Taylor et al v. TESCO Corporation (US)
Filing
188
MEMORANDUM AND ORDER the 154 MOTION to Dismiss Without Prejudice is GRANTED with respect to Defendant Tesco Corporation simply as a memorial of Plaintiffs dismissal without prejudice of Tesco Corporation, which was effective on March 18, 201 1, when the motion was filed; the motion is GRANTED with respect to Tesco Corporation (US) for the reasons stated in the foregoing Memorandum; and the motion is otherwise DENIED. The 185 Unopposed MOTION for Leave to File Fourth Supplemental and Am ending Complaint is GRANTED, subject, however, to the Order set forth granting Plaintiffs dismissals of their claims against Tesco Corporation and Tesco US, without prejudice. The 57 Motion to Dismiss Tesco Corporation Pursuant to Fed. R. Civ. P. 1 2 is DENIED AS MOOT. Defendants Pride International, Inc. and Mexico Drilling, LLCs 46 Motion to Dismiss Pursuant to Rule 12(b)(6) on Basis of Prescription is DENIED, but without prejudice to the motion timely being reasserted on their claimed defense of prescription if at a future time it is adjudicated that Tesco US is not a joint tortfeasor with the Pride Defendants.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH TAYLOR and BARBARA
TAYLOR, INDIVIDUALLY AND ON
BEHALF OF THEIR TWO MINOR
CHILDREN, DAVID A. TAYLOR and
DARYEL TAYLOR,
Plaintiffs,
v.
TESCO CORPORATION (US), TESCO
CORPORATION, PRIDE
INTERNATIONAL, INC., and
MEXICO DRILLING LIMITED, LLC,
Defendants.
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CIVIL ACTION NO. H-11-00517
MEMORANDUM AND ORDER
This
personal
injury
and
products
liability
case
transferred here from the Eastern District of Louisiana.
was
Pending
at the time of transfer were: Defendants Pride International, Inc.
and Mexico Drilling, LLC’s Motion to Dismiss Pursuant to Rule
12(b)(6) on Basis of Prescription (Document No. 46), and Motion to
Dismiss Tesco Corporation Pursuant to Fed. R. Civ. P. 12 (Document
No. 57).
After the transfer Plaintiffs filed their Motion to
Dismiss Without Prejudice (Document No. 154) and Motion for Leave
to File Timely Superseding Fourth Supplemental Amended Complaint
(Document No. 185).
After considering the motions, responses,
replies, the arguments made by the parties at the June 23, 2011
scheduling conference, and the applicable law, the Court concludes
as follows:
I.
Background
Plaintiff Keith Taylor alleges he was injured aboard a fixed
oil platform in the Bay of Campeche off the coast of Mexico on
January 1, 2009.
About four months later Plaintiffs sued Tesco
Corporation (US) (“Tesco US”) in the United States District Court
for the Eastern District of Louisiana, alleging negligence and
strict liability arising out of Tesco US’s manufacture of the top
drive on which Taylor was injured.1
later
filed
two
amended
Plaintiffs more than a year
complaints,
adding
Defendants
Tesco
Corporation (Canada), Pride International, Inc. (“Pride”), and
Mexico Drilling Limited, LLC (“Mexico Drilling,” and together with
Pride, the “Pride Defendants”).2
Plaintiffs substituted Defendant
Tesco Corporation for the incorrectly-named “Tesco Corporation
(Canada)” by a third amendment to the complaint, filed September 2,
2010.3
Defendant Tesco US in April 2010 filed a motion to dismiss for
forum non conveniens, which was later denied, and in July and
August
of
2010
Tesco
Corporation
1
and
the
Pride
Defendants,
Document No. 1.
Taylor’s wife and children join him as
plaintiffs; his wife asserts claims for loss of consortium, loss of
enjoyment of life, and loss of support, and his children assert
damage to the parental relationship.
2
Document Nos. 36, 37.
3
Document No. 72.
2
respectively, moved to dismiss Plaintiffs’ claims against them
based on the Louisiana one-year prescriptive law.4
In February, 2011, the case was transferred to this Court “for
the convenience of the parties and witnesses, and in the interest
of justice,” pursuant to 28 U.S.C. § 1404(a).5
Plaintiffs now seek
to dismiss this action without prejudice in light of their desire
instead to prosecute a substantially similar case that they filed
in the 113th Judicial District Court of Harris County, Texas.6
The
4
Document Nos. 46, 57.
“Prescription is the civil-law
equivalent of a statute of limitations.”
Allstate Ins. Co. v.
Torres, Civ. A. No. 06-5206, 2007 WL 3102791, at *2 n.l (E.D. La.
Oct. 23, 2007) (Vance, J.) (citing BLACK ’S LAW DICTIONARY (8th ed.
2004); LA. CIV . CODE ANN . art. 3447 (West 2007)).
5
Document No. 142 at 2.
6
See Document No. 154 at 1.
Plaintiffs assert that this
Court lacks jurisdiction over the action because if it had been
filed in Texas state court, it would not have been removable due to
the presence of in-state defendants. See Document No. 154-1 at 5
(citing 28 U.S.C. § 1441(b)); Document No. 180. Section 1441(b)
states that an action premised on diversity jurisdiction “shall be
removable only if none of the parties in interest properly joined
and served as defendants is a citizen of the State in which such
action is brought.”
28 U.S.C. § 1441(b) (emphasis added).
Plaintiffs filed this case, however, in federal court in Louisiana.
See Document No. 1. It was never removed, and removal jurisdiction
under section 1441 does not apply. See, e.g., Hurt v. Dow Chem.
Co., 963 F.2d 1142, 1145 (8th Cir. 1992) (“Title 28 U.S.C.
§ 1441(b) makes diversity jurisdiction in removal cases narrower
than if the case were originally filed in federal court by the
plaintiff.” (emphases added)).
That Plaintiffs later filed a
separate action in Texas state court does not affect the Court’s
jurisdiction over this case transferred from the Eastern District
of Louisiana.
Although Plaintiffs in their Superseding Fourth
Supplemental and Amended Complaint allege that the “Court lacks
subject matter jurisdiction empowering it to hear any matter
alleged in this action,” Plaintiffs’ disavowal of the Court’s
jurisdiction does not deprive the Court of jurisdiction nor provide
3
Pride
Defendants,
Tesco
Corporation,
and
Tesco
US
oppose
Plaintiffs’ motion to dismiss, asserting that dismissal of this
case without prejudice would deny to the Pride Defendants and Tesco
Corporation their valid limitations defenses under Louisiana law;
and they would be left to defend Plaintiffs’ claims in Texas state
court in a suit that is not barred under Texas’s two-year statute
of limitations.
II.
Discussion
Federal Rule of Civil Procedure 41 governs voluntary dismissal
by a plaintiff.
A plaintiff’s dismissal of suit without prejudice
is an “absolute right” if done “before the opposing party serves
either an answer or a motion for summary judgment.”
FED . R. CIV . P.
41(a)(1)(A); Harvey Specialty & Supply, Inc. v. Anson Flowline, 434
F.3d 320, 324 (5th Cir. 2005).
either
an
answer
or
motion
After the opposing party serves
for
summary
judgment,
voluntary
dismissal may occur only “by court order, on terms that the court
considers proper.”
FED . R. CIV . P. 41(a)(2).
Even then, however,
“as a general rule, motions for voluntary dismissal should be
freely granted unless the non-moving party will suffer some plain
a viable basis for opposing the filing of the amendment. Because
no prejudice to any party would merit denial of Plaintiffs’ Motion
for Leave to File Timely Superseding Fourth Supplemental Amended
Complaint (Document No. 185), this motion is GRANTED, subject,
however, to the Order set forth below granting Plaintiffs’
dismissals of their claims against Tesco Corporation and Tesco US,
without prejudice.
4
legal prejudice other than the mere prospect of a second lawsuit.”
Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).
A.
Tesco Corporation
Although styled a “motion to dismiss,” Plaintiff’s March 18,
2011, filing had the effect of a Rule 41(a)(1) notice of dismissal
as to any defendants who had not yet served either an answer or a
motion for summary judgment.
Matthews v. Gaither, 902 F.2d 877,
880 (11th Cir. 1990) (“The fact that a notice of dismissal is
styled ‘motion to dismiss’ rather than ‘notice of dismissal’ is
without consequence.’” (citing Williams v. Ezell, 541 F.2d 1261,
1263 (5th Cir. 1976); Carter v. United States, 547 F.2d 258, 259
(5th Cir. 1977))).
Tesco Corporation did not answer Plaintiff’s complaint until
June 20, 2011, after Plaintiffs had filed their Rule 41(a)(1)
dismissal.7
Tesco Corporation had previously filed only a motion
to dismiss under Rule 12(b)(2)-(6).8
A motion to dismiss, unless
converted to one for summary judgment by receipt of matters outside
the pleadings,9 is not the equivalent of an answer or a motion for
7
Document No. 171.
8
See Document No. 57.
9
See FED . R. CIV . P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is
5
summary judgment pursuant to Rule 41(a)(1). See Exxon Corp. v. Md.
Cas. Co., 599 F.2d 659, 661-62 (5th Cir. 1979) (noting that the
right of unilateral dismissal under Rule 41(a)(1) “is not cut off
by a motion to dismiss” unless the Rule 12(b)(6) motion to dismiss
may properly be converted to a motion for summary judgment due to
“the trial court’s receipt of matters outside the pleadings”); see
also In re LaChance, 209 F.3d 7280, 2000 WL 284032, at *2 (5th Cir.
Feb. 9, 2000) (unpublished op.) (“[F]or purposes of Rule 41, a Rule
12(b)(6) motion becomes a motion for summary judgment unless all
extraneous material presented is excluded by the court.” (citing
Exxon Corp., 599 F.2d at 661-62)); Bldg. Concepts and Designs
Constr., Inc. v. Travelers Prop. Cas. Co. of Am., No. Civ.A. 062777, 2006 WL 2294866, at *2 (E.D. La. Aug. 7, 2006) (Vance, J.)
(holding that “the tide of the strong weight of authority” supports
a reading of Rule 41 wherein “the task before the Court is merely
to determine whether an adverse party filed an answer or a motion
for summary judgment before the entry of the notice of dismissal,”
and collecting cases).
At the Rule 16 scheduling conference, all parties agreed that
there was no need for the Court to consider matters outside the
pleadings on Tesco Corporation’s and the Pride Defendants’ motions
to dismiss, and that conversion of that motion into one for summary
pertinent to the motion.”).
6
judgment would be inappropriate.10
Accordingly, neither motion was
converted into one for summary judgment.
Plaintiff’s March 18,
2011
therefore
Rule
dismissed
41(a)(1)
without
Corporation.
Cir.
2010)
“motion
prejudice
to
dismiss”
Plaintiffs’
claims
effectively
against
Tesco
See Qureshi v. United States, 600 F.3d 523, 525 (5th
(explaining
that
Rule
41(a)(1)(A)(i)
dismissal
is
“immediately self-effectuating” without any action by the court);
see also Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474
F.2d 250, 255 (5th Cir. 1973) (“[W]e conclude that it was intended
by
the
rule-makers
to
permit
dismissal
against
such
of
the
defendants as have not served an answer or motion for summary
judgment, despite the fact that the case might remain pending
against other defendants.”).
Moreover,
because
Tesco
US
opposes
Plaintiff’s
voluntary
dismissal of suit based solely upon alleged prejudice to Tesco
Corporation, it has not shown any “plain legal prejudice” to Tesco
US to preclude application of the general rule that voluntary
dismissals should be “freely granted.”
317.
Plaintiffs’
claims
against
See Elbaor, 279 F.3d at
Tesco
US
will
therefore
be
dismissed without prejudice.11
10
See Document No. 175 (Minute Entry Order).
11
Prior to Plaintiffs’ March 18, 2011 filing, the Pride
Defendants filed a cross-claim for “Indemnity and/or Contribution”
against both Tesco US and Tesco Corporation.
Dismissal of
Plaintiffs’ claims against Tesco US and Tesco Corporation has no
effect upon the Pride Defendants’ cross-claims; both Tesco parties
7
B.
The Pride Defendants
1.
Rule 41 Dismissal Without Prejudice
The
Pride
Defendants,
on
the
other
hand,
did
answer
Plaintiffs’ suit before Plaintiffs requested voluntary dismissal.12
Moreover, they have demonstrated that dismissal without prejudice
will cause them “plain legal prejudice other than the mere prospect
of a second suit,” Elbaor, 279 F.3d at 317, because they have shown
that the claims Plaintiffs filed against them in Louisiana are
barred
on
their
face
by
Louisiana’s13
one-year
prescriptive
remain parties to this case with respect to those cross-claims.
See Zoblotsky v. Tenet Choices, Inc., No. 03-2957, 2007 WL 2008506,
at *1 n.1 (E.D. La. July 6, 2007) (holding same (citing Deauville
Corp. v. Garden Suburbs Golf & Country Club, 165 F.2d 431, 432 (5th
Cir. 1948); Heiser v. Ass’n of Apartment Owners of Polo Beach Club,
848 F. Supp. 1482 (D. Haw. 1993); Slotkin v. Brookdale Hosp. Ctr.,
377 F. Supp. 275 (S.D.N.Y. 1974))); see also Aetna Ins. Co. v.
Newton, 398 F.2d 729, 734 (3d Cir. 1968) (“[D]ismissal of the
original complaint as to one of the defendants named therein does
not operate as a dismissal of a cross-claim filed against such
defendant by a co-defendant.” (citing Picou v. Rimrock Tidelands,
Inc., 29 F.R.D. 188 (E.D. La. 1962); Fronmeyer v. L. & R. Constr.
Co., Inc., 139 F. Supp. 579, 585-86 (D.N.J. 1956))); Lipford v. New
York Life Ins. Co., No. 02 Civ. 0092, 2003 WL 21313193, at *3-4
(S.D.N.Y. June 9, 2003) (holding same (citations omitted)).
Moreover, the Court retains supplemental jurisdiction over these
cross-claims, despite any absence of diversity of citizenship
between any of the Pride Defendants and Tesco US. See 28 U.S.C.
§ 1367(a); State Nat’l Ins. Co. Inc. v. Yates, 391 F.3d 577, 580 &
nn. 16-17 (5th Cir. 2004) (holding that 28 U.S.C. § 1367(b)’s
limitation on supplemental jurisdiction does not apply to cross- or
third-party-plaintiffs).
12
See Document No. 138.
13
Post-transfer under 28 U.S.C. § 1404 for the convenience of
the parties, this Court is “to apply the state law that would have
8
statute.14
Indeed, Plaintiffs do not contest that “the claims have
prescribed on the face of the complaint,” but instead assert that
prescription is either interrupted or avoided because of its timely
suit of Tesco US, whom they assert is either a joint tortfeasor or
“solidary
obligor.”
However,
Plaintiffs’
arguments
to
avoid
prescription are immaterial to analysis of their request for
dismissal without prejudice.
See Hyde v. Hoffman-La Roche, Inc.,
511 F.3d 506, 510 (5th Cir. 2007) (“In Elbaor, we agreed with the
district
court
that
‘dismissal
would
potentially
strip
[the
defendant] of a viable statute of limitations defense’ under Texas
law, even though the plaintiffs asserted that the discovery rule
applied and even though it was not known whether limitations would
be unavailable as a defense in a forum in which the suit might be
refiled.”
(quoting
Elbaor,
279
F.3d
at
318)).
Accordingly,
Plaintiffs’ motion to dismiss without prejudice will be denied as
to the Pride Defendants.
been applied if there had been no change of venue,” which means
application of Louisiana state law upon transfer from the Eastern
District of Louisiana. Loughan v. Firestone Tire & Rubber Co., 624
F.2d 726, 728 (5th Cir. 1980) (quoting Van Dusen v. Barrack, 84 S.
Ct. 805 (1964)); see also Hengsgens v. Deere & Co., 869 F.2d 879,
880 (5th Cir. 1989) (“In diversity cases, of course, federal courts
apply state statutes of limitations and related state law governing
tolling of the limitation period.” (citations omitted)).
14
See LA. CIV . CODE art. 3492.
9
Document No. 47 at 3.
2.
Prescription
“[W]hen the plaintiff’s petition has clearly prescribed on its
face, as here, the burden shifts to the plaintiff to prove that
prescription has been suspended or interrupted.” Rizer v. Am. Sur.
& Fid. Ins. Co., 669 So. 2d 387, 388 (La. 1996).
As noted,
Plaintiffs assert that the Pride Defendants are either joint
tortfeasors or solidary obligors with Tesco US, whom they timely
sued.
The filing of suit against one tortfeasor interrupts the
running of prescription as against all joint tortfeasors.
CODE art. 2324(C).
LA . CIV .
Likewise, “[t]he interruption of prescription
against one solidary obligor is effective against all solidary
obligors.”
1799, 3503).
Rizer, 669 So. 2d at 388 (citing LA . CIV . CODE arts.
Plaintiffs may carry their burden of proof if the
allegations in their petition and amended petitions, accepted as
true, establish that the sued defendants are joint tortfeasors or
solidary obligors.
See Vincent v. Tusch, 618 So. 2d 385, 385 (La.
1993);15 see also Marchand v. State Farm Fire & Cas. Ins. Co., 897
15
Although Tusch states this rule respecting whether a
plaintiff has shown whether “the untimely sued defendants are
solidarily liable,” id., and amendments to Louisiana’s civil code
have eliminated solidary liability for joint tortfeasors, see
Comier v. Clemco Servs. Corp., 48 F.3d 179, 182 (5th Cir. 1995);
Dumas v. State ex rel. Dep’t of Culture, Recreation & Tourism, 828
So. 2d 530, 537 (La. 2002), article 2324 still ensures “that the
newly altered relationship between joint tortfeasors [is] still
subject to the traditional rule on interruption,” by expressly
providing that joint tortfeasors, not just solidary obligors,
interrupt prescription. See Comier, 48 F.3d at 182.
10
So. 2d 643, 646-47 (La. Ct. App. 1st Cir. 2004) (finding that
timely filed petition interrupted prescription against later-sued
defendants where “both the original and amending petitions involve
the same accident and assert that the named defendants were jointly
at fault in causing the accident” (following Doyle v. Mitusbishi
Motor Sales of Am., Inc., 764 So. 2d 1041, 1044-45 (La. Ct. App.
1st Cir.), writ denied 765 So. 2d 338 (La. 2000))); accord Lowrey
v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (noting
that, on a Rule 12(b)(6) motion to dismiss, “[t]he complaint must
be liberally construed in favor of the plaintiff, and all facts
pleaded in the complaint must be taken as true”).
Here,
the
complaint
and
amending
complaints
allege
that
Plaintiff Keith Taylor was seriously injured while inspecting a top
drive “manufactured and/or sold by Tesco Corporation (US) and/or
Tesco Corporation,”16 that the top drive was unreasonably dangerous
“due to . . . negligence and/or to poor product design and/or
fabrication defects,”17 and that each of the Pride Defendants “knew
or should have known” about the allegedly defective top drive, but
“failed
to
exercise
safety
precautions
16
necessary
to
prevent
Document No. 72 at 1-2 (Third Am. Cmplt.).
The Fourth
Supplemental and Amended Complaint filed pursuant to this Order,
see supra n.10, recites the same facts relevant to the Court’s
analysis. See Document No. 185, ex. 2 at 3-4.
17
Document No. 1 at 2 (Cmplt.).
11
injuries to workers.”18
As in Marchand and Doyle, Plaintiffs’
allegations “involve the same accident and assert that the named
defendants
were
jointly
at
fault
in
causing
the
accident,”
Marchand, 897 So. 2d at 647, thereby carrying Plaintiffs’ burden.
The Pride Defendants nonetheless assert that Plaintiffs have
failed to carry their burden because Plaintiffs have not shown that
Louisiana substantive law applies to this case, and therefore have
not shown that the defendants are joint tortfeasors.19
However,
nothing in article 2324 appears to limit the concept of “joint
tortfeasor” to a joint tortfeasor under Louisiana substantive law,
and the Pride Defendants have cited no case in support of such a
limited reading of the statute.
To the contrary,
[t]he Louisiana Supreme Court has long held that
“prescriptive statutes are strictly construed against
prescription and in favor of the obligation sought to be
extinguished; thus, of two possible constructions, that
which favors maintaining, as opposed to barring, an
action should be adopted.”
Richard v. Wal–Mart Stores, Inc., 559 F.3d 341, 346–47 (5th Cir.
2009) (quoting Lima v. Schmidt, 595 So. 2d 624, 629 (La. 1992)).
Moreover, the concept of a joint tortfeasor is not unique to
Louisiana law.
See, e.g., BLACK ’S LAW DICTIONARY 1497 (7th ed. 1999)
(defining “joint tortfeasors” as “[t]wo or more tortfeasors who
18
Document No. 36 at 3 (First Am. Cmplt.); Document No. 37 at
2 (Second Am. Cmplt.).
19
See Document No. 54 at 2-3.
12
contributed to the claimant’s injury and who may be joined as
defendants
in
the
same
lawsuit”).
To
conclude
that
“joint
tortfeasors” under article 2324 refers to “joint tortfeasors” only
when Louisiana substantive law is applied is a less reasonable
reading of this prescriptive statute than one that views the
term
as
identifying
a
well-established
concept
in
American
jurisprudence.20 It is therefore not pertinent that Plaintiffs have
not demonstrated that Louisiana--or any other jurisdiction’s-substantive law specifically will apply to this suit.
The Pride Defendants’ motion will therefore be denied, but
without prejudice because the Court’s determination at this stage
is based solely upon the pleadings.
Presently there can be no
ultimate determination whether Tesco US is liable to Plaintiffs for
this accident and, if not, then Tesco US would not be a joint
20
Indeed, Plaintiffs in their most recent amended complaint
assert that Texas law governs their claims. If so, Texas follows
the same concept of a “joint tortfeasor.”
See Gilcrease v.
Garlock, Inc., 211 S.W.3d 448, 457 (Tex. App.--El Paso 2006, no
pet.) (“Joint tortfeasors are defined as parties whose tortious
conduct combines as a legal cause of a single and indivisible harm
to the injured party.” (citing Riley v. Indus. Fin. Serv. Co., 302
S.W.2d 652, 655 (Tex. 1957))). To the extent the Pride Defendants
imply that Mexican law is different from Louisiana’s or Texas’s and
should apply to Plaintiffs’ claims, see Document No. 54 at 2-3, it
is their burden to establish the differences, if any, between that
law and the law of the local forum. RESTATEMENT (SECOND ) CONFLICT OF
LAWS § 136 cmt. f (1971) (“[T]he party who claims that the foreign
law is different from the local law of the forum has the burden of
establishing the content of the foreign law.”). Upon their failure
to do so, the court “is entitled to look to its own forum’s law in
order to fill any gaps.”
Banco de Credito Indus., S.A. v.
Tesoreria Gen., 990 F.2d 827, 836 (5th Cir. 1993).
13
tortfeasor
with
the
Pride
Defendants.
In
the
latter
event,
Plaintiffs’ suit against Tesco US would not have interrupted the
prescriptive
period.
See
Hughes
v.
Pogo
Producing
Co.,
No.
06-1894, 2009 WL 367513, at *4 (W.D. La. Feb. 12, 2009) (“The Court
notes it cannot determine at this time whether the plaintiffs’
claims against ENI are prescribed. . . . The liability of the
timely-sued defendants in this matter--Pogo and Discovery--has not
been determined by this Court and must be determined either by way
of motion prior to trial or at trial.”); accord Renfroe v. State ex
rel. Dep’t of Transp. and Dev., 809 So. 2d 947, 950 (La. 2002)
(“[A] suit timely filed against one defendant does not interrupt
prescription as against other defendants not timely sued, where the
timely sued defendant is ultimately found not liable to plaintiffs,
since no joint or solidary obligation would exist.” (emphasis
added)).21
21
Arguably, Tesco US may ultimately be held liable for
Plaintiffs’ injuries by virtue of Plaintiffs’ prosecution of the
Texas state court action against Tesco US. That such liability may
be found in a Texas state court action does not preclude its
interrupting effect. Accord Taylor v. Liberty Mut. Ins. Co., 579
So. 2d 443, 445 (La. 1991) (“Prescription is interrupted when an
obligee commences an action against his obligor that is timely in
a court of competent jurisdiction and venue under the law of the
forum, regardless of whether the forum is a Louisiana Court. . . .
Thus, such a suit . . . against a tortfeasor in a court sitting in
another state has the same interruptive effect upon prescription of
the obligation . . . as it would have if filed properly and timely
in Louisiana.”).
14
III.
Order
Accordingly, it is
ORDERED that Plaintiffs’ Motion to Dismiss Without Prejudice
(Document No. 154) is GRANTED with respect to Defendant Tesco
Corporation simply as a memorial of Plaintiffs’ dismissal without
prejudice of Tesco Corporation, which was effective on March 18,
2011, when the motion was filed; the motion is GRANTED with respect
to Tesco Corporation (US) for the reasons stated in the foregoing
Memorandum; and the motion is otherwise DENIED.
It is further
ORDERED that the Motion to Dismiss Tesco Corporation Pursuant
to Fed. R. Civ. P. 12 (Document No. 57) is DENIED AS MOOT.
It is
further
ORDERED that Defendants Pride International, Inc. and Mexico
Drilling, LLC’s Motion to Dismiss Pursuant to Rule 12(b)(6) on
Basis of Prescription (Document No. 46) is DENIED, but without
prejudice to the motion timely being reasserted on their claimed
defense of prescription if at a future time it is adjudicated that
Tesco US is not a joint tortfeasor with the Pride Defendants.
The Clerk will enter this Order and send copies to all parties
of record.
SIGNED at Houston, Texas on this 8th day of September, 2011.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
15
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