Barry v. Shell Oil Company et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
BLANE BARRY, )
)
Plaintiff, ) 2:15-CV-00004 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 78]
SHELL OIL COMPANY, ARCTIA )
OFFSHORE, LTD., SHELL )
OFFSHORE, INC., and SAFETY )
MANAGEMENT SYSTEMS, LLC, )
)
)
Defendants. )
)
I. MOTION PRESENTED
At docket 78, Plaintiff Blane Barry (“Plaintiff”) filed a partial motion to dismiss
without prejudice, requesting that the court allow the voluntary dismissal of Defendant
Safety Management Systems, LLC (“SMS”). Defendants Shell Oil Company (“Shell”),
Shell Offshore, Inc. (“Shell Offshore”), and Arctia Offshore, Ltd. (“Arctia”; collectively
referred to as “Opposing Defendants”) oppose the motion at docket 82. SMS did not
file an opposition. Plaintiff replies at docket 85. Oral argument was not requested and
would not be of assistance to the court.
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 1 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II. BACKGROUND
On August 17, 2012, Plaintiff was a crew member aboard the MSV NORDICA,
which was in navigable waters in Alaska, when he sustained serious injuries while lifting
heavy cables on the vessel. He thereafter filed a series of lawsuits seeking damages.
In December 2012 he filed a negligence claim in Harris County, Texas, against Shell
and Arctia, but he later voluntarily dismissed the suit after Arctia challenged the court’s
personal jurisdiction over it. Plaintiff then filed suit in Orleans Parish, Louisiana, naming
Shell, Shell Offshore, Arctia, and SMS as defendants. After the defendants
successfully challenged venue, the case was transferred to East Baton Rouge Parish,
Louisiana. Arctia was later dismissed from the case for lack of personal jurisdiction.
The state court action is currently pending, but only against Shell, Shell Offshore, and
SMS.
Plaintiff filed the current action in federal court on July 20, 2015, against Shell
and Arctia. The complaint specifically premised the court’s jurisdiction on diversity
jurisdiction under 28 U.S.C. § 1332. The complaint contained claims against Shell and
Arctia for negligence, negligence per se, and unseaworthiness “under the general
maritime law of the United States.” On August 10, 2015, Plaintiff filed an amended
complaint that adds Shell Offshore and SMS as defendants to the action.
Shell, Shell Offshore, and Arctia subsequently filed a motion to strike Plaintiff’s
request for a jury trial. They argued that the addition of SMS to the action destroyed
complete diversity of the parties because both Plaintiff and SMS are citizens of
Louisiana. Without complete diversity, the only basis for the court’s subject matter
jurisdiction is based on admiralty pursuant to 28 U.S.C. § 1333, and there is no right to
a jury trial in admiralty cases. In addition to opposing the motion on the merits, Plaintiff
indicated in his response that he intended to f ile a motion to dismiss SMS without
prejudice to remedy the complete diversity problem. The court granted the motion to
strike the request for a jury trial. It concluded that because Plaintiff had not yet
-2-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 2 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
dismissed SMS from the action, the only basis for the court’s jurisdiction was admiralty.
Consequently, under admiralty law, Plaintiff was not entitled to a jury trial.
Plaintiff now requests that the court dismiss SMS from the action pursuant to
Rule 41(a)(2) of the Federal Rules of Civil Procedure. SMS, however, did not file an
opposition.
III. STANDARD OF REVIEW
Since all the defendants have answered Plaintiff’s complaint and the parties
have not filed a stipulation of dismissal, Plaintiff’s motion to dismiss SMS from this
action is governed by Rule 41(a)(2). Under Rule 41(a)(2) dismissal at the plaintiff’s
request requires court approval.1 The court “should grant a motion for voluntary
dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain
legal prejudice as a result.”2 Legal prejudice does not result merely because a
defendant will incur expenses in defending the litigation or would be inconvenienced by
a second lawsuit. Legal prejudice does not result because the plaintif f would gain a
tactical advantage or because the dismissal would cause uncertainty as to the
resolution of the case.3 Rather, to establish legal prejudice, the defendant must show
“prejudice to some legal interest, some legal claim, [or] some legal argument” or must
show that the burdens resulting from the dismissal are extreme or unreasonable.4
IV. DISCUSSION
Opposing Defendants argue that Plaintiff’s Rule 41(a)(2) request should be
denied for four reasons: (1) this court is the only forum that has the necessary
jurisdiction to adjudicate Plaintiff’s claims against all the parties allegedly responsible for
Plaintiff’s accident; (2) Plaintiff has engaged in procedural maneuvering; (3) SMS will
1Rule 41(a)(2).
2Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).
3Id.
4Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)
-3-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 3 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
remain a party in this action as a result of the cross-claim that Arctia asserted against it;
and (4) SMS is a required party under Rule 19 of the Federal Rules of Civil Procedure.
The court will address each of the four arguments in turn.
First, the Opposing Defendants focus on the potential burdens associated with
concurrent litigation. They argue that this court is the only forum that has the
jurisdiction to adjudicate claims against all the parties allegedly responsible for Plaintiff’s
accident. They assert that the concurrent litigation will waste time, money, and judicial
resources. However, the court’s ruling on Plaintiff’s motion to dismiss SMS will not
change the fact that there will be concurrent litigation because a state court case
against Shell, Shell Offshore, and SMS is already pending. Nonetheless, the Opposing
Defendants do not want SMS to be dismissed from Plaintiff’s complaint because that
would foreclose the opportunity to litigate the case against all potential tortfeasors in
one forum. While courts and parties prefer to avoid duplicative litigation when possible,
there is nothing inherently prejudicial or improper about parallel litigation.5 A plaintiff is
free to simultaneously pursue claims in federal and state court.6 Furthermore, the issue
of whether the court’s jurisdiction is proper and convenient is a distinct and separate
issue from voluntary dismissal under Rule 41(a)(2).7 The court also notes that SMS has
reserved the defenses of improper forum and lack of personal jurisdiction in its answer
to Plaintiff’s complaint and Arctia’s counterclaim and did not file an opposition to
Plaintiff’s request for dismissal of his claims against it in federal court, which belies
5See Lenches, 263 F.3d at 978-79 (rejecting the defendant’s request for sanctions
against Plaintiff based on the argument that the plaintiff should have asserted all claims in one
forum); Nev. Eighty-Eight, Inc. v. Title Ins. Co. of Minn., 753 F. Supp. 1516, 1522 (D. Nev.
1990) (“Of course, a plaintiff desiring a federal forum may omit nondiverse parties from his or
her claim and sue them separately in a state court proceeding.”).
6Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 295 (1970).
7Cf Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 146 (9th Cir. 1982 ) (“In
passing on a plaintiff’s request to remove himself from the jurisdiction of the court, the court is
not asked to decide whether its jurisdiction is proper and convenient.”).
-4-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 4 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Opposing Defendants’ argument that this forum undisputedly is the preferred forum for
all Defendants.
Opposing Defendants contend that concurrent litigation also raises the possibility
of inconsistent factual determinations. However, as noted by the Ninth Circuit,
uncertainty resulting from a dispute remaining unresolved or uncertainty resulting from
future litigation is not adequate legal prejudice to warrant denial of a Plaintiff’s request
to dismiss.8 The Opposing Defendants have not set forth any specific legal claim or
argument that will be affected by parallel state court litigation.
Second, Opposing Defendants argue that Plaintiff’s request should be denied
because he has engaged in procedural maneuvering. The court disagrees that the
convoluted history involving Plaintiff’s choice of court is solely the fault of Plaintiff.
Defendants have filed removal motions and motions challenging venue and personal
jurisdiction that have resulted in various attempts at finding a proper forum and
therefore concurrent lawsuits. While Plaintiff clearly did not anticipate the jury issue by
including SMS in the federal suit and therefore improvidently amended his complaint to
include SMS in the first instance, the court cannot find such conduct egregious enough
to have resulted in prejudice to Opposing Defendants. Also, no motion for summary
judgment has been filed so Plaintiff is not attempting to avoid the court’s determination
on the merits by filing his dismissal request.
Third, Opposing Defendants argue that the court should not grant Plaintiff’s
request because SMS will nonetheless remain a party in this action as a result of the
cross-claim that Arctia asserted against it. Indeed, the dismissal of Plaintiff’s claims
against SMS does not have an effect upon Arctia’s cross-claim against SMS, and SMS
will remain a party to this case with respect to that cross-claim.9 Therefore, Arctia’s
8See Lenches, 263 F.3d at 976 (noting that uncertainty from an unresolved dispute or
from the threat of future litigation does not result in legal prejudice);
9See Aetna Ins. Co. v. Newton, 398 F.2d 729, 734 (3d Cir. 1968) (“[D]ismissal of the
original complaint as to one of the defendants named therein does not operate as a dismissal of
-5-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 5 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ability to protect its interest in the event it is found liable to Plaintiff remains unaffected,
and Arctia will not suffer any prejudice from Plaintiff dismissing SMS. Opposing
Defendants do not disagree, but rather, seem to be arguing that Arctia’s cross-claim
against SMS necessarily precludes SMS’s dismissal from Plaintiff’s case. They do not
provide any citation in support. In fact, to the contrary, it appears that courts have
allowed the voluntary dismissal of a defendant despite the presence of a cross-claim
against that defendant.10 Furthermore, SMS has not filed an opposition to argue that it
will suffer legal prejudice to its interest as a result of being dismissed from Plaintiff’s
claim but remaining a party for purposes of Arctia’s cross-claim.
Fourth and finally, Opposing Defendants argue that SMS is a required party
under Rule 19(a) of the Federal Rules of Civil Procedure. Under Rule 19(a), a “required
party” must be joined if feasible. A party is required under the Rule 19(a)(1) if:
(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or (B) that person claims an interest relating to the subject
of the action and is so situated that disposing of the action in the person’s
absence may: (I) as a practical matter impair or impede the person’s ability
to protect the interest; or (ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent obligations
because of the interest.11
If SMS is a required party under Rule 19 then it cannot be dismissed pursuant to
Rule 41(a)(2).
The Opposing Defendants argue that SMS is a necessary party under Rule 19
because it is an alleged joint tortfeasor with an interest in the outcome of the action and
because they, as the remaining defendants, will be subject to joint and several liability
a cross-claim filed against such defendant by a co-defendant.”); Zoblotsky v. Tenet Choices,
Inc., 2007 WL 2008506, at *1 n.1 (E.D. LA. July 6, 2007) (“The Court’s dismissal of [the
plaintiff’s] claims against [one defendant] does not defeat [a co-defendant’s] claims against
[such defendant].”).
10See, e.g., Taylor v. Tesco Corp. (US), 816 F. Supp. 2d. 410, 414 n.11 (S.D. Tex.
2011); Heiser v. Ass’n of Apartment Owners of Polo Beach Club, 848 F. Supp. 1482, 1488 (D.
Haw. 1993).
11Rule 19(a)(1).
-6-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 6 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
under federal maritime tort law.12 However, that argument is unavailing. “It has long
been the rule that it is not necessary for all joint tortfeasors to be named as defendants
in a single lawsuit.”13 “A tortfeasor with the usual ‘joint and several’ liability is merely a
permissive party to an action against another with like liability.”14 The application of joint
and several liability means that the court will be able to accord complete relief without
the presence of the joint tortfeasor, and an absent party does not have the necessary
“interest related to the subject of the action” simply by being a potential joint
tortfeasor.15 However, a joint tortfeasor may nonetheless be a required party for
reasons that are separate from its joint tortfeasor status if it has asserted a distinct
interest in the action that warrants protection. For purposes of Rule 19 (a)(1)(B), the
interest claimed must “be more than a financial stake, and more than speculation about
a future event.”16 SMS has not claimed any interest in this action.17 Moreover, SMS is
a defendant in the state court case and can def end its interest there and can defend
against Arctia’s claim here.
12See, e.g., Johnson v. Nat’l Steel & Shipbuilding Co., 742 F. Supp. 1062, 1065 (S.D.
Cal. 1990) (noting that maritime law generally provides for joint and several liability and that a
joint tortfeasor generally may seek contribution from another).
13Ward v. Apple, Inc., 791 F.3d 1041, 1048 (9th Cir. 2015) (quoting Temple v. Synthes
Corp., 498 U.S. 5, 7 (1990) (per curiam)).
14Fed. R. Civ. P. 19 advisory committee’s note to 1966 amendment.
15Ward, 791 F.3d at 1049; Hartford Cas. Ins. Co. v. Cardenas, 292 F.R.D. 235, 241
(E.D. Penn. 2013) (“Rule 19 does not recognize an interest in joining all alleged joint tortfeasors
facing joint and several liability in a single action.”).
16Ward, 791 F.3d at 1051.
17United States v. Bowen, 172 F.3d 682, 689 (9th Cir. 1999) (“Joinder is contingent . . .
upon an initial requirement that the absent party claim a legally protected interest relating to the
subject matter of the action.’” (quoting Northrop Corp., v. McDonnell Douglas Corp., 705 F.2d
1030, 1043 (9th Cir. 1983)).
-7-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 7 of 8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
V. CONCLUSION
Based on the preceding discussion, Plaintiff’s partial motion to dismiss at
docket 78 is GRANTED. Plaintiff’s claims against SMS are dismissed without
prejudice. SMS remains a party to the action for purposes of Arctia’s cross-claim
against it.
DATED this 5th day of October 2016.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
-8-
Case 2:15-cv-00004-JWS Document 90 Filed 10/05/16 Page 8 of 8