Smith v. One 2016 55' Prestige Yacht et al

Filing 22

OPINION AND ORDER denying 12 motion to dismiss. Signed by Judge John E. Steele on 1/17/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHERYL SMITH, d/b/a Reliable
Marine Salvage & Towing,
Plaintiff,
v.

Case No: 2:16-cv-833-FtM-99CM

ONE 2016 55’ PRESTIGE YACHT,
known as “Sum Uh Dat II”, its
engines, tackle, equipment,
apparel,
appurtenances,
etc., in rem, and WINTON
REBOUCHE, JR., in personam,
Defendants.
OPINION AND ORDER
This

matter

comes

before

the

Court

on

defendant

Winton

Rebouche, Jr.’s (defendant or Rebouche) Motion to Dismiss (Doc.
#12) filed on December 20, 2016.

Plaintiff filed a response (Doc.

#14) to which Rebouche replied (Doc. #16).

For the reasons set

forth below, the motion is denied.
I.
On November 15, 2016, plaintiff Cheryl Smith, doing business
as Reliable Marina Salvage & Towing, filed a three-count Complaint
for

maritime

salvage

and

lien

due

to

non-payment

of

salvage

services rendered to the defendant vessel, One 2016 55’ Prestige
Yacht known as “Sum Uh Dat II.”

(Doc. #1.)

Plaintiff also brings

suit against Rebouche individually, as owner of the vessel.

(Id.

at ¶ 4.)
As alleged in plaintiff’s Complaint, on or about October 24,
2016, plaintiff received notification that a motor yacht had become
stranded hard aground on Johnson Shoals near Boca Grande Pass near
the north tip of Cayo Coasta State Park.

(Id. at ¶¶ 5, 7.)

Upon

arrival at the scene of the imperiled vessel, the plaintiff’s crew
encountered Rebouche, who was aboard the vessel.

(Id.)

Rebouche

stated that he had just taken delivery of the vessel a few days
before, that he had encountered rough seas and that his wife had
become ill, so he had decided to anchor in Boca Grande Pass.
at ¶ 6.)

(Id.

The anchor did not hold and the vessel was driven upon

Johnson Shoals by the wind and sea before Rebouche realized it.
(Id.)
After

assessing

the

situation,

plaintiff’s

crew

informed

Rebouche that the operation was a maritime salvage, would not be
covered as a tow, and that Rebouche should inform his insurer.
(Doc. #1, ¶ 11.)

Rebouche accepted the services of plaintiff and

stated that he wanted the vessel to be taken to Anna Maria Island
and checked for damages.

(Id.)

Prior to the salvage, Rebouche

signed plaintiff’s maritime salvage form, acknowledging that the
operation to free the vessel would be a maritime salvage and agreed

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to pay any charges upon completion. 1

(Id. at Exh. A.)

As Rebouche

had requested, plaintiff successfully salvaged the vessel and
towed it to Anna Maria Island.

(Id. at ¶ 16.)

paid plaintiff for these services.

Rebouche has not

(Id. at ¶ 23.)

II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take

1

Interestingly, both plaintiff and Rebouche submitted their
own versions of the same maritime salvage form, the most important
differences for our purposes is that the name “Blake Alexandria
Corp.” is written at the bottom of the form submitted by Rebouche.
Compare Doc. #1, Exh. A with Doc. #12-2. Both versions appear to
be signed by Rebouche.

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them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

Thus, the

Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.
III.

Rebouche seeks dismissal of the Complaint against him because
he is not the owner of the vessel and plaintiff has not pled any
predicate for piercing the corporate veil or otherwise imputing
individually liability to Rebouche.

He asserts that the vessel

is in fact owned by Blake Alexandria, LLC, a Florida limited
liability company 2, information which was readily ascertainable to

2

A review of the Florida Department of State, Division of
Corporations website reveals that Rebouche is the sole member of
Blake Alexandria, LLC.
www.sunbiz.org (last visited Jan. 12,
2017).

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plaintiff prior to filing the Complaint.
attaches

the

Bill

of

Sale

Alexandria, LLC as owner.

for

the

In support, Rebouche

vessel

that

lists

Blake

(Doc. #12-1.)

Plaintiff responds that she has brought suit against Rebouche
because he personally participated in the wrongdoings identified
in the Complaint, namely ordering plaintiff’s services and signing
the maritime salvage form as the owner of the vessel and otherwise
communicated to plaintiff’s crew that he was the owner, thereafter
failing to pay for the services.

Plaintiff states that Rebouche

is attempting to submit evidence to the Court which is improper at
the motion to dismiss stage and if further facts are discovered
she may amend the Complaint to name another defendant.

But as the

facts are now known to plaintiff, she argues that the Complaint is
sufficiently pled to survive a motion to dismiss.
Here, individual liability for a salvage award is not premised
upon piercing the corporate veil, and the Complaint alleges that
the actions of Rebouche caused it harm.

The maritime salvage form

was signed by Rebouche and it is alleged that he informed plaintiff
and her crew that he was the owner of the vessel.

When analyzing

a motion to dismiss for failure to state a claim, the court
typically considers only the complaint and the exhibits attached
thereto.

Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276,

1284 (11th Cir. 2007).

However, a district court may also consider

a document attached to a motion to dismiss if the document is

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central to the plaintiff’s claim and the authenticity of the
document is not challenged.
(11th Cir. 2005).

Day v. Taylor, 400 F.3d 1272, 1276

Because the documents submitted by Rebouche

regarding the proper owner of the vessel are not central to
plaintiff’s claims and are otherwise challenged by plaintiff, the
Court will not consider them at the motion to dismiss stage.
(Docs. ## 12-1, 12-2.)

Thus, plaintiff has stated a plausible

claim against Rebouche individually and the motion to dismiss is
denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant Winton Rebouche, Jr.’s Motion to Dismiss (Doc. #12)
is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2017.

Copies:
Counsel of Record

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17th

day