Moore v. Omega Protein Corporation et al

Filing 108

ORDER & REASONS denying 99 Motion to Dismiss for Failure to State a Claim. Signed by Judge Kurt D. Engelhardt on 4/30/2014. (Reference: All Cases)(mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM MOORE

CIVIL ACTION

VERSUS

NO. 10-311
c/w 13-6448

OMEGA PROTEIN CORPORATION,
ET AL

SECTION "N" (4)

ORDER AND REASON
Before the Court is a Motion to Dismiss for Failure to State a Cause of Action Under
FRCP 12(b)(6), filed by defendants Omega Protein, Inc. and the F/V Raccoon Point (Rec. Doc.
99). Memoranda in opposition are filed at Rec. Docs. 102, 103 and 105.
I.

BACKGROUND:
This case commenced as a personal injury action brought by a seaman, William Moore,

against his Jones Act employer, Omega Protein, for damages he sustained when his leg was
fractured aboard his employer's fishing vessel, the Raccoon Point. The Jury found no Jones Act
negligence on the part of Omega Protein and no unseaworthiness on the part of the F/V Raccoon
Point, and this verdict was made the judgment of the Court. Rec. Doc. 63 at 6-7; Rec. Doc. 64.
Issues relating to the plaintiff's maintenance and cure claim were not tried to the jury. Rather,
the Court dismissed this claim as "moot" based upon plaintiff's counsel's representation that it
was no longer being pursued and upon the fact that such issues were not included in the jury
verdict forms and other pretrial materials submitted to the Court. Rec. Doc. 81 at 163. In the
Joint Pre-Trial Order, the defendants had represented that Omega Protein had "paid maintenance

and cure benefits to Moore from the date of his accident to the date he reached maximum
medical cure."1 Rec. Doc. 32 at 6.
After the judgment was affirmed on appeal and certiorari denied,2 the plaintiff filed suit
in state court against his attorneys, alleging that eighteen months after the completion of trial, he
had received collection notices from Air Med Services, LLC and/or Acadian Ambulance
Services, for air medical transport services rendered to the plaintiff on the date he fractured his
leg. See Civil Action No. 13-6448 (Rec. Doc. 1-1 at 3-7 of 7). He alleged that Acadian later
sued him on the invoice and obtained a judgment against him in the amount of $13,519.59. Id. at
5 of 7. Plaintiff alleged that his attorneys had breached their duty of care to him inter alia by
failing to oppose dismissal of the maintenance and cure claim and by failing to introduce
evidence contradicting Omega Protein's "assertions that all maintenance and cure benefits had
been paid." Id. at 6 of 7. This suit was removed to this Court, transferred to this Section, and
consolidated with the instant matter. Rec. Doc. 90.
After removal, the plaintiff amended his complaint to add a claim against Omega Protein
and the Raccoon Point. Rec. Doc. 98. Plaintiff alleges that "Omega's counsel represented that
maintenance and cure was paid," and that "notwithstanding the representations made by Omega
in the pre-trial order and/or during the trial on the Lawsuit, Omega was aware of the existence of
the Acadian Invoice and/or Omega's outstanding obligation to pay cure benefits relating to the
medical treatment and/or services rendered to Petitioner by Acadian." Rec. Doc. 98 at 3 of 7.

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Omega Protein represented in the pretrial order that plaintiff "reached maximum
medical improvement...on July 5, 2009." Rec. Doc. 32 at 5.
2

Rec. Docs. 86 and 89.
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II.

LAW AND ANALYSIS:
The Federal Rules provide that a complaint must contain "a short and plain statement of

the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading
standard "does not require 'detailed factual allegations.' " Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, "[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. A claim does not have plausibility if "the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct." Id. at 679; see also Twombly, 550 U.S. at 555
("Factual allegations must be enough to raise a right to relief above the speculative level...on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).").
The movants argue that plaintiff's amended complaint fails to state a viable claim
because: (1) Omega Protein and the Raccoon Point owed no duty to ensure that all of the
plaintiff's claims were advanced during the personal injury suit; 2) the plaintiff's maintenance
and cure claims are barred by res judicata; and 3) the plaintiff is attempting to seek relief from a
prior judgment, which attempt is untimely under Rule 60(c) of the Federal Rule of Civil
Procedure.
The movants' first argument is a red herring. Nowhere does the plaintiff assert that the
movants owed any duty to assert claims on the plaintiff's behalf. Rather, the duty underlying the

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plaintiff's claim is a duty of candor and truthfulness to the Court, to the plaintiff, and to opposing
counsel. Plaintiff's claim against the movants is not that they failed to advocate on his behalf,
but that they made misrepresentations of fact (i.e., they represented that Omega had paid
maintenance and cure from the date of the accident through the date of maximum medical cure,
when in fact they knew that the Acadian invoice for services rendered on the date of the accident
had not been paid).
The second and third arguments likewise fail. The movants represented to the Court, the
plaintiff, and opposing counsel that Omega Protein had "paid maintenance and cure benefits to
Moore from the date of his accident to the date he reached maximum medical cure." Rec. Doc.
32 at 6. Plaintiff alleges that notwithstanding this representation, "Omega was aware of the
existence of the Acadian Invoice and/or Omega's outstanding obligation to pay cure benefits
relating to the medical treatment and/or services rendered to Petitioner by Acadian." Rec. Doc.
98 at 3 of 7. If proven, this would constitute a fraud on the Court. In such event, the Court
would not be restrained by the one-year time limitation of Rule 60(c), but could set aside the
judgment, which would no longer serve as a bar to the plaintiff's claim. See Fed. R. Civ. P.
60(d)(3). Therefore, the Court finds that the plaintiff has stated a claim against the movants that
is plausible on its face.
Furthermore, the Court cautions Omega Protein that if the plaintiff's allegations are true,
it would be well served to fulfill its obligations to this seaman post haste. If it fails to do so, and
plaintiff succeeds in proving his claim against the movants, not only will Omega Protein risk
punitive damages for willful failure to pay cure benefits, but it and/or its attorneys may be

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subject to sanctions.
Accordingly;
IT IS ORDERED that the Motion to Dismiss for Failure to State a Cause of Action
Under FRCP 12(b)(6), filed by defendants Omega Protein, Inc. and the F/V Raccoon Point (Rec.
Doc. 99) is hereby DENIED.
New Orleans, Louisiana, this 30th day of April, 2014.

___________________________________
KURT D. ENGELHARDT
United States District Judge

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