Schmidt v. Cal-Dive Int'l, Inc.

• Decision Date: 06 March 2017
• Docket Number: CIVIL ACTION NO. 6:15–2526 (LEAD)
• Citation: 240 F.Supp.3d 532
• Parties: Andrew SCHMIDT v. CAL–DIVE INTERNATIONAL, INC., et al.
• Court: U.S. District Court — Western District of Louisiana

240 F.Supp.3d 532

Andrew SCHMIDT

v.CAL–DIVE INTERNATIONAL, INC., et al.

CIVIL ACTION NO. 6:15–2526 (LEAD)

United States District Court, W.D. Louisiana, Lafayette Division.

Signed March 6, 2017

Joseph R. Joy, III, Joseph Joy & Assoc., Gordon James Schoeffler, Office of Gordon J. Schoeffler, Lafayette, LA, for Andrew Schmidt.

Melissa M. Lessell, Charlotte Collins Meade, Mat Marion Gray, III, Ashley E. Bane, Michael A. Harowski, Fowler Rodriguez, William E. Wright, Jr., Deutsch Kerrigan & Stiles, New Orleans, LA, for Cal–Dive International, Inc., et al.

MEMORANDUM RULING

REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE

Currently pending before the Court are two motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. Nos. 66, 68] filed by all defendants in these consolidated suits. Pursuant to their motions, defendants seek dismissal of all claims asserted in this matter. Alternatively, defendants move the Court to strike the redundant and immaterial portions of plaintiffs' pleadings pursuant to Fed. R. Civ. P. 12(f). For the following reasons, defendants' motions are GRANTED.

I. Factual and Procedural Background

A. The Schmidt Litigation

Plaintiff Andrew Schmidt was formerly employed by Cal Dive International, Inc. ("Cal Dive") as a commercial diver. On April 7, 2010, Mr. Schmidt suffered a brain injury due to decompression sickness contracted while surfacing from a work-related dive. Cal Dive Intern., Inc. v. Schmidt , 639 Fed.Appx. 214, 215 (5th Cir. 2016). On April 19, 2012, Schmidt sued Cal Dive, alleging the injury left him permanently disabled. Id. "Specifically, Schmidt alleged that he suffered ‘Type II neurological (cerebral) decompression sickness ’ and that he was required to remain in a supine position at nearly all times." Id. Schmidt was represented by attorneys Thomas R. Edwards and Joseph W. Walker. Cal Dive filed a counterclaim for reimbursement of maintenance and cure, recission of the employment contract, and damages and attorneys' fees, alleging Schmidt had purposefully and wilfully concealed his medical history from Cal Dive in his employment application and while employed. [Case No. 12–930, Doc. 18, p. 2–3, 5] Trial was scheduled to commence before the Honorable Richard T. Haik on October 21, 2013. [Id. at Doc. 64] On October 15, 2013, six days before trial was scheduled to begin, a settlement conference was held, and Cal Dive and Schmidt agreed to a settlement of all claims. [Id. at 92] On December 12, 2013, Schmidt executed a written Release of all claims. [Case No. 14–3033, Doc. 84, ¶ 51]

B. The Cal Dive Litigation

Post-settlement, Cal Dive continued to surveil Schmidt and collect evidence about the degree of his injury. Cal Dive at 215. On October 15, 2014, Cal Dive and Underwriters Severally Subscribing to Lloyd's Policy PE 903008 ("Lloyds")¹ filed suit against Schmidt, Edwards, Walker and the administrators of certain structured settlements.² Cal Dive and Lloyds were represented by Kyle Schonekas, Joelle Evans, and Andrea Timpa, of the law firm Schonekas, Evans, McGoey & McEachin, L.L.C. ("the Schonekas Parties"). Essentially, the suit alleged Schmidt committed perjury by making material, fraudulent misrepresentations during the Schmidt litigation, and but for the perjury and fraudulent misrepresentations, Cal Dive and Lloyds would never have entered into the settlement. [Case No. 14–3033, Doc. 1, ¶¶ 33–37] According to Cal Dive and Lloyds' Complaint, in the Schmidt litigation, Schmidt and Ms physicians claimed his condition would never improve and could not be cured, Schmidt spent more that 90% of his day lying down on the couch, Schmidt could no longer drive a car and in order to travel he had to either lie down in the backseat or be transported by ambulance, the slightest amount of physical exertion or exercise caused Schmidt excruciating pain, Schmidt would require eighteen hours per day of attendant care for the next 46.3 years, and Schmidt required power wheelchairs and a van with wheelchair accessibility. [Id. at pp. 4–6] The complaint further alleged that several months after dismissal of the Schmidt suit, Cal Dive obtained surveillance showing Schmidt cutting his grass, driving and jogging for at least two miles, Cal Dive learned Schmidt had obtained a driver's license on December 4, 2013, and Cal Dive learned Schmidt had purchased a new vehicle on December 13, 2013. [Id. at 8]

Cal Dive and Lloyds sought rescission of the settlement agreement, reimbursement of litigation expenses in both the Schmidt and Cal Dive litigation, re-litigation of Schmidt's medical claims and damages, sanctions against Schmidt for bad faith, restitution from Schmidt's counsel of funds paid pursuant to the settlement, and a preliminary injunction prohibiting any further disbursement under the structured settlement to Schmidt or his attorneys. [Id. at Doc. 75, p. 3] The complaint stated Cal Dive and Lloyds "do not believe that Edwards and Walker were aware of Schmidt's fraud," but nonetheless, Edwards and Walker were unjustly enriched without cause. [Id. at Doc. 1, p. 15]

Edwards, Walker and Schmidt each filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to plead fraud with particularity, failure to state a claim for unjust enrichment and/or restitution, and res judicata. On March 4, 2015, Judge Haik granted the motions and dismissed all claims, concluding "Plaintiffs' allegations fail to state a plausible claim that discovery will lead to the clear and convincing evidence that Schmidt engaged in fraud or other misconduct which prevented Cal Dive from fairly presenting their case." [Id. at Doc. 75, p. 13] On March 13, 2015, Cal Dive and Lloyd's filed a Rule 59(e) motion to amend the trial court's judgment, arguing "it was legal error for the Court to dismiss Cal Dive's suit with prejudice without leave to amend the Complaint to state additional facts to support their claims." [Id. at Doc. 81, p. 1] In support of the motion, Cal Dive and Lloyds submitted a proposed First Supplemental and Amended Complaint; pursuant to Cal Dive and Lloyds' request, the amended pleading was subsequently filed under seal.³ [Id. at Doc. Nos. 77, 83, 84] In that pleading, Cal Dive and Lloyds added allegations that in November 2013, Schmidt had leased a home that was not handicap accessible; the landlord of that home confirmed he had never seen Schmidt using a wheelchair; the driver's license Schmidt obtained contained no restrictions other than a requirement that Schmidt wear eyeglasses; Schmidt signed a credit application on December 13, 2013, representing that he was employed doing "contract labor" for the prior six months⁴ ; and Schmidt had not seen any of his treating physicians in the year and a half that had passed since the settlement conference. [Doc. 1, pp. 30–33; see also Case No. 14–3033, Doc. 84, pp. 10–12]

On March 19, 2015, counsel for Schmidt sent correspondence to Cal Dive and Lloyds, demanding that certain allegations in the proposed pleading, which plaintiffs contended were false, "be corrected on the record." [Doc. 21–1, p. 10] On April 22, 2015, Cal Dive filed a motion for leave to file a substitute proposed First Amended Complaint. According to Edwards, Walker and Schmidt, the substitute Complaint corrected only one of the false allegations contained in the First Amended Complaint.⁵ [Id. at 11] On May 7, 2015, the trial court denied the Rule 59(e) motion to amend the judgment and denied leave to amend the complaint, finding any amendment would be futile. [Case No. 14–3033, Doc. 99 at 6]On January 21, 2016, the Fifth Circuit affirmed, finding Cal Dive and Lloyds failed to state a claim of fraudulent inducement, as they "did not sufficiently plead reliance." Cal Dive at 218. According to the Fifth Circuit, "The record-and Cal Dive's Complaint itself-contradicts the conclusory assertion that it ‘relied upon Schmidt's material fraudulent misrepresentations.’ " Id. The Fifth Circuit additionally affirmed the district court's denial of Cal Dive and Lloyd's Rule 59(e) motion, finding the filing of the proposed amended complaint would be futile, because like the original complaint, "the proposed amended complaint demonstrates Cal Dive never believed Schmidt's allegations or testimony." Id. at 219.

C. The Instant Litigation

On October 14, 2015, Schmidt, Walker and Edwards each filed separate lawsuits in federal court against Cal Dive, Lloyds, and their attorneys, the Schonekas Parties, asserting causes of action for defamation, tortious interference with a maritime contract, bad faith breach of a Jones Act settlement, wrongful injunction, sanctions, punitive damages, and negligence. [Doc. 1, pp. 55–63] Each plaintiff filed identical suits in Louisiana State Court the same day. On October 22, 2015, plaintiffs dismissed Cal Dive from all suits after receiving notice Cal Dive had filed for bankruptcy. As a result of the dismissal of Cal Dive, complete diversity existed over the claims of Schmidt and Walker, and defendants removed those suits on January 8, 2016 to the Western District of Louisiana. On January 21, 2016, the related suits were reassigned to this Court due to the retirement of Judge Haik. On January 29, 2016, this Court consolidated the five suits pending before it.⁶

Thereafter, the Schonekas Parties and Lloyds each filed the pending motions to dismiss all claims pursuant to Rule 12(b)(6). As stated in their opposition briefs, plaintiffs explicitly waive the following claims: all negligence claims against the Schonekas Parties [Doc. 72, p. 6], negligent infliction of emotional distress against Lloyds [Id.; Doc. 73, p. 6], malicious prosecution against all defendants [Doc. 72, p. 20; Doc. 73, p. 7]; abuse of process against all defendants [Id.]; and wrongful injunction against all defendants. [Doc. 73, p. 8] Plaintiffs clarify in their briefing that their claim for bad faith breach of a Jones Act settlement is asserted solely against Lloyds. [Doc. 72, p. 22] Further, in their opposition...