Beno v. Murray Am. River Towing, Inc., Civ. Action No. 16-1128

Decision Date03 August 2017
Docket NumberCiv. Action No. 16-1128
PartiesBRIAN BENO, Plaintiff, v. MURRAY AMERICAN RIVER TOWING, INC., UNITED STATES, Defendants
CourtU.S. District Court — Western District of Pennsylvania
OPINION

CONTI, Chief District Judge

I. Introduction

Pending before the court in this case filed under the Jones Act ("Jones Act"), 46 U.S.C. § 30104, are a motion for reconsideration (ECF No. 36) and a motion for leave to file a third amended complaint (ECF No. 45) filed by plaintiff Brian Beno ("plaintiff"). Plaintiff seeks to hold defendant Murray American River Towing, Inc. ("MARTI") vicariously liable for the actions of the Army Corps of Engineers ("ACE"), which is an agent of defendant United States of America ("United States").1 Plaintiff, however, did not present to the court—either in the first amended complaint or in a proposed third amended complaint—factual allegations that plausibly show that MARTI is vicariously liable for the alleged negligent actions of the United States, i.e., a third party that was not acting as MARTI's agent at the time of plaintiff's alleged injury. Under those circumstances, plaintiff is not entitled to reconsideration of this court's decision to dismissfrom the first amended complaint plaintiff's vicarious liability claim asserted against MARTI based upon the allegedly negligent acts of the United States. Permitting plaintiff to file the proposed third amended complaint with respect to that vicarious liability claim would be futile. For those reasons, which are fully explained in this opinion, plaintiff's motion for reconsideration (ECF No. 36) and motion for leave to file a third amended complaint (ECF No. 45) will be denied.

II. Procedural History

On July 27, 2016, plaintiff initiated this action by filing a complaint against MARTI and the United States. (ECF No. 1.) Plaintiff in the complaint asserted claims against MARTI under the Jones Act for direct and vicarious negligence, and general maritime law for unseaworthiness, maintenance and cure. (Id.) Plaintiff in the complaint asserted a claim against the United States for non-discretionary negligence under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. (Id. ¶ 3, 6.)

On September 27, 2016, MARTI filed a motion to dismiss along with a brief in support of the motion. (ECF Nos. 12, 13.) On October 3, 2016, the United States filed an answer to the complaint. (ECF No. 14.) On that same date, plaintiff filed a first amended complaint against defendants asserting claims under the Jones Act for direct and vicarious negligence, and general maritime law for maintenance and cure, and a claim against the United States for non-discretionary negligence under the Suits in Admiralty Act. (ECF No. 15.) On October 4, 2016, this court denied as moot the motion to dismiss. (ECF No. 17.)

On October 24, 2016, MARTI filed a motion to dismiss the first amended complaint along with a brief in support of the motion. (ECF Nos. 19, 20.) On that same date, the United States filed an answer to the amended complaint. (ECF No. 21.) On October 31, 2016, plaintifffiled a response in opposition to the motion to dismiss along with a brief in support of the motion. (ECF Nos. 26, 27.)

On December 9, 2016, the court held a hearing with respect to the motion to dismiss the first amended complaint. The court:

- recognized that plaintiff's claims for the maintenance and cure remained in the case and were not impacted by the motion to dismiss (Hearing Transcript ("H.T.") 12/9/2016 (ECF No. 57) at 5);
- granted the motion to dismiss without prejudice with respect to the direct negligence claims because the allegations in the first amended complaint were conclusory with respect to whether MARTI knew or should have known about "Mad Mike's" dangerous propensities (id. at 13-14); and
- granted the motion to dismiss with respect to the negligence claim based upon MARTI's vicarious liability for the actions of the United States because the first amended complaint did not contain any factual allegations sufficient to plausibly show that MARTI controlled the activities relevant to plaintiff's claims (id.).

The court explained with respect to the negligence claim asserted against MARTI based upon its alleged vicarious liability for the acts of the United States that "absent some type of showing of control or ability to control that there couldn't be vicarious liability under the operational test." (Id. at 13.) The court permitted plaintiff to file a second amended complaint on or before December 30, 2016. (Id. at 14.)

On December 27, 2016, plaintiff filed a motion for reconsideration of the court's order granting in part the motion to dismiss the first amended complaint and a brief in support of the motion. (ECF Nos. 36, 37.) On the same day, plaintiff filed a second amended complaint. (ECF No. 38.) Plaintiff in the second amended complaint sets forth two counts: (1) against MARTI for "direct and vicarious negligence, the latter being based on the operational activity doctrine, and general maritime law for maintenance and cure;" and (2) against the United States under the Suits in Admiralty Act for "non-discretionary negligence of Mad Mike." (ECF No. 38.)

On January 9, 2017, the United States filed an answer. (ECF No. 40.) On the same day, the parties filed a joint stipulation, which provided:

WHEREBY the Minute Entry of the Court entered on December 9, 2016, stated that the Court dismissed Plaintiff's vicarious liability claim against MARTI with prejudice and that Plaintiff was given leave to file a Second Amended Complaint regarding the direct negligence claim against MARTI by December 30, 2016, and that the Second Amended Complaint filed by Plaintiff alleges the dismissed vicarious liability claim against MARTI, the parties hereby stipulate that the vicarious liability claim shall be considered dismissed with prejudice pending the resolution of Plaintiff's Motion for Reconsideration of Order Granting Motion to Dismiss With Respect to Vicarious Negligence Claim.

(ECF No. 41.) On January 10, 2017, MARTI filed an answer and a crossclaim against the United States. (ECF No. 42.)

On January 17, 2017, MARTI filed a response in opposition to plaintiff's motion for reconsideration. (ECF No. 44.) On January 31, 2017, plaintiff filed a motion for leave to file a third amended complaint and a brief in support of the motion. (ECF Nos. 45, 46.) On February 28, 2017, MARTI filed a response in opposition to plaintiff's motion for leave to file a third amended complaint. (ECF No. 53.) On March 13, 2017, the United States filed an answer to MARTI's crossclaim. (ECF No. 55.)

On April 4, 2017, the court held a hearing on the motion for reconsideration and motion for leave to file a third amended complaint. The court recognized the general rule under federal common law that an employer, i.e., MARTI, cannot be held liable to its employee, i.e., plaintiff, for the tortious conduct of a third party, i.e., the United States, that is not the employer's agent. The court explained, however, that under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, an employer may be held liable to its employee for the conduct of a third party if: (1) the third party performed the operational activities of the employer; and (2) the employer and third party had a contractual agreement. The court's preliminary assessment was that—evenif plaintiff could plausibly show that the United States performed the operational activities of MARTI—plaintiff did not set forth factual allegations sufficient to plausibly show that MARTI contracted with the United States for the United States to perform those activities or that MARTI exercised control over the United States. Plaintiff argued that a contract was not required for MARTI to be held vicariously liable for the tortious conduct of the United States because the United States owed an implied duty of workmanlike service to MARTI. The court permitted the parties to submit supplemental briefing to address that issue, among others.

On April 25, 2017, plaintiff filed its supplemental brief and attached to its brief the "affidavit declaration of Dennis M. O'Bryan." (ECF No. 59.) On May 9, 2017, MARTI filed its response to plaintiff's supplemental brief. (ECF No. 60.) On May 10, 2017, the United States filed its supplemental brief and attached eight exhibits. (ECF No. 61.) On July 12, 2017, the parties were provided an opportunity to present argument about the motions pending before the court.

The motion for reconsideration and motion for leave to file a third amended complaint are now fully briefed and argued and are ripe for disposition.

III.Motion for Reconsideration (ECF No. 36)
A. Standard of Review
1. Motion for reconsideration, Federal Rule of Civil Procedure 54(b)

"Normally, motions for reconsideration are decided under Federal Rules of Civil Procedure 59(e) or 60(b)." In re Nat'l Forge Co., 326 B.R. 532, 541 (W.D. Pa. 2005). Those rules do not apply to plaintiff's motion for reconsideration, however, because plaintiff is seekingreconsideration of an interlocutory ruling, rather than a final judgment or order.2 Id. "It is well-established that the appropriate Rule under which to file motions for reconsideration of an interlocutory order is Rule 54(b)." Cezair v. JP Morgan Chase Bank N.A., Civ. Action No. 13-2928, 2014 WL 4955535, at *1 (D.Md. Sept. 30, 2014); see Qazizadeh v. Pinnacle Health Sys., 214 F.Supp.3d 292, 298 (M.D. Pa. 2016) ("[M]otions for reconsideration of interlocutory orders—whether denials of summary judgment, grants of partial summary judgment, or any other non-final orders—are motions under Federal Rule of Civil Procedure 54(b)."). Federal Rule of Civil Procedure 54(b) provides, in pertinent part:

[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before
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