Wild v. Gaskins

Filing 14

ORDER Granting 7 Motion to Dismiss for Lack of Jurisdiction. Plaintiff has failed to allege sufficient facts to satisfy the first prong of the connection test, if taken as true, to establish federal maritime subject-matter jurisdiction; therefo re Defendant's Rule 12(b)(1) Motion to Dismiss for lack of subject-matter jurisdiction is GRANTED without prejudice. Plaintiff is GRANTED leave to amend her Compliant within fifteen (15) days of the date of this Order. IT IS SO ORDERED. Signed by District Judge Raymond A. Jackson and filed on 11/14/13. Copies distributed to all parties 11/14/13. (ldab, )

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

Newport News Division

SUSAN WILD,

Plaintiff,
CIVIL ACTION NO. 4:13cv70

v.

BARBARA GASKINS,
Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is a Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure filed by Defendant Barbara Gaskins ("Defendant"). The Court finds that oral

argument of this Motion will not aid its decisional process. Having carefully considered the
parties' pleadings, this matter is now ripe for disposition. For the reasons set forth herein, the
Motion to Dismiss is GRANTED and Plaintiff is GRANTED leave to file an amended

complaint.

I. FACTUAL AND PROCEDURAL HISTORY

On May 28, 2013, Plaintiff Susan Wild ("Plaintiff) filed a complaint against Defendant

alleging tortious injury. Defendant responded by filing a Rule 12(b)(1) Motion alleging this
Court lacks subject-matter jurisdiction.

Plaintiff alleges that on or about July 8, 2010, Plaintiff was a passenger aboard
Defendant's 19' Skeeter ZX ("the boat"). (Compl. 1| 5). While on board the boat, Plaintiff
alleges that she was under the authority of Defendant as the operator of the boat. (Compl. If 8).
1

Plaintiff alleges that Defendant was negligent in her directions and operation of the boat, and that
this negligence was the proximate cause of Plaintiffs slip and fall that resulted in Plaintiff
fracturing her left leg. (Compl. If 9-10).

II. LEGAL STANDARDS

Courts may dismiss claims for lack of subject-matter jurisdiction pursuant to Rule
12(b)(1). Fed. R. Civ. P. 12(b)(1). The plaintiff has the burden of establishing subject-matter

jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The defendant may challenge
subject-matter jurisdiction by contending either (1) that the complaint fails to allege facts

sufficient to establish subject-matter jurisdiction (a "facial challenge"); or (2) the jurisdictional
allegations in the complaint are false (a "factual challenge"). Lutfi v. United States, No. 11-1966,
2013 U.S. App. LEXIS 8322, at *11-12 (4th Cir. Apr. 24, 2013) (citing Kerns v. United States,
585 F.3d 187, 192-93 (4th Cir. 2009).

A facial challenge requires the court to dismiss the complaint only if the alleged facts, if
taken as true, fail to establish subject matter jurisdiction. Id. at * 12; see also Bain, 697 F.2d at

1219. A factual challenge however, requires that the court "go beyond the allegations of the
complaint" and weigh evidence to determine jurisdiction. Id. If jurisdictional facts and facts

central to the merits are intertwined, the "the entire factual dispute is appropriately resolved only
by proceeding on the merits." The Rule 12(b)(1) motion should only be granted where "the

material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a
matter of law." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991).

III. DISCUSSION

"A federal maritime claim may be asserted in federal district court either under § 1333,
or, in consequence of the 'saving to suitors' clause of that section, based on diversity of
citizenship." Pryor v. American President Lines, 520 F.2d 974, 976 (4th Cir. 1975). When the

defendant admits facts establishing diversity jurisdiction, as Defendant does in this case (Answer
^] 1), the threshold question becomes whether maritime jurisdiction exists over the claim.
See Pryor at 997 ((quoting Victory Carriers, Inc. v. Law, 404 U.S. 202, 204 (1971) (explaining
that "under either section the claim ... would be rooted in federal maritime law.")); see also

Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 367 n.23 (1959) (discussing maritime
claims and jurisdiction).

In order to establish federal maritime jurisdiction, a party must satisfy both the "location
test" and the "connection test." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 534 (1994). To satisfy the location test, the court must determine whether (1) the

injury occurred on navigable water; or (2) the injury was caused on land by a vessel on navigable
water. Id. The connection test requires the court to (1) assess the general features of the incident

to determine whether the incident has a potentially disruptive impact on maritime commerce;
and (2) determine whether the general character of the activity that resulted in the incident has a

substantial relationship to traditional maritime activities. Id. (citing Sisson v. Ruby, 497 U.S.
1Section 1331(1) provides that "[t]he district courts shall have original jurisdiction, exclusive ofthe courts ofthe
States, of... [a]ny civil case of admiralty or maritimejurisdiction, saving to suitors in all cases all other remedies to
which they are otherwise entitled

" 28 U.S.C. § 1331(1).

2The United States Supreme Court in Romero held in part:
All suits involving maritimeclaims, regardless of the remedy sought, are cases of admiralty and maritime
jurisdiction within the meaning of Article III whether they are asserted in the federal courts or, under the
saving clause, in the state courts. [Plaintiff]'s claims for damages under the general maritime law are a case
of admiralty and maritime jurisdiction. The substantive law on which these claims are based derives from
the third provision of Art. Ill, § 2, cl. I. Without that constitutional grant [plaintiff] would have no federal
claim to assert.
Romero at 367 n.23.

358, 363-65 (1990)) (emphasis added) (internal quotation marks omitted). The incident giving
rise to the cause of action must be one which "pose[s] more than a fanciful risk to commercial

shipping." Grubart, 513 U.S. at 539. Federal admiralty jurisdiction applies uniformly to
commercial and pleasure vehicles. See Alfordv. Appalachian Power, Co., 951 F.2d 30, 32 (4th

Cir. 1991) (explaining uniform treatment is required to provide certainty).
In Defendant's Memorandum in Support of Defendant's 12(b)(1) Motion to Dismiss for
Lack of Subject-Matter Jurisdiction, Defendant primarily contends that this Court lacks subjectmatter jurisdiction because Plaintiff fails to satisfy the connection test. (Def.'s Mem. in Supp. 7).

Defendant admits Plaintiff satisfies the location test as Kerr Reservoir3 constitutes navigable
water. (Answer If 1). In Rebuttal Memorandum in Support of Defendant's 12(b)(1) Motion to
Dismiss for Lack of Subject-Matter Jurisdiction, Defendant further admits that the incident has a

"substantial relationship to traditional maritime activities," satisfying one of the connection test's
two prongs. (Def.'s Rebuttal Mem. in Supp. 2). Plaintiff however, fails to meet the first prong
of the connection test.

The connection test articulated in Grubart requires this Court to "assess the general

features of the type of incident involved to determine if the incident has a potentially disruptive
impact on maritime commerce." 513 U.S. at 534 (internal quotation marks omitted). The

assessment must be made at an "intermediate level of possible generality" and the potential
disruptive impact of the incident on maritime commerce must be more than a "fanciful risk to

commercial shipping." Id. at 538-39 (emphasis added). Cases giving rise to federal maritime

3The Court ofAppeals for the Fourth Circuit determined the Kerr Reservoir to be a navigable body ofwater
reasoning that "[ajlthough the Kerr Reservoir may not currently be used for commercial navigation, because it is
capable of being used for purposes of transportation and commerce by customary modes of trade and travel on
water, it is a navigable waterway for purposes of determining admiraltyjurisdiction." Price v. Price, 929 F.2d 131,
135 (4th Cir. 1991).

jurisdiction must implicate the underlying federal interest in federal maritime jurisdiction - the
protection of maritime commerce. Sisson v. Ruby, 497 U.S. 358, 364 n.2 (1990).
Plaintiffcontends that the general features of this incident have a potentially disruptive

impact on maritime commerce and thus, satisfy the connection test. (PL's Mem. in Opp'n 6).
Plaintiff characterizes her analysis of the connection test in Foremost Ins. Co. v. Richardson as

"whether an accident ofthe type ... might have a potential impact on maritime commerce." Id.
(emphasis added). Plaintiffs characterization of the rule is overbroad and is rejected. See
Grubart at 539 (rejecting both overly broad and overly narrow descriptions of an incident in
favor Sisson's intermediate level of possible generality). The correct characterization of the rule

is simply whether the incident has a potential impact on maritime commerce. Foremost Ins. Co.
v. Richardson, 457 U.S. 668, 675 (1982). The United States Supreme Court ("Supreme Court")

has rejected overbroad characterizations of maritime incidents, such as the one made by Plaintiff,
in favor of characterizations that present more than a "fanciful risk to commercial shipping."

Grubart, 513 U.S. at 538-39. In Foremost, two non-commercial vessels collided in assumed4
navigable waters; Supreme Court held that federal maritime jurisdiction was
appropriate. Foremost Ins. Co., 457 U.S. at 668-70,669 n.2. In reaching their decision, the

Supreme Court examined simply the potential5 effect ofthe collision oftwo non-commercial
vehicles. Foremost, 457 U.S. at 675 (emphasis added). The Supreme Court reasoned that,
depending on the location, such a collision could exert a substantial effect upon maritime

4Supreme Court noted that the District Court "assumed theAmite River is navigable at thesiteof thecollision ...
although seldom ... used for commercial traffic," but preserved the opportunity to litigate that point in the District
Court. Foremost, 457 U.S. at 669 n.2.

5In evaluating the potential effects of the collision, Supreme Court reasoned that "if the[] boats collided at the
mouth of the St. Lawrence Seaway, there would be a substantial effect on maritime commerce, without regard to
whether either boat was ... engaged in commercial activity." Foremost, 457 U.S. at 675.

commerce. Id. The Supreme Court's analysis of the connection test with regard to a yacht fire is
instructive:

The ... test turns ... on a description of the incident at an intermediate level of possible
generality. To speak of the incident as "fire" would have been too general to differentiate
cases; at the other extreme, to have describe the fire as damaging nothing but pleasure
boats and their tie-up facilities would have ignored,... the capacity of pleasure boats to
endanger commercial shipping that happened to be nearby. We reject[] both extremes
and instead ask[] whether the incident could be seen within a class of incidents that posed
more than afanciful risk to commercial shipping.

Grubart, 513 U.S. at 538-39 (emphasis added). Plaintiff seeks to have this Court characterize

her slip and fall on a recreational fishing vessel as "certainly" capable of impacting maritime
commerce. (Def.'s Mem. in Opp'n 7) (citing White v. United States, 53 F.3d 43 (4th Cir. 1995)).
This assertion is incorrect.

White v. UnitedStates concerns a security guard's slip and fall while walking on a

gangway from ship to dock. See White, 53 F.3d at 45-46. The United States Court of Appeals
for the Fourth Circuit ("Fourth Circuit"), in analyzing the connection test, described the general
features of the incident as an "injury to a person disembarking from a vessel in navigable water."
Id. at 47. In doing so, the Fourth Circuit held that "an inability to [safely] avail oneself of the

gangway and its appurtenances would greatly inhibit a variety of activities essential to
commercial shipping ...." Id. Gangways are required for crew to board a vessel and are critical
to the loading and unloading of cargo. Id. The general features of Plaintiffs incident can be
described as an "injury to person while fishing on a vessel in navigable water." Such an incident

is easily distinguishable from the incident in White and presents no more than a "fanciful risk to
commercial shipping." A slip and fall on a non-commercial vessel does not present the same

impact on commercial shipping as a slip and fall on a gangway and fails to satisfy the first prong
of the connection test.

Plaintiff also argues the applicability of Price v. Price to the case at bar. (PL's Mem. in

Opp'n 8). In Price, the plaintiffsued after she was injured disembarking from a non-commercial
vessel in navigable water. Price v. Price, 929 F.2d 131, 133 (4th Cir. 1991). Plaintiff argues
that Price is "virtually identical" to the instant case. (PL's Mem. in Opp'n 8). It is not. In Price,

the plaintiffargues that her injuries resulted from the defendant's errors in navigation. Id. at 136.
Here, Plaintiff failed to allege that her injuries were caused, either in full or in part, by
Defendant's navigational error. (Def.'s Mot. to Dismiss); see (Compl. passim). This difference
is critical because the Fourth Circuit focused its analysis on the defendant's navigational error

concluding that the "overriding factor in this case, which brings the case within the courts of
admiralty, is the source of liability emanating from the navigation of a vessel...." Price, 929
F.2d at 136. Without an allegation of navigational error, Price does not apply.

Finally, Plaintiff fails to address Defendant's application of Gossett v. McMuriry to the
instant case. (PL's Mem. in Opp'n passim). In Gossett, the United States District Court for the
District of South Carolina rejected the plaintiffs overly broad characterization of the general
features of the incident in favor of the narrower "horsing around or playing ... practical jokes

amongst boat passengers on a recreational fishing trip." Gossett v. McMurtry, 764 F. Supp. 2d

782, 786 (D.S.C. 2010). Similar to the case at bar, the plaintiff commenced an action for
maritime negligence against the owner and operator of a non-commercial fishing vessel for an

injury6 sustained while in navigable waters. Id. at 783. The court, in dismissing the claim for
lack of subject-matter jurisdiction, noted:

6The details of thealleged injury are as follows:
Plaintiff fell asleep on the boat, either from exhaustion, from consuming too much alcohol, or a
combination of both, and while he slept, [Defendant 1] pulled his own shorts down and placed his buttocks

next to Plaintiffs face. Meanwhile, [Defendant 2] took photographs of this incident. Plaintiff alleges that
the [defendants shared the photographs with each other, and eventually, emailed them to other individuals.

Plaintiffalso alleges that [djefendants published one ofthe photographs to individuals by using itas a

The [pjlaintiff has not shown how the general features of this incident affected the
navigation of the boat, or how they affected the channels of navigation or the safety for
other boats, commercial or non-commercial. While [pjlaintiff argues that this incident

concerns the safe transportation of passengers, he has not explained how the incident, in
any way, posed more than a fanciful risk to commercial shipping ...."
Id. at 787. Here too, Plaintiff has failed to demonstrate that her alleged slip and fall on a non

commercial vessel in navigable waters posed more than a "fanciful risk to commercial shipping."
Because Plaintiff failed to demonstrate the incident posed more than a "fanciful risk to

commercial shipping," she has failed to satisfy the first prong of the connection test and has
therefore failed to establish federal maritime jurisdiction.

IV. CONCLUSION

Plaintiff has failed to allege sufficient facts to satisfy the first prong of the connection
test, if taken as true, to establish federal maritime subject-matter jurisdiction; therefore
Defendant's Rule 12(b)(1) Motion to Dismiss for lack of subject-matter jurisdiction is

GRANTED without prejudice. Plaintiff is GRANTED leave to amend her Compliant within
fifteen (15) days of the date of this Order.

The Court DIRECTS the Clerk to send a copy of this Order to the parties.
IT IS SO ORDERED.

Raymond/A. Jackson

Norfolk, Virginia

United States District Judge

Novemberff, 2013

screen saver for a computer located at the Ceres Marine office at the Columbus Street Terminal in
Charleston, South Carolina.

Gossett at 783 (internal quotation marks omitted).
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