Dolmo v. Galliano Tugs Inc et al
Filing
145
ORDER & REASONS granting 140 Motion to Dismiss defendants' counterclaim. FURTHER ORDERED that judgment be entered dismissing defendants' counterclaim with prejudice. Signed by Judge Helen G. Berrigan on 12/27/11. (plh, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CELSO I. DOLMO
CIVIL ACTION
VERSUS
NO. 09‐3976
GALLIANO TUGS, INC., ET AL
ORDER AND REASONS
SECTION ʺCʺ (2)
This matter comes before the Court on motion to dismiss defendants’
counterclaim pursuant to Fed. R. Civ. P. 12(b)(6) filed by the plaintiff. Rec. Doc. 140.
Having considered the record, the memoranda of counsel and the law, the Court has
determined that the counterclaim is subject to dismissal for the following reasons.
In this personal injury suit brought under the Jones Act and general maritime
law, the defendants, Galiano Tugs, Inc. and James Danos, Inc., filed a compulsory
counterclaim alleging that the plaintiff’s accident was “fabricated” and seeking the
recovery of costs and attorney’s fees “in excess of $225,000.00, needlessly defending
themselves against fraudulent, groundless litigation, in Texas state court, and in this
Court ... together with appropriate general damages and punitive damages.” Rec. Doc.
7, at ¶ 3. Trial was continued on two occasions, in part because of the Court’s
continuing concern as to the legal basis for the counterclaim. Rec. Docs. 131, 79. This
motion is addressed, in part, to the viability of that counterclaim.
The plaintiff first argues that the defendants’ claims are “facially invalid” based
on a lack of evidence, which argument is unavailing. Rec. Doc. 140 at 3‐6. It also
argues that La. Civ. Code art. 1953 is “legally inapplicable” because of its reference to
contract; this argument does not address the fundamental proposition that the
employment relationship between the parties is contractual and maintenance and cure
claims have been recognized as based in contract. Rec. Doc. 140 at 7. See generally
Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561, 2574 (2009); Jauch v. Nautical
Services, Inc., 470 F.3d 207 (5th Cir. 2006). Next, the plaintiff argues that the “factually
invalid” defense afforded by McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th
Cir. 1968) provides no cause of action to the defendant. Rec. Doc. 140 at 7‐9.
The defendants argue in opposition that they have no legal liability at all to the
plaintiff under the Jones Act or general maritime law because the accident did not
occur, which prompted the “defenses” including fraud and the McCorpen defense. Rec.
Doc. 143 at 4. They also argue that they are entitled to damages from the plaintiff for
fraud and misrepresentation, based on La. Civ. Code arts. 2315 and 1953, standing alone
and “adopted law for the civil side (Jones Act) and Admiralty side (GML) in federal
court.” Rec.Doc. 143 at 5. They argue that McCorpen defense is properly invoked as a
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defense “and in partial factual support for the legal bases for the counter‐claims...” Rec.
Doc. 143 at 7.
The Court will address the legal issue whether or not the defendants can counter‐
claim against the seaman plaintiff for fraud and misrepresentation and recover as
damages attorney’s fees and costs attendant to their legal representation. The Court’s
research has uncovered no case extending the McCorpen defense into such an
affirmative counterclaim or otherwise recognizing the viability of such a claim.
The case of Patterson v. Allseas USA, 145 Fed.Appx. 969 (5th Cir. 2005), offers
guidance. In that Jones Act/general maritime law case, the defendant asserted a
counterclaim based on McCorpen to recover the maintenance and cure payments
already disbursed to the plaintiff. The district court dismissed the counterclaim. On
appeal, the Fifth Circuit found “the issue of whether a shipowner may affirmatively
recover maintenance and cure payments it makes to a seaman if the shipowner makes
these payments before learning of the seaman’s deceptive conduct was not before the
court in McCorpen, and we have not located a published appellate decision addressing
this issue.” Id. at 970.1 The Fifth Circuit “decline[d] to decide this difficult res nova
1
It would appear that in the unpublished opinion in Vitcovich v. Ocean Rover O.N.,
the Ninth Circuit held upheld a counterclaim for reimbursement of maintenance and
cure payments without discussion of the underlying issue pertaining to the
counterclaim’s viability.
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issue on this record.” Id. at 971.2
Recently, Judge Lemelle of this Court recognized the viability of extending the
McCorpen defense to a right of action for restitution of maintenance and cure payments
under limited circumstances. Boudreaux v. Transocean Deepwater, Inc., 2011 WL 5025268
(E.D.La.). In so doing, Judge Lemelle declined the defense invitation to apply
Louisiana law to the counterclaim, and noted that “wilful assertion of a frivolous claim
would also warrant financial sanctions against the Plaintiff himself.” Id. at *6
In allowing the filing of the counterclaim, Judge Lemelle had found some
support in other decisions. Boudreaux v. Transocean Deepwater, Inc., 2010 WL 2671827
(E.D.La.). Other courts have varied in outcome, however. One Louisiana appellate
court’s recent research revealed a lack of authority “that a cause of action exists for an
employer to claim restitution of maintenance and cure payments from a seaman.”
Cotton v. Delta Queen Steamboat Co., Inc., 36 So.2d 262, 270 (La. App. 4th Cir. 2010). This
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Earlier cases yielded different conclusions. See Kirk v. Allegheny Towing Inc., 620
F.Supp 458, 461 (W.D.Pa. 1985)(counterclaim against non‐seaman to recover
maintenance and cure claims based on unjust enrichment “one of first impression” and
dismissed based on United States Supreme Court’s “unwillingness to impose the
burden of restitution upon the employee.”); Bergeria v. Marine Carriers, Inc., 341 F.Supp.
1153, 1154 (E.D.Pa. 1972)(counterclaim looking for recovery of maintenance and cure
procured by fraud cognizable in admiralty but acknowledging “[w]hile we have found
cases from which to draw instruction, we can find no reported case governing the
precise issues involved.”).
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Court shares that concern.
This Court also recognizes that the issue of the recovery of maintenance and cure
payments from a plaintiff is not the exact issue here. However, that issue presents in
lesser form some of the same fundamental problems inherent in this counterclaim,
which is aimed at the plaintiff’s Jones Act and unseaworthiness claims as well. The
problems with the potential ramifications of recognizing this counterclaim for fraud are
exponentially enhanced from those associated with the mere repayment of maintenance
and cure. The Court finds that the threat of being sued for fraud in response to a
seaman’s personal injury claim seriously undercuts the historical rationale and the very
deference the admiralty gives its wards of the court. Not only does the risk of facing
such a counterclaim remain unrecognized in any reported case, but its recognition will
cause attorneys to refuse to represent injured seamen. It should be emphasized that the
plaintiff here is facing this counterclaim despite the fact that his claim is supported with
some medical evidence and the fact that the defendants are fully entitled armed with
their McCorpen defense at trial.
An additional and compelling complication presented with these defendants’
counterclaim lies in the defendants’ prayer for the recovery of the attorney’s fees and
costs expended in association with the defense of the plaintiff’s lawsuit. Ample
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opportunity for briefing has been afforded counsel to justify such an recovery, and no
legal authority, meaningful legal discussion or other interest in analyzing the issue has
been shown by counsel. This Court is not willing to be the first to subject a jury to such
an unexamined award on such an unsupported claim.
More recently, Judge Lemelle certified his ruling in Boudreaux under 28 U.S.C. §
1292(b) and Fed. R. Civ. P. 54(b) on joint motion of the parties. Boudreaux. v. Transocean
Deepwater, Inc., Civ. Act. 08‐1686, Rec. Doc. 77 (Dec. 7, 2011). Considering that the
Boudreaux issue soon will be presented to the Fifth Circuit, the underlying relatedness of
the issue presented in that case to the one presented herein, and that common counsel is
shared by the plaintiffs in both cases, certification under Rule 54(b) is especially
appropriate on this counterclaim. Trial is not set until June 2012. The Court finds that
there is no just reason for delay and will order entry of judgment dismissing the
counterclaim.3
Accordingly,
IT IS ORDERED that motion to dismiss defendants’ counterclaim pursuant to
Fed. R. Civ. P. 12(b)(6) filed by the plaintiff is GRANTED. Rec. Doc. 140.
3
It appears that the plaintiff has abandoned any claim that the counterclaim for
fraud lacks sufficient particularity for purposes of Fed. R. Civ. P. 9(b), the Court does
not address the “work product” argument made by the defendants.
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IT IS FURTHER ORDERED that judgment be entered dismissing the defendants’
counterclaim with prejudice under Fed. R. Civ. P. 54(b).
New Orleans, Louisiana, this 27th day of December, 2011.
________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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