Nguyen et al v. American Commercial Lines, Inc. et al
Filing
34
ORDER AND REASONS granting 13 Motion to Dismiss OPA Claims Pursuant to Rule 12(c). Signed by Judge Ivan L.R. Lemelle. (Reference: all cases)(ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NGUYEN, ET AL.
CIVIL ACTION
VERSUS
NO. 11-1799 c/w 11-2705
PERTAINS TO ALL CASES
AMERICAN COMMERCIAL LINES,
INC. ET AL.
SECTION: “B” (4)
ORDER AND REASONS
Before the Court is Defendant American Commercial Lines’
(“ACL”) Motion to Dismiss OPA Claims Pursuant to Rule 12(c),
Plaintiffs’ opposition and ACL’s subsequent Reply. (Rec. Doc.
Nos. 13, 21 and 29). Accordingly, and for the reasons articulated
below,
IT
IS
ORDERED
that
ACL’s
Motion
to
Dismiss
be
GRANTED
without prejudice.1
CAUSE OF ACTION AND FACTS OF THE CASE:
On July 23, 2008, the M/V TINTOMARA and the barge DM–932,
which was being towed by the M/V MEL OLIVER, collided on the
Mississippi River, causing oil to spill into the river. ACL, the
1
We are grateful for the work on this case by Emily C. Byrd, a Loyola
University New Orleans College of Law Extern with our Chambers.
1
barge owner, DRD, the towboat operator, and TINTOMARA interests,
the owners of the M/V TINTOMARA, each filed limitation complaints
in this Court. (Rec. Doc. No. 1). Numerous claims have been filed
in those limitations, including claims for relief pursuant to the
Oil Pollution Act of 1990 (“OPA”)2 and other claims for damages
as a result of the oil spill. (Rec. Doc. No. 1)
Similar to Gabarick v. Laurin Maritime (America), Inc.,3
these tangential claims of commercial fishermen and/or seafood
wholesalers are brought before this Court as the result of the
oil spill caused by the collision of the aforementioned vessels.
The Claims Adjudication Division of the United States Coast Guard
(“Coast
Guard”)
formally
designated
the
source
of
the
oil
discharge as DM-932. The designation also applied to ACL, as a
party that may be held liable for removal costs and damages. Id.
at 743.
LAW AND ANALYSIS
1. 12(c) Standard of Review
A motion for judgment on the pleadings under Rule 12(c) is
subject to the same standards as a motion to dismiss for failure
to state a claim under Rule 12(b)(6). Doe v. MySpace, Inc., 528
F.3d 413, 418 (5th Cir. 2008); Great Plains Trust Co v. Morgan
2
33 U.S.C §§ 2701 to 2716.
3
623 F. Supp. 2d 741 (E.D. La. 2009).
2
Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002). In
determining
whether
dismissal
is
appropriate,
the
court
must
decide whether the facts alleged in the pleadings, if true, would
entitle the plaintiff to some sort of legal remedy. Ramming v.
U.S., 281 F.3d 158, 162 (5th Cir. 2001); Cinel v. Connick, 15
F.3d 1338, 1341 (5th Cir. 1994). The Supreme Court has put it
this way: “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Judgment on the pleadings is
appropriate only if there are no disputed issues of material fact
and only questions of law remain. Voest–Alpine Trading USA Corp.
v. Bank of China, 142 F.3d 887, 891 (5th Cir. 1998).
2. OPA Compliance
There are two instances when OPA allows for an action to be
brought before the Court. First, an action may be brought if
“each person to whom the [OPA] claim is presented denies all
liability for the claim.” 33 U.S.C. § 2713(c)(1). Or, “an action
may be commenced if ‘the claim is not settled by any person by
payment within 90 days after the date upon which (A) the claim
was presented, or (B) advertising was begun ..., whichever is
3
later.’” Gabarick v. Laurin Mar. (Am.) Inc., 2009 WL 102549 (E.D.
La. Jan. 12, 2009)(citing 33 U.S.C. § 2713(c)(2)). OPA requires
that “all claims for removal costs or damages be presented first
to
parties
responsible
for
spill
[as
a]
mandatory
condition
precedent to filing of private lawsuits under OPA.” Boca Ciega
Hotel, Inc. v. Bouchard Trasp. Co., Inc., C.A. 11(Fla.) 1995, 51
F.3d 235. The text of OPA designates its “mandatory and exclusive
nature.”
Gabarick v. Laurin Mar. (Am.) Inc., 623 F. Supp. 2d
741, 745 (E.D. La. 2009) (addressing 33 U.S.C. 2702(a)). Section
2713(a) uses the “absolute words ‘all’ and ‘shall,’ meaning for
‘all claims’” and directing that they “shall” be first presented
to the responsible party. Id. at 746. “The purpose of the claim
presentation
procedure
is
to
promote
settlement
and
avoid
litigation.” Johnson v. Colonial Pipeline Co., 830 F.Supp. 309,
310 (E.D. Va. 1993)
Coast Guard regulations require at a minimum, a general
description of the nature and extent of the impact of the oil
spill and the associated damages, a list of the damages with a
“sum
certain”
attributed
to
each
type
of
damage
listed
evidence to support the claim.4
The general requirements for a claim are laid out in 33
4
33 C.F.R. 136.105
4
and
C.F.R. 136.105:
. . .(b) Each claim must be in writing for a sum certain for
compensation for each category of uncompensated damages or
removal costs (as described in Subpart C of this part)
resulting from an incident. . .
. . .(5) An explanation of how and when the removal costs or
damages were caused by, or resulted from, an incident.
(6) Evidence to support the claim.
. . .(8) The reasonable costs incurred by the claimant in
assessing the damages claimed. This includes the reasonable
costs of estimating the damages claimed, but not attorney's
fees
or
other
administrative
costs
associated
with
preparation of the claim.
. . . (13) In the discretion of the Director, NPFC, any
other information deemed relevant and necessary to properly
process the claim for payment.
OPA applies when “each responsible party for a vessel or a
facility from which oil is discharged,. . . into or upon the
navigable
economic
waters
zone
is
or
adjoining
liable
for
shorelines
the
removal
or
the
costs
exclusive
and
damages
specified . . . that result from such incident.” 33 U.S.C. §
2702.
Neither
Plaintiffs
nor
ACL
raise
issue
with
the
applicability of OPA to this accident. (Rec. Doc. Nos. 1 and 10).
Under the OPA, claimants are required to exhaust administrative
remedies, either by the responsible party denying liability or a
failure to address the action within 90 days of advertisement or
presenting a claim. At issue is whether Plaintiffs have exhausted
their administrative remedies through OPA, a condition precedent
5
to bringing this matter in federal court.
The Coast Guard regulation provides specific guidance on
necessary evidence to prove a claim.5 In order to handle the
claims presented, ACL retained a Claims Administrator (“CA”) for
the claims received. The CA set forth seven items they required
for presentation of the claims including:(1) 2007 and 2008 Tax
Returns; (2) Record of daily “catch” and or sales data of each
claimant
for
May-September
of
2008;
(3)
an
explanation
with
support for the number of “lost days” claimed by each claimant;
(4) a “calculation” showing how the claimed “lost income per day”
was determined from the support provided by each claimant; (5) an
explanation on the loss of “subsistence” and how was the $60.00
per day computed; (6) invoices for the hull cleaning cost of
$200.00 for each claimant; and (7) a map that indicates the exact
location where the claimant normally fishes or stores their boat.
The CA also reserved the right to demand further documentation.
When compared with the requirements of the Coast Guard, the CA’s
requirements of supporting documentation appear consistent with
what is required for claim presentation by regulation. Claimants
who fail to comply with the presentment requirement are subject
to dismissal without prejudice, allowing them leave to exhaust
5
See supra, note 1.
6
the presentment requirement of OPA before returning to court. In
re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of
Mexico, on April 20, 2010, 808 F. Supp. 2d 943, 964 (E.D. La.
2011).
Based on the above regulations set forth by the Coast Guard,
the claim evidence required by the CA appears to be in line with
the requirements provided by regulation. ACL’s allegation that
Plaintiffs have not fully exhausted their claims under OPA is
supported by the evidence. (Rec. Doc. No. 10-1). Plaintiffs are
missing supporting documentation for several claimants, which
would indicate that the CA was not able to fully analyze their
claims. Specifically, the CA lists individual claimants and the
documents they are missing in a letter provided to Plaintiffs’
attorney.
(Rec.
Doc.
No.
10-1
at
8).
The
only
evidence
ACL
supplies of missing documents pertain to claimants’ 2007 and 2008
tax returns, which would support the allegation of a loss due to
the spill.
While Plaintiffs submit one completed claim with the
CA’s requested documents, there is a lack of support that this
claim
is
representative
of
the
majority,
nor
that
documents
requested by the CA have since been provided. (Rec. Doc. No. 21
and Exhibits).
requirement,
Moreover, by not complying with the presentment
Plaintiffs
have
yet
to
fully
exhaust
their
OPA
remedies, barring this case from being heard before this Court.
7
Based on the above, Plaintiffs’ claim against ACL should be
dismissed without prejudice to allow Plaintiffs to exhaust their
OPA remedies before proceeding with court action. Accordingly,
and for the reason articulated above,
New Orleans, Louisiana, this 9th day of November, 2012.
______________________________
UNITED STATES DISTRICT JUDGE
8
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