Case Information
1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
NICHOLAS J. SOUTHARD, CASE NO. C19-5971 BHS Plaintiff, ORDER GRANTING v. DEFENDANTS’ MOTION TO DISMISS
BALLARD MARINE
CONSTRUCTION, INC. and
BALLARD MARINE
CONSTRUCTION, LLC,
Defendants.
This matter comes before the Court on Defendants Ballard Marine Construction, Inc. and Ballard Marine Construction, LLC’s (“Ballard”) motion to dismiss for lack of subject matter jurisdiction. Dkt. 13. [1] The Court has considered the pleadings filed in
17 support of and in opposition to the motion and the remainder of the file and hereby grants 18 the motion for the reasons stated herein.
19
20 [1] Ballard explains in its motion that while Ballard Marine Construction, Inc. employed
Southard and contracted the project at issue and Ballard Marine Construction, LLC neither 21 employed Southard nor was involved in the project at any relevant time, for the purposes of the
instant motion the distinction between the entities is not relevant and the entities may be referred to collectively. Dkt. 13 n.1. I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND Plaintiff Nicholas J. Southard (“Southard”) brings claims against Ballard under admiralty and maritime law as modified by the Jones Act, 46 U.S.C. § 30104. Dkt. 1, ⁋ 2. He alleges that the Court has jurisdiction under 46 U.S.C. § 30104, the Jones Act, and 28 U.S.C. § 1333, admiralty jurisdiction. Id .
Southard alleges that during all times relevant to this lawsuit, Ballard employed him as a commercial diver and Jones Act seaman. Id . ⁋ 6. Between January 6, 2017 and February 11, 2017, Southard alleges Ballard assigned him to a “multi-week saturation dive” on a tunneling project beneath the Suez Canal in Egypt. Id . ⁋ 7. During this period, Southard had to breathe “varying combinations of oxygen, helium, and nitrogen, due to the depth and pressure of operations ranging from five bars to an excess of seven bars.” . Ballard’s Hyperbaric Senior Project Manager, Justin Costello (“Costello”), declares that the while working on the tunneling project, Southard was in a saturation environment for thirty- five days. Dkt. 14, ⁋ 8.
The tunneling project at issue involved construction of two highway roads under the Suez Canal to connect Egypt and the Sinai Peninsula. Dkt. 14, ⁋ 6. Costello declares that Southard volunteered for the project and that that the project employed Southard as a “Compressed Air Worker” in a pressurized, but dry and terrestrial environment and thus did not involve diving as the term is commonly understood. . ⁋⁋ 6 –7. In a hyperbaric tunnel support project like the one beneath the Suez Canal, “[w]orkers often use a saturation technique and a hyperbaric chamber to work in the pressure environment,” so commercial divers often do this work due to their familiarity with the environment, and many of Ballard’s employees are trained commercial divers. Dkt. 14, ⁋⁋ 3, 4. The Compressed Air Workers “perform cleaning and maintenance of the cutterhead of the tunnel boring machine.” Id . ⁋ 4.
Costello declares that Ballard is a marine infrastructure and utility contractor which performs marine construction projects and specializes “in a broad range of sectors, including hyperbaric tunnel support, hydroelectric, water utility, nuclear, industrial, port & waterfront development, diving services” and “marine casualty response & salvage.” Dkt. 14, ⁋ 3. Ballard has worked on tunnel support projects similar to the one at issue for the Seattle Metro Northlink Light Rail Line, the Mexico City Metro, the Toronto Subway extension, and the New York Subway extension. Id . ⁋ 5.
Southard declares that Ballard hired him as a commercial diver in October of 2008. Dkt. 17, ⁋ 4. Southard declares that he then worked for Ba llard until he left the tunnel project at issue in February 2017, interrupted only by service in Iraq with the National Guard from September 2009 through Spring 2011. Id . He explains that he worked in “most facets of [Ballard’s] wide-ranging work, servicing vessels and performing marine construction work,” and “repaired underwater pipelines, salvaged sunken vessels, dredged channels, pile-drived pylons into the seabed, performed open water environmental clean ups, and inspected hulls of cargo ships while afloat.” . ⁋ 5. He declares that when he did marine construction work, he would be classified as a “Diver, Tender, Dive Supervisor, Pile Buck, or Pile Buck Foreman,” and when he worked on tunneling projects, he would be classified as a “Compressed Air Worker.” . ⁋⁋ 8 –9. He declares that as a Compressed Air Worker, he “could make more money in a week than I would diving for a month. Thus, when a tunneling job became available, I would often take it because the money was so good.” Id . ⁋ 9.
Southard lists nine “dive boats” which were “self-propelled vessels in Ballard Marine Construction’s fleet during [his] employment.” Id . ⁋ 6. He explains that some of the dive boats were “smaller vessels more akin to a skiff that we often used to move men and materials across the waterways as needed to support the project underway; sometimes we would dive from them too.” Id. Other larger dive boats “were large enough to support a three or four-person dive team . . . use[d] as our base of operations for some of the underwater projects.” Id . Southard declares that “[i]n addition to [his] dive responsibilities on the larger Dive Boats, [he] would run all of the Dive Boats . . . among other things, operate and navigate the vessels, handle the lines, dock and moor, and perform vessel maintenance.” .
Southard declares that over the course of his employment with Ballard, he “alternated between wet-diving underwater on marine construction projects and dry- diving on tunneling projects,” sometimes within the same month, and “roughly 45% of [his] employment with [Ballard] was spent working in the service of vessels owned, operated and/or controlled by [Ballard] on navigable waters.” . ⁋ 10. Costello declares that while Southard was working in Egypt, Ballard did not own, operate, or charter any vessels there, Southard was not assigned to or under the call or command of a vessel, and 1 the “closest access to navigable waters was from the tunnel entrance which was approximately two (2) miles from the waters of the Suez Canal.” Dkt. 14, ⁋ 9. [2]
On October 11, 2019, Southard filed suit against Ballard. Dkt. 1. Southard alleged jurisdiction “under the admiralty and maritime law as modified by the Jones Act, 46 U.S.C. § 30104.” Id. ⁋ 2. Southard alleged a claim for negligence under the Jones Act resulting in decompression sickness and distal small fiber neuropathy and a claim for maintenance, cure, and unearned wages, specifying that Ballard failed to remove him from his work upon notice of injury and ensure he received prompt medical treatment, thereby incurring liability for his maintenance, wages, and medical care. . ⁋⁋ 8 –19.
On January 16, 2020, Ballard moved to dismiss for lack of subject matter jurisdiction. Dkt. 13. On February 3, 2020, Southard responded. Dkt. 16. On February 7, 2020, Ballard replied. Dkt. 18.
II. DISCUSSION
A. Standard
Federal courts are presumed to lack jurisdiction, and on a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) the burden of proof is on the
plaintiff to establish subject matter jurisdiction.
Stock West, Inc. v. Confederated Tribes
,
In a factual attack under Rule 12(b)(1), courts “need not presume the truthfulness
of the plaintiffs’ allegations.”
White v. Lee
,
“However, when ‘ruling on a jurisdictional motion involving factual issues which
also go to the merits, the trial court should employ the standard applicable to a motion for
summary judgment.’” . (quoting
Augustine v. United States
,
As a threshold matter, the parties dispute the standard the Court should apply in reviewing Southard’s claim to seaman status as the basis for subject matter jurisdiction. Southard argues that Ballard’s motion turns on his employment connection to Ballard’s vessels, which “is the heart of the seaman status inquiry, and, therefore, the merits of [Southard’s] two seamen’s causes of action asserted in the complaint.” Dkt. 16 at 8. Ballard argues that the summary judgment standard should not apply because it has not challenged the merits of Southard’s negligence claims. Dkt. 18 at 2. [3] Ballard notes that “[t]here appear to be few, if any, factual disputes between Southard’s general characterization of his employment with Ballard and Ballard’s more specific description of the relevant portions of Southard’s employment” so “[i]f the Court employs the summary judgment standard . . . the result should be the same.” Dkt. 18 at 2 n.1 (citing Dkt. 19 at 5–42).
Southard is correct that proving seaman status under the Jones Act is an element of
recovery for negligence claims under the Jones Act and for maintenance and cure claims
under maritime law.
See
Ninth Circuit Manual of Model Civil Jury Instructions, 7.1, 7.2,
7.11. Thus, Southard is correct that the jurisdictional issue of seaman status also goes to
the merits, and though he retains the burden of proof,
Stock West
,
B. Federal Question Jurisdiction
Southard’s complaint alleges that the Court has jurisdiction pursuant to the Jones Act, 46 U.S.C. § 30104, and pursuant to admiralty jurisdiction, 28 U.S.C. § 1333. Dkt. 1, ⁋⁋ 2, 8–19. However, Southard argues that his complaint “conferred federal question jurisdiction by properly pleading a negligence cause of action under the Jones Act” and asks that he be granted leave to amend if the Court does not find subject-matter jurisdiction based on his Jones Act claim. Dkt. 16 at 2–3. Southard’s response does not argue his claims as pled meet the standard for admiralty and maritime jurisdiction. If the Court finds jurisdiction under the Jones Act, Ballard requests that it also decide admiralty and maritime jurisdiction, arguing that Southard may ask that the Court take supplemental jurisdiction over his maintenance and cure claim, which Ballard argues is impermissible. Dkt. 18 at 9–10.
The Jones Act provides a remedy for “any seaman” injured “in the course of his employment,” 46 U.S.C. § 688, and allows a seaman so injured to bring a civil action at law with a jury trial, 46 U.S.C. § 30104. The issue of seaman status has been litigated extensively.
In
Chandris, Inc. v. Latsis
,
The Supreme Court warned that “[i]n evaluating the employment-related
connection of a maritime worker to a vessel in navigation, courts should not employ ‘a
‘snapshot’ test for seaman status, inspecting only the situation as it exists at the instant of
injury; a more enduring relationship is contemplated in the jurisprudence.’”
Id.
at 363
(quoting
Easley v. Southern Shipbuilding Corp.
,
However, in considering how much of a plaintiff’s course of employment to evaluate, the Supreme Court found no reason to consider exclusively “the overall course of a worker’s service with a particular employer,” explaining that seaman status may change with a worker’s “basic assignment.” . at 371–72 (citations omitted).
For example, we can imagine situations in which someone who had worked
for years in an employer’s shoreside headquarters is then reassigned to a
ship in a classic seaman’s job that involves a regular and continuous, rather
than intermittent, commitment of the worker’s labor to the function of a
vessel. Such a person should not be denied seaman status if injured shortly
after the reassignment, just as someone actually transferred to a desk job in
the company’s office and injured in the hallway should not be entitled to
claim seaman status on the basis of prior service at sea. If a maritime
employee receives a new work assignment in which his essential duties are
changed, he is entitled to have the assessment of the substantiality of his
vessel-related work made on the basis of his activities in his new position.
. at 372 (citing Joseph D. Cheavens, 64 Tulane L. Rev., 361, 389–90 (1989)).
Following
Chandris
, courts use its two-element test for seaman status. A plaintiff
is a Jones Act seaman only if (1) his duties contribute to the function of the vessel or to
the accomplishment of its mission, and (2) he has a connection to a vessel in navigation
that is substantial both in duration and in nature.
Cabral v. Healy Tibbits Builders, Inc.
,
For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea. This will give substance to the inquiry both as to the duration and nature of the employee’s connection to the vessel and be helpful in distinguishing land- based from sea-based employees.
Harbor Tug & Barge Co. v. Papai
,
In Harbor Tug & Barge , the Supreme Court considered a plaintiff who was injured in the course of a one-day job painting a docked tugboat. Id . at 559. The plaintiff had been hired by the tug’s owner on twelve instances over the two-and-a-half months before his injury and had worked on the tug at issue on three or four occasions prior to his injury. Id . The plaintiff also testified that seventy percent of his work (for the tug’s owner and other marina employers) over the two-and-a-half years prior to his injury was deckhand work which involved “manning the lines on- and off-board vessels while they docked or undocked.” Id . at 551, 559. The first element of the test, that the plaintiff’s work contributed to the function of these vessels, was not contested. . at 554.
The Supreme Court found that as none of the plaintiff’s work aboard the tug where
he was injured was of a seagoing nature, no reasonable inference supported a conclusion
that his work with the tug’s owner was seagoing, and “[i]n any event, these discrete
engagements were separate from the one in question, which was the sort of ‘transitory or
sporadic’ connection to a vessel or group of vessels that, as we explained in
Chandris
,
does not qualify one for seaman status.” . at 560 (citing
Chandris
,
In Cabral , the Ninth Circuit considered a plaintiff who was injured while working as the crane operator for a construction project at a ferry landing. Cabral , 128 F.3d at 1291. The crane was mounted on a floating barge. Id . The plaintiff was injured approximately six weeks into the job; prior to a ten-week hiatus leading up to the crane operator job, he had worked “on a variety of land and sea-based projects” for the employer over an eleven-month period. Id. The first element was not contested. As to the second element, the Ninth Circuit explained that Harbor Tug and Chandris “dictate that when we determine whether the nature of [the plaintiff’s] connection to [the barge] is substantial, we should focus on whether [the plaintiff’s] duties were primarily sea-based activities.” . at 1293. It concluded that “[a]ll of the evidence points to one conclusion, that [the plaintiff] was a land-based crane operator who happened to be assigned to a project which required him to work aboard [the barge],” so there was no evidence from which a reasonable jury could conclude the plaintiff had a substantial connection to the barge. .
In an unpublished disposition,
James v. Wards Cove Packing Co., Inc.
, 209 F.
App’x 648, 649 (9th Cir. 2006), the Ninth Circuit reversed the district court’s grant of
summary judgment based on the plaintiff’s failure to establish a substantial connection to
the employer’s fleet of vessels in navigation. The Ninth Circuit explained that “[w]hen
assessing a maritime worker’s seaman status, the relevant time period in assessing ‘the
substantiality of his vessel-related work’ is the period of time the worker spent in the
position he occupied at the time of the accident.”
Id
. at 650 (quoting
Chandris
, 515 U.S.
at 372). “When a worker has worked for a particular employer over a number of years,
but his ‘essential duties’ have changed during that time, the evaluation of his seaman
status shall focus only on the current assignment.”
Id
. (citing
Chandris
,
1. Contribution to the Function of the Vessel or its Mission
Regarding the first element, Southard argues that he “worked at sea in the service
of the ship,”
Chandris
,
2. Connection to a Vessel in Navigation
Regarding the second element, Southard argues that he “regularly braved the perils
of sea, both while abroad Defendants’ vessels and while underwater diving for
Defendants, performing marine contracts for their customers.” Dkt. 16 at 13–14. He
argues that over the course of his employment, he spent 45% of his time in service of
Ballard’s vessels, diving from them or working aboard them and performing “vessel
services and marine construction projects,” thus establishing a substantial connection in
both nature and duration to Ballard’s vessels well in excess of the 30% rule of thumb the
Supreme Court identified in
Chandris
. . at 13–14 (citing
Chandris
,
Southard emphasizes that under two Fifth Circuit cases decided prior to
Chandris
,
there is no requirement that a seaman’s injury take place while in service to a vessel, Dkt.
16 at 16–17 (citing
Higginbotham v. Mobil Oil Corp.
,
Chandris
speaks to this question by differentiating between what is improper in
deciding seaman status, “inspecting only the situation as it exists at the instant of injury”
and what is proper, that “someone actually transferred to a desk job in the company’s
office and injured in the hallway should not be entitled to claim seaman status on the
basis of prior service at sea.”
Chandris
,
In
Chandris
, just after describing the 30% rule, the Supreme Court went on to
explain that it “see[s] no reason to limit the seaman status inquiry . . . exclusively to an
examination of the overall course of a worker’s service with a particular employer. When
a maritime worker’s basic assignment changes, his seaman status may change as well.”
. at 371–72. As noted, when applying this analysis, the Ninth Circuit explained that
“the relevant time period in assessing ‘the substantiality of his vessel-related work’ is the
period of time the worker spent in the position he occupied at the time of the accident.”
James
,
Over the course of Southard’s employment he describes assignments which clearly incorporate duties that would invoke seaman status such as operating and navigating vessels, marine construction work that likely involves tasks or a work setting that would invoke seaman status, and work in dry tunnels with no connection to a vessel. Dkt. 17, ⁋⁋ 5, 6. The duties Southard performed in his marine work, that he “repaired underwater pipelines, salvaged sunken vessels, dredged channels, pile-drived pylons into the seabed, performed open water environmental clean ups, and inspected hulls of cargo ships while afloat,” are fully separate from the duties of the tunnel work, “maintaining and repairing the heavy machinery used to dig the tunnels.” Id. ⁋⁋ 5, 9. The only similarity is in the use of technologies which permit work in the pressurized environment. . ⁋ 10; Dkt. 14, ⁋⁋ 3–4.
Thus, the relevant time period for the 30% rule of thumb is not Southard’s entire
course of employment when Southard had no primary set of duties from which the dry
tunneling work could be fairly characterized as a temporary deviation—instead,
Southard’s connection to Ballard’s vessels was “intermittent,” and his tunneling work
was a different “basic assignment” with different “essential duties.”
See Chandris
, 515
U.S. at 371–72;
James
,
Therefore, considering the relevant time period of the tunneling assignment, no
reasonable juror could conclude that during the more than a month Southard spent as a
Compressed Air Worker in Egypt he maintained a connection to Ballard’s vessels that
was substantial in nature or duration.
See Cabral
,
C. Admiralty and Maritime Jurisdiction
As noted, Southard’s complaint invokes the Court’s admiralty jurisdiction, Dkt. 1, ⁋ 2, but his responsive brief argues that he need not satisfy the locality and connection tests because he can establish jurisdiction under the Jones Act, Dkt. 16 at 15–16. As the Court found Southard did not establish jurisdiction under the Jones Act, the Court briefly addresses admiralty jurisdiction.
The party seeking to invoke admiralty jurisdiction bears the burden to establish
that it applies.
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.
,
According to the undisputed facts of this case, Southard’s injury occurred entirely on land. Even if the location of the negligent activity were relevant, Southard makes no allegation and submits no evidence from which a factfinder could conclude that his injury was caused by or occurred on the navigable waters or a vessel. Therefore, to the degree that Southard seeks to invoke the Court’s admiralty jurisdiction, he has failed to satisfy the locality test. As the party seeking to invoke admiralty jurisdiction must satisfy both tests, it is unnecessary to reach the connection test. Therefore, the Court is without subject-matter jurisdiction on Southard’s claims.
D. Leave to Amend
In the event the court finds that dismissal is warranted, the court should grant the
plaintiff leave to amend unless amendment would be futile.
Eminence Capital, LLC v.
Aspeon, Inc.
,
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//
//
//
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III. ORDER
Therefore, it is hereby ORDERED that Ballard’s motion to dismiss, Dkt. 13, is GRANTED and Southard is GRANTED leave to amend. Southard may file an amended complaint no later than May 15, 2020. Failure to file to file an amended complaint or otherwise respond will result in dismissal with prejudice.
Dated this 6th day of May, 2020.
A BENJAMIN H. SETTLE United States District Judge
Notes
[2] Ballard provides additional detail about Southard’s work history in the Declaration of
18
Melanie Culp, Ballard’s Director of Risk Management, submitted in support of Ballard’s reply.
Dkt. 19. The declaration focuses on the fact that “[f]rom about February of 2015 until 2017,
19
[Southard] never spent more than 30% of his time on commercial diving assignments.” . ⁋ 3.
However, the Court does not consider this evidence because submission of arguments or
20
evidence for the first time upon reply is improper as it unfairly deprives the non-movant of an
opportunity to respond.
See Provenz v. Miller
,
[3] Ballard argues that even if the Court finds subject-matter jurisdiction, it should be permitted to challenge Southard’s seaman status in a later motion to dismiss for failure to state a claim. Dkt. 13 at 13 n.8.
[4] Even if the Court had considered the facts asserted in the Declaration of Melanie Culp, Dkt. 19, that Southard’s tunneling work represented more than 70% of his time in the two years leading up to the injury, the Court would still find as discussed below that given Southard’s substantially varying work assignments, the 30% rule of thumb does not indicate in this case that a greater duration of his career with Ballard should be evaluated.