Comeaux v. Atos Origin IT Services, Inc., et al

Filing 44

ORDER: IT IS HEREBY ORDERED that Defendant Halliburton Energy Services, Inc. formerly d/b/a IMCO Services' 34 Renewed Motion to Dismiss Certain Claims Pursuant to Rule 12(b)(6) and/or 12(c) is GRANTED and any requests for non-pecuniary or puni tive damages against Halliburton Energy Services, Inc. formerly d/b/a IMCO Services, which are based on Decedent's alleged status as a Jones Act seaman, are DISMISSED WITH PREJUDICE. Signed by Chief Judge Nannette Jolivette Brown on 12/3/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LORI COMEAUX

CIVIL ACTION

VERSUS

CASE NO. 17-11273

ATOS ORIGIN IT SERVICES, INC., et al.

SECTION: “G”(3)

ORDER AND REASONS
Before the Court is Defendant Halliburton Energy Services, Inc. formerly d/b/a IMCO
Services’ (collectively, “HESI”) “Renewed Motion to Dismiss Certain Claims Pursuant to Rule
12(b)(6) and/or 12(c).”1 Having considered the motion, the memoranda in support and opposition,
the record, and the applicable law, the Court will grant the motion.
I. Background
On October 25, 2017, Plaintiff Lori Comeaux (“Plaintiff”) filed a Complaint in this Court
against Defendants Atos Origin It Services Inc. f/k/a Schlumbergersema Inc. f/k/a Schlumberger
Resource Management Services, Inc. (“Atos”);

2

Halliburton Energy Services, Inc. f/k/a

Halliburton Company; IMCO Services, a division of Halliburton Energy Services, Inc. f/k/a
Halliburton Company; and Offshore Service Vessels, L.L.C. f/k/a Edison Chouest Offshore, L.L.C
(“Offshore Service”).3 Plaintiff brings claims individually and on behalf of decedent, Melvin A.
Comeaux, Jr. (“Decedent”), for negligence under the Jones Act, unseaworthiness under general

1

Rec. Doc. 34.

On April 2, 2018, the Court granted Plaintiff’s motion to dismiss all claims against Atos without prejudice.
Rec. Doc. 27.
2

3

Rec. Doc. 1.

1

maritime law, and negligence under Louisiana law.4
The Complaint alleges that Decedent was employed by IMCO Services from 1979 through
1985 as a boat mate.5 According to the Complaint, IMCO Services was contracted by Atos to
move and dispose drilling mud.6 Plaintiff alleges that Decedent was exposed to benzene while
transporting the drilling mud.7 Plaintiff alleges was the benzene exposure caused Decedent to
contract leukemia, which ultimately resulted in his death on October 25, 2016.8
On December 27, 2017, HESI filed a Motion to Dismiss Certain Claims Pursuant to Rule
12(b)(6).9 Therein, HESI argued that Plaintiff’s request for damages related to Decedent’s alleged
future medical expenses failed as matter of law because those damages do not exist given
Decedent’s death.10 HESI also argued that Plaintiff’s request for non-pecuniary damages fail as a
matter of law because those damages are not recoverable by a seaman under the Jones Act or
general maritime law.11 Finally, HESI contends that Plaintiff’s request for punitive damages fail
because punitive damages are not recoverable under the Jones Act or general maritime law.12

4

Id.

5

Id. at 3.

6

Id.

7

Id. at 4.

8

Id. at 3.

9

Rec. Doc. 10.

10

Id. at 1.

11

Id.

12

Id. at 2.

2

On January 9, 2018, Plaintiff filed a memorandum in opposition to the motion to dismiss.13
In the memorandum, Plaintiff first asserted that she is not pursuing future medical expenses.14
Second, Plaintiff contended that heirs of a deceased seaman are entitled to recovery non-pecuniary
and punitive damages.15 Moreover, Plaintiff argued that non-pecuniary and punitive damages are
available because “decedent was not a Jones Act employee of all defendants at all times of his
exposure to toxic substances that resulted in his death, nor was he a Jones Act employee of HESI
during the entirety of his exposure attributable to their conduct.”16
On January 19, 2018, with leave of Court, HESI filed a reply brief in further support of the
motion to dismiss.17 In the reply, HESI contended that seamen are not entitled to punitive damages
under Fifth Circuit law, and to the extent Plaintiff argued in the opposition that the decedent was
not a Jones Act seaman, there was no factual basis to support this allegation in the Complaint.18
On February 5, 2018, with leave of Court, Plaintiff filed a First Supplemental and Amended
Complaint.19 In the amended complaint, Plaintiff alleges “additionally and in the alternative, that
decedent’s work during the relevant time period was not constantly in the capacity as crewman
upon defendants’ vessels or in the service of those vessels.” 20 Therefore, Plaintiff makes an

13

Rec. Doc. 12 at 1.

14

Id.

15

Id. at 1–2.

16

Id. at 2.

17

Rec. Doc. 15.

18

Id.

19

Rec. Doc. 22.

20

Id. at 2.

3

alternative claim that decedent was not a Jones Act seamen at all relevant times.21
On April 4, 2018, the Court issued an Order denying as moot HESI’s Motion to Dismiss
Certain Claims Pursuant to Rule 12(b)(6).22 Because HESI argued that Fifth Circuit law precludes
non-pecuniary and punitive damages for seamen and Plaintiff amended the Complaint to allege an
alternative claim that Decedent was not a Jones Act seamen at all relevant times, the Court
concluded that it would be more efficient to consider any arguments regarding dismissal in a
motion tailored to the causes of action raised in the Amended Complaint.23
On April 23, 2018, HESI filed the instant motion to dismiss.24 On May 1, 2018, Plaintiff
filed an opposition to the motion to dismiss.25
II. Parties Arguments
A.

HESI’s Arguments in Support of the Motion to Dismiss
HESI moves the Court to dismiss Plaintiff’s requests for non-pecuniary damages and

punitive damages pursuant to Rule 12(b)(6) or Rule 12(c) of the Federal Rules of Civil Procedure.26
HESI asserts that any request for punitive or non-pecuniary damages based on Decedent’s alleged
status as a seaman are barred because in McBride v. Estis Well Service, LLC the Fifth Circuit ruled
that punitive and non-pecuniary damages are unavailable under the Jones Act or general maritime

21

Id.

22

Rec. Doc. 10.

23

Id.

24

Rec. Doc. 34.

25

Rec. Doc. 38.

26

Rec. Doc. 34 at 1.

4

law.27 HESI asserts that the Ninth Circuit’s contrary decision in Batterton v. Dutra Group has no
bearing on the biding effect of the Fifth Circuit’s decision in McBride. 28 Accordingly, HESI
asserts that any request against HESI for punitive or non-pecuniary damages, which are based on
Decedent’s alleged status as a Jones Act seaman, should be dismiss.29
B.

Plaintiff’s Arguments in Opposition to the Motion
In opposition, Plaintiff notes that she alleges multiple causes of action in the alternative,

and the existence of alternative claims and remedies are not mutually exclusive.30 Plaintiff asserts
that she has alleged that at times Decedent was a Jones Act seaman employed by HESI, while at
other times she alleges Decedent was not a Jones Act seaman.31 Accordingly, Plaintiff contends
that “[d]iscovery and determination of decedent’s status as a Jones Act Seaman during various
periods of his employment will further illuminate the issues at the heart of this matter and
potentially affect available remedies.”32
Furthermore, Plaintiff argues that regardless of the determination of Decedent’s status as a
Jones Act seaman, punitive damages are available as a matter of law.33 Plaintiff notes that the Fifth

27
Rec. Doc. 34-1 at 2 (citing 768 F.3d 382 (5th Cir. 2014)). HESI also adopts all arguments raised in its
first motion to dismiss. Id. at 1.
28

Id. (citing 880 F.3d 1089 (9th Cir. 2018)).

29

Id. at 3.

30
Rec. Doc. 38 at 2. Plaintiff also adopts the arguments made in the opposition and supplemental opposition
to HESI’s first motion to dismiss. Id. at 1.
31

Id. at 2.

32

Id.

33

Id.

5

Circuit’s en banc decision in McBride v. Estis Well Service, L.L.C. was sharply divided. 34
Moreover, Plaintiff contends that there is a circuit split between the Fifth and Ninth Circuits
regarding this issue.35 Plaintiff argues that the Ninth Circuit’s decision in Batterton and several
dissents to the Fifth Circuit’s decision in McBride “provide scholarly and carefully reasoned
opinions on the availability of punitive damages and the existence of this remedy since 1818.”36
For these reasons, Plaintiff asserts that she has sufficiently alleged that she is entitled to punitive
damages, and HESI’s motion to dismiss should be denied.37
III. Legal Standard
A.

Legal Standard Under Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”38 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.” 39 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”40 “Factual allegations must be enough to raise a right to relief above the
speculative level.”41 A claim is facially plausible when the plaintiff has pleaded facts that allow

34

Id. (citing 768 F.3d 382 (5th Cir. 2014)).

35

Id. (citing Batterton v. Dutra Grp., 880 F.3d 1089 (9th Cir. 2018)).

36

Id.

37

Id. at 3.

38

Fed. R. Civ. P. 12(b)(6).

39

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

40

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

41

Twombly, 550 U.S. at 556.

6

the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”42
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.43 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.44 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” 45
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.46 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action. 47 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.” 48 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims.49 If factual allegations are insufficient to raise a right to relief above
the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”
bar to relief, the claim must be dismissed.50

42

Id. at 570.

43
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
44

Iqbal, 556 U.S. at 677–78.

45

Id. at 679.

46

Id. at 678.

47

Id.

48

Id.

49

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

50

Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-

7

B.

Legal Standard Under Federal Rule of Civil Procedure 12(c)
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.”51 “A motion
brought pursuant to [Rule] 12(c) is designed to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings
and any judicially noticed facts.”52 “The central issue is whether, in the light most favorable to the
plaintiff, the complaint states a valid claim for relief.”53 On a 12(c) motion, “[p]leadings should
be construed liberally,” and judgment is “appropriate only if there are no disputed issues of fact
and only questions of law remain.”54 Moreover, the Court “may dismiss a claim when it is clear
that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”55
In lieu of dismissal on a motion for judgement on the pleadings, a district court may grant a plaintiff
leave to amend the complaint.56
IV. Analysis
In the instant motion, HESI seeks dismissal of any request for punitive or non-pecuniary

6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
51

Fed. R. Civ. P. 12(c).

52

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002) (internal
citations omitted).
53

Id. (internal citations omitted).

54

Id. (internal citations omitted).

55

Id.

56

Dueling v. Devon Energy Corp., 623 F. App'x 127 (5th Cir. 2015).

8

damages, which are based on Decedent’s alleged status as a Jones Act seaman.57 HESI contends
that existing law does not afford Plaintiff a remedy for non-pecuniary or punitive damages against
HESI, a former employer of Decedent.58 In opposition, Plaintiff notes that she alleges multiple
causes of action in the alternative, alleging that at times Decedent was a Jones Act seaman
employed by HESI while at other times Decedent was not a Jones Act seaman. 59 However, this
argument is unavailing because in the instant motion HESI only seeks dismissal of Plaintiff’s
request for non-pecuniary or punitive damages, which are based on Decedent’s status as a Jones
Act seaman. HESI does not move the Court to dismiss any request for non-pecuniary or punitive
damages brought under Louisiana law based on the alternative theory that Decedent was not a
Jones Act seaman.
Next, Plaintiff argues that regardless of the determination of Decedent’s status as a Jones
Act seaman, punitive damages are available to a Jones Act seaman as a matter of law.60 In Miles
v. Apex Marine Corp., the Supreme Court held that the survivors of a Jones Act seaman may not
recover non-pecuniary damages from the seaman’s employer under general maritime law.61 The
Court noted that the Jones Act and the Death on the High Seas Act (“DOHSA”) do not allow
recovery for loss of society or lost future earnings.62 The Court found that in enacting the Jones

57

Rec. Doc. 34-1 at 3.

58

Rec. Doc. 60.

59

Rec. Doc. 38 at 2.

60

Id.

61

498 U.S. 19, 31–33 (1990).

62

Id. at 31–32.

9

Act and DOHSA, Congress had established a “uniform plan of maritime tort law,” 63 and it
“restore[d] a uniform rule applicable to all actions for the wrongful death of a seaman, whether
under DOHSA, the Jones Act, or general maritime law.”64 Therefore, the Court explained that “it
would be inconsistent with this Court’s place in the constitutional scheme to sanction more
expansive remedies for the judicially created unseaworthiness cause of action, in which liability is
without fault, than Congress has allowed in cases of death resulting from negligence.”65
In Guevara v. Maritime Overseas Corporation, the Fifth Circuit applied the “damages
uniformity principle” articulated by the Supreme Court in Miles to preclude an injured Jones Act
seaman from recovering punitive damages for his employer’s willful disregard of its obligation to
pay maintenance and cure under general maritime law.66 In Scarborough v. Clemco Industries,
the Fifth Circuit again invoked the uniformity principle and held that neither a Jones Act seaman
nor his survivors can recover non-pecuniary damages from a non-employer under general maritime
law.67
However, in Atlantic Sounding Co. v. Townsend, the Supreme Court overruled Guevara
and held that a Jones Act seaman can recover punitive damages for an employer’s willful and
wanton failure to honor its maintenance and cure obligation.68 Notably, the Court recognized that

63

Id. at 37.

64

Id. at 33.

65

Id. at 20.

66

59 F.3d 1496, 1513 (5th Cir. 1995).

67

391 F.3d 660, 668 (5th Cir. 2004).

68

557 U.S. 404, 424 (2009).

10

“[t]he reasoning of Miles remains sound,” but ultimately determined that Townsend was
distinguishable.69 Unlike the wrongful death claim and damages addressed in Miles, the Court
noted that general maritime law had recognized a claim for maintenance and cure and the remedy
of punitive damages prior to the passage of the Jones Act, and the Jones Act addresses neither
claim nor remedy.70 Therefore, the Court concluded that it is “possible to adhere to the traditional
understanding of maritime actions and remedies without abridging or violating the Jones Act;
unlike wrongful-death actions, this traditional understanding is not a matter to which ‘Congress
has spoken directly.’”71
Following Townsend, it was unclear whether punitive damages were recoverable under
general maritime law for other types of claims or were limited to maintenance and cure claims.72
In McBride v. Estis Well Serv., LLC, the Fifth Circuit initially held that punitive damages were
available when a seaman’s personal injury or wrongful death claim was brought under general
maritime law, effectively extending the Supreme Court’s holding in Townsend to non-maintenance
and cure claims.73 However, on rehearing en banc, the Fifth Circuit reversed the panel, holding
that neither an injured seaman nor his survivors can recover punitive damages from an employer
for negligence under the Jones Act or unseaworthiness under general maritime law.74 The Fifth

69

Id. at 420.

70

Id.

71

Id. at 420–21.

72
See Stevan C. Dittman, Amiable or Merry? An Update on Maritime Punitive Damages, 89 Tul. L. Rev.
1059, 1089-1101 (2015) (“Since Townsend, the courts have divided with respect to the impact of Townsend in
situations not directly covered by the factual situation in Miles.”)
73

731 F.3d 505 (5th Cir. 2013), rev’d en banc, 768 F.3d 382 (5th Cir. 2014).

74

McBride v. Estis Well Serv., LLC, 768 F.3d 382, 391 (5th Cir. 2014), cert. denied, 135 S. Ct. 2310

11

Circuit noted that when Congress enacted the Jones Act, it incorporated the Federal Employers’
Liability Act’s prohibition on non-pecuniary damages.75 Further, the Fifth Circuit reasoned that it
could not “supplement the statute and allow more expansive damages” for an action brought under
general maritime law than Congress had allowed under the Jones Act.76
In this case, Plaintiff brings claims individually and on behalf of Decedent for negligence
under the Jones Act, unseaworthiness under general maritime law, and negligence under Louisiana
law.77 Plaintiff does not bring a claim for maintenance and cure. Plaintiff acknowledges that in
McBride the Fifth Circuit held that a Jones Act seaman cannot recover non-pecuniary or punitive
damages against his employer under either the Jones Act or general maritime law.78 Nevertheless,
Plaintiff urges the Court to disregard this binding precedent and instead follow dissents to the Fifth
Circuit opinion or a Ninth Circuit opinion holding that a Jones Act seaman can recover punitive
damages in relation to an unseaworthiness claim brought under general maritime law.79 However,
this Court must follow the binding precedent set forth by the Fifth Circuit in McBride and hold
Plaintiff is precluded from recovering non-pecuniary or punitive damages against HESI under the
Jones Act or general maritime law if Decedent is found to be a Jones Act seaman.

(2015).
75

Id. at 385–86.

76

Id. at 387 (quoting Miles, 498 U.S. at 31).

77

Rec. Doc. 1 at 5.

78

Rec. Doc. 34 at 2 (citing McBride, 768 F.3d at 391).

79

Id. (citing Batterton, 880 F.3d at 1089).

12

V. Conclusion
Based on the foregoing, the Court finds that there are no issues of fact in dispute, and HESI
is entitled to judgment as a matter of law, dismissing Plaintiff’s request for non-pecuniary and
punitive damages, which are based on Decedent’s alleged status as a Jones Act seaman.
Accordingly,
IT IS HEREBY ORDERED that Defendant Halliburton Energy Services, Inc. formerly
d/b/a IMCO Services’ “Renewed Motion to Dismiss Certain Claims Pursuant to Rule 12(b)(6)
and/or 12(c)”80 is GRANTED and any requests for non-pecuniary or punitive damages against
Halliburton Energy Services, Inc. formerly d/b/a IMCO Services, which are based on Decedent’s
alleged status as a Jones Act seaman, are DISMISSED WITH PREJUDICE.

3rd
NEW ORLEANS, LOUISIANA, this ______ day of December, 2018.

__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

80

Rec. Doc. 34.

13