LeBouef v. Louisiana International Marine, LLC
Filing
24
ORDER & REASONS: granting in part and denying in part 22 Motion to Dismiss as set forth in document. Signed by Judge Carl Barbier on 12/20/12. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEBOUEF
CIVIL ACTION
VERSUS
NO: 12-1683
LOUISIANA INTERNATIONAL
MARINE, LLC.
SECTION: "J” (2)
ORDER AND REASONS
Before
the
Court
are
Defendant’s
Motion
to
Dismiss
Plaintiff’s Third Amended Seaman’s Complaint (Rec. Doc. 22) and
Plaintiff’s opposition to same (Rec. Doc. 23). Defendant’s motion
was set for hearing on December 5, 2012, on the briefs, without
oral argument. Having considered the motion and legal memoranda,
the
record,
and
the
applicable
law,
the
Court
finds
that
Defendant’s motion should be GRANTED in part and DENIED in part
for the reasons set out more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This action arises out of personal injury claims brought
under general maritime law and the Jones Act. On June 28, 2012,
Plaintiff,
Raymond
LeBouef,
filed
1
this
action,
naming
as
Defendant Louisiana International Marine, LLC.
In his initial complaint, Plaintiff alleges that he was
injured while working aboard a vessel, M/V LA. COMMANDER, owned
by Defendant. Plaintiff alleges that his injuries were caused by
Defendant’s negligence and/or the unseaworthy conditions aboard
the vessel. Plaintiff seeks, among other remedies, maintenance
and cure.
On June 28, 2012, Plaintiff amended his complaint to delete
any reference to a jury trial and to clarify his prayer for
relief.
Am.
Compl.,
Rec.
Doc.
3.
Defendant
answered
both
Plaintiff’s complaint and amended complaint on July 31, 2012.
Answers, Rec. Docs. 4, 5. On August 16, 2012, Plaintiff requested
leave to amend his complaint a second time, seeking to clarify
the jurisdictional basis of the suit and to designate the action
as one proceeding under Federal Rule of Civil Procedure 9(h).
Second Mot. to Am. Compl., Rec. Doc. 8-2. The Magistrate Judge
granted Plaintiff’s request on August 31, 2012, after Defendant
withdrew its opposition to Plaintiff’s request. See Rec. Doc. 12.
Subsequently, on October 10, 2012, Plaintiff requested leave
to amend his complaint a third time, this time seeking to add a
fourth cause of action for retaliatory discharge under maritime
law. Third Mot. to Am. Compl., Rec. Doc. 15-2. Defendant opposed
2
Plaintiff’s request, arguing that (1) Plaintiff had failed to
show
good
cause
for
granting
leave
to
modify
the
Court’s
scheduling order, and (2) that Plaintiff’s amended complaint was
subject
to
dismissal
under
Federal
Rule
of
Civil
Procedure
12(b)(6). Def. Opp. to Pl.’s Third Mot. to Amend. Compl., Rec.
Doc.
16.
On
October
30,
2012,
the
Magistrate
Judge
granted
Plaintiff’s request to file a third amended complaint, noting
that Plaintiff had established “good cause” for amending after
the scheduling order deadline under Rule 16. Rec. Doc. 20, p. 2.
The Magistrate Judge did not address Defendant’s arguments under
Rule 12(b)(6), focusing only on the Rule 15 and Rule 16 analysis.
See Rec. Doc. 20.
On October 30, 2012, Plaintiff’s amended complaint was filed
into the record, and on November 15, 2012, Defendant filed the
instant Motion to Dismiss for Failure to State a Claim. Rec. Doc.
22. Plaintiff responded in opposition on November 26, 2012.
THE PARTIES’ ARGUMENTS
Defendant argues that Plaintiff’s third amended complaint
should be dismissed because it fails to state a claim for which
relief
can
be
granted.
Specifically,
Defendant
contends
that
Plaintiff’s retaliatory discharge claim is conclusory, and that
Plaintiff has failed to allege any facts supporting his claim for
3
relief.
In response, Plaintiff contends that his amended complaint
clearly alleges that he is entitled to recover the damages he
sustained when Defendant unlawfully discharged him in retaliation
for filing the instant personal injury action. Plaintiff contends
that
this
allegation
is
supported
by
deposition
testimony.1
Furthermore, Plaintiff asserts that by allowing him to amend his
complaint and add the retaliatory discharge claim, “this Court
has already ruled upon the merits of Defendant’s Rule 12(b)(6)
argument and ruled in Plaintiff’s favor.” Pl.’s Opp., Rec. Doc.
23, p. 2. Alternatively,
Plaintiff requests that the Court grant
him leave to amend if it finds fault with his pleading.
DISCUSSION
Under the Federal Rules of Civil Procedure, 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).
The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
1
Plaintiff reports that “subsequent investigation revealed that Plaintiff
was fired solely in retaliation for filing this suit.” Pl.’s Opp., Rec. Doc. 23,
p. 1. Furthermore, Plaintiff explains that he learned this information because
a “mate on his vessel told him [that he was] banned from the vessel because he
had retained a lawyer.” Pl.’s Opp., Rec. Doc. 23, p. 1. Plaintiff notes that he
stated this in his deposition; however, he explains that the deposition
transcript had not been prepared as of the time he filed his response. Pl.’s
Opp., Rec. Doc. 23, p. 1 n. 1.
4
Broudo,
544
U.S.
336,
346
(2005).
simple, concise, and direct.”
The
allegations
“must
be
FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts 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, 547
(2007)).
A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id.
A
court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations.
Plaintiff’s
Iqbal, 556 U.S. at 678.
third
amended
complaint
adds
a
retaliatory
discharge claim that reads as follows,
At all times material herein there was cognizable under
the
General
Maritime
Law
of
the
United
States
and
ancillary to the aforementioned Jones Act, 46 U.S.C.
688, a cause of action for damages on account of the
5
unlawful and retaliatory discharge of a seaman when the
discharge
offends
established
public
policy
and/or
seaman is discharged for exercising a lawful and/or
statutory right, and as a direct result of plaintiff’s
tortuous
[sic]
retaliatory
discharge
by
defendant,
plaintiff has sustained, and will continue to sustain
in the future lost income (including benefits) and the
impairment of earning capacity in the future.
Rec. Doc. 21, pp. 1-2. No other facts with respect to this claim
are
included
in
the
third
amended
complaint
or
Plaintiff’s
previous complaints. In particular, the Plaintiff has not alleged
which lawful and/or statutory right he was fired for exercising,
that his employer knew of Plaintiff’s protected action, and that
his employer terminated him for that action. Despite Plaintiff’s
arguments to the contrary, it is certainly not clear from the
above-quoted
excerpt
that
Plaintiff
has
alleged
that
he
was
terminated for filing this suit or for taking any other protected
actions. Rather, Plaintiff has merely made a conclusory statement
that he has an action for retaliation. Even under the liberal
pleading standards of Rule 8, such a statement is not sufficient.
Therefore, this Court finds that Plaintiff has failed to state a
6
claim for retaliatory discharge.2 Notwithstanding this finding,
because it appears from Plaintiff’s opposition that he might be
able to state a claim if he were to allege facts in connection
with his conclusory argument, this Court finds that rather than
simply
dismissing
the
complaint,
Plaintiff
should
be
granted
leave to amend. Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion is GRANTED in
part and DENIED in part.
To the extent that Defendant requests that Plaintiff’s third
amended complaint alleging a claim for retaliatory discharge be
dismissed, it is GRANTED; however, because it appears that the
defects
in
Plaintiff’s
Plaintiff’s
complaint
pleading
is
can
be
DISMISSED
cured
by
without
amendment,
prejudice.
Consequently, Plaintiff is GRANTED leave to amend his pleading as
to his retaliatory discharge claim in accordance with this Order.
Plaintiff must submit an amended complaint to this Court within
twenty-one (21) days of entry of this Order. Failure to amend
Plaintiff’s complaint within the required period will result in
dismissal of this claim with prejudice.
2
In response to Plaintiff’s argument that the Magistrate Judge previously
decided the Rule 12(b)(6) challenge when he granted the Plaintiff leave to amend,
the Court notes that even a cursory reading of the Magistrate Judge’s order
reveals that he never broached the question of Rule 12(b)(6) dismissal, but
rather only addressed the amendment under Rules 15 and 16.
7
New Orleans, Louisiana this 20th day of December, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
8
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