Atlantic Sounding Co., Inc. et al v. Fendlason

Filing 35

ORDER & REASONS: denying 25 Motion for Reconsideration and/or New Trial. Signed by Judge Carl Barbier on 8/6/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ATLANTIC SOUNDING CO., INC., ET
AL

CIVIL ACTION

VERSUS

NO: 12-1260

MAURICE FENDLASON

SECTION: "J”(1)

ORDER AND REASONS
Before

the

Court

is

Defendant/Counterclaimant,

Maurice

Fendlason's Motion for Reconsideration and/or New Trial (Rec. Doc.
25)

and

Plaintiff/Counterdefendants'

opposition

thereto

(Rec.

Doc.29). Plaintiffs' motion was set for hearing on April 10, 2013.
The Court, having considered the motions and memoranda of counsel,
the record, and the applicable law, finds that Defendant's motion
should be DENIED for reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
On May 15, 2012, Plaintiffs, Atlantic Sounding Co., Inc
("Atlantic Sounding Co.") and Weeks Marine, Inc. ("Weeks Marine"),
filed suit pursuant to 28 U.S.C. § 2201 seeking a declaratory
judgment finding that they do not owe Maurice Fendlason ("Mr.
Fendlason") maintenance and cure benefits. (Rec. Doc. 1) Plaintiffs

allege that they were asserting an admiralty and maritime claim
within the meaning of Rule 9(h) of the Federal Rules of Civil
Procedure and that subject matter jurisdiction is based on 28
U.S.C. § 1333. Plaintiffs also allege that Atlantic Sounding Co. is
Mr. Fendlason's payroll employer and that Weeks Marine is both
Atlantic Sounding Co.'s parent corporation and the owner of the
vessel involved in the litigation, crane barge 547. (Rec. Doc. 1,
p.

2,

¶

3)

Plaintiffs

allege

that

Mr.

Fendlason

commenced

employment with Atlantic Sounding Co. and/or Weeks Marine as a
second mate/AB seaman on the crane barge 547 on or about March 15,
2012 and was scheduled to work 28 days on and 14 days off.
Plaintiffs allege that on or about April 5, 2012, only 21 days
into his 28 day hitch, Mr. Fendlason contacted Patrick Richardson,
an administrative clerk, advised that he was going home because of
a family emergency, and deserted/abandoned the crane barge 547 by
not completing his 28 days on. Plaintiffs further allege that Mr.
Fendlason failed to return to crane barge 547 on April 26, 2012,
which would have been his scheduled return to work date, had he
completed his 28 day hitch. Evidently, Mr. Fendlason filed a claim
for

maintenance

and

cure

benefits

at

some

point

thereafter.

Plaintiffs allege that Mr. Fendlason did not report suffering any
accident or injury while in the service of the crane barge 547
either to his co-workers or supervisors, before he left crane barge

2

547 on April 5, 2012. Plaintiffs further allege that Mr. Fendlason
failed to provide any medical documentation or evidence that
supports or suggests that he (a) sustained any accident or injury
while in the service of the crane barge 547 or (b) is currently
suffering from an illness or injury that manifested itself while he
was in the service of crane barge 547. Based on these allegations,
Plaintiffs sought a declaratory judgment finding that they were
justified in denying Mr. Fendlason's claim for maintenance and cure
benefits.
In their complaint for declaratory judgment, Plaintiffs stated
that they believed Mr. Fendlason was represented by Paul Lea, Jr.
("Mr. Lea") and that Mr. Fendlason's last known address was 18547
Easterbrook

Road,

Pontchatoula,

Easterbrook Road address").

Louisiana,

70454-4845

("the

Plaintiffs left the complaint for

declaratory judgment at the Easterbrook Road address with Mr.
Fendlason's mother, Hilda Foster, on May 23, 2012. (Rec. Doc. 5) On
July 17, 2012, Mr. Fendlason filed an answer, through Mr. Lea, in
which he asserted that the Easterbrook Road address was not his
address but rather his mother's address where he occasionally
receives mail. (Rec. Doc. 6, p. 2, ¶ 4) Mr. Fendlason did not
provide his

address in his answer, instead instructing Plaintiffs

to refer to the address of his attorney, Mr. Lea, listed under the
signature block of his answer. (Rec. Doc. 6, p. 2, ¶ 4) Mr.

3

Fendlason also denied Plaintiffs' allegation that on April 5, 2012
he told Patrick Richardson he was leaving for a family emergency
and abandoned crane barge 547. (Rec. Doc. 6, p. 2, ¶ 7) Instead, he
claims that on March 28, 2012, he advised his superior on the barge
to which he was assigned that he had been injured on the job and
needed to attend to the injury. (Rec. Doc. 6, p. 2, ¶ 7) He also
claims that upon leaving the barge, he traveled to the safety
officer's office, that the safety officer was not present, and that
he left his name and his number with the personnel there requesting
that he be contacted so that he could file an incident report.
(Rec. Doc. 6, p. 2, ¶ 7) He claims that the safety officer never
contacted him. (Rec. Doc. 6, p. 3, ¶ 8) He also claims that in
addition to attempting to report his alleged injury to the safety
officer, he complained about his alleged injury to his immediate
superior and co-worker on the barge. (Rec. Doc. 6, p. 2, ¶ 8) He
claims that he made numerous calls to personnel employed by
Plaintiffs attempting to file an incident report but that the
report was not filed. (Rec. Doc. 6, p. 3, ¶ 9) Although Mr.
Fendlason acknowledges that Plaintiffs may not currently be in
possession of any medical documentation regarding his injuries, he
asserts

that

he

is

in

possession

of

medical

documentation

indicating that he is currently suffering from an inguinal hernia.
(Rec. Doc. 6, p. 3, ¶ 10)

4

Mr. Fendlason also filed a counterclaim with his answer in
which he asserts that he was ordered to move, without assistance,
extremely heavy pumps and other gear and that in attempting to
comply with his orders and over his objection, he suffered an
inguinal hernia. (Rec. Doc. 6, p. 4, ¶ 16) Mr. Fendlason alleges
that, at the time, it did not occur to him that he had suffered an
inguinal hernia and that he thought he suffered from a simple
muscle pull, which thereafter prevented him from lifting anything
over twenty pounds. (Rec. Doc. 6, p. 4, ¶ 16) Mr. Fendlason further
alleged that the injury was a direct result of the unseaworthy
condition of the vessel and the negligence of his employer in
having the vessel under-manned, under-tooled, and insufficiently
staffed to conduct the necessary duties to accomplish the vessel's
mission.

(Rec.

Doc.

6,

p.

4,

¶

17)

In

addition

to

seeking

maintenance and cure, Mr. Fendlason also sought general damages.
(Rec. Doc. 6, p. 5, ¶¶ 18-19) On August 13, 2012, Plaintiffs filed
an answer to Mr. Fendlason's counterclaim, denying most of the
allegations in his counterclaim. (Rec. Doc. 10)
The parties arranged for Plaintiffs to depose Mr. Fendlason at
Mr. Lea's office on October 10, 2012 ("October deposition");
however, Mr. Fendlason did not appear for his deposition. Mr.
Fendlason claims in an affidavit that he failed to appear for the
October deposition, because he was in Tulsa, Oklahoma where his

5

brother lives looking for employment at the time. (Rec. Doc. 20-2,
p. 1, ¶ 2) Mr. Fendlason also claims in his affidavit that he
advised Mr. Lea that he would be unable to attend that deposition
prior to the deposition date. (Rec. Doc. 20-1, p. 1, ¶ 2) However,
the proces verbal taken on the date of the October deposition
reflects that Mr. Lea believed that Mr. Fendlason may not have
understood that his deposition was scheduled on that date. (Rec.
Doc. 15-2) On November 19, 2012, Plaintiffs served a subpoena to
compel Mr. Fendlason's attendance at a deposition scheduled for
December 5, 2012 ("the December deposition") on Mr. Fendlason's
mother at 39415 South Hoover, Pontchatoula, Louisiana, 70454 ("the
South Hoover address"). (Rec. Doc. 15-3)
On November 26, 2012, Mr. Lea moved to withdraw as counsel for
Mr. Fendlason, without substitution, asserting that Mr. Fendlason
failed to attend his deposition, failed to attend meetings, and
failed

to

return

phone

calls.1

(Rec.

Doc.

13)

Mr.

Lea

also

indicated that although he had notified Mr. Fendlason of his intent
to withdraw and of all pending deadlines, and had given him an
opportunity to seek substitution of counsel in advance of the
filing of his motion to withdraw, Mr. Fendlason had not notified

1

Mr. Lea filed his first motion to withdraw without substitution on
November 7, 2012. (Rec. Doc. 11) However, the Court denied that motion,
because Mr. Lea failed to comply with the requirements of Local Rule 83.2.11
in that he did not provide Mr. Fendlason's current telephone number, or either
serve the motion on Mr. Fendlason by certified mail or provide an affidavit
explaining why service had not been made. (Rec. Doc. 12)

6

him of any substitution. (Rec. Doc. 13) In addition, Mr. Lea
provided the Court with Mr. Fendlason's phone number and indicated
that the Easterbrook Road address was Mr. Fendlason's mailing
address. (Rec. Doc. 13) Mr. Lea attached a certified mail return
receipt indicating that Mr. Lea's motion to withdraw was delivered
to Mr. Fendlason's agent at the Easterbrook Road address on
November 25, 2012. (Rec. Doc. 13-2) On November 28, 2012, the Court
granted Mr. Lea's motion to withdraw. (Rec. Doc. 14) In the order
granting Mr. Lea's motion to withdraw, the Court ordered Mr.
Fendlason to either enroll new counsel of record or contact the
Court within thirty (30) days to notify the Court of his intention
to proceed pro se. However, Mr. Fendlason neither contacted the
Court, nor enrolled new counsel during that thirty day time frame.
Mr. Fendlason also failed to appear for the December deposition.
(Rec. Doc. 15-4, p. 3) Although he admits that he received the
subpoena prior to the December deposition, Mr. Fendlason claims
that he chose not to attend the December deposition, because he was
not represented by counsel at the time. (Rec. Doc. 25-2, p. 2)
On January 9, 2013, Plaintiffs filed a Motion to Dismiss (Rec.
Doc. 15) arguing that the action should be dismissed with prejudice
under Rule 37 of the Federal Rules of Civil Procedure as a
discovery sanction for Mr. Fendlason's failure to attend two
depositions or, alternatively, for failure to prosecute. (Rec. Doc.

7

15, pp. 2-3) On January 28, 2013, the Court ordered Mr. Fendlason
to appear in Court on February 22, 2013 at 9:30 a.m. to show cause
why the Court should not dismiss the action with prejudice for
failure to prosecute or, alternatively, as a sanction for Mr.
Fendlason's failure to attend his depositions or abide by the
Court's November 28, 2012 order that he either enroll new counsel
or notify the Court of his intention to proceed pro se ("Show Cause
Order"). (Rec. Doc. 17) The Court also continued the hearing on
Plaintiffs' Motion to Dismiss until February 22, 2013. (Rec. Doc.
17) On January 11, 2012, Plaintiffs served the Motion to Dismiss on
Mr. Fendlason's mother at the South Hoover address, along with
correspondence from Plaintiffs' attorney to Mr. Fendlason informing
him that the hearing on the motion was set on Wednesday, January
30, 2013 and that his deadline to file any opposition to the motion
was Tuesday, January 22, 2013. (Rec. Doc. 16-1) On February 3,
2013, Plaintiffs served the Show Cause Order on Mr. Fendlason's
mother at the South Hoover address. (Rec. Doc. 19-1) On February
22, 2013, Mr. Fendlason failed to appear in Court for the Show
Cause hearing, and the Court granted Plaintiffs' Motion to Dismiss.
(Rec. Doc. 20) On February 22, 2013, the Court granted Plaintiffs'
motion to dismiss and issued an order dismissing the action with
prejudice after Mr. Fendlason failed to appear for the hearing on
Plaintiffs' Motion to Dismiss and the Show Cause Order. (Rec. Doc.

8

21)
On March 4, 2013, after the Court had dismissed the action,
Mr. Fendlason filed an ex parte motion to enroll

Lawrence Blake

Jones and David C. Whitmore ("Mr. Whitmore") as counsel of record.
(Rec. Doc. 22) The Court granted the motion to enroll on March 11,
2013. (Rec. Doc. 24) On March 21, 2013,

Mr. Fendlason filed the

instant motion for reconsideration of the Court's order dismissing
the action with prejudice (Rec. Doc. 21) through his new attorney,
Mr. Whitmore. (Rec. Doc. 25) Plaintiffs filed their opposition on
March 22, 2013. (Rec. Doc. 29)
PARTIES’ ARGUMENTS
Mr. Fendlason contends that he is entitled to reconsideration
of the Court's order dismissing the action with prejudice (Rec.
Doc. 21) and/or a new trial. Mr. Fendlason asserts that Plaintiffs'
Motion to Dismiss was based upon Federal Rules of Civil Procedure
37(b)(2)

and

37(d),

which

is

improper

because

there

was

no

discovery order in this case, and these subdivisions deal with the
failure to comply with a discovery order. Mr. Fendlason concedes
that when a party fails to to attend his own deposition, dismissal
is one of the possible remedies under Rules 37(d)(1)(A)(i) and
37(d)(3); however, he argues that dismissal is too drastic of a
remedy in the present matter. Mr. Fendlason argues that under
Griffin v. Aluminum Company of America, 564 F.2d 1171, 1172 (5th

9

Cir.

1977),

dismissal

is

only

a

proper

sanction

where

"a

plaintiff's failure to comply with discovery has involved either
repeated

refusals

or

an

indication

of

full

understanding

of

discovery obligations coupled with a bad faith refusal to comply."
(Rec. Doc. 25-1, p. 3)

Mr. Fendlason argues that there was no such

bad faith in this case. Mr. Fendlason admits that he failed to
attend the October deposition, but states in an affidavit attached
to his Motion for Reconsideration that he told

his counsel at the

time, Mr. Lea, that he could not attend because he was in Oklahoma
looking for work. (Rec. Doc. 25-2, ¶ 2) As to the December
deposition, Mr. Fendlason argues that he was served at his mother's
home instead of his own home. (Rec. Doc. 25-2, ¶ 3) Mr. Fendlason
admits that he received the subpoena from his mother "about one to
two weeks" after it was served upon her, but asserts that he did
not attend the December deposition, because he did not have
counsel. (Rec. Doc. 25-2, ¶ 4) Mr. Fendlason claims that the
January 28, 2012 Show Cause Order was again served at his mother's
home and that he did not receive that Order until after his case
had been dismissed. Mr. Fendlason does not give a reason for his
failure to act on the Court's November 28, 2012 Order which
required him to either enroll new counsel or notify the Court that
he would proceed pro se. Mr. Fendlason urges that he should not be
held responsible for his errors and failures because, under Harden

10

v. Gordon, 11 F. Cas. 480, 485 (D. Me. 1823), a seaman, such as Mr.
Fendlason, is "thoughtless and require[s] indulgence" from the
Court.
Mr. Fendlason further asserts that the cases Plaintiffs relied
on in their Motion to Dismiss actually support a reversal of the
order dismissing the case. Mr. Fendlason asserts that, although
Defendants

relied

on

Boudwin

v.

Graystone

Insurance

Company

Limited, 756 F.2d 399 (5th Cir. 1985) in their Motion to Dismiss,
that case actually supports Mr. Fendlason's argument because the
Boudwin court required district judges to include on the record
findings of facts that lesser sanctions would be inadequate. Mr.
Fendlason argues that because the Court made no such finding on the
record, the Order granting Plaintiffs' Motion to Dismiss must be
vacated.
In their opposition, Plaintiffs assert Mr. Fendlason's motion
should be denied, because he offers no new evidence as to why he
failed to comply on several occasions and cannot show a

manifest

error of law or mistake of fact. Plaintiffs assert that there is no
manifest error of law, because under Hunting v. BASF Corp., 398 F.
App'x. 61, 63 (5th Cir. 2010), dismissal is appropriate "when a
party fails to appear for a properly noticed deposition, fails to
comply with a discovery order, fails to prosecute his case, or
fails to comply with an order of the district court." Id. Thus,

11

Plaintiffs contend that Mr. Fendlason's motions should be denied,
as there was no manifest injustice.
LEGAL STANDARD
The Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration of an order. Bass v. U.S. Dep’t of
Agric., 211 F.3d 959, 962 (5th Cir. 2000). The Fifth Circuit treats
a motion for reconsideration challenging a prior judgment as either
a motion “to alter or amend” under Federal Rule of Civil Procedure
59(e) or a motion for “relief from judgment” under Federal Rule of
Civil Procedure 60(b). Lavespere v. Niagara Mach. & Tool Works,
Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds
by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994).
The difference in treatment is based on timing. If the motion is
filed within twenty-eight days of the judgment, then it falls under
Rule 59(e). Id.; FED. R. CIV. P. 59(e). However, if the motion is
filed more than twenty-eight days after the judgment, but not more
than one year after the entry of judgment, it is governed by Rule
60(b). Id.; FED. R. CIV. P. 60(c). In the present case, Defendants’
Motion for Reconsideration (Rec. Doc. 25) was filed on March 21,
2013, which is within twenty-eight days from the

order dismissing

this matter. (Rec. Doc. 21). As a result, Defendants’ Motion for
Reconsideration is treated as a motion to alter or amend under Rule
59(e).

12

Altering or amending a judgment under Rule 59(e) is an
“extraordinary remedy” used “sparingly” by the courts. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to
alter or amend calls into question the correctness of a judgment
and is permitted only in narrow situations, “primarily to correct
manifest errors of law or fact or to present newly discovered
evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc., 342
F.3d 563, 567 (5th Cir. 2003).

Manifest error is defined as

“‘[e]vident to the senses, especially to the sight, obvious to the
understanding, evident to the mind, not obscure or hidden, and is
synonymous with open, clear, visible, unmistakable, indubitable,
indisputable, evidence, and self-evidence.’” In Re Energy Partners,
Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15, 2009)
(citations omitted); see also Pechon v. La. Dep't of Health &
Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009) (manifest
error is one that “‘is plain and indisputable, and that amounts to
a complete disregard of the controlling law’”) (citations omitted).
To prevail on a motion under Rule 59(e), the movant must clearly
establish at least one of three factors: (1) an intervening change
in the controlling law, (2) the availability of new evidence not
previously available, or (3) a manifest error in law or fact.
Schiller, 342 F.3d at 567; Ross v. Marshall, 426 F.3d 745, 763 (5th
Cir. 2005) (to win a Rule 59(e) motion, the movant “must clearly

13

establish either a manifest error of law or fact or must present
newly discovered evidence”).
DISCUSSION
The Fifth Circuit has held that a motion under Rule 59(e) "is
not the proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before entry of
judgment.” Templet, 367 F.3d at 478-79. The Court declines to
consider Mr. Fendlason's arguments, all of which could have been
raised by Mr. Fendlason at the February 22, 2013 hearing. The
January

28,

2013

Show

Cause

Order

explicitly

instructed

Mr.

Fendlason to appear in Court on February 22, 2013 and warned him
that the Court was considering dismissing the action with prejudice
as a sanction for his failure to attend both depositions, failure
to prosecute, and failure to abide by the Court's November 28, 2012
Order. In his affidavit, Mr. Fendlason challenges the sufficiency
of service of the January 28 Show Cause Order stating: "While I
acknowledge that the plaintiffs have submitted an affidavit stating
that [the January 28, 2013 Show Cause Order] was again served on my
mother, I did not receive that Order prior to the case being
dismissed. I do not reside with my mother, but reside at 39483 W.
Brickyard Road in Springfield, Louisiana." (Rec. Doc. 25-2, p. 2)
The Court finds this excuse unavailing. The fact that the Show
Cause Order was served on his mother at her residence, rather than

14

on Mr. Fendlason at his residence is due to: (a) Mr. Fendlason's
unexplained failure to comply with the Court's November 28, 2012
order, and (b) Mr. Fendlason's failure to comply with the Local
Civil Rules of the United States District Court for the Eastern
District of Louisiana. Had Mr. Fendlason complied with the November
28, 2012 Order and abided by the local rules, he would have
received timely notice of the February 22, 2013 hearing and could
have raised all of the arguments that he raises in the instant
motion at that time.

A. Mr. Fendlason's Unexplained Failure to Comply with the
November 28, 2012 Order
Mr. Fendlason's statement in his affidavit that he chose not
to attend the December deposition because he was unrepresented at
the time indicates that Mr. Fendlason was aware of the November 28,
2012 Order granting Mr. Lea's motion to withdraw by December 5,
2012, at the latest. Given that the same November 28, 2012 Order
that granted Mr. Lea's motion to withdraw also instructed Mr.
Fendlason to enroll new counsel or contact the Court within thirty
days to notify the Court of his intention to proceed pro se, the
Court can reasonably infer that Mr. Fendlason was aware of the
Court's instructions by December 5, 2012 and simply disregarded
them. Mr. Fendlason's failure to offer any explanation for his non15

compliance with the November 28, 2012 Order bolsters the Court's
conclusion. Had Mr. Fendlason enrolled a new attorney within thirty
days of the November 28, 2012 Order, the January 28, 2013 Show
Cause

Order

could

have

been

served

on

his

new

attorney.

Alternatively, had he contacted the Court within that time frame,
the Court could have obtained his correct address before issuing
the January 28, 2013 Show Cause Order. In either case, but for Mr.
Fendlason's disregard of the Court's November 28, 2012 Order, he
would have received timely notice of the February 22, 2013 hearing
and could have raised his arguments there.

B. Mr. Fendlason's Failure to Comply with the Local Rules
Second, whether or not Mr. Fendlason ignored the Court's
instructions in the November 28, 2012 Order, he was clearly aware
that Mr. Lea was no longer representing him by December 5, 2012. At
that point, as a pro se litigant, he was obligated to familiarize
himself with and abide by the Local Civil Rules of the Eastern
District of Louisiana. Local Rule 83.2.7 provides in pertinent part
that "[e]veryone who appears in court in proper person must be
familiar with these rules." Local Rule 11.1 provides that "[e]ach
attorney and

pro se

litigant has a continuing obligation to

promptly notify the court of any address or telephone number
change." Thus, once Mr. Fendlason was a pro se litigant, it was his

16

continuing responsibility to provide the Court with his current
address, and had he done so any time during the nearly two month
span between his second deposition on December 5, 2012 and the
January 28, 2013 Show Cause Order, he would have received timely
notice of the February 22, 2013 hearing and could have raised the
arguments asserted in the instant motion at that hearing. Since Mr.
Fendlason could have raised all of his arguments before the Court
issued the February 22, 2013 Order dismissing the case with
prejudice, the Court will not consider them.
Accordingly,
IT IS HEREBY ORDERED that Mr. Fendlason's Motion for
Reconsideration and/or New Trial (Rec. Doc. 25) is DENIED.
New Orleans, Louisiana this 6th day of August, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

17