In Re: Weber Marine, LLC

Filing 53

ORDER dismissing 13 Motion for Partial Summary Judgment; granting 23 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE WEBER MARINE, LLC

CIVIL ACTION
NO: 14-1656
SECTION: "A" (4)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 23) filed by Paul Perrier, Sr.,
et al., and a Motion for Partial Summary Judgment (Rec. Doc. 13) filed by
Cooper/T. Smith Stevedoring Co. Both motions are opposed. The motions, noticed for
submission on June 17, 2015, are before the Court on the briefs without oral argument.
On February 5, 2014, the Perrier plaintiffs (collectively "Perrier") filed suit in state
court (23rd JDC, St. James Parish) to recover for injuries that Paul Perrier, Sr. allegedly
sustained when he fell from a crew boat owned by Weber Marine. That incident involving
Weber Marine's vessel is alleged to have occurred on November 11, 2012. In the same
petition, Perrier joined a Jones Act claim against his employer, Cooper/T. Smith, for an
unrelated incident that occurred on January 3, 2013. Weber Marine removed the action to
this Court on March 5, 2014, arguing that general maritime law provided a basis for
removal. The case was allotted to this section as Civil Action 14-490.
On May 22, 2014, this Court granted Perrier's motion to remand the case to state
court. In its ruling the Court noted that the petition joined two separate and unrelated
claims against two different defendants, and that doing so might have been an improper
cumulation of actions under state law. (CA14-490; Rec. Doc.13 at 3). The Court therefore
analyzed the removability vel non of the November 11, 2012 and January 3, 2013 claims

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independently of each other. The Court held that the general maritime law claim against
Weber Marine for the November 11, 2012 incident was not removable because original
jurisdiction under maritime law does not provide a basis for removal. (Id. at 6). The Court
also held that the separate and unrelated claim against Cooper for the January 3, 2013
incident was not removable because Jones Act claims are not removable to federal court. (Id.
at 3). Cooper's contention in its endeavor to keep the claim in federal court was that Perrier
was not a Jones Act seaman but the Court rejected that contention. The Clerk terminated
Civil Action 14-490 upon docketing this Court's ruling granting the motion to remand.
On July 18, 2014, Weber Marine filed a limitation complaint in this district as owner
and operator of the M/V MISS RACHEL, which is the vessel that was involved in the
November 11, 2012 incident. That complaint was allotted randomly to Section N as Civil
Action 14-1656—the instant case. The Court's order of August 6, 2014, directed all persons
asserting claims for any and all losses resulting from or incidental to the occurrences and
happenings recited in the limitation Complaint to file their respective claims with the Clerk.1
(Rec. Doc. 4, Order Directing Issuance of Restraining Order Against Prosecution of Claims).
The order also enjoined further prosecution of any action or proceeding against the
Complainant, with respect to any claims for which the Complainant seeks exoneration or
limitation, including any claim arising out of or connected with the November 11, 2012
incident described in the Complaint. (Id.). Perrier and Cooper filed their respective
answers/claims into the record. (Rec. Docs. 5 & 10). On May 14, 2015, Judge Engelhardt
transferred the case to this Court after learning that the case was related to Civil Action 14490, which had been pending in Section A before the Court remanded the claims.

The Order was signed by the district judge in Section N to whom the case was assigned
at the time.
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Even though the limitation proceeding involves only the November 11, 2012 incident,
and even though Cooper is not a defendant on that claim, Cooper filed a claim in this
limitation proceeding because Cooper was Perrier's employer at the time of the November
11, 2012 incident, and presumably paid Perrier some measure of benefits as a result of the
November 11, 2012 incident with Weber Marine's vessel. Even though Cooper specifically
acknowledges that Perrier does not allege any negligence on behalf of Cooper in conjunction
with the November 11, 2012 Weber Marine incident, (Rec. Doc. 13-1, Cooper Memorandum
at 2),—in other words that Perrier has not asserted a Jones Act claim or any claim for that
matter against Cooper in conjunction with the November 11, 2012 incident that forms the
basis of Weber Marine's limitation complaint—Cooper's answer is devoted in large part to
asserting defenses to Perrier's Jones Act claim arising out of the January 3, 2013 incident. In
fact, the Court notes that Cooper's answer first pleads defenses wholly unrelated to Weber
Marine's limitation complaint and solely related to the separate Jones Act claim against
Cooper for the January 3, 2013 incident. These defenses are the same ones asserted in the
answer that Cooper filed in Civil Action 14-490 before the Court remanded the case.
Cooper's motion for partial summary judgment is directed solely at the issue of
seaman status. But seaman status is relevant only to Perrier's Jones Act claim which is not
pending before this Court because the Court remanded the petition in 14-490, which
included the Jones Act claim arising out of the January 3, 2013 incident. The status of the
remanded Jones Act claim in state court was not affected by Weber Marine's limitation
complaint in this Court because the limitation complaint pertains solely to the November 11,
2012 incident. A limitation complaint is not the functional equivalent of a removal from
state court—hence, the need for the mandatory injunction and monition that accompany
every limitation complaint—so the fact that the unrelated Jones Act claim was included in

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the same petition is of no moment.2 The injunction and monition specifically target claims
related to the November 21, 2012 incident. Therefore, Cooper's claim against Weber for
contribution and indemnity related to the November 21, 2012 incident is unarguably a claim
that is appropriate in this limitation action. But Weber Marine's limitation action does not
provide a vehicle for Cooper to litigate a separate and unrelated claim between itself and
another limitation claimant simply because Cooper would prefer a federal forum.3
In its endeavor to have this Court try the Jones Act claim arising out of the January 3,
2013 incident, Cooper argues that the Jones Act claim is actually related to the November 11,
2012 Weber Marine incident because Cooper intends to defend the claim by arguing that all
of Perrier's injuries were actually sustained in the Weber Marine incident. This tortuous
argument lacks legal merit. Recovery under the Jones Act depends on the plaintiff's ability
to prove that his employer's negligence was the cause of his injury. Cooper will presumably
try to tip the scales in its favor by suggesting that Perrier's injuries pre-dated the January 3,
2013 incident. Obviously, if Perrier prevails on the causation issue notwithstanding Cooper's
evidence to the contrary then Cooper has no claim against Weber Marine for indemnity or
contribution. But even if Cooper did have such a claim it would not be cognizable in this
litigation proceeding. Cooper cannot so easily thwart the choice of forum that the law so

In fact, the injunction and monition are issued in conjunction with a limitation
proceeding precisely because the claim against the vessel owner is not actually "removed" to
federal court. If a limitation complaint effected a removal then the injunction would be
unnecessary.
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Cooper cites Odeco Oil and Gas Co. v. Bonnette, 74 F.3d 671 (5th Cir. 1996), in support
of its contention that the Jones Act claim is properly part of this limitation proceeding. Odeco
merely supports the proposition that Cooper's claim for indemnity and contribution arising out
of the November 11, 2012 incident is a cognizable claim in the Weber Marine's limitation action
for the protection of Weber Marine, the vessel owner. But this proposition is not in dispute.
Odeco provides no support whatsoever for Cooper's ill-conceived attempt to litigate an unrelated
claim in this limitation proceeding. The decision therefore lends nothing to Cooper's opposition
to the Perrier's motion to dismiss.
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solicitously reserves to one in Perrier's position.
In sum, Cooper's attempt to insinuate Perrier's Jones Act claim for the unrelated
January 3, 2013 incident into this litigation via its answer to Weber Marine's limitation
complaint must fail. Perrier's motion to dismiss will be granted insofar as the Court will
dismiss the motion for summary judgment as being irrelevant to this proceeding. The Court
need not grant the motion to dismiss in any broader respect because it is unnecessary to
purport to dismiss a Jones Act claim that has not been pending in this Court since the
remand order in Civil Action 14-490.4
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 23) filed by Paul
Perrier, Sr., et al., is GRANTED. The Motion for Partial Summary Judgment (Rec.
Doc. 13) filed by Cooper/T. Smith Stevedoring Co. is DISMISSED as being irrelevant to
this proceeding.
July 14, 2015

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

The Court reminds counsel that Rule 11 requires an inquiry into whether the claims,
defenses, and legal contentions made in its pleadings and motions are warranted by existing law
or by a non-frivolous argument for extending the law. Fed. R. Civ. Pro. 11(b)(2).
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