Swaidan Trading Co., LLC v. Dileton Martitime S.A..,et al

Filing 54

ORDER: IT IS HEREBY ORDERED that the 39 motion is GRANTED IN PART to the extent the Rule E(5) Special Vessel Release Bond filed in this matter on February 9, 2018, is hereby canceled and DENIED IN PART to the extent that the motion seeks dismissal with prejudice. IT IS FURTHER ORDERED that the case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Nannette Jolivette Brown on 5/7/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SWAIDAN TRADING CO., LLC

CIVIL ACTION

VERSUS

NO. 18-994

DILETON MARITIME S.A., et al.

SECTION: “G”(4)
ORDER

Before the Court is Defendant Erikoussa Maritime S.A.’s (“Erikoussa”) “Motion to
Dismiss with Prejudice and Cancel Rule E(5) Bond.”1 On February 1, 2018, Plaintiff Swaidan
Trading Co. LLC’s (“Plaintiff”) filed an original verified complaint in this Court against Defendant
Dileton Maritime S.A. (“Dileton”), Androussa Maritime S.A. (“Androussa”), and Erikoussa,
seeking an order authorizing the maritime attachment of the M/V ERIKOUSSA in accordance
with Supplemental Admiralty Rule B.2 On February 1, 2018, the Court denied Plaintiff’s request
for attachment, reasoning that Plaintiff did not properly allege a prima facie claim for alter ego
liability.3 On February 2, 2018, Plaintiff filed an original amended verified complaint, which
sought the same remedy as its original verified complaint, including allegations that Dileton
exercised complete control over Androussa with respect to the transaction at issue.4 The same day,
the Court ordered attachment of the M/V ERIKOUSSA.5 On April 16, 2018, the Court granted
Erikoussa’s motion to vacate attachment in part to the extent that the writ of attachment was

1

Rec. Doc. 39.

2

Rec. Doc. 1.

3

Rec. Doc. 8 at 2.

4

Rec. Doc. 9.

5

Rec. Doc. 11.

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vacated.6
On April 16, 2018, Erikoussa filed the instant motion to dismiss with prejudice and cancel
the Rule E(5) bond.7 In the motion, Erikoussa asserts that this matter should be dismissed because
this Court’s Order vacating the attachment establishes that none of defendant’s property is present
within this district upon which to find quasi in rem jurisdiction.8 Therefore, Erikoussa contends
that the Court does not have subject matter jurisdiction over this matter.9 Furthermore, Erikoussa
asserts that the bond it provided to serve as substitute security for the vessel should be canceled.10
On April 25, 2018, Plaintiff filed an opposition to the “Motion to Dismiss with Prejudice
and Cancel Rule E(5) Bond.”11 In the opposition, Plaintiff contends that the Court should not grant
Erikoussa’s motion “until Plaintiff is afforded the opportunity to request a say from the Court of
Appeals for the Fifth Circuit.”12
On May 1, 2018, this Court denied “Plaintiff’s Motion for a Stay Pending Appeal of the
April 16, 2018 Order Granting Defendant’s Motion to Vacate”13 On May 2, 2018, the Fifth Circuit
also denied Plaintiff’s motion for a stay pending appeal.14 Accordingly, because the Fifth Circuit
has denied Plaintiff’s motion for a stay pending appeal, the Court will grant Erikoussa’s motion to

6

Rec. Doc. 38.

7

Rec. Doc. 39.

8

Rec. Doc. 39-1 at 2.

9

Id.

10

Id. at 2–3.

11

Rec. Doc. 49.

12

Id. at 3.

13

Rec. Doc. 44.

14

Rec. Doc. 53.

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cancel the bond and dismiss the case. However, because this is a dismissal for lack of subject
matter jurisdiction, dismissal should be without prejudice.15 Accordingly,
IT IS HEREBY ORDERED that the motion is GRANTED IN PART to the extent the
Rule E(5) Special Vessel Release Bond filed in this matter on February 9, 2018, is hereby canceled
and DENIED IN PART to the extent that the motion seeks dismissal with prejudice.
IT IS FURTHER ORDERED that the case is DISMISSED WITHOUT PREJUDICE.

7th
NEW ORLEANS, LOUISIANA, this ________ day of May, 2018.

___________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

15

New S. Fed. Savs. Bank v. Murphree, 55 F. App’x 717 (5th Cir. 2002) (citing Fed. R. Civ. P. 41(b); Warnock v.
Pecos County, 88 F.3d 341, 343 (5th Cir. 1996) (“A dismissal for lack of jurisdiction is not a decision on the merits
and should be without prejudice.”)).

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