Dance v. Ensco Offshore Co. , 314 F. App'x 654 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2009
No. 08-30314 Charles R. Fulbruge III
Clerk
GARY DANCE
Plaintiff-Appellant
v.
ENSCO OFFSHORE CO
Defendant-Appellee
Cons. w/ No. 08-30386
GARY DANCE
Plaintiff-Appellee
v.
ENSCO OFFSHORE CO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:04-CV-2157
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
No. 08-30314
Cons. w/ No. 08-30386
PER CURIAM:*
Plaintiff Gary Dance appeals the district court’s judgment in favor of
Defendant ENSCO Offshore Co., and Defendant cross-appeals the court’s denial
of its motion to dismiss. Reviewing the record de novo, and assuming the
applicable standard under F ED. R. C IV. P. 50(a) to require a “complete absence
of probative facts supporting the nonmovant’s position,” Hughes v. Int’l Diving
& Consulting Servs., Inc., 68 F.3d 90, 93 (5th Cir. 1995) (per curiam) (Jones Act),
we conclude that the testimony by Plaintiff’s expert that Defendant’s safety
manual could have included more specific guidelines regarding the lifting of
heavy objects does not, as a matter of law, suffice to establish Plaintiff’s
negligence or unseaworthiness claims. The district court therefore correctly
granted Defendant’s motion for judgment under Rule 50(a).
We also find that the district court did not abuse its discretion by denying
Plaintiff’s motion to amend, filed on July 1, 2006. Because Plaintiff’s proposed
cumulative-trauma claim did not arise out of acts and occurrences set out in his
original pleading, the amendment would not relate back to the filing date of that
pleading. See F ED. R. C IV. P. 15(c)(1)(B). Additionally, Plaintiff should have
discovered the alleged causal connection between the trauma and his back pain
sometime in June 2003, or more than three years before he moved to amend.
Hence, the proposed claim was time-barred. See F.D.I.C. v. Conner, 20 F.3d
1376, 1385 (5th Cir. 1994) (denial of leave to amend is proper when the statute
of limitations has run); 46 U.S.C. § 30104 (three-year statute of limitations for
Jones Act claims, as prescribed under FELA, 45 U.S.C. § 56); § 30106
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
2
No. 08-30314
Cons. w/ No. 08-30386
(limitations period of three years under general maritime law). In light of these
conclusions, Defendant’s cross-appeal is denied as moot.
AFFIRMED.
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