                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                        F I L E D
                               In the                                  September 19, 2006
          United States Court of Appeals                         Charles R. Fulbruge III
                     for the Fifth Circuit                               Clerk
                         _______________

                           m 06-40255
                         Summary Calendar
                         _______________




               ROY MUDRICK; CAROL MUDRICK,

                                              Plaintiffs-Appellants,

                              VERSUS

CROSS SERVICES INC.; CROSS LOGISTICS INC.; CROSS RENTALS INC.;
                       SES BOATS INC.,
            FORMERLY KNOWN AS CROSS EQUIPMENT LTD.;
                 THE INVESTMENT GROUP INC.,
            FORMERLY KNOWN AS CROSS EQUIPMENT INC.;
            CROSS ARMATURE AND ELECTRIC INC.;
        CROSS EQUIPMENT INC.; CROSS EQUIPMENT LTD.,

                                              Defendants-Appellees.



                   _________________________

             Appeal from the United States District Court
                 for the Southern District of Texas
                          m 3:04-CV-593
               ______________________________
Before SMITH, WIENER, and OWEN,                                took place on navigable water and injury to a
  Circuit Judges.                                              Jones Act Seaman has a potentially disruptive
                                                               effect on maritime commerce. See Scarbor-
JERRY E. SMITH, Circuit Judge:*                                ough v. Clemco Indus., 391 F.3d 660, 665
                                                               (5th Cir. 2004); Jerome B. Grubart, Inc. v.
   Roy and Carol Mudrick appeal a summary                      Great Lakes Dredge & Dock Co., 513 U.S.
judgment determining that their decedent was                   527, 534 (1995). The court concluded, on
a Jones Act seaman and a ruling that federal                   the basis of Scarborough, 391 F.3d at 668,
maritime law bars recovery. For the reasons                    that the survivors of a Jones Act seaman
stated below, we vacate and remand..                           cannot recover non-pecuniary damages from
                                                               non-employer third-parties. Accordingly, the
                        I.                                     court dismissed the claims with prejudice.
    Plaintiffs’ son, Jonathan Mudrick, was fa-
tally wounded when he was struck on the head                                         II.
by a steel anchor cable while working aboard                      We review a summary judgment de novo.
a barge in Nikishi Bay, Alaska. His widow,                     Lee v. Wal-Mart Stores, Inc., 34 F.3d 285,
acting on behalf of herself, her children, and                 288 (5th Cir. 1994). We conclude that the
the estate, negotiated a mediated settlement of                district court did not apply the correct legal
$2,900,000.00 with Mudrick’s employer,                         standard governing summary judgment on an
Cook Inlet Spill Prevention and Response, Inc.                 issue as to which the moving party bears the
Both parties to the settlement agreed that, for                burden of proof.
purposes of the mediation, Mudrick was a
Jones Act seaman.                                                  Summary judgment is appropriate where
                                                               there is no genuine issue of material fact and
    The Mudricks sued under the Texas                          the moving party is entitled to judgment as a
Wrongful Death Act, alleging negligence,                       matter of law. See FED. R. CIV. P. 56(c). The
strict liability, and breach of warranty. Defen-               district court applied the standard in Celotex v.
dants manufactured the stern anchor winch                      Catrett, 477 U.S. 317, 323 (1986), under
that Mudrick was operating at the time of his                  which, in the district court’s words, “[t]he par-
death. The Mudricks seek only non-pecuniary                    ty moving for summary judgment bears the ini-
damages.                                                       tial burden of ‘informing the district court of
                                                               the basis for its motion, and identifying those
   Defendants moved for the application of                     portions of [the record] which it believes dem-
federal maritime law and for summary judg-                     onstrate the absence of a genuine issue of
ment that the decedent was a Jones Act sea-                    material fact’” (quoting Celotex, 477 U.S. at
man. The district court granted the motion,                    323). The non-movant must then present
finding that Mudrick was a Jones Act seaman                    “specific facts showing there is a genuine issue
as a matter of law. The court ruled that fed-                  for trial.” FED. R. CIV. P. 56(e).
eral maritime law applies because the injury
                                                                  The Celotex standard, however, is appro-
                                                               priate only where, as in that case, the non-
   *
      Pursuant to 5TH CIR. R. 47.5, the court has deter-       moving party bears the burden of proof on the
mined that this opinion should not be published and is         issue that the moving party seeks to have de-
not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.                               termined through summary judgment. Here,

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because defendants seek legal benefit from a             summary judgment that we have stated above.
determination that Mudrick was a Jones Act               The court provided sparse discussion of plain-
Seaman, they bear the burden of proof on that            tiffs’ objections to the accuracy of decedent’s
issue. See Bernard v. Binnings Constr. Co.,              timesheets and gave no explanation (other than
741 F.2d 824, 827 (5th Cir. 1984). Thus, to              pointing out that 32% exceeded the minimum
obtain summary judgment, defendants cannot               threshold to be determined a Jones Act sea-
force plaintiffs to come forward with “specific          man) to support its determination that, under
facts showing there [is] a genuine issue for             the circumstances of this case, the percentage
trial” merely by pointing to parts of the record         of time decedent spent working in connection
that defendants believe illustrate the absence of        with a vessel was enough to establish conclu-
a genuine issue of material fact. Instead,               sively his status under the second criterion.
defendants must establish, as a matter of law,
all essential elements of their defense before               We VACATE the summary judgment and
plaintiffs can be obligated to bring forward any         remand for reconsideration. Because the dis-
specific facts alleged to rebut defendants’ case.        trict court’s application of federal maritime
See Chaplin v. Nations Credit Corp., 307 F.3d            law and its dismissal of plaintiffs’ claims are
368, 372 (5th Cir. 2002).                                predicated on its finding that Mudrick was a
                                                         Jones Act seaman as a matter of law, we
    It is uncertain how consideration of defen-          VACATE these orders as well and remand for
dants’ motion under this more stringent stan-            further proceedings as needed.
dard would have affected the district court’s
decision. The court applied the Supreme
Court’s two criteria for determining whether
someone is a Jones Act seaman. First, “the
worker’s duties must contribute to the func-
tion of the vessel or to the accomplishment of
its mission.” Chandris, Inc. v. Latsis, 515
U.S. 347, 376 (1995). Second, “the worker
must have a connection to a vessel in naviga-
tion (or an identifiable fleet of vessels) that is
substantial in terms of both its duration and its
nature.” Id. Notwithstanding the district
court’s citation of Celotex, it appears from its
discussion of the first requirement that it be-
lieved that the defendants had proved as a mat-
ter of law that Mudrick had satisfied the first
criterion and that this showing had been insuf-
ficiently rebutted by plaintiffs.

   It is less obvious, however, whether the
court would have come to a similar conclusion
with respect to the second criterion, the dura-
tion of Mudrick’s connection to a vessel in
navigation, had it applied the standard for

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