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September 13, 2006
Welcome to the September 13, 2006, issue of AdmiraltyUpdate, the copyrighted and trademarked e-newsletter on developments in U.S. Coast Guard regulations and state and federal court decisions of interest to the commercial and recreational marine communities, written, edited and produced by Frederick B. Goldsmith and E. Richard Ogrodowski, members of the firm of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A.
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This issue's photo depicts the Tug JOYCE L. VANENKEVORT and its
integrated tow, the barge GREAT LAKES TRADER, upbound in the Detroit River
passing Grassy Island just below Fighting Island North Light, off Wyandotte,
Michigan, in late September 2004. Many thanks to photographer Mike Nicholls,
Allen Park, Michigan, the Great Lakes & Seaway Shipping website, www.boatnerd.com,
and to VanEnkevort Tug & Barge Company, Bark River, Michigan, for permission
to use the photo.
Recent U.S. Coast Guard Notices in the Federal Register
Towing Safety Advisory Committee to Meet 9/20-21/06
In the August 18, 2006, Federal Register, the Coast Guard announces that TSAC will meet on the above dates at the Hilton St. Louis Airport. Agenda topics include a “Comprehensive Report of the Towing Vessel Inspection Working Group,” and discussion of the Transportation Worker Identification Credential (TWIC) and the Merchant Mariner Credential (MMC) rulemakings.
Merchant Marine Personnel Advisory Committee to Meet 9/12-13/06; Seeks New Members
In the August 1, 2006, Federal Register, the Coast Guard serves notice that MERPAC will meet on the above dates at MITAGS in Linthicum Heights, Maryland. Agenda items include Task Statement 30 (concerning use of military sea service for STCW certification), Task Statement 51 (concerning minimum competence standards for tanker safety), Task Statement 55 (concerning a voluntary training program for deck and engine department entry level mariners), and Task Statement 57 (concerning a national training program operational and management level officers including integration of the STCW Code into the USCG license exam process).
In a separate Federal Register notice the same day, the Coast Guard seeks by 10/15/06 applications for seven (7) new members of MERPAC.
Recent State & Federal Court Maritime Decisions
U.S. Fifth Circuit Court of Appeals: Dormitory Barge is Vessel for Jones Act Purposes
In Holmes v. Atlantic Sounding Co., 437 F.3d 441 (5th Cir. January 19, 2006), reversing its prior opinion in the case, and citing Stewart v. Dutra Construction Co., 543 U.S. 481, 125 S.Ct. 1118 (2005), the court held the BT-213, a 140 foot by 40 foot barge with a housing package atop it, essentially a floating dormitory, and a “dumb,” non-self-propelled barge, which Weeks Marine moved from place to place to house and feed employees during dredging projects, crewed by only two cooks and two janitors, was “capable of being used as a means of transportation on water” and was thus a vessel for purposes of the Jones Act. The court held that the Supreme Court in its Stewart decision had “significantly enlarged the set of unconventional watercraft that are vessels under the Jones Act and the LHWCA….”
U.S. Sixth Circuit Court of Appeals: Jury Should Decide Whether an Employee Hired to Reconstruct a Seawall Along the Shoreline of the Erie Canal is a Jones Act Seaman
In Arnold v. Luedtke Engineering Co., 2006 WL 2220978 (6th Cir. Aug. 4, 2006), the Sixth Circuit, in reversing the district court’s granting of summary judgment to defendant, Luedtke Engineering, Inc. (“Luedtke”), found that the district court erred in applying a snapshot test for determining seaman status under the Jones Act and improperly took the mixed question of law and fact regarding seaman status away from the jury. Plaintiff, Richard Arnold, worked for Luedtke, a maritime construction and dredging company, for twenty-three years in various capacities, such as runner, deckhand, tugboat pilot, and project foreman. As part of his employment, Arnold was also a member of the Seafarers International Union for over twenty years and licensed as a tugboat Captain. Arnold’s injury occurred while working as project foreman on a seawall reconstruction project at Black Rock Lock in Buffalo, New York. The seawall is 750 feet in length along the shore of the Erie Canal. Arnold’s job duties at the Black Rock Lock Project included working as the captain of a tugboat, used to push a derrick boat from Michigan to Buffalo, New York for the project, overseeing the sheeting repair, pouring concrete behind the wall, tying rebar, setting tubes, welding wedge plates to tubes, and making repairs to the derrick boat. Arnold suffered a back injury in September 2002 while lifting wedge plates on a vessel.
Arnold filed suit under the Jones Act for negligence and under the general maritime law for unseaworthiness. The district court held that Luedtke was entitled to summary judgment as Arnold did not satisfy the two-prong test in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), that the U.S. Supreme Court had developed to determine Jones Act seaman status. Under Chandris, to qualify as a seaman (1) “an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission;” and (2) “a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” The Sixth Circuit found Arnold satisfied the first prong because he contributed to the functioning of many vessels over the nine month Black Rock Lock Project in that he: served as the Captain of the tugboat transporting the derrick, conducted daily maintenance of all three vessels at the project site, navigated all the vessels throughout the project, and was working on a vessel when injured. The court also found that Arnold may satisfy the second prong in that the evidence indicated Arnold spent well over 30% of his entire time on the project working in direct connection to a vessel (Chandris explains that a worker who spends less than 30% of his time in service of a vessel in navigation ordinarily should not qualify as a Jones Act seaman).
The appeals court found the district court erred in looking only at the particular phase of the project Arnold was working at the time of injury, which involved around 10% of his time moving vessels and using a raft to weld, as opposed to the entire project. Looking at the separate phases of the project violated Chandris’ admonition not to employ a snapshot test. Therefore, the Sixth Circuit, in remanding the case to the district court, found it is for a jury to decide whether Arnold’s connection to the vessels, both in duration and nature, satisfy the second prong of the Chandris test for Jones Act seaman status.
U.S. Fifth Circuit: Testbank/Robins Dry Dock Rule Precludes Claims for Economic Losses Following Tank Barge’s Allision with Bridge
In In re Complaint of Taira Lynn Marine Limited Number 5, 2006 WL 728026 (5th Cir. March 23, 2006), a towboat and its tank barge tow allided with the Louisa Bridge in St. Mary Parish, Louisiana. Aboard the tank barge was a gaseous mixture of propylene/propane, which discharged into the air. The state police ordered all homes and businesses in a certain radius evacuated. The towboat and tank barge owner, and the state, each filed motions for partial summary judgment on the claims of fourteen business owners which alleged only economic losses, unaccompanied by physical impact, on the basis of the TESTBANK/Robins Dry Dock line of cases. Reversing the district court, the Fifth Circuit found the business owners’ claims illegitimate whether under state or maritime law given the physical impact rule. Further it held the claims not cognizable under CERCLA, because no claimant had alleged that it incurred costs in acting to contain the gaseous cargo, nor OPA ’90, because, even assuming for argument’s sake that the gaseous cargo was “oil” and thus covered by OPA ’90, no claimant had alleged its economic losses were caused by damage to property resulting from the discharge of the gas.
Ohio Federal District Court: No Liability for Trip and Fall Over Mooring Line
In Proper v. Ispat Inland, Inc., 2006 WL 2384950 (N.D.Ohio April 3, 2006), the court dismissed on summary judgment motion seaman David Proper’s Jones Act negligence and general maritime law unseaworthiness claims. Proper claimed he caught his toe, slipped and fell, injuring his knee, while stepping over the second of two mooring lines on the deck of the laker, the M/V JOSEPH L. BLOCK. Proper had successfully stepped over these lines many times before in the course of his employment. The court held that Jones Act liability requires more than a showing of an injury. There must also be negligence, here, that the lines posed a “dangerous condition.” The court found Proper presented no such evidence and dismissed his Jones Act claim. For the same reason, the court dismissed Proper’s unseaworthiness claim.
Louisiana Federal District Court: Insurer Waived Policy Defenses by Defending Without Reserving Rights
In Underwriters Insurance Co. v. Offshore Marine Contractors, Inc., 2006 WL 2128653 (E.D.La. July 27, 2006), a jack-up barge called the L/B ATLAS departed Cameron, Louisiana, for the Matrix Oil Production Platform located offshore Louisiana. While en route, the vessel’s captain notified the vessel owner, Offshore Marine, that there were several problems with the vessel, including a bow in one or more of the four jacking legs, that one or more of the bilge pumps were inoperable, and that the port stern leg middle pinion gear had come out of its normal position and had fallen on the deck. The next day the ATLAS collapsed and sank in 60 feet of water and was declared a CTL.
Offshore Marine reported the incident to Underwriters Insurance, which had issued Hull and Machinery and P&I policies. Underwriters Insurance appointed counsel to represent itself and Offshore Marine as regards the property damage claim, and a surveyor to investigate. The surveyor reported to Underwriters Insurance that the ATLAS’ crew had made allegations that the vessel was unseaworthy at the inception of the voyage and had admitted to the company man aboard the vessel that the jacking mechanism for the port stern leg was malfunctioning at the dock or at some prior location before the voyage. This was the same jacking mechanism which failed in the casualty. Despite this evidence of preexisting unseaworthiness, Underwriters Insurance paid about $5.4 million on Offshore Marine’s hull claim.
Meanwhile, the crewmen of the ATLAS who were aboard when it sank had each filed personal injury claims against Offshore Marine. In response, Offshore Marine filed a Limitation of Liability action in federal court. At the time of this limitation action filing and throughout its pendency, the same lawyer represented Offshore Marine and Underwriters Insurance. This lawyer reported to Underwriters Insurance that there was indeed evidence of preexisting unseaworthiness. Shortly thereafter, Underwriters Insurance settled all the personal injury claims.
About two months later it filed this suit, seeking a declaratory judgment that there was no coverage due to the unseaworthy condition of the ATLAS, that Offshore Marine had breached the Hull and Machinery policy’s warranty of seaworthiness, and seeking reimbursement of the payments it had made.
The court found that under Louisiana law if an insurer has knowledge of facts indicating noncoverage under its policy yet assumes or continues the insured’s defense without obtaining a nonwaiver agreement to reserve its coverage defense, the insurer has waived its coverage defenses. The court found that with evidence of noncoverage in hand from the surveyor and lawyer it had appointed, Underwriters Insurance continued the lawyer’s joint representation of Offshore Marine without a nonwaiver agreement or a reservation of rights. The court found Underwriters Insurance had thereby waived its coverage defenses. The court did not accept the insurer’s argument that it lacked “facts” of noncoverge, that it only had in hand “allegations.” The court held an insurer “does not need to know to an absolute certainty that it has a coverage defense.”
Kentucky Federal District Court: Preexisting Unseaworthiness Voids Coverage Under Hull Policy
In J&A Fleeting, Inc. v. Fireman’s Fund McGee Marine Underwriters, 2006 WL 13113 (E.D.Ky January 3, 2006), the M/V ASHLEY W. sank over a weekend at dock while unattended on the Big Sandy River and its owner, J&A Fleeting, filed a claim with Fireman’s Fund seeking the $100,000 hull insurance policy (SP-39C) limit. Fireman’s Fund refused to pay and J&A sued. The court found from the affidavits submitted by the parties on competing summary judgment motions that a pump failure in the vessel’s shaft alley caused it to sink and that J&A knew of a problem with the propeller shaft that was allowing more water than usual to enter the shaft alley, that J&A had been monitoring the situation, had ordered a new part before the sinking, but that the boat was allowed to remain in service.
Fireman’s Fund claimed the vessel sank due to wear and tear and that J&A’s use of the vessel knowing it had fallen into disrepair was a breach of the policy’s seaworthiness warranty and a failure to exercise due diligence.
J&A claimed the policy’s Inchmaree Clause covered the claim and there was no want of due diligence on its part either in maintaining or monitoring the vessel, as it had “monitored” the pump situation during the week before the sinking, a replacement part had been ordered, it was not possible to dry dock the boat at the time, that the vessel’s pilot was “on call” that weekend to monitor the water levels and operation of the pumps, and that the terminal’s security guard adequately monitored the boat by virtue of an informal agreement to “keep an eye on” the ASHLEY W. J&A also claimed a superseding cause—perhaps a lightening strike—caused the breakers for the pumps to trip.
The court found J&A had failed to comply with the policy’s Inchmaree Clause’s standard of care, i.e., that it failed to use “normal and customary care to prevent the loss,” and that it failed to rebut the presumption of unseaworthiness which attends when a vessel sinks at dock in calm water. It also found J&A’s superseding cause argument speculative.
Indiana Federal District Court: Excess Insurer Entitled to Deny Claim for Late Notice
In The St. Paul Travelers Companies v. Corn Island Shipyard, 2006 WL 1892683 (S.D.Ind. March 31, 2006), applying New York law, the court found Corn Island’s late notice to St. Paul Travelers defeated coverage, even absent a showing of prejudice resulting from the delay. The court noted that New York law on this issue is “unusually strict” and does not require the insurer to show it was prejudiced by the late notice. Corn Island waited more than five months to notify St. Paul Travelers of its claim for coverage under the latter’s excess policy. The court mentioned that delays of only one or two months have been deemed unreasonable under New York law.
Arkansas Federal District Court: Deckhand Has No Unseaworthiness Claim Against Barge of Which He Was Not Member of Crew
In Weathers v. Triple M Transportation, Inc., 2006 WL 897651 (E.D.Ark. March 31, 2006), Greg Weathers worked as a deckhand for Marine Terminals of Arkansas aboard the M/V AUSTIN STONE, a harbor boat which was helping another towboat, the M/V LIMESTONE LADY, owned by Triple M Transportation, build tow in Marine Terminal’s fleet. While wiring barges together in the LIMESTONE LADY’s tow, Weathers allegedly fell on the Barge R8890, injuring his shoulder. Martin Marietta Materials, Inc. was the charterer and operator of the Barge R8890 at the time.
Weathers sued and asserted negligence and unseaworthiness claims against Triple M, claiming status as an “invitee Sieracki seaman and/or borrowed servant” of Triple M. The parties asserted various claims and cross-claims against each other. The key issue was whether Weathers could assert an unseaworthiness claim against the owner of the Barge R8890. The court held he could not because he was not a permanently assigned member of the crew of this vessel; that the barge had no crew; and Weathers’ work aboard the barge was “purely transitory.”
Texas Federal District Court: Forum Selection Clause in a Passenger Ticket Contract Required Transfer of Case to Florida Federal District Court
In Garnand v. Carnival Corp., 2006 WL 1371045 (S.D.Tex. May 16, 2006), the plaintiff was allegedly injured from falling as a result of being rushed, along with other disembarking passengers, through a dimly-lit lounge aboard a cruise ship, which was moored in Galveston, Texas. The plaintiff filed suit in the United States District Court for the Southern District of Texas, despite a forum selection clause in the passenger ticket contract, which required all such suits to be filed in Miami, Florida. The district court, in transferring the case to the United States District Court for the Southern District of Florida, found that Plaintiff could not overcome the presumption created by the forum selection clause that the convenience of the parties would presumably be better served by transfer to Florida.
New York Federal District Court: Jones Act Plaintiff Did Not Properly Demand a Jury Trial Under Rule 38(b) of the Federal Rules of Civil Procedure
In Walker v. Edison Chouest Offshore, LLC, 2006 WL 2212464 (S.D.N.Y. Aug. 3, 2006), the plaintiff, Jasper Walker, allegedly injured his neck and back while performing his job duties aboard the M/V CAROLYN CHOUEST. Walker filed suit under the Jones Act for negligence and the general maritime law for unseaworthiness. In his complaint at paragraph 6, Walker stated that “[n]othing in these jurisdictional allegations is to be construed as a waiver of the plaintiff’s right to a jury trial in plaintiff’s action at law under the Jones Act, nor of the right to have all of the claims asserted herein tried to a jury, at plaintiff’s option, as permitted under Fitzgerald v. United States Line Company, 374 U.S. 16 (1963).” Neither the complaint nor any other pleadings contained a demand for a jury trial.
The court stated that Walker had a statutory right to a jury trial under the Jones Act, however, to invoke a jury trial, Walker needed to comply with Rule 38(b) of the Federal Rules of Civil Procedure. Rule 38 provides that “a jury trial is waived unless a timely demand is filed.” The written jury trial demand must be served on the adverse party no later than ten days after service of the last pleading directed to the issue. See Fed.R.Civ.P. 38(b). The court found Walker failed to comply with Rule 38(b) in that he never “demanded” a jury trial. The court further found that a demand, as used in Rule 38(b), is a definitive statement and not a reservation of a decision for a later time.
Louisiana Federal District Court: In Post-Withhart Decision, Vessel Owner Not Entitled to Seek Recovery Against Joint Tortfeasor for Property Damages Owed to Vessel Owner by its Employee, But Unsatisfied by His Estate
In In re Complaint of Ocean Runner, Inc., 2006 WL 950115 (E.D.La. April 10, 2006), the court addressed a novel issue and held – in a post-Withhart v. Otto Candies, LLC case – that a vessel owner could not seek recovery against a joint tortfeasor for property damages owed to the vessel owner by its employee but unsatisfied by the employee’s estate. The novel issue presented in this case arose from an accident in the Southwest Pass of the Mississippi River involving the M/V ZIM MEXICO III, owned, chartered, and operated by various entities referred to as “Rickmers,” and the LEE III, owned and operated by Ocean Runner, Inc. (“Ocean Runner”). Daniel Lopez, Jr. piloted the M/V LEE III at the time of the accident.
Ocean Runner, relying on the concept of joint and several liability under the general maritime law and Withhart, which permitted a vessel owner to sue its negligent employee for property damage under the Jones Act, sought a determination whether it was prevented as a matter of law from seeking recovery against Rickmers as a joint tortfeasor for any property damages owed to Ocean Runner by its employee, Lopez, but unsatisfied by his estate. Rickmers argued there was no support for Ocean Runner’s “bold theory.” Noting that it was not presented with any jurisprudence squarely on point, the district court first found that there is no indication in Withhart that the rule stated in the decision should be used in the manner Ocean Runner advocated. The court further noted that maritime jurisprudence from the U.S. Fifth Circuit and the U.S. Supreme Court weighed against recognition of a modification of longstanding admiralty rules, especially where the rule Ocean Runner advances would have an upsetting effect on maritime commerce as it currently exists. The court also found that Ocean Runner’s argument was circuitous in that even if Ocean Runner recovered Lopez’s proportion in full from Rickmers, Rickmers could seek indemnity from Ocean Runner based on imputed negligence and respondeat superior. Therefore, the district court granted Rickmers’ motion for summary judgment as it pertained to the novel claim of Ocean Runner. The district court, however, did certify its order for immediate appeal to allow Ocean Runner to appeal to the Fifth Circuit.
Delaware Federal District Court: Employer Entitled to Judgment as a Matter of Law on Claim for Unreasonable Failure to Pay Maintenance and Cure Where No Reasonable Jury Could Find Employer Unreasonable in Concluding Employee’s Claim Not Legitimate
In Kopacz v. Delaware River and Bay Authority, 2006 WL 1876901 (D.Del. July 5, 2006), plaintiff, Jan Kopacz, filed a claim under the general maritime law against his employer, Delaware River and Bay Authority (“DRBA”), for injuries he alleged occurred as a result of a vehicle striking him while directing traffic aboard a DRBA ferry. Kopacz previously disclosed on his employment application to the DRBA that he had a history of back pain and at his pre-employment physical that he had a history of back and neck injuries. DRBA did not pay maintenance and cure to Kopacz because it did not believe the accident actually occurred. The case proceeded to trial and a jury agreed with DRBA that Kopacz’s injuries did not occur as a result of a vehicle striking him. Nevertheless, the jury did find that Kopacz was injured while subject to the call of the ferry and that DRBA unreasonably refused to pay Kopacz maintenance and cure. The jury thereby awarded Kopacz damages, including maintenance and cure and compensation for DRBA’s failure to pay maintenance and cure.
After trial, DRBA filed a motion for judgment as a matter of law, pursuant to Rule 50 of the Federal Rules of Civil Procedure, as it pertained to the compensation awarded to Kopacz for the jury’s finding that DRBA was unreasonable in refusing to pay maintenance and cure. The court in granting DRBA’s motion found that based on the evidence adduced at trial no reasonable jury could find the DRBA unreasonable in concluding Kopacz’s injuries did not actually arise from the alleged accident. The court noted: (1) there were no witnesses to the accident, other than Kopacz himself; (2) the incident report and Kopacz’s description contained inconsistencies; (3) Kopacz continued to direct traffic even after the accident occurred; (4) Kopacz had a history of neck and back problems, which might account for his aches and pains; (5) the jury concluded the accident did not occur; and (6) no other evidence was adduced that could have accounted for Kopacz’s injuries. Hence, the court held the jury’s finding that DRBA’s refusal to pay Kopacz maintenance and cure was unreasonable and without reasonable justification was unsupported by the evidence. The court also refused to grant Plaintiff’s motion for attorney’s fees and costs, as recovery of these damages are dependent upon a finding of bad faith or recalcitrance, which did not exist.
Florida Federal District Court: Seaman’s Terminal Cancer Diagnosis Allows Employer to Disclaim Further Maintenance and Cure Obligation
In Tern Shipholding Corp. v. Rockhill, 2006 WL 1788507 (N.D.Fla. June 27, 2006), John Rockhill, a seaman employed by Osprey Ship Management, was diagnosed with “limited” small cell lung cancer and received maintenance and cure benefits. When his physician opined the cancer had metastasized and had transitioned into “extensive small cell lung cancer," which was incurable, the court found Osprey no longer owed Rockhill maintenance and cure, as he had reached maximum possible cure; future treatment would not improve Rockhill’s physical condition and there was no treatment that would cure his cancer.
Michigan Federal District Court: Employer May Not Discriminate Against Ill Employees, as Opposed to Injured Employees in Paying Maintenance
In Skowronek v. American Steamship Co., 2006 WL 1494947 (E.D.Mich. May 25, 2006), the plaintiff, Larry Skowronek, an employee of American Steamship Company, suffered a heart attack while at sea aboard the M/V JOHN J. BOLAND. Pursuant to the terms of a collective bargaining agreement between American Steamship Company and Skowronek’s union, the Seafarers International Union, Skowronek received $56 per week for maintenance because he was ill. If Skowronek had been injured, however, he would have received an additional $244 per week. Relying on Vitco v. Joncich, 130 F.Supp. 945 (S.D.Cal. 1955), the district court held American Steamship Company could not discriminate against ill seamen by providing only $56 per week in maintenance payments to ill seamen, while providing to injured seamen $300.00 per week.
Louisiana Federal District Court: Claimants’ Class Action Allegations in Limitation of Liability Act Proceeding Incompatible with Act**
In In re Complaint of Ingram Barge Company, 2006 WL 1004998 (E.D.La. April 12, 2006), which arose out of damage caused by flooding in New Orleans after Hurricane Katrina, plaintiff, Ingram Barge Company (“Ingram”), filed a motion to: (1) strike class action allegations of certain claimants and (2) to require all claimants to appear individually and present their claims in accordance with Supplemental Rule F and the court’s order. Relying on Lloyd’s Leasing Ltd. v. Bates, 902 F.2d 368 (5th Cir. 1990), the district court stated “a class action may not be instituted in a limitation proceeding.” Lloyd’s Leasing Ltd., 902 F.2d at 370. The court further noted that Rule 23 of the Federal Rules of Civil Procedure, which governs class action lawsuits, and Supplemental Rule F, which governs admiralty claims, are incompatible in that the entire thrust of Supplemental Rule F is that each claimant must appear individually in the limitation proceeding. Thus, the district court held that the claimants’ class action allegations in the limitation of liability proceeding must be struck.
Lagniappe
What’s With These Questionable “Admiralty Lien Notices”?
Last November a friend, a partner with a large law firm here in Pittsburgh, sent to
us a notice written in gobbledygook and legalese, sprinkled with words like “Admiralty” and “Commercial Notice,” that his
financial services industry client had received. The notice purported to be a large claim
or lien notice which, if the company failed to respond to, would result in a default judgment.
We reviewed the notice and told our friend it was nonsense. We thought this was a one-off incident, but
we were wrong. Apparently these “notices” are cropping up here
and there.
Recently a Florida federal district court confronted a similar notice, foisted upon pharmaceutical Merck & Company, by an Edward Lee Mock of Pensacola, Florida, proceeding pro se. In Mock v. Merck & Co., Inc., 2006 WL 2094677 (N.D.Fla. July 27, 2006), the court described how Mr. Mock presented to the court his “Commercial Notice Within the Admiralty of the Filing of Foreign Judgment Default Under FRCP 55(a),” which he sought to register as a foreign judgment. Mock paid the filing fee. He alleged he had previously filed a “claim” with Merck demanding damages of $100 million for medical problems he allegedly suffered using Merck’s drug, Vioxx. One month later Mock sent Merck (addressed to its President and CEO, Raymond Gilmartin) a “Notice of Non-Response and Opportunity to Cure, giving Merck 30 days to respond. Thirty days later Mock sent Gilmartin a “Notice of Dishonor,” providing to him three days to “cure the condition of Fault [sic].” About three months later, Mock sent Merck’s Gilmartin a “Notarial Protest Certificate,” allegedly “documenting” an “administrative judgment” against Merck of $300 million (apparently Mock’s Vioxx-related damages had tripled in the interim). Mock told the federal court he’d filed a UCC-1 Financing Statement in the “Florida UCC Office” recording Merck’s consent to an “Admiralty Maritime lien filing in the International commercial claim within the Admiralty Administrative Remedy Judgment by Estoppel Agreement for Contract file # ELMO5182005,” also for $300 million.
Mock sought from the federal court a default judgment against Merck, telling the court that ten days had passed and Merck had failed to pay the “administrative judgment.”
U.S. District Judge M. Casey Rodgers deftly saw through Mock’s ruse and dismissed his case for lack of subject matter jurisdiction, adopting the Magistrate Judge’s report and recommendation:
In the instant case, Plaintiff does not allege that the "administrative judgment" he obtained against Defendant was a judgment of another federal court, nor has he submitted a certified copy of the alleged judgment. As Plaintiff has failed to allege the existence of a judgment that is enforceable through the federal registration statute, he has failed to demonstrate a jurisdictional basis for this action.
What’s the moral of the story? If it smells like nonsense, or
worse, it probably is. But be careful before you decide to simply
ignore it. The safest thing to do is to run it by an attorney.
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