Valerie Russo v. Apl Marine Services, Ltd. , 694 F. App'x 585 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALERIE RUSSO, an individual, No. 15-56816
Plaintiff-Appellant, D.C. No.
2:14-cv-03184-ODW-JCG
v.
APL MARINE SERVICES, LTD., a MEMORANDUM*
Delaware Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted June 6, 2017
Pasadena, California
Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** District Judge.
Valerie Russo, a crewmember on the APL Korea, sued the ship’s owner, APL
Marine Services, Ltd. (“APL”), and its captain, James Londagin, alleging state law
and maritime claims arising out of alleged harassment by Londagin after their
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable J. Frederick Motz, United States District Judge for the
District of Maryland, sitting by designation.
romantic relationship ended and the termination of her employment. After the
district court granted partial summary judgment in favor of APL on Russo’s claims
for harassment, discrimination, retaliation, wrongful termination, and
unseaworthiness, a jury returned a defense verdict on Russo’s Jones Act claim for
negligent infliction of emotional distress. On appeal, Russo challenges a jury
instruction on the Jones Act claim and the summary judgment on her other claims.1
We affirm.
1. Even assuming Russo properly objected to the jury instruction concerning
negligent infliction of emotional distress, there was no error. The district court
faithfully articulated the Jones Act zone of danger test set forth by the Supreme Court
in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547 (1994).
2. Russo argues that the district court erred in rejecting her unseaworthiness
claim because she produced no evidence of a “savage and vicious physical attack.”
The court correctly rejected this claim. An unseaworthiness cause of action arises
only if there has been a physical attack that results from the “savage and vicious”
disposition of a member of the crew. See, e.g., Boorus v. W. Coast Trans-Oceanic
S.S. Line, 299 F.2d 893, 894-95 (9th Cir. 1962); see also Boudoin v. Lykes Bros. S.S.
Co., 348 U.S. 336, 339-40 (1955).
1
The district court dismissed Russo’s battery claim for failure to state a claim,
but granted leave to amend. Russo did not amend her complaint, and does not
contest the dismissal on appeal.
2
3. The district court did not err in dismissing Russo’s claims under the
California Fair Employment and Housing Act. California courts presume that the
California legislature “did not intend to give its statutes any extraterritorial effect”
unless “such intention is clearly expressed or reasonably . . . inferred” from the
statute’s text, its purpose, or legislative history. N. Alaska Salmon Co. v. Pillsbury,
162 P. 93, 94 (Cal. 1916). The FEHA contains no such clear evidence of intent. See
Campbell v. Arco Marine, Inc., 50 Cal. Rptr. 2d 626, 633 (Ct. App. 1996).
4. The district court correctly dismissed Russo’s California constitutional
claim for the same reason. “Ordinarily, [r]ules of construction and interpretation
that are applicable when considering statutes are equally applicable in interpreting
constitutional provisions.” Morgan v. Imperial Irrigation Dist., 167 Cal. Rptr. 3d
687, 698 (Ct. App. 2014) (alteration in original) (citation omitted). We find no
indication that the antidiscrimination provision in the California constitution was
intended to apply to employment that occurs predominantly outside of the state on
the high seas.
AFFIRMED.
3