Tran v. Captain Glyn, Inc.

• Decision Date: 29 March 1995
• Docket Number: Civ. No. 94-00350 DAE.
• Parties: Hung Phuong TRAN, Plaintiff, v. CAPTAIN GLYN, INC.; Kim Quy Thi Huynh, John Does 1-20; Mary Does 1-20; Doe Corporations 1-20; Doe Partnerships 1-20; Doe Governmental Agencies 1-20; and Other Entities 1-20, in personam, and the F.V. Capt. Glyn I, O.N. 910043; Doe Vessels 1-20 in rem, Defendants.
• Court: U.S. District Court — District of Hawaii

909 F. Supp. 727

Hung Phuong TRAN, Plaintiff, v. CAPTAIN GLYN, INC.; Kim Quy Thi Huynh, John Does 1-20; Mary Does 1-20; Doe Corporations 1-20; Doe Partnerships 1-20; Doe Governmental Agencies 1-20; and Other Entities 1-20, in personam, and the F.V. Capt. Glyn I, O.N. 910043; Doe Vessels 1-20 in rem, Defendants.

Civ. No. 94-00350 DAE.

United States District Court, D. Hawai`i.

March 29, 1995.

COPYRIGHT MATERIAL OMITTED

Jay L. Friedheim, John R. Remis, Jr., Honolulu, HI, for plaintiff.

Robert G. Frame, Leonard F. Alcantara, Bryan Y.Y. Ho, Alcantara & Frame, Honolulu, HI, for defendants.

ORDER DENYING PLAINTIFFS AND DEFENDANT'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

The court heard the parties' motions on March 27, 1995. Jay Lawrence Friedheim, Esq., appeared on behalf of Plaintiff; Bryan Y.Y. Ho, Esq., appeared on behalf of Defendant Captain Glyn, Inc. The court, having considered the moving papers and the records and files herein, DENIES the parties' motions for summary judgment.

BACKGROUND

Plaintiff Hung Phuong Tran ("Tran") came to the United States from Vietnam in 1975. Approximately two months before the accident at issue in this matter, Tran moved to Hawaii, seeking work on a fishing boat. Defendant Captain Glyn, Inc. ("CGI") employed him for 37 days on the F/V Captain Glyn I, just prior to the accident. The day of the accident, he received $1,480.00 for his work aboard the F/V Captain Glyn I. He contests the sufficiency of amount he was paid. Tran has requested an accounting of the voyage, but apparently none has been provided.

The parties dispute many of the circumstances surrounding the accident on May 11, 1994. Tran claims he was working on the vessel in preparation for a second trip when he was injured. Tran maintains that his personal effects were all on board the vessel when he was hurt, and that he had that same morning been working on the vessel, changing lines and hooks. Tran asserts that the owner of the vessel had instructed him to wait to store the squid. CGI contends that Tran had arrived to receive his share from the previous fishing trip and began to work without being asked.

At the time of the accident, boxes of frozen squid were being loaded onto the vessel and stored in one of two bait lockers in preparation for the next voyage. If not put in the lockers promptly, the frozen squid spoil. Tran alleges that the vessel's owner wanted jobs like this done in a hurry and that Tran knew that his employment depended on his speed in performing such tasks. CGI purchased the frozen squid from a local company which delivered the bait to the vessel using a one-ton flatbed truck which the supplier parked alongside the vessel. Two employees of the bait supplier stood on the back of the truck and tossed the bait, one 25-pound box at a time, in a pile on the stern of the vessel. Tran indicates that the bait supplier had a ramp on the truck but that the employees eschewed it, preferring to throw the boxes onto the boat instead.

Tran contends that he was the only crewmember working on the deck of the vessel, shuttling the boxes to another crewmember who stacked them in the bait locker. CGI contends that four crewmembers were on the vessel at the time. According to Tran, the boxes piled up on the deck, and Tran felt that the bait suppliers seemed to be in a hurry. He insists that he asked them to stop and wait, but they did not. Tran indicates that no one from the vessel supervised the loading of the bait and that no one gave him any instructions regarding the job.

The accident occurred when one of the twenty-five pound boxes slid off of the pile and hit Tran's foot. The box slid either immediately or shortly after being tossed onto the mounting pile on the deck. The impact of the box fractured one of the long bones in Tran's foot. Tran turned pale and could not work due to the pain. The vessel owner then fired Tran and, according to Tran, refused to pay Tran's maintenance and cure. After the accident, Tran returned to his parent's home in California. Since then, he has returned to Vietnam.

According to CGI, it has paid Tran $15.00 per day in maintenance for the period between May 12, 1995 to October 31, 1995, under a reservation of rights to question Tran's status as an employee at the time of the accident. CGI claims it has also paid or approved payment for curative expenses.

Tran's physician found him medically unfit for duty for a period of at least eight months after the accident. CGI's physician disagreed with the diagnosis of Tran's podiatrist. For two months, Tran used crutches and required pain medication. Tran claims that he may never again be able to work aboard fishing vessels. He submits that much of the thousands of dollars in medical costs he has incurred remains unpaid at this time. According to CGI, Tran's podiatrist testified at his deposition that Tran's foot had healed and his condition was stable as of October 18, 1994. However, CGI does not attach excerpts from that deposition.

At his own deposition, Tran did not express an opinion regarding the safety, seaworthiness or outfitting of the vessel, responding that he "did not know." He responded similarly concerning whether CGI did anything to cause the accident.

STANDARD OF REVIEW

Rule 56(c) provides that summary judgment shall be entered when:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). The moving party has the initial burden of demonstrating for the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, the moving party need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552.

Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial. Fed.R.Civ.P. 56(e). The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987); Fed.R.Civ.P. 56(e). There is no genuine issue of fact "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted).

A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. Id. The evidence submitted by the nonmovant, in opposition to a motion for summary judgment, "is to be believed, and all justifiable inferences are to be drawn in its favor." Id. at 255, 106 S.Ct. at 2513. In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law. Id. at 254, 106 S.Ct. at 2513. The court must assess the adequacy of the nonmovant's response and must determine whether the showing the nonmovant asserts it will make at trial would be sufficient to carry its burden of proof. See Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

At the summary judgment stage, this court may not make credibility determinations or weigh conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). The standard for determining a motion for summary judgment is the same standard used to determine a motion for directed verdict: does the evidence present a sufficient disagreement to require submission to a jury or is it so one-sided that one party must prevail as a matter of law. Id. (citation omitted).

DISCUSSION

CGI moves for summary judgment based upon Tran's failure to present any evidence of negligence or unseaworthiness. Tran has filed a cross-motion, seeking summary judgment on negligence and unseaworthiness as well as on the issues of his employment status and his entitlement to seaman's maintenance and cure.

I. Timeliness of Tran's Motion

CGI rightly indicates that Tran's Cross-Motion for Summary Judgment was filed after the December 20, 1994 deadline for motions. Tran filed the motion along with his opposition to CGI's motion on February 2, 1995. The court agrees with the thrust of CGI's objection to Tran's crossmotion: the filing of an opposition should not present the opposing party with an opportunity to extend the motions deadline in its favor. Even if Tran's cross-motion centered on the exact same issues as CGI's motion, this court would not abuse its discretion in holding Tran to the terms of the scheduling order entered under Fed.R.Civ.P. 16.

However, where good cause is shown, a district judge may modify the schedule. Fed.R.Civ.P. 16(b). Here, the court agrees with Tran that the issue of his employment status he raises in the motion is relevant to this court's subject matter jurisdiction over this case. See Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987) (citing Rodriguez v. Flota Mercante Grancolombiana, S.A., 703 F.2d 1069, 1072 (9th Cir.1983)). For this reason, the court finds good cause to determine this matter if possible at an early stage in the litigation. Moreover, CGI points to no prejudice as the result of Tran's cross-motion and responds to the substance of the...