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Musleh v. American Steamship Co.

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

July 2, 2018

MUSID MUSLEH, Plaintiff,


          Paul D. Borman United States District Judge.

         This action involves Plaintiff's claims for damages allegedly resulting from an injury suffered aboard the M/V St. Clair on December 26, 2014, while Plaintiff was in the service of the vessel's owner, Defendant American Steamship Company (“ASC”). On September 8, 2017, this Court granted ASC's motion for summary judgment in a previous action between these same parties, regarding damages allegedly related to this same injury. Musleh v. American Steamship Co., No. 15-cv-13252, 2017 WL 3966576 (E.D. Mich. Sept. 8, 2017) (“Musleh I”). Thereafter, Plaintiff filed this second Complaint; same parties, same incident. (“Musleh II”). ASC now moves for dismissal in this action, arguing that Plaintiff's claims in this action are barred by principles of res judicata and collateral estoppel. The matter is fully briefed and the Court held a hearing on April 25, 2018. For the reasons that follow, the Court GRANTS ASC's motion to dismiss.


         On December 26, 2014, Plaintiff injured his shoulder and thumb while working for ASC as a seaman aboard the M/V St. Clair. (ECF No. 9-2, Pl.'s Resp. Ex. A, March 24, 2016 Deposition of Ahmed Musleh taken in Musleh I , at 12:22-23, 39:16:-40:3.)[1] Plaintiff received medication and monthly injections in his shoulder for pain for some period of time along with physical therapy, and was declared fit for duty (“FFD”) and able to return to work with no restrictions on June 16, 2015. (Id. at 13:22-14:1, 40:4-44:17.) It is not disputed that “Plaintiff received [from ASC] maintenance and cure benefits throughout the six month period” that he was recovering from his injury and not fit for duty. Musleh I, 2017 WL 3966576, at * 7.

         After being declared FFD, Plaintiff attempted to return to work for ASC, but was deemed not qualified to return to work on an ASC vessel because he failed to obtain a Vessel Personnel and Designated Security Duties (“VPDSD”) certificate. Musleh I, 2017 WL 3966576, at *1. In the previous action between these parties, in addition to seeking benefits for maintenance and contractual support, Plaintiff sought unearned wages for the time period following ASC's refusal to rehire him based upon the lack of a VPDSD certificate. This Court determined that Plaintiff's entitlement to unearned wages ceased when Plaintiff's voyage aboard the M/V St. Clair ended on December 26, 2014, the date on which his voyage for ASC ended (also coincidentally the date on which Plaintiff suffered his injury.) Musleh I, 2017 WL 3966576, at *6 (“Although ASC continued to provide Plaintiff with maintenance and cure payments up until he was rendered FFD and ready to return to work, the law is clear that Plaintiff was no longer entitled to unearned wages once his last voyage for ASC, i.e. the voyage on which he was injured, had ended.”)

         Plaintiff's complaint in Musleh I contained two counts - one for unearned wages and one for maintenance and “contractual support” benefits. The complaint in Musleh I did not contain a claim against ASC under the Jones Act for negligence or for unseaworthiness, claims that are set forth in Counts I and II of the Complaint in this action. In fact, at Plaintiff's deposition in Musleh I, counsel for both parties discussed the fact that Plaintiff was not bringing a Jones Act claim for negligence in that action at that time:

Mr. Galea: I guess the first thing is, before we get started, so that we can try to narrow the focus of this deposition, it's my understanding that the lawsuit in this particular case, and the claim being made, is not so much to seek the damages arising as a result of the incident of December 26, 2014, but more what transpired as a result of the requirement, or whatever, for the vessel personnel designated securities duties endorsement, the VPDSD, and not to seek recovery for damages for the December 26, 2014, incident?
Mr. Fishback: Yes. On behalf of Mr. Musleh, that is correct.
And we had a brief conversation this morning, and I thought just to add to the understanding, I think, obviously, the Complaint speaks for itself. There is no claim asserted for a Jones Act or seaworthiness at this time.
And certainly, if that were to become relevant at a later time, we'd agree to present Mr. Musleh, and you can question him, whatever.

(Pl.'s Dep. 5:8-6:9.) Plaintiff never deemed any potential negligence or seaworthiness claims relevant as Musleh I moved forward and proceeded to closure on the unearned wages and maintenance claims. On September 8, 2017, the Court denied Plaintiff's claims for unearned wages and maintenance benefits, 2017 WL 3966576, at *10, and on December 21, 2017, Plaintiff filed this second lawsuit relating to the same December 26, 2014 incident.

         Defendant now moves to dismiss this action, arguing that Counts I and II, for negligence and seaworthiness respectively, arise out of the same December 26, 2014 injury that formed the basis for the claims in the prior case and therefore could and should have been brought in the prior litigation. Defendant also argues that the issues presented in Count III of the Complaint in this case, for maintenance and cure, were expressly decided in that prior proceeding.

         Plaintiff responds that Musleh I was an action filed for “the limited purpose of litigating [Plaintiff's] claim for unearned wages” and that ASC acknowledged this limited purpose and therefore is now estopped from asserting the defense of res judicata. Plaintiff also asserts that the claim for cure in this case is different from the claim asserted in the previous action because his condition resulting from the December 26, 2014 injury has worsened.


         When reviewing a motion to dismiss under Rule 12(b)(6) a court must “‘construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.'” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539 (internal quotation marks and citations omitted). See also Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007) (“Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.”).

         In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. at 555 (internal quotation marks and citations omitted) (alteration in original). “To state a valid claim, a complaint must contain either direct or inferential ...

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