Scarpa v. Precon Marine, Incorporated

Filing 24

AMENDED MEMORANDUM OPINION AND ORDER - Finding as Moot 22 Motion for Reconsideration. Court lacks proper subject matter jurisdiction to proceed as to Counts I and III. As a result, COUNTS I AND III ARE DISMISSED WITHOUT PREJUDICE. Litigation as to Count II is allowed to proceed before this Court. Plaintiffs Motion to Reconsider (ECF. No 22) is hereby MOOT.IT IS SO ORDERED. Signed by District Judge Raymond A. Jackson and filed on 7/10/13. Copies distributed 7/12/13 to all parties. (ldab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

DREW SCARPA,
Plaintiff,
CIVIL ACTION NO. 2:12cv608

v.

PRECON MARINE INCORPORATED,
Defendant.

AMENDED MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's Motion to Dismiss Count I and portions of Court III of
the Plaintiffs Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). At

issue in this case is whether Precon Marine Incorporated, a maritime construction company, is

liable for a breach of the Warranty of Seaworthiness (Count I), negligence under the Jones Act,
pursuant to 46 U.S.C. § 30104 (Court II), and Breach of the Duty to Pay Maintenance and Cure

(Count III). All of these counts are related to injuries a worker allegedly incurred by operating
on one of the Defendant's skiffs on the Western Branch Reservoir near Lake Prince. However,

at this stage of the litigation, Defendant simply argues that Plaintiffs Amended Complaint is
defective and subject to dismissal on the counts of Breach of the Warranty of Seaworthiness
("Seaworthiness Count") and the Breach of the Duty to Pay Maintenance and Cure
("Maintenance and Cure Count"). Defendant has not attacked Plaintiffs Jones Act negligence

claim. However, in making its arguments, Defendant appears to raise an even more relevant

question to the Court: whether it has subject matter jurisdiction over the Plaintiffs case in light
of the fact that the alleged accident occurred in non-navigable waters, potentially depriving the

Court of admiralty and maritime jurisdiction. Having reviewed the pleadings and held a hearing,

this matter is now ripe for judicial determination.
I. PROCEDURAL AND FACTUAL BACKGROUND

On November 11, 2012, Plaintiff filed a complaint ("First Complaint") against Precon

Marine Incorporated. Defendant responded by filing a Rule 12(b)(6) Motion, alleging Plaintiff
failed to state a claim upon which relief can be granted in Counts I and III. In response, Plaintiff
filed his Amended Complaint and Defendant filed the instant Rule 12(b)(6) Motion to Dismiss.
Plaintiff alleges that Plaintiff was directed to get a skiff from the Defendant's facility and

transport it to the Western Branch Reservoir near Lake Prince for related work. (Amended
Complaint <ft 10). In the process of preparing the skiff for transport, an employee for the
Defendant responsible for placing the skiff into a trailer was unable to secure it onto the trailer in
a normal fashion. (Amended Complaint ^ 11-15). While attempting to place the skiff in the
water at its destination, it began to float away before the Plaintiff could start its engine.

(Amended Complaint ^ 16-17). When Plaintiff attempted to start the skiffs engine, it failed to
turn on. As a result, Plaintiff attempted to throw a rope line to shore. (Amended Complaint ^

20). However, while attempting to throw the line to shore, Plaintiff severely injured his arm.
(Amended Complaint ^ 21).
II. LEGAL STANDARD

A. Motion to Dismiss under F.R.C.P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action that fails
to state a claim upon which relief can be granted. For purposes of a Rule 12(b)(6) motion, courts
may only rely upon the complaint's allegations and those documents attached as exhibits or

incorporated by reference. See Simons v. MontgomeryCnty. Police Officers, 762 F.2d 30, 31

(4th Cir. 1985). Courts will favorably construe the allegations of the complainant and assume
that the facts alleged in the complaint are true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

However, a court "need not accept the legal conclusions drawn from the facts," nor "accept as
true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts.,
Inc., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). A complaint need not

contain "detailed factual allegations" in order to survive a motion to dismiss, but the complaint
must incorporate "enough facts to state a belief that is plausible on its face." See Bell All. Corp.
v. Twombly, 550 U.S. 544, 570 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008). This plausibility standard does not equate to a probability requirement, but it entails more

than a mere possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949-50 (2009). Further, the United States Court of Appeals for the Fourth Circuit ("Fourth
Circuit") has indicated that "[dismissal of a complaint for failure to state facts supporting each
of the elements of a claim is, of course, proper." lodice v. United States, 289 F.3d 270, 281 (4th
Cir. 2002).
B. Motion to Dismiss under F.R.C.P. 12(h)(3)

Federal Rule of Civil Procedure 12(h)(3) provides for the dismissal of an action at any
time where the Court determines that it lacks subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). Unless a matter involves an area over which federal courts have exclusive jurisdiction,
a federal district court has subject matter jurisdiction over a case only where the matter involves

a federal question arising "under the Constitution, laws or treaties of the United States," 28
U.S.C. § 1331, or if "the matter in controversy exceeds the sum or value of $75,000, exclusive of
interests and costs, and is between citizens of different States," 28 U.S.C. § 1332(a)(1). See

Pinkley, Inc. v. City ofFrederick, Md, 191 F.3d 394, 399 (4th Cir. 1999) ("Federal courts are

3

courts of limited subject matter jurisdiction, and as such there is no presumption that the court

has jurisdiction."). Accordingly, "before a federal court can decide the merits of a claim, the
claim must invoke the jurisdiction of the court." Miller v. Brown, 462 F.3d 312,316 (4th Cir.
2006).

C. Admiralty and Maritime Jurisdiction
Under the Constitution of the United States, Article III, Section 2, Clause 1 and 28 U.S.C.

§ 1333, federal courts have original and exclusive jurisdiction over "[a]ny civil case of admiralty
or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are

otherwise entitled." However, both the United States Supreme Court ("Supreme Court") and the
Fourth Circuit have held that admiralty and maritime jurisdiction does not simply extend to every

accident that occurs on any body of water but only after meeting certain constitutional and public

policy requirements. Under current Supreme Court case law, in order to determine whether a
tort action lies with a federal district court's admiralty and maritime jurisdiction, a two part test,

fully articulated in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527
(1995), must be applied. The Grubart Test represents the current evolution of the decisional
process used to determine whether a court has admiralty and maritime jurisdiction over a tort
claim. The "traditional" test for determining tort admiralty and maritime jurisdiction was simply

based on whether the tort occurred on navigable waters. See Exec. Jet Aviation v. Cityof
Cleveland, 409 U.S. 249,253 (U.S. 1972) ("Determination of the question whether a tort is

"maritime" and thus within the admiralty jurisdiction of the federal courts has traditionally
depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is

within admiralty jurisdiction; if the wrong occurred on land, it is not.").
location based test fell out of favor:

However, this pure

[0]ver the years this rule compelled some odd results, for instance, decisions that
admiralty courts lacked jurisdiction over a claim following a ship's collision with
a pier insofar as it injured the pier, for admiralty law treated the pier as an
extension of the land. This rule was changed in 1948 when Congress enacted the
Extension of Admiralty Jurisdiction Act, 62 Stat. 496. 46 U.S.C. App. § 740
(current version at 46 U.S.C. § 30101. The Act provided that "[t]he admiralty and
maritime jurisdiction of the United States shall extend to and include all cases of
damage or injury, to person or property, caused by a vessel on navigable water,
notwithstanding that such damage or injury be done or consummated on land." Id.
After this legislative expansion of the reach of admiralty jurisdiction to capture
additional cases, the Supreme Court issued four decisions that added
qualifications and clarifications to the jurisdictional test in an effort to weed out
cases that did not serve the purpose underlying the existence of federal maritime
jurisdiction.

In re Asbestos Litig, 2012 Del. Super. LEXIS 177, *5-6 (Del. Super. Ct. Feb. 15, 2012). Today,
the Grubart Test is the operative test for tort admiralty and maritime jurisdiction:
[W]e now apply a two-part test for determining when a tort action falls within the
federal courts' admiralty jurisdiction. First, the alleged tort must have occurred on
or over "navigable waters." Second, the activity giving rise to the incident must
have had a substantial relationship to traditional maritime activity, such that the
incident had a potentially disruptive influence on maritime commerce.

Vasquez v. GMD Shipyard Corp., 582 F.3d 293,298 (2d Cir. 2009) (internal citations omitted)
(quoting Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (U.S. 1995)).
As the Supreme Court elaborated:

A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on
navigable water. The connection test raises two issues. A court, first, must assess
the general features of the type of incident involved to determine whether the
incident has a potentially disruptive impact on maritime commerce. Second, a
court must determine whether the general character of the activity giving rise to
the incident shows a substantial relationship to traditional maritime activity. We
now apply the tests to the facts of this suit.
Grubart, 513 U.S. at 534 (internal citations and quotations omitted). As to what

constitutes "navigable waters," the Fourth Circuit provides some detailed guidance:

A body of water that is confined within a state and does not form part of an
interstate waterway is not an admiralty concern. See The Robert W. Parsons, 191

U.S. 17, 26, 48 L. Ed. 73 , 24 S. Ct. 8 (1903)(defining navigable waters as those
which '"form in their ordinary condition by themselves, or by uniting with other
waters, a continued highway over which commerce is or may be carried on with
other States or foreign countries, in the customary modes in which such
commerce is conducted by water"' (quoting from The Daniel Ball, 11 U.S. (10
Wall.) 557, 563, 19 L. Ed. 999 (1870))). Admiralty also extends only to
waterways that can bear commercial shipping. While it is not necessary that the
waterway be in current use for such shipping, it must in its current configuration
be so capable. Rules of admiralty cannot remain uniform or have any certainty "if
their applicability is dependent on whether, on any given day, commercial
maritime activity is being conducted on the waters." Price, 929 F.2d at 134.

Alford v. Appalachian Power Co., 951 F.2d 30, 32 (4th Cir. 1991). Finally, the Fourth
Circuit holds that:

It is irrelevant to the interest of admiralty in unifying rules of navigation on the
waterways that at one time, when a waterway was in a different configuration, it
was navigable. It is therefore not surprising that the cases hold uniformly that a
historical commercial use of a body of water in a configuration predating the
creation of the current configuration does not support admiralty jurisdiction. See
Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 779 (8th
Cir. 1990) (finding no admiralty jurisdiction over a dammed, lockiess lake wholly
within one state), cert, denied, 116 L. Ed. 2d 224, 60 U.S.L.W. 3265, 112 S. Ct.
272 (U.S. Oct. 7, 1991); Adams v. Montana Power Co., 528 F.2d 437, 439 (9th
Cir. 1975); Chapman v. United States, 575 F.2d 147, 149 (7th Cir. 1977) (en
banc), cert, denied, 439 U.S. 893, 58 L. Ed. 2d 239 , 99 S. Ct. 251 (1978).
Id. at 33.

D. Warranty of Seaworthiness

The Fourth Circuit expounded upon the parameters of a seaworthiness claim in Chisholm

v. UHP Projects, Inc., 205 F.3d 731, 734 (4th Cir. 2000):
The doctrine of seaworthiness arises by operation of law and states that a ship
owner owes the seaman an absolute, non-delegable duty to provide a seaworthy
vessel. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50, 4 L. Ed. 2d

941, 80 S. Ct. 926 (1960) (seaworthiness is defined as a vessel that has a hull and
equipment that are reasonably adequate in design and maintenance, and a crew
that is of sufficient character to perform its intended function in the operation of
the vessel). Liability for violation of the doctrine of seaworthiness is without fault.
See id.

III. DISCUSSION

Defendant argues that the Plaintiffs Amended Complaint is defective and subject to
dismissal on two counts: Breach of the warranty of Seaworthiness ("Seaworthiness Count") and
Breach of the Duty to Pay Maintenance and Cure ("Maintenance and Cure Count"). Defendant

has not attacked Plaintiffs negligence claim. As an initial matter, Defendant asserts that the
Plaintiff has failed to adequately plead a claim for Maintenance (i.e. food and lodging to an
injured seaman) and the Plaintiff agrees.

The Defendant argues that Count I fails to state a claim because the skiff is not a "vessel
in navigation." The Defendant supports this claim by asserting that absent the alleged accident

taking place in navigable waters, general maritime law is not applicable. Whether by accident or
design, this argument raises the issue of whether this Court has subject matter jurisdiction. As a
result, the Court must determine whether it has subject matter jurisdiction over this matter before

it can proceed by applying the Grubart Test. Part one of the test requires the Court to determine
whether the alleged tort occurred on or over navigable waters of the United States. Based on the
undisputed facts presented to the Court, the alleged tort did not occur on navigable waters of the
United States. Both parties concede that that alleged accident occurred on Western Branch
Reservoir near Lake Prince and that said Reservoir is landlocked and not connected to any other
body of water, nor does it pass through another state or foreign country. As the Fourth Circuit
holds, "[a] body of water that is confined within a state and does not form part of an interstate

waterway is not an admiralty concern." Furthermore, the parties have presented no evidence to
suggest that the Western Branch Reservoir can support commercial shipping. Given that the

alleged tort did not occur on navigable waters, as Grubart requires, the Court does not need to
reach Part two of the Grubart Test, i.e. whether the activity that gave rise to the alleged tort in

this case had a substantial relationship to traditional maritime activity. Because the Court does
not have proper tort admiralty and maritime jurisdiction over this case, pursuant to Federal Rule
of Civil Procedure 12(h)(3), COUNTS I AND HI ARE DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction over the Plaintiffs claims. Court II, the

Plaintiffs Jones Act claim, is properly before the Court and within its federal question
jurisdiction. See Holloway v. Pagan River Dockside Seafood, 669 F.3d 448,451 (4th Cir. 2012)
("Federal courts, sitting at law, have subject matter jurisdiction to hear and resolve Jones Act

claims under federal question jurisdiction, 28 U.S.C. § 1331."). Litigation on Count II is allowed
to proceed.
IV. CONCLUSION

For reasons stated above, the Court lacks proper subject matter jurisdiction to proceed as
to Counts I and III. As a result, COUNTS I AND III ARE DISMISSED WITHOUT

PREJUDICE. Litigation as to Count II is allowed to proceed before this Court. The Clerk is

DIRECTED to provide a copy of this Amended Memorandum Opinion and Order to counsel for
the parties. Plaintiffs Motion to Reconsider (ECF. No 22) is hereby MOOT.
IT IS SO ORDERED.

Norfolk, Virginia

July/^?,2013

Raymond A. Jackson
United Slates District Judee