Jones v. Tidex/Tidewater Marine Co et al

Filing 21

ORDER & REASONS that the 6 Motion to Dismiss for Failure to State a Claim filed by defendant Tidewater Inc (incorrectly named as Tidex/Tidewater Marine Co.), is GRANTED. Plaintiff's claims against Tidewater Inc. are DISMISSED WITH PREJUDICE. Signed by Judge Eldon E. Fallon on 10/1/14. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JACKSON JONES

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CIVIL ACTION

VERSUS

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NUMBER: 14-01245

TIDEWATER INC. ET. AL

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SECTION “L”

ORDER AND REASONS
Before the Court is Defendant Tidewater’s Motion to Dismiss the claims filed against it
by Plaintiff Jackson Jones. (Rec. Doc. 6). The Court has reviewed the briefs and the applicable
law and now issues this Order & Reasons.
I. BACKGROUND
On May 6, 2014, Jackson Jones (Plaintiff) filed suit against Tidewater, Inc., Pennzoil
Company, Union Carbide Corporation (doing business as Dow Chemical Company), Steve
Comeaux, Stephanie Skinner, Keith Marchadie, Jim Cooley, John Colley, and Deborah Perkins
in Louisiana State Court. (Rec. Doc. 1-2). Plaintiff requested service only on Tidewater
(Defendant). (Rec. Doc. 1-2 at 6). Defendant Tidewater removed the suit to this Court on May
30, 2014. (Rec. Doc. 1). To date, the plaintiff has not served any other defendant. With regard to
Defendant Tidewater, Plaintiff brings multiple claims stemming out of his employment with the
Defendant from 1978-1979. (Rec. Doc. 1-2). He alleges that he was injured due to Defendant’s
negligence while unloading freight aboard Defendant’s vessel. (Rec. Doc. 1-2 at 2). He further
alleges that the Defendant violated OSHA rules in directing him to clean chemical storage tanks
without protective gear, exposing him to toxic chemicals. (Rec. Doc. 1-2 at 3).
Jones worked for Tidewater on the M/V NORTH TIDE. Many of the Plaintiff’s claims
arise out of an alleged head injury that occurred while he was employed on the vessel. (Rec. Doc.
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1-2). Plaintiff claims amnesia which prevented him from recalling the incident until recently.
Plaintiff also alleges exposure to exhaust fumes and other chemicals while employed by
Tidewater and Carbide. (Rec. Doc. 1-2 at 2). He states that on May 7, 2013 he had blood work
performed that indicated abnormal test results for kidney level and prostate, among other health
problems. (Rec. Doc. 1-2 at 3). Plaintiff does not allege any causal connection between the
exposure and the present health problems. (Rec. Doc. 1-2 at 3). Plaintiff further alleges claims
under the Jones Act, The Longshore and Harborworkers’ Compensation Act, and he alleges toxic
exposure, wrongful termination, discrimination, and civil rights violations. (Rec. Doc. 1-2 at 35). Plaintiff asks for back pay, reinstatement, retirement, insurance, and disability benefits. (Rec.
Doc. 1-2 at 5).
In 2005, Plaintiff filed suit in this Court alleging similar claims against Tidewater, all
based on his employment with the Defendant from 1978-1979. Jackson C. Jones, Jr. v.
Tidewater Marine, LLC, et al., Docket No. 05-3076. Specifically, Plaintiff’s 2005 complaint
included claims of liability based on wrongful termination, hostile work environment,
employment discrimination, disability based discrimination, toxic exposure, and civil rights
violations. (Rec. Doc. 6-4; Rec. Doc. 6-5). Those claims were dismissed with prejudice on the
basis of prescription on May 3, 2007, and the Fifth Circuit affirmed that Judgment in a per
curiam opinion dated January 29, 2008. Jones v. Tidewater Marine LLC, Docket No. 07-30510
(5th Cir. 2008).
II. PRESENT MOTION
Defendant Tidewater has filed this motion contending that the Plaintiff’s claims against it
should be dismissed on three grounds. (Rec. Doc. 6-1). First, the Defendant alleges that all the
claims are barred by res judicata based on the prior judgment of this Court, as affirmed by the

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Fifth Circuit. (Rec. Doc. 6-1 at 5). The Defendant argues that this petition is merely a subsequent
attempt to re-litigate the same claims that were already dismissed with prejudice in the earlier
case. (Rec. Doc. 6-1 at 5). Defendant states that each claim raised in the present petition was
raised in the earlier case. (Rec. Doc. 6-1 at 8). Second, the Defendant avers that all of the
Plaintiff’s claims are facially prescribed under the applicable statutes of limitations, and that he
has failed to prove that any exception to prescription applies. (Rec. Doc. 6-1 at 10). Finally, the
Defendant argues that the Plaintiff’s allegations fail to meet the federal pleading standard and
thus cannot survive a 12(b)(6) motion to dismiss. (Rec. Doc. 6-1 at 12).
Plaintiff responds, reasserting arguments made in his Petition for Damages, and
additionally alleging that his workers compensation claim in state court operates to interrupt
prescription of his claims. (Rec. Doc. 13).
III. LAW & ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a party to file a motion to dismiss for
“failure to state a claim upon which relief can be granted....” When a court considers a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), “all well-pleaded facts are viewed in the
light most favorable to the plaintiff, but plaintiff must allege facts that support the elements of
the cause of action in order to make out a valid claim.” City of Clinton, Ark. v. Pilgrim's Pride
Corp., 632 F.3d 148, 152 (5th Cir. 2010) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). "To avoid dismissal, a plaintiff must plead sufficient facts to 'state a claim to relief
that is plausible on its face.'" Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Bell
Atl. Corp., 550 U.S. at 570). A court "do[es] not accept as true conclusory allegations,

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unwarranted factual inferences, or legal conclusions." Plotkin v. IP Axess Inc., 407 F.3d 690,
696 (5th Cir. 2005).
B. Res Judicata
Under applicable circuit precedent, res judicata applies where (1) the parties are identical
in the two actions; (2) the prior judgment was rendered by a court of competent jurisdiction; (3)
there was a final judgment on the merits, and; (4) the same claim or cause of action was involved
in both cases. Oreck Direct, LLC v. Dyson, Inc., 560 F. 3d 398, 401 (5th Cir. 2009).
The first element of res judicata is satisfied, as both Tidewater and Jackson Jones were
parties in the earlier action. (Rec. Doc. 6-4; Rec. Doc. 6-5). The second element is satisfied, as
the judgment dismissing that case on the basis of prescription was rendered by a court of
competent jurisdiction. The third element is satisfied, as this Court’s ruling became a final
judgment on the merits when it was affirmed by the Fifth Circuit. See Jones v. Tidewater Marine
LLC, Docket No. 07-30510 (5th Cir. 2008).
In determining whether the fourth element is satisfied, the Fifth Circuit applies the
“transactional test,” which requires that the two actions are based on the same nucleus of
operative facts. Oreck, 560 F. 3d at 402. “What factual grouping constitutes a “transaction”…
[is] to be determined pragmatically, giving weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether they form a convenient trial unit, and
whether their treatment as a unit conforms to the parties' expectations or business understanding
or usage.” Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 396 (5th Cir. 2004) (adopting the
transactional test of the Restatement (Second) of Judgments, § 24). All of the claims raised in the
present action arise out of Plaintiff’s brief employment by Tidewater from 1979-1979, and that
employment was the basis for the Plaintiff’s prior cause of action. (Rec. Doc. 1-2). The nucleus

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of operative fact is therefore the same in this action as that in the previous action, and principals
of res judicata bar the present claims.
More specifically, the Court finds that the litany of complaints alleged by the Plaintiff in
the present complaint is an attempt to once again raise any potential cause of action that arose as
part of his brief employment with the Defendant. Indeed, most, if not all, of the claims alleged in
the present complaint were specifically alleged in the 2005 complaint. (See Rec. Doc. 6-4; Rec.
Doc. 6-5). At that time, as here, Plaintiff argued that prescription on those claims should have
been equitably tolled based on amnesia. Id. On appeal, the Fifth Circuit found that, even
assuming that the limitations period could be equitably tolled based on this basis, Plaintiff had
failed to provide sufficient evidence to support his claim of amnesia. Jones v. Tidewater Marine
LLC, Docket No. 07-30510 (5th Cir. 2008). This Court is therefore barred from re-litigating these
claims, their prescription, or Plaintiff’s amnesia arguments.
C. Prescription
All of the Plaintiff’s claims against Tidewater arise out of his employment, which
terminated 35 years ago. Under Louisiana law, once the party pleading prescription shows that
the prescriptive period has elapsed between the time of the tortious conduct and the filing of suit,
the burden shifts to the other party to show that an exception to prescription applies. Terrebonne
Parish School Bd. v. Mobil Oil Corp, 310 F.3d 870, 878 (5th Cir. 2002). The Plaintiff argues, as
he did in his previous suit, that amnesia stemming from a 1979 offshore accident should suspend
the running of prescription. That argument was previously rejected by the Fifth Circuit, noting
“We worry about the number of stale, and potentially fraudulent, claims that would surface in the
future if we allowed Jones to proceed on his unsubstantiated claims of amnesia.” Jones v.
Tidewater Marine LLC, Docket No. 07-30510 (5th Cir. 2008). Plaintiff also alleges that he was

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exposed to chemicals in violation of OSHA standards, but fails to specifically allege the any
recently manifested medical abnormalities were caused by this exposure. (Rec. Doc. 1-2 at ¶ 4).
Plaintiff has not specifically pled any new exceptions to prescription in his claims against
Tidewater; therefore, his claims against this Defendant are prescribed.
D. Failure to State a Claim
Under federal pleadings standards, “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.” Iqbal v. Ashcroft, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007)) (internal citations omitted). Legal conclusions in a complaint must be supported by
factual allegations. Id. Here, Plaintiff’s claims entitlement to benefits under multiple legal
theories, including toxic exposure, the Americans with Disabilities Act, the Jones Act, worker’s
compensation, breach of contract, uninsured motorist liability, wrongful termination, and
discrimination. He does not, however, provide factual allegations to support his claims. (See
Plaintiff’s Petition for Damages, Rec. Doc. 1-2 at ¶ ¶ 1, 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, 25).
These claims should therefore be dismissed.
IV. CONCLUSION
For the forgoing reasons, IT IS ORDERED that the Defendant Tidewater’s Motion to
Dismiss Based on Res Judicata and Prescription is GRANTED as to Defendant Tidewater Inc.

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Plaintiff’s claims against Tidewater Inc. are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 1st day of October 2014.
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UNITED STATES DISTRICT JUDGE

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