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MacRury v. American Steamship Co.

United States District Court, E.D. Michigan, Northern Division

October 25, 2017

MARK MACRURY, Plaintiff,
v.
AMERICAN STEAMSHIP COMPANY, Defendant.

          OPINION AND ORDER GRANTING MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, DIRECTING FILING OF AMENDED COMPLAINT, AND LIFTING STAY

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE.

         On November 2, 2016, Plaintiff Mark MacRury filed a complaint against Defendant American Steamship Company alleging negligent assignment. ECF No. 1. On April 27, 2017, Defendant filed a motion to stay litigation in favor of arbitration. ECF No. 9. Five days later, MacRury filed an amended complaint. ECF No. 10. The Court granted the motion to stay, reasoning that MacRury's injuries either arose out of the preexisting injury that was the subject of the arbitration agreement, or that MacRury had failed to state a claim for negligent assignment. ECF No. 17.

         Now, MacRury has filed a motion for leave to file a second amended complaint and to lift the stay. ECF No. 18. Defendant contests the motion. For the following reasons, the motion for leave to file an amended complaint will be granted, and the stay will be lifted.

         I.

         A.

         MacRury's proposed second amended complaint, like his first two complaints, spans only three pages. MacRury has made changes to only one paragraph, which will be quoted in full here:

On or about November 7, 2014, and up to August 2016, Defendant was aware that the everyday activities of Plaintiff's job assigned had resulted in severe shoulder injuries to Plaintiff's shoulder resulting in surgery, but Defendants, did, nevertheless, negligently assign Plaintiff to work back [sic] to said activities involving heavy lifting, reaching and holding maneuvers in non-ergonomically correct positions when it knew or should have known that such assignments would result in new injury, separate, apart and exclusive of any pre-existing conditions, because of the inadequate work procedures, assistance, and equipment he was provided, whereby new, distinct injuries occurred to both shoulders resulting from said failure to provide a safe place to work and seaworthy vessel.

Prop. Sec. Am. Compl. at 2, ECF No. 18 (emphasis in original).

         MacRury has underlined the new allegations. The remainder of the proposed second amended complaint is identical to the first amended complaint, and the Court's summary in the July 11, 2017, opinion and order will be relied upon as if restated here in full.

         One final fact must be noted. As discussed in the Court's prior opinion, on February 27, 2015, MacRury and Defendant executed a Claims Arbitration Agreement. Claims Arb. Agree., ECF No. 6, Ex. A. That agreement will be reproduced in part:

WHEREAS, Mark Macrury . . . was employed as a Conveyorman on the M/V H. Lee White and allegedly became ill or injured on September 5, 2013, American Steamship Company . . . [has] a duty to pay maintenance and cure because ASC was the owner and/or operator of the vessel and/or the employer of Mark Macrury. ASC has the obligation to pay Mark Macrury $16.00 PER DAY maintenance and $188.00 PER WEEK contractual support benefit (CSB) (the CSB payments being required for a period of one year only) pursuant to the contract with the SIU.
It is the position of ASC that ASC is responsible only for maintenance and cure and is not responsible or liable for any other damages in regard to Mark Macrury's alleged illness or injuries under the doctrine of unseaworthiness, the Jones Act or any other applicable law. Nonetheless, ASC is prepared to make advances against settlement, arbitration award or judgment of any claim that could arise under the doctrine of unseaworthiness, the Jones Act, or any other applicable law provided Mark Macrury agrees to arbitrate these claims.
Therefore, in consideration of Mark Macrury agreeing to arbitrate all claims against ASC . . . arising under the theory of unseaworthiness, Jones Act, or any other applicable law, . . . ASC agrees to pay Mark Macrury $86.80 per day (to be paid in biweekly installments of $1, 215.20), in addition to $16.00 per day in maintenance and $188 per week CSB, as an advance against settlement, arbitration award or judgment, until he has been declared fit for duty, and/or maximum medical improvement, and/or October 27, 2014, whichever occurs first.

Id. at 1. (emphasis omitted). ...


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