Mudrick, et al v. Cross Services Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
September 19, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-40255
Summary Calendar
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ROY MUDRICK; CAROL MUDRICK,
Plaintiffs-Appellants,
VERSUS
CROSS SERVICES INC.; CROSS LOGISTICS INC.; CROSS RENTALS INC.;
SES BOATS INC.,
FORMERLY KNOWN AS CROSS EQUIPMENT LTD.;
THE INVESTMENT GROUP INC.,
FORMERLY KNOWN AS CROSS EQUIPMENT INC.;
CROSS ARMATURE AND ELECTRIC INC.;
CROSS EQUIPMENT INC.; CROSS EQUIPMENT LTD.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 3:04-CV-593
______________________________

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Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Roy and Carol Mudrick appeal a summary
judgment determining that their decedent was
a Jones Act seaman and a ruling that federal
maritime law bars recovery. For the reasons
stated below, we vacate and remand..
I.
Plaintiffs’ son, Jonathan Mudrick, was fa-
tally wounded when he was struck on the head
by a steel anchor cable while working aboard
a barge in Nikishi Bay, Alaska. His widow,
acting on behalf of herself, her children, and
the estate, negotiated a mediated settlement of
$2,900,000.00 with Mudrick’s employer,
Cook Inlet Spill Prevention and Response, Inc.
Both parties to the settlement agreed that, for
purposes of the mediation, Mudrick was a
Jones Act seaman.
The Mudricks sued under the Texas
Wrongful Death Act, alleging negligence,
strict liability, and breach of warranty. Defen-
dants manufactured the stern anchor winch
that Mudrick was operating at the time of his
death. The Mudricks seek only non-pecuniary
damages.
Defendants moved for the application of
federal maritime law and for summary judg-
ment that the decedent was a Jones Act sea-
man. The district court granted the motion,
finding that Mudrick was a Jones Act seaman
as a matter of law. The court ruled that fed-
eral maritime law applies because the injury
took place on navigable water and injury to a
Jones Act Seaman has a potentially disruptive
effect on maritime commerce. See Scarbor-
ough v. Clemco Indus., 391 F.3d 660, 665
(5th Cir. 2004); Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 513 U.S.
527, 534 (1995). The court concluded, on
the basis of Scarborough, 391 F.3d at 668,
that the survivors of a Jones Act seaman
cannot recover non-pecuniary damages from
non-employer third-parties. Accordingly, the
court dismissed the claims with prejudice.
II.
We review a summary judgment de novo.
Lee v. Wal-Mart Stores, Inc., 34 F.3d 285,
288 (5th Cir. 1994). We conclude that the
district court did not apply the correct legal
standard governing summary judgment on an
issue as to which the moving party bears the
burden of proof.
Summary judgment is appropriate where
there is no genuine issue of material fact and
the moving party is entitled to judgment as a
matter of law. See FED. R. CIV. P. 56(c). The
district court applied the standard in Celotex v.
Catrett, 477 U.S. 317, 323 (1986), under
which, in the district court’s words, “[t]he par-
ty moving for summary judgment bears the ini-
tial burden of ‘informing the district court of
the basis for its motion, and identifying those
portions of [the record] which it believes dem-
onstrate the absence of a genuine issue of
material fact’” (quoting Celotex, 477 U.S. at
323). The non-movant must then present
“specific facts showing there is a genuine issue
for trial.” FED. R. CIV. P. 56(e).
The Celotex standard, however, is appro-
priate only where, as in that case, the non-
moving party bears the burden of proof on the
issue that the moving party seeks to have de-
termined through summary judgment. Here,
* Pursuant to 5TH CIR. R. 47.5, the court has deter-
mined that this opinion should not be published and is
not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.

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because defendants seek legal benefit from a
determination that Mudrick was a Jones Act
Seaman, they bear the burden of proof on that
issue. See Bernard v. Binnings Constr. Co.,
741 F.2d 824, 827 (5th Cir. 1984). Thus, to
obtain summary judgment, defendants cannot
force plaintiffs to come forward with “specific
facts showing there [is] a genuine issue for
trial” merely by pointing to parts of the record
that defendants believe illustrate the absence of
a genuine issue of material fact. Instead,
defendants must establish, as a matter of law,
all essential elements of their defense before
plaintiffs can be obligated to bring forward any
specific facts alleged to rebut defendants’ case.
See Chaplin v. Nations Credit Corp., 307 F.3d
368, 372 (5th Cir. 2002).
It is uncertain how consideration of defen-
dants’ motion under this more stringent stan-
dard would have affected the district court’s
decision. The court applied the Supreme
Court’s two criteria for determining whether
someone is a Jones Act seaman. First, “the
worker’s duties must contribute to the func-
tion of the vessel or to the accomplishment of
its mission.” Chandris, Inc. v. Latsis, 515
U.S. 347, 376 (1995). Second, “the worker
must have a connection to a vessel in naviga-
tion (or an identifiable fleet of vessels) that is
substantial in terms of both its duration and its
nature.” Id. Notwithstanding the district
court’s citation of Celotex, it appears from its
discussion of the first requirement that it be-
lieved that the defendants had proved as a mat-
ter of law that Mudrick had satisfied the first
criterion and that this showing had been insuf-
ficiently rebutted by plaintiffs.
It is less obvious, however, whether the
court would have come to a similar conclusion
with respect to the second criterion, the dura-
tion of Mudrick’s connection to a vessel in
navigation, had it applied the standard for
summary judgment that we have stated above.
The court provided sparse discussion of plain-
tiffs’ objections to the accuracy of decedent’s
timesheets and gave no explanation (other than
pointing out that 32% exceeded the minimum
threshold to be determined a Jones Act sea-
man) to support its determination that, under
the circumstances of this case, the percentage
of time decedent spent working in connection
with a vessel was enough to establish conclu-
sively his status under the second criterion.
We VACATE the summary judgment and
remand for reconsideration. Because the dis-
trict court’s application of federal maritime
law and its dismissal of plaintiffs’ claims are
predicated on its finding that Mudrick was a
Jones Act seaman as a matter of law, we
VACATE these orders as well and remand for
further proceedings as needed.

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