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Bourgeois v. Weber Marine, LLC

United States District Court, M.D. Louisiana

January 16, 2015


For Curtis Bourgeois, Ida Bourgeois, Plaintiffs: Curtis Locke Meredith, Jr., LEAD ATTORNEY, Sean Duvall Fagan, Locke Meredith, Sean Fagan & Chad Dudley, Baton Rouge, LA; Corey John Orgeron, Locke Meredith, Sean Fagan & Associates, Baton Rouge, LA.

For Weber Marine, LLC, Defendant: Anthony John Staines, LEAD ATTORNEY, Craig W. Brewer, Corey P Parenton, Staines & Eppling, Metairie, LA.

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This matter comes before the Court on the Motion for Summary Judgment Filed by All Defendants (R.Doc. 13) submitted by Weber Marine, LLC (" Weber" ) and its insurer State National Insurance Company, Inc. (" State National" ) (collectively, " Defendants" ). The motion is opposed. (R.Doc. 18).

In sum, relying on Louisiana law, Defendants argue that Plaintiffs' claims have prescribed because Plaintiffs filed suit in an improper venue and because the Petition was not served on Defendants until roughly one week after the statute of limitations ran, all allegedly in violation of La. Civ. Code. art 3462. Per the Court's November 26, 2014, Notice to Counsel (R.Doc. 29), the parties submitted additional briefing as to the extent to which this case is controlled by Maxwell v. Swain, 833 F.2d 1177 (5th Cir. 1987), which applied general maritime law to a similar prescription issue. The parties submitted said briefs. (See R.Docs. 32-35). Oral argument was heard on January 15, 2015.

The central issue in this case is whether the Plaintiffs' claims are prescribed if they filed suit within the three year statute of limitations of 46 U.S.C. § 30106 (formerly 46 U.S.C. § 763a) in a parish of improper venue but accomplished service of process nearly one week after the end of the prescriptive period. The answer depends on whether this issue is controlled by general maritime law or Louisiana law. Phrased another way, does maritime law, not Louisiana law, govern not only the length of the limitations period but also the circumstances under which that period is, or is not, tolled or suspended, and, therefore, was this suit timely commenced? The Court holds that maritime law controls the issue, that Maxwell controls, and therefore the Plaintiff's claims have not prescribed. Accordingly, the Defendants' motion for summary judgment is DENIED.

I. Factual and Procedural Background

On April 23, 2014, Plaintiffs Curtis Bourgeois and Ida Bourgeois filed suit in Ascension Parish. (R.Doc. 1-2, p. 1). Plaintiffs allege that, on or about April 11, 2011, Plaintiff Curtis Bourgeois was employed as a seaman for Defendant Weber Marine as a crew member of a barge. (R.Doc. 1-2, p.2). Plaintiffs claim that, while acting in the course and scope of employment, Curtis Bourgeois received serious injuries when he fell climbing a rope ladder. (R.Doc. 1-2, p. 3). Plaintiffs claim that the ladder was defective, that it was not properly secured, and that it shifted when a load being moved by a crane hit the side of the barge where he was working, causing his fall. (Id.).

Plaintiffs asserted several theories of recovery. First, Plaintiffs claimed that Defendants are liable under General Maritime Law and the Jones Act, 46 U.S.C. § 30104 (formerly 46 U.S.C. § 688). (Id.). Alternatively, Plaintiffs claim that, if Curtis Bourgeois was not a seaman, then he is entitled to recover under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Plaintiff Ida Bourgeois claims mental anguish damages and loss of love and society. (R.Doc. 1-2, p. 5).

On May 16, 2014, Defendants filed a notice of removal to this District (R.Doc. 1) and then filed an Amended Notice of Removal a few days later (R.Doc. 2). Plaintiff moved to remand on the grounds that the Defendant failed to allege the basis of

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jurisdiction and failed to remove within the deadline established by 28 U.S.C. § 1446(b). (See. R.Doc. 3). Defendants opposed (R.Doc. 6), arguing that they removed thirty days from service and that, per Harrold v. Liberty Insurance Underwriters, Inc., No. 13-762, 13-831, 2014 WL 688984 (M.D.La. Feb. 20, 2014), the Defendants could remove under 28 U.S.C. § 1333 and 28 U.S.C. § 1441(a) without another independent basis for jurisdiction.

The Magistrate issued a brief report and recommendation (R.Doc. 8) denying the motion to remand. This Court adopted the report and recommendation on July 18, 2014. (R.Doc. 12).[1]

On August 8, 2014, Defendants filed their Motion for Summary Judgment. (R.Doc. 13). Defendants argue that, Ascension Parish, where the Plaintiffs filed suit, is the wrong venue. (R.Doc. 13-1, p. 3). Citing La. Code Civ. Pro. arts. 42 and 74, Defendants argue that venue was proper in St. James Parish because that is Weber's domicile, because the accident occurred there, and because Curtis Bourgeois sustained damages there. (R.Doc. 13-1, p. 3-6).

Defendants then argue that, because the Plaintiffs filed the litigation in the improper venue and failed to serve Weber within the three year statute of limitations period for maritime torts, the claim is prescribed. Defendants rely on several cases, such as Moore v. Kmart Corp., 884 F.Supp. 217 (E.D. La. 1995) and Mullen v. Sears, Roebuck, & Co., 887 F.2d 615 (5th Cir. 1989), for the proposition that federal courts look to state law to determine when a prescriptive period is interrupted. (R.Doc. 13-1, p. 7-8). Thus, according to Defendants, La. Civ. Code art. 3462 governs, which provides that, if an action is commenced in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. Thus, Defendants argue that summary judgment is appropriate.

Plaintiffs oppose the motion. (R.Doc. 18). They argue that certain evidence, particularly some provided to them by the Defendants, shows that the accident took place in Burnside, Louisiana, which is located in Ascension Parish. (R.Doc. 18, p. 2). They complain that Defendants misled them in correspondence to Plaintiffs and that Plaintiffs were reasonable to rely on Defendants' own documents. Plaintiffs also assert a number of procedural arguments, objecting to the fact that, had Defendants excepted to venue in state court, then Plaintiffs would have had the opportunity to transfer the suit to the appropriate venue. (R.Doc. 18, p. 6). Further, Defendants removed the suit to the Middle District rather than the Eastern District. (Id.).

In their Reply (R.Doc. 19), Defendants argue that there is no issue of fact that the accident occurred in St. James Parish. (Id., p. 2-4). They further claim that Plaintiffs should have inquired into the facts. (Id., p. 4). Further, Defendants argue that they always objected to venue and that the subsequent removal of a case

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from an improper state court venue to a proper federal one will not resurrect a suit that has prescribed under Article 3462. Further, Defendants ...

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