Central Boat Rentals, Inc. v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CENTRAL BOAT RENTALS, INC. CIVIL ACTION

VERSUS NO. 20-1277

SHAWN BROWN SECTION “R” (4)

ORDER AND REASONS

Counterclaimant Shawn Brown moves to sever the question of

maintenance and cure for expedited trial.1 In the alternative, Brown moves

to voluntarily dismiss his counterclaim without prejudice.2 Central Boat

Rentals, Inc. (“CBR”) does not oppose Brown’s motion to sever and expedite,

but it does oppose Brown’s alternative motion to dismiss.3 For the following

reasons, the Court denies Brown’s motion to sever and expedite. The Court

also denies Brown’s motion to voluntarily dismiss his counterclaim.

I. BACKGROUND

Shawn Brown, a seaman, worked as a pilot for CBR aboard the M/V

CAPTAIN RAPHAEL.4 Brown alleges that on October 14, 2019, he injured

1 See R. Doc. 16.

2 See id.

3 See R. Doc. 19.

4 See R. Doc. 1 at 2, ¶ 6.

his neck, back, and arm, while operating the M/V CAPTAIN RAPHAEL’s

steering system.5

On December 12, 2019, Dr. John Davis, an orthopedic surgeon,

examined Brown. Davis concluded that Brown’s injury necessitated

surgery.6 Specifically, Davis recommended a “three level corpectomy

involving the vertebral bodies of C4, C5[,] and C6 and a fibular strut fusion

from C3 to C7 with an anterior cervical plating.”7 On February 7, 2020, Dr.

Henry Eiserloh, another orthopedic surgeon, examined Brown. Eiserloh

concluded that “nonsurgical treatment” was the appropriate course.8 In

addition, Eiserloh reviewed an MRI of Brown’s spine from June 10, 2019,

four months before the alleged injury, and noted that the MRI revealed “disk

protrusion at C5-6 . . . compressing the anterior aspect of the cervical cord.”9

On April 24, 2020, CBR filed a complaint in this Court, seeking a

declaratory judgment that it does not owe maintenance and cure to Brown.10

Relying on Eiserloh’s opinion, CBR disputes whether Brown requires

surgery.11 Further, CBR alleges that Brown’s injury pre-existed his

5 See R. Doc. at 6 at 2, ¶ 4.

6 R. Doc 16-4 at 2.

7 Id.

8 See R. Doc. 16-3 at 8.

9 See id. at 7.

10 See R. Doc. 1 at 4.

11 See id. at 3, ¶ 9.

employment with CBR, and it asserts that it has a defense under McCorpen

v. Central Gulf S. S. Corp. 396 F.2d 547, 548 (5th Cir. 1968) (“Maintenance

may be awarded by courts even where the seaman has suffered from an

illness pre-existing his employment, but there is a general principle that it

will be denied where he knowingly or fraudulently conceals his illness from

the shipowner.”).

On June 11, 2020, Brown answered and filed a counterclaim.12 In his

counterclaim, Brown seeks damages for CBR’s failure to pay maintenance

and cure, as well as damages under the Jones Act and the general maritime

law doctrine of unseaworthiness.13

CBR answered Brown’s counterclaim,14 and Brown next filed this

motion to sever and expedite trial on the maintenance and cure question or

to dismiss his counterclaim without prejudice in the alternative.15 After the

parties filed all of the relevant briefing, the Court set jury trial for March 8,

202116—approximately six months from now. The Court considers the

parties’ arguments below in light of its recent scheduling order.

12 See R. Doc. 6.

13 See id. at 2, ¶ 5.

14 See R. Doc. 11.

15 See R. Doc. 16-1 at 2.

16 See R. Doc. 25.

II. DISCUSSION

A. Sever and Expedite

When deciding whether to sever and expedite a maintenance and cure

claim, courts consider several factors, including: (1) the plaintiff’s interest in

an expedited trial on the issues, (2) the proximity of the scheduled trial date,

(3) whether the plaintiff has requested a jury trial, (4) whether the

nonmoving party opposes the motion, (5) whether a delay in the plaintiff’s

surgery would render a determination of damages in a Jones Act case

speculative and (6) whether the same experts would testify in both trials.

See, e.g., Cooper v. Nabors Offshore, Inc., No. 03-0344, 2003 WL 22174237,

at *1 (E.D. La. Sept. 9, 2003); Marine Drilling Management Co. v. Scott, No.

02-1967, 2003 WL 133218, at *1 (E.D. La. Jan. 15, 2003); Hampton v.

Daybrook Fisheries, Inc., No. 01-1913, 2002 WL 1974107, at *2 (E.D. La.

Aug. 27, 2002); Carpentier v. Blue Streak Offshore, Inc., No. 96-323, 1996

WL 383126, at *1-*2 (E.D. La. July 3, 1996).

The Court need not consider all of the above factors. See Hampton,

2002 WL 1974107, at *2; Martinez v. Edison Chouest Offshore, Inc., No. 00-

2930, 2001 WL 6726, at *1 (E.D. La. Jan. 2001). But in all events, the Court

must aim for a result that promotes judicial economy. See, e.g, Grundstrom

v. 4-J’s Enterprise, Inc., No. 03-2657, 2004 WL 551207, at *2 (E.D. La. Mar.

2004); Marine Drilling, 2003 WL 133218, at *1; Hampton, 2002 WL

1974107, at *2.

The first two factors—Brown’s interest in an expedited trial and the

proximity of the scheduled trial date—weigh against severance. This Court’s

decision in Grundstrom is instructive. There, the Court reasoned that

because jury trial was scheduled in six months, and because the parties had

yet to conduct substantial discovery, “[a]n expedited trial . . . would not

materially accelerate the adjudication of plaintiff’s claims.” See also Marine

Drilling, 2003 WL 133218, at *1 (denying a motion to expedite when trial

was five months away). As was the case in Grundstrom, the parties here will

try all pending matters before a jury in six months, and considerable time

remains before discovery closes.17 Consequently, the Court finds that

Brown’s interest is not well-served by severing the maintenance and cure

issue.

The fifth factor—whether a delay in the plaintiff’s surgery would render

a determination of damages in a Jones Act case speculative—also weighs

against severance. The parties have not shown a range of possible outcomes

from the surgery that would make a determination of damages speculative.

See Baucom v. Sisco Stevedoring, LLC, 560 F. Supp. 2d 1181, 1205 (S.D. Ala.

17 See id. at 6 (closing discovery on January 26, 2021).

2008) (reasoning that damages are speculative when there are a broad range

of possible outcomes from suggested surgery). Nor have they shown that a

six-month delay would affect the outcome of Brown’s operation. See

Grundstrom, 2004 WL 551207, at *2 (declining to sever and expedite trial

because a six-month delay in surgery would “not likely to materially change

the outcome of any surgery”); Marine Drilling, 2003 WL 133218, at *1

(finding that “it is unlikely that a delay of five more months [would] alter the

outcome of any surgery” and declining to sever and expedite trial);

Hampton, 2002 WL 1974107, at *2 (declining to sever and expedite trial,

reasoning that “a delay of three more months is unlikely to change materially

the outcome of any surgery”). Moreover, eleven months have passed since

Brown’s alleged injury. When a substantial period of time has passed since

the injury, courts are less likely to find that additional delay would alter the

outcome of any surgery. See Marine Drilling, 2003 WL 133218, at *1. Given

these considerations, the Court finds that an additional six-month delay will

not render the damages determination speculative.

Finally, the sixth factor likewise weighs against severance; the same

physicians are likely to testify at both trials. See Marine Drilling, 2003 WL

133218, at *1; Hampton, 2002 WL 1974107, at *2. It would be inefficient to

have each expert testify twice in this matter. Taking all of the above

considerations into account, the Court finds that efficiency and judicial

economy dictate that Brown’s motion be denied.

B. Dismiss Counterclaim Without Prejudice

The Court next considers Brown’s alternative proposal—that his

counterclaim be dismissed without prejudice under Federal Rule of Civil

Procedure 41(c). See Fed. R. Civ. P. 41(c) (providing that Rule 41(a)(2)

governs voluntary dismissal of counterclaims). Rule 41(a)(2) provides:

“[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the

plaintiff’s request only by court order, on the terms that the court considers

proper.” A decision to grant a dismissal lies within the sound discretion of

the district court. Davis v. Huskipower Outdoor Equipment, 936 F.2d 193,

199 (5th Cir. 1991). “If a dismissal would unfairly prejudice the defendant,

then the plaintiff’s motion to dismiss should be denied.” Schwarz v.

Folloder, 767 F.2d 125, 129 (5th Cir. 1985).

The Court declines to dismiss Brown’s counterclaim. His counterclaim

is for wrongful refusal to pay maintenance and cure and for Jones Act

damages.18 The Court finds that voluntary dismissal of Brown’s claims would

be judicially inefficient and would cause prejudice to CBR. See Schwarz v.

Folloder, 767 F.2d 125, 130 (5th Cir. 1985) (reasoning that defendants are

18 See R. Doc. 2-3, ¶¶ 5-6.

prejudiced by unnecessary litigation expenses). Moreover, Brown’s claim

that CBR wrongfully refused to pay maintenance and cure is inextricably

intertwined with the issues in the declaratory judgment action and may well

be acompulsory counterclaim. See Fed. R. Civ. P. 13(a). In any event, there

would be duplicative evidence, and evidence of Brown’s medical condition

would have to be repeated in the Jones Act proceeding. The Court finds

voluntary dismissal improper.

For the foregoing reasons, the Court DENIES the motion to sever and

expedite trial, and it DENIES the alternative motion to dismiss the

counterclaim.

New Orleans, Louisiana, this 2nd _ day of September, 2020.

UNITED STATES DISTRICT JUDGE