Duvall v. BOPCO, L.P. et al

Filing 59

ORDER & REASONS denying in part as moot as to those claims withdrawn by the plaintiff in his second amended complaint and denying in part without prejudice as to those claims pursued or re-styled by the plaintiff in his second amendedcomplaint, 29 Motion to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 9/30/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL DUVALL

CIVIL ACTION

v.

NO. 15-2404

BOPCO, L.P., ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court is BOPCO, L.P.'s partial motion to dismiss
under Rule 12(b)(6).

For the reasons that follow, and in light of

the plaintiff's recently amended complaints, the motion is DENIED
in part as moot and DENIED in part without prejudice.
Background
This is a personal injury case.
While working as a coil tubing operator for Pioneer Coiled
Tubing Services, LLC, Michael Duvall's right hand was crushed while
he was unloading a spud barge, the T.T.I.-1, owned and operated by
BOPCO, L.P.

BOPCO contracted with Pro-Tow Marine, L.L.C. to

provide a tow boat and personnel to equip and transport the barge
for work on oil and gas production wells.

BOPCO also contracted

with Eagle Consulting, L.L.C. to provide a supervisor for the barge
or well repair operations.
The mechanics of the February 10, 2015 accident are alleged in
the complaint as follows. Legs of the barge are raised and lowered
by two hydraulic lift motors and cables attached to the two legs of

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the barge, which are all permanently affixed to the barge owned and
maintained by BOPCO.

Legs are raised and locked by inserting a

large iron pin into a hole on each leg, with the pin resting on the
leg's outer casing once the leg is lowered into place.

The

hydraulic lift motors are operated from a control panel centered
between the two legs of the barge, approximately 20 feet from each
leg.
While Duvall and two other Pioneer co-workers were attaching
hoses to the split skid pump on the deck of the barge, Clifton
Gaines, a Pro-Tow Marine employee, asked Duvall to assist him with
raising and setting one leg of the barge by inserting the pin into
the leg once the operator of the lift motor raised the leg to set
it into place.

Once Gaines raised the vessel leg to its desired

height through the use of the vessel's affixed hydraulic lift
motor, Duvall began to insert the iron pin into the hole of the leg
in an attempt to set it into place when suddenly the lift motor
released, causing the vessel leg to drop in a free-fall fashion
without any resistance whatsoever.

The sudden dropping of the

vessel leg crushed Duvall's right hand between the iron pin and the
iron edge of the leg's outer casing, crushing his right index
finger

and

middle

finger,

ultimately

necessitating

partial

amputation of his index finger and causing residual impairments and
disabilities to his index and middle finger.
On June 30, 2015, Mr. Duvall sued BOPCO, Pro-Tow Marine, and

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Eagle Consulting, seeking to recover in excess of $500,000 for a
litany of alleged negligent acts as well as violations of general
maritime law and Louisiana law.

As against BOPCO, the vessel

owner, Mr. Duvall also seeks to recover under the Longshore and
Harbor Worker's Compensation Act, 33 U.S.C. § 905(b). Duvall filed
a first supplemental and amending complaint, and BOPCO now seeks to
dismiss 11 of the claims asserted against it on the ground that
Duvall's exclusive remedy is under Section 905(b) of the Longshore
and Harbor Worker's Compensation Act.

Meanwhile, Duvall has since

filed a second and third supplemental and amending complaint in
which he withdraws some claims and reasserts and re-styles others.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed

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factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accepts ‘all
well-pleaded

facts

as

true,

favorable to the plaintiff.’”

viewing

them

in

the

light

most

See Martin K. Eby Constr. Co. v.

Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in

deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”

Id. at

678. Assuming the veracity of the well-pleaded factual allegations,
the Court must then determine “whether they plausibly give rise to
an entitlement to relief.” Id. at 679.
“‘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.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even

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if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted

unlawfully.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

“Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
II.
The Longshore and Harbor Worker's Compensation Act provides
maritime workers with a method of recovery for workplace injuries.
33 U.S.C. §§ 901-950; Ne. Marine Terminal Co., Inc. v. Caputo, 432
U.S. 249, 257-65 (1977).

To be eligible for coverage under the

Act, a worker must meet both a situs and a status test.

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New

Orleans Depot Services, Inc. v. DOWCP, 718 F.3d 384, 388-89 (5th
Cir. 2013)(en banc)(citations omitted).

Here, it is undisputed

that, on the pleadings, Duvall satisfies both the situs test
(because his alleged injury occurred on Back Levee Canal, a U.S.
navigable water) and the status test (because Duvall alleges that
he was loading equipment onto the T.T.I-1 at the time of his
injury).

Thus, based on the allegations of his complaint, Duvall

is eligible to recover under the LHWCA.
Once an injured worker meets the situs and status tests for
coverage, the Act provides two types of coverage: (1) compensation
benefits from his employer under Section 904; and (2) recovery for
vessel negligence under Section 905(b).

33 U.S.C. §§ 904, 905(b).

For the purposes of BOPCO's motion, Duvall asserts only vessel
negligence against BOPCO.

Notably, "[t]he remedy provided in this

subsection shall be exclusive of all other remedies against the
vessel except remedies available under this chapter."
905(b).

33 U.S.C. §

The parameters of vessel negligence under Section 905(b)

is limited to the breach of specific duties described by the U.S.
Supreme Court in Scindia Steam Navigation Co., Ltd. v. De Los
Santos, 451 U.S. 156 (1981).

See Levene v. Pintail Enter., Inc.,

943 F.2d 528, 533 (5th Cir. 1991)(explaining that Scindia construes
Section 905(b) as imposing three substantive duties upon a vessel:
(1) the turn-over duty; (2) the control duty; and (3) the duty to
intervene).

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BOPCO seeks dismissal of the following claims on the ground
that they are outside the scope of Scindia's gloss on Section
905(b), Duvall's exclusive remedy:

(1) failure to utilize proper

and safe equipment for raising and lowering barge legs; (2) breach
of legally imposed duty of care resulting in Duvall's injuries; (3)
failure to provide a reasonably safe place to work; (4) failure to
provide a seaworthy vessel; (5) negligence of BOPCO's agents; (6)
failure to properly supervise employees; (7) failure to properly
maintain vessel; (8) failure to provide proper and safe equipment
and

properly

hydraulic

trained

lift

procedures;

personnel;

manufacturer's

(10)

failure

(9)

failure

to

recommendations

to

conduct

adequate

comply

and

with

operating

inspections,

maintenance, and repairs to the vessel and its equipment; and (11)
violation

of

applicable

safety

policies,

procedures,

and

regulations.
The Court need not resolve the parties' dispute concerning
which of Duvall's claims alleged in his first amended complaint are
plausible under Scindia.

Since BOPCO's partial motion to dismiss

was filed, Duvall has filed a second supplemental and amending
complaint in which he no longer pursues the following claims that
BOPCO now seeks to dismiss: (1) failure to provide a seaworthy
vessel; (2) negligence of defendants' agents; (3) failure to
supervise employees; (4) failure to properly maintain the vessel;
(5) failure to provide proper and safe equipment and adequate,

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properly trained personnel to do the job; (6) failure to comply
with

hydraulic

lift

motor

manufacturer's

recommendations

and

operating procedures; (7) failure to conduct adequate inspections,
maintenance, and repairs on its vessel and affixed equipment so as
to prevent dangerous conditions; (8) violation of applicable safety
policies, procedures, and regulations; and (9) other acts of
negligence to be proven at trial.

Insofar as the plaintiff has

withdrawn these claims in his second amended complaint, BOPCO's
partial motion to dismiss as to these claims is DENIED as moot.
Insofar as BOPCO now seeks to dismiss additional claims, which have
been reasserted or re-styled in Duvall's second supplemental and
amending complaint, the motion is DENIED without prejudice.

BOPCO

has already filed a partial motion to dismiss these other claims
asserted in Duvall's second supplemental and amending complaint;
that motion is presently set for hearing on October 14, 2015.1
Accordingly, IT IS ORDERED: that BOPCO's first partial motion
to dismiss under Rule 12(b)(6) is DENIED in part as moot (as to
those claims withdrawn by the plaintiff in his second amended
complaint) and DENIED in part without prejudice (as to those claims
pursued or re-styled by the plaintiff in his second amended
complaint, which are the subject of BOPCO's motion to dismiss set

1

The Court notes that, since BOPCO has filed a partial
motion to dismiss certain claims asserted in the second amended
complaint, Duvall has filed a third amended complaint. It seems
timely to remind all parties of the mandate of 28 U.S.C. § 1927.
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for hearing on October 14, 2015).

New Orleans, Louisiana, September 30, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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