Michael W. Flanigan, ABA #7710114 FLANIGAN & BATAILLE 1029 W. 3rd Ave., Ste.

250 Anchorage, Alaska, 99501 Telephone: (907)-279-9999 Facsimile: (907) 258-3804 E-Mail: mflanigan@farnorthlaw.com IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA SALVADOR PANTOJA RAMIREZ, as Personal Representative of the ESTATES OF ROBERTO RAMIREZ-PACHECO, AVELINO GARCIA OROPEZA and RAMON VALDIVIA ISIORDIA; and JORGE DAVID SANDOVAL MUNOZ, as Personal Representative of the Estates of JOSE ANGEL SANDOVAL and JOSE GERALDO RIVERA SANDOVAL,
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

) ) ) ) ) 3:12-cv-_______[ ) ) ) ) ) Plaintiffs, ) ) vs. ) ) PACIFIC ALASKA SHELLFISH, INC. ; ) DULCICH, INC. ; and FRANK D. DULCICH, ) ) ) Defendants, ) ________________________________________ ) COMPLAINT

FLANIGAN & BATAILLE

Comes now the Plaintiffs, by and through counsel, and for their Complaint against the Defendants, state and allege as follows:
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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JURISDICTIONAL STATEMENT 1. This is an action for personal injury and wrongful death, arising out of drowning and/or hypothermia deaths of Plaintiffs decedents, which occurred on 5/17/11 in Cook Inlet, near Kalgin Island, Alaska. This Court has personal and subject matter jurisdiction under 28 USC 1331; 28 USC 1332; 28 USC 1333, 33 USC 905(b), 46 USC 688 and the pendent jurisdiction of the court. IDENTITY OF THE PARTIES. 2. Plaintiff Salvador Pantoja Ramirez, is the duly appointed personal representative of the Estates of Roberto Ramirez-Pacheco, Avelino Garcia Oropeza and Ramon Valdivia Isiordia. 3. Plaintiff Jorge David Sandoval Munoz, is the duly appointed personal
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

representative of the Estates of Jose Angel Sandoval and Jose Geraldo Rivera Sandoval. 4. The Plaintiffs decedents were all residing in the State of Alaska at the time of their injury and death complained of in this case. 5. Defendant, Pacific Alaska Shellfish, Inc. is an Alaskan Corporation engaged in the business obtaining, processing and selling shellfish from Alaska Coastal waters and tidelands. Its principal office is located in Oregon.

FLANIGAN & BATAILLE

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6. Defendant, Dulcich, Inc. is an Oregon Corporation which is listed on Alaska corporate records as the 100 percent shareholder of Alaska Shellfish, Inc., which it owns, controls and operates. 7. Frank D. Dulcich, a resident of Oregon, is the President, Director and Treasurer of Pacific Alaska Shellfish, Inc.; the President of Dulich Inc.; and on information and belief the President of Pacific Seafood Group. 8. The board of directors and officers of Ducich Inc. and Pacific Alaska Shellfish Inc. are interlocked and identical or nearly identical so that in actuality they act as one entity. 9. Through his position, Frank Dulcich exercises financial and overall control of Ducich Inc. and Pacific Alaska Shellfish Inc.
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

GENERAL ALLEGATIONS 10. Plaintiffs reallege all previous allegations. 11. Prior to May 15, 2011, the Plaintiffs decedents worked as clam diggers for Pacific Alaska Shellfish, Inc. at remote beach sites in Cook Inlet, in Alaska. 12. The decedents and other men were recruited for this work by an agent of Pacific Alaska Shellfish, Inc., who also worked for the company at the remote site.

FLANIGAN & BATAILLE

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13. Decedents and the other men, were flown to a remote beach camp site by Pacific Alaska Shellfish, Inc. and placed under the supervision of employees of Pacific Alaska Shellfish, Inc. 14. There, the men were divided into teams to man boats owned by Alaska Pacific Shellfish, Inc. and told which beach sites each skift and its team would work to harvest clams on any given day. 15. The men were instructed to motor the skifts to the selected beach sites on the waters of Cook Inlet, Alaska and then to harvest clams, place them in sacks or containers, load them on the skifts and then to motor the boats back to camp. 16. The paths of the skifts as instructed by Pacific Alaska Shellfish Inc. employees often took the men far out into Cook Inlet, placing the men in the
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

perils of the sea, should any mishap occur. 17. The decedents were paid by the pound for the clams they harvested and had no right or opportunity to sell the claims to any other party. 18. All of the equipment on board the skifts was furnished by Pacific Alaska Shellfish, Inc. 19. The equipment provided aboard the skifts was inadequate for the use and dangers involved in the work. Survival suits were not among the provided gear, although Pacific Alaska Shellfish Inc., officials were well aware that
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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given the temperature of the waters of Cook Inlet, life jackets provided little protection if the skifts capsized or sunk at any appreciable distance from shore. 20. None of the decedents or any other men recruited for this work were given instruction in piloting skifts in ocean waters with or without cargo on board, water safety rules applicable to Alaska waters, swimming lessons, life saving lessons or the proper loading limitations of the skifts with men and clams aboard. 21. On May 17, following a day of clam digging at a remote beach site selected by Pacific Alaska Shellfish Inc. personnel, the decedents attempted to return to the remote camp site with a load of clams harvested at the remote beach site. 22. On the way back the skift capsized and the decedents all went into the water
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

and died of either from drowning or hypothermia. There were no survivors. 23. On information and belief all the decedents suffered pain, anguish, terror and prior to their deaths. 24. The decedents all left surviving dependents, as follows: Roberto RamirezPacheco (wife, Yesenia Martinez, and three minor children: Kimberly age 14; Roberto age 9, Joshua age 6); Avelino Garcia Oropeza (wife: Maximina and one minor son, Edvin, age 4); Ramon Valdivia Isiordia: wife: Emma, and three minor children, Oriann age 7, Daniela age 5, Valentina (just born 13
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days before her father died); Jose Angel Sandoval (wife Maria and two minor children, Adrian age 3 and Anahi age 5); Jose Geraldo Rivera Sandoval (wife Odaliz and one minor child, Ingrid, age 2). 25. Pacific Alaska Shellfish, Inc. is vicariously liable for the actions and omissions of it employees, agents and servants acting in the course and scope of their employment. FIRST CAUSE OF ACTION (Jones Act, 46 USC 688 et seq. ) 26. Plaintiffs reallege all previous allegations. 27. Plaintiffs are employees of Pacific Alaska Shellfish, Inc. 28. Plaintiffs, as part of their work for Pacific Alaska Shellfish, spend significant and substantial time piloting or acting as crew aboard skifts which ply the
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

FLANIGAN & BATAILLE

navigable waters of Cook Inlet from Pacific Alaska Shellfish Inc.s remote beach camp site to remote beach clamming sites on Cook Inlet, which includes navigating, lookout, hauling out and back in and loading and unloading the Skift. 29. Plaintiffs decedents are seamen, as that term is defined for the purposes of 46 USC 688(a). 30. Pacific Alaska Shellfish Inc. owed a duty of care to the decedents given their status as employees of Pacific Alaska Shellfish Inc.
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31. Pacific Alaska Shellfish Inc. was negligent in providing inadequate Skifts for their intended use. Cook Inlet is well known for its suddenly appearing large waves and swells and a fully loaded skift with men and a load of clams is subject to hazardous conditions should such waves or swells appear. 32. Pacific Alaska Shellfish Inc. was negligent in providing inadequate equipment aboard the Skifts given their intended use. 33. Survivor suits were not provided despite the knowledge that life jackets were known to be ineffectual in saving lives in Cook Inlet, given the prevailing water temperatures, unless a rescue boat was nearby. 34. Neither were two way radios provided by which the employees could signal for help.
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

35. The lack of survivor suits and two way radios essentially assured any trouble with the skift in open ocean resulting in capsize would result in fatailites. 36. Pacific Alaska Shellfish Inc. was negligent in providing inadequate instruction and supervision to the decedents given the perils of sea their assigned work entailed. The skifts did not have loan lines on the hull, nor were the decedents given instruction on how many clams they could transport safely along with the men, nor other elements of water safety which were important in operating a skift under the conditions of the intended use of the skifts.
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

FLANIGAN & BATAILLE

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37. The negligence of Pacific Alaska Shellfish, Inc. was a proximate and legal cause of the pain and suffering and death of the decedents. 38. As a proximate and legal result of the negligence of Pacific Alaska Shellfish Inc. the decedents dependents were deprived of their support, companionship, love and affection. 39. Therefore, Plaintiffs request the Court award all damages permitted under the Jones Act, 46 USC 688 et seq. to the decedents estates and/or dependents. SECOND CAUSE OF ACTION (33 USC 905(B)) 40. Plaintiffs reallege all previous allegations. 41. In the alternative, if the Plaintiffs decedents are not determined to be seaman pursuant to the Jones Act, Plaintiffs assert claims against Pacific
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

FLANIGAN & BATAILLE

Alaska Shellfish, Inc. under 33 USC 905(b) of the Longshoreman and Harborworkers Act. 42. Pacific Alaska Shellfish Inc. owed a duty of care to the decedents given their status as employees of Pacific Alaska Shellfish Inc. 43. Pacific Alaska Shellfish Inc. was negligent in providing inadequate Skifts for their intended use. Cook Inlet is well known for its suddenly appearing large waves and swells and a fully loaded skift with men and a load of clams is subject to hazardous conditions should such waves or swells appear.
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44. Pacific Alaska Shellfish Inc. was negligent in providing inadequate equipment aboard the Skifts given their intended use. 45. Survivor suits were not provided despite the knowledge that life jackets were known to be ineffectual in saving lives in Cook Inlet, given the prevailing water temperatures, unless a rescue boat was nearby. 46. Neither were two way radios provided by which the employees could signal for help. 47. The lack of survivor suits and two way radios essentially assured any trouble with the skift in open ocean resulting in capsize would result in fatailites. 48. Pacific Alaska Shellfish Inc. was negligent in providing inadequate instruction and supervision to the decedents given the perils of sea their assigned work
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

entailed. The skifts did not have loan lines on the hull, nor were the decedents given instruction on how many clams they could transport safely along with the men, nor other elements of water safety which were important in operating a skift under the conditions of the intended use of the skifts. 49. Pacific Alaska Shellfish, Inc. was negligent in failing to correct the dangerous conditions of the Skifts, equipment aboard the skifts and lack of training of the decedents, which Pacific Alaska Seafoods, Inc. was aware was putting the decedents at risk.
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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50. The negligence of Pacific Alaska Shellfish was a proximate and legal cause of the pain and suffering and death of the decedents. 51. As a proximate and legal result of the negligence of Pacific Alaska Shellfish Inc. the decedents dependents were deprived of their support, companionship, love and affection. 52. Therefore, Plaintiffs request the Court award all damages permitted under 33 USC 905(b) to the decedents estates and/or dependents. THIRD CAUSE OF ACTION (UNSEAWORTHINESS) 53. Plaintiffs reallege all previous allegations. 54. The skifts provided to the decedents were unseaworthy in that they were inadequate for the use and dangers involved in their intended use, had
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

inadequate equipment aboard and were piloted and staffed by an inadequately trained pilot and crew as more specifically recited above. 55. The unseaworthiness of the skifts provided by Pacific Alaska Shellfish. Inc. was a proximate and legal cause of the suffering and death of the decedents. 56. Therefore, Plaintiffs request the Court award all damages permitted under the Plaintiffs dependents. FOURTH CAUSE OF ACTION (GENERAL MARITIME CLAIM)
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

FLANIGAN & BATAILLE

unseaworthiness claim, to the decedents estates and/or

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57. Plaintiffs reallege all previous allegations 58. Pacific Alaska Shellfish Inc. was negligent in providing inadequate Skifts, inadequate equipment aboard the Skifts and instruction to the decedents, who were owed a duty of care by Pacific Alaska Shellfish, Inc. 59. The negligence of Pacific Alaska Shellfish Inc. was a proximate and legal cause of the suffering and death of the decedents. 60. Therefore, Plaintiffs request the Court award all damages permitted under the general maritime law to the decedents estates and/or dependents as against Pacific Alaska Shellfish, Inc. FIFTH CAUSE OF ACTION (DIRECT ACTION UNDER ALASKA WORKERS COMPENSATION ACT)
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

61. Plaintiffs reallege all previous allegations. 62. Plaintiffs decedents were employees of Pacific Alaska Shellfish, Inc. 63. Pacific Alaska Shellfish, Inc. did not secure workers compensation insurance or benefits for the dependents of the decedents, after they died. 64. Therefore, under AS 23.30.080, Pacific Alaska Seafoods, Inc. is presumed to have negligently caused the suffering and death of the decedents and comparative negligence is not an available defense.

FLANIGAN & BATAILLE

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65. Pacific Alaska Shellfish Inc. owed a duty of care to the decedents given their status as employees of Pacific Alaska Shellfish Inc. 66. Pacific Alaska Shellfish Inc. was negligent in providing inadequate Skifts for their intended use. Cook Inlet is well known for its suddenly appearing large waves and swells and a fully loaded skift with men and a load of clams is subject to hazardous conditions should such waves or swells appear. 67. Pacific Alaska Shellfish Inc. was negligent in providing inadequate equipment aboard the Skifts given their intended use. 68. Survivor suits were not provided despite the knowledge that life jackets were known to be ineffectual in saving lives in Cook Inlet, given the prevailing water temperatures, unless a rescue boat was nearby.
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

69. Neither were two way radios provided by which the employees could signal for help. 70. The lack of survivor suits and two way radios essentially assured any trouble with the skift in open ocean resulting in capsize would result in fatailites. 71. Pacific Alaska Shellfish Inc. was negligent in providing inadequate instruction and supervision to the decedents given the perils of sea their assigned work entailed. The skifts did not have loan lines on the hull, nor were the decedents given instruction on how many clams they could transport safely along with
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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the men, nor other elements of water safety which were important in operating a skift under the conditions of the intended use of the skifts. 72. The negligence of Pacific Alaska Shellfish was a proximate and legal cause of the suffering and death of the decedents. 73. Therefore, Plaintiffs request the Court award all damages permitted to be awarded under AS 23.30.080 and 09.55.570 & 580 to be awarded to the decedents estates and/or dependents. SIXTH CAUSE OF ACTION (DERIVATIVE LIABILITY, ALASKA WORKERS COMPENSATION ACT) 74. Plaintiffs reallege all previous allegations. 75. Pacific Alaska Shellfish, Inc., as an Alaskan corporation doing business in
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

Alaska, had a duty to obtain workers compensation insurance to cover its employees, and the employees of its contractors if they were uninsured, pursuant to AS 23.30.045. 76. Pacific Alaska Shellfish, Inc. did not obtain workers compensation insurance to cover the decedents its agent recruited to work for Pacific Alaska Shellfish, Inc. in Alaska, at remote beach sites. 77. Pursuant to AS 23.30.075, if a corporation, doing business in Alaska, fails to secure workers compensation insurance or workers compensation benefits for
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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its workers, all persons having the authority to insure the corporation or apply for a certificate of self insurance are jointly and severally liable with the corporation to pay any compensation or benefits under the Alaska Workers Compensation Act, which includes the right to a direct action under AS 23.30.080. 78. Defendant, Dulich, Inc. is listed on Alaska corporate records as the 100 percent shareholder of Alaska Shellfish, Inc. 79. Frank D. Dulcich is listed in Alaska corporate records as the President, Director and Treasurer of Pacific Alaska Shellfish, Inc.; the President of Dulich Inc.; and on information and belief he is the President of Pacific Seafood Group.
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

80. Given the failure of Pacific Alaska Shellfish to secure Alaska Workers insurance or compensation benefits for the dependents of decedents, Dulcich, Inc.and Frank Dulcich, are jointly and severally liable for payment of all benefits under the Alaska Workers Compensation. Including damages actions permitted under those acts when an employer failed to secure compensation. SEVENTH CAUSE OF ACTION (DIRECT ACTION, LONG SHOREMAN AND HARBOR WORKERS ACT) 81. Plaintiffs reallege all previous allegations.
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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82. Plaintiffs decedents were employees of Pacific Alaska Shellfish, Inc. 83. Pacific Alaska Shellfish, Inc. did not secure Longshoreman and Harbor Workers Act insurance or benefits for the dependents of the decedents. 84. As a result, pursuant to 33 USC 905(a), the plaintiffs may pursue an action against Pacific Alaska Shellfish Inc. for damages and compensation for the dependants of the decedents, in which case negligence is presumed against Pacific Alaska Seafoods, Inc. and comparative negligence is not a defense to the action. 85. Therefore, under AS 23.30.080, Pacific Alaska Seafoods, Inc. is presumed to have negligently caused the suffering and death of the decedents and no comparative negligence defense is available.
1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

86. Pacific Alaska Shellfish Inc. was negligent in providing inadequate Skifts, inadequate equipment aboard the Skifts and instruction to the decedents, who were owed a duty of care by Pacific Alaska Shellfish, Inc. 87. The negligence of Pacific Alaska Shellfish was a proximate and legal cause of the suffering and death of the decedents. 88. Therefore, Plaintiffs request the Court award all damages permitted to be awarded under AS 23.30.080 and 09.55.570 & 580 to be awarded to the decedents estates and/or dependents.
Plaintiffs Complaint Ramirez & Munoz v Pacific Alaska Seafoods, Inc., et al. Case No. 3:12-cv-____ ( )

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CLAIM FOR PUNITIVE DAMAGES 89. Plaintiffs reallege all previous allegations 90. To the extent that the facts and law applicable to this matter as developed through discovery support a claim for punitive damages Plaintiff request same be awarded. WHEREFORE, Plaintiffs pray for a Judgment against the Defendants, in an amount to be proven at court, but in any case to exceed the jurisdictional requirements of this Court, plus interest, attorneys fees, costs and other equitable relief as the court deems just. DATED THIS 17th DAY OF MAY, 2012.

1007 West 3rd Ave., Suite 206 Anchorage, Alaska 99501 Phone 907-279-9999 /Fax 907-258-3804

FLANIGAN & BATAILLE

FLANIGAN & BATAILLE ATTORNEYS FOR PLAINTIFF /s/ Michael W. Flanigan, ABA #7710114 FLANIGAN & BATAILLE 1029 W. 3rd Ave., Ste. 250 Anchorage, Alaska, 99501 Telephone: (907)-279-9999 Facsimile: (907) 258-3804 E-Mail: mflanigan@farnorthlaw.com

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