Ainsworth v. Caillou Island Towing Company, Inc. et al
ORDER & REASONS: Before the Court is Plaintiff Tracy Ainsworth's ("Plaintiff") "Unopposed Motion for Reconsideration of Defendants' Rule 12(c) Motion for Partial Judgment on the Pleadings" (Rec. Doc. 33). After consideri ng the pending motion, the memorandum in support, the record, and the applicable law, for the reasons stated herein, IT IS HEREBY ORDERED that "Unopposed Motion for Reconsideration of Defendants' Rule 12(c) Motion for Partial Judgment on th e Pleadings" (Rec. Doc. 33) is GRANTED. IT IS FURTHER ORDERED that the portion of this Court's June 24, 2013 Order (Rec. Doc. 17) striking Plaintiff's request for punitive damages is VACATED. IT IS FURTHER ORDERED that the portions of this Court's June 24, 2013 Order (Rec. Doc. 17) striking Plaintiff's requests for lost future earning and loss of society damages remain unchanged. Signed by Judge Nannette Jolivette Brown on 10/21/2013. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TRACY AINSWORTH, as parent and natural Tutrix
on behalf of the minor child Veronika Bumgarner,
Individually and as Personal Representative of the
Estate of Vernon Bumgarner, Deceased
CAILLOU ISLAND TOWING COMPANY, INC., et
ORDER AND REASONS
Before the Court is Plaintiff Tracy Ainsworth’s (“Plaintiff”) “Unopposed Motion for
Reconsideration of Defendants’ Rule 12(c) Motion for Partial Judgment on the Pleadings.”1 After
considering the pending motion, the memorandum in support, the record, and the applicable law,
the Court will grant the pending motion.
A. Factual Background
Plaintiff is the parent and natural tutrix of Veronika Bumgarner, and the personal
representative of the estate of Veron Bumgarner (“Decedent”).2 Veronika Bumgarner is the
surviving daughter of Decedent.3 Plaintiff claims that at all relevant times, Defendants owned,
operated and/or crewed the Augusta, a vessel involved in the incident that is the basis of this suit.4
Vernon Bumgarner was employed by Defendants as a member of the crew of the Augusta.5
Rec. Doc. 33.
Rec. Doc. 23. at ¶ 1.
Id. at ¶ 2.
Id. at ¶ 9.
Id. at ¶ 10.
On or about January 16, 2013, Decedent and other members of the crew were attempting to
change the lights on barge being towed by the Augusta.6 After Decedent transferred from the
Augusta to the barge, “the captain of the Augusta steered the vessel in such a manner that the tow
line between the tow boat and barge suddenly tightened and jerked the barge, causing [Decedent]
to fall from the barge into the Mississippi River.”7 Decedent subsequently drowned, not to be found
until March 12, 2013.8
B. Procedural Background
On April 10, 2013, Plaintiff filed a complaint alleging that (1) Decedent’s injuries and death
were caused by the negligence of Defendant, pursuant to the Jones Act,9 and (2) Decedent’s injuries
and death were caused by the Defendant’s breach of its duty to furnish a seaworthy vessel, pursuant
to general maritime law.10 Plaintiff sought loss-of-society damages and lost-future-income
damages.11 Her prayer for relief also included a request for punitive damages.12
On May 21, 2013, Defendants filed a Rule 12(c) Motion for Partial Judgment on the
Pleadings, asserting that Plaintiff was not entitled to loss-of-society damages, lost-future-income
damages, and punitive damages.13 In her opposition, Plaintiff contended that she was entitled to
Id. at ¶ 11.
Rec. Doc. 2 at ¶ 13.
Rec. Doc. 2 at ¶ 14.
Id. at ¶ 15.
Id. at ¶ 17.
Rec. Doc. 9 at p. 1
punitive damages, arguing that under general maritime law, punitive damages “may be recovered
when a wrongdoer has acted willfully and with gross disregard for the plaintiff’s rights.”14
On June 24, 2013, the Court granted Defendants’ Rule 12(c) Motion.15 In its Order and
Reasons, the Court explained that although neither the Supreme Court nor the Fifth Circuit had
directly addressed the issue of punitive damages, other district courts within this Circuit had
interpreted Miles v. Apex Marine Corp.16 and Atlantic Sounding Co., Inc. v. Townsend17 as
precluding punitive damages. Thus, the Court found: “A Jones Act seaman is not entitled to punitive
damages. Therefore, the Jones Act seaman’s survivors may not receive punitive damages once they
inherit the seaman’s survival action for the injuries the decedent suffered, whether they sue under
the Jones Act or general maritime law.”18 The Court also ruled that Plaintiff could not recover lossof-society damages,19 or loss-of-future-income damages.20
Following the Court’s Order, Plaintiff filed an amended complaint, removing the request for
punitive damages, on July 23, 2013.21
Rec. Doc. 13 at p. 5.
Rec. Doc. 17.
Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).
Id. at p. 12.
Id. at p. 10.
Id. at p. 11.
Rec. Doc. 23.
On October 4, 2013, Plaintiff filed the pending “Unopposed Motion for Reconsideration of
Defendants’ Rule 12(c) Motion for Partial Judgment on the Pleadings,”22 wherein she moves the
Court to reconsider and vacate its Order dismissing Plaintiff’s claims for punitive damages.
II. Parties’ Arguments
Plaintiff contends that “[t]he Court should grant Plaintiff’s Motion because there has been
an intervening change in the substantive law on which the Court’s decision is based.”23 Plaintiff
avers that in its Order granting Defendant’s 12(c) Motion to Dismiss, “the Court found that ‘[w]hile
neither the Supreme Court nor the Fifth Circuit has addressed this issue [punitive damages], the
district courts within this Circuit that have interpreted Miles and Townsend have held ‘that punitive
damages are non-pecuniary in nature and, therefore they are not recoverable under the Jones Act.’”24
Plaintiff maintains that “[t]he Fifth Circuit has now weighed in on the issue of punitive damages
post-Townsend” with its decision in McBride v. Estis Well Service, L.L.C, issued October 2, 2013.25
According to Plaintiff, McBride held that “seaman may recover punitive damages for their
employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy
Defendants do not oppose the pending motion.27
Rec. Doc. 33.
Rec. Doc. 33-1 at p. 2.
Rec. Doc. 33-1 at p. 4.
Id. at p. 4.
Id. at p. 2.
See Rec. Doc. 33-2.
III. Law and Analysis
A. Standard on a Motion for Reconsideration
Although the Fifth Circuit has noted that the Federal Rules “do not recognize a ‘motion for
reconsideration’ in haec verba,”28 it has consistently recognized that such a motion may challenge
a judgment or order under Federal Rules of Civil Procedure 54(b), 59(e), or 60(b).29 When a party
seeks to revise an order that adjudicates fewer than all the claims among all of the parties, Federal
Rule of Civil Procedure 54(b) controls:
[A]ny order or other decision, however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties does not end the action as to any of
the claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.30
Under Rule 54(b), the district court “possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by it to be sufficient”31 However, this broad
discretion must be exercised sparingly in order to forestall the perpetual reexamination of orders and
the resulting burdens and delays.32
The general practice of courts in the Eastern District of Louisiana has been to evaluate Rule
54(b) motions to reconsider interlocutory orders under the same standards that govern Rule 59(e)
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).
Id. (Rules 59 and 60); Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at
*3-4 (E.D. La. Apr. 5, 2010) (Vance, C.J.) (Rule 54).
Fed. R. Civ. Pro. R. 54(b)
Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981).
See Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993); 18B Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 4478.1 (2d ed. 2002)
motions to alter or amend a final judgment.33 Such a motion “calls into question the correctness of
a judgment,”34 and courts have considerable discretion in deciding whether to grant such a motion.35
In exercising this discretion, courts must carefully balance the interests of justice with the need for
finality.36 Courts in the Eastern District of Louisiana have generally considered four factors in
deciding motions for reconsideration under the Rule 59(e) standard:
the motion is necessary to correct a manifest error of law or fact upon which the
judgment is based;
the movant presents newly discovered or previously unavailable evidence;
the motion is necessary in order to prevent manifest injustice; or
the motion is justified by an intervening change in controlling law.37
A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal
theories, or arguments. . . .’”38 Instead, such motions “serve the narrow purpose of allowing a party
to correct manifest errors of law or fact or to present newly discovered evidence.”39 “It is well
See, e.g., Castrillo, 2010 WL 1424398, at *3; Rosemond v. AIG Ins., No. 08-1145, 2009 WL 1211020, at
*2 (E.D. La. May 4, 2009) (Barbier, J.); In re Katrina Canal Breaches, No. 05-4182, 2009 WL 1046016, at *1 (E.D.
La. Apr. 16, 2009) (Duval, J.).
Tex. Comptroller of Pub. Accounts v. Transtexas Gas Corp. (In re Transtexas Gas Corp.), 303 F.3d 571,
581 (5th Cir. 2002).
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
Id. at 355-56.
See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted).
Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)).
See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).
settled that motions for reconsideration should not be used . . . to re-urge matters that have already
been advanced by a party.”40
Reconsideration, therefore, is not to be lightly granted, as “[r]econsideration of a judgment
after its entry is an extraordinary remedy that should be used sparingly”41 and the motion must
“clearly establish” that reconsideration is warranted.42 When there exists no independent reason for
reconsideration other than mere disagreement with a prior order, reconsideration is a waste of
judicial time and resources and should not be granted.43
Addressing the grounds for reconsideration outlined above, Plainitff contends that the
pending motion for reconsideration is justified by an intervening change in controlling law.
Specifically, Plaintiff points to the Fifth Circuit’s recent decision in McBride v. Estis Well Service,
McBride addressed a set of facts similar to those in the pending matter. In McBride, Skye
Sonnier was fatally pinned between a derrick and mud tank while working as a crew member aboard
Estis Rig 23 in Baoyou Sorrell, a navigable waterway in Iberville Parish, Louisiana.45 Haleigh
McBride, individually, on behalf of Sonnier’s minor child, and as administratrix of Sonnier’s estate,
filed suit against the rig’s owner and operator, Estis Well Service, L.L.C., stating causes of action
Helena Labs Corp. v. Alpha Scientific Corp., 483 F. Supp. 2d 538, 539 (citing Browning v. Navarro, 894
F.2d 99, 100 (5th Cir. 1990)).
Templet v. Hydrochem, Inc., 367 F.3d 473, 478-79 (citation omitted).
Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir. 2003).
Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 481 (M.D. La. 2002); see
also Mata v. Schoch, 337 BR 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was
presented); FDIC v. Cage, 810 F.Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion merely
disagreed with the court and did not demonstrate clear error of law or manifest injustice).
No. 12-30714, 2013 WL 5474616 (5th Cir. Oct. 2, 2013).
Id. at *1.
for unseaworthiness under general maritime law and negligence under the Jones Act and seeking
compensatory as well as “punitive and/or exemplary” damages.46 Estis moved to dismiss the claims
for punitive damages, arguing that punitive damages were not an available remedy for
unseaworthiness or Jones Act negligence as a matter of law.47 The District Court entered judgment
dismissing all claims for punitive damages.48 Recognizing that the issues presented were “the subject
of national debate with no clear consensus,” the District Court granted plaintiffs’ motion to certify
the judgment for immediate appeal under 28 U.S.C. § 1292(b), and McBride’s interlocutory appeal
In McBride, the Fifth examined the jurisprudential history that developed after its 1981
conclusion in Complaint of Merry Shipping that “punitive damages may be recovered under general
maritime law upon a showing of willful and wanton misconduct by a ship owner who creates or
maintains unseaworthy conditions.”50 Merry Shipping came under attack first with the Supreme
Court’s 1990 decision in Miles v. Apex Marine Corp., in which the Court held that the pecuniary
damages limitations under the Jones Act limited the damages recoverable by the seaman’s estate for
wrongful death caused by unseaworthiness.51 Though the recoverability of punitive damages was
not up for decision in Miles, the Fifth Circuit in Guevara v. Maritime Overseas Corp. concluded that
Miles had “effectively overruled” Merry Shipping.52 But fourteen years later, the Supreme Court,
in Atlantic Sounding Co., Inc. v. Townsend, “explicitly abrogated Guevara and restored the
Id. at *2 (quoting Complaint of Merry Shipping, Inc., 650 F.2d 622, 623 (5th Cir. 1981)).
See id. at * 3 (citing Miles, 498 U.S. at 31-33).
Id. *4 (citing 59 F.3d 1496, 1513 (5th Cir. 1995) (en banc)).
availability of punitive damages for maintenance and cure claims under general maritime law.”53 The
Supreme Court reasoned that “punitive damages have long been an accepted remedy under general
maritime law,” including for egregious maintenance and cure violations, and concluded, contrary
to Guevara, that “nothing in the Jones Act altered this understanding.”54
In light of these developments, the Fifth Circuit explained that Townsend established a
straightforward rule going forward: “if a general maritime law cause of action and remedy were
established before the passage of the Jones Act, and the Jones Act did not address that cause of
action or remedy, then that remedy remains available under that cause of action unless and until
Congress intercedes.”55 Applying this principle, the Fifth Circuit held:
Like maintenance and cure, unseaworthiness was established as a general maritime claim
before the passage of the Jones Act, punitive damages were available under general maritime
law, and the Jones Act does not address unseaworthiness or limit its remedies. We conclude,
therefore, that punitive damages remain available to seamen as a remedy for the general
maritime law claim of unseaworthiness.56
Like the plaintiff in McBride, Plaintiff here asserts a general maritime law claim for
unseaworthiness. The Fifth Circuit has now clarified that “punitive damages remain available to
seamen as a remedy for the general maritime law claim of unseaworthiness.”57 As required by the
standards applicable to Rule 54(b), Plaintiff’s Motion for Reconsideration is justified by an
intervening change in controlling law. Furthermore, it serves a narrow purpose, and does not re-urge
matters that Plaintiff already advanced it is original opposition. Based on the Fifth Circuits recent
guidance in McBride, Plaintiff will be allowed to include punitive damages in her prayer for relief.
Id. (citing Townsend, 557 U.S. at 424).
Id. (quoting Townsend, 557 U.S. at 424).
Id. at *7.
Id. at *9.
For the reasons stated above,
IT IS HEREBY ORDERED that “Unopposed Motion for Reconsideration of Defendants’
Rule 12(c) Motion for Partial Judgment on the Pleadings”58 is GRANTED.
IT IS FURTHER ORDERED that the portion of this Court’s June 24, 2013 Order59 striking
Plaintiff’s request for punitive damages is VACATED.
IT IS FURTHER ORDERED that the portions of this Court’s June 24, 2013 Order60
striking Plaintiff’s requests for lost future earning and loss of society damages remain unchanged.
NEW ORLEANS, LOUISIANA, this ____ day of October, 2013.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 33.
Rec. Doc. 17.
Rec. Doc. 17.
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