Ledesma et al v. Airbus Helicopters, Inc. f/k/a American Eurocopter Corp.
Filing
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MEMORANDUM OPINION AND ORDER ; Denying 8 Motion to Dismiss; denying 16 Motion to Strike; denying 17 Motion for Leave to File.(Signed by Judge George C Hanks, Jr) Parties notified.(jegonzalez, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LUIS LEDESMA and
DAVID PAUL GONZALES,
Plaintiffs,
VS.
AIRBUS HELICOPTERS, INC. f/k/a
AMERICAN EUROCOPTER CORP.,
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September 23, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 3:15-cv-00177
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs, Luis Ledesma and David Paul Gonzales, bring this lawsuit against
Defendant Airbus Helicopter, Inc., for “severe and debilitating” physical injuries they
suffered while traveling in a helicopter from the West Pegasus, a semisubmersible
drilling rig in the Gulf of Mexico, to Matamoros, Mexico. Plaintiffs allege that, during
the flight, the helicopter “unexpectedly and without warning, incurred a free fall toward
the surface of the water.” They bring claims for strict products liability, as well as
negligence and gross negligence, asserting the helicopter was negligently designed and
manufactured, and that Airbus negligently failed to train pilots or warn of the helicopter’s
defects. Plaintiff Ledesma is a resident of Arizona, Plaintiff Gonzales is a resident of
Louisiana, and Airbus is a “foreign corporation with its principal place of business in
Texas.” Plaintiffs allege that this Court has jurisdiction under 28 U.S.C. § 1333 because
“the suit involves admiralty and maritime jurisdiction.”
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Airbus has moved to dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6), contending that (1) maritime jurisdiction does not exist over these claims, (2)
Plaintiffs’ Complaint is time-barred, and (3) Plaintiffs’ Complaint fails to state a claim
for which relief may be granted.
APPLICABLE LAW
A. Rule 12(b)(6) Standards
Traditionally, a motion to dismiss under Rule 12(b)(6) for failure to state a claim
is viewed with disfavor and is rarely granted. See Lormand v. U.S. Unwired, Inc., 565
F.3d 228, 232 (5th Cir. 2009); Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570
(5th Cir. 2005). When considering a 12(b)(6) motion, this Court must construe the
complaint liberally in a plaintiff’s favor and all well-pleaded facts are taken as true. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 55-56 (2007) (“[A] judge must accept as true
all of the factual allegations contained in the complaint.”); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to dismiss, the complaint must
contain enough factual content, when taken as true, to “state a claim for relief that is
plausible on its face.” Twombly, 550 U.S. 544, 570. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 556; Iqbal, 556 U.S. 662,
664.
Nevertheless, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at
555). As held in Twombly, the pleading standard under Rule 8 of the Federal Rules of
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Civil Procedure does not require “detailed factual allegations,” but “demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” 550 U.S. at 545. A
complaint that merely offers conclusory allegations, “formulaic recitation of the elements
of a cause of action” or “naked assertion[s]” without “further factual enhancement” will
not do. Id. at 555-57.
In considering a motion to dismiss, a court ordinarily must limit itself to the
contents of the pleadings and attachments thereto. See Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing FED. R. CIV. P. 12(b)(6)). “Documents
that a defendant attaches to a motion to dismiss are [also] considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central to her claim.” Id.; see
also Kane Enters. v. MacGregor (USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003).
B. Admiralty Jurisdiction/Statute of Limitations
Although much of its briefing is devoted to maritime jurisdiction, the real thrust of
Airbus’ argument here is that the statute of limitations has expired. Plaintiffs allege that
they were injured on July 13, 2012. Dkt. 1.
They filed suit in this Court on July 13,
2015. If their Complaint alleges a claim within this Court’s maritime jurisdiction, then
the three-year statute of limitations for maritime torts, 46 U.S.C. § 30106, applies and
their claims are timely. On the other hand, if the Court finds that this is not a maritime
case, then Airbus contends that Plaintiffs’ claims are time-barred, whether they are
analyzed under the laws of Texas, where Airbus is located; the laws of Arizona and
Louisiana, the home states of the Plaintiffs; or the laws of Mexico, where the helicopter
landed.
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Both Plaintiffs and Airbus agree that the applicable framework under which this
Court must examine whether maritime jurisdiction exists, and thus maritime law applies,
is provided by Grubart, Inc., v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).
Under Grubart, “a party seeking to invoke federal admiralty jurisdiction pursuant to 28
U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of
connection with maritime activity.” Id. at 534.
Under the “location” inquiry, a plaintiff must show that the alleged “tort either
occurred on navigable waters, or if the injury is suffered on land, that it was caused by a
vessel on navigable waters.” Richard H. Hufnagel v. Omega Service Industries, Inc., 162
F.3d 340, 351 (5th Cir. 1999) (citing Grubart, 513 U.S. at 534). The second step,
“connection,” involves a two-pronged analysis: (1) whether the incident, described in
general characteristics, has a potentially disruptive impact on maritime commerce; and
(2) whether the general character of the alleged tortious conduct giving rise to the
incident has a substantial relationship to maritime activity. Id. (internal citations omitted).
1. Location Test
Airbus apparently concedes that, under the facts and causes of action alleged in the
Complaint, the helicopter’s free fall over the Gulf of Mexico satisfies the location test’s
requirement that the tort occurred “on navigable waters.”
This accords with the Fifth
Circuit’s direction that, in applying Grubart’s location test in a products liability case,
“[t]he court must consider where the wrong ‘took effect’ rather than the locus of the
tortious conduct.” Petrobras Am., Inc. v. Vicinay Cadenas, S.A., 815 F.3d 211, 216 (5th
Cir. 2016), order clarified on reh’g sub nom., Petrobras Am., Inc. v. Vicinay Cadenas,
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S.A., No. 14-20589, 2016 WL 3974098 (5th Cir. July 22, 2016); see also Woessner v.
Johns–Manville Sales Corp., 757 F.2d 634, 638 (5th Cir. 1985) (“[T]he locality
requirement is satisfied where a defective product furnished in the construction of a ship
later caused damage or injury on navigable waters, even though the defendant’s alleged
wrong occurred on land.”).
2. Connection Test
Next, the Court turns to “connection.” Plaintiffs allege that the helicopter was
providing an “air taxi” service, transporting them from the offshore drilling rig to the
Mexican mainland. Airbus contends these allegations do not satisfy the connection test
under Grubart and later cases. In evaluating the “connection” under Grubart, the Court
must consider: (1) whether the incident, described in general characteristics, has a
potentially disruptive impact on maritime commerce; and (2) whether the general
character of the alleged tortious conduct giving rise to the incident has a substantial
relationship to maritime activity. Id. (internal citations omitted).
According to Airbus,
neither of these conditions are satisfied.
a. Potentially disruptive impact on maritime commerce
Airbus first points out that, unlike the vast majority of cases involving air
transportation and maritime jurisdiction, the helicopter in this case did not actually make
contact with the water—“Plaintiffs do not allege that a crash occurred, or that the
Helicopter, or any part of it, touched the water. . . . The Incident was nothing more than a
temporary loss of altitude.” Further, Airbus argues that Plaintiffs have not sufficiently
alleged that the helicopter had the potential to disrupt maritime commerce, i.e., Airbus
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argues that there must have been some risk to commercial vessel traffic. While Airbus’
argument has some logical merit, case law from this Court and the Fifth Circuit dictate
the contrary result.
In Petrobras, the Fifth Circuit noted that, “the question is ‘whether the incident
could be seen within a class of incidents that posed more than a fanciful risk’ to maritime
commerce” and “[t]he proper focus is on ‘potential effects, not the ‘particular facts of the
incident.’” Petrobras, 815 F.3d at 217 (citing Grubart at 538, 115 S.Ct. at 1051). In
answering this question, the Court should “assess the general features of the type of
incident involved” to determine whether the incident has a “potentially disruptive impact
on maritime commerce.” Grubart, 513 U.S. at 534. Such an assessment should be at “an
intermediate level of generality.” Id. at 534. Some guidance from other cases illustrates
the proper approach to this inquiry.
In Scarborough v. Clemco Industries, the Fifth Circuit analyzed claims by a
seaman who contracted silicosis after working aboard sandblasting vessels over an eightyear period. 391 F.3d 660, 665 (5th Cir. 2004). The Fifth Circuit assessed his activity at
an intermediate level of generality as “injury to a Jones Act seaman due to the negligence
of a non-employer.” Id. at 665. Using that description, the court held “it is clear that the
sandblasting activity is of the sort with potential to disrupt maritime activity.” Id. In
Louviere v. American Helicopters, the United States Magistrate Judge C. Michael Hill
analyzed a claim for injuries sustained during an offshore helicopter’s engine problems
and subsequent water landing as an “injury to a non-seaman while being transported in
the functional equivalent of a vessel to an offshore production facility (island) to do
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repair work.” No. 03-1503, 2005 WL 2260718 (W.D. Louisiana Sept. 16, 2005). “Given
the broad interpretation given by the courts to the potentially disruptive impact
requirement, this court has no trouble concluding that the activity at issue had the
potential for affecting maritime commerce.” Id. at *3 (citing Sisson v. Ruby, 497 U.S.
358, 363, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990) (fire on a non-commercial
vessel docked in a marina held to have a least a potentially disruptive effect on maritime
commerce) and Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73
L.Ed.2d 300 (1982) (the collision of two pleasure boats on a navigable inland waterway
seldom if ever used for commerce held to have had at least a potentially disruptive effect
on maritime commerce)). Similarly, this Court has also held that the “sinking of an
aircraft in navigable waters is well within that class of incidents [that pose more than a
fanciful risk to commercial shipping].” Williamson v. Petroleum Helicopters, Inc., 32 F.
Supp. 2d 456, 459 (S.D. Tex. 1999) (holding Grubart connection test satisfied where
helicopter ferrying workers between offshore platforms experienced mechanical
problems, ultimately crashing into stationary platform and then falling into sea).
In this case, at an intermediate level of generality, the Court describes the activity
alleged in the Complaint as: physical injuries two passengers sustained while being
transported in the functional equivalent of a vessel from an offshore semisubmersible
drilling rig to the mainland. Under the authorities cited above, the Court finds that
Plaintiffs have alleged a “potentially disruptive impact on maritime commerce.”
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b. Substantial relationship to traditional maritime activity.
Next, the Court examines “whether the general character of the activity giving rise
to the incident shows a substantial relationship to traditional maritime activity.” Grubart,
513 U.S. at 534. Both the Supreme Court and the Fifth Circuit have held that the use of
helicopters to ferry passengers and supplies to and from offshore rigs satisfies this test:
Although the decedents were killed while riding in a helicopter and not a
more traditional maritime conveyance, that helicopter was engaged in a
function traditionally performed by waterborne vessels: the ferrying of
passengers from an “island,” albeit an artificial one, to the shore.
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218–19 (1986) (citation omitted);
Ledoux v. Petroleum Helicopters, Inc., 609 F.2d 824, 824 (5th Cir. 1980) (“[t]he crash of
the deceased’s helicopter, while it was being used in place of a vessel to ferry personnel
and supplies to and from offshore drilling structures, bears the type of significant
relationship to traditional maritime activity which is necessary to invoke admiralty
jurisdiction.”); see also Alleman v. Omni Energy Services Corp., 580 F.3d 280, 285 (5th
Cir. 2009) (noting, “helicopter transport to offshore platforms bears a ‘significant
relationship to a traditional maritime activity’ and essentially replaces a ‘function
traditionally performed by waterborne vessels.’”); Cheramie v. Panther Helicopters, Inc.,
No. 14-1597, 2015 WL 693221, at *3 (E.D. La. Feb. 18, 2015).
The allegations in the Plaintiffs’ Complaint have sufficiently alleged a maritime
tort, maritime law therefore applies. Under the three-year statute of limitations for
maritime torts, this case is timely filed.
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C. Motion to Dismiss
Next, the Court turns to the contention that the Plaintiffs’ Complaint fails to state a
claim under Twombly and the relevant authorities.
Quite understandably, Airbus complains of Plaintiffs’ spare pleading style. Airbus
first particularly notes that the Plaintiffs have not alleged the specific reason they believe
the helicopter lost altitude. Although it is a close call, the Court is mindful that, at this
stage, the Fifth Circuit has found that requiring plaintiffs in a product liability lawsuit “to
plead extremely ‘detailed factual allegations’ that satisfy each element of a products
liability action . . . creates a situation where a manufacturer will not be held liable for
defective products because it has sole possession of the necessary document[s] to
ultimately prove the claim.” Flagg v. Stryker Corp., 647 Fed. Appx. 314, 317 (5th Cir.
2016) (noting, “Perhaps after discovery Flagg will not prevail, but at a pre-discovery
stage of this case, in an area of law where defendants are likely to exclusively possess the
information relevant to making more detailed factual allegations, we cannot say that he is
merely on a fishing expedition.”).
Here, Plaintiffs have alleged that there were
“deficiencies or defects in the helicopter, its operating system, and/or its component
parts” that caused it to go into free fall during normal flight operations, thereby seriously
injuring its passengers. Again, the Court notes that this is a very close call. But, as in
Flagg, the Plaintiffs here have “plausibly alleged enough information that, with
discovery, [they] could prove the Manufacturing Defendants are liable . . .” Flagg v.
Stryker Corp., 647 Fed. App’x. 314, 319 (5th Cir. 2016).
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Similarly, the Plaintiffs have alleged that Airbus negligently failed to train the
pilots and failed to warn of the helicopter’s known defects, including failing to issue and
distribute maintenance manuals and service bulletins. Whether or not Airbus had an
actual duty under the facts to train or to warn is not the issue here—the Plaintiffs have
alleged a clear theory of liability, and they have supported it with the bare minimum of
factual allegations. The same is true for damages—Plaintiffs seek to recover for physical
injuries that they sustained during the helicopter’s free fall, and they allege that those
damages were severe, painful, and causing lasting physical disfigurement and
impairment.
On a motion to dismiss, when the cause of action requires specific elements to be
proven, the plausibility “standard ‘simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of’ the necessary claims or elements.” In
re S. Scrap Material Co., 541 F.3d at 587 (quoting Twombly, 550 U.S. at 556, 127 S.Ct.
1955). Albeit barely, Plaintiffs have done so here.
CONCLUSION
After reviewing Defendant’s Motion to Dismiss, the response, the briefing, and the
record in this case, the Court finds that the Motion to Dismiss should be DENIED.
Additionally, Defendant’s Objection to and Motion to Strike Plaintiff’s Sur-Reply is also
DENIED.
SIGNED at Galveston, Texas, this 23rd day of September, 2016.
___________________________________
George C. Hanks Jr.
United States District Judge
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