Batiste v. Quality Construction & Production L L C et al

MOTION for Summary Judgment

W.D. La.May 11, 2017

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISON DONALD BATISTE NO.: 6:14-CV-03045 VERSUS JUDGE REBECCA F. DOHERTY QUALITY COSNTRUCTION & MAGISTRATE JUDGE PRODUCTION LLC, ET AL PATRICK J. HANNA ALLIANCE OFFSHORE L.L.C’S MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes defendant, Alliance Offshore L.L.C. (“Alliance”) who submits this Motion for Summary Judgment on the basis that Plaintiff’s claims against Alliance are time barred and should be dismissed as a matter of law. Plaintiff, Donald Batiste, alleges he was injured on October 26, 2013. Alliance’s Motion for Summary Judgment should be granted for the following reasons: 1. Plaintiff’s claims against Alliance are time barred. Plaintiff pleads on the face of his Second Supplemental and Amending Complaint that he was injured on October 26, 2013, but failed to file suit against Alliance until November 21, 2016, more than three years after the date of the accident. General maritime law applies a three year statute of limitations period, making Plaintiff’s claims against Alliance time barred. 2. Plaintiff’s claims against Alliance do not relate back to the original complaint because: a. Alliance did not learn of the lawsuit, until it was served on December 28, 2016, more than 120 days after the filing of the original lawsuit. b. Alliance did not know, or should have known but for a mistake of the identity of the party that this lawsuit was filed. Kilgore Offshore Inc. was originally named as a defendant. There is no identity of interest between Alliance and Kilgore Offshore Inc. to infer notice because the entities do not share counsel, do not share employees, and are not so closely related. Case 6:14-cv-03045-RFD-PJH Document 82 Filed 05/11/17 Page 1 of 2 PageID #: 293 2 For the reasons stated herein, and discussed more fully in the accompanying memorandum in support, Alliance’s Motion for Summary Judgment should be granted and all claims against Alliance dismissed accordingly. Respectfully submitted, /s/ Jennifer E. Barriere R. Joshua Koch, Jr.(La. Bar No. 07767) Jennifer E. Barriere (La Bar No. 34435) Koch & Schmidt, L.L.C. 650 Poydras Street, Suite 2660 New Orleans, Louisiana 70130 Telephone: (504) 208-9040 Facsimile: (504) 208-9041 JKoch@kochschmidt.com Jbarriere@kochschmidt.com Attorneys for Defendant Alliance Offshore LLC CERTIFICATE OF SERVICE I hereby certify that a copy of this pleading has been served upon all parties of record via the Court’s electronic filing system, this 11th day of May, 2017. /s/ Jennifer E. Barriere Jennifer E. Barriere Case 6:14-cv-03045-RFD-PJH Document 82 Filed 05/11/17 Page 2 of 2 PageID #: 294 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISON DONALD BATISTE NO.: 6:14-CV-03045 VERSUS JUDGE REBECCA F. DOHERTY QUALITY COSNTRUCTION & MAGISTRATE JUDGE PRODUCTION LLC, ET AL PATRICK J. HANNA ALLIANCE OFFSHORE L.L.C’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes defendant, Alliance Offshore L.L.C. (“Alliance”) who submits this memorandum in support of its motion for summary judgment on the basis that Plaintiff’s claims against Alliance are time barred, and should be dismissed as a matter of law. I. SUMMARY OF ARGUMENT Plaintiff, Donald Batiste, alleges he was injured on October 26, 2013. Compt. ¶¶ 14-16. Alliance’s Motion for Summary Judgment should be granted for the following reasons: 1. Plaintiff’s claims against Alliance are time barred. Plaintiff pleads on the face of his Second Supplemental and Amending Complaint that he was injured on October 26, 2013, but failed to file suit against Alliance until November 21, 2016, more than three years after the date of the accident. General maritime law applies a three year statute of limitations period, making Plaintiff’s claims against Alliance time barred. 2. Plaintiff’s claims against Alliance do not relate back to the original complaint because: a. Alliance did not learn of the lawsuit, until it was served on December 28, 2016, more than 120 days after the filing of the original lawsuit. b. Alliance did not know, or should have known but for a mistake of the identity of the party that this lawsuit was filed. Kilgore Offshore Inc. was originally named as a defendant. There is no identity of interest between Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 1 of 9 PageID #: 295 2 Alliance and Kilgore Offshore Inc. to infer notice because the entities do not share counsel, do not share employees, and are not so closely related. II. PROCEDURAL BACKGROUND On October 16, 2014, Plaintiff filed his Complaint against Quality Construction & Production LLC, Helmerich & Payne International Drilling Co, and Arena Energy, claiming he sustained injuries from an accident that took place on October 26, 2013. (R. Doc. 1). On August 5, 2016, Plaintiff filed a First Supplemental and Amending Complaint adding WDS Global Partners LLC, RCI Consultants Inc, and Kilgore Offshore Inc. (“Kilgore”), as defendants. (R. Doc. 44). Thereafter, on November 21, 2016, Plaintiff moved the Court to amend his Complaint. (R. Doc. 58). On November 28, 2016, the Court granted Plaintiff’s Motion to Amend/Correct Complaint and filed Plaintiff’s Second Supplemental and Amending Complaint into the record, wherein he named Alliance as a Defendant. (R. Docs. 59-60). Notably, Kilgore has not been dismissed from this lawsuit. Alliance was served with the Second Supplemental and Amending Complaint on December 28, 2016 (R. Doc. 68). III. LAW & ARGUMENT A. Summary Judgment Standard Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 2 of 9 PageID #: 296 3 party must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. The non-movant cannot avoid summary judgment simply by presenting conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). B. Plaintiff’s claims are time barred because Alliance was named as a defendant more than three years from the date of the accident. Plaintiff asserts a negligence claim against Alliance under general maritime law, and alternatively the Jones Act. See Complaint, ¶¶ 1, 23. 1 In this case, Plaintiff’s claim is time barred because it was not commenced “within three years from the day the cause of action arose.” 46 U.S.C. 30106. Under the rule applied in maritime cases, the cause of action accrued when Plaintiff “had a reasonable opportunity to discover his injury, its cause, and the link between the two.” Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991). Similarly, a three-year statute of limitations governs actions under the Jones Act. Taurel v. Cent. Gulf Lines, Inc., 947 F.2d 769, 771 (5th Cir. 1991); see Pretus v. Diamond Offshore Drilling, Inc., 571 F.3d 478, 481 (5th Cir. 2009). Here, Plaintiff’s claims began to run on the date of the accident, October 26, 2013, and expired on October 26, 2016. However, Plaintiff did not file suit against Alliance until November 21, 2016, more than three years after the accident. R. Doc. 58. Accordingly, Plaintiff’s claims are time-barred against Alliance on the face of the pleading. 1 While Plaintiff alternatively asserts a claim under the Jones Act, he does not specifically claim seaman status. Notwithstanding, a seaman's claims for negligence against parties other than his employer are governed by general maritime law rather than the Jones Act. See THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-15 (4th ed.2004). Regardless, both have a statute of limitations period of three years. Furthermore, because Alliance did not employ Plaintiff, the Longshore and Harbors Workers Compensation Act is also inapplicable in this case. Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 3 of 9 PageID #: 297 4 C. Plaintiff’s claim against Alliance do not relate back to the original complaint. The addition of a new defendant commences the lawsuit as to it. Braud v. Transport Service Co. of Illinois, 445 F.3d 801, 806 (5th Cir.2006). Accordingly, Plaintiff’s claims against Alliance are time-barred unless the claims “relate back” to the original complaint, which they do not. An amended complaint relates back to the original timely filed complaint, and thus itself is timely even though it was filed outside the applicable statute of limitation, only under certain circumstances governed by Fed. R. Civ. P. 15. The Rule states: An amendment to a pleading relates back to the date of the original pleading when: … (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the property party’s identity. Fed. R. Civ. P. 15(c)(1)(C). The Fifth Circuit noted that “that Rule 15(c)(1)(C) apparently refers only to substituting or changing a defendant rather than adding a new defendant, and that the Rule provides an exception for the misnomer of a defendant.” Tapp v. Shaw Envtl., Inc., 401 F. App'x 930, 932 (5th Cir. 2010)(emphasis added). In this case, Alliance was not “substituted” for Kilgore, as Kilgore still remains in the suit. See Docket. Indeed, Plaintiff never dismissed Kilgore. Thus, Rule 15 is in applicable in this case, and Plaintiff’s claims should be dismissed for being time barred against Alliance. Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 4 of 9 PageID #: 298 5 Notwithstanding, despite Plaintiff’s claims being time barred, Alliance will still undergo the Rule 15 analysis. The amended Rule 15(c) is “meant to allow an amendment changing the name of a party to relate back to the original complaint only if the change is the result of an error, such as a misnomer or misidentification.” Id. at 320. Rule 4(m) provides a 120–day time period in which a defendant must be served after a complaint is filed, and this 120–day period also applies to Rule 15(c)’s provisions. Tapp., 401 F. App'x at 933. In applying Fed. R. Civ. P. 15, four factors must be satisfied: 1. the basic claim must have arisen out of the conduct set forth in the original pleadings; 2. the added party must have received sufficient notice that it would not be prejudiced in maintaining its defense; 3. the added party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and 4. the added party had notice within 120 days following the filing of the complaint, or longer if good cause is shown. Jacobsen v. Osborne, 133 F.3d 315, 320(5th Cir. 1998)(citing Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 545)(5th Cir.1992). In this case, multiple factors cannot be satisfied thereby prohibiting Plaintiff’s claims of relating back under Rule 15. First, Alliance did not receive notice of the action within 120 days of the filing of the original complaint. Indeed, Alliance’s General Counsel attests that Alliance first received notice of this lawsuit’s existence when it was served with the Second Supplemental and Amending Complaint on December 28, 2016, more than 120 days from the filing of the original Complaint on October 16, 2014. (R. Doc. 1, 68). See Exhibit A. Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 5 of 9 PageID #: 299 6 Second, Alliance did not know or should have known that the suit was filed, but for a mistake concerning an identity of the proper party, i.e. because Kilgore was named. 2 As this Court explained, “Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. This result is necessitated by the goals of relation-back and Rule 15(c)[]: to correct a mistake concerning the identity of a party.” Jenkins v. Stan Ware Enterprises, Inc., 2008 WL 4091926, at *5 (W.D. La. Aug. 27, 2008)(citing Jacobson, 155 F.3d at 321)(emphasis in original)(internal citations omitted). 3 In this case, Plaintiff initially named Kilgore as a defendant. Indeed, Plaintiff fully intended to sue Kilgore. Stated differently, there was no error in naming Kilgore, and Plaintiff has not dismissed Kilgore such that Kilgore remains in the suit. Kilgore is a separate, distinct and unrelated entity from Alliance, such that there was no “mistake” when Plaintiff named Kilgore as a defendant. See Tapp, 401 F. App'x at 932 (“Rule [15] provides an exception for the misnomer of a defendant.”); see Jenkins v. Stan Ware Enterprises, Inc., 2008 WL 4091926, at *6 (W.D. La. Aug. 27, 2008)(“Relation back under Rule 15(c) is not permitted when the plaintiff simply lacks knowledge of the proper party.”). Moreover, by initially naming Kilgore as a defendant, Alliance was not put on notice nor had constructive notice of this lawsuit, as the two are separate and unrelated entities. See Exhibit A. Stated differently, Alliance did not know, or should have known, but absent some mistake, this lawsuit would have been brought against it. In addition, there is no identity of interest to infer notice from the original defendant, Kilgore, to the added defendant, Alliance. In the Fifth Circuit, courts will “infer notice if there is 2 As stated above, Kilgore has not even been dismissed from the suit, so no substitution has occurred. 3 The Plaintiff in Jenkins v. Stan Ware Enterprises, Inc., 2008 WL 4091926 incorrectly cited Fed. R. Civ. P. 15(c)(3), but no such provision exists. Accordingly, the Court assumes the Plaintiff made a clerical mistake and applies Fed. R. Civ. P. (c)(1)(C) for analysis purposes. Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 6 of 9 PageID #: 300 7 an identity of interest between the original defendant and the defendant sought to be added or substituted.” Jacobson v. Osborne, 133 F.3d 315, 320 (5 th Cir. 1998). “Identity of interest generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to other.” Id. Courts in the Fifth Circuit have found an “identity of interest” when multiple parties/defendants are represented by the same attorney. Id. at 320. An identity of interest has also been found when defendants shared employees. See also Gifford v. Wichita Falls & So., 224 F. 2d 374, 376-77 (5th Cir. 1955)(finding an identify interest when the two defendants shared employees); Pitre v. Tetra Technologies, 2008 WL 4831657 (E.D. La. 2008)(contractual relationships by themselves are insufficient to demonstrate a community of interest justifying an imputation of knowledge). In this case, Alliance and Kilgore do not share counsel nor do not the two companies share employees. Specifically, Kilgore is a boat broker for various charterers of offshore service vessels and the operators of such vessels. Conversely, Alliance is in the business of chartering, sub-chartering and/or operating certain offshore service vessels. The two companies have a brokerage agreement. See Exhibit B. Although Kilgore and Alliance may have a contractual relationship, said relationship is insufficient to establish an identity of interest to satisfy Rule 15(c). Moreover, Kilgore is not the exclusive broker for Alliance further proving the two entities are not so closely related. See Exhibits A-B; see also Pitre, 2008 WL 4831657, *6 (E.D. La. Nov. 6 2008)(“there is nothing to indicate [the old defendant and newly named defendant] have a parent –subsidiary relationship, share a substantial number of corporate officers or directors, or are otherwise closely related in their business operations” to find an identify of interest.”). Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 7 of 9 PageID #: 301 8 IV. CONCLUSION As demonstrated above, Plaintiff’s claims against Alliance are time barred and should be dismissed as a matter of law. Plaintiff’s claims are prescribed on the face of his Second Supplemental and Amending Complaint. Indeed, Plaintiff was injured on October 26, 2013, but failed to file suit against Alliance until November 21, 2016, more than three years after the date of the accident. Because General maritime law applies a three year statute of limitations period, Plaintiff’s claims against Alliance are time barred. Furthermore, Plaintiff’s claims against Alliance do not relate back to the original complaint, because Alliance did not learn of the lawsuit until it was served on December 28, 2016, more than 120 days after the filing of the original lawsuit; and Alliance did not know, or should have known but for a mistake of the identity of the party that this lawsuit was filed. Significantly, Alliance was added as a defendant to this lawsuit, not substituted, making Rule 15 inapplicable. In addition, Alliance does not share an identity of interest with any other defendant thereby making Rule 15 further inapplicable. Accordingly, for these reasons, summary judgment must be granted with respect to Plaintiff’s claims against Alliance. Respectfully submitted, /s/ Jennifer E. Barriere R. Joshua Koch, Jr.(La. Bar No. 07767) Jennifer E. Barriere (La Bar No. 34435) Koch & Schmidt, L.L.C. 650 Poydras Street, Suite 2660 New Orleans, Louisiana 70130 Telephone: (504) 208-9040 Facsimile: (504) 208-9041 JKoch@kochschmidt.com Jbarriere@kochschmidt.com Attorneys for Defendant Alliance Offshore LLC Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 8 of 9 PageID #: 302 9 CERTIFICATE OF SERVICE I hereby certify that a copy of this pleading has been served upon all parties of record via the Court’s electronic filing system, this 11th day of May, 2017. /s/ Jennifer E. Barriere Jennifer E. Barriere Case 6:14-cv-03045-RFD-PJH Document 82-1 Filed 05/11/17 Page 9 of 9 PageID #: 303 EXHIBIT A Case 6:14-cv-03045-RFD-PJH Document 82-2 Filed 05/11/17 Page 1 of 2 PageID #: 304 Case 6:14-cv-03045-RFD-PJH Document 82-2 Filed 05/11/17 Page 2 of 2 PageID #: 305 EXHIBIT B Case 6:14-cv-03045-RFD-PJH Document 82-3 Filed 05/11/17 Page 1 of 3 PageID #: 306 Case 6:14-cv-03045-RFD-PJH Document 82-3 Filed 05/11/17 Page 2 of 3 PageID #: 307 Case 6:14-cv-03045-RFD-PJH Document 82-3 Filed 05/11/17 Page 3 of 3 PageID #: 308 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISON DONALD BATISTE NO.: 6:14-CV-03045 VERSUS JUDGE REBECCA F. DOHERTY QUALITY COSNTRUCTION & MAGISTRATE JUDGE PRODUCTION LLC, ET AL PATRICK J. HANNA STATEMENT OF UNCONTESTED MATERIAL FACTS Defendant, Alliance Offshore L.L.C. (“Alliance”) submits this statement of uncontested material facts in support of its Motion for Summary Judgment, and represents the following: 1. On October 16, 2014, Plaintiff filed his Complaint against Quality Construction & Production LLC, Helmerich & Payne International Drilling Co, and Arena Energy, claiming he sustained injuries from an accident that took place on October 26, 2013. 2. On August 5, 2016, Plaintiff filed a First Supplemental and Amending Complaint adding WDS Global Partners LLC, RCI Consultants Inc, and Kilgore Offshore Inc. (“Kilgore”) as defendants. 3. On November 21, 2016, Plaintiff filed a Motion to Amend/Correct Complaint. 4. In the Motion to Amend/Correct Complaint, Plaintiff moves the Court to amend his Complaint and name additional parties. 5. On November 28, 2016, this Court granted Plaintiff’s Motion to Amend/Correct. 6. On November 28, 2016, Plaintiff’s Second Supplemental and Amending Complaint was filed into the record, wherein Alliance is named as a defendant. 7. Alliance was served with the Second Supplemental and Amending Complaint on December 28, 2016. 8. Kilgore has not been dismissed from this lawsuit, and remains named in this lawsuit. Case 6:14-cv-03045-RFD-PJH Document 82-4 Filed 05/11/17 Page 1 of 2 PageID #: 309 2 Respectfully submitted, /s/ Jennifer E. Barriere R. Joshua Koch, Jr.(La. Bar No. 07767) Jennifer E. Barriere (La Bar No. 34435) Koch & Schmidt, L.L.C. 650 Poydras Street, Suite 2660 New Orleans, Louisiana 70130 Telephone: (504) 208-9040 Facsimile: (504) 208-9041 JKoch@kochschmidt.com Jbarriere@kochschmidt.com Attorneys for Defendant Alliance Offshore LLC CERTIFICATE OF SERVICE I hereby certify that a copy of this pleading has been served upon all parties of record via the Court’s electronic filing system, this 11th day of May, 2017. /s/ Jennifer E. Barriere Jennifer E. Barriere Case 6:14-cv-03045-RFD-PJH Document 82-4 Filed 05/11/17 Page 2 of 2 PageID #: 310