Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Walsh Construction Co.

United States District Court, W.D. Kentucky, Louisville Division

March 21, 2018

IN THE MATTER OF WALSH CONSTRUCTION CO., For Exoneration from or Limitation of Liability Barge KS395 AND IN THE MATTER OF The Complaint for Exoneration from or Limitation of Liability by James Moody, as Owner of a 26.1 Foot 2011 Suntracker PB24 Vessel Bearing Hull Identification No. BUJ10743J011

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE.

         In Admiralty Memorandum Opinion and Order This matter comes before the Court upon two Motions. First, Claimants[1] have moved jointly for clarification regarding this Court's November 30, 2016 Order restraining certain proceedings. [DN 166.] Second, Petitioner Walsh Construction Company has filed a Motion for Leave to File a Short Sur-Reply to that Motion for Clarification. [DN 171.] These matters are ripe for adjudication, and their respective merits are discussed below.

         I. Background

         The following Background section is largely taken from this Court's previous Memorandum Opinion & Order dated April 4, 2016. [DN 74.] This case arises out of an accident that occurred on July 4, 2015 between a pontoon boat and a barge that was moored at or near Tower 5 of the northbound I-75 bridge between Louisville, Kentucky and Jeffersonville, Indiana. Petitioner Walsh Construction Company, (“Walsh”), owns the flat deck barge, referred to as Barge KS395, which was involved in the incident. According to Walsh, the value of Barge KS395 is $150, 000. Petitioner James Moody was the owner of the 2011 Suntracker PB24, (“the pontoon boat”), which was also involved in the incident. In August 2014, Mody entered into a “bareboat charter agreement with Derbyville Water Rentals, LLC (“Derbyville”)…wherein [he] surrendered possession and control over the [pontoon boat] to Derbyville….” Derbyville rented the pontoon boat to customers who wished to use it on the Ohio River. Moody asserts that the value of the pontoon boat is $1, 600.

         On July 4, 2015, Derbyville rented the pontoon boat to Danal Swinney, Sr., who took the boat out on the Ohio River with the following individuals: Donald Webster, Donald Swinney, Joyce Wright, Kyre Wright, A'Daisha Swinney, Mark Swinney, Jr., Danal Swinney, Jr., and Daniel Swinney. During the evening of July 4, 2015, the pontoon boat collided with Barge KS395 and, according to Claimants, the pontoon boat was “sucked under the rake” of Barge KS395. As a result of the collision, Donald Swinney, Joyce Wright, A'Daisha Swinney, Mark Swinney, Jr., and Danal Swinney, Sr. all died. After the accident, Walsh and Moody filed separate actions for exoneration from or limitation of liability under the Limitation Act. The Court consolidated those actions and entered restraining orders with regards to Walsh and Moody, enjoining litigation related to this action in any other forums.

         II. Walsh's Motion for Leave to File Sur-Reply

         Due to the fact that Walsh's Motion for Leave to File a Sur-Reply deals with Claimant's Joint Motion for Clarification, the Court will address it first. Walsh's Motion [DN 171] argues that, because Claimants' Reply regarding the clarification Motion “cites authority, and makes factual assertions, that were not included in its original Motion, ” Walsh should be permitted to file a Sur-Reply. The Court agrees.

         “Although the Federal Rules of Civil Procedure do not expressly permit the filing of sur-replies, such filings may be allowed in the appropriate circumstances, especially ‘[w]hen new submissions and/or arguments are included in a reply brief, and a nonmovant's ability to respond to the new evidence has been vitiated.'” Key v. Shelby Cnty., 551 F. App'x 262, 265 (6th Cir. 2014) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003)). It is true that “sur-replies…are highly disfavored, as they usually are a strategic effort by the nonmoving party to have the last word on a matter.” Liberty Legal Foundation v. Nat'l Democratic Party of the USA, Inc., 875 F.Supp.2d 791, 797 (W.D. Tenn. 2012) (internal quotation marks omitted). However, the question of whether to permit such an additional filing is a matter left to the broad discretion of the trial court. See Key, 551 F. App'x at 264.

         Here, Claimants presented new arguments in their Reply. [See DN 168.] Specifically, Claimants argue in the Reply (1) that Walsh does not have standing to enjoin state court litigation or otherwise enforce the restraining order because it is not a party to the state court case at issue; and (2) that Walsh's argument holds no weight because it knew of the state court case before the November 30, 2016 restraining order and raised no objections at that time. [See Id. at 3-4.] However, in its initial Motion for Clarification, Claimants did not present either of these arguments, nor any authority tending to support those theories of the case. [See DN 166.] Because of the fact that “new submissions and/or arguments [were] included in [Claimant's]…reply brief, ” Walsh's opportunity to effectively respond “has been vitiated.” See Key, 551 F. App'x at 265. Thus, an avenue has been opened for Walsh to file a Sur-Reply, and this Court will utilize its discretion to grant Walsh's Motion at this time.

         III. Claimant's Joint Motion for Clarification

         A. Introduction

         The second Motion at issue is Claimants' Joint Motion for clarification regarding this Court's November 30, 2016 Stay Order. [DN 166.] The restraining order at issue was docketed by the Court on that date in a different case: No. 3:16-cv-576-TBR. That case was styled In re: Matter of Complaint of River Park Marina, LLC. River Park Marina had filed a Complaint for Exoneration from, or Limitation of, Liability regarding the July 4, 2015 events explained in the Background section above. River Park Marina was the company that allegedly rented the pontoon boat at issue to Danal Swinney, Sr. [DN 116, at 2.]

         In the restraining order, this Court ordered

that the prosecution and/or institution of any suits, actions, or legal proceedings of any nature or description whatsoever in any court whatsoever, against Petitioner [River Park Marina], its agents, servants, or employees, or the Suntracker, arising out of or connected with the accident which occurred on July 4, 2015, on the Ohio River, in the vicinity of Louisville, Kentucky, are, except in this ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.