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In re Prosper Operators, Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

August 14, 2017





         Before the court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or Improper Service (Rec. Doc. 7) filed by the claimant, Mitchell Navarre. The plaintiff, Prosper Operators Inc., ("Prosper") filed a response in opposition (Rec. Doc. 11), and Navarre filed a reply (Rec. Doc. 12). For the following reasons, the motion (Rec. Doc. 7) will be DENIED.


         On June 14, 2015, Navarre was injured while operating the M/V Amber, a vessel owned by his employer, Prosper. After investigating the accident and reporting it to its insurer, Prosper paid Navarre workers' compensation benefits. On August 6, 2015, counsel for Navarre sent Prosper's insurer the following letter (the "August letter"):

         RE: Claimant: Mitchell Ray Navarre

         Employer: Prosper Operations, Inc.

         Claim No.: 2015000493

         D/A: June 14, 2015

         Dear Ms, Guillol:

         Please be advised that I have been retained to represent the interests of Milchell R. Navarre with regard to his workers* compensation claim. J would greatly appreciate you providing me with a copy of Mr. Navarre's personnel file, payroll information, and any medical information you may have concerning his work accident of June 14, 201S.

         Mr. Navarre would like to see an orthopedic physician of his choice, Dr. Clark GuiKlersoii, 2615 Enterprise Blvd., Lake Charles, LA 70601, 337/436-2225(ph), 337/433-S448(fax), regarding his back injury, ('lease sec that this evaluation is authorized as soon as possible.

         Thank you for your kind cooperation in this matter, I am

         Very truly yours, TINA L. WILSON

         cc: Mitchell R. Navarre[1]

         The letter references the insurance claim number and specifies that Navarre retained counsel in regard to his workers' compensation claim. On October 7, 2015, Navarre's counsel sent another letter to Prosper's insurer informing the insurer that Navarre was "unable to undergo an FCE [functional capacity examination] at this time."[2] Navarre's counsel also attached a report from an orthopedic surgeon which explained that Navarre suffered from a herniated disc, a lumbar strain, and injury to his right heel.[3]

         On April 7, 2016, Navarre filed a Jones Act claim against Prosper in state court, alleging that he was a seaman injured in the course of his employment by Prosper's negligence.[4] Neither Navarre nor Prosper have submitted any communications that may have taken place between the parties from October 2015 to April 2016. On September 28, 2016, Prosper filed a complaint in this court for Exoneration from or Limitation of Liability, seeking to limit its potential liability to the value of the M/V Amber, $20, 000.00.[5] On October 19, 2016, the court entered an Order Approving Ad Interim Stipulation for Value and Directing Issuance of Notice and Restraining Prosecution of Claims.[6] The order gave claimants until April 14, 2017 to file and serve a claim to the vessel.[7] It also directed the clerk of court to issue a Notice to Claimants, [8] and for Prosper to publish the Notice to Claimants in the Lake Charles American Press once a week for four consecutive weeks before April 14, 2017, and to mail a copy to all known claimants in compliance with Rule F of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.[9] Pursuant to the order, all actions in any court involving the M/V Amber were stayed and/or enjoined.[10] The clerk of court issued a Notice to Claimants that same day.[11]

On January 18, 2017, Prosper sent a letter to the firm representing Navarre to determine how the parties would proceed with a limitation action in federal court and a Jones Act claim in state court.[12] Navarre's attorney responded on January 23, 2017, that he had never received any notice of a limitation action filed in federal court and suggested that Prosper had failed to comply with notice and service requirements of the Federal Rules of Civil Procedure.[13] On January 25, 2017, Prosper responded with the actions it took, which it believed had notified Navarre of the limitation action in federal court.[14] Prosper explained that it believed the court would send a notice to Navarre, and it did not know why the court had not done so.[15] Attached to the January 25 letter were all the filings of the limitation action, including the court's Notice to Claimants.[16]

         On April 6, 2017, Navarre filed the present Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(5).[17] Navarre argues that the action should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) because it was filed more than six months after Prosper received written notice of a claim. Navarre also argues that the action should be dismissed for improper service of process pursuant to Rule 12(b)(5) because Navarre was never served with the complaint in compliance with Federal Rule of Civil Procedure 4. In its response, Prosper argues that it timely filed the limitation action, because it did not receive written notice of a claim subject to limitation until Navarre filed his Jones Act claim in state court.[18] Prosper also argues that Navarre received adequate notice, and that the court should have alerted him of the limitation action.

         II. LAW & ANALYSIS

         A. 12(b)(1) ...

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