Strain et al v. Gulf Coast Shipyard Group, Inc.

Filing 32

ORDER granting in part and denying in part 16 Motion to Dismiss. The Motion is granted as to the plaintiffs' claim seeking an injunction requiring payment of monetary damages and denied in all other respects. Signed by Chief District Judge Louis Guirola, Jr., on 8/24/2015. (BR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
BRUCE STRAIN, PEGGY STRAIN,
and FRANK CIUFFETELLI
v.

PLAINTIFFS
CAUSE NO. 1:15CV71-LG-MTP

GULF COAST SHIPYARD GROUP, INC.

DEFENDANT

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS
BEFORE THE COURT is the Motion to Dismiss [16] filed by the defendant
Gulf Coast Shipyard Group, Inc. The plaintiffs Bruce Strain, Peggy Strain, and
Frank Ciuffetelli have filed a response in opposition to the Motion, and Gulf Coast
has filed a reply. After reviewing the submissions of the parties, the record in this
matter, and the applicable law, the Court finds that Gulf Coast’s Motion to Dismiss
the plaintiffs’ claims seeking declaratory judgment and injunctive relief should be
granted in part and denied in part.
FACTS
The plaintiffs own real property located on Gulfport Lake in Gulfport,
Mississippi. Gulf Coast operates a commercial shipyard directly across the lake
from the plaintiffs’ property. The plaintiffs claim that large, artificial waves cause
damage to the plaintiffs’ property when Gulf Coast launches newly constructed
barges. For example, the Strains claim that the launches have damaged their
wooden bulkhead, portions of their sidewalk, and other structures on their property.
Furthermore, the Strains allege that their forty-seven foot boat must be moved
prior to every launch to protect it from damage. All of the plaintiffs are allegedly

experiencing severe erosion on their properties as a result of the launches.
The plaintiffs have attempted to assert the following claims in their
Complaint: a maritime negligence or nuisance claim, a claim for declaratory relief,
and a claim for injunctive relief. Gulf Coast filed the present Motion to Dismiss,
seeking dismissal of the claims for declaratory and injunctive relief pursuant to
Fed. R. Civ. P. 12(b)(6).
DISCUSSION
In order to survive a motion to dismiss filed pursuant to Fed. R. Civ. P.
12(b)(6), a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “This standard ‘simply calls
for enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary claims or elements.” In re S. Scrap Material Co., LLC,
541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556). In Twombly,
the Court held that “heightened fact pleading of specifics” is not required, but
“[f]actual allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555, 570. However, a court should not
accept conclusory allegations, unwarranted factual inferences, and legal conclusions
as true. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir.
2010).

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I. THE PLAINTIFFS’ DECLARATORY JUDGMENT CLAIM
The plaintiffs seek a declaratory judgment that: (1) Gulf Coast’s barge
launchings have violated and will continue to violate Rules 2(b) and 6 of the Inland
Navigation Rules, 33 U.S.C. § 2002(b) and § 20061; (2) Gulf Coast’s barge launches
have created a private nuisance; (3) Gulf Coast is obligated to either (a) modify its
method of launching barges to abate the nuisance, (b) repair and make
improvements to the plaintiffs’ properties to remedy past damage and prevent
future damage, or (c) pay damages to the plaintiffs in an amount sufficient to
restore, preserve, and protect the plaintiffs’ properties.2
Gulf Coast argues that a declaratory judgment action is inappropriate to
address a ripe claim for violations of regulations or breaches of duties.
Furthermore, Gulf Coast asserts that a declaratory judgment action should not be
filed to address past conduct. Finally, Gulf Coast asserts that the declaratory
judgment claim inappropriately duplicates the tort claims asserted by the plaintiffs.
“One of the main purposes of the Declaratory Judgment Act . . . was to
provide a means to grant litigants judicial relief from legal uncertainty in situations
that had not developed sufficiently to authorize traditional coercive relief.” Tex.
Emp’r Ins. Ass’n v. Jackson, 862 F.2d 491, 505 (5th Cir. 1988). The Fifth Circuit

1

The statutes cited by the plaintiffs were repealed in 2004.

2

Although the plaintiffs filed a separate claim for declaratory relief, some of
the declaratory relief is actually sought pursuant to the plaintiffs’ negligence /
nuisance claim.
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has explained:
Under the Declaratory Judgment Act, a district court has a measure of
discretion in deciding whether to entertain the action. Although the
district court’s discretion is broad, it is not unfettered. For example,
the district court may not dismiss declaratory judgment actions on the
basis of whim or personal disinclination. In addition, unless the
district court addresses and balances the purposes of the Declaratory
Judgment Act and the factors relevant to the abstention doctrine on
the record, it abuses its discretion.
St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590 (5th Cir. 1994) (internal citations and
quotation marks omitted). The following factors must be considered when
determining whether to exercise discretion to dismiss a declaratory judgment
action:
1) whether there is a pending state action in which all of the matters
in controversy may be fully litigated, 2) whether the plaintiff filed suit
in anticipation of a lawsuit filed by the defendant, 3) whether the
plaintiff engaged in forum shopping in bringing the suit, 4) whether
possible inequities in allowing the declaratory plaintiff to gain
precedence in time or to change forums exist, 5) whether the federal
court is a convenient forum for the parties and witnesses, and 6)
whether retaining the lawsuit in federal court would serve the
purposes of judicial economy.
Id. at 590-91. Gulf Coast has not argued that any of the Trejo factors adopted by
the Fifth Circuit weigh in favor of dismissal of Gulf Coast’s claims for declaratory
relief, and the Court finds that dismissal is not warranted under any of these
factors.
One of the cases relied on by Gulf Coast held that declaratory judgment is
“inappropriate solely to adjudicate past conduct.” Sierra Equity Grp., Inc. v. White
Oak Equity Partners, LLC, 650 F. Supp. 2d 1213, 1230 (S.D. Fla. 2009) (quoting
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Gruntal & Co., v. Steinberg, 837 F. Supp. 85, 89 (D.N.J. 1993)). The Sierra Equity
court reasoned that declaratory judgment was inappropriate because the parties did
not “seek a relief that would lead to a change in conduct by either party in order to
conform their behavior to the law or minimize the danger of future monetary loss by
the parties.” Id.
Similarly, Gulf Coast relies on an unpublished case in which this Court held
that a claim seeking a declaratory judgment that the defendants violated the
plaintiff’s due process rights should be dismissed as redundant of the plaintiff’s
separate claim for damages. Wallace v. Cheeks, No. 3:13cv436-TSL-JMR, 2013 WL
4519720, at *2 (S.D. Miss. Aug. 26, 2013). This Court explained that the
declaratory judgment claim would serve no useful purpose in that circumstance. Id.
The present case is distinguishable from the cases relied on by Gulf Coast,
because the plaintiffs’ declaratory judgment claims in those cases solely sought to
address past conduct that was adequately addressed by other claims filed in the
same lawsuit. In the present case, the plaintiffs seek “a change in conduct” on the
part of Gulf Coast – a change in Gulf Coast’s method of launching barges in the
future – or construction of improvements on the plaintiffs’ property that would
prevent future damages. See Sierra Equity, 650 F. Supp. 2d at 1230. A request for
a declaratory judgment is the appropriate means for demanding the prospective
relief sought by the plaintiffs in the present lawsuit; therefore, Gulf Coast’s Motion
to Dismiss the plaintiffs’ claims for declaratory judgment should be denied.

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II. THE PLAINTIFFS’ INJUNCTIVE RELIEF CLAIM
In their injunctive relief claim, the plaintiffs seek an order (1) prohibiting
Gulf Coast from launching barges in a manner that may cause damage to the
plaintiffs’ properties; (2) requiring Gulf Coast “to prove to the Court’s satisfaction
that [Gulf Coast] cannot launch its barges in some other fashion which will avoid
future damage to the plaintiffs’ real or personal property;” and (3) requiring Gulf
Coast to repair and make improvements to the plaintiffs’ properties to remedy past
damage and prevent future damage; or in the alternative, (4) requiring Gulf Coast
to pay monetary damages in an amount sufficient to cover the cost of making
necessary improvements to the plaintiffs’ properties to prevent future damage that
may be caused by future boat launches. Gulf Coast claims that the plaintiffs have
not stated a plausible claim for injunctive relief.
To obtain a preliminary injunction, a plaintiff must demonstrate the four
following elements:
(1) a substantial likelihood of success on the merits, (2) a substantial
threat of irreparable injury if the injunction is not issued, (3) that the
threatened injury if the injunction is denied outweighs any harm that
will result if the injunction is granted, and (4) that the grant of an
injunction will not disserve the public interest.
Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). Gulf Coast argues that the
plaintiffs have not stated a claim of irreparable injury, because all of the plaintiffs’
alleged injuries can be compensated through payment of monetary damages. See
City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 529 (5th Cir. 1983)
(“An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.”)
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In the alternative, Gulf Coast argues that the plaintiffs’ threatened injury would
not outweigh the harm that would result from imposition of an injunction, because
six hundred Gulf Coast employees would lose their jobs if Gulf Coast was required
to stop launching barges.
The Court finds that the plaintiffs’ request for an injunction ordering Gulf
Coast to pay monetary damages is inappropriate and must be dismissed. However,
the Court cannot hold, based solely on a review of the pleadings, that all of the
plaintiffs’ requests for relief can be remedied through payment of monetary
damages. Furthermore, the plaintiffs do not ask the Court to cease all barge
launches; they merely seek an order modifying the method by which barges are
launched. Finally, the number of persons employed by Gulf Coast constitutes
evidence outside the pleadings that should not be considered while addressing a
Motion to Dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6). See Fed. R. Civ. P.
12(d). As a result, the Court finds that Gulf Coast’s Motion to Dismiss the
plaintiffs’ claim for injunctive relief should be granted only to the extent that the
plaintiffs seek an injunction ordering payment of monetary damages.
CONCLUSION
For the foregoing reasons, the Court finds that Gulf Coast’s Motion to
Dismiss should be granted in part and denied in part.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion to
Dismiss [16] filed by the defendant Gulf Coast Shipyard Group, Inc., is GRANTED
as to the plaintiffs’ claims seeking an injunction requiring Gulf Coast to pay
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monetary damages. The Motion is DENIED in all other respects.
SO ORDERED AND ADJUDGED this the 24th day of August, 2015.
s/

Louis Guirola, Jr.

Louis Guirola, Jr.
Chief United States District Judge

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