Dan Bunkering (America) Inc v. Candy Apple et al
MEMORANDUM RULING re 20 MOTION to Dismiss For Failure to State a Claim filed by Candy Apple L L C. Signed by Judge James D Cain, Jr on 9/11/2020. (crt,Benoit, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
DAN BUNKERING (AMERICA) INC.
CASE NO. 2:19-CV-00943
JUDGE JAMES D. CAIN, JR.
M/V CANDY APPLE ET AL.
MAGISTRATE JUDGE KAY
Before the court is a Motion to Dismiss [doc. 20] filed by defendant Candy Apple,
LLC under Federal Rule of Civil Procedure 12(b)(6) and seeking dismissal of the in
personam claims raised against it. The motion is unopposed.
This suit arises from money allegedly owed on fuel bunkers supplied by plaintiff to
the M/V CANDY APPLE. The M/V CANDY APPLE is owned by Candy Apple, LLC
(“Candy Apple”) and chartered through independent vessel broker Kilgore Marine, LLC
by Epic Companies, LLC (“Epic”) and Epic Applied Technologies, LLC (“EAT”). 1 Doc.
1, ¶ 4; see doc. 20, att. 1 (charter agreement). Epic ordered fuel bunkers for the M/V
CANDY APPLE from Dan Bunkering (America), Inc. (“Dan Bunkering”). Id. at ¶ 8; see
doc. 1, att. 2. Dan Bunkering then allegedly supplied the M/V CANDY APPLE with diesel
fuel on eight different occasions in May and June 2019. Doc. 1, ¶¶ 10–36. Each of these
transactions was memorialized with an order confirmation, marking payment as due within
In the complaint “Candy Apple, LLC” was misidentified as “Candy Cap, LP.” See docs. 17, 19.
90 days of the fuel’s delivery, and an invoice sent shortly after the fueling. Doc. 1, atts. 3–
19. The due dates for each invoice have now passed, and Dan Bunkering alleges that no
payment has been made. Accordingly, it brings suit in this court against the vessel, Candy
Apple, and both Epic entities. Doc. 1.
Vessel owner Candy Apple moves for dismissal of the claims brought against it in
personam, on the basis that there is no contract giving rise to the breach of contract claims
Dan Bunkering has asserted against it. Doc. 20. Dan Bunkering has indicated that it does
not oppose the motion. Doc. 28. Accordingly, it is now ripe for review.
LAW & APPLICATION
A. Rule 12(b)(6)
Rule 12(b)(6) allows for dismissal of a claim when a plaintiff “fail[s] to state a claim
upon which relief can be granted.” When reviewing such a motion, the court should focus
on the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir.
2012). The court can also consider matters of which it may take judicial notice, including
matters of public record. Hall v. Hodgkins, 305 Fed. App’x 224, 227 (5th Cir. 2008)
(unpublished). Such motions are reviewed with the court “accepting all well-pleaded facts
as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini
Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough
facts ‘to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Accordingly, the court’s task is not to evaluate the plaintiff’s likelihood
of success but instead to determine whether the claim is both legally cognizable and
plausible. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
Dan Bunkering seeks to hold Candy Apple and the Epic entities personally liable
for the alleged nonpayment and the M/V CANDY APPLE liable in rem. See generally doc.
1. As Candy Apple points out, the Commercial Instruments and Maritime Lien Act
(“CIMLA,” 46 U.S.C. § 31301 et seq.) “personifies a vessel as an entity with potential
liabilities independent and apart from the liability of its owner.” Equilease Corp. v. M/V
SAMPSON, 793 F.2d 598, 602 (5th Cir. 1986). Under this statute, a lien may arise against
the vessel for necessities supplied to it regardless of whether the owner is personally bound.
See id. The vessel owner is only liable, on the other hand, if it contracts for the supply of
necessities. Belcher Co. of Alabama v. M/V MARATHA MARINER, 724 F.2d 1161, 1163
(5th Cir. 1984). Accordingly, the debt allegedly owed for the bunkers gives rise to a
maritime lien against the vessel but Dan Bunkering must show a breach of contract in order
to hold Candy Apple personally liable.
In the petition Dan Bunkering asserts generally that Candy Apple and the Epic
entities are liable for breach of contract. Doc. 1. However, it has produced no contract
showing that Candy Apple undertook any obligation to pay for the fuel bunkers. Dan
Bunkering’s Standard Terms and Conditions of Sale, which governed the transactions,
provides that a binding contract “comes into existence when the Seller sends the Order
Confirmation to the Buyer.” Doc. 1, att. 2, p. 3. There is no allegation or evidence to show
that Candy Apple should be construed as the buyer in this matter. The order confirmations
were issued to the Epic entities, and there is only a generic reference to the vessel “and/or
master and/or owners and/or charterers and/or managers and/or operators” in the invoices
and order confirmations. E.g., doc. 1, atts. 3 & 4. Accordingly, there is no basis for holding
Candy Apple liable under any contract alleged.
For the reasons provided above, the Motion to Dismiss [doc. 20] will be
GRANTED and all claims brought against Candy Apple in personam will be
DISMISSED WITH PREJUDICE.
THUS DONE AND SIGNED in Chambers on this 11th day of September, 2020.
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE
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