WEEKS MARINE, INC. et al

Filing 28

OPINION. Signed by Judge Kevin McNulty on 6/14/2016. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

IN THE MATTER OF THE COMPLAINT OF
WEEKS MARINE, INC., AS OWNER OF
THE M/V TREVOR, A 69’ STEEL TOWING
VESSEL, OFFICIAL NO. 597716, FOR
EXONERATION FROM AND LIMITATION
OF LIABILITY

No. 16-cv--1463 (KM)(JBC)

OPINION

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the motion (ECF No. 8) of
interested party Leslie Conklin to transfer the venue of this action, pursuant to
Supplemental Admiralty Rule F(9), to the Southern District of New York.
Reviewing the parties’ submissions, I find that the Southern District of New
York is a more appropriate venue for this action. Accordingly, the motion to
transfer venue is GRANTED.’
I.

BACKGROUND
a. The Sinking of the SPECIALIST

On March 12, 2016, the towing vessel “SPECIALIST” struck a moored
construction barge named “N181” in the Hudson River, near the Tappan Zee
Bridge Construction Project off of Tarrytown, New York. (Decl. of Andrew
Bucsbaum, dated May 10, 2016 (ECF No. 9) (“Buchsbaum Decl.”)

¶

3) As a

result of the collision, the SPECIALIST sank and the three crewman aboard,
Timothy Conklin, Paul Amon, and Harry Hernandez, lost their lives.

Claimant Tappan Zee Constructors, LLC has also filed two motions to dismiss,
one for improper venue pursuant to Fed. R. Civ. P. 12(b)(3) (ECF No. 15) and the other
pursuant to Fed. R. Civ. P. 12(b)(6) and 12(fl for failing to include one of the vessels in
the liability action (ECF No. 17).
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The SPECIALIST, a tugboat owned by Specialist, LLC, was operating as
part of a flotilla which was transporting the crane barge WEEKS 533, a nonmotive barge owned by the Petitioner, Weeks Marine, Inc. (“Weeks Marine”). (Id.

¶

7) tm additional towing vessels were part of the flotilla: the “REALIST,”
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owned by Specialist, LLC, and the “TREVOR” owned by Weeks Marine. The
floti1a was assisting in towing WEEKS 533 from Weeks Marine’s marine yard
in Jersey City, New Jersey, to Albany, New York, and back again. (Deci. of
Thorias Langan in Opposition to Conklin’s Motion to Transfer, dated June 6,
2016 (ECF No. 22-17)

¶

6) Conklin, Amon and Hernandez, the seamen aboard

the SPECIALIST, were employed by New York Marine Towing, Inc. (Buchsbaum
Decl

¶

6) The moored construction barge, N 181, was owned by Traylor Bros.,

Inc., and was part of the Tappan Zee Bridge Construction Project, managed by
Tappan Zee Constructors, LLC. (Id.

¶

17)

The Westchester County, New York Department of Public Safety began
an i vestigation into the incident and was involved in retrieving the bodies from
the unken vessel. (Id.

¶

12) The Westchester County medical examiner’s office

concucted the autopsies of Conklin, Amon and Hernandez. (Id.

¶

14)

Add. ionally, the Westchester County District Attorney’s Office and the United
Stats Coast Guard, Sector New York, have ongoing investigations into the
incident. (Id. ¶J13, 15)
b. Pending Litigation in the Southern District of New York
On April 27, 2016, Leslie Conklin, the Administratrix of the Estate of
Timc thy Conklin, filed suit in the Southern District of New York, White Plains
vicirage, against New York Marine Towing, Inc., Specialist, LLC, Tappan Zee
Constructors, LLC, and Traylor Bros., Inc. (the “Conklin Action”) (Buchsbaum
Decl’, Ex. 17) The Conklin Action was brought pursuant to the Jones Act, 46
U.S.C.

§

30104, seeking monetary damages for the death of the plaintiff’s kin,

and it asserts causes of action sounding in negligence. On May 5, 2016, Donna
Amc-i, a representative of the Estate of Paul Amon, filed a similar action
agai ‘st the same defendants, alleging the same causes of action, in the

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Southern District of New York (the “Amon Action”). (Id. Ex. 19) On May 13,
2016, Yirda Guerrero Hernandez, as representative of the Estate of Harry
Herr.andez, also filed suit in the Southern District of New York, again with the
same causes of action against the same defendants (the “Hernandez Action”).
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(Rep Deci. of Andrew Buchsbaum in Further Support of Motion to Transfer,
dated June 13, 2016 (ECF No. 27) (“Buchsbaum Reply Deci.”) Ex. 5)
The Conklin, Amon and Hernandez Actions have been deemed related
actiens and are currently before Judge Kenneth M. Karas. Weeks Marine has
filed an appearance in the Amon action and a conference is scheduled for June
28, 2016. (Id. Exs. 1, 8)
c. This Action
On March 15, 2016, before any action had been filed in the Southern
Distict of New York related to this accident, Weeks Marine filed this limitation
of licbility action in the District of New Jersey pursuant to Supplemental
Adrr ‘ralty Rule F. (ECF No. 1) Weeks Marine is a New Jersey corporation with
its pincipal place of business in Cranford, New Jersey. (Langan Decl.

¶ 2)

Wee .s Marine sought to have all related claims against it heard in admiralty in
federal court in Weeks’s home state. (Id.

¶ 18) One of Weeks’s vessels, the

TREJOR, also happened to be located within the District of New Jersey at the
time of filing. (Id.) An Order was issued on March 21, 2016, directing the
issuance of a notice to all potential claimants to file their claims by June 21,
2016. (ECF No. 5) On May 10, 2016, Leslie Conklin filed her motion to transfer
this ction to the Southern District of New York. (ECF’ No. 8)
II.

DISCUSSION
a. Legal Standard

Supplemental Admiralty Rule F(9) provides: “For the convenience of
partes and witnesses, in the interest of justice, the court may transfer the
activn to any district[.]” The rule is similar to the transfer provision under 28
U.S.

.

§ 1404(a), and the analysis is familiar. See, e.g., In re Complaint of

Ban :ers Trust Co., 640 F. Supp. 11, 14 (E.D. Pa. 1985).

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It is axiomatic that the movant bears the burden of establishing the need
for transfer and that “the plaintiff’s choice of venue should not be lightly
disturbed.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). In
addition to the factors enumerated in Section 1404(a)
parties and witnesses and the interests of justice

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—

the convenience of the

the Third Circuit, as well as

cour’:s within this Circuit considering motions for permissive transfer, have
beer guided by a number of non-exclusive public and private interest factors:
The private interests have included: plaintiffs forum preference as
manifested in the original choice, the defendant’s preference, whether the
claim arose elsewhere, the convenience of the parties as indicated by
their relative physical and financial condition; the convenience of the
witnesses—but only to the extent that the witnesses may actually be
unavailable for trial in one of the fora, and the location of books and
records (similarly limited to the extent that the files could not be
produced in the alternative forum).
The public interests have included: the enforceability of the judgment;
practical considerations that could make the trial easy, expeditious, or
inexpensive; the relative administrative difficulty in the two fora resulting
from court congestion, the local interest in deciding local controversies at
home; the public policies of the fora, and the familiarity of the trial judge
with the applicable state law in diversity cases.
Id, a: 879—80 (internal citations omitted).
b. Analysis
A review of the relevant factors leads to the conclusion that, in the
interest of justice, transfer is appropriate. This case’s connections to New
Jersey are slim. The fatal collision took place in the Hudson River, near
TarrTtown, New York, in New York waters. The companies that own the other
vesls involved, Specialist, LLC and Tappan Zee Constructors, LLC, as well as
New York Marine Towing, Inc., the company which employed the seamen and
with which Weeks contracted to move the barge, are all New York entities. All
inve3tigations into the incident have been conducted by New York-based
ager cies, and there is no evidence of any investigation by any New Jersey
entity. It follows that any evidence collected during the course of those
investigations, along with books and records from the other companies involved
in tl.e incident (and, presumably, employees who may be called as witnesses),
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will be found in New York. Moreover, three actions in relation to this accident
have already been filed in the Southern District of New York. All of those
plaintiffs (Conklin, Amon and Hernandez) have consented to the transfer of this
acticn to the Southern District of New York. I also note that in this case,
Tappan Zee Constructors, LLC, has filed a motion to dismiss for improper
venue in which it argues that venue is proper in the Southern District of New
York. (ECF No. 15-1)
I find Weeks Marine’s arguments to the contrary unpersuasive. First,
Weeks Marine appears to suggest that the proximity of accident to New Jersey
waters somehow weighs in favor of a New Jersey forum. It is undisputed that
the collision occurred in New York waters and the fact that another state’s
wate:-s may have been nearby does nothing to suggest that the other state is an
appropriate forum. Second, Weeks Marine argues that the claim actually arose
in Nw Jersey because it was there that Weeks Marine hired New York Marine
Towzig and the SPECIALIST to tow WEEKS 533, and because it was in New
Jer&y that the round trip journey to Albany began. The core issues in the
case’ however, are strongly tied to the situs of the accident, which was in New
York’, not to the point of embarkation. Third, Weeks Marine also appears to
argue that the travel from the Southern District of New York to the nearby
Dist:ict of New Jersey poses no great inconvenience. True enough, but
remaining in New York would pose even less of an inconvenience. This factor
doeF not really tip the balance either way. At any rate, this argument misses
the point, because the vast majority of witnesses, evidence, and parties are
locaed in New York. Venuing the action in New Jersey would benefit only
Wees. Fourth, Weeks Marine contends it is based in New Jersey, its books
and ecords are maintained in New Jersey, and its employees are found in New
Jery. I have no reason to doubt that, but again the convenience of one party
canfot be said here to weigh equally against that of all the others.
Finally, Weeks Marine argues that the motion to transfer should be
denid because it filed the action in this District first. Under the so-called
“firs:-fi1ed rule,” a court may “exercise its discretion by enjoining subsequent
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prosecution of similar cases in different federal district courts.” E.E.O.C.

V.

Univ. of Penn., 850 F.2d 969, 971 (3d Cir. 1988) (noting that the rule gives
district court’s discretion to enjoin later-filed actions involving the same parties
and the same issues already before another court). The policy considerations
behind the rule are sound judicial administration of matters and comity among
fedetal courts. The discretion under the rule, however, “is not a mandate
directing wooden application of the rule without regard to rare or extraordinary
circumstances, inequitable conduct, bad faith, or forum shopping.” Id. at 972.
The first-filed rule is not a hard-and-fast rule; rather, the Section 1404 factors
must also be considered. Here, those factors overwhelmingly weigh in favor of
transferring this action to the Southern District of New York where three
related cases are pending.
III.

CONCLUSION

Conklin’s motion to transfer venue under Supplemental Admiralty Rule
F(9) is GRANTED. Weeks Marine’s limitation of liability action will be
transferred to the Southern District of New York.

Dated: June 14, 2016

F’

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4on. Kevin McNulty
United States District Jud

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