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November 3, 2004.

STATE STREET BANK & TRUST CO. as Owner Trustee, HURON LEASING, LLC, U.S. SHIP MANAGEMENT, INC., MAERSK, INC., MAERSK LINE LIMITED d/b/a Maersk Sealand, and the MV SEA-LAND ACHIEVER, her engines, tackle, gear, appurtenances, etc., Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Walter and Dorothy Radut are suing U.S. Ship Management, Inc. ("USSM"), owner of the MV Sea-Land Achiever (the "Achiever"), on various claims arising out of injuries sustained by Walter Radut while working on the Achiever.*fn1 The Raduts allege both admiralty jurisdiction pursuant to 28 U.S.C. § 1333 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. USSM now moves for summary judgment on the Raduts' claim for unseaworthiness, arguing that because Walter Radut was not a seaman he is not entitled to pursue such a claim. Additionally, USSM moves to dismiss the Raduts' claims alleging non-pecuniary damages — specifically Walter Radut's claim for punitive damages, and Dorothy Radut's claim for loss of consortium.


  Walter Radut, a marine corrosion and coatings specialist, was retained by USSM in September 2000, as an independent contractor, to perform a "steel and coating survey" on three of USSM's vessels, beginning with the Achiever.*fn3 Radut boarded the Achiever in Houston and went to sea on September 29, 2000.*fn4 The work on the Achiever was to be carried out while the ship was at sea, in normal service. It was not unusual for Radut to do his work while ships were at sea.*fn5 Radut's job was to inspect the Achiever's tanks and other spaces for corrosion, and to prepare a specification for repairs to be carried out at a later time.*fn6

  Radut has half a century of experience in marine corrosion. He started his own company, W.H. Radut Associates, to carry out corrosion surveys, in 1983.*fn7 While on board the Achiever, although he relied on the crew to guide him to specific areas of the ship, he worked according to his own standards.*fn8 He testified that he was not required to follow orders, and that he could have refused to perform his duties if he believed that conditions were unsafe.*fn9 He did not sign seamen's articles, and was not a member of the vessel's crew; his designation aboard ship was as a "supernumerary."*fn10 However, he was provided with food and sleeping quarters alongside the ship's crew.*fn11

  On October 2, 2004, the Achiever arrived in Freeport, in the Bahamas. On the morning of October 3, at 7:00 a.m., the Achiever departed Freeport for Charleston, South Carolina, where Radut was to disembark.*fn12 At 11:30 a.m. on October 3, while the Achiever was on the high seas, Radut "fell through an unlighted and unguarded opening in the deck falling approximately 20 feet to a steel deck below, as a result of which he sustained multiple fractures. . . ."*fn13 Radut alleges that his accident was a result of the Achiever's unseaworthy condition, and of USSM's negligence.*fn14


  A. Summary Judgment

  Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R. Civ. P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn15 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn16

  The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn17 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn18 and it must "come forward with `specific facts showing that there is a genuine issue for trial.'"*fn19 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn20 However, "[w]hile all factual ambiguities must be resolved in favor of the nonmoving party, the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation."*fn21

  When one party has moved for summary judgment, a court may grant summary judgment in favor of the non-moving party "provided that party has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried."*fn22 "[I]t is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had [the non-moving party] made a cross-motion for summary judgment."*fn23 A court is not required to give notice of its intention to grant summary judgment sua sponte, because when one party has moved for summary judgment "the parties are . . . on notice that ultimate issues are before the court."*fn24 The practice of granting summary judgment sua sponte without notice is generally disfavored, but may be appropriate where it is clear that the moving party will not be procedurally prejudiced.*fn25

A party is procedurally prejudiced if it is surprised by the district court's action and that surprise results in that party's failure to present evidence in support of its position. . . . If, however, the party either cannot claim to have been surprised by the district court's action or if, notwithstanding its surprise, the party had no additional evidence to bring, it cannot plausibly argue that it was prejudiced by lack of notice. "The threat of procedural prejudice is greatly diminished if the court's sua sponte determination is based on issues raised by the moving party."*fn26
B. Motion to Dismiss
  A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief."*fn27 At the motion to dismiss stage, the issue "is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleading that a recovery is very remote and unlikely, but that is not the test."*fn28

  A complaint need not state the legal theory, facts, or elements underlying the claim except in certain instances. Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, "a complaint must include only `a short and plain statement of the claim showing that the pleader is entitled to relief.'"*fn29 The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof."*fn30 When deciding a ...

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