Givens v. ES & H, Inc. et al
Filing
28
ORDER & REASONS denying 22 Motion for Reconsideration and alter or amend this Courts order regarding a motion for summary judgment. Signed by Judge Martin L.C. Feldman on 10/15/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TINA A. GIVENS
CIVIL ACTION
v.
NO. 12-690
ES&H, INC., ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the defendants’ motion to reconsider and
alter or amend this Court’s order regarding a motion for summary
judgment.
For the reasons that follow, the motion is DENIED.
Background
This is a personal injury lawsuit arising out of injuries
allegedly suffered by an oil clean up worker. The facts of this
case are more completely set forward in this Court’s August 31,
2012 Order & Reasons, in which the Court denied defendants’ ES&H,
Inc. and Team Labor Force, LLC’s motion for summary judgment. In
denying
summary
relief
in
favor
of
ES&H
and
TFL,
the
Court
determined only that the exclusive remedy clause of the Louisiana
Worker’s Compensation Act (LWCA) does not preclude the plaintiff’s
claim
under
general
maritime
law.
The
defendants
now
seek
reconsideration of the Court’s August 31 Order and Reasons.
I.
Rule 59(e) of the Federal Rules of Civil Procedure provides
that a motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.
1
Fed.R.Civ.P. 59(e).
Rule 60(b), on the other hand, applies to motions filed after the
28-day
period,
requirements.”
but
demands
more
“exacting
substantive
See Lavespere v. Niagara Machine & Tool Works, 910
F.2d 167, 173-74 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1078 (5th Cir. 1994)(en
banc).
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”
Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th
Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).
Because of the interest in finality, Rule 59(e)
motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could
not
have
been
discovered
previously.
Id.
at
478-79.
Moreover, Rule 59 motions should not be used to relitigate old
matters, raise new arguments, or submit evidence that could have
been presented earlier in the proceedings.
See id. at 479;
Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010)(“a motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003)(quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)).
The grant of such a motion is an
2
“extraordinary remedy that should be used sparingly.” Indep. CocaCola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola
Bottling Co. United, Inc., 114 Fed.Appx. 137, 143 (5th Cir. Nov.
11, 2004) (citing Templet, 367 F.3d at 479).
The Court must
balance two important judicial imperatives in deciding whether to
reopen a case in response to a motion for reconsideration: “(1) the
need to bring the litigation to an end; and (2) the need to render
just decisions on the basis of all the facts.”
Templet, 367 F.3d
at 479.
Because the Court entered its Order and Reasons on August 31,
2012, and ES&H and TLF filed their motion to reconsider 10 days
later on September 10, 2012, the motion to amend is timely under
Rule 59(e).
II.
Application
On August 31, 2012, this Court entered its Order and Reasons
denying defendants’ motion for summary judgment. In their motion,
defendants argued that ES&H and TLF were both statutory employers
of Ms. Givens and, as such, her sole source of recovery is provided
under the LWCA. This Court held defendants did not meet the burden
of showing that the LWCA shields them from claims arising under
general maritime law. Finally, this Court observed “the Fifth
Circuit follows long-standing U.S. Supreme Court precedent refusing
to subordinate admiralty principles to the dictates of state law.”
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This Court noted that “even if...both TLF and ES&H are employers,
statutory or otherwise, under the state statute and, therefore
shielded from prosecution under other laws, they have failed to
show how that protection shields them from maritime claims as a
matter of law.”
A.
In support of their request for a reconsideration, defendants
first argue that the Court incorrectly relied on Green v. Vermilion
Corporation and thus misapplied the law. 144 F. 3d 332 (5th Cir.
1998). ES&H and TLF argue, for the first time, that Green only
applies to employees engaged in maritime employment who are injured
in navigable waters while performing traditional maritime work but
are specifically excluded from the LWHCA. Because the defendants
assert the plaintiff did not perform traditional maritime work,
they submit Green is distinguishable and the plaintiff is subject
to the exclusive remedy provision of the LWCA. Defendants do
nothing more than raise arguments that could have been raised
previously.
To determine whether a claim bears a significant relationship
to traditional maritime activity, the Court is instructed to
examine four factors, in addition to whether or not the injury
occurred on navigable waters: (1) the functions and roles of the
parties;(2) the types of vehicles and instrumentalities involved;
(3) the causation and the type of injury; and (4) traditional
4
concepts of the role of admiralty law. Kelly v. Smith, 485 F.2d
520, 525 (5th Cir. 1973); Thibodaux v. Atlantic
Ritchfield Co.,
580 F.2d 841, 846 n. 14 (5th Cir. 1978). Applying this standard,
the
Green
court
found
Green
was
injured
while
performing
a
traditional maritime activity in the course of his employment
because he was injured on a vehicle routinely employed on navigable
waters and his injury was not uncommon in the maritime context.
Green, 144 F. 3d at 336. Defendants now, for the first time, assert
that the beach cleaning engaged in by the plaintiff is not a
traditional maritime activity. Absent a showing by the defendants
that the Court erred legally or factually, the Court need not
resolve the defendants’ new argument on the merits; rather the
Court refers defendants to its prior, limited ruling; that is, the
LWCA’s exclusive remedy provision does not preclude a claim under
general maritime law.
The defendants persistently point to the Eleventh Circuit’s
decision in Brockington v. Certified Electric as a more applicable
precedent. 903 F.2d 1523 (11th Cir. 1990).1 However, in Green, the
Fifth
Circuit
explicitly
rejected
the
Brockington
standard
regarding claims of unseaworthiness asserted by employees against
1
In Brockington, the Eleventh Circuit held that where a
land-based electrician had no connection to the maritime loading
and unloading activity of the vessel, the excessive remedy
provision of the state worker’s compensation law precluded his
ability to recover under general maritime law for an asserted
negligence claim. Brockington, 903 F.2d at 1533.
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employers. Green, 144 F.3d at 337. As such, in the Fifth Circuit,
the exclusive remedy provision does not preclude a plaintiff
employee from asserting a claim for unseaworthiness. The Green
court similarly dismissed the line of precedent the Brockington
court invoked to give preclusive effect to the state workers’
compensation statute and instead looked to a line of Supreme Court
precedent
which
“unequivocally
holds
that
state
workers’
compensation statues can not preclude an employee from asserting a
general maritime negligence claim against his employer for injuries
sustained on navigable waters during the course of his employment.”
Green, 144 F.2d at 339 n.9. The defendants have not shown that this
Court erred in holding that the LWCA does not preclude Ms. Givens’
claim under general maritime law.2
Likewise, case literature is clear that “an exclusive remedy
provision in a state’s workers’ compensation law cannot be applied
when it will conflict with general maritime policy and undermine
substantive rights afforded by general maritime law.” Thibodaux,
580 F.2d at 847. Another section of this Court has noted that the
Fifth
Circuit
has
not
explicitly
determined
whether
general
maritime law and a claim for maritime negligence preempts a state
2
Again the Court notes that it has not determined that
Ms. Givens will succeed on her general maritime law claim on the
merits. No merits review was undertaken in the August 31 Order and
Reasons because defendants did not suggest, let alone demonstrate,
in their moving papers that they were entitled to judgment as a
matter of law on Ms. Givens’ general maritime law claim.
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workmen’s
compensation
exclusive
remedy
statute.
Frazier
v.
Carnival Corp., 492 F. Supp.2d 571, 574 (E.D. La. 2007)(Judge
Barbier). However, Judge Barbier reasoned that there is no reason
why a personal injury negligence claim under general maritime law
should
be
treated
any
differently
than
wrongful
death
or
unseaworthiness claims, both of which the Fifth Circuit found
preempts
application
of
a
workmen’s
exclusive remedy provision. Id. at 575.3
compensation
statute’s
Defendants have not shown
that this Court misapplied the law.
B.
The defendants assert a second ground for reconsideration:
they argue that the “maritime but local” doctrine applies and thus
the LWCA exception applies. The defendants, again, failed to raise
this argument in their motion for summary judgment.4 Additionally,
the defendants do not argue that this Court erred in not applying
the “maritime but local” doctrine. Rather, the defendants argue
that the “maritime but local” doctrine requires application of the
LWCA and not general maritime law over Ms. Givens claims. Such an
3
It is also worth noting that in Frazier v. Carnival
Corp., Judge Barber explicitly rejected application of Brockington
to maritime negligence claims. 492 F. Supp. 2d at 575.
4
Even if the defendants had argued that the “maritime but
local” doctrine requires application of the LWCA to Ms. Givens’
claim, the Louisiana Revised Statutes cannot preclude recovery
pursuant to maritime law and can only supplement recovery under
general maritime law. In Re Antill Pipeline Constr. Co.,2012 AMC
1091. 2011 U.S. Dist. Lexis 140052 (E.D. La. 2011)(Judge Berrigan);
Yamaha Motor Corp. v.. Calhoun, 516 U.S. 199, 202 (1996).
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argument could have been raised by defendants in the earlier
proceeding and is hardly grounds for reconsideration of this
Court’s limited prior ruling; nor does it seem to have merit.
C.
The defendants finally contend that ES&H was Ms. Givens’
statutory employer and thus is afforded protection under the LWCA.
This is the very same argument defendants advanced in their motion
for summary judgment. In its Order and Reasons denying the motion
for summary judgment, this Court stated “even if defendants are
correct
that
both
TLF
and
ES&H
are
employers,
statutory
or
otherwise, under the state statute and, therefore, shielded from
prosecution under other laws, they have failed to show how that
protection shields them from maritime claims as a matter of law in
this Court.” In rehashing their earlier arguments, the defendants
present no new evidence or legal authority that would suggest that
this Court erred in its Order and Reasons.
Accordingly, because the defendants failed to carry their Rule
59 burden to establish a mistake of law or fact, the defendants’
motion to reconsider and alter or amend order regarding motion for
summary judgment is DENIED.
New Orleans, Louisiana, October 15, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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