Doss v. K2 M/V et al, No. 2:2015cv01539 - Document 41 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting MOTION 17 for Summary Judgment filed by Dockside Linemen Inc.. Signed by Judge Sarah S. Vance on 4/15/16.(jjs)
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Doss v. K2 M/V et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DONALD DOSS CIVIL ACTION VERSUS NO. 15-1539 M/ V K2, ET AL. SECTION “R” (5) ORD ER AN D REASON S Defendant Dockside Linem en, Inc. m oves the Court to grant sum m ary judgm ent on plaintiff Donald Doss’s claim s arising under the J ones Act, 46 U.S.C. § 30 10 4.1 Because Doss is not a “seam an” within the m eaning of the J ones Act, the Court grants the m otion. I. BACKGROU N D In spring 20 14, Plaintiff Donald Doss worked for defendant Dockside Linem en, Inc.2 Dockside Linem en provides tem porary laborers on an asneeded, day-to-day basis to com panies in south Louisiana.3 These com panies include bulk-cargo term inals, such as defendant Associated Term inals, Inc. According to Doss’s payroll records, from February 20 14 1 See R. Doc. 17-2 at 6-9 (Dockside Linem en Payroll Records). 2 R. Doc. 27, Exhibit A, at 1 ¶2 (Affidavit of Donald Doss). 3 Id. at ¶¶1-3. 1 Dockets.Justia.com through May 20 14, Doss worked a total of fifty-seven days for Dockside Linem en, which outsourced Doss to four different com panies. Doss spent four days out of fifty-seven (February 24, April 10 , May 8, and May 12) working for Associated Term inals.4 Associated Term inals owns and operates a structure currently known as the M/ V MGMT (form erly known as the M/ V K2).5 According to Dockside Linem en, the MGMT is a “m idstream -transfer term inal.”6 According to Doss, the MGMT is a “work barge vessel and m idstream grain transfer vessel.”7 Regardless, when Doss was assigned to work for Associated Term inals, he worked on board the MGMT loading and unloading grain from barges or vessels on the Mississippi River. 8 4 See R. Doc. 17-2 at 6-9. 5 Doss’s com plaint refers to the “M/ V K2,” while his opposition to the m otion for sum m ary judgm ent refers to the “M/ V MGMT.” The record reflects that both nam es refer to the sam e structure. See, e.g., R. Doc. 17, Exhibit A, at 1 ¶ 5 (Declaration of Linda Slatten) (“Doss work[ed] on Associated Term inals’ m idstream -transfer term inal called the MGMT (previously known as ‘K2’).”); R. Doc. 17, Exhibit B, at 18 (“For the record, let’s say when we refer to the K2, okay, is now called MGMT, okay? So those are interchangeable term s.”), 54 (“At location, MGMT. That’s the new nam e for K2 . . . .”). 6 R. Doc. 17-1 at 2. 7 R. Doc. 27 at 1. 8 See R. Doc. 27, Exhibit A, at 1 ¶1. 2 As Doss was transferring grain on board the MGMT on May 9, 20 14, he slipped and fell, injuring his neck, shoulder, hip, and other parts of his body.9 Doss filed this suit on May 8, 20 14, alleging that he was em ployed as a J ones Act seam an at the tim e of his injury. 10 Dockside Linem en now m oves for sum m ary judgm ent on Doss’s J ones Act claim s, arguing that the MGMT is not a vessel and even if it were, Doss is not a seam an. Dockside Linem en contends Doss cannot qualify for seam an status because he was not substantially connected to a vessel in either duration or nature, as the law requires.11 In opposition, Doss argues that the MGMT is a vessel because it is equipped with a power generator, fuel storage, and other item s or facilities characteristic of vessels; it was not secured or anchored at the tim e of Doss’s accident; and it m oved between tem porary ports on the Mississippi River at the tim e of Doss’s accident. Doss does not respond to Dockside Linem en’s argum ent that regardless of whether MGMT is a vessel, Doss is not a J ones Act seam an. 12 9 R. Doc. 27, Exhibit C, at 34-40 (Deposition of Donald Doss). 10 See R. Doc. 1. 11 See generally R. Doc. 17-1. 12 R. Doc. 27. 3 II. LEGAL STAN D ARD Sum m ary judgm ent is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgm ent.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 198 5); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). 4 III. D ISCU SSION Without addressing whether the MGMT is a vessel, the Court finds sum m ary judgm ent warranted on Doss’s claim s because he is not a “seam an” within the m eaning of the J ones Act. “The J ones Act provides a cause of action in negligence for ‘any seam an’ injured ‘in the course of his em ploym ent.’ ” Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (citing 46 U.S.C. app. §688(a)); see also Becker v. Tidew ater, 335 F.3d 376, 386 (5th Cir. 20 0 3). The term “seam an” is not defined in the J ones Act, but not every “m aritim e worker on a ship at sea . . . is autom atically a m em ber of the crew of the vessel within the m eaning of the statutory term s.” Id. at 355, 363. Instead, to achieve status as a seam an, an em ployee m ust show (1) that his duties contributed to the function of a navigable vessel or the accom plishm ent of its m ission, and (2) that he had a connection to a vessel in navigation (or to an identifiable group of vessels) that was substantial in term s of both its duration and its nature. Id. at 368 ; Becker, 335 F.3d at 387. The purpose of this test is to “separate the sea-based m aritim e em ployees who are entitled to J ones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose em ploym ent does not regularly expose them to the perils of the sea.” Chandris, 515 U.S. at 368. 5 Whether a person is a seam an is ordinarily a question of fact for the jury. Becker, 335 F.3d at 386; Ellender v. Kiva Const. & Eng'g, Inc., 90 9 F.2d 80 3, 80 5 (5th Cir. 1990 ). But “sum m ary judgm ent is appropriate where the facts establish [the lack of seam an status] beyond a question as a m atter of law and no reasonable evidentiary basis exists to support a jury finding that the injured person is a seam an.” Ellender, 90 9 F.2d at 80 5– 0 6 (quoting Barrett v. Chevron U.S.A., Inc., 781 F.2d 10 67, 10 74 (5th Cir. 1986)); accord Becker, 335 F.3d at 386. Here, Dockside Linem en has established as a m atter of law that Doss lacked a substantial connection to the MGMT in term s of duration. To assess the tem poral elem ent of the seam an status test, the Suprem e Court has adopted a rule of thum b: “A worker who spends less than about 30 percent of his tim e in the service of a vessel in navigation should not qualify as a seam an under the J ones Act.” Chandris, 515 U.S. at 371. Doss’s payroll records reveal that he spent only four out of fifty-seven days of his em ploym ent on board the MGMT. Doss offers nothing to refute this evidence. Indeed, Doss testified at his deposition that his payroll records were “accurate” and that he understood his work on board the MGMT was his only “filling in . . . for a night or two[,]” rather than a “long-term 6 assignm ent.”13 Thus, assum ing without deciding that the MGMT is a “vessel,” Doss spent only seven percent of his tim e on board a vessel. Doss therefore lacked a substantial connection to a vessel, and Dockside Linem en is entitled to sum m ary judgm ent on Doss’s status as a seam an. Accordingly, Doss’s claim s under the J ones Act and for m aintenance and cure m ust be dism issed.14 See Lantz v. SHRM Catering Servs., Inc., 14 F.3d 54, 1994 WL 14123 at *1 (5th Cir. 1994) (“The standard for determ ining seam an status for the purposes of m aintenance and cure is the sam e as that established for determ ining status under the J ones Act.”); W illiam s v. Danos & Curole Marine Contractors, LLC, 797 F. Supp. 2d 712, 717 (E.D. La. 20 11) 13 R. Doc. 17, Exhibit B, at 110 -11, 242. 14 Doss generally contends that sum m ary judgm ent is im proper here because “there has been no realistic opportunity for discovery.” R. Doc. 27 at 7. Rule 56(d) perm its a court to deny or defer consideration of a m otion for sum m ary judgm ent, allow tim e to take discovery, or “issue any other appropriate order” when “a nonm ovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). However, the nonm ovant “m ay not sim ply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.” Raby v. Livingston, 60 0 F.3d 552, 561 (5th Cir. 20 10 ). The party seeking to withstand or continue a m otion for sum m ary judgm ent to obtain further discovery m ust indicate to the court (1) “why he needs additional discovery” and (2) “how the additional discovery will create a genuine issue of m aterial fact.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). Because Doss does not argue that further discovery will reveal facts that transform Doss into a seam an for purposes of the J ones Act, the Court grants sum m ary judgm ent. 7 (dism issing plaintiff’s J ones Act and m aintenance and cure claim s because plaintiff spent less than thirty percent of his tim e on a vessel). IV. CON CLU SION For the foregoing reasons, the Court GRANTS Dockside Linem en’s Motion for Sum m ary J udgm ent. 15th New Orleans, Louisiana, this _ _ _ day of April, 20 16. ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 8
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