Perio v. Titan Maritime, LLC et al
Filing
29
MEMORANDUM OPINION AND ORDER denying 20 Supplemental MOTION to Remand. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSH PERIO,
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§
§
§
§
§
§
§
Plaintiff,
v.
TITAN MARITIME, LLC and
T&T MARINE SALVAGE, INC.,
Defendants.
CIVIL ACTION NO. H-13-1754
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff Josh Perio's Renewed
Motion for Remand (Docket Entry No. 20).
For the reasons explained
below, Perio's Renewed Motion for Remand will be denied.
I.
Background
Defendant Titan Maritime, LLC
("Titan")
removed this action
from the 129th Judicial District Court of Harris County, Texas, on
June 17, 2013. 1
Titan argued that removal was proper on the basis
of diversity jurisdiction because T&T Marine Salvage, Inc.
was improperly joined. 2
Perio filed his first Motion for Remand on
July 16, 2013. 3
1Defendant's Notice of Removal, Docket Entry No.1.
2Id.
at 3
~
("T&T")
12.
3Plaintiff's Motion for Remand, Docket Entry No.9.
The court denied Perio's Motion for Remand on October 8,
2013. 4
The court held that to the extent that Texas law applies to
this case,
T&T is
immune from suit under the exclusive remedy
provision of the Texas Workers' Compensation Act ("TWCA") and there
is not a reasonable basis to predict that Perio might be able to
recover against T&T in state court.s
The court noted,
however,
that on the facts presented it was "unable to determine whether and
to what extent Perio's cause of action is governed by the general
maritime law.,,6
Because the applicability of general maritime law
could
the
bear
on
propriety
of
remand,
the
court
required
additional briefing from the parties. 7
Perio filed his Renewed Motion to Remand on October 25, 2013. 8
Titan and T&T (collectively, "Defendants") filed separate responses
on November 14,
2013. 9
On November 25,
2013,
Perio filed his
Reply.10
4Memorandum Opinion and Order, Docket Entry No. 16.
SId. at 12-18.
6Id. at 26.
7Id. at 36.
8Plaintiff's Renewed Motion for Remand, Docket Entry No. 20.
9T&T Marine Salvage, Inc.'s Response to Plaintiff's Renewed
Motion for Remand ("T&T's Response"), Docket Entry No. 21i Titan
Maritime, LLC's Response in Opposition to Plaintiff's Renewed
Motion for Remand ("Titan's Response"), Docket Entry No. 22.
10Reply in Support of Plaintiff's Renewed Motion for Remand and
Objection to Affidavit of Kevin Teichman ("Reply"), Docket Entry
(continued ... )
-2-
On November 27, 2013, Defendants moved to file a surreply in
order to address certain allegations,
raised in Perio's Reply. 11
December 3,
2013. 12
evidence,
and obj ections
Defendants filed their Surreply on
Perio filed his objections to the evidence
presented in Defendants' Surreply on December 5, 2013. 13
Defendants
filed a response to Perio's objections on December 11, 2013. 14
II.
Perio's Renewed Motion for Remand
Perio argues that general maritime law applies in this case .15
Perio further argues that under the general maritime law he may be
able to recover against T&T,
his non-diverse employer,
despite
T&T's provision of workers' compensation insurance and the TWCA's
10 ( ... continued)
No. 23.
11Joint Motion for Leave to File a Surreply and Request for
Expedited Consideration of the Motion, Docket Entry No. 24.
12Defendants' Joint Surreply to Plaintiff's Reply in Support
of Plaintiff's Renewed Motion for Remand and Objection to Affidavit
of Kevin Teichman ("Surreply"), Docket Entry No. 26.
13Plaintiff's Objection to the Affidavits of Gordon Amos and
Elias Psyllos, Attached to Defendants' Surreply ("Plaintiff's
Objection"), Docket Entry No. 27.
14Defendants' Joint Response to Plaintiff's New Affidavit and
Plaintiff's Objections to Affidavits of Gordon Amos and Elisa
Psyllos ("Defendants' Joint Response"), Docket Entry No. 28.
15Plaintiff's Renewed Motion for Remand, Docket Entry No. 20,
pp. 3-9 ~~ 9-28; Reply, Docket Entry No. 23, pp. 1, 3-7 ~~ 6-16.
-3-
exclusive remedy provision. 16
See Green v. Vermilion Corp.,
144
F.3d 332 (5th Cir. 1998); King v. Universal Elec. Const., 799 F.2d
1073,
1074
(5th Cir.
Richfield Co.,
1986)
580 F.2d 841,
(per curiam)
847
Thibodaux v.
i
(5th Cir.
1978).
Atlantic
Accordingly,
Perio argues that T&T was properly joined and complete diversity is
lacking .17
"[T]he question of whether maritime law applies is not always
conclusively answered at the removal stage of a lawsuit.
be
insufficient
factual
development
at
that
time
There may
to determine
either the cause of the incident or the general character of the
activity giving rise to it."
Barker v. Hercules Offshore. Inc.,
713 F.3d 208, 218 (5th Cir. 2013).
Much of the parties' briefing
has focused on factual allegations concerning the events giving
rise
to
Perio's
injuries
and
how
those
facts
bear
applicability of general maritime law in this case. 18
on
the
The court
appreciates the parties' briefing on the issues, but realizes that
16Plaintiff's Renewed Motion for Remand, Docket Entry No. 20,
pp. 10-12 ~~ 29-33.
17Id. at 12-13 ~~ 34-36.
Titan acknowledges that if general
maritime law applies, it "would destroy complete diversity in this
matter" because "maritime law would preempt the TWCA" and thus
"Perio could theoretically recover against T&T on a general
mari time claim in state court." Titan's Response, Docket Entry No.
22, p. 6 ~~ 10-11.
18Plaintiff's Renewed Motion for Remand, Docket Entry No. 20,
pp. 3-9 ~~ 9-28; T&T's Response, Docket Entry No. 21, pp. 3-9;
Titan's Response, Docket Entry No. 22, pp. 3-6 ~~ 5-9; Reply,
Docket Entry No. 23, pp. 3-7 ~~ 6-16; Surreply, Docket Entry
No. 26, pp. 3-10 ~~ 3-12 i Plaintiff's Obj ection, Docket Entry
No. 27, pp. 2-3 ~~ 3-8; Defendants' Joint Response, Docket Entry
No. 28, pp. 2-4.
-4-
there is a fundamental dispute about the facts that ultimately goes
to the merits of Perio's claims.
The court is of the opinion that
a motion to remand is not the appropriate vehicle for resolution of
these disputed factual issues.
Accordingly, the parties may file
motions for summary judgment in accordance with the court's Docket
Control Order of October 4, 2013,19 and the court will reconsider
its subject matter jurisdiction at that time.
III.
Conclusion and Order
For the reasons explained above,
Perio's Renewed Motion for
Remand (Docket Entry No. 20) is DENIED.
SIGNED at Houston, Texas, on this
2013.
SIM LAKE
UNITED STATES DISTRICT JUDGE
19Docket Control Order, Docket Entry No. 15.
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