Gulf Island Shipyards, LLC v. Mediterranean Shipping Company USA Inc.

Filing 108

ORDER GRANTING MOTION TO DISMISS RULE 14(c) TENDER granting 104 Motion to Dismiss. For the foregoing reasons, Martin Bencher's motion to dismiss is GRANTED. The Clerk of Court respectfully is requested to terminate the motion pending at docket entry 104. Gulf Island is GRANTED leave to amend its answer to MSC's counterclaim [ECF No. 96] within 14 days of this Order. (Signed by Judge Mary Kay Vyskocil on 11/15/2023) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 11/15/2023

GULF ISLAND SHIPYARDS, LLC,
Plaintiff,
-againstMEDITERRANEAN SHIPPING COMPANY (USA),
INC., as agent for MSC MEDITERRANEAN
SHIPPING CO. S.A., GENEVA, et al.,

1:22-cv-1018-MKV
ORDER GRANTING MOTION
TO DISMISS RULE 14(c)
TENDER

Defendants.
MARY KAY VYSKOCIL, United States District Judge:
Defendants Martin Bencher (Scandinavia) A/S and Martin Bencher USA, LLC (together,
“Martin Bencher”) move to dismiss Plaintiff Gulf Island Shipyards, LLC’s (“Gulf Island”) Federal
Rule of Civil Procedure 14(c) tender pursuant to Rule 12(b)(6). For the reasons that follow, the
motion to dismiss is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Gulf Island initiated this action by filing a complaint against Defendant
Mediterranean Shipping Company (USA) Inc. (“MSC”), claiming that MSC damaged cargo
transported in international and/or interstate commerce, in violation of the Carriage of Goods by
Sea Act, 46 U.S.C. § 30701. [ECF No. 1]. Gulf Island subsequently amended its complaint,
adding the Martin Bencher entities as Defendants. [ECF No. 29]. MSC answered the amended
complaint and simultaneously counterclaimed against Gulf Island and crossclaimed against Martin
Bencher, alleging that Gulf Island and Martin Bencher breached the terms of a bill of lading

between MSC and Martin Bencher (the “MSC Waybill”) by failing to accept delivery of the cargo
and return the container to MSC, causing MSC to incur damages. [ECF No. 31].
Martin Bencher answered MSC’s crossclaim [ECF Nos. 48, 65] and moved to dismiss the
amended complaint [ECF No. 73]. The Court granted Martin Bencher’s motion to dismiss the
amended complaint. [ECF No. 89]. Gulf Island then answered MSC’s counterclaim and tendered
that counterclaim to Martin Bencher pursuant to Rule 14(c). [ECF No. 96].
Martin Bencher now moves under Rule 12(b)(6) of the Federal Rules of Civil Procedure
to dismiss the Rule 14(c) tender. [ECF No. 104]. Martin Bencher filed a memorandum of law in
support of its motion. [ECF No. 105 (“Martin Bencher Mem.”)]. Gulf Island filed a memorandum
of law in opposition to the motion. [ECF No. 107 (“Gulf Island Mem.”)]. Martin Bencher did not
file a reply.
LEGAL STANDARD
I.

Rule 14(c): Third-Party Practice in Admiralty or Maritime Claims

Federal Rule of Civil Procedure 14(c) provides for a form of impleader practice in
admiralty and maritime actions. The Rule states:
(1) If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the
defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i)
may, as a third-party plaintiff, bring in a third-party defendant who may be
wholly or partly liable—either to the plaintiff or to the third-party plaintiff—
for remedy over, contribution, or otherwise on account of the same transaction,
occurrence, or series of transactions or occurrences.
(2) The third-party plaintiff may demand judgment in the plaintiff’s favor against
the third-party defendant. In that event, the third-party defendant must defend
under Rule 12 against the plaintiff’s claim as well as the third-party plaintiff’s
claim; and the action proceeds as if the plaintiff had sued both the third-party
defendant and the third-party plaintiff.
Fed. R. Civ. P. 14(c); see Royal & Sun All. Ins., PLC v. Ocean World Lines, Inc., 612 F.3d 138,
143 (2d Cir. 2010); Man Ferrostaal, Inc. v. M/V LOKRIS, No. 05 CIV. 9138 (DC), 2007 WL

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1470527, at *1 (S.D.N.Y. May 22, 2007).
In short, “Rule 14(c) allows the defendant in an admiralty action to implead another party
who may be liable either to the original plaintiff or to the third-party plaintiff.” Burke v. Quick
Lift, Inc., 464 F. Supp. 2d 150, 160 (E.D.N.Y. 2006). Unlike impleader practice in non-admiralty
cases under Rule 14(a), a Rule 14(c) tender establishes a direct relationship between the plaintiff
and a third-party defendant upon the assertion of a third-party claim. See id. at 160 n.10. A Rule
14(c) claim “may be asserted only against a non-party to the lawsuit.” Reynolds v. Eveready
Marine, Inc., No. CIV.A. 02-3062, 2003 WL 21088095, at *2 (E.D. La. May 7, 2003).
Accordingly, a Rule 14(c) claim “is of no consequence when . . . the third-party defendant is
already a defendant in the main action.” In re Oil Spill by Amoco Cadiz off Coast of France on
Mar. 16, 1978, 699 F.2d 909, 913 (7th Cir. 1983).
II.

Rule 12(b)(6): Failure to State a Claim

A third-party defendant impleaded under Rule 14(c) “may assert any defenses to the thirdparty plaintiff’s claim in the manner provided in Rule 12.” Burke, 464 F. Supp. 2d at 160 (cleaned
up). To survive a motion to dismiss pursuant to Rule 12(b)(6), a party must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim must contain sufficient “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although the Court “must accept as
true all of the allegations contained in a complaint,” this “tenet . . . is inapplicable to legal

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conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
DISCUSSION
Martin Bencher argues that Gulf Island’s Rule 14(c) tender must be dismissed because
Martin Bencher is already a party to this proceeding and a direct defendant to the claims made by
MSC against Gulf Island, as MSC simultaneously crossclaimed against Martin Bencher. See
Martin Bencher Mem. 3. Although the Court dismissed Gulf Island’s direct claims against Martin
Bencher, Martin Bencher remains a party to this action on MSC’s crossclaim. [See ECF No. 89].
Martin Bencher argues that Gulf Island attempts improperly to use Rule 14(c) to establish a
different alignment of a direct claim between MSC and Martin Bencher. See Martin Bencher
Mem. 3–4 (citing In re Oil Spill by Amoco Cadiz, 699 F.2d at 913).
In opposition, Gulf Island argues that it may implead Martin Bencher under Rule 14(c)
because Gulf Island was not a party to the MSC Waybill, upon which MSC bases its counterclaim
against Gulf Island. See Gulf Island Mem. 2–3. Accordingly, Gulf Island seeks to tender that
counterclaim to Martin Bencher, who was a party to the contract. Id. at 2. However, Gulf Island
acknowledges that the same result could be reached by crossclaiming against Martin Bencher
pursuant to Rule 13. See id. at 3–4; Fed. R. Civ. P. 13(g) (providing that a pleading “may state as
a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or
occurrence that is the subject matter of the original action” and that a “crossclaim may include a
claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in
the action against the crossclaimant”). In the event that Martin Bencher’s motion to dismiss is

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granted, Gulf Island requests that the Court permit its Rule 14(c) tender to “be converted or allowed
to be amended to a cross-claim under Rule 13.” Gulf Island Mem. 3.
Gulf Island has failed to state a claim under Rule 14(c) because it asserts the claim against
a third-party defendant that is already a party to this action. See Reynolds, 2003 WL 21088095, at
*2; In re Katrina Dredging Limitation Actions Consol. Litig., No. CIV A 06-8676, 2008 WL
3876461, at *4 (E.D. La. Aug. 20, 2008); see also Matter of B & H Towing, Inc., No. 6:05-CV00233, 2006 WL 8439038, at *2 (S.D.W. Va. Mar. 27, 2006). A Rule 14(c) tender may be asserted
“only against a non-party to the lawsuit.” Reynolds, 2003 WL 21088095, at *2 (emphasis added).
Martin Bencher is a defendant in this action as Cross-Defendant on MSC’s crossclaim. See In re
Oil Spill by Amoco Cadiz, 699 F.2d at 913 (Rule 14(c) “is of no consequence when, as in this case,
the third-party defendant is already a defendant in the main action.”). As Gulf Island appears to
concede, the Federal Rules provide the proper procedural mechanism by which to claim against
Martin Bencher with respect to MSC’s counterclaim against Gulf Island, i.e., through a crossclaim
pursuant to Rule 13(g).
CONCLUSION
For the foregoing reasons, Martin Bencher’s motion to dismiss is GRANTED. The Clerk
of Court respectfully is requested to terminate the motion pending at docket entry 104. Gulf Island
is GRANTED leave to amend its answer to MSC’s counterclaim [ECF No. 96] within 14 days of
this Order.

SO ORDERED.
_________________________________
MARY KAY VYSKOCIL
United States District Judge

Date: November 15, 2023
New York, NY

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