] that a uniform statute of
limitations be applicable, and in the face of the well-recognized case law that the
need for uniform maritime standards dictates application of the federal maritime
law.”).
Accordingly, Darby’s motion (Doc. 3) to dismiss is GRANTED. The
complaint (Doc. 2) is DISMISSED WITH PREJUDICE. The clerk is directed to
terminate any pending motion and to close the case.
ORDERED in Tampa, Florida, on May 18, 2015.
On September 12, 2013, Parker sued (Doc. 1-2 at 3–5) Darby in the circuit court for
Hillsborough County, and the circuit court complaint is identical to the complaint in this action. On
November 12, 2014, Parker voluntarily dismissed (Doc. 1-2 at 6) without prejudice the circuit court
action, but “[t]he statute of limitations is not tolled by the commencement of an action that is later
voluntarily dismissed without prejudice.” Moore’s Federal Practice, Vol. 8, § 41.33[6][d] (3d ed. 2013).
2
Parker confusingly argues that the “saving to suitors” clause of 28 U.S.C. § 1333(1)
“preserves a Plaintiff’s right to a common law remedy, not necessarily to a non federal forum.”
(Doc. 7 at 4) Although the “savings to suitors” clause allows a plaintiff to litigate an in personam
maritime tort in state court and to “preserve common law remedies such as a trial by jury,” Wilson v.
Suzuki of Orange Park, Inc., 2005 WL 3372839, *4 (M.D. Fla. 2005) (Corrigan, J.), Parker fails to
move to remand. Further, to the extent that removal of this action violates Section 1333(1), “the
defect in removal . . . is a waivable defect, not implicating the Court’s subject matter jurisdiction.”
Wilson, 2005 WL 3372839 at *5; accord Joe Boxer Corp. v. Fritz Transp. Int’l, 33 F. Supp. 2d 851
(C.D. Cal. 1998) (Baird, J.); Dao v. Knightsbridge Int’l Reinsurance Corp., 15 F. Supp. 2d 567 (D.N.J.
1998) (Orlofsky, J.).
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