Oliver et al v. M/V Barbary Coast et al

Filing 193

Order re: motion to dismiss (Doc. 190). The portion of Louisiana Limestone and Bufords claims purportedly asserted against Eagle River Towing, LLC, EagleInland Towing, LLC, National Union Fire Insurance Company of Pittsburgh, PA, Garrell A.Chiasson , Sr., Quality Diesel Services, Inc. and/or Midsouth Bank, N.A., is MOOT because nosuch counterclaims exist in this case. As to Louisiana Limestone and Bufords request that theCourt release[only] certain of its claims against Cairns and Atchafalaya, one (1)counterclaim for breach of contract (Count Four) has been alleged against these parties, notmultiple claims as suggested. As such, the Court construes this request to release as a motionto dismiss this sole counterclaim with prejudice. Accordi ngly, that portion of the motion (Doc.190) is GRANTED such that Louisiana Limestone and Bufords breach of contract counterclaim(Count Four) against Cairns and Atchafalaya (as set forth in Doc. 107), is hereby DISMISSED with prejudice. Signed by Judge Kristi K. DuBose on 3/21/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARC E. OLIVER, d/b/a GULF COAST :
ENVIRONMENTAL AND RECOVERY,
and T.M. JEMISON CONSTRUCTION
:
CO. INC. d/b/a JEMISON MARINE, INC.,
Plaintiffs,
:

CA 11-0223-KD-C

MIDSOUTH BANK, N.A.,
Plaintiff/Counter-Defendant

:

IN ADMIRALTY
In Personam and In Rem

vs.

:

M/V BARBARY COAST, her engines,
tackle, furniture, and appurtenances, etc., :
In Rem, and RODD CAIRNS, an
individual, and ATCHAFALAYA MARINE,:
LLC, In personam,
Defendants/Counter-Plaintiffs/
Third-Party Plaintiffs,
:
vs.

:

EAGLE RIVER TOWING, L.L.C., p/k/a or
a/k/a EAGLE INLAND TOWING,
:
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
:
LOUISIANA LIMESTONE & LOGISTICS,
L.L.C., and CURTIS BUFORD,
Third-Party Defendants.
:
ORDER
This matter is before the Court on a “Motion to Dismiss With Prejudice” filed by
Third-Party Defendants Louisiana Limestone & Logistics, LLC (“Louisiana Limestone”) and
Curtis Buford (“Buford”).

(Doc. 190).

Specifically, Louisiana Limestone and Buford move to

dismiss their claims, with prejudice, against Eagle Inland Towing, LLC, Eagle River Towing,
LLC, Garrell A. Chiasson, Sr., National Union Fire Insurance Company of Pittsburgh, PA,
1

Quality Diesel Services, Inc. and Midsouth Bank, N.A.

Louisiana Limestone and Buford

additionally move the Court “to release” Rodd Cairns and Atchafalaya Marine, LLC “for certain
claims as set forth in the Release executed by said parties, but reserve their rights to pursue all
remaining claims” against them “not set forth in their complaint and not expressly identified in
the Release.”

Louisiana Limestone and Buford assert that the motion is filed with the consent

of all parties.
At the outset, the motion filed by Louisiana Limestone and Buford is construed as a Rule
41(a)(2) voluntary motion to dismiss “at the plaintiff’s request only by court order, on terms that
the court considers proper[],” given that the motion is not signed by all parties to this case, is not
a joint stipulation, and the opposing parties have served answers.

(Docs. 118, 119).

Third-Party Defendants Louisiana Limestone and Buford filed a First Amended Answer
to Third-Party Plaintiffs’ Second Amended Third-Party Complaint, and counterclaims against
Third-Party Plaintiffs Atchafalaya Marine, LLC and Rodd Cairns as well as original plaintiffs
Marc. E. Oliver individually and d/b/a Gulf Coast Environmental and Recovery, LLC, even
though the pleading is styled as also asserting crossclaims against Third-Party Defendants Eagle
Inland Towing, LLC,1 Garrell A. Chiasson, Sr., and National Union Fire Insurance Company of
Pittsburg, PA.

(Doc. 107 at 1). The pleading does not actually allege any claims against

Eagle Inland Towing, LLC, Eagle River Towing, LLC, Garrell Chiasson, Quality Diesel,
Midsouth Bank, or National Union (although apparently the movants mistakenly believe such
given the present motion).

Rather, the pleading asserts only four (4) Counterclaims (and

demands judgment) against: 1) original plaintiffs and counterclaims defendants Marc E. Oliver

1 The Court also notes that no claims were alleged against Eagle River Towing, LLC, who is referenced in the
present motion (Doc. 190 at 2).

2

individually and d/b/a Gulf Coast Environmental and Recovery, LLC for conversion (Count
One), tortious interference with contractual and business relations (Count Two) and fraud (Count
Three); and 2) against original defendants Atchafalaya and Cairns for breach of contract (Count
Four).

(Doc. 107 at 27-32).
In light of the foregoing, that portion of Louisiana Limestone and Buford’s motion to

dismiss (Doc. 190) the claims purportedly asserted against Eagle River Towing, LLC, Eagle
Inland Towing, LLC, National Union Fire Insurance Company of Pittsburgh, PA, Garrell A.
Chiasson, Sr.,2 Quality Diesel Services, Inc. and/or Midsouth Bank, N.A., is MOOT because no
such counterclaims exist in this case. As to Louisiana Limestone and Buford’s request that the
Court “release…[only] certain” of its claims against Cairns and Atchafalaya, one (1)
counterclaim for breach of contract (Count Four) has been alleged against these parties, not
multiple claims as suggested.

As such, the Court construes this request to “release” as a motion

to dismiss this sole counterclaim with prejudice. Accordingly, that portion of the motion (Doc.
190) is GRANTED such that Louisiana Limestone and Buford’s breach of contract counterclaim
(Count Four) against Cairns and Atchafalaya (as set forth in Doc. 107), is hereby DISMISSED
with prejudice.
DONE and ORDERED this the 21st day of March 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

2 Mr. Chiasson is simply referenced in the amended answer as the managing member of Eagle Inland Towing,
LLC. (Doc. 107 at 21 at ¶119).

3