Brought to you by 17 U.S.C. 105:

2001 U.S. Dist. LEXIS 8962, *

JOHN W. BRADSHAW, Plaintiff, v. UNITY MARINE CORPORATION, INC.;
CORONADO, in rem; and PHILLIPS PETROLEUM COMPANY, Defendants.
CIVIL ACTION NO. G-00-558
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS,
GALVESTON DIVISION
2001 U.S. Dist. LEXIS 8962

June 26, 2001, Decided
June 27, 2001, Entered

DISPOSITION: [*1] Defendant's Motion for Summary Judgment GRANTED.

CORE TERMS: summary judgment, maritime law, maritime, dock, statute
of limitations, two-year, vessel, crayon, state law, ingress, egress,
briefing, aboard, affirmative defense, personal injury, cruise ship,
volume, nonexistent, remarkably, admiralty, neglects, talk, duty,
heed, pig, Jones Act, personal injuries, suffered injury, likable,
caution

COUNSEL: For JOHN W BRADSHAW, plaintiff: Harold Joseph Eisenman,
Attorney at Law, Houston, TX.

For CORONADO, UNITY MARINE CORPORATION, INC., defendants: Ronald L
White, White Mackillop et al, Houston, TX.

For PHILLIPS PETROLEUM COMPANY, defendant: Charles Wayne Lyman,
Giessel Barker & Lyman, Houston, TX.

For UNITY MARINE CORPORATION, INC., cross-claimant: Ronald L White,
White Mackillop et al, Houston, TX.

For PHILLIPS PETROLEUM COMPANY, cross-defendant: Charles Wayne Lyman,
Giessel Barker & Lyman, Houston, TX.

JUDGES: SAMUEL B. KENT, UNITED STATES DISTRICT JUDGE.

OPINIONBY: SAMUEL B. KENT

OPINION: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff brings this action for personal injuries sustained while
working aboard the M/V CORONADO. Now before the Court is Defendant
Phillips Petroleum Company's ("Phillips") Motion for Summary
Judgment. For the reasons set forth below, Defendant's Motion is
GRANTED.
I. DISCUSSION
Plaintiff John W. Bradshaw claims that he was working as a Jones Act
seaman aboard the M/V CORONADO on January 4, 1999. The CORONADO was
not at sea on January 4, 1999, but instead sat [*2] docked at a
Phillips' facility in Freeport, Texas. Plaintiff alleges that he
"sustained injuries to his body in the course and scope of his
employment." The injuries are said to have "occurred as a proximate
result of the unsafe and unseaworthy condition of the tugboat
CORONADO and its appurtenances while docked at the Phillips/Freeport
Dock." Plaintiff's First Amended Complaint, which added Phillips as a
Defendant, provides no further information about the manner in which
he suffered injury. However, by way of his Response to Defendant's
Motion for Summary Judgment, Plaintiff now avers that "he was forced
to climb on a piling or dolphin to leave the vessel at the time he
was injured." This, in combination with Plaintiff's Complaint,
represents the totality of the information available to the Court
respecting the potential liability of Defendant Phillips. n1

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n1 Six days after filing his one-page Response, Plaintiff filed a
Supplemental Opposition to Phillips Petroleum Company's Motion for
Summary Judgment. Although considerably lengthier, the Supplement
provides no further illumination of the factual basis for Plaintiff's
claims versus Phillips.

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- - - - - [*3]
Defendant now contends, in its Motion for Summary Judgment, that the
Texas two-year statute of limitations for personal injury claims bars
this action. See Tex. Civ. Prac. & Rem. Code § 16.003 (Vernon Supp.
2001). Plaintiff suffered injury on January 4, 1999 and filed suit in
this Court on September 15, 2000. However, Plaintiff did not amend
his Complaint to add Defendant Phillips until March 28, 2001,
indisputably more than two-years after the date of his alleged
injury. Plaintiff now responds that he timely sued Phillips,
contending that the three-year federal statute for maritime personal
injuries applies to his action. See 46 U.S.C. § 763a.
Before proceeding further, the Court notes that this case involves
two extremely likable lawyers, who have together delivered some of
the most amateurish pleadings ever to cross the hallowed causeway
into Galveston, an effort which leads the Court to surmise but one
plausible explanation. Both attorneys have obviously entered into a
secret pact--complete with hats, handshakes and cryptic words--to
draft their pleadings entirely in crayon on the back sides of
gravy-stained paper place mats, in the hope that [*4] the Court
would be so charmed by their child-like efforts that their utter
dearth of legal authorities in their briefing would go unnoticed.
Whatever actually occurred, the Court is now faced with the daunting
task of deciphering their submissions. With Big Chief tablet readied,
thick black pencil in hand, and a devil-may-care laugh in the face of
death, life on the razor's edge sense of exhilaration, the Court
begins.
Summary judgment is appropriate if no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986).
When a motion for summary judgment is made, the nonmoving party must
set forth specific facts showing that there is a genuine issue for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.
Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Therefore, when a defendant
moves for summary judgment based upon an affirmative defense to the
plaintiff's claim, the plaintiff must bear the burden of producing
some evidence to create a fact issue some element of defendant's
[*5] asserted affirmative defense. See Kansa Reinsurance Co., Ltd.
v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1371 (5th
Cir. 1994); F.D.I.C. v. Shrader & York, 991 F.2d 216, 220 (5th Cir.
1993).
Defendant begins the descent into Alice's Wonderland by submitting a
Motion that relies upon only one legal authority. The Motion cites a
Fifth Circuit case which stands for the whopping proposition that a
federal court sitting in Texas applies the Texas statutes of
limitations to certain state and federal law claims. See Gonzales v.
Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998), cert. denied, 528
U.S. 1118 (2000). That is all well and good--the Court is quite fond
of the Erie doctrine; indeed there is talk of little else around both
the Canal and this Court's water cooler. Defendant, however, does not
even cite to Erie, but to a mere successor case, and further fails to
even begin to analyze why the Court should approach the shores of
Erie. Finally, Defendant does not even provide a cite to its desired
Texas limitation statute. n2 A more bumbling approach is difficult to
conceive--but wait folks, There's [*6] More!

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n2 Defendant submitted a Reply brief, on June 11, 2001, after the
Court had already drafted, but not finalized, this Order. In a
regretful effort to be thorough, the Court reviewed this submission.
It too fails to cite to either the Texas statute of limitations or
any Fifth Circuit cases discussing maritime law liability for
Plaintiff's claims versus Phillips.

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Plaintiff responds to this deft, yet minimalist analytical wizardry
with an equally gossamer wisp of an argument, although Plaintiff does
at least cite the federal limitations provision applicable to
maritime tort claims. See 46 U.S.C. § 763a. Naturally, Plaintiff also
neglects to provide any analysis whatsoever of why his claim versus
Defendant Phillips is a maritime action. Instead, Plaintiff "cites"
to a single case from the Fourth Circuit. Plaintiff's citation,
however, points to a nonexistent Volume "1886" of the Federal
Reporter Third Edition and neglects to provide a pinpoint citation
for what, after being located, [*7] turned out to be a forty-page
decision. Ultimately, to the Court's dismay after reviewing the
opinion, it stands simply for the bombshell proposition that torts
committed on navigable waters (in this case an alleged defamation
committed by the controversial G. Gordon Liddy aboard a cruise ship
at sea) require the application of general maritime rather than state
tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999) (What
the . . .)?! The Court cannot even begin to comprehend why this case
was selected for reference. It is almost as if Plaintiff's counsel
chose the opinion by throwing long range darts at the Federal
Reporter (remarkably enough hitting a nonexistent volume!). And
though the Court often gives great heed to dicta from courts as far
flung as those of Manitoba, it finds this case unpersuasive. There is
nothing in Plaintiff's cited case about ingress or egress between a
vessel and a dock, although counsel must have been thinking that Mr.
Liddy must have had both ingress and egress from the cruise ship at
some docking facility, before uttering his fateful words.
Further, as noted above, Plaintiff has submitted a Supplemental
Opposition to [*8] Defendant's Motion. This Supplement is longer
than Plaintiff's purported Response, cites more cases, several
constituting binding authority from either the Fifth Circuit or the
Supreme Court, and actually includes attachments which purport to be
evidence. However, this is all that can be said positively for
Plaintiff's Supplement, which does nothing to explain why, on the
facts of this case, Plaintiff has an admiralty claim against Phillips
(which probably makes some sense because Plaintiff doesn't).
Plaintiff seems to rely on the fact that he has pled Rule 9(h) and
stated an admiralty claim versus the vessel and his employer to
demonstrate that maritime law applies to Phillips. This bootstrapping
argument does not work; Plaintiff must properly invoke admiralty law
versus each Defendant discretely. See Debellefeuille v. Vastar
Offshore, Inc., 139 F. Supp. 2d 821, 824 (S.D. Tex. 2001) (discussing
this issue and citing authorities). Despite the continued
shortcomings of Plaintiff's supplemental submission, the Court
commends Plaintiff for his vastly improved choice of crayon--Brick
Red is much easier on the eyes than Goldenrod, and stands out much
better amidst [*9] the mustard splotched about Plaintiff's
briefing. But at the end of the day, even if you put a calico dress
on it and call it Florence, a pig is still a pig.
Now, alas, the Court must return to grownup land. As vaguely alluded
to by the parties, the issue in this case turns upon which law--state
or maritime--applies to each of Plaintiff's potential claims versus
Defendant Phillips. And despite Plaintiff's and Defendant's joint,
heroic efforts to obscure it, the answer to this question is readily
ascertained. The Fifth Circuit has held that "absent a maritime
status between the parties, a dock owner's duty to crew members of a
vessel using the dock is defined by the application of state law, not
maritime law." Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d
330, 332 (5th Cir. 1993) (holding that Louisiana premises liability
law governed a crew member's claim versus a dock which was not owned
by his employer); accord Forrester v. Ocean Marine Indem, Co., 11
F.3d 1213, 1218 (5th Cir. 1993). Specifically, maritime law does not
impose a duty on the dock owner to provide a means of safe ingress or
egress. See Forrester, 11 F.3d at 1218. [*10] Therefore, because
maritime law does not create a duty on the part of Defendant Phillips
vis-a-vis Plaintiff, any claim Plaintiff does have versus Phillips
must necessarily arise under state law. n3 See id.; Florida Fuels, 6
F.3d at 332-333, 334.

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n3 Take heed and be suitably awed, oh boys and girls--the Court was
able to state the issue and its resolution in one paragraph . . .
despite dozes of pages of gibberish from the parties to the contrary!

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The Court, therefore, under Erie, applies the Texas statute of
limitations. Texas has adopted a two-year statute of limitations for
personal injury cases. See Tex. Civ. Prac. & Rem. Code § 16.003.
Plaintiff failed to file his action versus Defendant Phillips within
that two-year time frame. Plaintiff has offered no justification,
such as the discovery rule or other similar tolling doctrines, for
this failure. Accordingly, Plaintiff's claims versus Defendant
Phillips were not timely filed and are barred. Defendant Phillips'
Motion for Summary [*11] Judgment is GRANTED and Plaintiff's state
law claims against Defendant Phillips are hereby DISMISSED WITH
PREJUDICE. A Final Judgment reflecting such will be entered in due
course.
II. CONCLUSION
After this remarkably long walk on a short legal pier, having
received no useful guidance whatever from either party, the Court has
endeavored, primarily based upon its affection for both counsel, but
also out of its own sense of morbid curiosity, to resolve what it
perceived to be the legal issue presented. Despite the waste of
perfectly good crayon seen in both parties' briefing (and the
inexplicable odor of wet dog emanating from such) the Court believes
it has satisfactorily resolved this matter. Defendant's Motion for
Summary Judgment is GRANTED.
At this juncture, Plaintiff retains, albeit seemingly to his
befuddlement and/or consternation, a maritime law cause of action
versus his alleged Jones Act employer, Defendant Unity Marine
Corporation, Inc. However, it is well known around these parts that
Unity Marine's lawyer is equally likable and has been writing crisply
in ink since the second grade. Some old-timers even spin yarns of an
ability to type. The Court [*12] cannot speak to the veracity of
such loose talk, but out of caution, the Court suggests that
Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2
pencil or at least sharpen what's left of the stubs of his crayons
for what remains of this heart-stopping, spine-tingling action. n4

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n4 In either case, the Court cautions Plaintiff's counsel not to run
with a sharpened writing utensil in hand--he could put his eye out.

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IT IS SO ORDERED.

DONE this 26th day of June, 2001, at Galveston, Texas.
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE


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