In Re Peute

Filing 22

OPINION AND ORDER denying 17 Motion to Dismiss for Lack of Jurisdiction. Plaintiff is directed to email to the chambers email address updated proposed orders with respect to his motions filed as DE 5 . Signed by Judge Joseph S Van Bokkelen on 7/23/18. (nal)

United States District Court
Northern District of Indiana
Hammond Division

In the Matter of the Complaint of Abraham
Peute for Exoneration from or Limitation of
Liability

Civil Action No. 2:18-CV-73 JVB

OPINION AND ORDER
This matter is before the Court on the motion of respondent Patti Feczko (DE 17) to
dismiss this case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1).

A.

Background
Plaintiff, Abraham Peute, filed this action alleging that the Court has subject matter

jurisdiction pursuant to 28 U.S.C. § 1333, which gives district courts jurisdiction over any civil
admiralty or maritime case. In his complaint he alleges that Jennifer Ellenberger and Michael
McKinney died of carbon monoxide poisoning while on Plaintiff’s pleasure craft, which was
moored at a marina at the time of the incident. Plaintiff also filed a motion for orders directing
notice of his complaint, approving an ad interim stipulation, requiring monition, and restraining
the prosecution of claims (DE 5).
The Court ordered Plaintiff to brief the issue of subject matter jurisdiction. He submitted
a brief on April 17, 2018 (DE 12). Shortly thereafter, Respondent Angela McKinney entered her

appearance, followed by an appearance from Respondent Patti Feczko, as personal
representative of the estate of Jennifer Ellenberger. Feczko also filed a motion to dismiss
Plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff responded to the motion by
directing the Court to the arguments and authorities in his April 17 brief. Respondent McKinney
has now joined in the motion to dismiss. Neither Respondent has filed a reply.

B.

Discussion
The Court initially questioned its subject matter jurisdiction in this case in light of H2O

Houseboat Vacations Inc. v. Hernandez, 103 F.3d 914 (9th Cir. 1996), which found jurisdiction
lacking in a case that appears to be factually indistinguishable from the instant action. However,
Plaintiff’s brief has explained the nuances of maritime jurisdiction, leading the Court to conclude
that the Seventh Circuit would not follow the Ninth Circuit case.
The test for maritime jurisdiction established by the Supreme Court is whether the
incident occurred on a navigable waterway, and, if so, whether the incident creates a potential
hazard to maritime commerce that arises out of activity that bears a substantial relationship to
traditional maritime activity. Sisson v. Ruby, 497 U.S. 358, 362 (1990).
It is undisputed that the incident described in Plaintiff’s complaint occurred on a vessel in
navigable waters. Neither does Feczko claim that the mooring of a pleasure boat at a marina
does not bear a substantial relationship to traditional maritime activity. Indeed, the Supreme
Court has expressly held that the storage and maintenance of a vessel at a marina on navigable
waters is substantially related to traditional maritime activity. Id. at 367 (quotation marks
omitted). Accordingly, the Court focuses on the potential hazzard to maritime commerce.

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When a tort occurs on a vessel in navigable waters, finding maritime jurisdiction is the
norm. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995). The existence of
maritime jurisdiction does not turn on the actual effects of the particular incident on maritime
commerce. Sisson, 497 U.S. at 362. Instead, a court must examine the general features of the
incident and the general conduct from which the incident arose for the potential to disrupt
commercial activity. Id. at 363-64.
When viewed in this light, it is clear that deaths occurring on a moored pleasure boat due
to carbon monoxide emissions pose a potential hazzard to maritime commerce. As Plaintiff
points out, such an occurrence could have required the response of emergency personnel whose
activities could have hindered the passage of other vessels and the access of vessels and
passengers to the dock.
Because all three parts of the test announced in Sisson are met, the incident that took the
lives of Michael McKinney and Jennifer Ellenberger falls within the maritime jurisdiction of this
Court.

C.

Conclusion
For the foregoing reasons, Respondent Patti Feczko’s motion to dismiss for lack of

subject matter jurisdiction (DE 17) is DENIED. Plaintiff is directed to email to the chambers
email address updated proposed orders with respect to his motions filed as Docket Entry 5.
SO ORDERED on July 23, 2018.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge

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