Bonin v. Bilfinger Salamis, Inc.

Filing 106

OPINION as set forth in document. Signed by Judge Ivan L.R. Lemelle on 2/6/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARRETT BONIN

CIVIL ACTION

VERSUS

NO. 16-1092

BILFINGER SALAMIS, INC.

SECTION “B”(3)
OPINION

Before the Court is a “Notice of Voluntary Dismissal without
Prejudice
seeking

by
to

Third
dismiss

Party

Plaintiff

Bilfinger’s

Bilfinger

claims

Salamis,

against

Inc.,”

Third-Party

Defendants Murphy Exploration & Production Co., USA (“Murphy”) and
Corrpro Companies, Inc. (“Corrpro”). Rec. Doc. 96. Murphy and
Corrpro both oppose the dismissal. Rec. Docs. 97, 99.
On February 5, 2016, Plaintiff Barrett Bonin (“Plaintiff”)
filed suit against Defendant Bilfinger after he tripped over a
rope that Bilfinger employees allegedly left in a walkway. Rec.
Doc. 1. Plaintiff was employed by Corrpro and working on a platform
owned by Murphy. See id. at ¶ 5. On July 27, 2016, Bilfinger filed
a

third-party

complaint

against

Murphy,

alleging

that

Murphy

agreed to indemnify Bilfinger for any and all liability or damages
arising out of any injury to Murphy employees or contractors. Rec.
Doc. 13 at ¶ 6. Similarly, on August 9, 2016, Bilfinger filed a
third-party complaint against Corrpro, alleging that Corrpro and
Murphy

entered

into

an

agreement

whereby

Corrpro

agreed

to

indemnify Murphy and its contractors for any and all liability or

damages

arising

out

of

any

injury

to

Murphy

employees

or

contractors. Rec. Doc. 19 at ¶ 7.
After

Murphy

waived

service

(Rec.

Doc.

21)

and

Corrpro

returned an executed summons (Rec. Doc. 22), but before either had
answered or otherwise filed responsive pleadings, Bilfinger moved
to sever the third-party indemnity claims against both Murphy and
Corrpro (Rec. Doc. 23). On October 18, 2016, we granted the motion
to sever. Rec. Doc. 26.
Mere days before trial was scheduled to begin (and just before
Bilfinger settled with Plaintiff), Bilfinger filed a “Notice of
Voluntary Dismissal” seeking to dismiss its pending claims against
Murphy and Corrpro. Rec. Doc. 96. Murphy and Corrpro oppose any
such dismissal. Rec. Docs. 97, 99.1
Bilfinger claims that it is entitled, as a matter of law, to
dismiss its claims against Murphy and Corrpro under Federal Rule
of Civil Procedure 41(a)(1) and (c). Rule 41(a)(1)(A) provides
that “the plaintiff may dismiss an action without a court order by
filing: (i) a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment . . . .” (Emphasis

After filing this opposition, Corrpro and Murphy filed a “Complaint for
Declaratory Judgment” in the Eastern District of Louisiana, seeking a
declaration that, “pursuant to the Louisiana Oilfield Indemnity Act, the Master
Service Agreements and the October 4, 2016 Compromise Agreement . . . Corrpro
and/or Murphy are absolved of any obligation to reimburse defense costs incurred
by Bilfinger” in the present action. See No. 17-696, Rec. Doc. 1. This case was
subsequently transferred to this Section. Rec. Doc. 3. Though related, the
arguments made in this complaint will not be considered here, because the
complaint does not seek a declaration that Corrpro and Murphy cannot be
voluntarily dismissed from the present action.
1

2

added). Rule 41(c), which specifically applies to counterclaims,
crossclaims, and third-party claims, provides that “[a] claimant’s
voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:

(1)

before a responsive pleading is served; or (2) if there is no
responsive pleading, before evidence is introduced at a hearing or
trial.”
Corrpro argues that “Rule 41(a) governs dismissals of entire
actions, not of individual claims. Bilfinger, as third party
plaintiff, is not in a position to dispose of the entire action.”
Rec.

Doc.

97

at

2

(emphasis

in

original).

Corrpro

clearly

misunderstands the rule. Rule 41(c) specifically provides for
dismissal

of

third-party

claims

under

Rule

41(a)(1)(A)(i);

further, Bilfinger is not seeking to only dismiss some of its
claims against Corrpro and Murphy, but the entirety of the thirdparty complaints.
In

Conseco

Life

Insurance

Company

v.

Judson,

Conseco

initiated an interpleader action naming Hall Davis and Nancy Davis
Judson as defendants. 214 F. App’x 446, 447 (5th Cir. 2007)
(unpublished). Davis and Judson were in the process of dissolving
their company in state court. Id. So, Judson filed third-party
claims in the federal interpleader action against several people
or

entities

participating

in

the

ongoing

dissolution

of

the

company. Id. The state court then enjoined Judson from pursuing in
federal court any claims related to the dissolution.
3

Id. In

response to this injunction, Judson filed an “Ex Parte Notice of
Dismissal,” withdrawing all of her third-party claims, before any
of the third parties had filed responsive pleadings. Id. The
district court treated the notice as a motion and set it for
hearing. Id. Judson moved to strike the notice from the docket,
arguing that “because (1) no adverse party had responded to her
claims, and (2) she had not previously dismissed any action based
on or including the same claims in any court, Rule 41 . . . gave
her the unrestricted right to dismiss her claims without leave of
the court.” Id. at 447-48. Nonetheless, the district court denied
Judson’s request to dismiss the third-party claims. Id. at 448. On
appeal, the Fifth Circuit found that
Judson’s interpretation of FRCP 41 is correct. “[A]n
action may be dismissed by the plaintiff without order
of the court [] by filing a notice of dismissal at any
time before service by the adverse party of an answer or
of a motion for summary judgment.” “The provisions of
this rule apply to the dismissal of any counterclaim,
cross-claim, or third-party claim.” In this case, it is
undisputed that no adverse party had responded to
Judson’s claims.
The district court erred in treating Judson’s Notice of
Dismissal as a motion to dismiss and in denying it “as
moot.” We, therefore, reverse the district court and
remand this action to the district court with
instructions to enter judgment recognizing that the
claims specified in Judson’s notice were properly
dismissed at the time it was filed.
Id. (internal citations omitted).
The instant case is indistinguishable. Bilfinger has filed a
“Notice of Voluntary Dismissal” and it is undisputed that neither
4

Murphy

nor

Corrpro

filed

a

responsive

pleading

or

otherwise

appeared in this case before filing their memoranda opposing the
dismissal. They claim that
Once the matter was severed, Corrpro understood that it,
Murphy and Bilfinger would take no further action until
the underlying tort dispute was fully adjudicated by
this Honorable Court. This understanding is consistent
with the procedural history of the case, specifically
the fact that no docket call or control order has been
issued by this Court to date. Further, and again
consistent with the agreement reached by Corrpro, Murphy
and Bilfinger, Bilfinger never requested that a response
to its Third Party Complaint be filed by Corrpro. In
fact, as part of the agreement, Corrpro and Murphy
understood that no answer to Bilfinger’s Third Party
Complaint would be filed so as to avoid impacting
Bilfinger’s defense of the plaintiff’s claims.
Rec. Doc. 97 at 3. Despite any agreement that the parties may have
entered into, Rule 41 and the Fifth Circuit’s interpretation of
Rule

41

are

clear.

Murphy

and

Corrpro

failed

to

respond

to

Bilfinger’s third-party complaint, so Bilfinger has a right to
dismiss them, without court order, by simply filing a notice of
dismissal. See also Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297
(5th Cir. 1963) (“Rule 41(a)(1) is the shortest and surest route
to abort a complaint when it is applicable. So long as plaintiff
has not been served with his adversary’s answer or motion for
summary judgment he need do no more than file a notice of dismissal
with the Clerk. That document itself closes the file. There is
nothing the defendant can do to fan the ashes of that action into
life and the court has no role to play. This is a matter of right

5

running

to

the

circumscribed

plaintiff

by

and

adversary

may

or

not

court.

be

There

extinguished
is

not

or

even

a

perfunctory order of court closing the file.”).
As we suspected when Bilfinger moved to sever the third-party
claims, Corrpro now confirms that Bilfinger, Corrpro, and Murphy
“entered into an agreement regarding amicable resolution of the
indemnity disputes amongst them, as well as a Joint Defense
Agreement.” Rec. Doc. 97 at 3. The agreement(s) has (have) not
been

produced

Bilfinger’s

in

whole,

attempt

to

but

Corrpro

dismiss

them

and
is

Murphy

in

claim

violation

of

that
the

agreement(s). Specifically, Corrpro claims that the clause in the
agreement providing that “in the event of a judicial finding of no
fault or liability on the part of Bilfinger Salamis in the pending
litigation . . . ,” “runs counter” to Bilfinger’s attempts to
dismiss, “forecloses the possibility of a judicial determination
in this action, and should effectively foreclose any recovery of
defense costs by Bilfinger.” Rec. Doc. 97 at 4.
The instant dispute is more significant than it may appear.
In its opposition, Corrpro pointed the Court to Meloy v. Conoco,
Incorporated, 817 F.2d 275 (5th Cir. 1987). In that case, upon
certified questions from the Fifth Circuit, the Louisiana Supreme
Court stated that Louisiana Revised Statute § 9:2780 (the Louisiana
Oilfield Indemnity Act of 1981, “LOIA”) “nullifies completely any
provision

in

any

agreement

that
6

requires

defense

and/or

indemnification where there is any negligence or fault on the part
of the indemnitee.” Id. at 279. Further, the Louisiana Supreme
Court stated that “whether an oil company (indemnitee) is free
from fault and thus outside the scope of the Act can only be
determined after trial on the merits.” Id. at 839 (emphasis added).
The statute, in pertinent part, provides:
Any provision contained in, collateral to, or affecting
an agreement pertaining to a well for oil, gas, or water,
or drilling for minerals which occur in a solid, liquid,
gaseous, or other state, is void and unenforceable to
the extent that it purports to or does provide for
defense or indemnity, or either, to the indemnitee
against loss or liability for damages arising out of or
resulting from death or bodily injury to persons, which
is caused by or results from the sole or concurrent
negligence
or
fault
(strict
liability)
of
the
indemnitee, or an agent, employee, or an independent
contractor
who
is
directly
responsible
to
the
indemnitee.
LA. REV. STAT. ANN. § 9:2780(B).
A well-researched opinion from Judge Doherty in the Western
District of Louisiana helps to explain the basis for the instant
dispute over Bilfinger’s notice of dismissal. The Court in Hefren
v. Murphy Exploration & Production Company USA explained that the
Fifth Circuit previously held in Tanksley v. Gulf Oil Corporation
that “an oil company that settled with the plaintiff was barred by
the LOIA from pursing the contractor for indemnity because the oil
company, by choosing to settle with the plaintiff, voluntarily
foreclosed determination of its negligence or fault.” 34 F. Supp.
3d 651, 657-60 (W.D. La. 2014), aff’d, 647 F. App’x 301 (5th Cir.
7

2016) (emphasis added) (citing Tanksley v. Gulf Oil Corp., 848
F.2d 515 (5th Cir. 1988)).
The Fifth Circuit in Tanksley, in reaching this conclusion,
distinguished an earlier Fifth Circuit case. See Melancon v. Amoco
Prod. Co., Inc., 834 F.2d 1238 (5th Cir.), amended on reh’g in
part sub nom., 841 F.2d 572 (5th Cir. 1988). In Melancon, the
Longshore and Harbor Workers’ Act proscribed any judicial inquiry
into fault or negligence, such that “there could never be a ‘trial
on the merits’ to determine whether [the company] was ‘free from
fault and thus outside the scope of the [LOIA].’” Hefren, 34 F.
Supp. 3d at 658 (citing Melancon, 834 F.2d at 1248) (quoting Meloy,
504, So. 2d at 839). In Tanksley, on the other hand,
A trial on the merits to determine . . . fault or
negligence was not only legally possible, it was
imminent and was foreclosed only by the compromise
settlement . . . The parties undoubtedly reached this
settlement after a careful weighing of all relevant
factors and risks. For reasons it deemed sufficient,
Chevron opted to forego a trial at which it would either
have been found liable or exonerated. The appeal of the
certainty of settlement overrode the contending appeal
of the uncertainty of trial. As a consequence, because
of Chevron’s choice, there will be no trial on the merits
of Tanksley’s claims to determine whether Chevron was
“free from fault and thus outside the scope of the Act.”
Absent such a finding, or a legal bar preventing the
finding, as in Melancon, we must conclude that the [LOIA]
nullifies, in this instance, the indemnity agreement
between Chevron and SEE.
848 F.2d at 517-18; see also BJ Serv. Co., USA v. Thompson, No.
08-510, 2010 WL 2024725, at *8-9 (W.D. La. May 14, 2010) (holding
that an indemnitee who settled without a determination of fault
8

was

precluded

by

the

LOIA

from

seeking

indemnity

from

the

indemnitor).
In

American

Home

Assurance

Company

v.

Chevron,

USA,

Incorporated, the Fifth Circuit recognized that two Louisiana
appellate courts disagreed with the outcome in Tanksley. 400 F.3d
265, 270 n.15 (5th Cir. 2005) (citing Ridings v. Danos & Curole
Marine Contractors, Inc., 97-2710, p. 7 (La. App. 4 Cir. 8/12/98);
723 So. 2d 979, 983 n.2 (“Whether the indemnitee was negligent or
at fault (strict liability) in causing injury to the original
plaintiff can be determined at trial between the indemnitee and
the indemnitor even after the indemnitee has settled with the
original plaintiff”); Phillips Petroleum Co. v. Liberty Servs.,
95-124, p. 8 (La. App. 3 Cir. 5/31/95); 657 So. 2d 405, 409, writ
denied, 95-1650 (La. 10/27/95); 661 So. 2d 1354 (“we do not find
that La. R.S. 9:2780(A) prevents one seeking indemnification from
proving freedom from ‘negligence or fault (strict liability)’ in
an action separate from the original litigation raising the issue.
Nor do we conclude that dismissal of the plaintiff’s tort action,
for whatever reason, precludes continuation of the litigation by
the indemnitee and indemnitor to determine the presence or absence
of negligence or fault under La. R.S. 9:2780(A)”). In dicta, the
Louisiana Supreme Court acknowledged the Tanksley decision, but
found that it was “not necessary for [it] to either adopt or reject

9

the Tanksley conclusion.” Fontenot v. Chevron USA, Inc., 95-1425,
p. 9 (La. 7/2/96); 676 So. 2d 557, 564 n.7.
Without deciding the issue, which is not now before us, it
appears that if Bilfinger proceeds with his claims in federal
court,

Tanksley

will

govern

and

Bilfinger’s

settlement

with

Plaintiff will bar any recovery from Murphy and Corrpro. However,
if Bilfinger’s claims are dismissed from federal court, it could,
presumably, pursue those claims in a state trial court bound to
follow either the Louisiana Fourth’s precedent in Ridings or the
Louisiana Third’s precedent in Phillips. Thus, it is not surprising
that the parties are litigating a simple voluntary dismissal.
Nonetheless, despite any agreement that the parties may have
to the contrary, and despite any truth to the assertion that
Bilfinger is now forum shopping, the Federal Rules permit Bilfinger
to dismiss his claims against Corrpro and Murphy without a court
order. Therefore, the third-party complaints by Bilfinger Salamis,
Inc. against Corrpro Companies, Inc. and Murphy Exploration &
Production Co., USA were dismissed without prejudice on January
25, 2017, the date Bilfinger filed a notice of dismissal with this
Court. See Rec. Doc. 96.
New Orleans, Louisiana, this 6th day of February, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

10