Payne, et al v. Double J. Mrne, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-30655

Cary Payne; Jerome Davis,

Plaintiffs—Appellants,

versus

Double J. Marine, L.L.C., as Owner and Owner Pro Hac
Vice of the M/V Miss Sylvia;
Brynmark Marine Services, Incorporated;
GATX Third Aircraft Corporation,

Defendants—Appellees.

Appeal from the United States District Court
For the Eastern District of Louisiana
USDC No. 2:19-CV-1417

Before Jones, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Plaintiffs Cary Payne and Jerome Davis appeal the dismissal of their
maritime personal injury claims. Because we have already addressed this

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 3, 2020

Lyle W. Cayce
Clerk
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No. 19-30655
2
exact question in a related case and the Plaintiffs make no effort to distinguish
the present case, we AFFIRM.
In February 2016, Payne and Davis were working on a vessel that was
struck by another; the owners of the second vessel initiated a Limitation
Action and four months after the Limitation Action was settled and
dismissed—two and half years after the claims deadline—the Plaintiffs filed
a separate maritime personal injury suit against the vessel owners.
1
The
district court dismissed for failure to state a claim and denied the Plaintiffs’
request to reopen the Limitation Action. They timely appealed to this court.
This court has already resolved the issue in question. In Collins v.
Double J. Marine, LLC, No. 19-30659 (5th Cir. Apr. 27, 2020), another
worker on the ship—represented by the same counsel—appealed the
dismissal of his separate maritime personal injury claim and the denial of his
request in that action to reopen the Limitation Action. That case is factually
and legally identical to the one at hand. The court concluded that the
shipowners provided proper notice under the statute, Collins had not
demonstrated he was a known claimant deserving of mailed notice, and he
failed to prove actual failure to receive notice by publication. Thus, his claim
was properly dismissed. Further, Collins asserted his claim outside the
Limitation Action and the Limitation Action is now resolved, so the court
had no need to determine whether Collins should be afforded an opportunity
to file late in that proceeding.
The Defendants filed a 28(j ) letter in the present case notifying the
court of the Collins decision. The Plaintiffs have made no effort to distinguish

1
Collins v. Double J. Marine, LLC describes the facts in greater detail. No. 19-
30659 (5th Cir. Apr. 27, 2020).
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No. 19-30655
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the case at hand or respond at all. Factually and legally, these cases are the
same, down to the briefing. The outcome is as well.
2

The judgment of the district court is AFFIRMED.

2
The court takes notice that after this appeal (as well as the appeal in Collins) was
filed, the Plaintiffs filed a Rule 60(b) motion in an effort to directly reopen the Limitations
Action. That motion was denied, and they have since filed a separate appeal of the denial
of their Rule 60(b) motion to reopen the Limitation Action such that the same counsel has
brought a total of three appeals over this situation. In re M/V Miss Sylvia, No. 20-30277.
Although counsel advised of the related cases, the parties failed to seek consolidation of the
three appeals, which would have been appropriate; accordingly, when Case No. 20-30277
is ready for submission, the Clerk’s Office is directed to transfer it to this panel for
resolution.
Case: 19-30655 Document: 00515624526 Page: 3 Date Filed: 11/03/2020