OPINION and ORDER

CHARLES R. BUTLER, Jr., District Judge.

This matter is before the Court on a motion for summary judgment filed by the defendant, Boltech Mannings, Inc. (Doc. 30.) Plaintiff has filed a response to the motion (Doc. 45), and Defendant has filed a reply (Doc. 41). After due consideration of the issues raised and the relevant facts in light of the applicable law, the Court finds that the motion is due to be granted.1

Facts

This action arises from the tragic deaths of two men, Charles Corley and Kenneth Boyer, during a fishing trip off the coast of Alabama on August 27, 2011. Both were employees of Boltech Mannings, Inc. (Boltech), an industrial service provider located in Theodore, Alabama. Jacob Shenesy, another Boltech employee who was on the fishing trip, survived.

Boyer was Boltech's plant operations manager. Corley, who had worked at Boltech since 2002,2 was lead heat treatment technician. His job often required him to work for days, weeks, or months at a time out of town. Before Boyer became plant operations manager, he and Corley would travel to job sites together. Although they did not normally socialize off the job, Corley's wife described the two as "compatible," noting that they often drove together to jobs and were in close quarters. According to Mrs. Corley, the two men had the same nickname for each other, "Brother Man." As operations manager, Boyer had control over Corley's work assignments. This meant Boyer could assign jobs that were easier or harder, jobs that involved more travel or less travel, or jobs that involved more hours or fewer hours. Boyer also had the authority to recommend termination.

On Saturday morning, August 27, Boyer called Corley and said he needed Corley to go out with him and check out Boyer's boat, which Boyer had just gotten out of the shop. Corley's wife heard part of the conversation between the two men on speaker phone. Corley initially said no, but Boyer "just kept on." (Corley Dep. 53.) Corley explained that he was taking his mom out for her birthday, but Boyer just "still [kept] saying... I need you to go because I - I just -you know I cant do it by myself." [Id.) The conversation continued after Mrs. Corley left the room. A few minutes later, Corley told his wife that he was going with Boyer and that they might fish a little but would be back in two or three hours. (Id.)

According to Corley's wife, Corley did not want to go out with Boyer for several reasons. First, he had just gotten back from a job in Chattanooga, Tennessee and was exhausted.3 Second, he was planning to take his mother out to lunch or dinner that day for her birthday, which was the following day. Third, Corley had recently undergone a terrifying ordeal involving the water and did not like to go offshore.4 Finally, Corley had gone out with Boyer in his boat a couple of months earlier, but the boat had mechanical difficulties and they had to return to shore. Mrs. Corley believed that Boyer needed Corley's help to launch the boat because Boyer had a bad ankle.

Boyer had also invited Jacob Shenesy to go along on the fishing trip. Boyer was Shenesy's boss, too, but Shenesy socialized with Boyer outside of work. Boyer called Shenesy on August 26 and asked if he wanted to go fishing the next day. Shenesy was eager to go. On Saturday, Shenesy drove to Corley's house then the two drove to Boyer's house together.

Boyer had hitched the boat to his company-owned truck, and the three headed to Dauphin Island. On the way, Boyer stopped to put gas in the truck, which he purchased using the company-credit card. Boltech provided Boyer with a company truck, a fuel credit card, an expense credit card, and a cell phone. They launched the boat at Dauphin Island then fished for a while near the mouth of Mobile Bay at a rig known as The Ox. Boyer, who had no experience boating offshore, decided to take the boat out into the Gulf. As they passed Sand Island, south of Dauphin Island, the seas became choppy.

Next they tied up to a rig three to five miles offshore where they fished for about 30 minutes. When Boyer went into the cabin and saw that the boat was taking on water, the three decided to head back.5 They untied the boat and managed to get the engine started, but then it stalled and was almost immediately hit by a large wave. In less than a minute, the boat was sunk. All three survived initially but were thrown into the water. Corley was separated from the other two. His body was found the next day. After surviving the night, Boyer drowned. Shenesy was rescued by a Good Samaritan. The Coast Guard conducted an investigation and concluded that "during the installation of a new fuel tank, the subfloor was cut, at which point the vessel lost watertight integrity, which inevitably led to the vessel sinking." (Coast Guard Rept, PLs Ex. E.)

As a result of these events, Linda Corley, individually and as representative of the estate of Darryl Corley, filed suit against Boltech in the Circuit Court of Mobile County. Boltech removed the action to this Court based on diversity jurisdiction.6 The Complaint alleges causes of action under General Maritime Law because "Boyer was acting as an agent or respondeat for his employer, Boltech Mannings, Inc." (Count One) and because "[a]t all relevant times, the vessel in question was under the exclusive control of Boltech Mannings, Inc., by and through its agent/supervisor, Boyer" Count Two). In addition, the Complaint asserts a claim under the Savings to Suitors Clause, 28 U.S.C. § 1331(1) (Count Three), a claim for negligence under General Maritime Law (Count Four), and a claim under the Death on the High Seas Act, 46 U.S.. § 303, et seq. (Count Five). Each count "adopts and realleges" the preceding paragraphs and counts.

Legal Analysis

Jurisdiction

In each count of her Complaint, Plaintiff "demands judgment... under General Maritime Law." Because general maritime law does not provide an independent basis for federal jurisdiction, Romero v. Int'l Terminal Operating Co., 35 U.S. 354, 368 (1959), Defendant has invoked this Courts removal jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441 based on diversity of citizenship. Jurisdiction is proper in this case because there is complete diversity between the parties and the amount in controversy exceeds the $75,000 jurisdictional minimum. See 28 U.S.C. § 1332(a)(1) (district courts have original jurisdiction where amount in controversy "exceeds ... $75,000, exclusive of interest and costs, and is between .. citizens of different States").

Summary Judgment Standard

Summary judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied his responsibility, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted).

"In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). "However, we draw these inferences only "`to the extent supportable by the record." Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8 (2007) (emphasis omitted)). Furthermore, "[a] dispute over a fact will only preclude summary judgment if the dispute "might affect the outcome of the suit under the governing law." Id. (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, (1986)).

Issues Presented

All of Plaintiffs claims hinge on a theory of vicarious liability. Plaintiff asserts that Boltech is liable for Darryl Corley's death because Kenneth Boyer was, at all relevant times, "acting as agent or respondeat for his employer [Boltech]." Boltech has moved for summary judgment, pointing out Plaintiffs inability to satisfy the requirements for agency under Alabama law. In response, Plaintiff argues that Alabama law does not apply because she is proceeding under general maritime law7 and the Death on High Seas Act (DOSHA), 46 U.S.C. § 303. Plaintiff points to evidence that, she contends, raises a genuine issue of material fact under federal agency principles. No matter which agency law applies, Plaintiff has failed to adduce facts from which a factfinder could conclude that Boyer was acting as Boltech's agent during the events that resulted in Corley's death.

Alabama Law

The principle of respondeat superior allows a party injured in tort to recover from the tortfeasor's employer if "the act complained of was done, either by agent or servant, while acting within the line and scope of employment..., even though [the employer] did not authorize or ratify such acts or even expressly forbade them." Prior v. Brown & Root US, Inc. 674 So.2d 45, 48 (Ala. 1995) (quoting Autrey v. Blue Cross & Blue Shield of Alabama, 481 So.2d 345, 347-48 (Ala. 1985)). "An act is within an employee's scope of employment if the act is done as part of the duties the employee was hired to perform or if the act confers a benefit on his employer." Hulbert v. State Farm Mut. Auto. Ins. Co., 723 So.2d 22, 23 (Ala. 1998). Likewise, it is within the scope of employment if it is done in furtherance of his employment. Id. Conduct that is undertaken for purely personal motives or personal gratification does not fall within the scope of employment. Id.

Darryl Corley was killed on a weekend fishing trip. Although Boyer, who arranged the trip, was his supervisor, nothing about the trip was job-related. It did not occur during working hours. There is no evidence that the trip was related to, sanctioned by, or for the benefit of Boltech. Nor is there any evidence that it was part of, related to, or furthered Boyer's employment in any way.8 In fact, Plaintiff does not rely on principles of agency, vicarious liability, or respondeat superior law at all. Instead, Plaintiff argues that "whether or not Corley's death occurred in the line and scope of his employment must be analyzed under a scenario where an employee is injured while engaging in social or recreational activities, which are almost always governed by workers compensation law." (PLs Brf. 23.) No citation is provided for this novel assertion that workers compensation law provides the framework for determining an employers liability for the tortious conduct of its employee.

Even if workers compensation law were applicable, Plaintiffs claim would fail. Plaintiff cites one case, Board of Managers of the City of Birmingham Ret. and Relief Sys. v. Elliot, 532 So.2d 1019 (Ala. Civ. App. 1988), which held that a fireman was entitled to workers compensation for an injury incurred while playing basketball while on duty at the fire station. Plaintiff does not rely on any holding in Elliot but merely cites it for the courts reliance on a section of a treatise, A. Larson, The Law of Workmen's Compensation § 22 (1985), regarding an employers liability for injuries sustained during recreational activities. One of the circumstances in which liability may be imposed is "[w]hen ... [t]he employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment." Id. (emphasis added).," Plaintiff argues that Boltech (the employer) is liable because Boyer (a Boltech employee) "expressly or impliedly[] compelled Corley to go fishing." (Pl.'s Br. 23.) The fallacy in this argument is that it still requires proof that the Boyer was acting on behalf of Boltech. Thus, the argument comes full circle, and, ironically, Plaintiffs alternative theory of vicarious liability requires proof of vicarious liability.

Maritime Law/Federal Common Law

Plaintiff argues that Boltech is liable under federal common law even if Boyer was acting outside the scope of his employer. As Plaintiff points out, "[fjederal maritime law embraces the principles of agency." Naviera Neptuno S.A. v. Alllnt'l Freight Forwarders, Inc., 709 F.2d 663, 665 (11th Cir. 1983). Federal courts have looked to the Restatement (Second) of Agency to help define the contours of agency under federal common law. See, e.g., Kolstad v. Am. DentalAssoc, 527 U.S. 526, 542 (1999). To support her claim that Boyer was acting as Boltech's agent, Plaintiff relies on the Restatement (Second) of Agency § 219(2) (1958), which states:

Pointing to the highlighted portion of subsection (2)(d), Plaintiff argues that Boltech is vicariously liable, even though he was acting outside the scope of his employment, because "Boyer used his authority as plant manager to compel [Corley] to go fishing against his will which led to his death. (Pl.'s Br. 19.)

For several reasons, the Court finds that§ 219(2)(d) does not apply. First, in its most recent version, the Restatement (Third) of Agency (2006) specifically abandoned the "aided in accomplishing" theory expressed in § 219(2)(d) of the Restatement (Second).

Restatement (Third) of Agency § 7.08 cmt b.9 In fact, the authors declined to address "an employers vicarious liability for an employees tortious conduct against a fellow employee," leaving that task to the Restatement (Third) of Employment Law, which was in preparation at the time the Restatement (Third) of Agency was published.10 Id. § 7.08, cmt. a.

Second, there must be some limitation to the "aided in accomplishing" theory; otherwise the rule that the principle is not liable for torts committed outside the scope of employment is swallowed by the exception. As the notes accompanying the most recent draft of the Restatement (Third) of Employment Law point out, the "aided in accomplishing" theory renders the distinction between acts done in the scope of employment (for which the employer is always liable) and acts done outside the scope of employment (for which the employer is not liable except in limited situations) essentially meaningless. Restatement (Third) of Agency, § 4.03 Reptr.s Notes (Tentative Draft No. 6, March 30, 2013). "[A]lmostall torts resulting from the employment relationship are aided by the existence of that relationship, regardless of the tortfeasor's independent course of conduct and motivation for committing the torts." Id. If the theory still applies, it applies only to intentional torts. This interpretation is supported by the illustrations provided in the Restatement (Second). "Clause (d) includes primarily situations in which the principals liability is based upon conduct which is within the apparent authority of a servant, as where one purports to speak for his employer in defaming another or interfering with another's business." Restatement (Second) of Agency § 219 cmt. e. Other examples include "a telegraph operator [who] sends false messages" or "the manager of a store [who] is enabled to cheat a customer because of his position." Id.

Third, the case law applying § 219(2)(d) has no application here. Plaintiff relies on three cases to support her theory that Boyer's position as supervisor amounted to "misuse of delegated authority" sufficient to create an issue of fact under the "aided by agency" theory—Burlington Indus., Inc. v. EUerth, 524 U.S. 742 (1998), Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272 (11th Cir. 2003) and LaRouche v. Denny's, Inc., 62 F.Supp.2d 1366 (S.D. Fla.). Walton and LaRouche rely extensively on EUerth and its companion case, Faragher v. City of Boca Raton, 524 U.S. 775 (1998). In Faragher and EUerth, the Supreme Court used § 219(2)(d) as a "starting point" for determining whether an employer can be held vicariously liable for a sexually hostile work environment created by its employees. It did not intend "to make a pronouncement of agency law in general or to transplant § 219(2)(d) into Title VII." Faragher, 524 U.S. at 803 n. 3. Instead, the Courts aim was "to adapt agency concepts to the practical objectives of Title VII." Id. The Court held that "an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher, 524 U.S. at 807. In reaching this conclusion, the Court recognized that "[s]ection 219(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority..., or when the employee was aided in accomplishing the tort by the existence of the agency relationship." EUerth, 524 U.S. at 759 (emphasis added). Not only is Faragher/EUerth limited to hostile work environment cases, its principles are not transferrable to this case because the holding is limited to intentional torts.11

Conclusion

For the reasons set forth above, the Defendants motion for summary judgment is hereby GRANTED.