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In re Complaint of Vulcan Construction Materials, LLC

United States District Court, E.D. Virginia, Norfolk Division

November 14, 2019



          Lawrence R. Leonard United States Magistrate Judge

         Before the Court is Plaintiff in Limitation Vulcan Construction Materials, LLC's ("Vulcan") Motion to Dismiss Count II of Claimant Robert W. Dervishian, Jr.'s ("Dervishian") Answer and Claim, and supporting memorandum ("Motion to Dismiss") pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 48-49. Dervishian filed a memorandum in opposition, requesting the Court deny Vulcan's Motion to Dismiss. Dervishian also filed a Motion for Leave to File an Amended Answer and Claim ("Motion for Leave to Amend"), ECF No. 53, and a Proposed Amended Answer and Claim, ECF No. 54, attach 1. Vulcan filed a combined Reply memorandum in support of the Motion to Dismiss and Opposition to Dervishian's Motion for Leave to Amend ("Reply"). ECF No. 59. On July 29, 2019, the parties consented to jurisdiction before the undersigned United States Magistrate Judge ("undersigned") pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. ECF No. 50. The undersigned makes this ruling without a hearing pursuant to Fed.R.Civ.P. 78(b) and E.D. Va. Local Civ. R. 7(J). As such, these motions are now ripe for disposition.

         For the following reasons, Vulcan's Motion to Dismiss, ECF No. 48, is GRANTED, and Dervishian's Motion for Leave to Amend, ECF No. 53, is GRANTED.


         This case arises out of an incident on February 22, 2018, in which Dervishian alleges injuries caused by the sudden impact of the Tug Jeanie Clay ("the Tug") with a barge on which Dervishian was standing, causing him to fall 7'10" from the deck of one barge onto the deck of another barge. ECF No. 16. On December 17, 2018, Vulcan filed a Complaint in this action for limitation of liability as the owner of the Tug. ECF No. 1. On January 22, 2019, Dervishian filed an Answer and Claim. ECF No. 16. In his Answer and Claim Dervishian asserts two causes of action. Id. Count I asserts a cause of action for "General Maritime Negligence" and Count II asserts a cause of action for "Unseaworthiness." ECF No. 16 at 9-11.

         Vulcan's instant Motion to Dismiss alleges that Count II of Dervishian's Answer and Claim must be dismissed because it asserts a no-fault, strict liability cause of action for unseaworthiness-which can only be alleged by seaman employed by a vessel. ECF No. 49 at 1 -2. Because Dervishian is not a seaman, he cannot maintain a cause action for unseaworthiness. Id. In response, Dervishian does not dispute he cannot maintain a no-fault strict liability cause of action for unseaworthiness. ECF No. 52 at 1. Rather, Dervishian argues that Count II should not be dismissed because Count II, as it is currently pled, asserts a direct negligence claim against Vulcan. Id. at 2. Dervishian requests that if the Court finds Count II does not plead a direct negligence claim, he be permitted to file an Amended Answer and Claim. Id. In its Reply memorandum, Vulcan argues that the Court's previous Orders in this action prevent Dervishian the opportunity to amend his Answer and Claim. ECF No. 59 at 4-6.

         Accordingly, the issues before the Court are (1) whether Count II must be dismissed because it asserts a no-fault strict liability cause of action for unseaworthiness; and (2) if so, whether Dervishian can amend his Answer and Claim to assert a direct negligence clam against Vulcan. The Court addresses each of these issues separately.


         A motion filed under Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint.[1] Jordan v. Alt. Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006). In considering this motion a court must assume that the facts alleged are true. E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Rule 8(a) requires that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). To be sufficient under Rule 8, a pleading must meet two basic requirements: (1) it must contain sufficient factual allegations and (2) those allegations must be plausible. Adiscov, LLC v. Autonomy Corp., 762 F.Supp.2d 826, 829 (E.D. Va. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). First, sufficient factual allegations include "more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do;" rather, "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Second, to "nudge[] their claims across the line from conceivable to plausible," id. at 570, "plaintiff[s] [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Iqbal, 556 U.S. at 678. Indeed, to achieve factual plausibility, the plaintiff must allege more than "naked assertions . . . without some further factual enhancement." Twombly, 550 U.S. at 557. Otherwise, the complaint will "stop[] short of the line between possibility and plausibility of entitlement to relief." Id.

         Accordingly, "the purpose of Rule 12(b)(6) is to test the legal sufficiency of the complaint." Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). When considering a motion to dismiss, only those allegations which are factually plausible are "entitled to the assumption of truth." Iqbal, 556 U.S. at 679 (noting that legal conclusions must be supported by factual allegations). In other words, "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). "At bottom, determining whether a complaint states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).


         A. Count II Must Be Dismissed Because It Pleads a No-Fault, Strict Liability Cause of Action.

         The overwhelming majority of cases in this Circuit (and other circuits) associate a cause of action for "unseaworthiness" with a no-fault strict liability cause of action. Dise v. Express Marine, Inc., 476 Fed.Appx. 514, 519-20 (4th Cir. 2011) (noting a claim for unseaworthiness is separate and distinct from a negligence claim, and that seaworthiness is "an absolute duty requiring no knowledge on the part of the shipowner and exists independently of the duty to exercise reasonable care under the Jones Act."); 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...[l]iability for violation of the doctrine of seaworthiness is without fault.") (citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50 (1960); Harwood v. Partredereit AF15.5.81, 944 F.2d 1187, 1189 (4th Cir. 1991) (holding it was prejudicial error to instruct a jury that a non-seaman was owed a warranty of seaworthiness). More specifically, the "warranty of seaworthiness" is key language in recognizing a no-fault strict liability cause of action. For example, the Longshore and Harbor Workers' Compensation Act ("LHWCA") specifically abolished a cause of action based upon the warranty of seaworthiness for Longshoremen.[2] 33 U.S.C. § 905(b) (emphasis added); Howlett v. Birkdale Shipping Co., 512 U.S. 92, 97 (1994) (noting that the 1972 amendments to the LHWCA "abolished the longshoreman's pre-existing right to sue a shipowner based upon the warranty of seaworthiness") (emphasis added); Yoash v. McLean Contracting Co., 907 F.2d 1481, 1487 (4th Cir. 1990), rev'd on other grounds, 498 U.S. 1117 (1991) ("The warranty of seaworthiness imposes a nondelegable duty on a vessel owner or operator to insure that the vessel is fit for voyage.") (emphasis added); In re Complaint of Falkiner, 716 F.Supp. 895, 902 (E.D. Va. 1988) ("In order for the plaintiffs to have owed the claimants a warranty of seaworthiness, the claimants must have been within an employee-employer relationship with the plaintiffs and to have been 'seamen.'"). See also Earles v. Union Barge Line Corp., 486 F.2d 1097, 1106 (3d Cir. 1973) (explaining the difference between the warranty of seaworthiness and the duty of care owed by a shipowner in a negligence context).

         Count II of Dervishian's Answer and Claim makes multiple assertions indicative of a no-fault, strict liability cause of action for unseaworthiness. Paragraph 24 of the Answer and Claim states that "Vulcan owed Dervishian a duty to furnish a seaworthy vessel..." ECF No. 16 at 11. Paragraph 25, states that "[t]he warranty of seaworthiness includes the provision of a seaworthy crew, and the duty is breached by providing a defective or inadequate crew." Id. Paragraph 26 states that "[o]n the date of the incident complained of herein, the tug [] was unseaworthy as that term is defined in maritime law, because Vulcan provided a defective and inadequate crew for the vessel." Id. Paragraph 27 states that Captain Todd's lack of experience and the crew's inadequacy created an "unseaworthy condition." Id. Paragraph 29 states that "Vulcan failed to ...

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