Consolidated Grain & Barge, Inc. v. Anny et al

Filing 143

ORDER denying 101 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Jay C. Zainey on 2/5/13. (Reference: 11-2204)(jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CONSOLIDATED GRAIN & BARGE,
INC.

CIVIL ACTION

VERSUS

No. 11-2204 c/w 11-2615
Ref: 11-2204

RANDY ANNY, SERENDIPITY
MARINE SERVICES, LLC, AND THE
UNITED STATES ARMY CORPS OF
ENGINEERS

SECTION: "A" (1)

ORDER AND REASONS
Defendants Randy Anny and Serendipity Marine Services, L.L.C. have filed the instant
Motion to Dismiss (Rec. Doc. 101). Defendants move to dismiss Plaintiff’s complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction arguing that
Plaintiff lacks standing under Article III to assert its claims. The motion, which was set for hearing
on November 7, 2012, was heard on the briefs without oral argument. For the following reasons,
the motion is DENIED.
I.

BACKGROUND

This suit stems from a property dispute between Plaintiff Consolidated Grain and Barge,
Inc. (“CGB”), and Defendant Randy Anny (“Anny”). CGB presently operates a barge fleeting
operation on the left descending bank of the Mississippi River pursuant to a permit issued by the
Army Corps of Engineers (“Corps”).1 CGB’s permit, which was first issued in 1980 and has since

The Corps was originally a defendant in the instant suit. However, on February 17, 2012,
the Court granted a Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure
to State a Claim upon Which Relief Can Be Granted (Rec. Doc. 33) filed by the Corps, finding
that CGB did not state a jurisdictional basis for its declaratory judgment claim against the Corps, and
that the claim against the Corps was not cognizable under either the RHA or the APA. Accordingly,
the Corps is no longer a party to this suit. See Rec. Doc. 54.
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been modified multiple times, currently authorizes CGB to fleet twenty-five tiers of barges along a
specific stretch of the Mississippi River.
Defendant Anny also holds a permit, which was first issued by the Corps in 1993. Anny’s
permit originally allowed for a borrow pit, but was modified in 1997 to authorize sand dredging. In
February 2011, Anny applied for a permit modification which would allow barge fleeting and revise
the dredging area. During the public comment period, CGB submitted a written objection to the
Corps regarding Anny’s barge fleeting request based on three assertions: 1) CGB held a valid permit
for the same area; 2) Anny could not prove his rights to the adjacent riparian land; and 3) CGB could
prove its rights to the adjacent riparian land. CGB alleges that it requested and was denied a public
hearing on these issues. Despite CGB’s objections, on June 29, 2011, the Corps granted Anny’s
permit modification and authorized barge fleeting of nine tiers of ten barges. According to CGB,
Anny’s revised permit allows him to perform the same activities as CGB in the same location on the
Mississippi River.
CGB subsequently filed a Complaint for Temporary Restraining Order, Preliminary
Injunction, Permanent Injunction, Damages, and Declaratory Judgment (Rec. Doc. 1)
against Defendant Anny, Defendant Serendipity Marine Services, LLC ("SMS"), and Defendant the
Corps.2 CGB claims that Defendants have tortiously interfered with its barge fleeting operations in
the Mississippi River, and seeks a declaration of its rights to operate the fleet pursuant to the permit
issued by the Corps. According to CGB, Defendants Anny and/or SMS have disrupted its business
operations and customer relations by, inter alia: contacting CGB's customers and informing them

As stated supra, all claims against the Corps have since been dismissed.

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that they were not authorized to moor barges at CGB's mooring facility; entering the mooring
facility and attempting, without permission, to move CGB's barges located therein; and approaching
a surveyor hired by CGB to survey property owned or leased by CGB, accusing the surveyor of
trespassing, and demanding that the surveyor cease his work on the property. CGB claims that the
actions of Defendants Anny and SMS constitute a maritime tort, specifically, trespass. CGB asserts
that Defendants’ actions have resulted in irreparable harm and injury to CGB, and seeks damages
for that harm.
CGB’s application for a temporary restraining order was denied (see Rec. Doc. 6, order by
Vance, J.); however, its motion for declaratory judgment is still pending before the Court. In its
complaint, CGB argues that Anny’s permit was issued in violation of the Administrative Procedure
Act (“APA”) and is invalid because it was issued based on intentional and/or negligent
misrepresentations by Anny to the Corps. According to CGB, Anny’s permit application incorrectly
stated that Anny owns the riparian land which forms the site of CGB’s mooring facility. CGB
asserts that, had the Corps known of said misrepresentations before issuing Anny’s permit, the
Corps would not have or should not have issued said permit.
According to CGB, it is not feasible for CGB’s permit and Anny’s permit to co-exist because
the permits purport to allow the parties to maintain large barge fleets at the same location on the
river. CGB asserts that, in the event that Anny were to attempt to conduct barge fleeting operations
in the same location as CGB’s mooring facility, as authorized by Anny’s permit, their actions would
“disrupt and interfere with CGB’s barge fleet, create a dangerous condition on the Mississippi River,
interfere with and endanger navigation on the Mississippi River, . . . and endanger public health,
safety, and welfare.”
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CGB presently seeks a declaratory judgment in its favor and against Defendants Anny and
SMS declaring Anny’s permit to be violative of the APA and null and void insofar as it purports to
authorize Anny to maintain a barge fleet at the same location as CGB’s fleet and mooring facility. In
the alternative, CGB seeks a judgment that Anny’s permit and rights to barge fleeting at that location
are inferior and subject to CGB’s permit and rights pursuant to it. CGB further seeks damages for
trespass and for reputational harms caused by Anny’s alleged conduct.
In the instant motion, Defendants argue that because CGB is allegedly not the entity
conducting the permitted barge fleeting operations nor the entity possessing the riparian land rights
required for fleeting, CGB lacks standing to assert the claims brought in this lawsuit and therefore
those claims must be dismissed for want of subject matter jurisdiction.
II.

STANDARD OF REVIEW
1. Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and possess power over only those cases
authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th
Cir.1996). If a district court lacks jurisdiction over the subject matter of a plaintiff's claims, dismissal
is required. See Fed.R.Civ.P. 12(b)(1). The lack of subject matter jurisdiction may be raised at any
time during the pendency of the case by any party or by the court. See Kontrick v. Ryan, 540 U.S. 443,
456 (2004) (“A litigant generally may raise a court's lack of subject-matter jurisdiction at any time in
the same civil action, even initially at the highest appellate instance.”); McDonal v. Abbott Labs, 408
F.3d 177, 182 n. 5 (5th Cir. 2005) (“[A]ny federal court may raise subject matter jurisdiction sua
sponte.”).
In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone,
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presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the
complaint supplemented by undisputed facts and by the court's resolution of disputed facts. Den
Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also
Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The party asserting jurisdiction
bears the burden of establishing that the district court has jurisdiction. Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001). A court's dismissal of a case for lack of subject matter jurisdiction is
not a decision on the merits, and the dismissal does not ordinarily prevent the plaintiff from
pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
2.

Article III Standing

Standing, as required under Article III, Section 2, of the Constitution addresses who may
bring the suit.15-101 Moore's Federal Practice - Civil § 101.20 (See Presbytery of N.J. of Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454, 1469-1470 (3d Cir. 1994)). “The standing inquiry requires
careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is
entitled to an adjudication of the particular claims asserted.” Id. (See Allen v. Wright, 468 U.S. 737,
752, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984)). Further, “[t]he standing requirement is part of the
case or controversy needed to establish jurisdiction.” 12-57 Moore's Federal Practice - Civil § 57.22.
(See Abbott Labs. v. Gardner, 387 U.S. 136, 148-149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)). Lastly,
“[s]tanding must affirmatively appear in the record, and may not be inferred argumentatively from
averments in pleadings.” Id. (See Footnote 39. 28 U.S.C. § 2201(a). See also Advisory Committee Note
to 1937 Adoption to Fed. R. Civ. P. 57 (see § 57App.01[2])).
As recently held by the Fifth Circuit in In Re Mirant Corp., 675 F.3d 530 (5th Cir. 2012):
Constitutional standing requires three elements: First, the plaintiff must have suffered
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an “injury in fact”- an invasion of a legally protected interest which is (a) concrete and
particularized; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second,
there must be a causal connection between the injury and the conduct complained
of-the injury has to be “fairly ... trace[able] to the challenged action of the defendant,
and not ... th[e] result [of] the independent action of some third party not before the
court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
In Re Mirant Corp., 675 F.3d 530, 33 (5th Cir. 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted).
III.

DISCUSSION

In the present 12(b)(1) motion, Defendants argue that CGB lacks Article III standing.
Defendants argue that CGB is not the proper party with a right of action in the instant case and
therefore the Court lacks subject matter jurisdiction and must dismiss the litigation. Defendants cite
Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981), among other cases, to establish that a motion
for dismissal under Rule 12(b)(1) can be predicated upon either a “facial” attack, or a “factual”
attack to jurisdiction. As explained in Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511:
A “facial attack” on the complaint requires the court merely to look and see if plaintiff
has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion. A “factual attack,” however,
challenges the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered. Moreover, a “factual attack” under Rule 12(b)(1) may occur at any stage of
the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact
exist.
(Citations omitted). Further, when a “factual” attack to jurisdiction is raised no presumption of
truthfulness attaches to the plaintiff’s allegations. Williamson, 645 F.2d 404, 412. District courts are
empowered to resolve disputed factual issues related to jurisdiction under 12(b)(1) motions because,
as stated in Williamson, “[i]t is elementary that a district court has broader power to decide its own

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right to hear a case than it has when the merits of the case are reached.” Id. at 413. Defendants in the
instant motion assert a “factual” attack to jurisdiction and argue that the Court should resolve the
disputed issue of standing in their favor and dismiss this case for want of subject matter jurisdiction
because the wrong party brought this action.
In support of the instant motion, Defendants first point to the Department of the Army
permit, SE (Mississippi River) 1117 (“permit 1117"), which was transferred from GW Contractors,
Inc., to “Consolidated Grain & Barge, Inc.” on or about December 12, 19963 and then subsequently
modified by what Defendants have styled “other juridical entities” thereby ostensibly calling into
question whether CGB is in fact still the holder of, or the proper party to hold, the permit. For
example, on or about September 22, 1997 an application was filed with the Department of the Army
to install anchor pipes and mooring chains in the vicinity of River Mile 165.7 by “CGB Marine
Services at M.P. 164.”4 Then, on or about October 12, 1999 an application was filed with the
Louisiana Department of Natural Resources, Coastal Management Division seeking permission to
install a permanently moored deck barge with spud piling by “CGB Marine Services at M.P. 164,
Inc..”5 Then on or about May 12, 2012 an application was filed with the Louisiana Department of

3

Transfer was finalized by the Department of the Army on December 20, 1996. See Rec.
Doc. 101-4.
4

The Court notes that as part of this application, a Form of No Objection letter was entered
by the State of Louisiana Department of Transportation and Development wherein “CGB Marine
Service” is listed as the applicant. See Rec. Doc. 101-5 at 2.
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The Court notes that as part of this application, even within the initial correspondence,
“CGB Marine Services at M.P. 164, Inc.”, “CGB Marine Services”, and “CGB Marine” are all names
listed in one form or another as the sole applicant. Further, by letter of October 27, 1999 from the
State of Louisiana Department of Natural Resources “CGB Marine Services @ M.P. 164, Inc.” is
referenced as the applicant. See generally Rec. Doc. 101-6.
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Natural Resources, Office of Coastal Management, seeking permission to establish a new barge
fleeting area to increase the capacity of an existing barge fleeting facility by “CGB Marine Services @
M.P. 164.” Finally, Defendants point to a letter and attachments mailed on August 22, 2012 by
counsel for CGB indicating that “CGB Marine Services at M.P. 164, Inc.” held permit 1117 which
had been issued on November 5, 1999 to “cover the installation and maintenance of a permanently
moored deck barge with spud piling at an existing permitted barge fleeting facility, in the Miss. River,
at a point about 165.2 miles above Head of Passes, on the LDB, near Central, Louisiana, in St. John
Parish.” Defendants argue that further confusion as to the identity of the holder of permit 1117
arises from the fact that the various required leases underpinning the permit list “CGB Marine
Services at Mile 164, a division of Consolidated Grain & Barge, Inc.” as the lessee.
Based on the foregoing, Defendants dispute whether CGB has a valid permit which they
argue would give rise to CGB having standing to assert the instant claim. Defendants state:
According to its own attorney, [CGB] is fleeting under Permit #1117; however, it is
undisputed that this permit was assigned to and bears the name of [CGB Marine
Services at M.P. 164, Inc.]. Because the assignment occurred in 1999, well before the
filing of this suit, Plaintiff, CGB, has no standing to assert a claim for trespass against
Anny. Given the absence of a legally protectable right, CGB lacks standing to assert any
claim for interference because it is not the entity conducting the permitted barge fleeting
operations at the location at issue.
In addition to the absence of a valid fleeting permits (sic), CGB does not possess
riparian rights required for fleeting. Lease agreements clearly indicate [CGB Marine
Services at Mile 164, a division of Consolidated Grain & Barge] as the lessee and despite
the fact that it is a division of CGB, it clearly has a separate and distinct juridical
persona. [CGB Marine Services at Mile 164, a division of Consolidated Grain & Barge]
has entered into leases which it claims are valid. It has applied for Coastal Use and
USACE permits in its own name, and it has appeared in other court proceedings
through its manager Frank Mellor.
Rec. Doc. 101-1 at 5. In conclusion, Defendants argue that:
Contrary to CGB’s assertion, it does not appear to hold a valid permit to fleet barges as
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claimed. It is beyond dispute that many of the leases granting the required riparian rights
do not identify CGB as the Lessee. Because these are essential elements required for
maintaining the current action, and essential to establish (sic) that this court has Subject
Matter Jurisdiction, CGB is required to prove it has standing.
Rec. Doc. 101-1 at 5-6.
In response, CGB argues that the question of whether CGB was the proper party with a
right of action, “ is a red herring, however, as the name ‘CGB Marine Services at Mile 164' is merely
a trade name that CGB uses to identify a division of CGB that operates at the location in question.”
Rec. Doc. 114 at 7. Further CGB argues that “CGB Marine Services at Mile 164 is not a legal entity
separate and distinct from CGB.” Id. CGB continues its argument by referencing the other business
names listed supra concluding that, “CGB is the proper party to bring the claims, since it, rather than
a trade name that is not a separate, legal entity, suffered actual injury at the hands of the defendants.”
Id. at 5. The Court agrees.
CGB argues that the first prong of the Article III standing test, supra, is satisfied because it
suffered an “injury in fact” when “SMS and Anny physically interfered with CGB’s barge fleeting
operations at mile 164 and sent disparaging letters to CGB’s customers.” Rec. Doc. 114 at 7. CGB
argues that the second prong is satisfied because, “it is undisputed that Anny and SMS performed
the actions that led to CGB’s ‘injury in fact.’” Id. CGB argues lastly that the third prong is satisfied
since a judgment against Defendants will redress CGB’s injury.
The essential dispute in this motion is whether CGB was the injured party. Defendants argue
that if there was an injury, it was not suffered by CGB because CGB did not obtain the necessary
leases and permits in its own name and therefore lacks standing to assert the claims in its complaint.
The Court finds that, notwithstanding the fact that alternate names and abbreviations have appeared

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on various applications, permits, and leases, CGB ultimately is the actual legal entity with standing to
bring its claims against Defendants. CGB has appeared as “CGB Marine Services at Mile 164, a
division of Consolidated Grain & Barge, Inc.” on each and every lease submitted by Defendants in
support of their motion. Defendants have failed to establish that “CGB Marine Services at Mile 164"
is anything other than a division of CGB. That is, Defendants have failed to establish that “CGB
Marine Services at Mile 164" is legally independent of CGB. As these leases form the basis of the
allegations contained in CGB’s complaint, CGB is the only proper party to assert the claims
contained in the complaint. After an analysis of the complaint, and considering the undisputed facts
and the Court's resolution of disputed facts, the Court finds that CGB was the proper party to bring
this action and accordingly must deny Defendants’ motion to dismiss.
IV.

CONCLUSION

Accordingly;
IT IS ORDERED that Defendant’s Motion to Dismiss(Rec. Doc. 101) is DENIED.
This 5th day of February, 2013.

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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