Duplantis v. Northrop Grumman Corp

Filing 66

MEMORANDUM RULING re 47 MOTION to Dismiss for Lack of Jurisdiction filed by Huntington Ingalls Inc, Northrop Grumman Shipbuilding Inc. Signed by Magistrate Judge C Michael Hill on 6/20/2012. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
FRANKIE DUPLANTIS

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CIVIL ACTION NO. 10-1575

VERSUS

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MAGISTRATE JUDGE HILL

NORTHROP GRUMMAN

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BY CONSENT OF THE PARTIES

RULING ON MOTION TO DISMISS
Pending before the Court is the Motion to Dismiss for Lack of Subject
Matter Jurisdiction filed by defendant, Huntington Ingalls Incorporated f/n/a
Northrop Grumman Shipbuilding, Inc. ("Huntington"), on March 16, 2012. [rec.
doc. 47]. Plaintiff, Frankie Duplantis (“Duplantis”), filed opposition on June 11,
2012. [rec. doc. 62]. Intervenor, American Interstate Insurance Company,
adopted Duplantis’s opposition. [rec. doc. 63]. On June 13, 2012, Huntington
filed a reply. [rec. doc. 64].
The Court held oral argument on June 15, 2012, after which I took the
motion under advisement. For the following reasons, the Motion is GRANTED.
Background
LHD-8 was a vessel built for the United States Navy at Huntington’s
Pascagoula, Mississippi shipyard. On December 9, 2008, LHD-8 underwent an
unsuccessful builder’s sea trial when the main propulsion system failed, which

resulted in a fire in the aft main engine room. Huntington put out a bid for
completion of certain re-chroming work on the LHD-8 C.S. Controls, Inc. (“C.S.”)
id the work which Huntington later accepted.
In January, 2009, C.S. subcontracted the work to E&E Machine Shop
(“E&E”). E&E assigned Duplantis to the re-chroming job under the supervision
of a C.S. employee. On January 16, 2009, Duplantis fell through an open
hatchway while cleaning up his workspace, sustaining injuries.
A second sea trial was conducted on February 4, 2009, which trial was
successful. On March 20, 2009, an acceptance sea trial was conducted for the U.S.
Navy as well as the Board of Inspection and Survey. This acceptance sea trial was
successful.
On April 16, 2009, LHD-8 was delivered to the U.S. Navy. The craft was
commissioned on October 24, 2009.
On October 15, 2010, Duplantis filed a Complaint in this Court on the basis
of admiralty jurisdiction, 28 U.S.C. § 1333, and the general maritime law. On
March 27, 2012, Duplantis filed a Third Amended Complaint for Damages to
alternatively plead diversity jurisdiction under 28 U.S.C. § 1332. [rec. doc. 56].

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On March 16, 2012, Huntington filed the instant Motion to Dismiss for
Lack of Subject Matter Jurisdiction on the grounds that no basis exists for
admiralty/maritime jurisdiction. [rec. doc. 47].
Standard for Lack of Subject Matter Jurisdiction
The party asserting subject matter jurisdiction bears the burden of proof of
demonstrating jurisdiction. Lopez v. U.S. Immigration and Customs Enforcement,
455 Fed.Appx. 427, 432 (citing Davis v. United States, 597 F.3d 646, 649 (5th Cir.
2009)). A complaint should be dismissed for lack of subject-matter jurisdiction
when “it appears certain that the plaintiff cannot prove a plausible set of facts that
establish subject-matter jurisdiction.” Sawyer v. Wright, 2012 WL 718493, *1 (5th
Cir. March 7, 2012) (quoting Davis, supra). In determining whether it has
jurisdiction, the court may consider: (1) the complaint alone; (2) the complaint
plus undisputed facts evidenced in the record; or (3) the complaint, undisputed
facts, and the court's resolution of disputed facts. Davis at 649–50.
Analysis
Huntington asserts that because Duplantis cannot establish a maritime tort,
this Court lacks subject matter jurisdiction. The Fifth Circuit applies a two-part
inquiry to determine the existence of maritime jurisdiction. Molett v. Penrod
Drilling Co., 872 F.2d 1221, 1224 (5th Cir. 1989) (citing Executive Jet Aviation v.
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City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). “That
inquiry is essentially fact-bound, turning on a determination of the location of the
tort, the situs factor, and the pertinent activity, the nexus factor.” Id. (quoting
Richendollar v. Diamond M. Drilling Co., 819 F.2d 124, 127 (5th Cir.1987) (en
banc)). Because Duplantis’ accident occurred on navigable waters, only the nexus
prong must be satisfied here.
To satisfy the nexus factor, the “wrong [must] bear a significant relationship
to traditional maritime activity.” Executive Jet, 409 U.S. at 268, 93 S.Ct. at 504.
It has long been held that neither ship construction nor supplying materials for that
purpose is a maritime activity, even though the endeavor is undertaken when the
hull lies in navigable waters. Lowe v. Ingalls Shipbuilding, A Division of Litton
Systems, Inc., 723 F.2d 1173, 1185 (5th Cir. 1984) (citing Thames Towboat
Company v. The Schooner Francis McDonald, 254 U.S. 242, 41 S.Ct. 65, 65 L.Ed.
245 (1920)). On the other hand, ship repair has been viewed as maritime activity.
Id. (citing North Pacific Steamship Company v. Hall Brothers Marine Railway &
Shipbuilding Company, 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510 (1919)).
Here, Huntington argues that because LHD-8 was still under construction at
the time of plaintiff’s accident, it was not a vessel for maritime jurisdictional
purposes. In opposition, Duplantis asserts that he was hired to repair the ship;
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thus, it constituted maritime activity.
Here, the evidence indicates that LHD-8 was not a vessel at the time of the
incident. James J. Davis, III, a construction manager for Huntington, submitted an
affidavit stating that the ship was not complete on January 16, 2009. His duties
included oversight of the construction of LHD-8 during the time period at issue.
He stated that LHD-8 underwent an unsuccessful builder’s sea trial on December
9, 2008, which was a less than a month prior to the date of the accident.
Subsequent to the accident, the craft underwent a second builder’s trial on
February 4, 2009, which was successful. LHD-8 was not delivered to the U.S.
Navy until April 16, 2009, and was not commissioned until October 24, 2009.
Under these circumstances, the LHD-8 was not a vessel “in navigation” at
the time of Duplantis’s accident. The term “in navigation” means “engaged in an
instrument of commerce and transportation on navigable waters.” Williams v.
Avondale Shipyards, Inc., 452 F.2d 955, 958 (5th Cir. 1971). A ship undergoing
sea trials is not in navigation. Reynolds v. Ingalls Shipbuilding Div., Litton
Systems, Inc., 788 F.2d 264, 267 (citing Williams at 958). A hull afloat on
navigable waters does not create a vessel for jurisdictional purposes if the vessel
itself is under construction and is not yet navigable, even if the vessel is nearly
complete. Thomas v. Global Explorer, LLC, 2003 WL 943638, *1 (E.D. La.
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March 5, 2003) (citing Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083 (5th
Cir.1987)); see also Richendollar v. Diamond M. Drilling Co., Inc., 819 F.2d 124
(5th Cir.1987) (holding that a jackup drilling rig, incapable of navigation because
of holes in its hull, and approximately 85 percent complete at the time of plaintiff's
accident, was not a vessel for jurisdictional purposes).
Accordingly, the Court finds that the LHD-8 was under construction,
incomplete, and not fit for its intended purpose at the time of the accident causing
Duplantis’s injuries. See Miles ex rel. Miles v. VT Halter Marine, Inc., 792
F.Supp2d 919, 924 (E.D. La. 20100. LHD-8 therefore was not a vessel for
purposes of admiralty jurisdiction, and plaintiff’s claims that arise under admiralty
and general maritime law must be dismissed.
Conclusion
Based on the foregoing reasons, the Motion to Dismiss filed by Huntington
is GRANTED.
Signed June 20, 2012, at Lafayette, Louisiana.

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