Melancon et al v. Great Southern Dredging, Inc. et al

Filing 196

ORDER denying 142 Motion to Strike ; denying 147 Motion for Temporary Restraining Order; denying 147 Motion for Preliminary Injunction; denying 147 Motion to Stay. Signed by Judge Stanwood R. Duval, Jr on 5/7/15. (Reference: all cases)(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LYNN MELANCON, ET AL.

CIVIL ACTION

VERSUS

NO. 12-2455
C/W NO. 12-2761
C/W NO. 12-3051

GREAT SOUTHERN DREDGING, INC., ET AL.

SECTION "K"(2)

ORDER
Before the Court are:
1)

Defendants-in-Intervention's Motion to Strike (Doc. 142);

2)

Defendants-in -Intervention's Ex Parte Motion for Temporary Restraining Order,
For a Preliminary Injunction, and to Enforce Stay (Doc. 147); and

3)

12(b)(6) Motion to Dismiss on Behalf of Waitz & Downer and Joseph L. Waitz,
Jr. (Doc. 169).

Having reviewed these motions, memoranda and the relevant law, the Court finds no merit in
them.
As previously noted by this Court in its Order and Reasons of March 9, 2015, (Doc. 151)
denying a Motion to Dismiss for Lack of Jurisdiction filed by the Falcon Law Firm, PLC and
Timothy J. Falcon, Michael and Monica Guidry ("the Guidrys") filed a claim in this consolidated
action seeking damages for injuries allegedly caused as a result of an allision between a crew
boat and submerged piling.1 Initially, the Guidrys were represented by the Falcon Intervenors

1

Lynn Melancon, George Loupe, Jr., Dana Loupe, Anthony Fillinich, Nancy Fillinich and Louisiana Delta
Oil Company, LLC v. Great Southern Dredging ,Inc., L&A Contracting Co. and United States of America, C.A. No.
12-2455 was filed on October 5, 2012 (Doc. 1). On December 12, 2012, In re: The Matter of Great Southern
Dredging, Inc., C.A. 12-2761, a limitation action ,was transferred to the undersigned and consolidated with the
lowest numbered case. (Doc. 27). Finally, Louisiana Workers Compensation Corp. v. Great Southern Dredging,
Inc., L&A Contracting Company, Louisiana Delta Marine, L.L.C., C.A. 12-3051 was likewise transferred and

who filed a claim on their behalf on January 15, 2013. However, the Guidrys discharged the
Falcon Intervenors who then sought to withdraw by motion on November 11, 2013 (Doc. 69)
which motion was granted the same day. (Doc. 72). Likewise on November 11, 2013, the
Guidrys sought to enroll and substitute Joseph L. Waitz, Jr. and Mary W. Riviere of the law firm
of Waitz and Downer (Doc. 68) which motion was granted on the same day. (Doc. 71).
The matter was settled at a mediation and the only remaining issue left before this Court
concerns two competing law firms' and the plaintiffs' respective interest in that portion of
settlement proceeds which were designated as attorneys' fees and which have been deposited into
the Registry of the Court. Obviously, the proper parties to this dispute are the attorneys
involved, their law firms and the plaintiffs who have an interest in the deposited proceeds.
The Defendants-in-Intervention's Motion to Strike (Doc. 142) attempts to dismiss
claims based on Fed. R. Civ. P. 12(f) which provides that a court may strike for a pleading "an
insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Paragraph
2(a) and (b) and 20 of the Intervention Complaint, as well as Paragraphs 5, 6, 7,8, and 9 of
Intervenor's Amended Intervention Complaint do not meet this threshold. These paragraphs
contain the lynchpin of the Falcon parties' claims, and a motion to strike is an improper method
to seek resolution of this matter. Accordingly,
IT IS ORDERED that Defendants-in-Intervention's Motion to Strike (Doc. 142) is
DENIED.
As to Defendants-in -Intervention's Ex Parte Motion for Temporary Restraining
Order, For a Preliminary Injunction, and to Enforce Stay (Doc. 147), the Court has been

consolidated on January 9, 2013.

2

informed that the state court actions have been stayed pending the outcome of this dispute.
Accordingly,
IT IS FURTHER ORDERED that Defendants-in -Intervention's Ex parte Motion
for Temporary Restraining Order, For a Preliminary Injunction, and to Enforce Stay
(Doc. 147) is DENIED as MOOT.
Finally, as to the 12(b)(6) Motion to Dismiss on Behalf of Joseph L. Waitz, Jr. and
the law firm Waitz & Downer, clearly these parties are the proper and necessary parties to
resolve the fee dispute. O'Rourke v. Cairns, 683 So.2697 (La. 1996); Saucier v. Hayes, 373
So.2d 102 (La. 1979). Accordingly,
IT IS FURTHER ORDERED that 12(b)(6) Motion to Dismiss on Behalf of Waitz &
Downer and Joseph L. Waitz, Jr. (Doc. 169) is DENIED.
New Orleans, Louisiana, this 7th day of May, 2015.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE

3