Cheramie v. Panther Helicopters, Inc. et al

Filing 30

ORDER AND REASONS - the Court GRANTS Rolls-Royce's motion 11 to dismiss under Rule 12(b)(6) and dismisses Cheramie's maritime products liability claim against Rolls-Royce. The Court DENIES Rolls-Royce's motion for a more definite sta tement under Rule 12(e). The Court GRANTS Cheramie leave to amend his complaint within twenty-one (21) days of the entry of this order. If Cheramie fails to timely amend his complaint to cure his claim against Rolls-Royce, the Court will dismiss Rolls-Royce with prejudice.. Signed by Chief Judge Sarah S. Vance on 2/18/15. (Reference: 14-1597)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK CHERAMIE

CIVIL ACTION

VERSUS

NO: 14-1597

PANTHER HELICOPTERS, INC., ET AL.

SECTION: R

ORDER AND REASONS
Defendant Rolls-Royce Corporation moves to dismiss under
Rule 12(b)(6) plaintiff Mark Cheramie's claim against it or, in
the alternative, moves for a more definite statement under Rule
12(e).

For the following reasons, the Court GRANTS the motion to

dismiss.

I.

BACKGROUND
On July 10, 2014, plaintiff Mark Cheramie sued defendants

Panther Helicopters, Inc. and Rolls-Royce for their alleged
involvement in a helicopter accident in which he was injured.1
The facts surrounding the accident, as alleged in Cheramie’s
complaint, are as follows.
Cheramie worked for EPL Oil & Gas, Inc. on Platform 33208H
in the Gulf of Mexico.2

1

R. Doc. 1.

2

Id. at 2.

Panther owned and operated the

helicopter used to transport EPL employees to and from the
offshore oil platform.3
On or about August 13, 2013, plaintiff was a passenger in a
helicopter departing from Platform 33208H.4

The helicopter used

an engine “designed, manufactured, and distributed” by RollsRoyce.5

Immediately after take off, the helicopter “lost engine

power” and crashed into the navigable waters of the Gulf of
Mexico.

As a result, Cheramie suffered serious injuries.6

Cheramie blames the accident on defendants’ negligence, including
Rolls-Royce’s design and manufacture of the “defective engine.”7
Rolls-Royce now moves the Court to dismiss Cheramie’s claim
against it or, in the alternative, to require plaintiff to
provide a more definite statement.8

II. LEGAL STANDARD
A. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead enough facts to "state a claim to relief

3

Id.

4

Id.

5

Id.

6

Id.

7

Id.

8

R. Doc. 11.
2

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, 570
(2007)).

A claim is facially plausible "when the plaintiff

pleads factual content that allows 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, 239

(5th Cir. 2009).
A legally sufficient complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause
of action.

Id.

In other words, the face of the complaint must

contain enough factual matter to raise a reasonable expectation
that discovery will reveal evidence of each element of the
plaintiff's claim.

Lormand, 565 F.3d at 257.

If there are

insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the claim
must be dismissed.

Twombly, 550 U.S. at 555.

B. Motion for a More Definite Statement
A district court will grant a motion for a more definite
statement pursuant to Rule 12(e) when the pleading at issue “is
so vague or ambiguous that a party cannot reasonably be required
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to frame a responsive pleading.”

Fed. R. Civ. P. 12(e).

The

motion must state the defects in the pleading and the details
desired.

See id.

A party, however, may not use a Rule 12(e)

motion as a substitute for discovery.

Mitchell v. E–Z Way

Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959).

Given the

liberal pleading standard set forth in Rule 8, Rule 12(e) motions
are disfavored.

See Mitchell, 269 F.2d at 132; Gibson v. Deep

Delta Contractors, Inc., No. 97-3791, 2000 WL 28174, at *6 (E.D.
La.2000).

At the same time, the Supreme Court noted that “[i]f a

pleading fails to specify the allegations in a manner that
provides sufficient notice,” then a Rule 12(e) motion may be
appropriate.
(2002).

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514

In deciding whether to grant a Rule 12(e) motion, the

trial judge is given considerable discretion.

Newcourt Leasing

Corp. v. Regional Bio–Clinical Lab, Inc., No. 99-2626, 2000 WL
134700, at *1 (E.D. La.2000).
III. MOTION TO DISMISS
A. Choice of Law
As a preliminary matter, the Court must determine which body
of law governs Cheramie’s claims.

Cheramie filed suit in federal

court, invoking the Court’s diversity jurisdiction under 28
U.S.C. § 1332.9

9

Plaintiff did not invoke the Court's admiralty

R. Doc. 1 at 3.
4

jurisdiction.

Meanwhile, Rolls-Royce argues its motion under

Louisiana law.10

Thus, the Court must decide whether Cheramie’s

claim against Rolls-Royce arises under Louisiana law or federal
maritime law.
Though Cheramie did not expressly invoke admiralty
jurisdiction, if the Court finds that his complaint alleges a
“maritime tort,” general maritime law will apply.

Hamm v. Island

Operating Co., 450 F. App’x 365, 368 (5th Cir. 2011) (“Whether
federal maritime law applies of its own force turns on whether
[the plaintiff] has alleged a maritime tort against [the
defendant].”); Wiedemann & Fransen, A.P.L.C. v. Hollywood Marine,
Inc., 811 F.2d 864, 865-66 (5th Cir. 1987) (applying the maritime
tort test though the plaintiff did not expressly plead admiralty
jurisdiction).
For federal maritime law to apply to a tort claim against a
defendant, the claim must satisfy both a "location" and a
"connection" test.

Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527, 534 (1995).

The location test asks

"whether the tort occurred on navigable water or whether injury
suffered on land was caused by a vessel on navigable water."
(citations omitted).

Id.

The connection test asks two questions.

First, it looks to "the general features of the type of incident

10

R. Doc. 11-1 at 4.
5

involved" and asks "whether the incident has a potentially
disruptive impact on maritime commerce."

Id. (citations and

internal quotation marks omitted). Second, it asks "whether the
general character of the activity giving rise to the incident
shows a substantial relationship to traditional maritime
activity."

Id. (citations and internal quotation marks omitted).

This case easily satisfies the location test, because
Cheramie alleges that the actual injury occurred "on navigable
water."

See id.

Cheramie alleges that he was injured when the

Panther helicopter crashed in the Gulf of Mexico.11

As there is

no dispute that the Gulf of Mexico constitutes navigable waters,
the location test is met.
Under the first prong of the connection test, the Court must
ask “whether the incident has a potentially disruptive impact on
maritime commerce.”

Id.

The Supreme Court has recognized that

aircraft accidents into navigable waters are potentially
disruptive to maritime commerce because they can create
navigation hazards that impede maritime commerce.

See Sisson v.

Ruby, 497 U.S. 358, 363 (1990) (“[A]n aircraft sinking in the
water could create a hazard for the navigation of commercial
vessels in the vicinity.”) (internal quotation marks omitted));
see also Brown v. Eurocopter, S.A., 38 F. Supp. 2d 515, 518 (S.D.
Tex. 1999) (“This [potentially disruptive impact] prong of the
11

R. Doc. 1 at 2.
6

inquiry focuses . . . on whether the incident was of a type of
class of incidents that poses ‘more than a fanciful risk ro
commercial shipping.’ The sinking of an aircraft in navigable
waters in well within that class of incidents.” (internal
citations omitted)).

Thus, a helicopter crash in the Gulf of

Mexico is potentially disruptive of maritime commerce.

The first

prong of the connection test is satisfied.
Under the second prong of the connection test, the Court
asks "whether the general character of the activity giving rise
to the incident shows a substantial relationship to traditional
maritime activity."

Grubart, 513 U.S. at 534.

Both the Supreme

Court and the Fifth Circuit have held that helicopter transport
to and from offshore platforms bears a substantial relationship
to traditional maritime activity.

See Offshore Logistics, Inc.

v. Tallentire, 477 U.S. 207, 218-19 (1986); Alleman v. Omni
Energy Servs. Corp., 580 F.3d 280, 284-85 (5th Cir. 2009).

As

the Supreme Court has explained, offshore transport helicopters
are engaged “in a function traditionally performed by waterborne
vessels: the ferrying of passengers from an ‘island,’ albeit an
artificial one, to the shore.”
218-19.

Offshore Logistics, 477 U.S. at

Therefore, the second prong of the connection test is

satisfied.

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Because Cheramie’s allegations meet the location test and
both prongs of the connection test, Cheramie has alleged a
maritime tort.

Accordingly, federal maritime law applies.

B. Maritime Products Liability
Rolls-Royce challenges whether Cheramie has adequately
stated his products liability claim.
In East River Steamship Corp. v. Transamerica Delaval, Inc., the
Supreme Court recognized that products liability law is a part of
general maritime law.

476 U.S. 858, 865-66 (1986).

Because

general maritime law is “an amalgam of traditional common-law
rules, modifications of those rules, and newly created rules[,]”
courts consult state law and the Restatement (Second) of Torts
for the applicable substantive law of products liability.
Vickers v. Chiles Drilling Co, 822 F.2d 535, 538 (5th Cir. 1987)
(quoting E. River S.S. Corp, 476 U.S. at 865)).

The Supreme

Court and the Fifth Circuit apply § 402(A) of the Restatement
(Second) of Torts to maritime products liability cases.

Saratoga

Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 879-80 (1997)
(reasoning that maritime products liability law under the
Restatement (Second) of Torts only permits recovery for damage to
“other property” rather than to the defective product itself);
Vickers, 822 F.2d at 538 (applying § 402(A) to a design defect
case); see also 1 Thomas J. Shoenbaum, Admiralty and Maritime Law
§ 5-7 (5th ed. 2012) (“The applicable substantive law of products
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liability in admiralty is Section 402a of the Restatement
(Second) of Torts[.]”).
Louisiana’s products liability law may be applied to
maritime actions when its provisions are consistent with §
402(A).

Transco Syndicate No. 1, Ltd. v. Bollinger Shipyards,

Inc., 1 F. Supp. 2d 608, 614 (E.D. La. 1998).

But when state law

conflicts with the Restatement, the Court should apply the
Restatement’s rules.

Id.

By applying the Restatement’s

provisions, the Court furthers the federal interest in
establishing uniform rules of maritime law.

Id.

(citing La. ex

rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1032 (5th Cir. 1985)
(en banc)).
Section 402(A) provides as follows:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to
his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to
his property, if
(a) the seller is engaged in the business of
selling such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in
the preparation and sale of his product, and
(b) the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
Restatement (Second) of Torts § 402(A).

Thus, to adequately

plead a maritime products liability claim under § 402(A), a

9

plaintiff must allege, among other things, “that the product was
unreasonably dangerous or was in a defective condition when it
left the defendant’s control.”

In re M/V DANIELLE BOUCHARD, 164

F. Supp. 2d 794, 798 (E.D. La. 2001) (quoting 1 Thomas J.
Shoenbaum, Admiralty & Maritime Law § 5-6 (3d ed. 2001)); see
also Vickers, 822 F.2d at 538 (citing Restatement (Second) of
Torts § 402(A)).
Here, Cheramie alleges only that the engine was “defective.”
Cheramie does not allege when or how the engine became defective.
Therefore, the Court has no factual basis for inferring that the
engine was defective at the time it left Rolls-Royce’s control.
Because Cheramie has failed to allege an essential element of his
products liability claim, the claim must be dismissed.
IV. MOTION FOR A MORE DEFINITE STATEMENT
Rolls-Royce moves in the alternative for a more definitive
statement under Rule 12(e), arguing that Cheramie’s allegations
“fail to state sufficient facts.”12

Because the deficiencies in

Cheramie’s complaint are more appropriately addressed under Rule
12(b)(6), see Section III, supra, the Court denies Rolls-Royce
motion under Rule 12(e).

12

R. Doc. 11-1 at 8.
10

V. LEAVE TO AMEND
The Court should freely give leave to amend “when justice so
requires.”

Fed. R. Civ. P. 15(a)(2); Sigaran v. U.S. Bank Ass'n,

560 F. App'x 410, 412 (5th Cir. 2014).

“If the underlying facts

or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test
his claim on the merits.”
(1962).

Foman v. Davis, 371 U.S. 178, 182

A district court “acts within its discretion in denying

leave to amend where the proposed amendment would be futile
because it could not survive a motion to dismiss.”

Rio Grande

Royalty Co. v. Energy Transfer Partners, LP, 620 F.3d 465, 468
(5th Cir. 2010) (citation omitted).

Rolls-Royce has not

suggested that any effort to amend the complaint would be futile.
Therefore, the Court grants Cheramie leave to amend his maritime
products liability claim within twenty-one (21) days of the entry
of this order.

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS Rolls-Royce's

motion to dismiss under Rule 12(b)(6) and dismisses Cheramie’s
maritime products liability claim against Rolls-Royce.

The Court

DENIES Rolls-Royce's motion for a more definite statement under
Rule 12(e).

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The Court GRANTS Cheramie leave to amend his complaint
within twenty-one (21) days of the entry of this order.

If

Cheramie fails to timely amend his complaint to cure his claim
against Rolls-Royce, the Court will dismiss Rolls-Royce with
prejudice.

New Orleans, Louisiana, this 18th day of February, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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