What follows is the most withering critic of lawyering I've ever seen published in a legal opinion. The heart of the case is in bold. Enjoy!
JOHN W. BRADSHAW, Plaintiff, v. UNITY MARINE CORPORATION,INC.; CORONADO,
in rem; and
PHILLIPS PETROLEUM COMPANY, Defendants.
CIVIL ACTION NO. G-00-558
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS,
GALVESTON DIVISION
147 F. Supp. 2d 668; 2001 U.S. Dist. LEXIS 8962
June 26, 2001, Decided
June 27, 2001, Entered
COUNSEL: For JOHN W BRADSHAW, plaintiff:
Harold Joseph Eisenman, Attorney at Law, Houston, TX.
For CORONADO, UNITY MARINE CORPORATION,
INC., defendants: Ronald L White, White Mackillop et
al, Houston, TX.
For PHILLIPS PETROLEUM COMPANY, defendant:
Charles Wayne Lyman, Giessel Barker & Lyman,
Houston, TX.
For UNITY MARINE CORPORATION, INC., cross-
claimant: Ronald L White, White Mackillop et al,
Houston, TX.
For PHILLIPS PETROLEUM COMPANY, cross-
defendant: Charles Wayne Lyman, Giessel Barker &
Lyman, Houston, TX.
JUDGES: SAMUEL B. KENT, UNITED STATES
DISTRICT JUDGE.
OPINIONBY: SAMUEL B. KENT
OPINION: [*669]
ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT
Plaintiff brings this action for personal injuries
sustained while working aboard the M/V CORONADO.
Now before the Court is Defendant Phillips Petroleum
Company's ("Phillips") Motion for Summary Judgment.
For the reasons set forth below, Defendant's Motion is
GRANTED.
I. DISCUSSION
Plaintiff John W. Bradshaw claims that he was
working as a Jones Act seaman aboard the M/V
CORONADO on January 4, 1999. The CORONADO
was not at sea on January 4, 1999, but instead sat[**2]
docked at a Phillips' facility in Freeport, Texas. Plaintiff
alleges that he "sustained injuries to his body in the
course and scope of his employment." The injuries are
said to have "occurred as a proximate result of the unsafe
and unseaworthy condition of the tugboat CORONADO
and its appurtenances while docked at the
Phillips/Freeport Dock." Plaintiff's First Amended
Complaint, which added Phillips as a Defendant,
provides no further information about the manner in
which he suffered injury. However, by way of his
Response to Defendant's Motion for Summary Judgment,
Plaintiff now avers that "he was forced to climb on a
piling or dolphin to leave the vessel at the time he was
injured." This, in combination with Plaintiff's Complaint,
represents the totality of the information available to the
Court respecting the potential liability of Defendant
Phillips. n1
n1 Six days after filing his one-page Response, Plaintiff
filed a Supplemental Opposition to Phillips Petroleum
Company's Motion for Summary Judgment. Although
considerably lengthier, the Supplement provides no
further illumination of the factual basis for Plaintiff's
claims versus Phillips.
[**3]
Defendant now contends, in its Motion for Summary
Judgment, that the Texas two-year statute of limitations
for personal injury claims bars this action. See Tex. Civ.
Prac. & Rem. Code ? 16.003 (Vernon Supp. 2001).
Plaintiff suffered injury on January 4, 1999 and filed suit
in this Court on September 15, 2000. However, Plaintiff
did not amend his Complaint to add Defendant Phillips
until March 28, 2001, indisputably more than two-years
after the date of his alleged injury. Plaintiff now
responds that he timely sued Phillips, contending that the
three-year federal statute [*670] for maritime personal
injuries applies to his action. See 46 U.S.C. ? 763a.
** Before proceeding further, the Court notes that this
case involves two extremely likable lawyers, who have
together delivered some of the most amateurish
pleadings ever to cross the hallowed causeway into
Galveston, an effort which leads the Court to surmise but
one plausible explanation. Both attorneys have obviously
entered into a secret pact--complete with hats,
handshakes and cryptic words--to draft their pleadings
entirely in crayon on the back sides of gravy-stained
paper place mats, in the hope that[**4] the Court would
be so charmed by their child-like efforts that their utter
dearth of legal authorities in their briefing would go
unnoticed. Whatever actually occurred, the Court is now
faced with the daunting task of deciphering their
submissions. With Big Chief tablet readied, thick black
pencil in hand, and a devil-may-care laugh in the face of
death, life on the razor's edge sense of exhilaration, the
Court begins.
Summary judgment is appropriate if no genuine issue
of material fact exists and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). When a
motion for summary judgment is made, the nonmoving
party must set forth specific facts showing that there is a
genuine issue for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2510, 91 L. Ed.
2d 202 (1986). Therefore, when a defendant moves for
summary judgment based upon an affirmative defense to
the plaintiff's claim, the plaintiff must bear the burden of
producing some evidence to create a fact issue some
element of defendant's[**5] asserted affirmative defense.
See Kansa Reinsurance Co., Ltd. v. Congressional
Mortgage Corp. of Texas, 20 F.3d 1362, 1371 (5th Cir.
1994); F.D.I.C. v. Shrader & York, 991 F.2d 216, 220
(5th Cir. 1993).
Defendant begins the descent into Alice's Wonderland
by submitting a Motion that relies upon only one legal
authority. The Motion cites a Fifth Circuit case which
stands for the whopping proposition that a federal court
sitting in Texas applies the Texas statutes of limitations
to certain state and federal law claims. See Gonzales v.
Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998), cert.
denied, 528 U.S. 1118 (2000). That is all well and good--
the Court is quite fond of the Erie doctrine; indeed there
is talk of little else around both the Canal and this Court's
water cooler. Defendant, however, does not even cite to
Erie, but to a mere successor case, and further fails to
even begin to analyze why the Court should approach
the shores of Erie. Finally, Defendant does not even
provide a cite to its desired Texas limitation statute. n2 A
more bumbling approach is difficult to conceive--but
wait folks, There's[**6] More!
n2 Defendant submitted a Reply brief, on June 11, 2001,
after the Court had already drafted, but not finalized, this
Order. In a regretful effort to be thorough, the Court
reviewed this submission. It too fails to cite to either the
Texas statute of limitations or any Fifth Circuit cases
discussing maritime law liability for Plaintiff's claims
versus Phillips.
Plaintiff responds to this deft, yet minimalist analytical
wizardry with an equally gossamer wisp of an argument,
although Plaintiff does at least cite the federal limitations
provision applicable to maritime tort claims. See 46
U.S.C. ? 763a. Naturally, Plaintiff also neglects to
provide any analysis whatsoever of why his claim versus
Defendant Phillips is a maritime action. Instead, Plaintiff
"cites" to a single case from the Fourth Circuit. Plaintiff's
citation, however, points to a nonexistent Volume
"1886" of the Federal Reporter [*671] Third Edition and
neglects to provide a pinpoint citation for what, after
being located, [**7] turned out to be a forty-page
decision. Ultimately, to the Court's dismay after
reviewing the opinion, it stands simply for the bombshell
proposition that torts committed on navigable waters (in
this case an alleged defamation committed by the
controversial G. Gordon Liddy aboard a cruise ship at
sea) require the application of general maritime rather
than state tort law. See Wells v. Liddy, 186 F.3d 505, 524
(4th Cir. 1999) (What the . . .)?! The Court cannot even
begin to comprehend why this case was selected for
reference. It is almost as if Plaintiff's counsel chose the
opinion by throwing long range darts at the Federal
Reporter (remarkably enough hitting a nonexistent
volume!). And though the Court often gives great heed
to dicta from courts as far flung as those of Manitoba, it
finds this case unpersuasive. There is nothing in
Plaintiff's cited case about ingress or egress between a
vessel and a dock, although counsel must have been
thinking that Mr. Liddy must have had both ingress and
egress from the cruise ship at some docking facility,
before uttering his fateful words.
Further, as noted above, Plaintiff has submitted a
Supplemental Opposition to[**8] Defendant's Motion.
This Supplement is longer than Plaintiff's purported
Response, cites more cases, several constituting binding
authority from either the Fifth Circuit or the Supreme
Court, and actually includes attachments which purport
to be evidence. However, this is all that can be said
positively for Plaintiff's Supplement, which does nothing
to explain why, on the facts of this case, Plaintiff has an
admiralty claim against Phillips (which probably makes
some sense because Plaintiff doesn't). Plaintiff seems to
rely on the fact that he has pled Rule 9(h) and stated an
admiralty claim versus the vessel and his employer to
demonstrate that maritime law applies to Phillips. This
bootstrapping argument does not work; Plaintiff must
properly invoke admiralty law versus each Defendant
discretely. See Debellefeuille v. Vastar Offshore, Inc.,
139 F. Supp. 2d 821, 824 (S.D. Tex. 2001) (discussing
this issue and citing authorities). Despite the continued
shortcomings of Plaintiff's supplemental submission, the
Court commends Plaintiff for his vastly improved choice
of crayon--Brick Red is much easier on the eyes than
Goldenrod, and stands out much better amidst[**9] the
mustard splotched about Plaintiff's briefing. But at the
end of the day, even if you put a calico dress on it and
call it Florence, a pig is still a pig.
Now, alas, the Court must return to grownup land. As
vaguely alluded to by the parties, the issue in this case
turns upon which law--state or maritime--applies to each
of Plaintiff's potential claims versus Defendant Phillips.
And despite Plaintiff's and Defendant's joint, heroic
efforts to obscure it, the answer to this question is readily
ascertained. The Fifth Circuit has held that "absent a
maritime status between the parties, a dock owner's duty
to crew members of a vessel using the dock is defined by
the application of state law, not maritime law." Florida
Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332
(5th Cir. 1993) (holding that Louisiana premises liability
law governed a crew member's claim versus a dock
which was not owned by his employer); accord Forrester
v. Ocean Marine Indem, Co., 11 F.3d 1213, 1218 (5th
Cir. 1993). Specifically, maritime law does not impose a
duty on the dock owner to provide a means of safe
ingress or egress. See Forrester, 11 F.3d at 1218.[**10]
Therefore, because maritime law does not create a duty
on the part of Defendant Phillips vis-a-vis Plaintiff, any
claim Plaintiff does have versus Phillips [*672] must
necessarily arise under state law. n3 See id.; Florida
Fuels, 6 F.3d at 332-333, 334.
n3 Take heed and be suitably awed, oh boys and girls--
the Court was able to state the issue and its resolution in
one paragraph . . . despite dozes of pages of gibberish
from the parties to the contrary!
The Court, therefore, under Erie, applies the Texas
statute of limitations. Texas has adopted a two-year
statute of limitations for personal injury cases. See Tex.
Civ. Prac. & Rem. Code ? 16.003. Plaintiff failed to file
his action versus Defendant Phillips within that two-year
time frame. Plaintiff has offered no justification, such as
the discovery rule or other similar tolling doctrines, for
this failure. Accordingly, Plaintiff's claims versus
Defendant Phillips were not timely filed and are barred.
Defendant Phillips' Motion for Summary
[**11]Judgment is GRANTED and Plaintiff's state law
claims against Defendant Phillips are hereby
DISMISSED WITH PREJUDICE. A Final Judgment
reflecting such will be entered in due course.
II. CONCLUSION
After this remarkably long walk on a short legal pier,
having received no useful guidance whatever from either
party, the Court has endeavored, primarily based upon its
affection for both counsel, but also out of its own sense
of morbid curiosity, to resolve what it perceived to be the
legal issue presented. Despite the waste of perfectly good
crayon seen in both parties' briefing (and the inexplicable
odor of wet dog emanating from such) the Court believes
it has satisfactorily resolved this matter. Defendant's
Motion for Summary Judgment is GRANTED.
At this juncture, Plaintiff retains, albeit seemingly to
his befuddlement and/or consternation, a maritime law
cause of action versus his alleged Jones Act employer,
Defendant Unity Marine Corporation, Inc. However, it is
well known around these parts that Unity Marine's
lawyer is equally likable and has been writing crisply in
ink since the second grade. Some old-timers even spin
yarns of an ability to type. The Court[**12] cannot speak
to the veracity of such loose talk, but out of caution, the
Court suggests that Plaintiff's lovable counsel had best
upgrade to a nice shiny No. 2 pencil or at least sharpen
what's left of the stubs of his crayons for what remains of
this heart-stopping, spine-tingling action. n4
n4 In either case, the Court cautions Plaintiff's counsel
not to run with a sharpened writing utensil in hand--he
could put his eye out.**
IT IS SO ORDERED.
DONE this 26th day of June, 2001, at Galveston, Texas.
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE
