Coastal Drilling Company LLC v. Creel, No. 2:2017cv00188 - Document 49 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 39 Motion to Dismiss Case. Signed by Judge Sarah S. Vance on 6/1/2017. (Reference: all cases)(cg)
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Coastal Drilling Company LLC v. Creel Doc. 49 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA COASTAL DRILLING COMPANY, LLC VERSUS CIVIL ACTION NO. 17-188 C/ W 17-220 7 BRANDON CREEL SECTION “R” (3) ORD ER AN D REASON S Before the Court is plaintiff1 Brandon Creel’s m otion to dism iss his J ones Act com plaint pursuant to Federal Rule of Civil Procedure 41(a)(2) without prejudice. 2 For the following reasons, the Court denies plaintiff’s m otion. I. BACKGROU N D Coastal Drilling Com pany em ployed Creel as a floorhand on Rig 20 , an inland waters drill barge operating in the navigable waters of Louisiana. 3 On J uly 17, 20 16, Creel reported that he was involved in an accident on the drill floor, and alleged that he sustained injuries to his neck, right shoulder, 1 Though this case is captioned Coastal Drilling Com pany , LLC v. Brandon Creel, this m atter was consolidated with docket num ber 2:17-cv220 7, in which Creel sued Coastal Drilling Com pany. R. Doc. 35. 2 R. Doc. 39. 3 R. Doc. 1 at 2 ¶ 5. Dockets.Justia.com m ultiple sections of his spine, and his hips. 4 On J uly 21, 20 16, Coastal received a notice of representation from Creel’s attorney in regard to the assertion of a Longshore and Harbor Workers Compensation Act claim . 5 The following week, Creel’s attorney requested that Coastal authorize follow-up care with a physician of Creel’s choice, which Coastal approved. 6 When Creel did not return to work, Coastal began m aintenance payments to Creel. But Coastal also began surveilling Creel to determ ine if his activities were consistent with his com plained-of injuries. 7 According to Coastal, Creel was observed and docum ented engaging in physical activity inconsistent with his alleged injuries. 8 For exam ple, on October 20 , 20 16, Creel’s doctor recom m ended arthroscopic surgery on Creel’s right shoulder because of its alleged lack of response to conservative treatm ent, but Coastal alleges that it docum ented Creel lifting a spare tire out of a car with his right arm within hours of the doctor’s recomm endation. 9 Creel sought authorization from Coastal for the right shoulder surgery. 10 4 5 6 7 8 9 10 Based on its surveillance, Coastal scheduled an independent Id. ¶ 6. Id. at 3 ¶ 9. Id. ¶ 10 . Id. at 4 ¶ 13. Id. ¶ 14. R. Doc. 9 at 2. R. Doc. 1 at 5 ¶ 17. 2 m edical evaluation to take place on November 22, 20 16. During the IME, Creel allegedly m ade statements inconsistent with the physical activity observed through surveillance. 11 The IME report stated that there was no evidence that Creel required right shoulder surgery, and after reviewing the surveillance footage, the IME physician stated that he would not recom m end surgery. 12 Based on the IME report and recomm endation, Coastal declined to authorize the surgery. Coastal then filed an action seeking declaratory relief that Creel is not entitled to m aintenance and cure, dam ages, punitive dam ages, or attorney fees, and that Creel is obligated to reim burse Coastal for the m aintenance already paid to Creel. 13 Coastal also filed a m otion to com pel a mental exam ination of Creel. 14 Creel m oved to dism iss Coastal’s action, arguing that as a J ones Act seam an he has the right to have a jury decide his m aintenance and cure claim , and that granting Coastal’s declaratory judgment would deprive Creel of his right to a trial. 15 Additionally, on March 16, 20 17, Creel filed a J ones 11 Id. ¶ 17. Id. at 5-6 ¶¶ 17, 18. The IME physician also recom mended that Creel undergo a neuropsychological evaluation to consider a diagnosis of som atoform disorder or possible m alingering. R. Doc. 9-4 at 2. 13 Id. at 8 ¶ 24. 14 R. Doc. 10 . 15 R. Doc. 7-1 at 3-4. 3 12 Act com plaint in this Court against Coastal and Peak Energy, LLC, seeking m aintenance and cure, dam ages, punitive dam ages, and attorney’s fees. 16 Relying in part on Creel’s filing of a J ones Act complaint in this Court, the Court granted Creel’s m otion to dism iss Coastal’s declaratory judgm ent action. 17 On the next day, April 5, 20 17, Creel filed this m otion to voluntarily dism iss his J ones Act com plaint without prejudice. 18 Coastal opposes plaintiff’s m otion, 19 and has reasserted its m otion to com pel a mental exam ination of Creel. 20 Additionally, one day after filing his m otion to dism iss, Creel filed an identical J ones Act suit against Coastal and Peak Energy in the 15th J udicial District Court for the Parish of Verm ilion, Louisiana. 21 On May 12, 20 17, Magistrate J udge Knowles granted Coastal’s m otion to com pel a mental exam ination and ordered Creel to undergo a psychological evaluation. 22 16 R. Doc. 1 in 2:17-cv-220 7. That action has been consolidated with this case. R. Doc. 35. 17 R. Doc. 36 at 6-9. 18 R. Doc. 39. 19 R. Doc. 41. 20 R. Doc. 40 . 21 R. Doc. 41-1 at 2. 22 R. Doc. 46. 4 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 41(a)(2) provides: “Except as provided in Rule 41(a)(1), an action m ay be dismissed at the plaintiff’s request only by court order, on term s that the court considers proper.” A decision as to whether to grant a dism issal under Federal Rule of Civil Procedure 41(a)(2) lies within the sound discretion of the district court. Davis v. Huskipow er Outdoor Equipm ent, 936 F.2d 193, 199 (5th Cir. 1991). The Fifth Circuit has explained that, “as a general rule, m otions for voluntary dism issal should be freely granted unless the nonm oving party will suffer som e plain legal prejudice other than the mere prospect of a second lawsuit.” Elbaor v. Triparth Im aging, Inc., 279 F.3d 314, 317 (5th Cir. 20 0 2). In assessing the prejudice to the non-m oving party, courts exam ine the stage of the litigation at which the m otion is m ade. See Hartford Accident & Indem . Co. v. Costa Lines Cargo Servs., Inc., 90 3 F.2d 352, 360 (5th Cir. 1990 ). III. D ISCU SSION At the outset, the Court notes this case is in its early stages and no scheduling order or trial date has been set. Thus, this case has not proceeded to an extent that warrants the denial of Creel’s m otion on that basis alone. See Brow n v. Schlum berger Tech. Corp., No. 0 1-3755, 20 0 2 WL 550 986, at 5 *2 (E.D. La. Apr. 11, 20 0 2). But this is not the only basis to deny a Rule 41(a)(2) m otion. Coastal argues that Creel’s actions in filing this suit only to seek to dism iss it after the Court dism issed Coastal’s declaratory action are a clear attem pt to avoid an adverse decision by this Court ordering Creel to subm it to a psychological evaluation. 23 Though Coastal’s opposition to dism issal was filed before Magistrate J udge Knowles resolved Coastal’s m otion to com pel, Coastal correctly predicted that Magistrate J udge Knowles would order Creel to subm it to a psychological exam ination. An order granting Creel’s m otion to dism iss would allow Creel to avoid com pliance with that order. The Fifth Circuit has explained that granting a voluntary dism issal after an adverse trial court ruling can inflict legal prejudice on the defendant. See, e.g., Manshack v. Sw . Elec. Pow er Co., 915 F.2d 172, 174 (5th Cir. 1990 ). Although adverse rulings that rise to a level sufficient to warrant denying a voluntary m otion to dism iss typically concern the underlying merits of the dispute, see id., Magistrate J udge Knowles’ order will have a substantial im pact on the underlying merits of this dispute. Creel seeks authorization for shoulder surgery, a surgery that Coastal m ay ultim ately have to pay for as 23 Id. at 7. 6 part of its m aintenance and cure obligations. The psychological exam ination to which Creel m ust now subm it m ay determ ine that Creel is m alingering and does not require surgery, a finding that m ay be dispositive of Creel’s claim s for m edical expenses. It is true that Creel filed his m otion to dism iss before Coastal reasserted its m otion to com pel, and certainly before Magistrate J udge Knowles ruled on the m otion. 24 But Coastal filed its first m otion to com pel a mental exam ination around six weeks before Creel’s m otion. 25 By the tim e Creel filed his m otion to dism iss on April 5, 20 17, the parties had already com pleted two rounds of briefing on Coastal’s m otion to com pel and participated in an oral hearing before J udge Knowles. 26 Thus, while Creel’s m otion was filed before the adverse decision was actually handed down, it was evident that Creel could likely face an adverse decision. See Davis, 936 F.2d at 199 (affirm ing denial of Rule 41(a)(2) m otion when m otion was filed after Magistrate J udge made recom mendation adverse to plaintiff but before district court ruled on the recom mendation); cf. Robles v. Atlantic Sounding Co., Inc., 77 F. App’x 274, 275-76 (5th Cir. 20 0 3) (affirm ing voluntary 24 25 26 See R. Docs. 39, 40 , 46. R. Doc. 10 . See R. Docs. 27, 28, 29. 7 dism issal because plaintiff-appellee did not face likely adverse ruling when he filed his Rule 41(a)(2) m otion). In addition, Creel’s actions in this case are indicative of abuse. For starters, it is suspicious that Creel filed his J ones Act claim in this Court, and then one day after the Court relied on that lawsuit to dism iss Coastal’s declaratory action, sought to dism iss his own suit. Creel has not given a reason for his actions, but it appears likely that they were designed to at least delay, if not avoid, a decision on Coastal’s m otion to com pel. Further, as Magistrate J udge Knowles pointed out in his order, Creel has already obtained “surreptitious medical treatment with no notice to Coastal,” raising a “red flag” in Magistrate J udge Knowles’s opinion. 27 Creel’s gamesm anship is inconsistent with the purpose of Rule 1 of the Federal Rules of Civil Procedure—to use the rules to “secure the just, speedy, and inexpensive determ ination of every action and proceeding.” See Elbaor, 279 F.3d at 317 (noting that Rule 41(a)(2) m otions should not be granted, even if the defendant suffers no prejudice, if there is “evidence of abuse by the m ovant”); Manshack, 915 F.2d at 174 (“The courts m ust carefully m onitor Rule 41(a)(2) voluntary dism issals to insure that they do not engender abuse.”). Accordingly, Creel’s conduct in this litigation favors denying his m otion. See, 27 R. Doc. 46 at 6. 8 e.g., Anderson v. Donovan, No. 0 6-3298, 20 10 WL 2464812, at *2 (E.D. La. J une 4, 20 10 ) (relying in part on plaintiff’s conduct throughout litigation to deny her Rule 41(a)(2) m otion); George v. Prof’l Disbosables Int’l, Inc., No. 15- 3385, 20 17 WL 1740 395, at *3 (S.D.N.Y. May 2, 20 17) (“[Plaintiff]’s course of conduct . . . weighs against dism issal without prejudice [under Rule 41(a)(2)].”). In sum, the Court finds that granting plaintiff’s m otion would cause Coastal to suffer legal prejudice in allowing Creel to avoid an adverse ruling, and that Creel’s conduct in this case was abusive. Thus, Creel’s m otion to voluntarily dism iss his claim s is denied. IV. CON CLU SION For the foregoing reasons, plaintiff’s m otion to dism iss is DENIED. 1st New Orleans, Louisiana, this _ _ _ _ _ day of J une, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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