Simcox v. McDermott International, Inc.

152 F.R.D. 689, 1994 U.S. Dist. LEXIS 719, 1994 WL 24170
CourtDistrict Court, S.D. Texas
DecidedJanuary 26, 1994
DocketCiv. A. H-92-3014
StatusPublished
Cited by5 cases

This text of 152 F.R.D. 689 (Simcox v. McDermott International, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simcox v. McDermott International, Inc., 152 F.R.D. 689, 1994 U.S. Dist. LEXIS 719, 1994 WL 24170 (S.D. Tex. 1994).

Opinion

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is defendant McDermott Incorporated’s (“McDermott”) Motion to Dismiss on the Basis of Forum Non Conveniens (Docket Entry #31) in which the other defendants join. After considering the motion, the affidavits in support, the submissions of the parties, the arguments of counsel, the pleadings, and the applicable law, the court is of the opinion that the motion should be granted.

I. Factual Background.

Richard Simcox (“Simcox”) and his wife, Karen, are citizens of the United Kingdom, living in Wales. On December 3, 1990, he signed an employment agreement with defendant McDermott International, Inc. (“McDermott International”), a Panamanian corporation, to serve as a diving supervisor in Southeast Asia. The contract was signed by Simcox and McDermott International in the Republic of Singapore. Simcox also exe[692]*692cuted six addenda, agreeing that his services could be assigned to certain subsidiaries and affiliates of McDermott International, including defendant Malmac Sdn. Bhd. (“Malmac”). In the Malmac addendum, Simcox agreed to perform services at the direction of Malmac within the territorial jurisdiction of Malaysia. Malmac is a Malaysian corporation with its principal place of business in Kuala Lumpur, Malaysia. Simcox’s employment contract provides, inter alia:

INJURIES, ILLNESSES AND COMPENSATION
In the event of any occupational illness or injury, Employer and Employee agree that Employee’s benefits for such occupational illness or injury shall be governed by and in accordance with the laws of the country having jurisdiction over the area where the occupational injury occurred or illness arose. Notwithstanding the foregoing, in the event that it is determined that the Employee’s benefits against Employer under the laws of the country having jurisdiction are not at least equal to the benefits afforded for a like occupational illness or injury under the laws of the Republic of Panama, Employer and Employee agree that the Employee’s benefits will be adjusted so that he or she will receive benefits equal to those that would have been due under the laws of the Republic of Panama.

The Simcoxes allege that on September 28, 1991, Simcox was injured when he slipped and fell when walking along a passageway aboard the Derrick Barge No. 26 (“D/B 26”). The passageway was being cleaned by janitors, and Simcox claims that he slipped on soapsuds. The D/B 26 was being operated by Malmac and was working in the Jerneh Field in the South China Sea, offshore western Malaysia.

At the time of the incident, the D/B 26 was and continues to be registered in Panama and flies the Panamanian flag. It was owned by defendant Hydro Marine Services, Inc. (“Hydro”), a Panamanian corporation with its registered offices in Nassau, Bahamas. Hydro had bareboat chartered the D/B 26 to defendant Eastern Marine Services, Inc. (“Eastern”), also a Panamanian corporation with its registered offices in Nassau, Bahamas. Eastern had in turn bareboat chartered the vessel to Malmac. McDermott International holds either, directly or indirectly, a shareholding in Malmac, Hydro, and Eastern.

II. Procedural History.

The Simcoxes initially filed this suit in state court in Harris County, Texas, on August 24, 1992. The Simcoxes had previously filed an action in Louisiana, which they voluntarily dismissed. Although the petition is rather obtuse, the Simcoxes appear to allege, inter alia, that Simcox, in his capacity as a merchant seaman and while working in the course and scope of his employment aboard the D/B 26, was injured as a result of defendants’ negligence. They also claim that the defendant employer breached the implicit and explicit terms of the private employment agreement signed by Simcox. The plaintiffs further allege that by virtue of the private employment contract, Simcox is entitled to recover “sustenance” and “found” of not less than $2,500 per day, payment for past and future medical expenses, exemplary damages, and attorneys’ fees. In addition, Karen Simcox seeks recovery for loss of consortium.

The case was removed to federal court on October 1, 1992, by defendant McDermott, a Delaware corporation with its principal place of business in New Orleans, Louisiana, on the basis of diversity of citizenship. McDermott asserted that the two other defendants, McDermott International and McDermott Southeast Asia Pte. Ltd. (“McDermott Southeast Asia”), had been fraudulently joined because the Texas court lacked personal jurisdiction over them. McDermott Southeast Asia was subsequently dismissed by plaintiffs from this proceeding, and McDermott International’s motion challenging personal jurisdiction has not been ruled on by this court.

The Simcoxes did not file their motion to remand until February 5, 1993, well beyond the thirty-day removal period set forth in 28 U.S.C. § 1447(c). Due to the untimeliness of the remand motion, plaintiffs waived all non-jurisdictional defects in the removal procedure. Accordingly, because this matter orig[693]*693inally could have been brought in federal court, as it involves a maritime personal injury action that falls within this court’s admiralty jurisdiction under 28 U.S.C. § 1333, plaintiffs’ motion to remand was denied on August 12, 1993.1 On that date, Plaintiffs were also ordered to file their response to McDermott’s forum non conveniens motion on or before October 15, 1993.

Shortly thereafter, on August 31, 1993, one day before the effective date of the Texas Forum Non Conveniens Statute, Tex.Civ. Prac. & Rem.Code Ann. § 71.051, the Simcoxes filed a third lawsuit, this time in Brazoria' County, Texas. In that case, the plaintiffs sued three additional defendants, Malmac, Hydro, and Eastern, seeking personal injury damages and asserting claims for breach of Simcox’s private written employment contract, the same contract relied upon in the suit already pending in Houston federal court. Moreover, in an instrument entitled “Plaintiffs’ Preliminary Memorandum in Opposition to Motion for Forum Non Conveniens Dismissal” (Docket Entry #71), filed in this court on October 20, 1993, plaintiffs stated:

Pursuant to the well-settled principles of notice pleading, the plaintiffs respectfully maintain that the pleadings removed to this Honorable Court clearly encompass the prosecution of all claims flowing from Mr. Simcox’ injuries and disabilities.

(emphasis added). Id. at 6. Defendants removed the Brazoria County case to federal court in Galveston on October 21, 1993, and on November 9, 1993, filed their motion to consolidate the Galveston action with the case pending in this court. This court granted the motion to consolidate on December 7, 1993, finding that both cases arose from a common nucleus of operative facts, contained common questions of law and fact, and were in large part duplicative. Indeed, the plaintiffs had already conceded that the pending Houston federal action encompassed all the claims flowing from Simcox’s injuries and disabilities.

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Cite This Page — Counsel Stack

Bluebook (online)
152 F.R.D. 689, 1994 U.S. Dist. LEXIS 719, 1994 WL 24170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simcox-v-mcdermott-international-inc-txsd-1994.