Contranchis v. All Coast, LLC et al, No. 2:2015cv01534 - Document 12 (E.D. La. 2015)
Court Description: ORDER AND REASONS granting 6 All Coast's motion to dismiss. The Court also GRANTS Contranchis leave to amend his complaint within twenty-one (21) days of the entry of this order. Failure to timely amend will result in dismissal of Contranchis's claims with prejudice.. Signed by Judge Sarah S. Vance on 11/2/15. (jjs)
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Contranchis v. All Coast, LLC et al Doc. 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DONALD CONTRANCHIS CIVIL ACTION VERSUS NO: 15-1534 ALL COAST, LLC and SEMCO, LLC SECTION: R ORD ER AN D REASON S Defendant All Coast, LLC m oves the Court to dism iss plaintiff Donald Contranchis's vessel negligence claim against it under Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 For the following reasons, the Court grants the m otion. I. BACKGROU N D This case relates to injuries that plaintiff Donald Contranchis sustained while working on a liftboat owned by defendant All Coast, LLC in the Industrial Canal in New Orleans, Louisiana.2 At the tim e of the incident, 1 R. Doc. 6-1. 2 R. Doc. 1 at 2. All Coast adm its that it is the owner of the M/ V SEA ROBIN. R. Doc. 6-1 at 1. Dockets.Justia.com Contranchis was em ployed by Sem co, LLC.3 Contranchis was working on the M/ V SEA ROBIN as an electrician when he fell from an elevated catwalk circling one of the vessel's legs.4 Contranchis filed this lawsuit on May 8, 20 15, alleging causes of action against All Coast and Sem co under the Longshore and Harbor Workers' Com pensation Act ("LHWCA"), 33 U.S.C. § 90 1, et seq. and, in the alternative, under the J ones Act, 46 U.S.C. § 30 10 4, et seq. and general m aritim e law.5 Contranchis alleges that various negligent acts com m itted by All Coast and Sem co m ade his working area unsafe an d that each defendant failed to warn him of the resulting hazards, thereby causing his fall and resulting injuries.6 Contranchis seeks com pensatory dam ages for lost wages, disability, m edical expenses, pain and suffering, and loss of enjoym ent of life.7 All Coast m oves to dism iss Contranchis's claim s against it under Federal Rule of Civil Procedure 12(b)(6).8 3 Id. 4 Id. 5 Id. at 1-2. 6 Id. at 3-4. 7 Id. at 5. 8 R. Doc. 6-1. 2 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead enough facts "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the m isconduct alleged." Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9); Baker v. Putnal, 75 F.3d 190 , 196 (5th Cir. 1996). A legally sufficient com plaint m ust establish m ore than a "sheer possibility" that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff's claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 3 555. III. D ISCU SSION All Coast, the owner of the M/ V SEA ROBIN, seeks dism issal of Contranchis's claim s against it under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Contranchis alleges that his injuries were caused by the vessel interests' negligence. Section 90 5(b) of the LHWCA grants covered m aritim e workers an exclusive rem edy against a "vessel" for injuries caused by the vessel's negligence. See 33 U.S.C. § 90 5(b). The Act defines "vessel" broadly to include both the physical vessel on which the worker was injured and "said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, m aster, officer, or crew m em ber." 33 U.S.C. § 90 2(21). For purposes of this m otion, All Coast adm its that Contranchis was a longshorem an covered by the LHWCA and that the M/ V SEA ROBIN is a "vessel" within the m eaning of the Act. 9 Under these facts, Section 90 5(b) is the exclusive m eans through which Contranchis m ay recover against All Coast for vessel negligence. McLaurin v. N oble Drilling (US) Inc., 529 F.3d 285, 289 (5th Cir. 20 0 8). 9 R. Doc. 6-1 at 3. 4 Under the LHWCA, the prim ary responsibility for a longshorem an's safety rests with the stevedore, not the vessel. Robinson v. Orient Marine Co., 50 5 F.3d 364, 365 (5th Cir. 20 0 7). Nonetheless, the Suprem e Court has outlined three general duties that vessel owners and charterers owe to covered workers under section 90 5(b): The first, which courts have com e to call the "turnover duty," relates to the condition of the ship upon the com m encem ent of stevedoring operations. The second duty, applicable once stevedoring operations have begun, provides that a shipowner m ust exercise reasonable care to prevent injuries to longshorem en in areas that rem ain under the "active control of the vessel." The third duty, called the "duty to intervene," concerns the vessel's obligations with regard to cargo operations in areas under the principal control of the independent stevedore. How lett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994) (citing Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981)); see also Kirksey v. Tonghai Maritim e, 535 F.3d 388, 391 (5th Cir. 20 0 8). Although the principal cases discussing these duties arose in the context of stevedoring operations, the Fifth Circuit has held that the rationale of those cases "clearly applies to any independent contractor and its harborworker em ployees covered by the LHWCA and working aboard ship." Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982); see also Burchett v. Cargill, Inc., 48 F.3d 173, 178 n.3 (5th Cir. 1995). A. Tu rn o ve r D u ty 5 A vessel owner has two distinct duties relating to the condition of the vessel at the tim e it is turned over to the stevedore. First, the vessel owner m ust "exercise ordinary care under the circum stances" to ensure that the vessel and its equipm ent are "in such condition that an expert stevedore can carry on stevedoring operations with reasonable safety." Kirksey , 535 F.3d at 392. Second, "the owner owes a duty to warn the stevedore of latent or hidden dangers which are known to the vessel owner or should have been known to it . . . ." Id. Neither duty encom passes dangers: "(1) [that are] open and obvious or (2) [that] a reasonably com petent stevedore should anticipate encountering." Id. Contranchis alleges that he was injured when he fell through a catwalk on the M/ V SEA ROBIN.10 He further alleges that his fall was caused by, am ong other things, "failure to ensure that walkways were free of hazards," "failure to have warning signs in hazardous areas," and "failure to have proper gratings in walkways."11 Im portantly, however, Contranchis does not allege which, if any, of the hazards existed at the point when All Coast turned the M/ V SEA ROBIN over to Sem co for repairs. As the Suprem e Court m ade clear in Scindia, the turnover duty relates to the condition of the vessel at the point 10 R. Doc. 1 at 2 ¶ 5. 11 R. Doc. 1 at 4 ¶ 8. 6 when the owner relinquishes control of the vessel to the contractor or stevedore. Scindia, 451 U.S. at 167. Because Contranchis does not allege that All Coast turned the M/ V SEA ROBIN over to Sem co in an unreasonably dangerous condition, he fails to state a claim for breach of the turnover duty. The Court therefore dism isses Contranchis's vessel negligence claim against All Coast based on breach the turnover duty.12 B. Active Co n tro l D u ty The active control duty arises when a vessel owner "attem pts to actively involve[ ] itself in [stevedoring] operations." Landry v. G.C. Constructors, 514 F. App'x 432, 435 (5th Cir. 20 13), cert. denied, 134 S. Ct. 212 (20 13) (quoting Scindia, 451 U.S. at 167). A passive vessel owner has no general duty to supervise or inspect a stevedore's work. Helaire v. Mobile Oil Corp., 70 9 F.2d 10 31, 10 36 (5th Cir. 1983). But a vessel owner m ay be liable if it fails "to exercise due care to avoid exposing longshorem en to harm from hazards they 12 All Coast files with its m otion to dism iss an affidavit that purports to dem onstrate that Sem co, not All Coast, rem oved the grating in the area where Contranchis fell and that All Coast had no control over the M/ V SEA ROBIN at the tim e of the accident. R. Doc. 6-2. Contranchis files his own affidavit disputing these claim s. R. Doc. 8-2. When m atters outside the pleadings are presented with a Rule 12(b)(6) m otion to dism iss, a district court has discretion to consider the m aterial and enter an order for sum m ary judgem ent. See Gen. Retail Servs., Inc. v. W ireless Toy z Franchise, LLC, 255 F. App'x 775, 783 (5th Cir. 20 0 7). This case is still in its early stages, and the parties have not yet had sufficient tim e to engage in discovery. The Court therefore declines to convert All Coast's m otion into one for sum m ary judgm ent and will not consider the parties' affidavits at this tim e. 7 m ay encounter in areas, or from equipm ent, under the active control of the vessel during the stevedoring operation." Pim ental v. LTD Canadian Pac. Bul, 965 F.2d 13, 16 (5th Cir. 1992) (quoting Scindia, 451 U.S. at 167). To determ ine whether a vessel owner retains active control over a contractor's work, courts consider "whether the area in question is within the contractor's work area, whether the work area has been turned over to the contractor, and whether the vessel owner controls the m ethods and operative details of the stevedore's work." Dow v. Oldendorff Carriers GMBH & Co., 387 F. App'x 50 4, 50 7 (5th Cir. 20 10 ). Here, Contranchis's com plaint fails to allege any facts indicating that All Coast exercised active control over his work at the tim e he fell through the catwalk--an essential elem ent of his cause of action. For exam ple, Contranchis does not allege that All Coast em ployees oversaw or directed his work assignm ents; nor does he allege that All Coast had any presence in the part of the vessel where the accident occurred. Instead, Contranchis m erely parrots the applicable legal test by alleging that All Coast "fail[ed] to use reasonable care to avoid exposing Com plainant to harm while m aintaining control over the equipm ent and/ or area of the vessel in which Complainant was performing 8 his duties."13 Even under the liberal notice pleading standard of Federal Rule of Civil Procedure 8(a), this bald, conclusory allegation fails to state a claim that would entitle Contranchis to relief. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (noting that "conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss"). Therefore, Contranchis's claim m ust be dism issed. Contranchis resists this argum ent by citing statem ents in his own affidavit, which he files with his opposition to All Coast's m otion to dism iss.14 Because this affidavit was neither attached to nor incorporated in Contranchis's com plaint, the Court will not consider it in ruling on All Coast's m otion for a Rule 12(b)(6) dism issal. See Lovelace v. Softw are Spectrum Inc., 78 F.3d 10 15, 10 17-18 (5th Cir. 1996) (noting that when deciding m otions to dism iss for failure to state a claim , "courts m ust lim it their inquiry to the facts stated in the com plaint and the docum ents either attached to or incorporated in the com plaint," as well as "m atters of which they m ay take judicial notice"). Because Contranchis' com plaint fails to plead sufficient inform ation 13 R. Doc. 1 at 3 ¶ 8. Contranchis's only other relevant allegation--that All Coast "breach[ed] [the] vessel charter/ operator/ owner's Active Control Duty "--is also conclusory and, therefore, unavailing. 14 R. Doc. 8-2 at 1-2. 9 indicating that All Coast exercised control over the M/ V SEA ROBIN at the tim e of Contranchis's injury, the Court dism isses the claim that All Coast breached the vessel owner's active control duty. C. D u ty to In te rve n e A vessel owner's "duty to intervene to protect longshorem en from dangers that arise during the course of their work is a narrow one." Fontenot v. McCall's Boat Rentals, Inc., 227 F. App'x 397, 40 4 (5th Cir. 20 0 7) (citing Futo v. Ly kes Bros. S.S. Co., 742 F.2d 20 9, 216 (5th Cir. 1984)). To prevail on a claim that the vessel owner breached the duty to intervene, a longshorem an m ust show not only that the vessel owner was aware of a dangerous condition on the vessel but also "som ething m ore." Id. This "som ething m ore" requires a plaintiff to plead and prove that the vessel owner had: "(1) actual knowledge that the [dangerous condition] posed an unreasonable risk of harm and (2) actual knowledge that it could not rely on the [independent contractor] to protect its em ployees and that if unrem edied the condition posed a substantial risk of injury." Greenw ood v. Societe Francaise De, 111 F.3d 1239, 1248 (5th Cir. 1997) (quoting Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir.1990 )); see also W illiam s v. M/ V SONORA, 985 F.2d 80 8, 815 (5th Cir. 1993) (noting that "the 'som ething m ore' requirem ent provides a useful and helpful threshold below which owners are not liable"). 10 All Coast argues that dism issal is appropriate because Contranchis fails to plead any of the elem ents of a breach of the duty to intervene. Contranchis contends that his pleadings are sufficient but does not identify a single allegation in his com plaint to support this contention. Upon review of the pleadings, the Court finds that Contranchis adequately pleads the existence of a dangerous condition--i.e., m issing grating and the absence of handrails and warning signs--and actual knowledge of this condition on the part of All Coast. But he fails to plead the "som ething m ore" required to state a failure-tointervene claim , because he alleges no facts indicating that All Coast knew that it could not rely on Sem co to protect its em ployees against hazards in the working environm ent. Instead, Contranchis alleges generally that "All Coast, LLC and/ or Sem co, LLC" failed to take various actions to ensure his safety in their capacity as "operator(s), owner(s), and/ or owner(s) pro hac vice of the referenced vessel."15 This pleading structure obscures the distinction between vessel owner and contractor and precludes the Court from inferring that All Coast knew that Sem co could not be relied upon to protect its em ployees. For these reasons, the Court concludes that Contranchis has failed to adequately plead that All Coast had a duty to intervene in Sem co's operations. 15 R. Doc. 1 at 3 ¶ 8. 11 Accordingly, Contranchis's vessel negligence claim prem ised on All Coast's failure to intervene is dism issed. IV. LEAVE TO AMEN D In his opposition to All Coast's m otion to dism iss, Contranchis requests leave to am end his com plaint.16 The Court should "freely give" leave to am end "when justice so requires." Fed.R.Civ.P. 15(a)(2); Leal v. McHugh, 731 F.3d 40 5, 417 (5th Cir. 20 13). As the Suprem e Court holds, "[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits." Fom an v. Davis, 371 U.S. 178, 182 (1962). Therefore, the Court grants Contranchis leave to am end his com plaint within twenty-one (21) days of the entry of this order. 16 R. Doc. 8 at 6. 12 V. CON CLU SION For the foregoing reasons, the Court GRANTS All Coast's m otion to dism iss. The Court also GRANTS Contranchis leave to am end his com plaint within twenty-one (21) days of the entry of this order. Failure to tim ely am end will result in dism issal of Contranchis's claim s with prejudice. 2nd New Orleans, Louisiana, this _ _ _ day of Novem ber, 20 15 _______________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 13
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