IN RE: the Complaint of D & S MARINE SERVICE (2025)

ORDER

Before the Court is Claimant Javen Lott's Motion to File Claim Against D&S Marine Service, LLC., or Leave to File Amended Answers and Claims.¹ ECF 23. After considering the parties’ briefs, oral argument, and the applicable law, the Court GRANTS Claimant Lott's Motion.

I. Factual and Procedural Background.

Claimant Javen Lott suffered a serious injury to his leg while working as a crewmember aboard the M/V BRIANNA ELIZABETH (the “Vessel”). ECF 1. On August 21, 2024, Lott filed a Jones Act personal injury suit in state court in Harris County, Texas against D&S Marine Service, LLC (“DMS”) and D&S Marine Management, LLC (“DMM”). ECF 23-1 at 2. Both DMS and DMM filed Answers in the state court suit. ECF 23-2; ECF 23-3. DMS and DMM, as Limitation Petitioners, filed their Original Complaint for Exoneration or Limitation of Liability on September 23, 2024. ECF 1. On October 14, 2024, Lott filed two sets of Answers and Claims, but neither set named DMS and both named DMM as the claimant. ECF 8, 9. When Lott filed his Answer and Claims, he filed two identical pleadings against DMM. Id. Approximately two weeks after Lott filed his identical Answer and Claims, the Court entered a Limitations Injunction (ECF 14, 15), putting all potential claimants on notice that the deadline to file claims against the Limitations Petitioners, DMS and DMM, was December 30, 2024. Additionally, the Limitations Injunction stayed Lott's state court suit. ECF 14, 15. At the time the Court set the December 20, 2024, claim deadline, Lott mistakenly believed he had already filed a claim against DMM and DMS. On November 12, 2024, DMM answered both of Lott's Claims, noting in a footnote that Lott had filed two identical claims against DMM. ECF 27 at 3; ECF 16, 17.

On December 31, 2024, DMM and DMS filed Motions for Entry of Default in the Limitation action. DMM's Motion for Default (ECF 21) sought default against all potential claimants, except Lott, who had filed two identical claims against DMM in the Limitation Action. DMS's Motion for Default (ECF 20) sought default against all potential claimants, including Lott. Also on December 31, 2024, Lott filed a Motion to Dissolve the Limitations Injunction. ECF 22. On January 2, 2025, Lott filed a Motion for Leave to File a Claim Against DMS, or Alternatively Leave to File Amended Answers and Claims. ECF 23. On January 21, 2025, DMM filed a Motion to Dismiss under 12(b)(6). ECF 26. Each motion mentioned above was followed by a response in opposition, which was then followed by a reply.

On February 18, 2025, the Court held an Initial Conference in this matter and took up the above-mentioned pending motions. The Court granted DMM's Motion for Entry of Default (ECF 21) and denied Lott's Motion to Dissolve the Limitations Injunction (ECF 22) without prejudice to refiling. ECF 35. During the course of the Initial Conference, it became clear that the Court's ruling on Lott's Motion to File a Claim against DMS (ECF 23) would affect the rulings on the remaining motions. Thus, this Order addresses only the issue of whether Lott may file a late claim, or alternatively, an amended claim naming DMS as Petitioner.

II. Legal Standards.

Supplemental Admiralty Rule F(4) states: “For cause shown, the court may enlarge the time within which claims may be filed.” FRCP SUPP AMC Rule F(4). In Texas Gulf Sulphur, the Fifth Circuit established the framework for how district courts are to apply Supplemental Rule F(4) to determine whether to allow late claims in maritime limitation of liability actions. Texas Gulf Sulphur explained that courts “readily accept the guiding principle ․ that so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims ․ upon a showing of the reasons therefor.” Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 362 (5th Cir. 1963). Thus, courts weigh three factors in determining whether a claimant may file a late claim against a limitation petitioner: (1) whether the proceeding is pending and undetermined, (2) whether granting the motion will adversely affect the rights of the parties, and (3) the claimant's reasons for filing late.” Golnoy Barge Co. v. M/T SHINOUSSA, 980 F.2d 349, 351 (5th Cir. 1993). “Relief from a tardy claim ․ depends on an equitable showing.” Id. (quoting Texas Gulf Sulphur, 313 F.2d at 363). Whether to grant leave to file a late claim is within the sound discretion of the district court. In re Trace Marine Inc., 114 F. App'x 124, 127 (5th Cir. 2004).

III. Analysis.

Lott seeks leave to file a claim against DMS and argues the Texas Gulf Sulphur factors weigh in his favor. Alternatively, Lott argues that he should be permitted to amend his claim under Federal Rule of Civil Procedure 15 to correct the misnomer in one of the two claims that name DMM. DMS argues that Lott has not shown “good cause” for filing a late claim and that the Court should deny him leave to file a claim against DMS. Additionally, DMS contends that Rule 15 does not apply in this maritime action and Lott should not be permitted to amend on that basis.

A. The Texas Gulf Sulphur factors weigh favor of granting leave.

The parties do not dispute that the limitation of liability proceeding is pending and undetermined. Thus, the first factor weighs in favor of granting leave. However, DMS contends that Lott fails to meet the second and third Texas Gulf Sulphur factors because DMS would be prejudiced by Lott's late claim and Lott has failed to show “good cause.” The Court will address the second and third factors in turn.

1. Granting leave will not adversely affect the rights of the parties.

DMS explains that the second factor from Texas Gulf Sulphur instructs courts to determine whether allowing the claim will adversely affect the rights of the parties, not whether disallowing the claim will prejudice the potential claimant. ECF 27 at 6 (citing Texas Gulf Sulphur, 313 F.2d at 362). DMS's position is that Lott is not a party to the limitation action and therefore, the Court should not consider whether denying leave would prejudice Lott. DMS argues instead that the only consideration is whether DMS will be prejudiced. Even assuming DMS's position were correct, granting leave to file a late claim will not prejudice DMS.

The determination of whether a late claim will adversely affect the parties takes several factors into consideration, including the stage of the litigation. For example, in R & B Falcon, then District Judge Engelhardt granted leave to file a late claim, in part because the parties would not be adversely affected. Specifically, Judge Engelhardt noted that not only was the limitation proceeding pending and undetermined, but that “discovery ha[d] been re-opened, and no new trial date ha[d] been set.” In re R & B Falcon Drilling USA, Inc., No. CIV.A. 02-0241, 2003 WL 296535, at *1 (E.D. La. Feb. 10, 2003). Similarly, in High Tide Enterprises, the court, weighing the Texas Gulf Sulphur factors, granted leave to file a late claim. Matter of High Tide Enterprises, Inc., No. 1:23-CV-1494-DII, 2024 WL 1292369, at *4 (W.D. Tex. Mar. 26, 2024). When considering the second factor, the court noted that the limitation petitioner was “already aware of the likelihood that Claimant would file a claim.” Id. The court explained that the limitation petitioner would “not be greatly prejudiced by a claim it already knew about—and which was the reason for initiating the [limitation] action.” Id. Likewise, in Matter of Seacor, the district court granted leave to file a late claim, in part because “No discovery had taken place and the scope of discovery will not significantly differ as a result of the addition of [the claim].” Matter of Seacor Offshore LLC, No. CV H-08-1357, 2008 WL 11473485, at *2 (S.D. Tex. Oct. 3, 2008), report and recommendation adopted sub nom. Matter of SEACOR Offshore LLC, No. CV H-08-1357, 2008 WL 11473480 (S.D. Tex. Oct. 24, 2008).

In contrast to those cases, the Fifth Circuit in Trace Marine concluded the district court had not abused its discretion in denying a motion for leave to file a late claim. Trace Marine, 114 F. App'x at 127. Importantly, the circumstances dictated the district court's finding. The court determined that granting leave would prejudice the parties for several reasons. First, the limitation petitioners had already settled with existing claimants relying on the assumption that additional claimants would be excluded. Id. Second, allowing the late claims to proceed would require a continuance of the previously scheduled trial date. Id. Third, the request to file a late claim came two months before trial and three days before the district court's discovery deadline. Id. In sum, Trace Marine stands for the proposition that how far the litigation has progressed informs and guides the determination of whether a late claim will prejudice the existing parties.

This case is in its infancy. At the time of Lott's Motion (ECF 23), the Court had not held an Initial Conference or issued a Scheduling and Docket Control Order. Notably, Lott sought to file his late claim three days after the December 30, 2024, deadline. ECF 23. Similarly, the parties have yet to take depositions and have otherwise conducted minimal discovery. No party has indicated that additional claimants beyond Lott will seek to file claims.² Additionally, given that this case is in its early stages, there is little concern that the parties’ litigation strategies will be upended by granting leave, and no trial date had been set prior to Lott's motion and the Initial Conference, which was held last week. The only prejudice articulated by DMS is that it will be forced to defend a claim for which it believes it should have no liability. Defending against Lott's claim does not constitute prejudice and DMS's liability cannot be determined at this stage. The stage of this case is similar to those in R & B Falcon, High Tide Enterprises, and Matter of Seacor, but is very different from that in Trace Marine, in which the existing parties had reached settlements and were nearing the trial date. DMS has not shown it will be prejudiced by the granting of Lott's motion for leave.

In addition, the denial of Lott's motion for leave would cause him significant prejudice. Were the Court to deny Lott's late claim, Lott would be precluded from pursing his Jones Act negligence and unseaworthiness claims against DMS.³ DMS argues that Lott could still proceed against DMM, but DMM has filed a Motion to Dismiss, arguing that DMM is neither Lott's employer nor the owner of the Vessel, and therefore not a proper party. ECF 26. If DMM is dismissed and Lott is not granted leave to file a late claim or amend, he will be unable to proceed against either DMS or DMM. Texas Gulf Sulphur teaches that “admiralty is administered with equitable liberality ․”. Texas Gulf Sulphur, 313 F.2d at 362. The Court finds the second Texas Gulf Sulphur factor weighs in Lott's favor.

2. Lott has shown good cause for his late filing.

DMS argues that Lott cannot show “good cause” for missing the claim deadline, and that fact is fatal to his motion even if the first two factors weigh in Lott's favor. Essentially DMS argues that good cause is a threshold issue that must be met before the other Texas Gulf Sulphur factors can be considered. Lott, on the other hand, contends that a claimant demonstrates “good cause” when, on a holistic basis, the Texas Gulf Sulphur factors weigh in the claimant's favor. Whether good cause is a threshold issue or simply one of the Texas Gulf Sulphur factors to be considered holistically, the Court finds Lott has shown good cause.

Supplemental Rule F(4) permits courts to extend the deadline for claims for “cause shown.” FRCP SUPP AMC RULE F(4). The Fifth Circuit interprets the Supplemental Rule to mean that a court may extend the deadline for “good cause shown.” Trace Marine, 114 F. App'x at 126–27. Additionally, “While permission to file late is subject to an equitable analysis of the [Texas Gulf Sulphur] factors, [Fifth Circuit] precedent clearly requires that late files demonstrate their reasons with evidence.” In re River City Towing Services, Inc., 420 F.3d 385, 388 (5th Cir. 2005).

a. Lott has presented good cause.

Assuming DMS correctly argues that good cause must be shown before the other Texas Gulf Sulphur factors can be considered, the Court finds that Lott has met the threshold for good cause. Lott has provided evidence in the form of an affidavit from counsel identifying the reasons for missing the deadline. ECF 29-1. The affidavit demonstrates that Lott's counsel intended to file one claim against DMS and one against DMM, just as he had when filing the state court suit. Id.

Next, the Court applies equitable principles to determine whether Lott's reasons for his untimely filing support a finding of “good cause.” See River City Towing, 420 F.3d at 388 (“permission to file late is subject to an equitable analysis of these factors ․”). Several cases are worthy of discussion. First, DMS points to Golnoy Barge, where the court denied claimants’ motion for leave after determining that counsel's mistake was not good cause to satisfy the equity test in Texas Gulf Sulphur. Golnoy Barge Co. v. M/T Shinoussa, 841 F. Supp. 787, 790 (S.D. Tex. 1993). As the court explained, “negligence on the part of legal counsel in failing to timely prosecute a claim is not good cause for permitting a late claim.” Id. Notably, in that case, counsel for the claimants wholly failed to file a claim within the deadline. Id. That is not the case here. Lott did file a claim—in fact two identical claims naming the same limitation petitioner—before the deadline. ECF 8, 9. Unlike counsel's inadvertence in Golnoy Barge, Lott's counsel committed a scrivener's error by naming the same entity in two claims as opposed to failing to file a claim altogether.

DMS then directs the Court to Plaquemine Point where the court denied leave to claimants who, like Lott, were also represented by Arnold and Itkin, LLP. Plaquemine Point Shipyard, LLC v. Kirby Inland Marine, LP, 472 F. Supp. 3d 313 (E.D. La. 2020). In Plaquemine Point, the court denied claimants’ request for leave one month after the deadline after finding all three factors weighed against the claimants. Id. at 315–18. First, the court noted that certain claimants had already settled, while other claimants were in settlement negotiations with limitations petitioners. Id. at 316. For the same reason, the court found that granting leave would prejudice the existing parties. Id. Finally, the court found claimants’ reasons for missing the deadline—a calendaring error—failed to meet the standard of “good cause.” Id. The court concluded the calendaring error failed to establish “good cause” and that claimants had presented no other reason for missing the deadline. Id. at 317. Again, Plaquemine Point differs from this case. To begin with, as noted above, the first two factors weigh heavily in favor of Lott. More importantly, Lott's counsel did not utterly fail to file a claim by the deadline.

The reasons for Lott's failure to correctly file a claim more closely resemble those at issue in Matter of High Tide. In Matter of High Tide, the claimant's reason for not filing a timely claim was that “she believed that she already had put limitation petitioner on notice of her claim.” Matter of High Tide Enterprises, Inc., 2024 WL 1292369, at *4. When she received notice of the limitation petitioners’ entry of default, she filed for leave to amend the same day, and only three weeks after the claim deadline. Id. Lott mistakenly believed he had already filed claims against both DMM and DMS, but due to a scrivener's error, he had filed only against DMM. ECF 23 at 7. Once DMS and DMM filed for entry of default, Lott moved for leave to file a claim against DMS within two days, and only three days after the claim deadline. Id. at 1. Lott's amended claim will merely change the name “DMM” to “DMS” on one of the identical DMM claims and will not introduce any new issues or claimants. Under an equitable analysis, granting Lott leave to file a claim is proper.

DMS, however, argues that Lott committed more inadvertence than a scrivener's error. When DMM answered Lott's identical claims, it filed identical Answers (ECF 16, 17) to Lott's identical claims and included the following footnote:

Claimant Javen Lott filed two “Answer and Claims of Javen Lott”, asserting claims against [DMM] which appear to be mirror images of each other. Docs. 8 & 9. Out of an abundance of caution, [DMM] has Answered both Claims.

ECF 16 at 1 n.1; ECF 17 at 1 n.1. DMS is correct that Lott's counsel is charged with knowledge of an opponent's statements in pleadings. However, under these particular circumstances, the Court finds counsel's failure to recognize his scrivener's error by reading a footnote in the limitation petitioner's answer prior to the claim deadline does not, in and of itself, negate good cause. Moreover, counsel's swift correction of the error, only two days after DMS's Motion for Default, and three days after the claim deadline supports a finding of good cause.

b. Lott prevails under the holistic approach to Texas Gulf Sulphur.

In contrast to DMS, Lott argues that Texas Gulf Sulphur directs courts to consider and holistically balance all three factors to determine whether a claimant has shown good cause. Several cases support this approach. As noted above, in R & B Falcon, Judge Engelhardt granted leave even though the claimants’ reasons for filing late were “far from compelling.” R & B Falcon, 2003 WL 296535, at *1. Finding the claimants had satisfied the first and second factors, Judge Engelhardt granted leave even though he found claimants failed to satisfy the third factor (the reasons for the late filing) set forth in Texas Gulf Sulphur, writing that “the court nonetheless finds that the equities weigh in favor of allowing the claim.” Id. Other courts have reached similar conclusions following the approach set forth in R & B Falcon. See Cornerstone Chem. Co. v. NOMADIC MILDE M/V, No. CV 20-1411, 2020 WL 4540336, at *2 (E.D. La. Aug. 6, 2020) (“Accordingly, the Court concludes that the ‘balance of the equities’ tips in favor of allowing late filing in this case.”); See also Crescent Towing & Salvage Co. v. M/V JALMA TOPIC, No. CV 21-1331, 2021 WL 5919505, at *2 (E.D. La. Dec. 15, 2021) (“․ the Court finds the balance of equities weighs in favor of allowing Schouest to file a late claim.”); In re Mains, No. CIV.A. 15-13, 2015 WL 6159137, at *2 (E.D. La. Oct. 20, 2015) (“Considering all of the evidence and a balancing of equities, the Court finds that Deitz should be permitted to proceed with his late-filed claim.”).

Meanwhile, the court's denial of leave in Bully 1 is explained by the fact that the court determined the first and second Texas Gulf Sulphur factors weighed against granting leave, in addition to the finding that the reasons for missing the deadline were unconvincing. In re Bully 1 (Switzerland) GmbH, No. CV 22-0566, 2023 WL 7207482, at *3–5 (W.D. La. Oct. 10, 2023), report and recommendation adopted, No. CV 22-0566, 2023 WL 7196452 (W.D. La. Nov. 1, 2023). Thus, the court appears to have weighed each factor in order to determine that claimant had failed to show good cause. Id. The court agrees with this approach because the Texas Gulf Sulphur framework is a three-factor, equitable analysis. Similarly, in Matter of Stokes, the district court denied leave after balancing each of the factors. Matter of Stokes, No. CV 16-14570, 2017 WL 6454430, at *2 (E.D. La. Sept. 28, 2017). The court then denied leave “because Abe's Boat Rentals would be prejudiced if [claimants] were allowed to file late claims, and [claimants] have not shown good cause for their failure to timely file claims.” Id.

To further support its position, DMS directs the Court to cases in which Lott's counsel represented the parties who were denied leave to file a claim. ECF 27 at 11–12. DMS appears to argue that based on counsel's past conduct, the Court should deny Lott leave to file a late claim. First, counsel's conduct in other cases is not at issue here. Second, counsel's conduct in those cases differs from its conduct here. In Bully 1, counsel sought leave to file a claim twenty months after the action commenced. Bully 1, 2023 WL 7207482, at *2. More importantly, the limitation petitioners had shaped their litigation strategy with the expectation that there were no additional claims given the fact that sixteen months had passed since the limitations deadline. Id. at *1–3. Significantly, and unlike this case, the limitation petitioners had emailed the claimant six times inquiring about whether he would file a claim. Id. at *1. In Matter of Stokes, the claimants sought to file their claims nine months after the deadline. Matter of Stokes, 2017 WL 6454430, at *1–2. Here, Lott sought leave two days after DMS and DMM filed for entry of default, and three days after the deadline. Additionally, DMS and DMM did not email Lott's counsel to inquire as to whether Lott intended to file a claim against DMS. Instead, they placed a footnote in DMM's answer noting that Lott had filed identical claims against the same limitation petitioner. Given that the Court held the Initial Conference just a few days ago, no evidence before the court suggests that litigation strategies would be upended by Lott's late claim.

Under Texas Gulf Sulphur’s equitable standards, “late filing is often permitted.” Texas Gulf Sulphur, 313 F.2d at 363. Applying those standards here, Lott has made an equitable showing. Thus, the equitable result is to permit Lott to correct his scrivener's error and file a claim against DMS.

B. Alternatively, Lott's Amended Answer and Claims relate back under Rule 15(c).

In the alternative, Lott seeks to amend the second, identical claim filed against DMM (ECF 9) by replacing the name DMS for DMM. DMS argues that Lott cannot amend under Rule 15 because Supplemental Rule F(4) controls. Secondarily, DMS argues that even if Lott could amend, Rule 16, not Rule 15, would apply and Lott has failed to show the requisite “good cause.” Lott argues that he merely seeks to fix the identity of a party, which is permitted under Rule 15(c).

As an initial matter, Rule 16, which requires good cause to amend a court's scheduling order, does not apply here. See Fed. R. Civ. P. 16(b)(4) (stating “a schedule may be modified only for good cause and with the judge's consent.”). At the time Lott filed his motion for leave to amend (ECF 23), the Court had yet to hold the Initial Conference or issue a Scheduling Order. Moreover, Lott does not seek to amend the Court's Scheduling Order. DMS's argument with respect to Rule 16 is misplaced.

The Supplemental Rules for Admiralty or Maritime Claims and the Federal Rules of Civil Procedure apply equally in admiralty cases except where the two are inconsistent. FRCP SUPP AMC Rule A(2). When the two are inconsistent, the Supplemental Rules prevail. Id. Supplemental Rule F(4) allows the Court to enlarge the time in which claims may be filed. FRCP SUPP AMC Rule F(4). In other words, Supplemental Rule F(4) governs whether new, late claims may be filed after the deadline. By contrast, Rule 15 governs whether a party may amend an existing pleading. See Fed. R. Civ. P. 15. River City Towing illustrates the difference. In that case, the attorney for the existing claimants sought, on nine separate occasions, to add additional claimants after the claim deadline. River City Towing, 420 F.3d at 387. The attorney filed a motion to amend his existing claims and add the new claimants. Id. The court, however, “correctly” treated the motion to amend to add new claimants as a motion for leave to file late claims. Id. In other words, the court applied Supplemental Rule F(4) because the additional claimants, procedurally, could not have sought to amend under Rule 15 because they lacked a pleading to amend in the first place.

Here, Lott seeks to amend an existing pleading—the doubly-filed Answer and Claims against DMM. ECF 9. There is no need for the Court to enlarge the time for which to file a claim under Supplemental Rule F(4) because Lott has already filed two, timely claims, one of which includes a misnomer. There is no conflict between Supplemental Rule F(4) and Rule 15 under these circumstances.

Under Rule 15, an amendment to a pleading relates back to the date of the original pleading when:

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Fed. R. Civ. P. 15(c)(1)(C). With respect to Rule 15(c)(1)(C)(ii), the question is “whether the defendant knew or should have known” it would have been named as a defendant but for an error. Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) (emphasis in original). In other words, courts look to “what the prospective defendant reasonably should have understood about the Plaintiff's intent in filing the original complaint against the first defendant.” Id. at 554, 130 S.Ct. 2485.

For at least two reasons DMS, the party to be brought in by amendment knew or should have known it would have been named but for Lott's error. First, Lott filed claims against DMS and DMM in state court and both entities answered. ECF 23-2; ECF 23-3. The state court suit is what caused DMS and DMM to file a limitation of liability suit in federal court. Second, counsel for DMS and DMM recognized that Lott had misnamed the party in one of the claims filed in this suit, as evidenced by the footnotes in DMM's two answers. ECF 16 at 1 n.1; ECF 17 at 1 n.1. It is inconceivable that DMS did not have notice of Lott's claims.

The Fifth Circuit “takes a sensible approach to reading a complaint so that suits may be maintained regardless of technical pleading errors.” Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010). The purpose of Rule 15(c) is to “help, not hinder, persons who have a legal right to bring their problems before the court.” Id. “Conducting a side-by-side comparison of Lott's Original Answer and Claims (ECF 9) and Lott's Amended Answers and Claims (ECF 33), [the Court] note[s] that the only modification between the original and the amended [pleadings] is the substitution of the word [‘Service’] for [‘Management’].” Id. Therefore, the Court finds that Lott's Amendment (ECF 33) relates back to his timely filed Answers and Claims (ECF 9).

IV. Conclusion and Order.

For the reasons stated above, the Court RECOMMENDS that Claimant Javen Lott's Motion to File Claim Against Petitioner D&S Marine Service, L.L.C. or, Alternatively Leave to File Amended Answer and Claims (ECF 23) be GRANTED.

FOOTNOTES

1.   The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. ECF 11.

2.   DMS alleges that Lott purchased International Terminals Company, LLC's claim, which owned the dock involved in Lott's injury. ECF 27 at 9. That issue is not before the Court.

3.   As Lott notes, he could still proceed with his maintenance and cure claim against DMS in state court. ECF 29 at 4 (citing Brister v. A.W.I., Inc., 946 F.2d 350, 361 (5th Cir. 1991) (“As both parties agree, a shipowner cannot limit its liability for maintenance and cure.”)).

Christina A. Bryan, United States Magistrate Judge