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

Filing 248

ORDER ADOPTING REPORT AND RECOMMENDATIONS AS MODIFIED, re 216 MOTION to Dismiss for Lack of Jurisdiction filed by Point Clear Insurance Services, LLC is DENIED AS MOOT; {219} Motion for leave to amend complaint is DENIED AS FUTILE; (217) MOTION to Di smiss filed by Point Clear Insurance Services, LLC construed solely as a motion to dismiss is GRANTED and all claims against Point Clear are DISMISSED WITH PREJUDICE. All claims against Eagle River Towing LLC are DISMISSED WITHOUT PREJUDICE. Signed by Judge Kristi K. DuBose on 7/13/2012. (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 Third-Party Defendant Point Clear Insurance Services,
Inc.’s two (2) motions to dismiss the third amended third-party complaint (Docs. 216, 217);
Atchafalaya Marine, LLC and Rodd Cairns’ responses and motion for leave to amend (Docs. 219,
225); and Point Clear Insurance Services, Inc.’s replies (Docs. 231, 232).
After due and proper consideration of all portions of this file deemed relevant to the issues
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raised, and a de novo determination of those portions of the recommendation to which objection is
made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B) and
dated June 13, 2012 is ADOPTED AS MODIFIED as the opinion of this Court as follows:
1) As to the Section Title portion of the Recommendation located at Section III
on page 6, the phrase “both time-barred and” is STRICKEN. (Doc. 237 at 6).
2) That portion of the Recommendation located at Section III.A. and entitled
“Statute of Limitations,” which is located at the bottom of page 6 and which
continues to the top of page 9 concluding with the case reference “See, e.g.,
Casassa, 949 F. Supp. at 832”, is STRICKEN. (Doc. 237 at 6-9).
It is ORDERED that that Third-Party Defendant Point Clear Insurance Services, Inc.’s
12(b)(1) motion (Doc. 216) is DENIED AS MOOT and Atchafalaya and Cairns’ motion for leave
to amend (Doc. 219) is DENIED AS FUTILE. Additionally, it is ORDERED that Third-Party
Defendant Point Clear Insurance Services, Inc.’s 12(b)(6) motion (Doc. 217), construed solely as a
motion to dismiss, is GRANTED and that all claims against Point Clear Insurance Services, Inc.
are DISMISSED WITH PREJUDICE. It is further ORDERED that the claims against Eagle
River Towing, L.L.C. are DISMISSED WITHOUT PREJUDICE.
DONE and ORDERED this the 13th day of July 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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