Jefferson v. Weeks Marine, Inc. et al
Filing
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ORDER & REASONS: ORDERED that the 29 Motion for Summary Judgment is GRANTED and Plaintiff is not entitled to assert any of his currently pleaded Jones Act negligence, unseaworthiness, and maintenance and cure causes of action. Signed by Judge Eldon E. Fallon. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JERMAINE JEFFERSON
CIVIL ACTION
VERSUS
NO. 15-240
WEEKS MARINE, INC., ET AL
SECTION "L"
ORDER & REASONS
Before the Court is a motion for summary judgment filed by Defendants, Weeks Marine,
Inc, (“Weeks”) and Atlantic Sounding Co., Inc. (“Atlantic”), seeking dismissal of Plaintiff’s
claims on the ground that Plaintiff does not qualify as a seaman under the Jones Act. Having
reviewed the parties’ briefs and the applicable law, the Court now issues this Order & Reasons.
I.
BACKGROUND
This case arises out of injuries allegedly sustained by Jermaine Jefferson (“Plaintiff”) on
December 14, 2014, while he was employed by Atlantic, a wholly-owned subsidiary of Weeks
aboard the barge Weeks No. 163, a vessel owned by the Defendant Weeks. (R. Doc. 1 at 2).
Plaintiff was hired by Atlantic, and placed in the position of deckhand on the dredge
BORINQUEN. (R. Doc. 29-2). Plaintiff commenced employment on the dredge BORINQUEN
as a deckhand on August 31, 2009. (R. Doc 29-3 at 29:24-30:17). Plaintiff worked on the
BORINQUEN for three months. Id. at 32:14-16. Plaintiff was then assigned to Week’s Houma
yard. Id. at 32:17-23.
Plaintiff transferred to Weeks’ Houma yard on December 21, 2009. (R. Doc. 29-5). After
being assigned to Weeks’ Houma yard on December 3, 2009, Plaintiff was never assigned to a
vessel, whether as a member of its crew or otherwise. (R. Doc. 29-7). According to Plaintiff’s
payroll documents, Plaintiff spent 82 days on the dredge BORINQUEN in 2009, and 1,268 days
in Weeks’ Houma yard between 2009 and 2014.
Following his transfer from the BORINQUEN, Plaintiff recalled two occasions during
which he reported to work at a location other than Week’s Houma yard: (1) three weeks working
on a barge fixing pipes (R. Doc. 29-3 at 37:2-41:23) and (2) two weeks in Florida moving pipes
because of the oil spill. Id. at 42:12-43:8.
When Plaintiff worked out of Weeks’ Houma yard, he would work on land or in a boat.
Id. at 44:15-45:12. There were days when Plaintiff would stay on land and work in Weeks’
Houma yard for the whole twelve hour work day. Id. at 46:18-47:7. Plaintiff estimated that, in
2014, he worked 30% of the time somewhere other than on land while assigned to Weeks’
Houma yard. Id. at 47:21-48:4. 1 This 30% estimate includes time he spent working on barges
and dredges that were moored at the time Plaintiff worked on them. Id. at 50:18-51:11.
On the date of the accident, Plaintiff was part of a crew assigned to load various items of
scrap mental onto the Weeks No. 163 at Weeks’ Houma yard. Plaintiff was instructed by his
supervisor to board the Weeks No. 163 and unhook items as they were placed aboard the barge
by a crane. A considerable amount of material had already been loaded on the barge before
Plaintiff went aboard. As Plaintiff was attempting to make his way across the cluttered deck of
the barge to unhook the approaching load, a large metal beam placed on a stack of pipe shifted
and struck Plaintiff in the leg. In his Complaint, Plaintiff asserted that at the time of the accident
he was performing work of a maritime nature such that he is entitled to the benefit of laws
providing protection to seaman, including the Jones Act and the General Maritime Laws of
Unseaworthiness and Maintenance and Cure.
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Plaintiff cannot provide an estimate for the amount of time he worked on land versus water for the years
2010, 2011, 2012, and 2013. Id. at 64:2-6; 67:19-68:7.
2
Defendants assert that Plaintiff does not qualify for seaman status, and thus cannot
maintain his three pending causes of action. Thus, Defendants now move for summary judgment,
denying seaman status.
II.
APPLICABLE LAW
a. Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir.1994). When assessing whether a dispute as to any material fact exists, the Court
considers “all of the evidence in the record but refrains from making credibility determinations
or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir.2008).
Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of
“informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 322. When the moving party has met its Rule 56(c) burden, “[t]he non-movant
cannot avoid summary judgment ... by merely making ‘conclusory allegations' or
‘unsubstantiated assertions.’” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir.2002) (quoting Little, 37 F.3d at 1075). “The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253
(1986). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot
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defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37
F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a
verdict for the nonmoving party.” Delta, 530 F.3d at 399.
b. Standard for Establishing Seaman Status
The Jones Act provides that “[a] seaman injured in the course of employment ... may
elect to bring a civil action at law, with the right of trial by jury, against the employer.” 46
U.S.C. § 30104. The Jones Act does not define the term “seaman,” therefore, courts have been
left to determine exactly which maritime workers are entitled to the special protections that the
Jones Act provides. See Chandris v. Latsis, 515 U.S. 347, 354 (1995). The Supreme Court has
determined that seaman status requires: (1) that the employee's duties contribute to the function
of a vessel in navigation (or identifiable group of vessels) or to the accomplishment of its
mission and (2) that the connection be substantial in terms of both its nature and duration. See
Chandris, 515 U.S. at 368. The parties here do not dispute that Plaintiff’s duties contributed to
the function of a vessel in navigation. The parties, however, disagree about the second prong of
that test.
The “substantial connection” inquiry includes a temporal element. Chandris, 515 U.S. at
371. In Chandris, the Supreme Court adopted the Fifth Circuit's “rule of thumb”: “[a] worker
who spends less than about 30 percent of his time in the service of a vessel in navigation should
not qualify as a seaman under the Jones Act.” Id. The Court warned, however, that this figure is a
“guideline” and that “departure from it will certainly be justified in appropriate cases.” Id. The
Court must still examine the “total circumstances of an individual's employment” to determine
“whether the worker in question is a member of the vessel's crew or simply a land-based
employee who happens to be working on the vessel at a given time.” Id. at 369.
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III.
ANALYSIS
In the present case, Plaintiff had two distinct assignments while employed by Atlantic:
(1) deckhand on the dredge BORIQUEN from August 31, 2009 to December 21, 2009; and (2)
deckhand 2 at the Weeks’ Houma yard from December 2009 through the date of his injury.
Plaintiff contends that the undisputed testimony provided by him in his deposition testimony
reveals that during calendar 2014 his work assignment changed in that he was newly engaged in
building “pipe rafts.” (R. Doc. 32 at 5).
When a maritime worker’s basic assignment changes, his seaman status may change as
well. Chandris, 515 U.S. at 372. The Supreme Court spoke of examples such as an office
worker being reassigned to a vessel in a classic seaman’s job, or a worker transferred to a desk
job in the company’s office. Id. If an employee receives a new work assignment in which his
essential duties are changed, he is entitled to have the assignment of his vessel-related work
made on the basis of his activities in his new position. Id. It is undisputed that Plaintiff’s work
assignment changed significantly in 2009 when he was transferred from working as a deckhand
on the dredge BORINQUEN to work in the Houma yard. Additionally, it is the Plaintiff’s
position that he had a second significant change of assignments in 2014 when he was required to
participate in the “pipe raft” project. Thus, the question before the Court is what period of time
should be examined when determining whether the temporal element required for seaman status
has been met: the entire period of time when he assigned to the Houma yard or calendar year
2014.
2
While Plaintiff’s “Employment Status Change Authorizations” reference the position of deckhand in
regards to his transfer to Weeks’ Houma yard, this title has no bearing on his work duties when he was assigned to
Weeks’ Houma yard. (R. Doc. 29-7).
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In support of his argument that only 2014 should be considered, Plaintiff cites a Fifth
Circuit decision, which approved the use of a one-year time period for analysis of a seaman’s
substantial connection to a vessel or vessels. In Mudrick v. Cross Equipment Ltd., 250 F.App'x
54, 58-59 (5th Cir. 2007), the Fifth Circuit noted:
To establish this substantial connection, Cross offered the mediation
position statements of the Decedent's wife, his estate, and CISPRI
conceding that the Decedent was a Jones Act seaman. Cross also
submitted the Decedent's job description, and his hand-written time sheets
for the year leading up to his accident. With the time sheets, Cross
submitted a memorandum from a CISPRI manager explaining that the
Decedent's supervisor had reviewed the time sheets and, with special
knowledge of the Decedent's assignments and the hours necessary to
complete them, determined that the Decedent spent thirty-two percent of
his time performing marine work aboard CISPRI vessels in navigation.
This calculation is supported by the raw time and task data provided by
the Decedent.
Id. However, Plaintiff’s reliance on Mudrick is misplaced.
The defendants in Mudrick argued that one year’s worth of time sheets was insufficient to
fulfill the requirement that the court determine seaman status based on the maritime worker’s
“entire employment history,” citing Barrett v. Chevron, U.S.A., Inc. 781 F.2d 1067, 1075 (5th
Cir. 1986)(en banc). Id. at n.2. In response to this argument, the court distinguished Barrett:
Unlike the plaintiff in Barrett who tried to establish seaman status based
on a snapshot of eight days out of one year of employment, id. at 1074–75,
Cross proffered time sheets for one year of the Decedent's twenty-threemonth employment history as an OST working exclusively for CISPRI
with CISPRI equipment and on CISPRI vessels. As opposed to eight days
out of a year's employment, one year's time sheets are sufficient to satisfy
the flexible requirement that we examine the Decedent's entire
employment history to determine his status as a Jones Act seaman.
Mudrick, 250 F.App’x at n. 2. In the instant matter, the issue is not whether one-year’s worth of
work history is enough; rather, the issue is whether the Plaintiff’s work building pipe rafts in
2014 constitutes a significant change in his employment assignment. The standard (unless there
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has been a significant change in employment assignment) is the “entire employment history.” In
Mudrick, it was undisputed that the decedent has been employed in the same assignment for his
entire employment.
Here, the Court is not persuaded that Plaintiff’s basic assignment changed—so as to
affect his seaman status—when he began work building pipe rafts. Rather, his work building
pipe rafts was merely another task of his employment at Weeks’ Houma yard. Unlike in 2009
when Plaintiff transferred from the dredge to the yard, in 2014, Plaintiff was neither assigned a
new work location nor did he receive an “employment status change authorization.”
Because the Court finds that Plaintiff did not have a significant change of assignments in
2014, the Court applies the 30 percent temporal analysis articulated in Chandris to the entire five
year period when he was assigned to Weeks’ Houma yard. Upon doing so, the evidence reveals
that Plaintiff spent 8.44% of his time in service of a vessel or a vessel while working at Weeks’
Houma yard. This includes: (1) the three weeks he spent working on a barge fixing pipes; (2) the
two weeks he spent in Florida moving pipes because of the oil spill; and (3) his estimate that he
spent 30% of his time in 2014 working in service of a vessel. Thus, Plaintiff cannot prove a
connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in
terms of its duration. Accordingly, Plaintiff fails to satisfy the second prong of Chandris’
seaman-status test and the Court finds, as a matter of law, that the Plaintiff was not a Jones Act
seaman.
Additionally, the present motion seeks a Judgment from the Court holding that any
putative claims Plaintiff might assert under 33 U.S.C. § 905(b) are baseless in light of Scindia
Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). The Plaintiff concedes that should
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the Court find him not entitled to bring claims as a seaman, then his potential claims under
905(b) of the Longshore Act are also not viable.
IV.
CONCLUSION
Considering the foregoing, IT IS ORDERED that the Defendants’ Motion for Summary
Judgment (R. Doc. 29) is GRANTED and Plaintiff is not entitled to assert any of his currently
pleaded Jones Act negligence, unseaworthiness, and maintenance and cure causes of action.
Additionally, while not pleaded, Plaintiff cannot present any evidence that creates a
genuine issue of material fact that supports the finding that Defendant Weeks Marine, Inc.
breached any of the three duties it owed to Plaintiff at the time of his accident.
New Orleans, Louisiana this 3rd day of February, 2016.
United States District Judge
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