Wilkes v. Resolve Marine Group, Inc. et al

Filing 54

ORDER AND REASONS denying 26 Motion for Summary Judgment; granting 37 Motion to Dismiss for Lack of Jurisdiction, and that Dan Stoner (Boatswain Mate 1st Class) and United States Coast Guard be dismissed as defendants. Signed by Judge Ivan L.R. Lemelle on 3/8/2013. (ijg, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHARLES D. WILKES

CIVIL ACTION

VERSUS

NO. 12-275

RESOLVE MARINE GROUP, INC., ET AL.

SECTION "B"(3)

ORDER AND REASONS
Before the Court are Defendant Resolve Marine Group, Inc.’s
(“Resolve”) Motion for Summary Judgment on the Basis of Immunity,
Plaintiff Charles Wilkes’ (“Wilkes”) Opposition to the motion,
Resolve’s Reply in support of its motion and Defendant Exxon Mobil
Corporation’s (“Exxon”) Opposition to Resolve’s motion.
Docs. No. 26, 29, 32, & 50).

(Rec.

Also before the Court are the United

States Coast Guard’s (“USCG”) Motion to Dismiss for Lack of
Jurisdiction and Wilkes’ Opposition to the USCG’s motion.
Docs. No. 37 & 38).

(Rec.

Accordingly, and for the reasons articulated

below,
IT IS ORDERED that Resolve’s motion for summary judgment is
DENIED without prejudice to reurge upon completion of discovery.
IT IS FURTHER ORDERED that the USCG’s Motion to Dismiss be
GRANTED and the USCG and Dan Stoner (“Stoner”) be dismissed as
defendants.
Procedural History and Facts of the Case:
Wilkes alleges that he inhaled dangerous fumes while working

as a Jones Act Seaman aboard the M/V NANTASKET, which was operated
by Resolve to conduct salvage work and set buoys for USCG.
Doc. No. 1 at 3-6).

(Rec.

Wilkes claims he inhaled the fumes emanating

from an underwater pipeline operated by Exxon while following the
negligent orders of Resolve and its employee Troy Carras (“Carras”)
under the direction of USCG and its employee, Stoner, and suffered
serious injuries and damages as a result.

Id. at 6.

Wilkes filed suit in this Court on January 26, 2012 against
Defendants Resolve, USCG, Stoner, and Exxon, seeking damages for
physical injuries, medical treatment, mental pain and anguish, and
loss of earning capacity.1

(Rec. Doc. No. 1 at 7-8).

Wilkes cited

both the Jones Act, 46 U.S.C. § 688 and the Suits in Admiralty Act,
46

U.S.C.

§§

30901-30918

jurisdiction for his action.

to

invoke

admiralty

and

(Rec. Docs. No. 14 & 44).

maritime
Defendant

Resolve filed a Motion for Summary Judgment claiming immunity as a
Government Contractor.

(Rec. Docs. No. 26 & 26-1 at 5).

USCG

filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction.
(Rec. Docs. No. 37 & 40).

On January 10, 2013, Wilkes amended his

complaint to list the United States of America as a defendant.
(Rec. Doc. No. 44 at 3).

1

Carras was also named as a defendant originally, but was subsequently
dismissed pursuant to Wilkes’ own motion. (Rec. Docs. No. 51 & 52).

2

Law & Analysis
A. Resolve’s Motion for Summary Judgment
1.

Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions,

interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). A genuine issue exists if the evidence
would

allow

a

reasonable

jury

to

return

a

verdict

for

the

nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
(1986). Although the Court must consider the evidence with all
reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial. Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
Because “only those disputes over facts that might affect the
outcome

of

the

lawsuit

under

governing

substantive

law

will

preclude summary judgment,” questions that are unnecessary to the
resolution of a particular issue “will not be counted.” Phillips
Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir. 1987).
As to issues for which the non-moving party has the burden of
proof

at

trial,

the

moving

party

may

satisfy

its

burden

by

demonstrating the absence of evidence supporting the non-moving

3

party’s claim. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once
the movant makes this showing, the burden shifts to the nonmovant
to set forth specific facts showing that there is a genuine issue
for trial. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247
(5th Cir. 2003).

The nonmovant must go beyond the pleadings and

use affidavits, depositions, interrogatory responses, admissions,
or other evidence to establish a genuine issue. Id.

Accordingly,

conclusory rebuttals of the pleadings are insufficient to avoid
summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7
F.3d 1203, 1207 (5th Cir. 1993).

However, requests to delay

granting summary judgment motions to allow additional discovery are
“broadly favored and should be liberally granted” to “safeguard
non-moving parties from summary judgment motions that they cannot
adequately oppose.”
Cir.

Raby v. Livingston, 600 F.3d 552, 561 (5th

2010), citing Culwell v. City of Fort Worth, 468 F.3d 868,

871 (5th Cir. 2006).
2.

Resolve’s claim of immunity2
When a remedy is provided by the Suits in Admiralty Act

(“SAA”), it shall be “exclusive of any other action by reason of
2
Resolve first attempts to invoke the “Government Contractor Defense” to
assert immunity. (Rec. Doc. No. 26-1 at 5). However, all of the cases which
Resolve cites to support this argument are clear that the Government
Contractor Defense is only applicable to shield “military contractors” from
full tort liability for “a defect in an item it built or manufactured at the
government’s discretion.” See Boyle v. United Technologies Corp., 487 U.S.
500, 511-12 (1988); Hercules, Inc. v. United States, 516 U.S. 417, 421-22
(1996); Miller v. Diamond Shamrock Co., 275 F.3d 414, 418-19 (5th Cir. 2001).
Resolve alleges no facts to support a theory of immunity under the Government
Contractor Defense and therefore the Court focuses instead on Resolve’s
argument under the Suits in Admiralty Act.

4

the same subject matter against the agent or employee of the United
States.”

Williams v. Central Gulf Lines, 874 F.2d 1058, 1059 (5th

Cir. 1989), citing 46 U.S.C. App. § 745 (predecessor to current
statute 46 U.S.C. § 30904), emphasis added.

Therefore, if a

private entity is acting as an agent of the United States, and a
remedy is provided for by the SAA, then the plaintiff’s only remedy
lies against the United States.

Favorite v. Marine Personnel and

Provisioning, Inc., 955 F.2d 382, 388 (5th Cir. 1992), citing Cruz
v. Marine Transport Lines, Inc., 634 F.Supp. 107, 110 (D. N.J.
1986).

A contract operator of a public vessel is acting as an

agent of the United States when it acts on the United States’
behalf, subject to its control and direction. Id. Private vessels
under bareboat charter to the United States may be considered
public

vessels

if

they

are

used

solely

in

public

service.

Favorite, 955 F.2d. at 386, citing Blanco v. United States, 775
F.2d. 53, 59 (2d. Cir. 1985); Cruz, 634 F.Supp at 109.
In Favorite, the plaintiff was a seaman aboard a privately
owned vessel leased to the United States, who sued his employer for
injuries suffered aboard the vessel.

955 F.2d. at 384.

The

district court found that the plaintiff’s exclusive remedy lay
against the United States under the SAA and subsequently dismissed
the action as time-barred against the United States.

Id.

In his

appeal to the Fifth Circuit, the plaintiff argued that his employer
was not an agent of the United States.
5

Id. at 385.

To determine

if the employer was an agent of the United States, the Fifth
Circuit engaged in a lengthy factual analysis of the underlying
contract between the United States and the employer.
The

Fifth

Circuit

found

that

where

the

contract

Id. at 387.
contained

provisions such as: (1) allowing the United States to place the
ships on reduced operational status; (2) requiring the contractor
to investigate and remove employees with whom the United States was
dissatisfied; (3) allowing the United States to inspect the ship;
and (4) requiring the contractor to submit reports and log entries;
the employer was an agent of the United States.
In

Id.

Favorite, the Fifth Circuit noted that it reached a

different conclusion as to the status of the contractor as an agent
of the United States in its previous case, Williams v. Central Gulf
Lines.

Id., citing Williams, 874 F.2d at 1060-61.

In Williams, a

seaman employed by a contractor aboard its vessel fell ill aboard
the vessel and subsequently died after being transferred to an Air
Force Base hospital.

Williams, 874 F.2d at 1059.

Representatives

of the seaman’s estate filed an action alleging negligence on the
part of the contractor, for failing to properly diagnose and treat
the seaman’s medical condition, and for failing to timely notify
the seaman’s family of his illness.

Id.

The district court

dismissed the suit, finding that the exclusive remedy under the SAA
was against the United States, who had not been named as a
defendant in the suit.

Id.

On appeal, the Fifth Circuit vacated

6

the district court’s ruling, finding that the charter between the
contractor and the United States did not grant the United States
“operational control” of the vessel.

Id. at 1063.

From the divergent results in Favorite and Williams, it is
apparent that a determination of whether a private vessel operator
can be considered an agent of the United States is a fact-intensive
question.

Here, Resolve argues that operated its vessel the M/V

NANTASKET at the specific direction and instructions of the United
States’ agency, USCG and its employee Stoner, and is therefore
immune to suit as a government contractor and under the Suits in
Admiralty Act.3

(Rec. Doc. No. 26-1 at 3).

In support of its

Motion, Resolves attaches numerous exhibits, including a Basic
Ordering

Agreement

between

Resolve

and

USCG

and

unsworn

declarations of Resolve employees Todd Duke and Troy Carras. (Rec.
Docs. No. 26-5, 26-2, & 26-8).

However, it is premature at this

stage, prior to discovery, to expect nonmovants, such as plaintiff
Wilkes and the remaining defendants, to meet their burden to
provide

affidavits,

depositions,

interrogatory

responses,

admissions, or other evidence to establish a genuine issue of
material fact in response to Resolve’s Motion and underlying

3
Resolve argues that the USCG “exercised operational control over where,
when, and under what circumstances the M/V NANTASKET would navigate, and when
Resolve’s employees would deploy or retrieve buoys, including the time when
[Wilkes] in the instant case was allegedly injured, when [Stoner] ordered
Resolve’s personnel to retrieve the buoy that had just been deployed.” (Rec.
Doc. No. 26-1 at 10).

7

exhibits.

(See Rec. Docs. No. 29 & 50).

The required fact-

intensive analysis of Resolve’s status as an agent of the United
States is better served by allowing the parties time to complete
discovery. Therefore, Resolve’s Motion is DENIED without prejudice
to reurge after the parties have had time to conduct discovery as
to the issue of the United States’ level of direction and control
of Resolve.
B. USCG and Stoner’s 12(b)(1) Motion to Dismiss
1.

12(b)(1) Standard
Under Federal Rule of Civil Procedure 12(b)(1), if a district

court lacks jurisdiction over the subject matter of a plaintiff's
claims, dismissal is required. Fed. R. Civ. P. 12(b)(1). In other
words, “[a] case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional
power to adjudicate the case.” Home Builders Ass'n of Mississippi,
Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.
1998).

A Rule 12(b)(1) motion is appropriate when a plaintiff's

claim is barred by sovereign immunity. See 5A Charles A. Wright &
Arthur R. Miller, Federal Practice & Procedure, § 1350 (3d ed.).
A lack of subject matter jurisdiction may be found in: (1) the
complaint, (2) the complaint supplemented by undisputed facts
contained in the record, or (3) “the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.”
Id., citing Barrera–Montenegro v. United States, 74 F.3d 657, 659
8

(5th Cir. 1996).

The burden of proof for a Rule 12(b)(1) motion is

on the party asserting jurisdiction. Id., citing McDaniel v. United
States, 899 F.Supp. 305, 307 (E.D. Tex. 1995).
2.

Suits against United States agencies or employees4
“A party may not bring suit against the United States absent

an explicit waiver of sovereign immunity by Congress.”

Drake v.

Panama Canal Comm'n, 907 F.2d 532, 534 (5th Cir. 1990), citing
United States v. Sherwood, 312 U.S. 584(1941); Ware v. United
States, 626 F.2d 1278, 1286 (5th Cir.1980). “This immunity extends
to the government's officers and agencies.”

Drake, 907 F.2d at

534, citing Simons v. Vinson, 394 F.2d 732 (5th Cir. 1968), cert.
denied, 393 U.S. 968(1968).

Further, under the SAA, a suit in

personam against the United States is the exclusive remedy for
admiralty claims involving the United States, its agencies, agents,
or employees. Len v. American Overseas Marine Corp., 171 Fed. Appx.
489 (5th Cir. 2006).
As the party asserting subject matter jurisdiction, Wilkes
bears the burden of proof to establish jurisdiction. In an attempt
to meet that burden, Wilkes cites to Dalehite v. United States, 346
U.S. 15 (1953) and 28 U.S.C. § 1346(b)(1) for the proposition that
“Defendants [USCG and Stoner] can be sued in tort” under the Jones
Act.

(Rec. Doc. No. 38 at 1 & 3).

4

However, Wilkes misinterprets

Both the United States and Wilkes agree that the USCG is an agency of
the United States, and that Stoner is an employee of the United States. (Rec.
Docs. No. 37-1 & 38 at 1).

9

the law.

Both the Dalehite case and § 1346 refer to the potential

liability of the United States for the actions of its agencies or
employees, but do not grant authority to sue the individual
agencies or employees as party defendants.
at

27-29

conduct

(discussing
of

its

the

agents),

Government’s
emphasis

See Dalehite, 346 U.S.
liability

added;

28

for

tortious

U.S.C.

§

1346(b)(1)(granting federal district courts exclusive jurisdiction
over claims against the United States for injury caused by the
negligent or wrongful act by any employee of the Government),
emphasis added.

Further, Wilkes does not contest that his claims

under the SAA provide exclusive remedy in admiralty against the
United States, not its agencies or employees.
Therefore, Wilkes’ claims must be asserted against the United
States, who is named as a defendant in the instant matter, and USCG
and Stoner are entitled to dismissal for lack of subject matter
jurisdiction.
New Orleans, Louisiana, this 8th day of March, 2013.

____________________________
UNITED STATES DISTRICT JUDGE

10