United States District Court, E.D. Wisconsin
RONALD G. MAYES, Plaintiff,
SELVICK MARINE TOWING CORP., M/V DONNY S., XL SPECIALTY INSURANCE COMPANY, and NAVIGATORS INSURANCE COMPANY, Defendants. McGINNIS, INC. and SIGNAL MUTUAL INDEMNITY ASSOCIATION LTD., Involuntary Plaintiffs,
DECISION AND ORDER
William C. Griesbach, Chief United States District Judge.
Ronald G. Mayes filed this action against Defendants Selvick
Marine Towing Corp., M/V Donny S. (the Vessel), XL
Speciality Insurance Company, and Navigators Insurance
Company in Door County Circuit Court, alleging claims under
33 U.S.C. § 901, et seq., the Longshore and
Harbor Workers' Compensation Act (the Longshore Act); and
46 U.S.C. § 30104, the Jones Act. Plaintiff also brings
claims for common law negligence; unseaworthiness; and
maintenance, cure and unearned wages. Defendant Selvick
removed the case to this court on the basis of federal
question jurisdiction, 28 U.S.C. § 1331, and admiralty
jurisdiction, 28 U.S.C. § 1333. Presently before the
court is Defendants M/V Donny S. and Selvick Marine
Towing Corp.'s motion for partial dismissal of
Plaintiff's amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Defendants Navigators Insurance
Company and XL Specialty Insurance Company joined the motion
to dismiss on July 2, 2019.
move to dismiss Plaintiff's claim under the Jones Act and
claims for unseaworthiness as well as for maintenance, cure,
and unearned wages (Counts 3, 4, and 5), arguing that these
causes of action are traditional remedies for seamen and that
the amended complaint does not contain sufficient factual
allegations to establish that Plaintiff could have been a
seaman. Defendants also move to dismiss Plaintiff's claim
for common law negligence (Count 2) because it is duplicative
of Plaintiff's claim under the Longshore Act. Plaintiff
contends that his status as a seaman is a fact-intensive
inquiry that should not be determined by the court at this
stage and that his common law negligence claim may be plead
in the alternative to the Longshore Act claim. For the
reasons that follow, the motion to dismiss will be partially
considering a motion to dismiss, the court construes all
allegations in the complaint in the light most favorable to
the plaintiff, accepts all well-pleaded facts as true, and
draws all inferences in favor of the non-moving party.
Estate of Davis v. Wells Fargo Bank, 633 F.3d 529,
533 (7th Cir. 2011). To state a cognizable claim under the
federal notice pleading system, the plaintiff is required to
provide a “short and plain statement of the claim
showing that he is entitled to relief.” Fed.R.Civ.P.
8(a)(2). It is not necessary for the plaintiff to plead
specific facts and his statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
However, a complaint that offers “labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a
complaint must contain sufficient factual matter, accepted as
true, “that is plausible on its face.”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted). “[T]he plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.
CONTAINED IN THE AMENDED COMPLAINT
about November 5, 2016, Plaintiff was employed by McGinnis,
Inc., a company that focuses on the repair of barges and
towboats. As a consequence of his employment with McGinnis,
Plaintiff was sent to perform repair work on the starboard
engine of the M/V Donny S., a vessel owned by
Defendant Selvick. Plaintiff alleges that Selvick provided
him with some of the necessary tools required to perform the
repair, that Selvick ordered the necessary parts, and that
Selvick provided him with direction as to the manner of how
the work was to be performed. Plaintiff also alleges that
Selvick, prior to the repairs performed by Plaintiff,
conducted or oversaw the replacement and repair of oil pipes
on the ship's starboard engine, and that those repairs
were performed incorrectly.
Plaintiff completed the repairs on the starboard engine of
the M/V Donny S., the engine was started and a
pressurized oil pipe burst, causing debris and oil to strike
Plaintiff in the eye. As a result, Plaintiff suffered
permanent damage to his eye, including a torn iris, which
necessitated the implant of an artificial iris into that eye.
Plaintiff alleges that the damage to his eye may require
further surgical correction in the future, and that he has
sustained significant damages as a result of the injury,
including medical expenses, wage loss, disability, pain and
suffering, and diminution in earning capacity.
Claims related to Plaintiff's status as a seaman (Counts
3, 4, and 5)
asserts claims under both the Longshore Act and the Jones
Act. The Longshore Act provides remedies for a
“longshoreman” or a “harbor worker”
who is injured while on the job, while the Jones Act provides
remedies for a “seaman.” Defendants assert that
Plaintiff has failed to state claims under the Jones Act and
claims that arise out of Plaintiff's alleged status as a
seaman because the amended complaint does not contain any
facts that would allow a trier of fact to reasonably infer
that he is a seaman as that term has been applied to the
Jones Act. To qualify as a seaman under the Jones Act,
“an employee's duties must ‘contribut[e] to
the function of the vessel or to the accomplishment of its
mission'” and that the employee “must have a
connection to a vessel in navigation (or to an identifiable
group of such vessels) that is substantial in terms of both
its duration and its nature.” Chandris, Inc. v.
Latsis, 515 U.S. 347, 368 (1995); see also Harbor
Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997).
distinction between a seaman and a longshoreman or a harbor
worker is an important one. Seamen, who are continuously
exposed to the “perils of the sea, ” are provided
with heightened legal protection under the Jones Act that is
not afforded to their land-based counterparts. Howard v.
S. Ill. Riverboat Casino Cruises, Inc., 364 F.3d 854,
856 (7th Cir. 2004) (quoting Chandris, 515 U.S. at
368); see also McDermott Int'l Inc. v. Wilander,
498 U.S. 337, 354 (1991) (“Traditional seamen's
remedies . . . have been ‘universally recognized as . .
. growing out of the status of the seaman and his peculiar
relationship to the vessel, and as a feature of the maritime
law compensating or offsetting the special hazards and
disadvantages to which they who go down to sea in ships are
subjected.'” (quoting Seas Shipping Co. v.
Sieracki, 328 U.S. 85, 104 (1946) (Stone, C.J.,
dissenting))). The “seaman” test articulated by
the Supreme Court in Chandris, Inc. v. Latsis, 515
U.S. 347 (1995), is designed to “separate the sea-based
maritime employees who are entitled to Jones Act protection
from those land-based workers who have only a transitory or
sporadic connection to a vessel in navigation, and therefore
whose employment does not regularly expose them to the perils
of the sea.” Id. at 368.
case, Plaintiff alleges that he was a longshoreman
under the Longshore Act and that he may have been a
seaman under the Jones Act. Setting aside the issue that, if
one is a longshoreman, one cannot also be a seaman, see
Wilander, 498 U.S. at 353, Plaintiff's amended
complaint does not plausibly suggest that he is a seaman as
that term is applied in the Jones Act. The amended complaint
does not contain allegations that allow the court to
reasonably infer that he is a Jones Act seaman, other than
Plaintiff's assertion that he “may have been a
‘seaman' and have claims and causes of action under
the Jones Act.” Am. Compl. ¶ 34, Dkt. No. 30.
Plaintiff provides no factual support for that claim,
however, and his pleadings contain nothing that allows the
court to reasonably infer that he is a Jones Act seaman.
Plaintiff alleges that, on November 5, 2016, he was employed
by McGinnis, a company engaged in barge/towboat repair
services, to perform repair work on the Vessel's engines.
Id. ¶ 12. While he was performing work on the
starboard engine of the Vessel, Selvick provided direction to
Plaintiff and other McGinnis employees as to work it wanted
performed and when it wanted the work performed. Selvick also
ordered necessary parts and supplied some of the tools
necessary for performing the work. Id. ¶ 13.
Plaintiff further asserts that he suffered substantial
injuries while working on the Vessel. The court cannot infer
from these allegations that Plaintiff is a seaman.
Plaintiff's duties may have contributed to the function
of the M/V Donny S., Plaintiff does not allege a
status as to the Vessel in navigation, nor does he provide
any facts to suggest that he had a substantial connection to
the Vessel in terms of duration and nature. Plaintiff
contends that he has not conducted discovery to establish the
exact percentage of time he spent on board vessels and that
the fact that he was employed by a ship repair company raises
a reasonable inference that he spent more than 30% of his
time working aboard vessels and faced the perils of the sea
as a result. But even without discovery, Plaintiff is in the
best position to know what jobs he performed and where those
jobs are located and the amended complaint does not contain
any allegations with respect to the amount of time he spent
aboard vessels in general, the duration of time he spent on
the M/V Donny S., and the nature and extent ...