In the Matter of C. F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation of Liability

Filing 237

ORDER Granting Suzuki Motor of America, Inc.'s 187 Motion to Dismiss or in the Alternative Motion for Summary Judgment. Signed by District Judge Halil S. Ozerden on February 2, 2015. (NM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
IN THE MATTER OF C.F. BEAN
§
L.L.C., AS OWNER PRO HAC
§
VICE AND OPERATOR, AND BEAN §
MERIDIAN L.C.C., AS THE RECORD §
OWNER, OF THE BARGE BEAN 20, §
OFFICIAL NO. 627225, PRAYING
§
FOR EXONERATION FROM OR
§
LIMITATION OF LIABILITY
§

CIVIL NO.: 1:13cv77-HSO-RHW

CONSOLIDATED WITH
JERRIE P. BARHANOVICH,
§
EXECUTRIX AND PERSONAL
§
REPRESENTATIVE OF THE
§
ESTATE OF MARK BARHANOVICH, §
DECEASED
§
§
v.
§
§
C.F. BEAN LLC AND ARCHER
§
WESTERN CONTRACTORS, LLC
§
§
v.
§
§
BOB’S MACHINE SHOP, INC.,
§
SUZUKI MOTOR CORP., SUZUKI
§
MOTOR OF AMERICA, INC.
§

PLAINTIFF

CIVIL NO. 1:13cv84-LG-JMR
DEFENDANTS/
THIRD PARTY PLAINTIFFS

THIRD PARTY DEFENDANTS

ORDER GRANTING SUZUKI MOTOR OF AMERICA, INC.’S [187]
MOTION TO DISMISS OR IN THE ALTERNATIVE
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion to Dismiss or in the Alternative Motion
for Summary Judgment [187] filed by Third-Party Defendant Suzuki Motor of
America, Inc. (“SMAI”). Third Party Plaintiffs C.F. Bean LLC and Bean Meridian,
LLC (collectively, “Bean”), have filed a Response [208]. SMAI has filed a Rebuttal

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[209]. Having considered the parties’ submissions, the record, and relevant legal
authorities, the Court finds that SMAI’s Motion [187] should be granted and the
claims asserted by Bean and Archer Western Contractors, LLC (“Archer Western”),
against SMAI should be dismissed with prejudice.
I. BACKGROUND
On September 16, 2012, Mark Barhanovich suffered fatal injuries as the
result of a boating accident (“the Accident”). Second Supplemental and Am. Third
Party Compl. 4 [163]. Jerrie P. Barhanovich, individually and as executrix and
personal representative of the Estate of Mark Barhanovich (“the Estate of
Barhanovich”), filed suit in this Court against Archer Western and Bean, the
entities alleged to have negligently created an obstruction which caused the
Accident. See First Am. Claim and Compl. 3-10 [57]. Archer Western and Bean
filed a Third Party Complaint naming SMAI, Suzuki Motor Corporation (“SMC”),
and RSM International, Inc. (“RSM”), as Defendants based on the theory that SMAI
and SMC designed, manufactured, sold, or distributed the outboard motor involved
in the Accident and that RSM’s predecessor in interest designed, manufactured,
sold, or distributed a device which was used to modify the operation of that
outboard motor. Second Supplemental and Am. Third Party Compl. 4 [163].
SMAI now seeks dismissal of the claims asserted against it by Bean and
Archer Western, claiming that the Second Amended Third Party Complaint1 [163]
“fails against SMAI because SMAI did not exist in advance of” the Accident. Mem.

Bean and Archer Western filed a First Amended and Supplemental Third Party Complaint
[103] on July 17, 2014.
1

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in Supp. of Mot. to Dismiss or in the Alt. Mot. for Summ. J. 9-10 [188]. SMAI also
asserts that in March 2013 it acquired “certain assets of [American Suzuki Motor
Corporation (“ASMC”)] pursuant to [ASMC’s Chapter 11] bankruptcy liquidation
plan.” Id. at 11. According to SMAI, the Fifth Amended Plan of Liquidation Under
Chapter 11 (the “Fifth Amended Plan”) “specifically states that by acquiring those
assets SMAI assumed no liability for the type claims” Bean and Archer Western
now seek to maintain against SMAI. Id. The United States Bankruptcy Court for
the Central District of California subsequently issued an Order stating that “SMAI
is not and ‘shall not’ be liable for any liens or claims based on successor liability[,]”
and SMAI contends that this Order “specifically enjoins any person from” asserting
a claim based on successor liability. Id. at 12.
Bean and Archer Western respond that SMAI’s Motion to Dismiss relies upon
“extraneous documents” which cannot be considered by the Court when deciding a
motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Mem. in Opp’n to Mot. to Dismiss or in the Alt. Mot. for Summ. J. 1-4 [208]. To the
extent the Court construes SMAI’s Motion [187] as one for summary judgment
pursuant to Rule 56, Bean and Archer Western merely state “the facts and
circumstances surrounding the bankruptcy proceeding cited by SMAI require, at the
very least, some basic discovery . . . .” Id. at 4.

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II. DISCUSSION
A.

Legal Standard
In considering a motion to dismiss under Rule 12(b)(6), the “[C]ourt accepts

‘all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004) (citation omitted). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Specifically, a plaintiff must
plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556).
“[T]he mere presence of additional issues in the record” does not require the
Court to treat a motion to dismiss pursuant to Rule 12(b)(6) as one for summary
judgment. Britton v. Seale, 81 F.3d 602, 605 n.1 (5th Cir. 1996) (citation omitted).
The Court may consider matters of public record in resolving a motion to dismiss.
See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (stating that courts
may consider “matters of which a court may take judicial notice” when reviewing a
motion to dismiss pursuant to Rule 12(b)(6)) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007)). In addition, “[d]ocuments that a defendant
attaches to a motion to dismiss are considered part of the pleadings if they are

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referred to in the plaintiff’s complaint and are central to her claim.” Causey v.
Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citation omitted).
B.

Analysis
Bean and Archer Western’s primary contention, that SMAI has relied upon

“extraneous” documents, is not persuasive. The Fifth Circuit Court of Appeals has
recently reaffirmed that district courts may consider public documents obtained
from bankruptcy proceedings when evaluating a motion to dismiss pursuant to Rule
12(b)(6). Van Duzer v. U.S. Bank Nat. Ass’n, 582 F. App’x 279, 283-84 (5th Cir.
2014) (per curiam) (affirming judgment on the pleadings and finding no merit in
argument that district court improperly considered documents outside the pleadings
when it considered “public documents from [the plaintiffs’] bankruptcy proceeding”
because the Fifth Circuit has “already approved the consideration of . . . publicly
available documents at the Rule 12 stage”) (citing Funk, 631 F.3d at 783); see also
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (“[I]t is clearly proper
in deciding a 12(b)(6) motion to take judicial notice of matters of public record.”)
(citation omitted).2
The documents SMAI relies upon in seeking dismissal are public documents
within the contemplation of both Van Duzer and Funk. SMAI first references a
public record made readily available by the California Secretary of State, and these

The thrust of Bean and Archer Western’s opposition focuses on the use of records from
ASMC’s bankruptcy proceeding. Bean and Archer Western do not appear to contend that records
from the California Secretary of State’s office are not public records. Such a contention, if made,
would be equally unavailing. See, e.g., Crowell v. Looper Law Enforcement, LLC, No. 3:10-CV-2506D, 2011 WL 830543, at *4 (N.D. Tex. Mar. 10, 2011) (“Reports from the Secretary of State are one
type of public record that can be considered when deciding such a [Rule 12(b)] motion.”) (citing
TXCAT v. Phx. Grp. Metals, LLC, 2010 WL 5186824, at *2 n.2 (S.D. Tex. Dec. 14, 2010)).
2

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public records make clear that SMAI is a California corporation which was formed
on October 31, 2012, which was after the Accident. See California Secretary of
State Alex Padilla, Business Entity Detail, http://kepler.sos.ca.gov/ (last visited Jan.
30, 2015) and California Secretary of State Alex Padilla, Business Search - Field
Descriptions and Status Definitions, http://www.sos.ca.gov/businessprograms/business-entities/cbs-field-status-definitions/ (last visited Jan. 30, 2015).
SMAI did not exist on September 16, 2012, the date of the Accident.
SMAI also cites public documents from ASMC’s Chapter 11 bankruptcy
proceeding which reveal that SMAI did not assume liability for the claims Bean and
Archer Western now assert. See Order Confirming Debtor’s Fifth Am. Plan of
Liquidation Under Chapter 11 of the Bankr. Code 5, [Case No. 8:12-bk-22808-SC,
Doc. 1288]. Specifically, the Bankruptcy Court confirmed provisions in the asset
purchase agreement between ASMC and SMAI which provide that SMAI “shall not”
be liable for any liens or claims based on successor liability. Id. The Bankruptcy
Court also enjoined any person from asserting claims against SMAI on a theory of
successor liability. Id. As previously noted, this Court is permitted to consider
these public documents, and a fair reading of the documents forecloses Bean and
Archer Western’s claims against SMAI. Van Duzer, 582 F. App’x at 283-84 (citation
omitted). Therefore, SMAI should be dismissed.

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III. CONCLUSION
For the foregoing reasons, the Court finds that the Motion to Dismiss or in
the Alternative Motion for Summary Judgment [187] filed by Third-Party
Defendant Suzuki Motor of America, Inc., should be granted. Accordingly,
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion to
Dismiss or in the Alternative Motion for Summary Judgment [187] filed by ThirdParty Defendant Suzuki Motor of America, Inc., is GRANTED and the claims
asserted against Suzuki Motor of America, Inc., by C.F. Bean LLC, Bean Meridian,
LLC, and Archer Western Contractors, LLC, are DISMISSED WITH
PREJUDICE.
SO ORDERED AND ADJUDGED this the 2nd day of February, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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