Superior Diving Co. v. Cortigene , 372 F. App'x 496 ( 2010 )

REVISED April 7, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 08-30423 FILED
April 2, 2010
Lyle W. Cayce
SUPERIOR DIVING COMPANY INC,
Clerk
Plaintiff-Appellee
v.
SETH CORTIGENE,
Intervenor Plaintiff-Appellant-Cross-Appellee
JAY WATTS,
Defendant-Intervenor Defendant-Third Party
Plaintiff-Appellee-Appellant-Cross-Appellant
v.
NEWTON B SCHWARTZ, SR,
Third Party Defendant-Appellant-
Cross-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-197
Before JONES, Chief Judge, BENAVIDES, and PRADO, Circuit Judges.
No. 08-30423
PER CURIAM:*
Jay Watts (Watts) appeals from an adverse summary judgment dismissing
his general maritime law and Jones Act claims against his employer, Superior
Diving Company Inc. (Superior). Watts also appeals the district court’s decision
to abstain on the basis of the Colorado River doctrine1 from proceeding on his
state law claims against his former lawyers, Cortigene and Schwartz, and their
counterclaims against Watts for attorney’s fees. We affirm the summary
judgment against Watts but vacate the judgment insofar as the court abstained
from proceeding to determine Watts’s claim against his attorneys and their claim
against him for attorney’s fees.
I. Evidentiary Rulings and Summary Judgment
The district court did not err in granting summary judgment. Watts failed
to produce any competent summary judgment evidence to create a material fact
issue on Superior’s liability on maritime and Jones Act claims as to Superior’s
properly filed summary judgment motion. See FED. R. CIV. P. 56(c); see also
Coury v. Moss, 529 F.3d 579, 584 (5th Cir. 2008). To the extent Watts argues
that due diligence should be relaxed because his lawyers were deficient, the
client is responsible for choosing his lawyer and cannot claim inadequacies as an
excuse for failing to meet deadlines and duties imposed by law. See Link v.
Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); Carson v. Bethlehem Steel Corp.,
82 F.3d 157, 159 (7th Cir. 1996).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
See generally Colorado River Water Conservation Dist. v. United States, 424 U.S. 800(1976).
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No. 08-30423
Watts also attacks the summary judgment motion complaining that the
district court should have allowed him to re-open discovery. This Court reviews
the district court’s refusal to reopen discovery for abuse of discretion. Martin’s
Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765,
776 (5th Cir. 1999). The district court initially scheduled a hearing on Superior’s
motion for summary judgment on November 22, 2006, and granted extensions
in December and January, which moved the hearing to January 24, 2007. The
court’s discovery deadline, however, expired on January 1, 2007 (sixty days
before the final pretrial conference date of March 1, 2007). Watts did not provide
summary judgment proof within this time period but again sought an extension
when he obtained a new attorney. The proffered Wythe affidavit was available
for discovery two years before the discovery deadline and was not made until
almost one year after Watts obtained new counsel. Accordingly, the district
court was well within its discretion to exclude the statement as not newly
discovered evidence and to prevent the litigants from reopening discovery.
II. Motion to Disqualify
We find no merit in the contention that the district judge should have been
disqualified or that he was not acting as a guardian of seamen. Whatever
responsibility the district court has in overseeing settlements does not prevent
it from enforcing substantive and procedural laws applicable in federal courts.
The district court cannot be said to have abused its discretion, and Watts’s
argument certainly fails.
III. Colorado River Abstention
Abstention from jurisdiction “is an extraordinary and narrow exception to
the duty of a District Court to adjudicate a controversy properly before it” and
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No. 08-30423
can be “justified under this doctrine only in the exceptional circumstances where
the order to the parties to repair to the state court would clearly serve an
important countervailing interest.” County of Allegheny v. Frank Mashuda Co.,
360 U.S. 185, 188-89 (1959). We have serious misgivings about the trial court’s
decision to abstain from the malpractice claims and attorney’s fees question.
However, we need not make a determination as to the applicability of the
Colorado River doctrine in the instant case as the parties announced to the
Court at oral argument that the state law proceedings were not decided on the
merits and are no longer pending in state court. Thus, no rationale for
abstention exists, and we remand these claims for further proceedings.
Accordingly, summary judgment in favor of Superior as to claims brought
against it and Watts is affirmed; abstention not being proper at this time, the
order to abstain is vacated by the case remanded for further proceedings related
to all actions between Watts and his former attorneys. All outstanding motions
are denied. AFFIRMED in part, VACATED and REMANDED in part.
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