Opinion
Civil Action No: 00-1484, et seq., Section: "R" (4)
May 3, 2001
ORDER AND REASONS
Before this Court is defendant Falcon Operators' motion in limine to preclude Dr. Louis Blanda from testifying at trial and to exclude Dr. Blanda's medical records of plaintiff, Ricky Ardoin. For the reasons set forth below, the motion is DENIED as premature.
Falcon moves to exclude plaintiff's treating physician, Dr. Louis Blanda, from testifying because it claims that Dr. Blanda has not been available for deposition and will not be available until after the trial date, Plaintiff, Ricky Ardoin, opposes the motion and requests sanctions under Federal Rule of Civil Procedure 11.
Under the Federal Rules of Civil Procedure, a party can subpoena a person and thereby command the person subpoenaed to "attend and give testimony or to produce and permit inspection and copying of designated book, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified." FED.R.Civ.p. 45(1)(C). Falcon has not served Dr. Blanda with a subpoena; therefore, its motion to exclude Dr. Blanda is premature. Accordingly, the Court denies the motion in limine.
In his opposition, plaintiff requests sanctions under Federal Rule of Civil Procedure 11. This request is also premature. The Rule establishes a procedure for moving for sanctions. Sanctions may be initiated by motion as follows:
(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
FED.R.CIV.p. 11(c)(1)(a). Thus, a party must serve a motion for sanctions upon the opposing party but cannot file the motion with the Court until 21 days after such service. "This `safe harbor' provision . . . contemplates such service to give the parties at whom the motion is directed an opportunity to withdraw or correct the offending contention. The plain language of the rule indicates that this notice and opportunity (to cure) prior to filing is mandatory." Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995) (vacating sanctions imposed by district court for failure to comply with the 21-day procedure). Falcon filed its motion in limine on April 9, 2001. Plaintiff filed his opposition and request for sanctions fifteen days later, on April 24, 2001. Therefore, plaintiff did not comply with Rule 11(c)(1)(A). Accordingly, the Court denies plaintiff's request for sanctions.
ORDER AND REASONS
Before the Court is Falcon's Motion to Reduce Limitation Fund to Account for Settlement. For the reasons stated below, the Court denies the motion.
I. BACKGROUND AND DISCUSSION
This case arises out of an accident that occurred on April 21, 2000, when a lift barge, the L/B JOHNETTE, owned by Falcon Operators, Inc., capsized and became partially submerged when a leg of the lift barge allegedly collapsed into a can hole on the ocean floor in the territorial waters of Louisiana. On July 18, 2000, Falcon sought exoneration from, or limitation of, its liability under the Limitation of Liability Act 46 U.S.C. § 181-196. Falcon posted an ad interim stipulation of $54,080.00, representing the value of Falcon's interest in the L/B JOHNETTE. Falcon has settled with a number of claimants and now seeks a pro rata reduction of the amount in the limitation fund to reflect these settlements. Trial in this matter is set for June 18, 2001, and there has been no liability determination.
Federal Rule of Civil Procedure Supplemental Rule F(8) states that " [u]pon determination of liability," the limitation fund "shall be divided pro rata, . . . among the several claimants in proportion to the amounts of their respective claims." FED.R.CIV.P. Supp. Rule F(8) (emphasis added). See In re Kristie Leigh Enterprises, Inc., 168 F.3d 206, 209 (5th Cir. 1999) (dollar-for-dollar reduction of limitation fund for amount of settlements is inconsistent with pro rata approach taken in Rule F(8)); Bouchard Transp. Co. v. Updegraff, 147 F.3d 1344, 1347 (11th Cir. 1998) ("Rule F implements the provisions of the Limitation Act by providing a mechanism for the pro rata distribution among claimants of the fund created by the Limitation Act's liability limits."). Because liability has not been determined and all of the claims have not been valued, there is no way to determine the pro rata share to which successful claimants are entitled. Accordingly, the Court denies Falcon's motion to reduce the limitation fund as premature.
III. CONCLUSION
For the reasons stated, the Court DENIES Falcon's motion to reduce the limitation fund.
ORDER AND REASONS
Before this Court is defendant ENSCO Offshore Company's motion to enter final judgment pursuant to Federal Rule of Civil Procedure 54(b). The motion is unopposed. For the reasons set forth below, the motion is granted.
When deciding whether to certify a judgment under Rule 54(b), a district court must make two determinations. See Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8, 100 S.Ct. 1460, 1464-65 (1980). "First, the district court must determine that `it is dealing with a final judgment.'"
Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enterprises, 170 F.3d 536, 539 (5th Cir. 1999) (quoting Curtiss-Wright, 446 U.S. at 7, 110 S.Ct. at 1464). A judgment is final if "it is `an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Id. (quoting Curtiss-Wright, 446 U.S. at 7, 110 S.Ct. at 1464). Second, the district court must determine "whether any just reason for delay exists." Id. (quoting Curtiss-Wright, 446 U.S. at 8, 110 S.Ct. at 1465) In making this determination, the district court must weigh "`the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.'" Road Sprinkler Fitters Local Union v. Continental Sprinkler Co., 967 F.2d 145, 148 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324 (1950)).
On April 12, 2001, this Court granted ENSCO's motion for summary judgment dismissing the remaining plaintiffs' claims against it. Accordingly, under the first determination factor, there has been an ultimate disposition of plaintiffs' claims against ENSCO. Under the second factor, the Court has weighed the considerations and finds no just reason to delay certifying that determination as final. The motion for summary judgment was unopposed, and this Rule 54(b) motion is likewise unopposed. An appeal appears unlikely. Thus, piecemeal review does not appear to be an issue. Therefore, the Court grants ENSCO's motion to enter final judgment.