Delta Towing, LLC

Filing 144

ORDER granting 124 Motion to Dismiss the Rule 14(c) Tender. Signed by Judge Kristi K. DuBose on 10/7/2016. (cmj)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
IN THE MATTER OF DELTA TOWING, )
LLC, AS OWNER OF THE M/V DELTA )
AMBER, AND DELTA MARINE SERVICE,)
INC., AS PURPORTED OWNER,
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BROKER, CHARTERER, OR PRO HAC )
VICE OWNER OF THE M/V DELTA
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AMBER, FOR EXONERATION FROM
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OR LIMITATION OF LIABILITY.
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MIKE HOOKS, INC., and
GULF COAST MARINE, LLC,
PLAINTIFF,
V.
DELTA TOWING, LLC and
DELTA MARINE SERVICES, INC.
DEFENDANTS.
BILLY LEE,
PLAINTIFF,
v.
MIKE HOOKS, INC., OWNER OF THE
M/V NICHOLAS, in personam.
DEFENDANT.

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CIVIL ACTION NO. 15-00128-KD-M

CIVIL ACTION NO. 15-00136-KD-N

CIVIL ACTION NO. 15-00295-KD-N

ORDER
This action is before the Court on Mike Hooks, Inc.’s Third Party Demand and Rule 14(c)
Tender (doc. 120, ¶¶ 71-73); Delta Towing, LLC, and Delta Marine Service, Inc.’s motion to
dismiss the Rule 14(c) Tender (doc. 124), Billy Lee’s joinder in their motion to dismiss (doc. 126),
Hooks’ opposition (doc. 128), and Delta’s reply (doc. 131). Upon consideration, and for the
reasons set forth herein, the motion to dismiss the Rule 14(c) Tender is GRANTED.
I. Background
In October 2014, while the tow boat M/V Delta Amber was hip-towing the dredge tender

M/V Nicholas, they capsized in rough water in Mobile Bay. Billy Lee, Captain of the M/V Delta
Amber, filed a complaint alleging general maritime negligence against Hooks, the owner of the
M/V Nicholas. Lee designated his claim as within the admiralty or maritime jurisdiction pursuant
to Fed. R. Civ. P. 9(h)1 (doc. 30; Civil Action No. 15-0295-KD-N). Hooks filed a complaint against
Delta alleging omissions and/or acts of fault and negligence by Delta as the owner, broker or charter
of the M/V Delta Amber (doc. 11, Civil Action No. 15-0136-KD-N). Ultimately, the actions were
consolidated with Delta’s petition for exoneration and limitation (Civil Action No. 15-0128-KD-N).
James and Kayla McBroom and David and Janet Curtis filed claims in the limitation action. All
parties have filed numerous counterclaims, cross-claims and third party claims.
Relevant to this motion, in his original complaint, Lee brought one count for negligence
alleging that Hooks as the owner of the Nicholas breached its duty to Lee to provide a seaworthy
vessel for towing. Lee alleged that the unseaworthy condition of the Nicholas, improper bilge
pumps which caused the vessel to take on water, resulted in the capsize of the Nicholas and the
Delta Amber (doc. 30)
Hooks answered the complaint and raised affirmative defenses. Hooks also counterclaimed
against Lee alleging liability to Hooks because of Lee’s fault, negligence, acts or omissions in the
operation of the Delta Amber, which caused the Nicholas and the Delta Amber to sink.
Hooks made a third party demand against Delta alleging liability to Hooks because of the
omissions and/or acts of fault and negligence of the crew of the Delta Amber including Captain Lee.
Specifically, Hooks alleged that Lee navigated the Delta Amber at an excessive speed and in an
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Certain Underwriters at Lloyd's London & Certain Ins. Companies v. Cameron Int'l Corp., 2016
WL 3199354, at *1 (S.D. Tex. Feb. 11, 2016) (“A defendant may invoke Rule 14(c)(1) whenever
the plaintiff has asserted a claim which has been specifically identified in the complaint as one in
admiralty pursuant to Rule 9(h), or (2) when it is apparent from a reading of the complaint that
admiralty jurisdiction is the only basis for federal subject matter jurisdiction over the action.”)
(quoting Harrison v. Glendel Drilling Co., 679 F. Supp. 1413, 1418 (W.D. La. 1988)).
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improper manner by suddenly changing course and speed, that he failed to reduce speed when the
Nicholas was caught on the port rail, and that the crew failed to have proper equipment on board
(Doc. 33, p. 10-13).
Delta answered the third party demand and counterclaimed against Hooks. Delta alleged
that Hooks was negligent in tendering the unseaworthy Nicholas for tow and negligently navigating
the Nicholas, which caused it to take on water and cause both vessels to capsize (Count One). Delta
also claimed indemnification and contribution from Hooks for the damage to the Delta Amber and
the injury to her crew (Count Two) (doc. 53, p. 6-14).
Lee moved to amend his complaint against Hooks and the motion was granted.2 On
amendment, Lee re-alleged claims from his original complaint: Count I for unseaworthiness as to
the Nicholas against Hooks and Count IV for negligence against Hooks alleging that it owed a duty
to provide a seaworthy vessel for towing, but instead provided the unseaworthy Nicholas. He also
added Count III for negligence per se against Hooks on basis that certain conditions on the Nicholas
violated federal safety regulations.
Lee also added claims based on the new legal theory that Hooks was the manager, operator
or charterer of the Delta Amber, exercised control over that vessel, and therefore, owed certain
duties to the crew of the Delta Amber including Lee as Captain. Lee alleged that the crew of the
Nicholas created the unseaworthy condition of the Delta Amber and that Hooks breached its duty to
the Delta Amber crew to have the Nicholas manned by a seaworthy crew (Count I). Lee brought
Count II for unseaworthiness as to the Delta Amber alleging again that the unseaworthiness of the
Nicholas and its crew created an unseaworthy condition on the Delta Amber. Last, Lee brought
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Lee’s motion for leave to amend was made beyond the deadline for amendment of pleadings
November 20, 2015. However, the Court found that Lee had exercised diligence in pursuing
discovery and that good cause existed to allow a modification to the Rule 16(b) Scheduling Order
for the “narrow purpose of allowing Plaintiff Lee to amend his complaint” (doc. 117, p. 3).
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Count V for Jones Act negligence. Lee alleges that he was a ‘borrowed servant” of Hooks because
of the control exercised by Hooks over the Delta Amber and her crew; and therefore, Hooks owed
Lee a safe place to work (Doc. 118).
In response, Hooks filed an answer, affirmative defense, counterclaim against Lee, third
party demand against Delta, and the Rule 14(c) tender (doc. 120). Pursuant to Fed. R. Civ. P. 14(c),
Hooks tendered Delta as a direct defendant such that Delta “must defend” Lee’s claims as well as
Hooks’ third party demand against Delta (doc. 120, p. 12). Hooks demanded judgment in its favor
and against Delta. (Id.). Hooks did not demand judgment in favor of Lee.

II. Statement of the law
Delta now moves to dismiss the Rule 14(c) tender (doc. 124). Rule 14, captioned “ThirdParty Practice”, sets forth in relevant part, as follows:
(c) Admiralty or Maritime Claim.
(1) Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under
Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule
C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may
be wholly or partly liable--either to the plaintiff or to the third-party plaintiff--for
remedy over, contribution, or otherwise on account of the same transaction,
occurrence, or series of transactions or occurrences.
(2) Defending Against a Demand for Judgment for the Plaintiff. The third-party
plaintiff may demand judgment in the plaintiff's favor against the third-party
defendant. In that event, the third-party defendant must defend under Rule 12
against the plaintiff's claim as well as the third-party plaintiff's claim; and the
action proceeds as if the plaintiff had sued both the third-party defendant and the
third-party plaintiff.
Fed. R. Civ. P. 14(c).
Rule 14(c) allows a defendant to implead a person who may be directly liable to a plaintiff
for at least a portion of the plaintiff’s claims against the defendant. Generally, impleader is
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desirable in maritime and admiralty actions because of “the possibility of inconsistent results in
separate actions, the alternative of conducting two actions involving substantially the same
evidence, and the possibility of the third party [and its assets] disappearing.” 6 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1465 at 481 (3d ed.) (April 2016 Update)
(bracketed text added): Texaco Exploration & Production Co. v. AmClyde Engineered Products
Co., 243 F.3d 906, 910 (5th Cir. 2001) (“This unique liberal joinder policy served to reduce the
possibility of inconsistent results in separate actions, eliminate redundant litigation, and prevent a
third party's disappearing if jurisdiction and control over the party and his assets were not
immediately established.”)

III. Analysis
A. Sufficiency of the Pleading
“To survive a motion to dismiss, a [third party demand] must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))
(bracketed text added). “A claim has facial plausibility when the [claimant] pleads factual content
that allows the court to draw the reasonable inference that the [respondent] is liable for the
misconduct alleged.” Id. (bracketed text added); see Pharma Supply, Inc. v. Stein, 2015 WL
392084, at *4 (S.D. Fla. Jan. 28, 2015) (applying Twombly and Rule 8(a) to find that defendants’
counterclaims and third-party complaint failed to satisfy pleading requirements).
Hooks’ demand and tender state as follows:
Third Party Demand and Rule 14(c) Tender
71.
Mike Hooks re-asserts, adopts, and incorporates by reference herein each

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and every one of its allegations in support of its third party demand3 against Delta
Towing, LLC and Delta Marine Services, Inc.
72.
Pursuant to Fed.R.Civ.Proc. 14(c), Mike Hooks tenders Delta Towing,
LLC and Delta Marine Service, Inc. as a direct defendant such that Delta Towing,
LLC and Delta Marine Service, Inc. must defend against Billy Lee’s claim as well
as the third party demand of Mike Hooks.
73.
WHEREFORE, after due proceedings had, Third Party Plaintiff Mike
Hook, Inc. prays that there be judgment in its favor and against Defendants Delta
Towing, LLC and Delta Marine Services, Inc.; that Third Party Plaintiff be
awarded all its damages; that Third Party Plaintiff be awarded costs, attorney fees,
and pre and post judgment interest; and for all other general and equitable relief to
which it is entitled.
(Doc. 120, p. 12).
Rule 14(c)(1) addresses the “scope of impleader” in an admiralty or maritime action and
provides that a third-party plaintiff such as Hooks may bring in a third-party defendant like Delta
“who may be wholly or partly liable -- either to the plaintiff or to the third-party plaintiff-- for
remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of
transactions or occurrences.” Fed. R. Civ. P. 14(c)(1). In Intern.l Marine, LLC v. FDT, LLC, 2014
WL 7240143 (E.D. La. Dec. 19, 2014) (appeal dismissed (Oct. 19, 2015)), the Eastern District of
Louisiana discussed the purpose of Rule 14(c) as follows:
Rule 14(c) “permits a defendant to implead a third-party defendant for two purposes:
(1) to seek contribution or indemnification from the third-party defendant, and (2) to
tender the third-party defendant to the plaintiff.” Ambraco, 570 F.3d at 242. When
the third-party plaintiff invokes the 14(c) tender option, the plain language of Rule
14(c)(2) requires that the tender of the third-party defendant to the plaintiff is
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Hooks alleged that Delta was the owner of the Delta Amber, employer of her crew and Captain
Lee and responsible for their acts, omissions, fault and/or neglect. Hooks alleged that the crew and
Captain Lee were negligent in navigating the Delta Amber at excessive speed, failing to reduce
speed, making an improper change of course and speed, and failing to have proper equipment, and
that Delta failed to employ a properly trained captain and crew (doc. 33, p. 1).
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automatic. In pertinent part, Rule 14(c)(2) provides that if the third-party plaintiff
“demand[s] judgment in the plaintiff's favor, then the third-party defendant must
defend against both the plaintiff's claim and against the third-party plaintiff's claim.
Fed.R.Civ.P. 14(c)(2) (emphasis added). Under such circumstances, “the action
proceeds as if the plaintiff had sued both the third-party defendant and the third-party
plaintiff.” Id.
2014 WL 724013, at *9 (citing Ambraco, Inc. v. Bossclip B. V., 570 F.3d 233, 243 (5th Cir. 2009)).
Hooks states that he tenders Delta as a “direct defendant” under “Fed. R. Civ. P. 14(c)” who
“must defend against Billy Lee’s claim as well as the third party demand of Mike Hooks” (doc.
120, p. 12). Thus it appears that Hooks is seeking to tender Delta to Lee. See, Royal Ins. Co. of
America v. Southwest Marine, 194 F.3d 1009, 1018 (9th Cir. 1999) (finding the Rule 14(c) tender
sufficient although it did not contain specific language demanding judgment against the third-party
defendant in favor of the plaintiff).
Delta asserts that Hooks fails to state a factual basis from which Delta could plausibly be
liable. Hooks responds by pointing to its original third party demand that alleged that Delta was
responsible, based on the negligence of the crew of the Delta Amber, for the capsizing incident.
These allegations are sufficient to put Delta on notice of the basis of the tender to Lee’s claims.

B. Untimely amendment to pleading
Delta argues that the instant Rule 14(c) tender should be dismissed because it was made
beyond the November 19, 2015 deadline for amendments to pleadings and joinder of parties.
Hooks responds that he could not have plead a Rule 14(c) tender of Delta to answer and defend
Lee’s new claims (which are based on Hooks’ status as a manager, operator or charterer or entity in
control of the Delta Amber) until those claims were raised in Lee’s amended complaint.
The court disagrees. As of April 8, 2015 (Doc. 8) and again on June 18, 2015 (Doc. 33), it
was Hooks position that Delta was responsible for the capsizing of the Amber Delta and the
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Nicholas. Hooks was also aware that as of June 2, 2015, Lee was no longer claiming that Delta was
at fault. Although Lee has asserted new theories of why Hooks is liable, Hooks has always claimed
that Delta is liable for the capsizing incident instead of Hooks. Thus, Hooks could have tendered
Delta in its original answer to Lee.

III. Conclusion
Upon consideration of the foregoing, the motion to dismiss Hooks’ Rule 14(c) tender of
Delta is GRANTED.
DONE and ORDERED this the 7th day of October 2016.

s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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