Dubuisson v. Industrial Economics, Inc. et al

Filing 41

ORDER AND REASONS Granting 31 Motion to Dismiss for Failure to State a Claim. Party Industrial Economics, Inc. is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 7/16/2018. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICHARD DUBUISSON

CIVIL ACTION

VERSUS

NO. 17-4883

INDUSTRIAL ECONOMICS, INC. AND
RYAN TOLBERT

SECTION “R” (3)

ORDER AND REASONS
Defendant Industrial Economics, Inc. (IE) moves to dismiss plaintiff
Richard Dubuisson’s second amended complaint.1

For the following

reasons, the Court grants the motion.
I.

BACKGROUND
This case arises out of a maritime accident that allegedly occurred on

November 23, 2015. Plaintiff alleges he was injured while working on a
vessel owned and operated by defendant Ryan Tolbert. 2

Though not

explicitly stated, plaintiff appears to assert that Tolbert was also the captain
of the vessel on the day of the accident. 3 Plaintiff states that he was on the
vessel in connection with his work as an employee of AIS Inc. of

1
2
3

R. Doc. 31.
R. Doc. 30 at 2 ¶ 5, 3 ¶ 9.
See id. at 3 ¶¶ 9-10.

Massachusetts.4 According to plaintiff, the vessel was “under the control” of
IE, “pursuant to a contract” between IE and Tolbert.5 Plaintiff further states
that IE “controlled the operations of the vessel” by “hiring th[e] vessel,
directing the route and locations at which the vessel would operate,” and
“approving captains.”6
Plaintiff states that he was injured when a large wave hit the vessel. 7
Plaintiff alleges that Tolbert failed to advise him and the other AIS employees
that the wave was going to hit.8 Plaintiff also alleges that Tolbert failed to
“keep the boat in place while on location,” which he says contributed to the
“movement” that ultimately threw him to the deck.9 Plaintiff states that he
has suffered a serious lower back injury as a result of this fall. 10
On May 11, 2017, plaintiff sued Tolbert and IE for negligence under
general maritime law. 11 IE moved to dismiss the first complaint under
Federal Rule of Civil Procedure 12(b)(6).12 Before that motion was fully

4
5
6
7
8
9
10
11
12

Id. at 2 ¶ 4.
Id. ¶ 5.
Id. ¶¶ 7-8.
Id. at 3 ¶ 9.
Id.
Id. ¶ 10.
Id.
R. Doc. 1.
R. Doc. 10.
2

briefed, plaintiff sought leave to amend his complaint,13 which Magistrate
Judge Knowles granted.14 Plaintiff’s first amended complaint added only two
additional substantive paragraphs.15 Before any additional motions were
filed, Chief Judge Engelhardt denied IE’s initial motion to dismiss as moot.16
Judge Engelhardt noted that plaintiff’s allegations in the amended complaint
were “overly conclusory” and lacked sufficient factual support. He ordered
plaintiff to submit a second amended complaint. 17 On May 18, 2018, the case
was transferred to this Section. 18
IE now moves to dismiss the second amended complaint, arguing that
plaintiff has failed to plead facts sufficient to allege that IE (1) owed plaintiff
a duty and (2) was a substantial factor in causing plaintiff’s injuries. 19
II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

13
14
15
16
17
18
19

R. Doc. 16.
R. Doc. 19.
R. Doc. 21.
R. Doc. 27.
Id.
R. Doc. 36.
R. Doc. 31-1 at 3-4.
3

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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 at 678. A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. See Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It 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 relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).
III. DISCUSSION
To state a claim for maritime negligence, a plaintiff must “demonstrate
that there was a duty owed by the defendant to the plaintiff, breach of that
4

duty, injury sustained by the plaintiff, and a causal connection between the
defendant’s conduct and the plaintiff’s injury.” In re Great Lakes Dredge &
Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010) (internal quotations and
modifications omitted). As to causation, a party’s negligence is actionable
only if it is the “legal cause” of the plaintiff's injuries. Id. The Fifth Circuit
defines legal cause as “something more than but for causation,” meaning that
“the negligence must be a substantial factor” in causing the injuries. Id.
Plaintiff has failed to plausibly allege that IE was a substantial factor in
causing plaintiff’s injuries. IE’s connection to plaintiff’s alleged injuries rests
on the allegations that IE had the ability to “approv[e] captains”20 and “knew
or should have known” that Tolbert was operating the vessel in an unsafe
manner.21 These allegations are akin to a claim for negligent hiring or
retention under general maritime law. See In re Marquette Transp. Co.
Gulf-Inland, LLC, No. 13-5114, 2016 WL 1587382, at *3 (E.D. La. Apr. 20,
2016) (recognizing a cause of action for negligent hiring or retention under
general maritime law, and applying the same four elements as a general
claim for negligence). In Marquette, the Court granted the defendant’s
motion for judgment on the pleadings when the plaintiffs alleged, without

20
21

R. Doc. 30 at 2 ¶ 8.
Id. at 3 ¶ 11.
5

factual support, that the defendant’s “negligent hiring of” the captain caused
the plaintiffs’ injuries. Id. The Court noted that the plaintiffs “provide[d] no
facts demonstrating how [the defendant’s] hiring process failed to conform
to the applicable standard of care.” Id. The plaintiffs also failed to plead facts
to support the conclusion that the captain was incompetent at the time the
defendant hired him. Id (citing Patterson v. Omega Protein, Inc., No. 136293, 2014 WL 4354461, at *7 (E.D. La. Sept. 2, 2014)).
Here, plaintiff similarly alleges in conclusory fashion that IE failed “to
provide adequate personnel for the job in question.”22 Plaintiff fails to allege
how IE’s process for approving Tolbert as captain was negligent, or why
plaintiff should have known that Tolbert was operating the vessel in an
unsafe manner. In fact, plaintiff’s complaint is even more deficient than the
complaint in Marquette, because plaintiff alleges only that IE was
responsible for “approving” the vessel’s captains, rather than hiring them. 23
Plaintiff’s conclusory allegations therefore do not rise to the level of
plausibility required by Twombly and Iqbal.
IE separately argues that plaintiff fails to allege that IE acted
negligently within a sphere of activity over which it exercised control. 24 This

22
23
24

Id. at 3-4 ¶ 12.
Id. at 2 ¶ 8.
R. Doc. 31-1 at 3.
6

line of attack addresses whether IE owed plaintiff a duty that IE can be held
liable for breaching. See Callahan v. Gulf Logistics, L.L.C., 456 F. App’x 385,
390 (5th Cir. 2011). Because plaintiff’s failure to sufficiently allege causation
alone requires dismissal, the Court will not address this argument.
Finally, IE asks the Court to dismiss plaintiff’s claim with prejudice
because plaintiff has already been given two opportunities to amend his
complaint. 25 In his opposition, plaintiff does not address this aspect of IE’s
motion, and does not seek leave to amend his complaint in the event the
Court grants IE’s motion.
The Court will “freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a). The Supreme Court has held that “[i]f 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.”
Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend, however, “is by
no means automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.
1994). The Court considers multiple factors, including “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the

25

R. Doc. 31-1 at 5.
7

opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman, 371 U.S. at 182.
Judge Engelhardt ordered plaintiff to file this second amended
complaint after calling plaintiff’s previous attempt “overly conclusory and
lacking factual information sufficient to support a reasonable inference of
negligence.”26 Given plaintiff has previously been noticed of these defects
but has failed to cure them, the Court finds that further amendment is not
warranted. Foman, 371 U.S. at 182.

IV.

CONCLUSION
For the foregoing reasons, IE’s motion to dismiss is GRANTED.

Plaintiff’s claim against IE is DISMISSED WITH PREJUDICE.

16th
New Orleans, Louisiana, this ______ day of July, 2018.

__________________________
SARAH S. VANCE
UNITES STATES DISTRICT JUDGE

26

R. Doc. 27.
8