Atlantic Sounding Co. Inc. v. Patrick Oliver
Before this Court is defendant Patrick Oliver’s Motion to dismiss plaintiff’s, Atlantic Sounding, declaratory judgment action. This declaratory action, filed by Atlantic Sounding, arose from a Jones Act suit filed by Oliver.
Oliver was employed with Atlantic Sounding on the dredge “Captain Frank” on or about November 12, 2009, when he allegedly fell from a bunk bed. The Captain Frank was, at the time, located in the Gulf of Mexico south of Grand Isle, Louisiana. Oliver was and is a resident of Mississippi and alleged he hurt his back when he fell from a bunk bed.
Following the incident, Oliver was taken to a hospital where x-rays of his back were performed. Oliver was returned to work without restrictions; however, Oliver chose not to return to work and went home to Mississippi instead.
Atlantic Sounding has alleged that Oliver has failed to turn over any medical records or documentation as to any disabling condition which would prevent his return to work. Nor has Oliver provided any evidence that he was been treated for any injury, which he claims arose out of the alleged fall.
On November 17, 2009, (5 days after the incident), Atlantic Sounding had its corporate claims manage write Oliver advising him to contact Atlantic Sounding for any non-emergency medical care needed and to report any time lost from work as a result of the incident, Oliver failed to respond.
Oliver filed a Jones Act suit against Weeks Marine and Hercules Offshore in Texas state court. Oliver alleged he was employed by Weeks and working on a vessel owned by Hercules, however, the record indicated that Oliver was employed by Atlantic Sounding on a vessel owned by Weeks.
Atlantic Sounding filed this declaratory action arguing that Oliver is not entitled to maintenance and cure. Oliver filed this motion to dismiss asserting that his Texas suit will resolve the “narrow issue” eg. Maintenance and cure in the more comprehensive state court action.
Did this Court find that Oliver is not entitled to receive maintenance and cure?
The Supreme Court has held that where a state lawsuit pending in state court encompassed the same issues raised in a declaratory action, the district court has discretion to dismiss the declaratory judgment action to avoid duplicative or parallel proceedings. The Fifth Circuit has also taken into consideration whether the declaratory judgment action has been filed in anticipation of a suit and is being used for the purpose of forum shopping.
First, this Court recognized that maintenance and cure issues present a justiciable controversy for purposes of maintaining an action under the Declaratory Judgment Act. The major question before this court is whether that litigation can adequately resolve the present dispute.
Atlantic Sounding argued that it cannot because Atlantic is not a party to that suit. The only issue in this declaratory action is whether Oliver is entitled to maintenance and cure from Atlantic Sounding. Additionally, Atlantic argued that it cannot be considered to have filed this declaratory action in anticipation of litigation on the part of Oliver because the state action does not name Atlantic as a party, nor has Atlantic received any response from Oliver following his hospital examination of release to return to work.
Finally, Atlantic Sounding contended that forum shopping factors favors this litigation because Oliver is resident of Miss working in the state of Louisiana, and that there is no connection to support jurisdiction.
As such, this Court denied Oliver’s motion to dismiss and held that the maintenance and cure declaratory judgment action could proceed.
A court’s decision to entertain a declaratory judgment action pursuant to 28 U.S.C. § 2201 is discretionary.
When deciding whether to dismiss a declaratory complaint, in addition to the above factors, the court considers (1) Whether the questions in controversy between the parties to the federal suit are not precluded by applicable substantive law, can be settled in the proceeding pending in state court (2) whether the claims of all parties in interest can be adjudicated in the state court and (3) whether necessary parties have been joined.
Steve Gordon
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