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In re Lyon Shipyard, Inc.

United States District Court, E.D. Virginia, Norfolk Division

March 9, 2015

IN THE MATTER OF THE COMPLAINT OF LYON SHIPYARD, INC., AS OWNER OF THE BARGE RIG ONE WITH MOUNTED CRAWLER CRANE MANITOWOC 4000W FOR EXONERATION FROM OR LIMITATION OF LIABILITY

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For In the Matter of the Complaint of Lyon Shipyard, Inc., as Owner of the Barge RIG ONE with mounted Crawler Crane Manitowoc 4000W for Exoneration from or Limitation of Liability, Plaintiff: Patrick Michael Brogan, LEAD ATTORNEY, Thomas Saunders Berkley, Davey & Brogan PC, Norfolk, VA.

For William H. Monroe, Jr, WILLIAM MONROE, JR., ADMINISTRATOR OF THE ESTATE OF John Robert McCullen, Claimant: Richard James Serpe, LEAD ATTORNEY, Law Offices of Richard J. Serpe, P. C., Norfolk, VA.

For Great Lakes Dredge and Dock Company, LLC., Claimant: Edward James Powers, LEAD ATTORNEY, Vandeventer Black LLP, Norfolk, VA.

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MEMORANDUM OPINION

REBECCA BEACH SMITH, CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the court on William H. Monroe, Jr.'s (" Claimant Monroe" ) Motion to Enter Stipulation and to Lift Injunction and Stay of Proceedings (" Motion" ), filed on October 29, 2014. ECF No. 15. This matter has been fully briefed, and a hearing was held on February 20, 2015.

The resolution of this Motion may ultimately determine whether Claimant Monroe's wrongful death suit will be litigated in state court or federal court. See Pickle v. Char Lee Seafood, Inc., 174 F.3d 444, 451 (4th Cir. 1999) (internal citations omitted) (" If, however, the district court denies limitation of liability, the reason for concursus[1] disappears . . . . With the reason

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for concursus and restraint of other proceedings removed, no reason would remain to deprive the claimants of their choice of forum." ). Claimant Monroe wants this court to lift its injunction and allow the wrongful death case to proceed in state court, while Lyon Shipyard, Inc. (" Lyon" ) would prefer to litigate the wrongful death suit in federal court. Great Lakes Dredge and Dock, LLC (" Great Lakes" ), which has not filed any briefings or stipulations related to this issue, would like the issue to be litigated in this court, as evidenced by its attempt to remove the case from state to federal court in an earlier proceeding, and through its representation to the court at the hearing on February 20, 2015. At that hearing, counsel for Great Lakes pointedly said that, while this court may allow the wrongful death suit to proceed in state court, its claims for loss of use and ongoing attorneys' fees have only been brought before this court, and that it has no intention of filing cross-claims in state court, as long as there is a pending limitation action before this court.

I. FACTUAL AND PROCEDURAL HISTORY

On April 16, 2014, Claimant Monroe, as the Administrator of John Robert McCullen's estate, filed a wrongful death action pursuant to 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act (the " LHWCA" ) in the Circuit Court for the City of Norfolk, Virginia.[2] The complaint seeks compensatory and punitive damages totaling twelve million dollars ($12,000,000) jointly and severally against Lyon and Great Lakes. The decedent, McCullen, was a machinist employed by Lyon who was killed while working on a dredge owned and operated by Great Lakes, the DODGE ISLAND, when it collided with a derrick barge owned by Lyon, the RIG ONE.

On May 19, 2014, Lyon filed a Plea in Bar to dismiss Claimant Monroe's state court claims against it on the grounds that the LHWCA precluded them. Monroe's Mem. Supp. at 2, ECF No. 16. On June 2, 2014, Great Lakes filed a Notice of Removal to remove the case to the United States District Court for the Eastern District of Virginia. See Case No. 2:14cv264, ECF No. 1. The case was assigned to Judge Raymond A. Jackson. On June 27, 2014, Lyon filed a Motion to Dismiss in the federal case, on the same grounds that it raised in its state court Plea in Bar. Id., ECF No. 10. Claimant Monroe then filed a Motion to Remand the case to state court on July 2, 2014. I ...


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