Filed: Jul. 02, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-30558 Summary Calendar _ VOYD B BURGER, Plaintiff - Appellant-Cross-Appellee, v. MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S. Bellatrix; ET AL, Defendants, MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S. Bellatrix; BAY SHIP MANAGEMENT INC; AVONDALE SHIPYARD INC; RICHARD P MARTUCCI, Captain; EDWARD L GIBSON; ARTHUR C CLARK; JOSEPH CONWELL; ERIC BARDES, Defendants - Appellees, AMERICAN MARITIME OFFICERS UNION, Defendan
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-30558 Summary Calendar _ VOYD B BURGER, Plaintiff - Appellant-Cross-Appellee, v. MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S. Bellatrix; ET AL, Defendants, MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S. Bellatrix; BAY SHIP MANAGEMENT INC; AVONDALE SHIPYARD INC; RICHARD P MARTUCCI, Captain; EDWARD L GIBSON; ARTHUR C CLARK; JOSEPH CONWELL; ERIC BARDES, Defendants - Appellees, AMERICAN MARITIME OFFICERS UNION, Defendant..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________
No. 98-30558
Summary Calendar
_________________________________
VOYD B BURGER,
Plaintiff - Appellant-Cross-Appellee,
v.
MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S.
Bellatrix; ET AL,
Defendants,
MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S.
Bellatrix; BAY SHIP MANAGEMENT INC; AVONDALE SHIPYARD INC;
RICHARD P MARTUCCI, Captain; EDWARD L GIBSON; ARTHUR C
CLARK; JOSEPH CONWELL; ERIC BARDES,
Defendants - Appellees,
AMERICAN MARITIME OFFICERS UNION,
Defendant - Appellee-Cross-Appellant.
---------------------------------
Appeals from the United States District Court
for the Eastern District of Louisiana
(97-CV-2795-T)
---------------------------------
June 30, 1999
Before EMILIO M. GARZA, BENAVIDES and STEWART, Circuit
Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I.
Voyd Burger appeals from the judgment of the district
court dismissing with prejudice all of his claims against
appellees. American Maritime Officers Union cross-appeals
from the district court’s denial of Rule 11 sanctions
against Burger. We affirm in part and modify in part the
district court’s dismissal of Burger’s claims. We also
affirm the district court’s denial of Rule 11 sanctions.
This suit grows out of allegations by Voyd Burger that,
while employed aboard the U.S.N.S. Bellatrix, he was treated
unlawfully from January 3, 1995, until he was terminated on
March 3, 1995. Burger has filed three lawsuits based on
these same allegations. In February 1996, he filed a 55-
page complaint against numerous defendants in the United
States District Court for the Northern District of Florida
(“Burger I”). His claims were dismissed by the Florida
district court and Burger appealed to the Court of Appeals
for the Eleventh Circuit. In July 1997, Burger filed a
second complaint in the Eastern District of Louisiana that
was almost identical to the one filed in the Florida
district court (“Burger II”). The Louisiana district court
dismissed Burger’s claims with prejudice under the first-to-
file rule and Burger appealed to this court. In September
1997, Burger filed this, his third suit, again in the
Eastern District of Louisiana (“Burger III”). The Louisiana
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district court dismissed with prejudice under the first-to-
file rule those claims that had already been raised in
Burger I and Burger II, and dismissed on the merits claims
that were either new or against new parties. In August
1998, the Court of Appeals for the Eleventh Circuit affirmed
the Florida district court’s decision in Burger I. In
January 1999, a panel of this court affirmed the Louisiana
district court’s decision in Burger II except to the extent
that we reversed its decision to dismiss with prejudice
claims that the Florida district court had dismissed on
jurisdictional grounds.
Upon this mass of accreted judicial proceedings, we now
consider Burger’s appeal in Burger III. Seven of the nine
defendants in this suit, including Avondale Shipyard, Inc.
(“Avondale”), American Maritime Officer’s Union (“AMOU”),
Bay Ship Management, Inc. (“BSM”), and four of BSM’s
employees, Richard Martucci, Edward Gibson, Arthur Clark,
and Joseph Conwell, were also defendants in Burger I. The
two new defendants are Military Sealift Command (“MSC”), the
federal government agency that owns the U.S.N.S. Bellatrix,
and Eric Bardes, another employee of BSM. Burger’s
complaint alleges three causes of action: involuntary
servitude, failure to pay portal to portal pay in violation
of 29 U.S.C. § 251 et seq., and improper discharge. Burger
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also moved to join Joseph Sauzek, a fellow seaman on the
Bellatrix, in a class action. Based upon Burger’s
repetitive filings, AMOU and BSM filed a motion seeking Rule
11 sanctions against Burger.
The district court dismissed with prejudice Burger’s
improper discharge and involuntary servitude claims against
the seven previously-named defendants under the first-to-
file rule. The portal-to-portal claims against all of the
defendants were dismissed based on Burger’s failure to
identify an express contractual right to such relief. The
remaining claims against Eric Bardes were dismissed under
Rule 8 for Burger’s failure to state the grounds for
Bardes’s liability. The remaining claims against MSC were
dismissed on summary judgment for Burger’s failure to comply
with the “exclusivity provision” of the Suits in Admiralty
Act, 46 U.S.C. § 741-52. The district court also denied
Burger’s motion to certify a class action for failure to
satisfy Rule 23’s numerosity or adequate representation
requirements. Finally, the district court denied AMOU and
BSM’s motion for sanction. Burger and AMOU timely appealed
these rulings.
II.
A. First-to-File Rule
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1. Improper Discharge Claims
We affirm the district court’s decision to dismiss
Burger’s improper discharge claims against the seven
previously-named defendants under the first-to-file rule.
Burger asserted an identical claim for improper discharge
against the same defendants in Burger I and that case was
pending before the Court of Appeals for the Eleventh Circuit
when the district court entered its order. The first-to-
file rule was therefore properly invoked to avoid
duplicative litigation. See Save Power Ltd. v. Syntek
Finance Corp., 121 F.3d 947, 950-51 (5th Cir. 1997).
However, while dismissal was proper under the first-to-
file rule, the district court erred in dismissing all of
Burger’s improper discharge claims with prejudice instead of
without prejudice. Instead, the district court should have
left Burger an opportunity to refile those claims that were
not ultimately considered on the merits by another court.
Our decision in this regard is identical to our prior
decision in Burger II, see Burger v. American Maritime
Officers Union, No. 97-31099 (5th Cir. filed Jan. 27, 1999),
and we adopt the reasoning of that decision en toto. AMOU
was the only previously-named defendant that the Florida
district court exercised personal jurisdiction over. For
that reason, the district court’s dismissal with prejudice
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of Burger’s improper discharge claims against AMOU was
proper. As to the other six previously-named defendants--
Avondale, BSM, Martucci, Gibson, Clark, and Conwell--we
modify the district court’s judgment such that the dismissal
of Burger’s improper discharge claims against them is
without prejudice.
2. Involuntary Servitude Claims
Upon reviewing the complaints filed in Burger I and
Burger II, we are unable to find any claim that was
substantively similar to Burger’s claim here that his
treatment aboard the Bellatrix amounted to a deprivation of
his Thirteenth Amendment right to be free from involuntary
servitude. It was therefore error for the district court to
dismiss Burger’s claim under the first-to-file rule. See
Syntec, 121 F.3d at 950-51 (describing requirement that
there be substantial overlap between two suits for first-to-
file rule to apply).
Nonetheless, we affirm the district court’s dismissal
of Burger’s involuntary servitude claims on the alternative
ground raised below that he failed to state a claim upon
which relief could be granted. To prove a claim of
involuntary servitude, an employee must show that there was
no conceivable means of avoiding the continued service or
confinement. See Brooks v. George County, 84 F.3d 157, 162
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(5th Cir. 1996). “‘When the employee has a choice, even
though it is a painful one, there is no involuntary
servitude . . . A showing of compulsion is thus a
prerequisite to proof of involuntary servitude.’” Id.
(quoting Watson v. Graves,
909 F.2d 1549, 1552 (5th Cir.
1990)). Burger’s complaint alleged that “crew members of
the USNS Bellatrix were given the choice of working for free
or be [sic] fired under some pretext.” That painful choice,
even if true, would not support a claim of involuntary
servitude. We affirm the district court’s dismissal of
Burger’s involuntary servitude claims with prejudice.
B. Portal-to-Portal Claims
We affirm the district court’s decision to dismiss
Burger’s claims under the Portal-to-Portal Act of 1947, 29
U.S.C. § 251 et seq. The Act limits the liability of
employers who fail to compensate employees for travel or
other activities which are not an “integral part of and
indispensable to their principal activities.” Steiner v.
Mitchell, 350 U.S. 247, 255 (1956); see 29 U.S.C. § 254(a).
An employer only becomes liable if such activities are
compensable under either an express provision of a written
or unwritten contract or a custom or practice. See 29
U.S.C. § 254(b). Other than a single statement that
“Defendant Martucci refused to remit to plaintiff portal to
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portal funds to pay for transportation,” Burger’s complaint
does not specifically allege what activities entitled him to
compensation under the Act. Moreover, the complaint does
not, as required by § 4(b) of the Act, describe any
contract, custom, or practice that could override the limits
on liability established by § 4(a) of the Act. Thus, even
if all of the allegations in Burger’s complaint were taken
as true, he would not have established a claim for portal-
to-portal compensation. We therefore find that the district
court properly dismissed Burger’s Portal-to-Portal Act
claims for failure to state a claim.
C. Claims Against Eric Bardes
We affirm the district court’s dismissal with prejudice
of claims against Eric Bardes. The only allegation against
Bardes in Burger’s complaint states that Bardes, along with
other defendants, “ma[de] plaintiff and other seamen work
after hours without pay,” which the complaint describes as
“involuntary servitude.” As previously stated, Burger’s
complaint does not state a cognizable involuntary servitude
claim. As this was the only allegation made against Bardes,
Burger’s claims against him were properly dismissed.
D. Claims Against Military Sealift Command
We also affirm the district court’s grant of MSC’s
motion for summary judgment. Under the Public Vessels Act,
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46 U.S.C. § 781 et seq., the United States waives its
sovereign immunity to suits brought for damages caused by
public vessels. See id. at § 781. This remedy, however, is
exclusive of any cause of action against any agent,
employee, or agency of the United States. See
id. at § 745
incorporated by 46 U.S.C. § 782; Favorite v. Marine
Personnel and Provisioning, Inc.,
955 F.2d 382, 385-88
(finding claim against agent of the United States barred by
§ 745 exclusivity provision). Here, Burger has filed suit
against MSC, an agency of the United States. Because his
suit is based upon damages incurred while employed aboard a
public vessel of the United States, his exclusive remedy was
to file suit against the United States, itself. Moreover,
even if Burger’s suit had properly been instituted against
the United States, it would have been barred by the two-year
statute of limitation contained in 42 U.S.C. 745. We
therefore affirm the district court’s grant of MSC’s motion
for summary judgment.
E. Certification of Class Action
We affirm the district court’s denial of Burger’s
motion to certify a class action. Burger seeks to certify a
class that consists of two plaintiffs which he would then
represent pro se. Such a class clearly would not satisfy
the numerosity or adequate representation requirement in
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Rule 23(a). The district court properly denied Burger’s
motion.
F. Sanctions
Finally, we affirm the district court’s denial of
AMOU’s motion for sanctions. We review a district court’s
denial of Rule 11 sanctions for an abuse of discretion. See
American Airlines, Inc. v. Allied Pilots Association, 968
F.2d 523, 529 (5th Cir. 1992). The district court remarked
that Burger, by repetitively filing suits against the same
defendants, has come “dangerously close to deliberate
indifference to the court’s rules.” We agree. Nonetheless,
the district court found Burger’s actions more the result of
unfamiliarity with the law than wilful disobedience. We
find no abuse of discretion in this finding. The district
court’s denial of sanctions is affirmed.
III.
For the foregoing reasons, we affirm the district
court’s dismissal in all respects, except that we modify the
dismissal of Burger’s improper discharge claims against
Avondale, BSM, Martucci, Gibson, Clark, and Conwell such
that the dismissal is now without prejudice.
AFFIRMED in part, MODIFIED in part, and AFFIRMED AS
MODIFIED.
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