Coastal Drilling Company LLC v. Creel

Filing 49

ORDER AND REASONS denying 39 Motion to Dismiss Case. Signed by Judge Sarah S. Vance on 6/1/2017. (Reference: all cases)(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COASTAL DRILLING COMPANY, LLC
VERSUS

CIVIL ACTION
NO. 17-188 C/W 17-2207

BRANDON CREEL

SECTION “R” (3)

ORDER AND REASONS
Before the Court is plaintiff 1 Brandon Creel’s motion to dismiss his
Jones Act complaint pursuant to Federal Rule of Civil Procedure 41(a)(2)
without prejudice.2 For the following reasons, the Court denies plaintiff’s
motion.
I.

BACKGROUND
Coastal Drilling Company employed Creel as a floorhand on Rig 20, an

inland waters drill barge operating in the navigable waters of Louisiana. 3 On
July 17, 2016, Creel reported that he was involved in an accident on the drill
floor, and alleged that he sustained injuries to his neck, right shoulder,

Though this case is captioned Coastal Drilling Company, LLC v.
Brandon Creel, this matter was consolidated with docket number 2:17-cv2207, in which Creel sued Coastal Drilling Company. R. Doc. 35.
2
R. Doc. 39.
3
R. Doc. 1 at 2 ¶ 5.
1

multiple sections of his spine, and his hips.4 On July 21, 2016, Coastal
received a notice of representation from Creel’s attorney in regard to the
assertion of a Longshore and Harbor Workers Compensation Act claim. 5 The
following week, Creel’s attorney requested that Coastal authorize follow-up
care with a physician of Creel’s choice, which Coastal approved. 6
When Creel did not return to work, Coastal began maintenance
payments to Creel. But Coastal also began surveilling Creel to determine if
his activities were consistent with his complained-of injuries. 7 According to
Coastal, Creel was observed and documented engaging in physical activity
inconsistent with his alleged injuries. 8 For example, on October 20, 2016,
Creel’s doctor recommended arthroscopic surgery on Creel’s right shoulder
because of its alleged lack of response to conservative treatment, but Coastal
alleges that it documented Creel lifting a spare tire out of a car with his right
arm within hours of the doctor’s recommendation. 9
Creel sought authorization from Coastal for the right shoulder
surgery.10 Based on its surveillance, Coastal scheduled an independent

4
5
6
7
8
9
10

Id. ¶ 6.
Id. at 3 ¶ 9.
Id. ¶ 10.
Id. at 4 ¶ 13.
Id. ¶ 14.
R. Doc. 9 at 2.
R. Doc. 1 at 5 ¶ 17.
2

medical evaluation to take place on November 22, 2016. During the IME,
Creel allegedly made statements inconsistent with the physical activity
observed through surveillance.11 The IME report stated that there was no
evidence that Creel required right shoulder surgery, and after reviewing the
surveillance footage, the IME physician stated that he would not recommend
surgery.12
Based on the IME report and recommendation, Coastal declined to
authorize the surgery. Coastal then filed an action seeking declaratory relief
that Creel is not entitled to maintenance and cure, damages, punitive
damages, or attorney fees, and that Creel is obligated to reimburse Coastal
for the maintenance already paid to Creel. 13 Coastal also filed a motion to
compel a mental examination of Creel. 14
Creel moved to dismiss Coastal’s action, arguing that as a Jones Act
seaman he has the right to have a jury decide his maintenance and cure
claim, and that granting Coastal’s declaratory judgment would deprive Creel
of his right to a trial. 15 Additionally, on March 16, 2017, Creel filed a Jones

Id. ¶ 17.
Id. at 5-6 ¶¶ 17, 18. The IME physician also recommended that
Creel undergo a neuropsychological evaluation to consider a diagnosis of
somatoform disorder or possible malingering. R. Doc. 9-4 at 2.
13
Id. at 8 ¶ 24.
14
R. Doc. 10.
15
R. Doc. 7-1 at 3-4.
3
11

12

Act complaint in this Court against Coastal and Peak Energy, LLC, seeking
maintenance and cure, damages, punitive damages, and attorney’s fees. 16
Relying in part on Creel’s filing of a Jones Act complaint in this Court,
the Court granted Creel’s motion to dismiss Coastal’s declaratory judgment
action. 17 On the next day, April 5, 2017, Creel filed this motion to voluntarily
dismiss his Jones Act complaint without prejudice.18

Coastal opposes

plaintiff’s motion,19 and has reasserted its motion to compel a mental
examination of Creel. 20 Additionally, one day after filing his motion to
dismiss, Creel filed an identical Jones Act suit against Coastal and Peak
Energy in the 15th Judicial District Court for the Parish of Vermilion,
Louisiana.21
On May 12, 2017, Magistrate Judge Knowles granted Coastal’s motion
to compel a mental examination and ordered Creel to undergo a
psychological evaluation. 22

R. Doc. 1 in 2:17-cv-2207. That action has been consolidated with
this case. R. Doc. 35.
17
R. Doc. 36 at 6-9.
18
R. Doc. 39.
19
R. Doc. 41.
20
R. Doc. 40.
21
R. Doc. 41-1 at 2.
22
R. Doc. 46.
4
16

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 41(a)(2) provides: “Except as provided

in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by
court order, on terms that the court considers proper.” A decision as to
whether to grant a dismissal under Federal Rule of Civil Procedure 41(a)(2)
lies within the sound discretion of the district court. Davis v. Huskipower
Outdoor Equipment, 936 F.2d 193, 199 (5th Cir. 1991). The Fifth Circuit has
explained that, “as a general rule, motions for voluntary dismissal should be
freely granted unless the nonmoving party will suffer some plain legal
prejudice other than the mere prospect of a second lawsuit.” Elbaor v.
Triparth Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002). In assessing the
prejudice to the non-moving party, courts examine the stage of the litigation
at which the motion is made. See Hartford Accident & Indem. Co. v. Costa
Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990).

III. DISCUSSION
At the outset, the Court notes this case is in its early stages and no
scheduling order or trial date has been set. Thus, this case has not proceeded
to an extent that warrants the denial of Creel’s motion on that basis alone.
See Brown v. Schlumberger Tech. Corp., No. 01-3755, 2002 WL 550986, at
5

*2 (E.D. La. Apr. 11, 2002). But this is not the only basis to deny a Rule
41(a)(2) motion.
Coastal argues that Creel’s actions in filing this suit only to seek to
dismiss it after the Court dismissed Coastal’s declaratory action are a clear
attempt to avoid an adverse decision by this Court ordering Creel to submit
to a psychological evaluation.23 Though Coastal’s opposition to dismissal
was filed before Magistrate Judge Knowles resolved Coastal’s motion to
compel, Coastal correctly predicted that Magistrate Judge Knowles would
order Creel to submit to a psychological examination. An order granting
Creel’s motion to dismiss would allow Creel to avoid compliance with that
order.
The Fifth Circuit has explained that granting a voluntary dismissal
after an adverse trial court ruling can inflict legal prejudice on the defendant.
See, e.g., Manshack v. Sw. Elec. Power Co., 915 F.2d 172, 174 (5th Cir. 1990).
Although adverse rulings that rise to a level sufficient to warrant denying a
voluntary motion to dismiss typically concern the underlying merits of the
dispute, see id., Magistrate Judge Knowles’ order will have a substantial
impact on the underlying merits of this dispute. Creel seeks authorization
for shoulder surgery, a surgery that Coastal may ultimately have to pay for as

23

Id. at 7.
6

part of its maintenance and cure obligations. The psychological examination
to which Creel must now submit may determine that Creel is malingering
and does not require surgery, a finding that may be dispositive of Creel’s
claims for medical expenses.
It is true that Creel filed his motion to dismiss before Coastal reasserted
its motion to compel, and certainly before Magistrate Judge Knowles ruled
on the motion. 24 But Coastal filed its first motion to compel a mental
examination around six weeks before Creel’s motion. 25 By the time Creel
filed his motion to dismiss on April 5, 2017, the parties had already
completed two rounds of briefing on Coastal’s motion to compel and
participated in an oral hearing before Judge Knowles. 26 Thus, while Creel’s
motion was filed before the adverse decision was actually handed down, it
was evident that Creel could likely face an adverse decision. See Davis, 936
F.2d at 199 (affirming denial of Rule 41(a)(2) motion when motion was filed
after Magistrate Judge made recommendation adverse to plaintiff but before
district court ruled on the recommendation); cf. Robles v. Atlantic Sounding
Co., Inc., 77 F. App’x 274, 275-76 (5th Cir. 2003) (affirming voluntary

24
25
26

See R. Docs. 39, 40, 46.
R. Doc. 10.
See R. Docs. 27, 28, 29.
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dismissal because plaintiff-appellee did not face likely adverse ruling when
he filed his Rule 41(a)(2) motion).
In addition, Creel’s actions in this case are indicative of abuse. For
starters, it is suspicious that Creel filed his Jones Act claim in this Court, and
then one day after the Court relied on that lawsuit to dismiss Coastal’s
declaratory action, sought to dismiss his own suit. Creel has not given a
reason for his actions, but it appears likely that they were designed to at least
delay, if not avoid, a decision on Coastal’s motion to compel. Further, as
Magistrate Judge Knowles pointed out in his order, Creel has already
obtained “surreptitious medical treatment with no notice to Coastal,” raising
a “red flag” in Magistrate Judge Knowles’s opinion.27 Creel’s gamesmanship
is inconsistent with the purpose of Rule 1 of the Federal Rules of Civil
Procedure—to use the rules to “secure the just, speedy, and inexpensive
determination of every action and proceeding.” See Elbaor, 279 F.3d at 317
(noting that Rule 41(a)(2) motions should not be granted, even if the
defendant suffers no prejudice, if there is “evidence of abuse by the movant”);
Manshack, 915 F.2d at 174 (“The courts must carefully monitor Rule 41(a)(2)
voluntary dismissals to insure that they do not engender abuse.”).
Accordingly, Creel’s conduct in this litigation favors denying his motion. See,

27

R. Doc. 46 at 6.
8

e.g., Anderson v. Donovan, No. 06-3298, 2010 WL 2464812, at *2 (E.D. La.
June 4, 2010) (relying in part on plaintiff’s conduct throughout litigation to
deny her Rule 41(a)(2) motion); George v. Prof’l Disbosables Int’l, Inc., No.
15- 3385, 2017 WL 1740395, at *3 (S.D.N.Y. May 2, 2017) (“[Plaintiff]’s
course of conduct . . . weighs against dismissal without prejudice [under Rule
41(a)(2)].”).
In sum, the Court finds that granting plaintiff’s motion would cause
Coastal to suffer legal prejudice in allowing Creel to avoid an adverse ruling,
and that Creel’s conduct in this case was abusive. Thus, Creel’s motion to
voluntarily dismiss his claims is denied.

IV.

CONCLUSION
For the foregoing reasons, plaintiff’s motion to dismiss is DENIED.

1st
New Orleans, Louisiana, this _____ day of June, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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