United States District Court, E.D. Virginia, Norfolk Division
IN THE MATTER OF THE COMPLAINT OF VULCAN CONSTRUCTION MATERIALS, LLC, as owner of the tug JEANIE CLAY,
MEMORANDUM OPINION AND ORDER
Lawrence R. Leonard United States Magistrate Judge
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
motion filed under Federal Rule of Civil Procedure 12(b)(6)
challenges the legal sufficiency of a
complaint. 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.
"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).
Count II Must Be Dismissed Because It Pleads a No-Fault,
Strict Liability Cause of Action.
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. 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).
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 ...