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Cannon v. United States

United States District Court, S.D. California

October 28, 2019

WILLIAM CANNON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER ON MOTION TO DISMISS [DOC. NO. 157]

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.

         This matter is back before the Court from the Ninth Circuit Court of Appeals, which reversed the Court's grant of summary judgment in favor of Defendant the United States of America. The government now moves to dismiss the complaint on issue preclusion grounds based on a decision of an administrative law judge issued while the appeal was pending. The motion has been fully briefed, and the Court deems it suitable for submission without oral argument. As discussed below, the motion is granted, and the case is dismissed.

         I. Background

         The parties are familiar with the facts and allegations in this case so they will not be repeated in detail here. Generally, Plaintiff William Cannon alleges that on November 25, 2013, he suffered a back injury while helping to move a ramp or lift onboard the USS Coronado (the “Coronado”), a littoral combat ship constructed by Cannon's employer Austal USA, LLC (“Austal”), a shipbuilder and former party to this case. Based on the Court's rulings on summary judgment that were not disturbed on appeal, the only remaining claim in this case is Cannon's claim against the government for negligence under section 905(b) of the Longshore and Harbor Workers Compensation Act (“LHWCA”), 33 U.S.C. §§ 901 et seq. The Ninth Circuit reversed this Court's ruling on summary judgment that this negligence claim was barred by the applicable two-year statute of limitations.

         In its summary judgment order, this Court summarized that evidence supporting Cannon's claims, or lack thereof, as follows:

In sum, Cannon testified at his deposition that the incident occurred within a day or two of sea trials that ended on August 23, 2013. Despite his claim that his injury occurred while lifting a ramp with three other men, Cannon does not cite to any testimony from these men supporting his claim that this incident occurred at all, let alone about the date of the incident. The only person identified by Cannon who allegedly witnessed the injury admitted in her deposition that she did not work on November 25, 2013, and conceded that it was possible that the Coronado had returned from sea trials a few days before the incident. [Doc. No. 111-3 at 15.] Meanwhile, Cannon's supervisor Harris, to whom Cannon reported the injury, testified that he recalls it happening in early fall and before November 25, 2013. [Doc. No. 129-19 at 8.] Aside from the Cannon's sham declaration, there is no testimony (via declaration or deposition) of anyone who stated they witnessed the incident occur on November 25, 2013, or even that Cannon told them that his injury occurred on that date. Nor is there any other admissible evidence that would support a finding that the incident occurred on November 25, 2013. In light of the foregoing, the undisputed evidence demonstrates that to the extent Cannon suffered an injury while moving a ramp extension aboard the Coronado, that injury occurred in August 2013, and not on November 25, 2013.
The FAC explicitly seeks damages for an injury Cannon suffered aboard the Coronado on November 25, 2013. The complete lack of evidence that Cannon suffered an injury aboard the Coronado on November 25, 2013 is fatal to all of Cannon's claims because the FAC only asserts claims arising out of an injury that allegedly occurred on November 25, 2013. Any injuries Cannon suffered in August 2013 are simply not a part of this lawsuit. Further, to the extent Cannon was injured aboard the Coronado in August 2013, any admiralty claim against the United States arising out of such injury is barred by the [Suits in Admiralty Act's] two year statute of limitations. Accordingly, the United States is entitled to summary judgment on all of Cannon's claims.

[Doc. No. 133 at 17-18.] In reversing this judgment, the Ninth Circuit held that this Court abused its discretion in excluding Cannon's post-deposition declaration under the “sham affidavit” rule, and abused its discretion excluding an incident report as inadmissible hearsay. [Doc. No. 155 at 3-4.] According to the Ninth Circuit, these pieces of evidence create a genuine issue of fact as to the date of the alleged accident that caused Cannon's alleged injuries. [Id.]

         II. The ALJ Decision

         While Cannon's appeal to the Ninth Circuit in this case was pending, Cannon pursued a claim before the Office of Administrative Law Judges of the United States Department of Labor against Austal and its insurance carrier for benefits under the LHWCA. [Doc No. 153-1.] On March 19, 2018, Administrative Law Judge Patrick Rosenow (the “ALJ”) “held a hearing at which the parties were afforded a full opportunity to call and cross-examine witnesses, offer exhibits, make arguments, and submit post-hearing briefs.” [Id. at 4.] Cannon was represented at the hearing by Thomas Discon, who also represents him in this case. [Id.] Cannon testified in person at the hearing [Doc. No. 157-5 at 34-134], offered twenty-seven exhibits [Doc. No. 155 at 5; Doc. No. 157-5 at 5-6], filed a post-trial memorandum [Doc. No. 157-6], and a reply to Austal's post-trial brief [Doc. No. 157-8].

         On September 29, 2019, the ALJ issued a thirty-nine page single-spaced order and decision denying Cannon's claim. [Id.] After comprehensively cataloguing the evidence, the order states that “[t]o prevail, [Cannon] must show that it is more likely than not that he was injured as he alleges on 25 Nov 13 in the mission bay of the Coronado, ” and concludes that “the record is insufficient to carry [Cannon's] burden and establish that it is more likely than not that he injured his back while working for [Austal] on 25 Nov 13.” [Id. at 41-42.] Cannon did not appeal the ALJ's order.

         III. Legal Standards

         Although this case is back from the Ninth Circuit after the reversal of the Court's order granting summary judgment, the government now frames its motion as one for dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Such a motion, however, “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b). Nevertheless, this flaw is immaterial both because Plaintiff did not object to the form of the motion in his opposition, and because the motion could have been brought as one for judgment on the pleadings under Rule 12(c), which is subject to the same analysis. See Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.”) (internal quotation marks and citation omitted).

         The standard for a Rule 12(b)(6) motion to dismiss articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), applies to a motion for judgment on the pleadings. See Lewis v. City & Cty. of San Francisco, No. C 11-5273 PJH, 2012 WL 909801, at *1 (N.D. Cal. Mar. 16, 2012). Thus, as with a motion to dismiss for failure to state a claim, when deciding a motion for judgment on the pleadings, the Court assumes the allegations in the complaint are true and construes them in the light most favorable to the plaintiff. See Northstar Fin. Advisors, Inc. v. Schwab Investments, 904 F.3d 821 (9th Cir. 2018). “Judgment on the pleadings is properly ...


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