In the Matter of the Complaint of WITTICH BROS. MARINE, INC. et al v. Estate of Donald Maloney
Filing
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MEMORANDUM AND ORDER granting in part and denying in part 15 Motion to Dismiss. For the reasons stated herein, Petitioner's motion for a judgment on the pleadings is granted in part and denied in part. Specifically, Petitioner's motion i s granted with respect to the claims brought pursuant to the Jones Act and those claims are dismissed, with prejudice. With respect to the claim for unseaworthiness, brought pursuant to the general maritime law, Petitioner'smotion is denied. The parties are directed to contact the assigned Magistrate Judge to begin discovery on the remaining claim. (Ordered by Judge Leonard D. Wexler on 1/09/2018.) (Fagan, Linda)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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IN THE MATIER OF THE COMPLAINT OF
WITTICH BROS. MARINE, INC., as Owner and
Operator of the Tug SEA BEAR, for
Exoneration from or Limitation of Liability,
MEMORANDUM AND ORDER
CV 15-5210
(Wexler, J.)
Petitioner.
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APPEARANCES:
FI LED
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
*
MAHONEY & KEANE, LLP
BY: Edward A. Keane, Esq.
Garth S. Wolfson, Esq.
Attorneys for Petitioner
40 Worth Street, Tenth Floor
New York, New York 10013
JAN 09 2018
*
LONG ISLAND OFFICE
HOFFMANN & SCHWEITZER
BY: Paul T. Hoffinann, Esq.
Attorneys for Claimant
360 West 31 51 Street, Suite 1506
New York, New York 1000 I
280 Park Avenue, 151h Floor West
New York, New York 10017
WE}{LER, District Judge:
Before the Court is Petitioner's motion for a judgment on the pleadings, pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. The Claimant-in-Intervention opposes the motion
in its entirety. For the following reasons, Petitioner's motion is granted in part and denied in
part.
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BACKGROUND
Petitioner, Wittich Bros. Marine, Inc. ("Petitioner" or "Wittich Bros."), is the owner and
operator of the vessel at issue herein, the tug Sea Bear (the "Tug" or "Sea Bear"). On or about
March 14, 2015, the Tug and a crew of four departed from a dredge site west ofMoriches, New
York, to return to Petitioner's office in Bayonne, New Jersey. (Petition if 4.) Donald Maloney
was one of the crew members present on the Tug that day.
ilih if 8.) Some time during the trip to
New Jersey, the Tug sank in approximately forty-six feet of water about three-quarters of a mile
south of Fire Island Pines. (Id. if 4, 7.) While the United States Coast Guard recovered the Tug's
four crew members, all of whom had abandoned the vessel, Donald Maloney ("Maloney") was
deceased when his body was located.
a4:. if 8.)
On September 9, 2015, Petitioner filed the within limitation of liability action. On
January 9, 2017, the Claimant-in-Intervention, Carolyn Badke ("Badke" or "Claimant") Maloney's ex-wife - filed an Answer and Claim as the Personal Representative of the Estate and
Beneficiaries of Donald Maloney. Badke asserts that Maloney drowned to death due to the
negligence of Petitioner and the unseaworthiness of the Sea Bear. (Badke Aff. if 2; Claim-inIntervention ifif 36-38.)
At the time ofMaloney's death, his only beneficiary was his daughter with Badke,
Corrine Maloney ("Corrine"). (Badke Aff. ifif 1, 7.) On June 15, 2015, Corrine was appointed
personal representative and Administrator ofMaloney's estate. (Id. if 7; Hoffmann Aff., Ex. 5.)
Corrine passed away in an automobile accident on September 3, 2015, prior to commencing any
action with respect to. Maloney's death. (Badke Aff. if 8; Hoffmann Aff., Ex. 6.)
Thereafter, on October 7, 2015, BadJce was granted Letters of Limited Administration
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with respect to Corrine's estate, which included the authority to prosecute, settle and defend any
claim or cause of action arising from Maloney's death. (Badke Aff.1[ 11; Hoffinann AtT., Ex. 7.)
On April 20, 2016, Badke was also appointed Administrator of Maloney' s estate. (Badke Aff. 11
13; Hoffmann Aff., Ex. 8.) Badke then filed the Claim-in-Intervention herein, asserting
negligence and unseaworthiness claims with respect to Maloney's death on behalf of Corrine's
estate. Badke brings her claims under both the Jones Act, 46 U.S.C. § 688, and the general
maritime law. Petitioner now seeks to dismiss all ofBadke's claims.
DISCUSSION
I.
Legal Standard
When evaluating a motion for a judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c), the court employs the same standard as that for a motion to dismiss under
Rule 12(b)(6). See Trani v. Holder, No. 09 Civ. 10239, 2010 U.S. Dist. LEXIS 79670, at *4-5
(S.D.N.Y. July 29, 2010) (citing Patel v. Contemporary Classics, 259 F.3d 123, 126 (2d Cir.
2001)); Astrazeneca AB v. Apotex Com.• No. 01 Civ. 9351, 2010 U.S. Dist. LEXIS 58044, at *9
(S.D.N.Y. June 8, 2010) (citing Irish Lesbian & Gay Org. v. Guiliani, 143 F.3d 638, 644 (2d Cir.
1998)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Igbal, 556
U.S. 662, 668 (2009) (quoting Bell Atl. Com. v. Twombly, 550 U.S. 544, 570 (2007)). "Facial
plausibility" is achieved when the ''the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Igbal, 556
U.S. at 668 (citing Twombly, 550 U.S. at 556). As a general rule, the court is required to accept
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as true all of the allegations contained in the complaint, see Igbal, 556 U.S. at 678; Kassner v.
2nd Ave. Delicatessen. Inc., 496 F.3d 229, 237 (2d Cir. 2007), and to "draw[] all reasonable
inferences in the plaintiff's favor." Troni, 2010 U.S. Dist. LEXIS 79670, at *5 (quoting In re
NYSE Specialists Se.c. Litig., 503 F.3d 89, 95 (2d Cir. 2007)).
"Judgment on the pleadings is appropriate where material facts are undisputed and where
a judgment on the merits is possible merely by considering the contents of the pleadings." FDIC
v. MN "Ville D' Aquarius", No. 08 Civ. 8997, 2009 U.S. Dist: LEXIS 97349, at *8 (S.D.N.Y.
Oct. 20, 2009) (quoting Sellers v. M.C. Floor Crafters Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Although the court is generally limited to the facts alleged in the complaint when determining a
Rule 12(c) motion, the court may also refer "to documents attached to the complaint as an exhibit
or incorporated in it by reference, to matters of which judicial notice may be taken, or to
documents either in plaintiftl's] possession or of which plaintiftl] had knowledge and relied on
in bringing suit." Brass v. Am. Film Tech.. Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citation
omitted).
II.
The Jones Act
Section 33 of the Merchant Marine Act of 1920, commonly referred to as the Jones Act,
creates two causes of action for negligence for seame1;1 injured or killed in the course of their
employment - "[O]ne is for the wrong to the injured person and is confined to his personal loss
and suffering before he died, while the other is for the wrong to the beneficiaries and is confined
to their pecuniary loss through his c,leath." Bums v. Marine Transport Lines. Inc., 207 F. Supp.
276, 277 (S.D.N. Y. 1962) (citations omitted). "The action for decedent's pain and suffering
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accrues at the time ofinjury, while the wrongful death action accrues at death." Id. (citations
omitted).
The right of recovery under the Jones Act, if any, depends on Section 1 of the Federal
Employers' Liability Act, 45 U.S.C. § 51, which provides that recovery of damages shall be "for
the benefit of the surviving widow or husband and children of such employee; and, if none, then
of such employee's parents; and, if none, then of the next of kin dependent upon such employee."
Gillespie v. United States Steel Corp., 379 U.S. 148, 156 (1964) (quoting 45 U.S.C. § 51). As
the Supreme Court has held on more than one occasion, "this provision 'crea~es three classes of
possible beneficiaries. But the liability is in the alternative. It is to one of the three; not to the
several classes collectively."' Id. (quoting Chicago. B & O.R. Co. v. Wells-Dickey Trust Co.,
275 U.S. 161, 163 (1927)).
Here, any cause of action pursuant to the Jones Act immediately vested in Maloney's
daughter, Corrine, upon his death. Had Corrine survived, she could have brought both wrongful
death and survivor claims against Petitioner under the Jones Act. However, Corrine passed away
prior to instituting any legal action against Petitioner for Maloney's death. Badke now seeks to
bring that action on b~half of Corrine's estate. Such conduct has been expressly rejected by the
Supreme Court.
As the Supreme Court has made clear, when a cause of action accrues under the Jones
Act, "there is an immediate, final and absolute vesting; and the vesting is in that one of the
several possible beneficiaries who, according to the express provision in the statute, is declared
to be compensated." Chicago. B & 0.R., 275 U.S. at 163. Had Corrine brought an action
against Petitioner prior to her death, "it would have been for [her] benefit ... and no other action
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would have lain." Id. at 164. "The failure to bring the action in [her] lifetime did not result in
creating a new cause of action after her death" for the benefit of either Badke or Corrine's estate.
Id.
Based on the foregoing, any claims Corrine may have been entitled to bring against
Petitioner pursuant to the Jones Act abated when Corrine passed away. Badke cannot reinstate
them, either on her own behalf or on behalf of Corrine's estate. Accordingly, Petitioner's motion
for a judgment on the pleadings with respect to the Jones Act claims is granted and those claims
are dismissed, with prejudice.
III.
General Maritime Law
In Lindgren v. United States, 281 U.S. 38 (1930), the Supreme Court held that the Jones
Act, "limited as it is to recovery for negligence, would preclude recovery for the wrongful death
of a seaman resulting from the unseaworthiness of the vessel." Miles, 498 U.S. at 29 (citing
Lindgren, 281 U.S. at 47-48). The Court reaffirmed this holding in Gillespie v. United States
Steel Com, 379 U.S. 148 (1964), holding that the Jones Act precludes recovery under state
statutes for the wrongful death of a seaman due to unseaworthiness. See UL at 154-56.
However, as the Supreme Court explained in Miles v. Apex Marine Coip., 498 U.S. 19
(1990), "[n]either Lindgren nor Gillespie considered the effect of the Jones Act on a general
maritime wrongful death action," because "no such action existed at the time those cases were
decided." Id. at 29. Rather, as the Court held in Moragne v. States Marine Lines. Inc., 398 U.S.
375 (1970), the preclusive effect of the Jones Act established in Lindgren and Gillespie applies
only to state wrongful death statutes, not to general maritime wrongful death actions. See
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Moragne, 398 U.S. at 396 n.12.
In Miles, the Supreme Court explicitly held that "there is a general maritime cause of
action for the wrongful death of a seaman," adopting the reasoning of Moragne. Miles, 498 U.S.
at 30. As the Court explained, "[t]he Jones Act evinces no general hostility to recovery under
maritime law, in that "[i]t does not disturb seamen's general maritime claims for injuries
resulting from unseaworthiness." kL Following this reasoning, a seaman may assert claims for
negligence under the Jones Act, as well as for wrongful death due to unseaworthiness under
general maritime law.
Petitioner argues that the class of beneficiaries permitted to bring suit under the Jones Act
applies to and preempts claims brought under the general maritime law. However, the Court has
not found any cases indicating such. Nor does the case law submitted by Petitioner provide such
a holding. While it is clear only certain enumerated individuals may bring suit under the Jones
Act, as discussed above, there does not appear to be any such limitation on who may bring suit
pursuant to the general maritime law. Since Badke has been appointed the personal
representative for both Maloney's and Corrine's estates, it appears she could pursue a general
maritime law claim for unseaworthiness on behalf of either estate. Accordingly, Petitioner's
motion for a judgment on the pleadings is denied with respect to Claimant's general maritime
law claim for unseaworthiness.
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CONCLUSION
Based on the foregoing, Petitioner's motion for a judgment on the pleadings is granted in
part and denied in part. Specifically, Petitioner's motion is granted with respect to the claims
brought pursuant to the Jones Act and those claims are dismissed, with prejudice. With respect
to the claim for unseaworthiness, brought pursuant to the general maritime law, Petitioner's
motion is denied. The parties are directed to contact the assigned Magistrate Judge to begin
discovery on the remaining claim.
SO ORDERED:
Dated: Central Islip, New York
January 9, 2018
(/
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. .,_.~
LEONARD D. WExL
United States District Judge
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