SIM LAKE, District Judge.
Plaintiff brings this action against defendants, M/T Georgios M., her engines, tackle, etc., in rem ("the Vessel"); STYGA Compania Naviera S.A. ("STYGA"), Helford Marine Inc. ("Helford"), Kyriakos Mamidakis, Emmanuel A. Mamidakis, Nikolaos A. Mamidakis, Alexandros N. Mamidakis (collectively, "the Mamidakis Defendants"), and Alexandros G. Prokopakis, for violation of the Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1910, general maritime claims for unseaworthiness, negligence, intentional misrepresentation, breach of the duty to defend, maintenance and cure, double wages under 46 U.S.C. § 10313, and pendent state law claims for malicious prosecution, breach of fiduciary duty, and gross negligence. Plaintiff seeks statutory civil penalties and attorney's fees for his APPS claims and seeks compensatory and exemplary damages for his other claims. Pending before the court are plaintiff's Emergency Motion to Sanction Certain Defendants for Perjured Deposition Testimony (Docket Entry No. 79); Defendant Nikolaos A. Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 88); STYGA Compania Naviera S.A. and Helford Marine Inc.'s Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 89); Defendant Kyriakos Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 90); Alexandros G. Prokopakis's Amended Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 91); Defendant Emmanouil A. Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 92); and Defendant Alexandros N. Mamidakis' Amended Motions to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Docket Entry No. 93); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims Under 33 U.S.C. § 1910 a/k/a Act to Prevent Pollution from Ships (Docket Entry No. 94); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims for Maintenance & Cure and Penalty Wages Under 46 U.S.C. § 10313 (Docket Entry No. 95); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim of Malicious Prosecution Under Texas Law (Docket Entry No. 96); Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim for Breach of the Duty to Defend (Docket Entry No. 97); and Defendants' Objections to Evidence Offered by Plaintiff (Docket Entry No. 115).
For the reasons explained below, Plaintiff's Emergency Motion to Sanction Certain Defendants for Perjured Deposition Testimony (Docket Entry No. 79) will be denied as to the individuals defendants and granted in part and denied in part as to the corporate defendants; STYGA and Helford's Amended Motions to Dismiss for
Plaintiff is a citizen and resident of Greece.
On or about November 29, 2008, plaintiff arrived at Puerto Limon, Costa Rica, to board the M/T GEORGIOS M. and replace Argyrios Argyropoulos ("Argyropoulos") as Chief Engineer.
On February 19, 2009, at the port of Texas City, Texas, the United States Coast Guard (USCG) initiated an investigation into alleged unlawful discharges of oily waste from the M/T GEORGIOS M. This investigation caused the United States to file criminal charges against STYGA as manager and plaintiff as Chief Engineer of the M/T GEORGIOS M.
On February 25, 2009, STYGA and Helford entered into an Agreement on Security with the USCG pursuant to which the United States agreed to release the M/T GEORGIOS M. in exchange for STYGA and Helford's agreement to post a surety bond and to provide for the care, salaries, lodging, per diem and needed transportation for crew members from the M/T GEORGIOS M. — including plaintiff — who the USCG required to stay in the Southern District of Texas until the criminal investigation concluded.
On August 20, 2009, a federal grand jury indicted plaintiff on two counts of violating the APPS, 33 U.S.C. § 1908(a), for failing "to maintain an Oil Record Book for the M/T Georgios M in which all disposals of oil residue, overboard discharges, and disposals of oily bilge waste water were required to be fully recorded."
On September 2, 2009, STYGA's Board of Directors resolved "[t]hat STYGA ... is authorized to waive its right to indictment with regards to the investigation by the United States Attorney for the Southern District of Texas."
COUNT ON OR ABOUT IN THE PORT OF 1 December 19, 2006 Houston, Texas 2 January 15, 2009 Corpus Christi, Texas 3 February 19, 2009 Texas City, Texas
On October 21, 2009, STYGA entered a written plea agreement with the United States pursuant to which STYGA pleaded guilty to the October 8, 2009, Information and agreed to (1) pay a criminal fine in the amount of $1,000,000.00; (2) pay an organizational community service payment in the amount of $250,000.00; (3) serve a thirty-six-(36)-month term of probation that includes as a condition of probation the implementation of an Environmental Compliance Plan (ECP); and (4) cooperate in the government's ongoing investigation and prosecution of individual crew members from the M/T GEORGIOS M., including the plaintiff in this action.
On April 28, 2010, at the conclusion of a trial, the plaintiff was acquitted of all the charges made against him in the indictment dated August 20, 2009.
Plaintiff initiated this action on August 24, 2010, by filing his Original Verified Complaint (Docket Entry No. 1).
Plaintiff alleges that "[a]t all times material hereto, all acts and omissions complained of occurred either within the State of Texas or had their impact within the State of Texas in this Federal judicial district."
Plaintiff argues that defendants' contacts with Texas are sufficient to support the exercise of personal jurisdiction.
When a foreign defendant moves to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), "the plaintiff `bears the burden of establishing the district court's jurisdiction over the defendant.'" Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 343 (5th Cir.2002), cert. denied, 540 U.S. 814, 124 S.Ct. 66, 157 L.Ed.2d 29 (2003) (quoting Mink v. AAAA Development LLC, 190 F.3d 333, 335 (5th Cir.1999)). "When the district court rules on a motion to dismiss for lack of personal jurisdiction `without an evidentiary hearing, the plaintiff may bear his burden by presenting a prima facie case that personal jurisdiction is proper.'" Id. (quoting Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.), cert. denied, 513 U.S. 930, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994)). "In making its determination, the district court may consider the contents of the record before the court at the time of the motion, including `affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.'" Id. at 344 (quoting Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985)). The court must accept as true the uncontroverted allegations in the plaintiff's complaint and must resolve in favor of the plaintiff any factual conflicts. "Absent any dispute as to the relevant facts, the issue of whether personal jurisdiction may be exercised over a nonresident defendant is a question of law to be determined ... by th[e C]ourt." Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418 (5th Cir.1993). However, the court is not obligated to credit conclusory allegations, even if uncontroverted. Panda Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d 865, 869 (5th Cir.2001).
Exercise of personal jurisdiction over a nonresident defendant comports with federal due process guarantees when the nonresident defendant has established minimum contacts with the forum state, and the exercise of jurisdiction "does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). Once a plaintiff satisfies these two requirements, a presumption arises that jurisdiction is reasonable, and the burden of proof and persuasion shifts to the defendant opposing jurisdiction to present "a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985). For claims arising under state law, federal courts "may assert personal jurisdiction if: (1) the state's long-arm statute applies, as interpreted by the state's courts; and (2) if due process is satisfied under the [F]ourteenth [A]mendment to the United States Constitution." Johnston v. Multidata Systems International Corp., 523 F.3d 602, 609 (5th Cir. 2008). For claims arising under federal law courts may assert personal jurisdiction over defendants who lack sufficient contacts to satisfy the due process concerns of any particular state's long-arm statute pursuant to Federal Rule of Civil Procedure 4(k)(2) when the defendant has sufficient
Texas courts may assert personal jurisdiction "over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due process guarantees." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990)). The Texas long-arm statute authorizes service of process on nonresidents "[i]n an action arising from a nonresident's business in this state." Tex. Civ. Prac. & Rem.Code § 17.043.
Id. at § 17.042. The Texas Supreme Court has stated that "the long-arm statute's broad doing-business language allows the statute to `reach as far as the federal constitutional requirements of due process will allow.'" Moki Mac, 221 S.W.3d at 575 (quoting Guardian Royal Exchange Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)). See also Schlobohm, 784 S.W.2d at 357 (holding that the limits of the Texas long-arm statute are coextensive with the limits of constitutional due process guarantees).
"There are two types of `minimum contacts:' those that give rise to specific personal jurisdiction and those that give rise to general personal jurisdiction." Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir.2001). Defendants argue that this action should be dismissed pursuant to Rule 12(b)(2) for lack of personal jurisdiction because plaintiffs have failed to carry their burden of presenting prima facie evidence that they purposefully established "minimum contacts" with Texas that are sufficient to give rise to either "specific" or "general" jurisdiction. Plaintiff responds that the court has both specific and general jurisdiction over both the corporate and the individual defendants.
General jurisdiction "exists when a non-resident defendant's contacts with the forum state are substantial, continuous, and systematic." Johnston, 523 F.3d at 609 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1872-74, 80 L.Ed.2d 404 (1984)). "The `continuous and systematic contacts test is a difficult one to meet, requiring extensive contacts between a defendant and a forum.'" Id. (quoting Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 249 F.3d 413, 419
The seminal general jurisdiction case is Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), in which the Supreme Court first articulated the idea that a court may exercise personal jurisdiction over a foreign corporation based on general business operations within the forum state. The Supreme Court upheld the district court's exercise of general personal jurisdiction in Ohio over a Philippine corporation whose president and general manager relocated to Ohio during the Japanese occupation of the Philippine Islands. While in Ohio, the president maintained a corporate office where he kept the records of the corporation, conducted director's meetings, and made all key business decisions. The corporation also distributed salary checks drawn on two Ohio bank accounts and engaged an Ohio bank to act as a transfer agent. In light of these activities the Court held that Ohio could exercise jurisdiction over the corporation because the president had "carried on in Ohio a continuous and systematic supervision of the necessarily limited wartime activities of the company." Id. at 419.
By contrast, in Helicopteros the Supreme Court held that the defendant's general business contacts with Texas were insufficient to support an exercise of general jurisdiction despite the fact that the defendant had purchased equipment from a company in the forum state. 104 S.Ct. at 1873-74. Over a six-year period the defendant purchased helicopters (approximately 80% of its fleet), spare parts, and accessories for more than $4 million from a Texas company; sent its prospective pilots to Texas for training; sent management and maintenance personnel to Texas for technical consultations; and received a check for over $5 million that was drawn upon a Texas bank. Nevertheless, the Court held that none of the contacts were substantial enough standing alone or taken together to support the assertion of general jurisdiction.
The Court explained that the mere purchase of goods from a state, even at regular intervals and in substantial amounts, was not enough to warrant the assertion of general jurisdiction over a non-resident on a cause of action unrelated to those purchases. Nor was the Court persuaded that the fact that the defendant sent personnel to Texas for training in connection with the purchases enhanced the nature of the contacts. Instead, the Court concluded that this was merely one aspect of the package of goods and services that the defendant had purchased. Finally, the Court concluded that the receipt of a check drawn from a Texas bank was of no consequence because the bank from which payment was made was caused by the fortuitous "unilateral activity" of a third party. Id. The Fifth Circuit has consistently imposed the high standard set by the Supreme Court in Helicopteros when ruling on general jurisdiction issues. See, e.g., Central Freight Lines Inc. v. APA Transport Corp., 322 F.3d 376, 381 (5th Cir.2003)
Application of the standards shows that none of the defendants in this action have sufficient systematic and continuous contacts with Texas to establish general jurisdiction. See also Johnston, 523 F.3d at 611 (reaffirming that a defendant must have a "business presence in Texas" before general jurisdiction will attach). As to the corporate defendants, plaintiff acknowledges that since the claims alleged against STYGA and Helford arise from their activity in this forum, "it is not necessary for Plaintiff to invoke general jurisdiction in the circumstances of this case."
A court may exercise specific jurisdiction over a nonresident defendant if the lawsuit arises from or relates to the defendant's contact with the forum state. See ICEE Distributors, Inc. v. J & J Snack Foods Corp., 325 F.3d 586, 591 (5th Cir.2003). Specific jurisdiction exists where a defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King, 105 S.Ct. at 2183 (quoting Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)). There are three parts to a purposeful availment inquiry. First, only the defendant's contacts with the forum are relevant, not the unilateral activity of another party or a third person. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated.
Citing Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir.1990), STYGA and Helford argue that "[p]recedent [i]nvolving [c]hartered [v]essels [f]avors [d]ismissal"
STYGA and Helford argue that they are not subject to specific jurisdiction because, as manager and owner, respectively, of the time-chartered vessel, they were not involved in decisions affecting the vessel's ports of call and did not direct the vessel to any specific port. STYGA and Helford rely on the Fifth Circuit's decision in Asarco, 912 F.2d at 784, for the proposition that a vessel's manager and owner do not purposefully avail themselves of the jurisdiction of a port of call that was chosen solely by the vessel's time-charterer.
In Asarco cargo was loaded in Australia and lost at sea long before the vessel ever reached Louisiana, where the plaintiff sued the owner and manager of the vessel. 912 F.2d at 785. The vessel had been time-chartered to a third party, who directed the vessel to carry the cargo to Louisiana. Id. The vessel's manager was a Hong Kong corporation named Anglo-Eastern Management Services Limited ("Anglo-Eastern"). Id. Anglo-Eastern and the vessel's owner successfully argued to the Louisiana district court that it lacked personal jurisdiction over them. The Fifth Circuit affirmed, observing the general rule that "[e]ven a single, substantial act directed toward the forum can support specific jurisdiction," but finding that the plaintiff had failed to show that either the vessel's owner or Anglo-Eastern had directed an act toward Louisiana. Id. at 786.
This case is distinguishable from Asarco. Here, unlike Asarco, plaintiff's claims against STYGA and Helford are not all based on acts committed outside the forum. Instead, Plaintiff alleges that the two corporate defendants were responsible for the MARPOL/APPS violations found aboard the M/T GEORGIOS M. while the vessel was physically present in Texas, and that these defendants and/or their agents committed other acts in Texas that harmed him. If the nonresident corporate defendants committed the liability-producing acts while physically present in the forum state, such conduct will support personal jurisdiction in lawsuits arising from those acts.
Thus, if STYGA and Helford are responsible for the allegedly tortious actions of the vessel's crew while in Texas, they are subject to personal jurisdiction in Texas. See Ortega v. Seaboard Marine Ltd., 400 F.Supp.2d 987, 990 (S.D.Tex.2005) ("Because Patt Manfield employed the captain and crew, it cannot escape litigation arising out of the allegedly tortious acts of those employees acting within the scope of their employment.").
STYGA and Helford describe their activities in Texas as follows:
STYGA and Helford argue that
STYGA and Helford's acknowledgment that while in Texas the M/T GEORGIOS M. presented an Oil Record Book to the USCG that failed to contain required entries concerning the management of sludges and oily wastes in violation of the APPS, 33 U.S.C. §§ 1901 et seq., provides a sufficient basis for the court to assert personal jurisdiction over them for plaintiff's claims that they violated the APPS. Moreover, in light of the duties that the charter party agreement imposed upon the vessel's owner, i.e., Helford, the court concludes that STYGA and Helford's acknowledgment that the vessel presented an improperly maintained Oil Record Book to the USCG in Texas also provides a sufficient basis for exercising personal jurisdiction over Helford and its agent, STYGA, for plaintiff's general maritime claims for unseaworthiness and negligence.
General maritime law imposes duties to avoid unseaworthiness, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), and negligence, Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192 (1881), and "nonfatal injuries caused by the breach of either duty are compensable." Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 121 S.Ct. 1927, 1929-30, 150 L.Ed.2d 34 (2001) (citing Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 458-59, 88 L.Ed. 561 (1944) (unseaworthiness), and Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 158, 69 L.Ed. 372 (1925) (negligence)). The elements of an unseaworthiness claim are (1) that the defendant provided a vessel or equipment that was not reasonably fit for its intended purpose, and (2) that "the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness." Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir.1992). To prevail on a claim of negligence under maritime law the plaintiff must prove (1) a duty was owed by the defendant to the plaintiff, (2) the duty was breached, (3) the plaintiff suffered injury, and (4) a causal connection existed between the defendant's conduct and the plaintiff's injury. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir.2010). "Determination of the tortfeasor's duty is a question of law and thus a function of the court ..." Id. (quoting Mississippi Department of Transportation v. Signal International LLC, 579 F.3d 478, 490 (5th Cir.2009)). "Under maritime law, a plaintiff is owed a duty of ordinary care under the circumstances." Id. (citing Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). "[A] defendant's failure to fulfill a duty of care under maritime law `does not breach that duty, ... unless the resultant harm is reasonably foreseeable.'" Id. at n. 10 (quoting Daigle, 616 F.2d at 827).
The charter party agreement between Helford and ST Shipping requires the vessel's owner, i.e., Helford, to provide a vessel that is "in good order and condition,
In light of these provisions in the charter party agreement the vessel's presentation of an improperly maintained Oil Record Book to the USCG is an act that violated MARPOL and an act that can only be attributed to Helford and/or its agent, STYGA, because the charter party agreement required the owner, not the charterer, to crew the vessel and to maintain the vessel in compliance with MARPOL. It is undisputed that the presentation of an improperly maintained Oil Record Book to the USCG not only violated MARPOL but also occurred in Texas. It is also undisputed that the USCG's investigation of the M/T GEORGIOS M. in Texas revealed at least one additional MARPOL violation, i.e., the installation of a "magic pipe" used to discharge untreated oily waste overboard. Plaintiff's claims for unseaworthiness and negligence are both based on allegations that STYGA and Helford failed to properly maintain the M/T GEORGIOS M. in compliance with MARPOL.
Plaintiff's claim for intentional misrepresentation is based on allegations that when he arrived in Costa Rica to join the M/T GEORGIOS M. as Chief Engineer the vessel's officer in charge of the engine department, Argyrios Argyropoulos, acting as the corporate defendants' agent, not only failed to disclose that the ship's International Oil Pollution Prevention Certificate and several other documents referring to the ship's machinery space arrangements and condition contained false information, but also affirmatively misrepresented to plaintiff that none of these deficiencies and non-conformities existed. Plaintiff alleges that he relied on Argyropoulos's representations and consented to take over as Chief Engineer, and that by virtue of his position as Chief Engineer he became entangled in the USCG investigation that began on or
Because plaintiff's allegations show that he did not join the M/T GEORGIOS M. and/or assume the position of Chief Engineer in Texas but, instead, in Costa Rica, the acts underlying the plaintiff's claim for intentional misrepresentation do not show any contact with the forum state of Texas. Accordingly, the court concludes that there is no basis on which to assert personal jurisdiction over either of the two corporate defendants on plaintiff's claim for intentional misrepresentation.
Plaintiff's claims for breach of the duty to defend, maintenance and cure, double wages under 46 U.S.C. § 10313, malicious prosecution, breach of fiduciary duty, and gross negligence are based on acts and communications that occurred in Texas as a result of the USCG's investigation and discovery of MARPOL/APPS violations onboard the M/T GEORGIOS M. Although STYGA and Helford argue that the acts and communications that occurred as a result of the USCG's investigation and discovery of MARPOL/APPS violations onboard the M/T GEORGIOS M. are insufficient to establish personal jurisdiction because those acts and communications occurred under duress, STYGA and Helford have not cited any authority in support of this argument, and the court does not find it persuasive. On the contrary, the court concludes that STYGA and Helford's acknowledgment that they entered into an Agreement on Security with the USCG and the United States that included an obligation
is sufficient to establish personal jurisdiction over these defendants for claims arising from acts performed pursuant to that agreement because by entering the Agreement on Security STYGA and Helford purposely availed themselves "of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King, 105 S.Ct. at 2183. Because plaintiff's claims
Plaintiff's breach of the duty to defend claim arises from allegations that the defendants undertook various acts in Texas in an effort to pressure plaintiff into accepting responsibility for the various MARPOL/APPS violations found to exist onboard the M/T GEORGIOS M. in Texas.
Plaintiff bases his assertion of personal jurisdiction over the Mamidakis Defendants on an alter ego relationship to the corporate defendants, by alleging that
The Mamidakis Defendants argue that the claims asserted against them in this action are subject to dismissal for lack of personal jurisdiction and that the court should not consider the forum contacts of STYGA and Helford when deciding their challenges to personal jurisdiction. In support of this argument the Mamidakis Defendants contend that the alter ego allegations in the plaintiff's complaint are conclusory and that plaintiff is unable to adduce evidence for piercing the corporate veil.
As a general rule, "an individual's transaction of business within the state solely as a corporate officer does not create personal jurisdiction over that individual though the state has in personam jurisdiction over the corporation[.]" Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985) (identifying this "general rule" as the "fiduciary shield doctrine"). The general rule does not apply when a corporation is the alter ego of the individual officer, i.e., when the corporation is simply a facade for the individual officer's interests and activities. Id. at 1198. In such cases "courts attribute to an individual the corporation's contacts with the forum states." Id.
Plaintiff argues that the Individual Defendants are the alter egos of STYGA and Helford, and that STYGA and Helford's actions may therefore be attributed to the Mamidakis Defendants for purposes of personal jurisdiction. In Stuart the Fifth Circuit cited with approval the Eighth Circuit's decision in Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634 (8th Cir.1975), where the court
Stuart, 772 F.2d at 1197 (quoting Lakota, 519 F.2d at 638). The Court observed that in Dudley v. Smith, 504 F.2d 979 (5th Cir.1974), the Fifth Circuit "found jurisdiction to exist essentially by attributing the defendant's contacts as a corporate representative to him individually." Stuart, 772 F.2d at 1198. The Court noted that
Id. at n. 12 (citations omitted).
Since Stuart the Fifth Circuit has identified a number of factors for courts to consider when making an alter ego determination. See United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 691-92 (5th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986). While these factors, sometimes referred to as the "Jon-T factors," were designed for reviewing a parent-subsidiary relationship, they can be modified to determine whether a corporation is the alter ego of an individual. See Century Hotels v. United States, 952 F.2d 107, 110 & n. 5 (5th Cir.1992). Relevant here, for example, are: (1) whether the Mamidakis Defendants completely control the corporate defendants; (2) the level of financial integration between the Mamidakis Defendants and the corporate defendants; (3) whether the corporate defendants operate with grossly inadequate capital; (4) whether the Mamidakis Defendants use the corporate defendants' property as their own personal property; (5) whether the Mamidakis Defendants use the corporate defendants to pay personal obligations; and (6) whether the Mamidakis Defendants act as if the corporate defendants are extensions of their own personal interests. See also Bollore S.A. v. Import Warehouse, Inc., 448 F.3d 317, 325 (5th Cir.2006) ("Under Texas law, `[a]lter ego applies when there is such unity between corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice.' Castleberry v. Branscum, 721 S.W.2d 270, 277 (Tex.1986).")). The Fifth Circuit has directed lower courts making such determinations to examine the "totality of the circumstances," Century Hotels, 952 F.2d at 110, and to bear in mind that "the alter ego test for attribution of contacts, i.e., personal jurisdiction, is less stringent than that for liability." Stuart, 772 F.2d at 1198 n. 12.
Here, plaintiff does not provide specific facts to show that either of the corporate defendants is simply a facade for any individual defendant's interests and activities. Plaintiff offers evidence that Helford has not observed all corporate formalities, but this evidence is not enough to show that Helford was merely a shell corporation. Moreover, plaintiff's contention that Helford is merely a shell corporation is negated by copies of minutes from at least some of Helford's corporate meetings attached as Exhibit 18 to the Deposition of Helford's secretary, Alexander Prokopakis.
Because the individual defendants all lack minimum contacts with Texas, this court need not determine whether the exercise of jurisdiction over them would offend traditional notions of fair play and substantial justice. See Felch v. Transportes Lar-Mex SA DE CV, 92 F.3d 320, 329 n. 20 (5th Cir.1996) ("As Felch failed to establish sufficient `minimum contacts' with Texas, we need not address whether the exercise of personal jurisdiction in this case would offend traditional notions of fair play and substantial justice."). Since the court has concluded that the two corporate defendants, STYGA and Helford, have sufficient minimum contacts with the forum for the court to exercise personal jurisdiction over them for claims arising from those contacts, the burden shifts to them to show that the exercise of personal jurisdiction over them would not be fair and reasonable. See Seiferth, 472 F.3d at 271. Analysis of this issue is based on five factors:
Id. at 276 (quoting Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 382 (5th Cir.2002)).
Corporate defendants contend that they will be burdened in bringing their witnesses and documents from Liberia and Panama, respectively, and because many material documents are in the Greek language. Defendants' contention that they will be burdened by having to bring witnesses and documents from Liberia and Panama is not persuasive because neither of these defendants maintain an actual presence or conduct business from these seats of their incorporation. Defendants' contention that they will be burdened by having to translate documents from Greek to English is similarly unpersuasive because documents relating to the operation and management of the M/T GEORGIOS M. are in English, as are the records of the related cases in this court. Moreover, the court has already considered both of these arguments and ruled against the defendants
The corporate defendants contend that there is no forum interest in adjudicating this dispute because it is a dispute between foreigners that does not involve residents of the forum and concerns events that likely occurred in international waters. This contention is not persuasive because plaintiff's claims arise from events that occurred in the Southern District of Texas, and because two of plaintiffs claims arise under federal statutes, the APPS, 33 U.S.C. §§ 1901 et seq., and the Penalty Wage Statute, 46 U.S.C. § 10313. Accordingly, the court concludes that the forum has a significant interest in adjudicating the plaintiffs claims.
The corporate defendants contend that plaintiffs interest in obtaining relief is addressed and governed by the plaintiffs contract of employment, which provides for conflicts arising thereunder to be adjudicated in Greece. As the court has already stated with respect to the defendants' motion to dismiss for forum non conveniens,
Accordingly, the court concludes that plaintiff's interest in obtaining relief on the claims asserted is significant and that the corporate defendants have failed to show otherwise.
The claims alleged in this action are related to cases that were recently before this court involving the same parties, the same events, the same evidentiary materials, the same common nucleus of operative facts, and the same laws. Accordingly, the court concludes that the interstate judicial system's interest in the most efficient resolution of controversies favors exercise of personal jurisdiction over the corporate defendants in this forum.
The two corporate defendants contend that "[n]o fundamental substantive social
Exercise of personal jurisdiction over STYGA and Helford for all of plaintiff's claims except the claim for intentional misrepresentation is fair and reasonable under the facts of this case because by sailing the M/T GEORGIOS M. into the forum with MARPOL/APPS violations, negotiating a guilty plea in the forum pursuant to which these defendants incriminated the plaintiff, and agreeing to aid in his prosecution even though they knew or would have learned upon conducting an investigation that plaintiff was not responsible for the MARPOL and APPS violations onboard the M/T GEORGIOS M., STYGA and Helford should not be surprised to be haled into court to answer for their conduct.
STYGA and Helford's amended motion to dismiss for lack of personal jurisdiction will be granted as to plaintiff's claim for intentional misrepresentation because plaintiff's allegations reflect that the actions underlying this claim did not occur in this forum, and will be denied as to plaintiff's remaining claims for APPS violations, unseaworthiness, negligence, breach of the duty to defend, maintenance and cure, penalty wages under 46 U.S.C. § 10313, malicious prosecution, breach of fiduciary duty, and gross negligence because plaintiff has alleged facts capable of establishing specific jurisdiction for these claims, and defendants have failed to adduce facts and/or arguments capable of persuading the court that exercising personal jurisdiction over them will violate traditional notions of fair play and substantial justice. The amended motions to dismiss for lack of personal jurisdiction filed by each of the five individual defendants, Nikolaos A. Mamidakis, Kyriakos Mamidakis, Alexandros G. Prokopakis, Emmanouil A. Mamidakis, and Alexandros N. Mamidakis, will be granted because plaintiff has failed to allege facts capable of establishing either general or specific jurisdiction. The Mamidakis Defendants' arguments that plaintiff's claims should be dismissed for improper venue are moot.
Plaintiffs' Original Verified Complaint asserts a claim for violation of the APPS, 33 U.S.C. § 1910, general maritime claims for unseaworthiness, negligence, intentional misrepresentation, breach of the duty to defend, maintenance and cure, and double wages under 46 U.S.C. § 10313, and pendent state law claims for malicious prosecution, breach of fiduciary duty, and gross negligence. Defendants seek summary judgment on plaintiff's APPS claims under 33 U.S.C. § 1910, plaintiff's claims for maintenance and cure and penalty wages
Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed.R.Civ.P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). To obtain summary judgment, defendants were required to establish that there was no genuine dispute about any material fact and that the law entitles them to judgment. Fed.R.Civ.P. 56. Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Supreme Court has interpreted the plain language of Rule 56 to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).
Defendants argue that they are entitled to partial summary judgment on plaintiff's APPS claims because (1) plaintiff "does not have standing to bring such a claim as APPS only allows a person `having an interest which is, or can be, adversely affected...' by a violation of the APPS to institute a claim;"
APPS, 33 U.S.C. § 1901 et seq., represents Congress's implementation of two related marine environmental treaties to which the United States is a party: the 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, generally referred to together as MARPOL 73/78. These treaties are intended to prevent oil pollution in the sea. APPS is the statute enacted by Congress that prohibits violations of MARPOL, APPS, and the regulations promulgated thereunder by United States flagged vessels and foreign flagged vessels operating or docked within the United States. See United States v. Jho, 534 F.3d 398, 401 (5th Cir.2008). APPS authorizes the United States to impose criminal and civil penalties on polluters and also contains a citizen's suit provision.
APPS authorizes the imposition of criminal penalties for knowing violations: "A person who knowingly violates the MARPOL Protocol, ... or the regulations issued thereunder commits a class D felony. In the discretion of the Court, an amount equal to not more than ½ of such fine may be paid to the person giving information leading to conviction." 33 U.S.C. § 1908(a). APPS also authorizes the imposition of civil penalties payable to the United States for any violation, whether knowing or not against
33 U.S.C. § 1908(b)(1)-(2). Section 1908(b) also provides that
Id. APPS provides that "[t]he Secretary may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to assessment or which has been assessed." 33 U.S.C. § 1908(c).
In addition to the criminal and civil penalties that APPS authorizes the United States to seek, APPS provides a private right of action pursuant to which
33 U.S.C. § 1910(a)(1). APPS's private right of action is subject to the following limitations:
33 U.S.C. § 1910(b).
Defendants argue that they are entitled to summary judgment on plaintiff's APPS claims because plaintiff does not satisfy the requirements of prudential standing. Citing Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), plaintiff responds that the APPS's citizen's suit provision contains features that evidence Congress's "intent to eliminate any prudential standing barrier to parties whose interests are or may be adversely affected."
Standing questions "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The standing "inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise."
Article III of the United States Constitution limits the judicial power of the federal courts to resolution of actual cases and controversies. United States Constitution Art. Ill, § 2. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968).
Warth, 95 S.Ct. at 2205. To establish constitutional standing, the party invoking federal jurisdiction must establish three elements:
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted). "To have standing at the summary judgment stage, [a plaintiff] must present evidence of specific facts that, if true, would demonstrate an injury in fact that is fairly traceable to the defendant's conduct and likely to be redressed by a favorable ruling." Prison Legal News v. Livingston, 683 F.3d 201, 212 (5th Cir.2012) (citing Lujan, 112 S.Ct. at 2136).
"Article III requires the party who invokes [the] court's authority to `show that he personally has suffered some actual or threatened injury as a result of [the] putatively illegal conduct of [the] defendant.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)). The injury must be "concrete and particularized," "actual or
Plaintiff asserts that
The injuries of which plaintiff complains are injuries that arise from his detention in the United States and his criminal prosecution for MARPOL/APPS violations existing on the M/T GEORGIOS M. Although the plaintiff's injuries are not the type of injuries typically experienced by plaintiffs asserting claims under environmental statutes, the evidentiary support provided by plaintiff's declarations satisfy the court that plaintiff has satisfied the first requirement for constitutional standing, i.e., the plaintiff has submitted evidence
The "case or controversy" limitation of Article III requires that a federal court act only to redress injury that can fairly be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court. Lujan, 112 S.Ct. at 2136 (citing Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976)). To prove causation the plaintiff must connect his alleged injuries-in-fact to the defendants' alleged illegal conduct. Simon, 96 S.Ct. at 1927.
Plaintiff has asserted APPS claims against Helford and the individual Mamidakis Defendants, but not against STYGA.
Asserting that his "injuries are directly traceable to the Defendants' conduct,"
Plaintiff states that
The evidence that plaintiff cites is sufficient to raise a genuine issue of material fact regarding a causal connection between the injuries about which he complains
The redressability "inquiry focuses... on whether the injury that a plaintiff alleges is likely to be redressed through the litigation." Sprint Communications Co., L.P. v. APCC Services, Inc., 554 U.S. 269, 128 S.Ct. 2531, 2542, 171 L.Ed.2d 424 (2008). See Laidlaw, 120 S.Ct. at 704 (redressability requirement of standing requires a plaintiff to show that "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision"). The specific items of relief sought must serve either to reimburse the plaintiff for losses caused by the defendant's wrongful act, or to eliminate any effects of that act upon the plaintiff. See Steel Co., 118 S.Ct. at 1018.
Plaintiff's APPS claims seek imposition of civil penalties on Helford and the Mamidakis Defendants for wholly past violations of MARPOL/APPS:
Plaintiff argues that "[a]ssessing an appropriate civil penalty in the circumstances would redress Plaintiff's injury by holding Defendants liable for their misuse of their employees and damages caused to [him]."
The Supreme Court set the standard for redressability in cases such as this in Steel Co., 118 S.Ct. at 1003. The citizen-suit plaintiff in that case sought to impose civil penalties on the defendant for past violations
Focusing only on the redressability prong of the standing inquiry, the Supreme Court held that civil penalties stemming from a past injury to a citizen-suit plaintiff, but not payable to the United States, do not redress any legitimate Article III injury to a private plaintiff. Id. at 1018-19. The Court reasoned that civil penalties "might be viewed as a sort of compensation or redress to [the plaintiff] if they were payable to [the plaintiff]," id. at 1018, but that when civil penalties are payable to the United States, they can only serve an "`undifferentiated public interest' in faithful execution of EPCRA." Id. The Court explained that
Id. at 1019 (citing, e.g., Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3326-27, 82 L.Ed.2d 556 (1984), and Valley Forge Christian College, 102 S.Ct. at 763-65). Observing that "[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court," id., the Court held that the citizen-suit plaintiff lacked constitutional standing to seek civil penalties for violations that have abated by the time of suit. Id. See Laidlaw, 120 S.Ct. at 707-708 ("Steel Co. established that citizen suitors lack standing to seek civil penalties for violations that have abated by the time of suit ... In short, Steel Co. held that private plaintiffs, unlike the Federal Government, may not sue to assess penalties for wholly past violations ..."). See also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 382, 98 L.Ed.2d 306 (1987) ("the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past"), superseded by statute on other grounds as stated in Glazer v. American Ecology Environmental Services Corp., 894 F.Supp. 1029 (E.D.Tex. 1995)).
Like the citizen plaintiff in Steel Co. who sought civil penalties payable to the United States for wholly past violations of the EPCRA, the plaintiff in this action seeks civil penalties payable to the United States for wholly past violations of the APPS. The civil penalties that plaintiff seeks in this action are authorized by 33 U.S.C. § 1908(b), which provides that violators "shall be held liable to the United States for a civil penalty." As the Supreme Court recognized in Steel Co., by requesting civil penalties payable to the United States plaintiff "seeks not remediation of [his] own injury — reimbursement for the [damages he] incurred as a result of the [MARPOL/APPS violations alleged] — but
The Supreme Court revisited the availability of civil penalties in citizen suits in Laidlaw, 120 S.Ct. at 706-08. There, the plaintiff sued under the provisions of the Clean Water Act, which like the citizen-suit provisions of the EPCRA and the APPS, required civil penalties to be paid to the United States. The plaintiff alleged that Laidlaw, the operator of a wastewater treatment plant, had failed to comply with mercury discharge limits in its Clean Water permit. Laidlaw, unlike the defendant in Steel Co., continued certain violations after the plaintiff filed suit; however, at some point during the course of litigation, Laidlaw "achieved substantial compliance with the terms of its discharge permit." Id. at 700. Due to Laidlaw's compliance the district court denied the plaintiff's request for injunctive relief. The court, however, did assess a civil penalty, finding that the total deterrent effect of the penalty would be adequate to forestall future violations. Id. at 703. Both parties appealed the ruling on civil penalties, but neither party appealed the ruling on injunctive relief. See id. The court of appeals found that, even assuming the plaintiff had standing at the start of the suit, the case became moot once Laidlaw came into compliance with the Clean Water Act. See id. The court believed "that the elements of Article III standing — injury, causation, and redressability — must persist at every stage of review, or else the action becomes moot." Id. Relying on Steel Co. the appeals court held "that the case had become moot because `the only remedy currently available to [the plaintiff] — civil penalties payable to the government — would not redress any injury [plaintiff had] suffered.'" Id. (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 149 F.3d 303, 306 (4th Cir.1998)).
The Supreme Court reversed. On the issue of standing the Court held that the plaintiff's interest in deterrence was sufficient to satisfy redressability. The Court explained that
120 S.Ct. at 706-707 (emphasis added). But the Court reiterated that where the violations at issue are not ongoing but wholly past the holding in Steel Co. that citizen suitors lack standing to seek civil penalties for violations that have abated by the time of suit is controlling. Id. at 707 (citing Steel Co., 118 S.Ct. at 1024-25). The Court explained that "[w]e specifically noted in that case that there was no allegation in the complaint of any continuing or imminent violation, and that no basis for such an allegation appeared to exist." Id. (citing Steel Co., 118 S.Ct. at 1024-25, and Gwaltney, 108 S.Ct. 376 ("the harm sought to be addressed by the citizen suit lies in the present or the future, not the past")).
In the present case the plaintiff neither alleges nor presents any evidence that the MARPOL/APPS violations for which he seeks the imposition of civil penalties on Helford and the Mamidakis Defendants were ongoing and were not past violations that had abated by the time he filed suit. As demonstrated by the following excerpts from the Original Verified Complaint, the only MARPOL/APPS violations alleged in the Original Verified Complaint are wholly past violations that occurred prior to the date this suit was filed, i.e., August 24, 2010:
The court's conclusion that the plaintiff's APPS claims are based on allegations of past violations is corroborated by the plaintiff's response to the defendants' motion for partial summary judgment on the APPS claims where plaintiff argues that:
Because the only MARPOL/APPS violations that are either alleged in plaintiff's Original Verified Complaint or evidenced in response to the defendants' motion for summary judgment on the APPS claims are past violations that plaintiff alleges occurred either during the three months that he was employed on the M/T GEORGIOS M. from November 2008 to March 2009, or prior to that time, the court concludes that plaintiff has failed to adduce any evidence capable of establishing that the violations for which he seeks to have civil penalties imposed on Helford and the Mamidakis Defendants were ongoing at the time this action was filed. Thus, based on the Supreme Court's holding in Steel Co., 118 S.Ct. at 1018-19, that citizen suitors lack standing to seek civil penalties for violations that have abated by the time of suit, and the Supreme Court's reaffirmation of that holding in Laidlaw, 120 S.Ct. at 707, the court concludes that plaintiff has failed to satisfy the third requirement for constitutional standing, i.e., that a
For the reasons stated in § III.B.2(a)(2), above, the court concludes that plaintiff has failed to cite any evidence capable of establishing a causal connection between the APPS violations allegedly committed by Helford or any of the Mamidakis Defendants except Kyriakos Mamidakis. For the reasons stated in § III.B.2(a)(3), above, the court concludes that plaintiff's alleged injuries are not likely to be redressed by a favorable ruling on his APPS claims because the only APPS violations for which the plaintiff seeks relief are wholly past violations that are not actionable under the APPS's prospectively worded citizen-suit provision and because the civil penalties that plaintiff seeks for those violations are payable to the United States. Because the plaintiff has failed to cite evidence capable of establishing that a favorable ruling on his APPS claims is likely to redress the injuries-in-fact that he alleges arise from the defendants' APPS violations, the court concludes that plaintiff lacks constitutional standing to assert APPS claims and that the court lacks subject matter jurisdiction to consider those claims.
Citing Gwaltney, 108 S.Ct. at 376, defendants argue that plaintiff's APPS claims are barred because they rest on wholly past violations that are not actionably under the APPS citizen-suit provision.
In Gwaltney the Virginia State Water Control Board issued a NPDES permit to Gwaltney of Smithfield, Ltd. in 1974 authorizing Gwaltney to discharge seven pollutants, including fecal coliform, chlorine, and total Kjeldahl nitrogen (TKN), from the company's meat-packing plant on the Pagan River in Smithfield, Virginia. Id. at 379-80. Between 1981 and 1984 the company repeatedly violated the conditions of the permit by exceeding effluent limitations on five of the seven covered pollutants. Id. at 379. In March of 1982 the company installed new equipment to improve its chlorination system, and the last reported chlorine violation occurred in October of 1982. Id. The new chlorination system also helped control the discharge of fecal coliform, the last of which occurred in February of 1984. Id. In October of 1983 the company upgraded its wastewater treatment system, and the last reported TKN violation occurred on May 15, 1984. Id.
The respondents, two environmental groups, sent notice in February of 1984 to the company, the EPA, and the Virginia Board of their intent to file a citizen suit under the CWA based on the company's violations of its permit conditions. Id. at 380. The respondents filed suit in June of 1984. Id. The company moved to dismiss
The Supreme Court agreed, holding that "[t]he most natural reading of `to be in violation' is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Id. at 381. The Court observed that "the pervasive use of the present tense throughout § [1365]," id. at 382, especially in the definition of "`citizen' as `a person ... having an interest which is or may be adversely affected' by the defendant's violations of the Act," id. (quoting § 1365(g)), made plain that "the harm sought to be addressed by the citizen suit lies in the present or future, not in the past." Id. The Court reasoned in relevant part that
Id. at 382-83. The Court further observed that
Id. at 383.
Notwithstanding its conclusion that § 1365 does not permit citizen suits for wholly past violations, the Supreme Court remanded for further proceedings because the respondents had also alleged that the company was continuing to violate its NPDES permit when they filed suit. Id. at 385. The Supreme Court concluded that § 1365 confers jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation. Id. The Court rejected the company's argument that this construction of § 1365 would permit citizen-plaintiffs to pursue their suits to conclusion even if their allegations of ongoing noncompliance became false at some later point in the litigation because the defendant begins to comply with the Act, reasoning that "[l]ongstanding principles of mootness" would prevent maintenance of suit when there was no reasonable expectation of recurrence. Id. at 386.
Like the citizen-plaintiffs in Gwaltney, plaintiff in this action did not file his federal complaint until after the last recorded violation, and after the defendant polluters had entered the ECP intended to bring the M/T GEORGIOS M. into compliance with MARPOL/APPS. As in Gwaltney, the defendants' remedial efforts were not prompted by the plaintiff's citizen suit; indeed the remedial actions preceded the plaintiff's citizen suit. Moreover, the Supreme Court's concern in Gwaltney that citizen suits for wholly past violations would undermine the supplementary role envisioned by Congress is equally applicable here. By the time plaintiff filed his federal action STYGA and the United States had entered into and enforced an ECP requiring STYGA to implement a corrective action plan to bring the M/T GEORGIOS M. into compliance with MARPOL/APPS, and the defendants were on track to expend over a $1 million to that end. By the terms of STYGA's Plea Agreement the United States agreed to forgo civil penalties on the condition that the violator — STYGA — take corrective action, i.e., to enter the ECP, that it otherwise would not be obliged to take. Gwaltney, 108 S.Ct. at 383. Thus, the true nature of plaintiff's suit in this case is not "interstitial" but "potentially intrusive" because the United States had not failed to exercise its enforcement responsibility. In short, all of the concerns expressed in Gwaltney are present in this case and point to the conclusion that, given the unique facts of this case, plaintiff lacks statutory standing to file suit.
Gwaltney also recognized that standing is conferred by good-faith allegations of continuous or intermittent violations. Id. at 385. However, as explained above, the Original Verified Complaint alleges only past violations that had abated by the date that the plaintiff filed this action on August 24, 2010; and plaintiff's response to defendants' motion for summary judgment cites evidence of only past violations that predate the filing of this action. Therefore, plaintiff has neither alleged nor cited any evidence of a continuing violation. See id. (holding that the plaintiffs' complaint satisfied the jurisdictional requirements of § 1365 and conferred standing because their complaint alleged in good faith that "Gwaltney was continuing to violate its NPDES permit when plaintiffs filed suit").
Defendants argue that they are entitled to summary judgment on plaintiff's malicious prosecution claim because he cannot establish that any "information provided to the Government by the Defendants caused or resulted in the indictment or prosecution of the Plaintiff."
Plaintiff argues that defendants' motion for summary judgment on his malicious prosecution claim should be denied because whether a causal connection exists between defendants' actions and his prosecution "is a complex issue of fact."
Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir.2003) (en banc), cert. denied, 543 U.S. 808,
Causation is an indispensable element of a malicious prosecution claim. Causation is established by proof that a person initiates or procures a prosecution. See King v. Graham, 126 S.W.3d 75, 78 (Tex.2003) (per curiam). See also Browning-Ferris Industries v. Lieck, 881 S.W.2d 288, 292 (Tex.1994). A defendant initiates a prosecution when he or she files formal charges against the plaintiff. Lieck, 881 S.W.2d at 293. A defendant procures a prosecution when its
Lieck, 881 S.W.2d at 293. See also Dangerfield v. Ormsby, 264 S.W.3d 904, 910 (Tex.App.-Fort Worth 2008, no pet.) (explaining that to establish procurement, the defendant's desire must be the "determining factor in the official's decision to commence the prosecution"). Thus, "proof that a complainant has knowingly furnished false information is necessary for liability when the decision to prosecute is within another's discretion. But such proof is not sufficient." King, 126 S.W.3d at 76. Instead, "there must be proof that the prosecutor acted based on the false information and that but for such false information the decision [to prosecute] would not have been made." Id. Therefore,
Id. at 78. See First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 470 (Tex.2004).
Plaintiff does not assert that defendants initiated his prosecution by filing a formal complaint. Instead, plaintiff argues that the defendants procured his prosecution by providing false information to the government and by withholding "critical" information from the government. Plaintiff's argument is based on his contention that
Plaintiff asserts that "[t]hese facts are sufficient reason for allowing Plaintiff's claim to proceed so that he will have an opportunity to provide full proof for the jury to consider whether or not there was causation."
As evidence that the defendants withheld from the government "critical" information that caused his prosecution plaintiff asserts that
The deposition testimony of Emmanuel Mamidakis and Christos Dravillas that plaintiff cites in support of his argument that the defendants withheld critical information shows that the incinerator problems at issue occurred in June of 2007, approximately a year and a half before plaintiff joined the M/T GEORGIOS M. as chief engineer in November of 2008. Plaintiff does not argue that information about the incinerator problems in June of 2007 would have exculpated him or weakened the government's case against him, and does not explain how and/or why the defendants' failure to disclose this information could possibly have been a "but-for" cause of the particular charges that he faced in his indictment and criminal prosecution, i.e., that between November 29, 2008, and January 21, 2009, and particularly on January 15, 2009, and February 18, 2009, he had knowingly failed to maintain an Oil Record Book for the M/T GEORGIOS M. in which all disposals of oil residue, overboard discharges, and disposal of oily bilge wastewater were required to be fully recorded.
Plaintiff's contention that the relevant decision-makers (i.e., the prosecutors and the grand jury) did not know that the incinerator on the M/T GEORGIOS M. had long-standing problems is belied by excerpts from the grand jury testimony of USCG Special Agent Douglas Moore cited by the plaintiff in his opposition to the defendants' motion for summary judgment.
As evidence that the defendants provided false information to the government, plaintiff asserts that in "the Joint Factual Statement, and specifically in paragraphs 7 and 8 thereof, STYGA accuses among others, the Plaintiff, for actions and practices of which Defendants knew him to be innocent."
Plaintiff contends that the statements included in these two paragraphs falsely incriminated him because it is undisputed that the bypass pipe had been installed on the M/T GEORGIOS M. long before he
Even if, as plaintiff contends, the Joint Factual Statement contains false statements made by defendants in an effort to shift blame for MARPOL/APPS violations away from themselves and onto the plaintiff, these false statements do not raise a genuine issue of material fact for trial on plaintiff's malicious prosecution claims because defendants have presented uncontroverted evidence that the Joint Factual Statement was (1) drafted by the government and provided to defendants on September 9, 2009, some twenty (20) days after plaintiff was indicted by a grand jury on August 20, 2009, and (2) executed on "October 6, 2009, a full forty-six (46) days after Plaintiff was indicted."
Unable to overcome the fact that statements contained in the Joint Factual Statement could not have caused his prosecution because the Joint Factual Statement was written and executed after — not before — he was indicted, plaintiff argues that
Review of Agent Moore's grand jury testimony shows, however, that while he attributed responsibility for fixing the incinerator to the chief engineers, and he expressed his belief that the company gave the chief engineers carte blanche to repair the incinerator, his statements on these issues were qualified:
The excerpts from Special Agent Moore's testimony submitted by the plaintiff show that the grand jury was told that the chief engineer bore responsibility for having the incinerator fixed only if the need to do so was brought to his attention; and that the government did not seek to indict the plaintiff for failing to fix the incinerator, or for pumping oily waste overboard but, instead, for failing to maintain the Oil Record Book accurately by failing to record discharges of oily waste overboard. Plaintiff does not cite and the court has not found any evidence that before the plaintiff's indictment the defendants told the government, or a government witness told the grand jury, that the plaintiff was responsible for installing and/or using the bypass — i.e., magic — pipe that the USCG investigators found onboard the M/T GEORGIOS M. Moreover, excerpts from the grand jury proceedings included in the summary judgment record show that this is not a case where the only information provided to the government and/or the grand jury was information provided by the defendants. See King, 126 S.W.3d at 79 (providing that an adverse inference could be drawn if the only evidence the official had in deciding to prosecute was false).
Uncontradicted evidence presented by the defendants shows that the information used to indict the plaintiff came from a variety of sources, e.g., the testimony of USCG Special Agent Douglas Moore, testimony of engine room crewmember Danilo Pagalan, documents seized aboard the M/T GEORGIOS M., and the physical evidence of the bypass — i.e., "magic" — pipe. The USCG Report of Investigation dated June
Plaintiff does not dispute that the M/T GEORGIOS M. was, in fact, equipped with a bypass — "magic" — pipe that was used to pump oily waste overboard, that the vessel's Oil Record Book was not accurately maintained, that as chief engineer he was responsible for accurately maintaining the Oil Record Book, or that Second Engineer Pagalan implicated him in the MARPOL/APPS violations. This information alone was sufficient to provide the government and the grand jury probable cause to initiate the plaintiff's prosecution for inaccurately maintaining the vessel's Oil Record Book and presenting that inaccurately maintained Oil Record Book to United States authorities. See Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983) (explaining that in the context of malicious prosecution, probable cause is defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime); First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 470 (Tex.2004) (when the objective elements of a crime reasonably appear to have been completed, probable cause is established as a matter of law).
Because plaintiff has failed to cite any evidence from which a reasonable fact-finder could conclude that undisclosed information about incinerator problems in June of 2007 would have influenced the government's and/or the grand jury's decision to prosecute, and because plaintiff has also failed to cite any evidence from which a reasonable fact-finder could conclude that the defendants supplied any false information to the government prior to the date of his indictment, or that the government's or the grand jury's decision to prosecute him would not have been made but for the defendants' non-disclosure of information about the vessel's incinerator, or but-for false information supplied by the defendants, plaintiff has failed to raise genuine issues of material fact for trial on the causation element of his malicious prosecution claims. See King, 126 S.W.3d at 79 ("[The plaintiffs] argue in essence that causation can be inferred from the falsity of [the defendant's] statements. While such an inference might be drawn in a case in which the only information the official relied on in deciding to prosecute was false, that is not the situation in this case.") (emphasis added). See also Weaver v. Bell, No. 03-04-00169-CV, 2005 WL 1364046, at *6 (Tex.App.-Austin June 10, 2005, no pet.) (holding that the plaintiff did not procure the defendant's prosecution because, in part, the evidence showed that police investigated and interviewed other witnesses before deciding to arrest the plaintiff).
The summary judgment record contains uncontroverted evidence that the government
Defendants argue that they are entitled to summary judgment on plaintiff's claim for breach of the duty to defend because no duty to defend a crew member charged with a crime in connection with his service aboard a vessel exits under either the general maritime law of the United States or the International Maritime Organizations (IMO). Alternatively, defendants argue that they are entitled to summary judgment because STYGA provided and paid for an effective defense that resulted in plaintiff being found not guilty of all the charges brought against him.
Plaintiff does not dispute that defendants provided him a lawyer and an interpreter. Instead, citing Sheppard v. Taylor, 30 U.S. 675, 5 Pet. 675, 8 L.Ed. 269 (1831), and Murray v. Hunt, 552 F.Supp. 234 (S.D.Fl.1982), plaintiff argues that "the General Maritime Law of the United States ... imposes a duty on the shipowner-employer not to put his employee-seaman in peril of being imprisoned while in the service of the ship, and makes the shipowner-employer answerable in damages for failing to do so."
Citing Cutrera v. Board of Supervisors of Louisiana State University, 429 F.3d 108, 113 (5th Cir.2005), defendants reply that "Plaintiff's attempt to transform his
Plaintiff's argument that the defendants violated a duty to defend by abandoning him is based on two opinions: Sheppard, 30 U.S. at 675, and Murray, 552 F.Supp. at 234. In Sheppard seamen who were carried against their will on an illicit voyage that caused the seizure and forfeiture of the ship and their own imprisonment in a foreign country sued the shipowners upon their return to the United States. The Supreme Court held that they were entitled to full wages from the time of their shipping to the time of their return to the United States. 30 U.S. at 709-10.
In Murray, 552 F.Supp. at 234, a United States yacht captain was arrested in Greece and charged with possession of drugs (hashish) that unbeknownst to him the yacht's owner kept in the yacht's safe. After three months in jail the captain was tried before a Greek court. The yacht's owner refused to go to Greece to stand trial in the captain's place, but he did execute an affidavit stating that the drugs belonged to him, not to the captain, which the Greek court received in evidence. Upon his return to the United States, the captain sued the owner for damages under the Jones Act, and under theories of unseaworthiness and abandonment. The jury returned a verdict in favor of the plaintiff on all three counts, denied the owner's affirmative defense of contributory negligence, and awarded the plaintiff $200,000 in compensatory damages and $300,000 in punitive damages. In response to the defendant's motion for a new trial, the court upheld the jury's determination that the proximate cause of plaintiff's damage for incarceration was clearly shown to be defendant's leaving the hashish in a safe after clearing Greek customs. Id. at 237. Taking judicial notice of the fact that in many countries of the world possession of hashish is a criminal offense subjecting persons charged or convicted to the possibility of incarceration, the court concluded that the owner's bringing the hashish aboard and retaining it in the yacht's safe not only caused plaintiff's injury but also caused the yacht to be unseaworthy. Id. Observing that "[t]he general law of abandonment is a very difficult question of interpretation and application," id. at 238, the court found that "plaintiff's abandonment claim comes within the law of abandonment." Id. In reaching this decision the court observed that
Id. at 238 (quoting 1 M. Norris, the Law of Seamen, § 500 at 590-1 (3d edition 1970)). The court explained that
Id. Finally, observing that the jury's award amounted to slightly more than $5,000 for each day of confinement, the court concluded that the award was not excessive and declined to disturb it. Id.
Plaintiff argues that his breach of duty to defend claim
As plaintiff recognizes, neither Sheppard nor Murray nor any of the other authorities that he cites in opposition to defendants' motion for summary judgment on his breach of duty to defend claim recognize a duty of a shipowner or a ship operator to defend a seaman detained to face criminal charges. Instead, these cases recognize a duty not to abandon a detained seaman unless the detention was caused by (1) the seaman's disturbance of the peace of the port, Faraola v. O'Neill, 576 F.2d 1364, 1367 (9th Cir.1978), or (2) an independent act of local police. Id. See also Murray, 552 F.Supp. at 238; Russell v. States Steamship Co., 376 F.Supp. 233, 237 (D.Ore.1973) (where seaman was accused of murdering a watchman, the captain had no obligation to obtain his release from imprisonment before permitting the vessel to leave the port).
The duty not to abandon a detained seaman stems from "the master's obligation implied in the shipping contract, to bring the seaman back with him unless he has been left at the foreign port because of illness, discharge before an American consul, desertion or failure to join." Faraola, 576 F.2d at 1367 (citing 1 M. Norris, The Law of Seamen § 500 at 590-1 (3d ed.1970)). Plaintiff argues that his
Paragraph 78 of the Original Verified Complaint alleges that defendants breached their duty to defend plaintiff by engaging in
Although ¶ 78 of plaintiff's complaint alleges that defendants breached their duty to defend him by engaging in a variety of different actions enumerated in six clauses labeled (a) through (f), in response to defendants' motion for summary judgment plaintiff points to only one of these clauses, i.e., clause (f), as evidence that his complaint alleges that defendants abandoned him. Because clause (f) neither alleges that defendants abandoned plaintiff, nor faults defendants for falsely incriminating plaintiff to the United States but, instead, faults defendants for failing to tell him what they had told the United States, the court concludes that ¶ 78 of the Original Verified Complaint does not allege a claim for abandonment. Because plaintiff raised his claim for abandonment for the first time in response to defendants' motion for summary judgment, plaintiff's claim for abandonment is not properly before the court. See Cutrera, 429 F.3d at 113 ("A
Plaintiff has not requested leave to amend to add his claim for breach of the duty to defend. However, even if plaintiff had requested leave to amend, leave would not be granted because the time for filing motions seeking leave to amend expired over a year and a half ago on May 6, 2011.
Because plaintiff has failed to show the existence of a duty to defend, plaintiff's complaint does not allege abandonment, and plaintiff's time to amend expired long ago, defendants' motion for summary judgment on plaintiff's claims for breach of the duty to defend will be granted.
Asserting that on March 1, 2009, he was wrongfully discharged as the Chief Engineer of the M/T GEORGIOS M. while the vessel was in the Port of Houston, plaintiff alleges that he was entitled to receive severance pay in an amount equal to forty-five days of his daily wage, and that based on the defendants' failure to pay him severance pay he is entitled to penalty wages under 46 U.S.C. § 10313.
Defendants argue that they are entitled to summary judgment on plaintiff's
Asserting that "[a]t no time prior to or during this current matter involving Plaintiff's claims against STYGA, Helford and the STYGA Board of Directors has Plaintiff attempted to arrest or arrested the M.T. Georgios M or secured a letter of undertaking in his favor in lieu of arresting the M.T. Georgios M,"
The statute under which plaintiff seeks penalty wages, 46 U.S.C. § 10313, provides in pertinent part:
46 U.S.C. § 10313(f), (g)(1), and (i) (emphasis added). Although the plain language of the penalty wage statute imposes liability only on the "master or owner" of the vessel, 46 U.S.C. § 10313(g), courts have held that the penalty wage statute grants "seamen a maritime lien against the vessel for such wages, which attaches at the moment earned wages are not timely
Defendants cite Loberiza v. Calluna Maritime Corp., 781 F.Supp. 1028, 1030 (S.D.N.Y.1992), in support of their contention that plaintiff must establish in rem jurisdiction to seek penalty wages under 46 U.S.C. § 10313. Although in rem jurisdiction existed in Loberiza, defendants have not cited and the court has not found any authority stating that a plaintiff must perfect in rem jurisdiction over the vessel at issue in order to assert a claim for penalty wages under 46 U.S.C. § 10313. Moreover, claims for penalty wages based on in personam jurisdiction are not unusual. See Caldwell v. Solus Ocean Systems, Inc., 734 F.2d 1121 (5th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984) (seaman brought an in personam action against his employer to recover penalty wages, and the court held that, because the employer was neither the owner nor master of the vessel on which the seaman served, the seaman could not recover penalty wages from the employer); Sam v. Keystone Shipping Co., 913 F.Supp. 514 (S.D.Tex.1996) (summary judgment granted to employer of seaman who filed an in personam action to recover penalty wages from his employer, which managed, for the vessel's owner, the vessel on which the seaman served). Based on these authorities, the court concludes that plaintiff's claim for penalty wages is not subject to summary judgment due to plaintiff's failure to perfect in rem jurisdiction over the vessel.
Defendants argue that no penalty wages are due to plaintiff because plaintiff is unable to establish that he was discharged. Defendants explain that no penalty wages are due to plaintiff because "STYGA continued Plaintiff's employment and salary even after his indictment, through his criminal trial, and STYGA's salary payments from March 1, 2009 until April 30, 2010 totaled over $200,000.00."
In addition, defendants have attached to their motion copies of bank records that purport to show that plaintiff was paid over $200,000.00 during his detention in the United States.
"Plaintiff strongly disagrees with Defendants' contention that specifically he, along with other disembarked crew members `were still employed by STYGA.'"
The evidence before the court establishes that plaintiff entered a contract to serve as Chief Engineer of the M/T GEORGIOS M. for a period of three months,
Citing Thompson v. Offshore Co., 440 F.Supp. 752, 768 (S.D.Tex.1977), defendants argue that
The Fifth Circuit defines "without sufficient cause" as "either conduct which is in some sense arbitrary or willful, or at least a failure not attributable to impossibility of payment." Fanos v. Maersk Line, Ltd., 363 F.3d 358, 362 (5th Cir.2004) (quoting Collie v. Fergusson, 281 U.S. 52, 50 S.Ct. 189, 191, 74 L.Ed. 696 (1930)). See also McCrea v. United States, 294 U.S. 23, 55 S.Ct. 291, 294, 79 L.Ed. 735 (1935) (recognizing that the wrongful withholding of wages is not enough to give rise to liability; the employer's action also must be "arbitrary, willful, or unreasonable"). Courts have found sufficient cause in cases involving a good faith mistake or clerical error, White v. Waterman Steamship Corp., 365 F.Supp.2d 817, 820 (S.D.Tex. 2005); a seaman's neglect of his duties, Thomas v. SS Santa Mercedes, 572 F.2d 1331, 1335 (9th Cir.1978); and honest doubts about the seaman's claim or demand, Alier v. Sea Land Service, Inc., 465 F.Supp. 1106, 1114 (D.P.R.1979). Since, however, plaintiff's complaint is grounded on allegations that defendants concealed from him the existence of MARPOL and APPS violations on the M/T GEORGIOS M., whether defendants had sufficient cause to withhold severance pay from the plaintiff is a genuine issue of material fact for trial.
Because defendants have failed to establish that plaintiff must perfect in rem jurisdiction to seek penalty wages, and because plaintiff has raised genuine issues of material fact as to whether he was discharged and whether defendants had sufficient cause to withhold severance pay, defendants' motion for partial summary judgment on plaintiff's claims for penalty wages will be denied.
Defendants argue that they are entitled to summary judgment on plaintiff's claim for maintenance and cure because the medical conditions for which plaintiff seeks maintenance and cure are not related to his service to the vessel and did not manifest themselves during his service aboard the M/T GEORGIOS M. Defendants also argue that plaintiffs claims for maintenance and cure are subject to the choice of law and forum provisions contained in plaintiffs Greek Seaman's Contract.
Maintenance is the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of the ship. Cure is the right to necessary medical services. Both benefits extend to the point of maximum recovery. As defendants recognize, the "duty to provide maintenance and cure attaches once the seaman enters the service of the ship, and it is a duty that no private agreement may abrogate." Terrebonne v. K-Sea Transportation Corp., 477 F.3d 271, 279 (5th Cir.2007).
Defendants argue that plaintiff's claim for cure should be denied because his illness did not arise during or from his service to the vessel, or while he was answerable to the call of duty. In support of this argument defendants assert that "Plaintiff's own admissions and statements from his counsel affirmatively indicate that Plaintiff `... developed hypertension for the first time in September 2010 shortly after his indictment,'"
Defendants conclude that "because Plaintiff's conditions did not occur or manifest themselves while in service aboard the M.T. Georgios M, Defendants owe no Cure obligation."
Defendants' contention that plaintiff is unable to seek maintenance and cure for illness that befell him while he was detained in Texas pursuant to the Security Agreement that STYGA and Helford entered with the United States has no merit for at least two reasons. First, the Supreme Court has stated that the term "in service of the ship" means that the seaman "must be generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders." Farrell, 69 S.Ct. at 709. Here it is undisputed that STYGA and Helford agreed to put plaintiff ashore in the Southern District of Texas and to pay for his expenses during his detention in Texas in exchange for the United States' agreement to release the ship. Accordingly, the court is not persuaded that merely because plaintiff was not aboard the ship when the
Second, the Supreme Court has expressed a policy of making the maintenance and cure remedy as simple as possible:
Farrell, 69 S.Ct. at 709-10. It is disingenuous for defendants to argue that plaintiff is not entitled to penalty wages because he remained employed while detained in Texas, but that the plaintiff is not entitled to maintenance and cure because he was not in service of the ship while so detained. In Farrell the Supreme Court made clear that the illness or injury for which a seaman is entitled to receive maintenance and cure need not result from or be in any way causally related to his shipboard duties. Id. As long as a seaman's illness occurs in the course of his employment, a seaman may recover even for an injury sustained on land. See Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 936, 87 L.Ed. 1107 (1943) (reasoning that the policy considerations supporting the broad obligation of maintenance and cure require an equally broad definition of "service" as used in the phrase "in the service of the ship" and extending that term to include injuries sustained while on shore leave).
Citing paragraph 17 of plaintiff's employment contract, defendants argue that they are entitled to summary judgment on plaintiff's claims for penalty wages and maintenance and cure.
As plaintiff points out, "[t]he court has already ruled on Defendants' contractual
For the reasons explained above, the court concludes that defendants' motion for partial summary judgment on the plaintiff's claims for penalty wages and maintenance and cure should be denied because defendants have failed to establish that those claims are subject to the forum selection clause in plaintiff's employment contract and because genuine issues of material fact exist as to each of these claims. Accordingly, defendants' motion for summary judgment on plaintiff's claims for penalty wages and for maintenance and cure will denied.
Plaintiff seeks an order issued pursuant to the court's inherent power sanctioning the two corporate defendants, STYGA and Helford, and two of the individual defendants, Kyriakos Mamidakis, and Emmanuel Mamidakis, for giving perjured testimony in depositions taken on July 19 and July 20, 2011.
When parties engage in bad faith conduct, courts usually rely on the Federal Rules of Civil Procedure for sanctions, e.g., Rules 16(f), 37(b)(2)(A) and 41(b), which allow courts to impose sanctions for a party's failure to comply with obligations imposed by the Federal Rules and the court's scheduling and discovery orders. See Natural Gas Pipeline Company of America v. Energy Gathering, Inc., 2 F.3d 1397, 1410 (5th Cir.1993), cert, denied, 510 U.S. 1073, 114 S.Ct. 882, 127 L.Ed.2d 77 (1994) (citing Chambers v. NASCO, Inc., 501 U.S. 32,
Id. (citations omitted). The Court explained that this inherent power
Id. at 2136 (quotations and citations omitted). The Court cautioned lower courts that "[t]he inherent power is not a broad reservoir of power, ready at an imperial hand, but a limited source; an implied power squeezed from the need to make the court function." Id. The Fifth Circuit has reiterated this caution and also stated that "the threshold for the use of inherent power sanctions is high." Crowe v. Smith, 151 F.3d 217, 226 (5th Cir.1998), cert, denied, 526 U.S. 1158, 119 S.Ct. 2047, 144 L.Ed.2d 214 (1999).
Plaintiff's motion for sanctions is based on his discovery that during depositions taken in July of 2011, Kyriakos Mamidakis and Emmanuel Mamidakis testified falsely about the relationship of STYGA and the M/T GEORGIOS M. with engineer Christos Dravillas. At his July 19, 2011, deposition Kyriakos Mamidakis testified as follows:
At his July 20, 2011, deposition Emmanuel Mamidakis testified as follows:
Plaintiff contends that the deposition testimony of Kyriakos Mamidakis and Emmanuel Mamidakis quoted above is false because on March 2, 2012, plaintiff's counsel received from defendants' counsel a CD containing e-mails exchanged between the M/T GEORGIOS M., STYGA, and third parties showing that in July of 2011 when the above-quoted depositions were taken, Dravillas was onboard the M/T GEORGIOS M. as STYGA's port engineer while the vessel was trading between Cuba and Venezuela.
Plaintiff asserts that
Citing Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77-78 (5th Cir.2011), plaintiff asks the court to sanction the four defendants, Kyriakos Mamidakis, Emmanuel Mamidakis, STYGA, and Helford, "for polluting truth and failing `to keep the streams of justice clear and pure.'"
In Brown, 664 F.3d at 77-78, the Fifth Circuit held that the district court did not abuse its discretion by dismissing the plaintiff's case with prejudice as a sanction for giving perjured testimony during a deposition.
Plaintiff has not cited — and the court has not found — any authority for denying a defendant's motion to dismiss for lack of personal jurisdiction as a sanction for perjury committed during a deposition. Because the court has already concluded that STYGA and Helford's motion to dismiss for lack of personal jurisdiction should be denied with respect to all but one of plaintiff's claims, plaintiff's request for this relief with respect to those defendants is largely moot. As to plaintiff's claim for intentional misrepresentation against STYGA and Helford, and all of plaintiff's claims against Kyriakos Mamidakis and Emmanuel Mamidakis, the court will deny the plaintiff's request for sanctions in the form of a denial of their motions to dismiss for lack of personal jurisdiction because the court is not persuaded
Defendants contend that the deposition testimony at issue is not false because Dravillas formally retired and took a Greek pension at the end of 2009 and since then, has only been sent on assignment for STYGA as an independent consultant once in 2010, four times in 2011, and twice in 2012.
The e-mails showing that Dravillas, despite having retired in 2009, was onboard the M/T GEORGIOS M. in July of 2011 serving as superintendent engineer when Kyriakos Mamidakis and Emmanuel Mamidakis testified at their depositions that he no longer worked for STYGA, constitute prima facie evidence of false testimony intended to delay and hinder the plaintiff's prosecution of this case. Although for the reasons stated above the court is not persuaded that the sanctions plaintiff seeks are appropriate under the circumstances of this case, the court will submit a spoliation of evidence instruction at trial so that the jury can consider the false deposition testimony of Kyriakos Mamidakis and Emmanuel Mamidakis as the representatives of corporate defendants STYGA and Helford in evaluating the credibility of these two corporate defendants and the amount of damages for which they are responsible. Accordingly, the plaintiff's motion for sanctions will be granted in part and denied in part.
Defendants object to the Plaintiff's First, Second, and Third Declaration, the declaration of plaintiff's wife, Evangelina Louloudaki, and to the European Court of Human Rights Summary.
For the reasons explained in § IV, above, plaintiff's Emergency Motion to Sanction Certain Defendants for Perjured Deposition Testimony (Docket Entry No. 79) is
For the reasons stated in § II, above, the court concludes that plaintiff has carried his burden of establishing facts capable of supporting the court's exercise of personal jurisdiction over the corporate defendants, STYGA and Helford, on all of plaintiff's claims except his claim for intentional misrepresentation, and that STYGA and Helford have failed to carry their burden of establishing facts capable of establishing that the court's exercise of personal jurisdiction over them would violate traditional notions of fair play and substantial justice, but that plaintiff has failed to carry
For the reasons explained in § III.B, above, Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims Under 33 U.S.C. § 1910 a/k/a Act to Prevent Pollution from Ships (Docket Entry No. 94) is
For the reasons explained in § III.E, above, Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claims for Maintenance & Cure and Penalty Wages Under 46 U.S.C. § 10313 (Docket Entry No. 95) is
For the reasons explained in § III.C, above, Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim of Malicious Prosecution Under Texas Law (Docket Entry No. 96) is
For the reasons explained in § III.D, above, Defendants' Amended Motion for Partial Summary Judgment on Plaintiff's Claim for Breach of the Duty to Defend (Docket Entry No. 97) is
For the reasons explained in § V, above, Defendants' Objections to Evidence Offered by Plaintiff (Docket Entry No. 115) are
The court will conduct a scheduling conference on Friday, December 14, 2012, at 2:30 p.m. in Courtroom 9B, 9th Floor, United States Courthouse, 515 Rusk Avenue, Houston, Texas 77002.