Lay v. Hixon

JOHN JOSHUA LAY, Plaintiff,

v.SCOTT D. HIXON, et al., Defendants.

CIVIL ACTION 09-0075-WS-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Date: May 30, 2012

ORDER

This action comes before the Court on Defendants' Motion for Summary Judgment (doc. 86), Plaintiff's Motion to Strike (doc. 91), Plaintiff's Motion for Leave to File Sur-Reply (doc. 98), and Plaintiff's Motion to Certify Question to Alabama Supreme Court (doc. 99). These Motions are now ripe for disposition.

I. Relevant Background.¹

On or about August 26, 2008, a 40-foot homemade barge with an attached yellow Pittman crane (the "Barge") went missing from its moorage at Long Bayou near the Intracoastal Waterway in Orange Beach, Alabama. The barge was owned by defendant Gulf Bay Marine Construction, LLC ("Gulf Bay"), an Alabama limited liability company boasting defendant Scott D. Hixon as its lone member.² Approximately two days later, plaintiff John Joshua Lay calledHixon, indicated that Lay was in possession of the Barge, and demanded a "recovery fee" of $9,000. (Doc. 94, at Exh. 3.) In lieu of paying or negotiating with Lay, Hixon contacted the Marine Police Division of the Alabama Department of Conservation & Natural Resources. (Id.) In November 2008, a Baldwin County Circuit Court grand jury handed down an indictment charging Lay with one count of theft of property in the first degree, arising from this incident.³ Criminal proceedings styled State of Alabama v. John Joshua Lay, Case No. CC-08-3181 (the "Criminal Action"), took place in Baldwin County for more than three years.

On January 23, 2012, the State of Alabama filed a "Notice of Restitution" in the Criminal Action. As amended, the Notice requested that restitution be ordered in favor of Hixon (who is listed as "victim" in the Notice) in the amount of $2,500, and indicated the State's position that "[t]his case will be nolle prossed upon payment of restitution and court costs." (Doc. 89, Exhs. C, F, G.) On January 25, 2012, Circuit Judge Partin entered an Order of Restitution, providing that Lay "is hereby ordered to pay restitution to the victims through the Clerk of Court" in the amount of $2,500 to Hixon. (Doc. 89, Exh. D.) The Order of Restitution further stated that Lay "has thirty (30) days from the date of this Order to object to the restitution amount entered in this case," in which event "the Court will set a hearing on this matter." (Id.) The record reflects that Lay did not object, but instead paid the restitution amount in full by no later than February 6, 2012. (Doc. 89, Exh. E.)⁴

The Criminal Action did not happen in a vacuum. Even as he was being prosecuted in state court for allegedly stealing the Barge, Lay initiated a civil action against Hixon and Gulf Bay in this District Court in February 2009 to recover a salvage award for that Barge. The FirstAmended Complaint alleged that Lay "discovered the said Barge floating adrift at Long Bayou," that he "secured the Barge at a public boat ramp" to prevent it from causing damage, that he hired movers to secure the Barge at his address in Elberta, Alabama, and that he engaged in good-faith efforts to locate the Barge's owner and claim a salvage award. (See doc. 7, ¶¶ 6-9.) The pleadings confirm that Lay seeks a salvage award "under the general maritime law of the United States based on Plaintiff's successful actions in securing and safe keeping the adrift barge." (Id., ¶ 20.)⁵

Defendants now seek summary judgment on the maritime salvage claim that represents the sole cause of action joined herein.

II. Summary Judgment Standard.

Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). "Summary judgment is justified only for those cases devoid of any need for factualdeterminations." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).

III. Analysis.

Although there is some confusion in the briefing, defendants' Motion for Summary Judgment is confined to a single, discrete argument. Specifically, defendants contend that Lay is judicially estopped from recovering a salvage award against Gulf Bay and Hixon herein because of his position in the Criminal Action. That issue, and that issue alone, is before the Court on the pending Rule 56 Motion.⁶

"The purpose of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from changing positions according to the exigencies of the moment." Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (citation and internal quotation marks omitted); see also City of Riviera Beach v. That Certain Unnamed Gray, Two Story Vessel Approximately Fifty-Seven Feet in Length, 649 F.3d 1259, 1273 (11th Cir. 2011) ("Judicial estoppel is designed to prevent parties from making a mockery of justice by inconsistent pleadings.") (citation and internal quotation marks omitted). The decision to invoke this equitable doctrine is vested in the discretion of the trial court to safeguard the integrity of the judicial process. See Stephens v. Tolbert, 471 F.3d 1173, 1177 (11th Cir. 2006); Transamerica Leasing, Inc. v. Institute of London Underwriters, 430 F.3d 1326, 1335 (11th Cir. 2005).⁷

In applying this doctrine, courts have recognized that "the circumstances under which a court might invoke judicial estoppel will vary." Robinson, 595 F.3d at 1273; see also Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002) (indicating that enumerated factors "are not inflexible, or exhaustive; rather, courts must always give due consideration to all of the circumstances of a particular case" when considering whether judicial estoppel applies). Nonetheless, "three factors typically inform the decision: (1) whether the present position is clearly inconsistent with the earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position so that judicial acceptance of the inconsistent position in a later proceeding would create the perception that either first or second court was mislead and; (3) whether the party advancing the inconsistent position would derive an unfair advantage." Robinson, 595 F.3d at 1273 (citation omitted). "The first factor is crucial; without inconsistency there is no basis for judicial estoppel and no reason even to reach the other two factors." City of Riviera Beach, 649 F.3d at 1273; see also Transamerica Leasing, 430 F.3d at 1336 n.8 (recognizing that "doctrine of judicial estoppel ... only applies to a party that actually made a prior inconsistent statement"). And many courts have insisted on the presence of a clear inconsistency, rather than one that is merely potential, theoretical, debatable, or colorable. See Robinson, 595 F.3d at 1273.⁸

The requirement that there be a clear inconsistency proves to be an insuperable obstacle here. To recap, Lay is pursuing this civil action for a salvage award against Hixon and Gulf Bay for purportedly rescuing their Barge from maritime peril in August 2008. Obviously, no salvage award is owed to one who steals a vessel, thereby creating the very peril from which he "rescues" it.⁹ In the Criminal Action, Lay was prosecuted by the State of Alabama for a charge of property theft, first degree, based on allegations that he had knowingly obtained or exerted unauthorized control over the Barge. Importantly, Lay neither entered a plea of guilty nor admitted wrongdoing or bad-faith conduct with respect to the Barge in that case. Just as he denied guilt in the Criminal Action, Lay maintains here that he is entitled to a salvage award (which he would be eligible to receive only if his conduct with respect to the Barge were lawful and in good faith). There is no inconsistency (much less a clear inconsistency) between Lay's denial of guilt in the Criminal Action and his claim for a salvage award in this case.

Notwithstanding the foregoing, defendants' theory is that an inconsistency arises from Lay's payment of restitution in the Criminal Action. In particular, defendants assert that "Plaintiff Lay in this case is necessarily taking an inconsistent position by seeking to recover a salvage award for the very barge for which he previously paid restitution in the criminal action." (Doc. 87, at 4-5.) But the Court perceives no fundamental inconsistency in Lay's position. In the Criminal Action, Lay never agreed that he owed restitution for the Barge; indeed, the record presented here is devoid of any formal agreement or admission by Lay on this point. There isnothing to indicate why the State of Alabama filed the Notice of Restitution or why prosecutors were willing to nolle prosse the indictment if Lay paid restitution. It would be both speculative and...