Shell Offshore Inc. v. Eni Petroleum US LLC et al, No. 2:2016cv15537 - Document 146 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 38 Partial Motion to Dismiss claims asserted in Defendant's counterclaim. Signed by Judge Susie Morgan on 9/20/2017. (clc)
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Shell Offshore Inc. v. Eni Petroleum US LLC et al Doc. 146 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A SH ELL OFFSH ORE IN C. Plain tiff CIVIL ACTION VERSU S N O. 16 -1553 7 EN I PETROLEU M U S LLC, ET AL. D e fe n d an ts SECTION : “E” ( 2 ) ORD ER AN D REAS ON S Before the Court is Plaintiff’s Partial Motion to Dism iss claim s asserted in Defendant’s counterclaim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 1 The m otion is opposed. 2 For the reasons set forth below, Plaintiff’s m otion is D EN IED . BACKGROU N D Plaintiff, Shell Offshore Inc. (“SOI”), filed its original com plaint on October 14, 20 16, 3 its First Supplem ental and Am ended Com plaint on Decem ber 6, 20 12, 4 its Secon d Am ended Com plaint on April 6, 20 17, 5 and its Third Restated and Am ended Com plaint on August 24, 20 17. 6 Plaintiff alleges that SOI and Defen dant, Eni Petroleum U.S., L.L.C. are parties to a Unit Operating Agreem ent effective J une 15, 1998. 7 This Agreem ent covers the exploration, developm ent, and production operations of blocks 72, 73, 116, and 117 of the Green Canyon Field, an area of the Outer Continental Shelf off the coast of Louisiana, 1 R. Doc. 38. R. Doc. 44. 3 R. Doc. 1. 4 R. Doc. 22. 5 R. Doc. 70 . 6 R. Doc. 119. 7 R. Doc. 1, para. 7. This allegation is virtually identical in the Third Am ended Com plaint. R. Doc. 119, para. 7. 2 1 Dockets.Justia.com generally referred to as Popeye. 8 On Novem ber 1, 1992, the parties revised and am ended the agreem ent, creatin g the revised unit operating agreem ent (“UOA”). 9 The UOA is the operative agreem ent between the parties, and details the duties, responsibilities, and relationship between Plaintiff, as the operator designated in Section 5.1, and the nonoperating parties. SOI seeks paym ent of joint interest billings related to the abandonm ent of four Popeye wells, which it alleges are due under the term s of the UOA and for dam ages under Louisiana’s open account statute. 10 On Decem ber 20 , 20 16, in its answer to the original com plaint, 11 as supplem ented by the First Supplem ental and Am ended Com plaint, Defendant Eni Petroleum U.S., L.L.C. (“Eni”) filed an am ended answer, affirm ative defense, and counterclaim against SOI. 12 Eni did not restate its counterclaim in its response to the Third Am en ded Com plaint, and, as a result, the operative counterclaim is found in Eni’s answer to the original an d First Supplem ental and Am ended Com plaint. 13 Eni’s counterclaim contains two prim ary allegations. 14 Count 1 of Defendant Eni’s counterclaim alleges a breach and a bad faith breach of SOI’s obligations under several provisions of the UOA, including but not lim ited to (1) the section 9.2 requirem ent that the operator not m ake any expen diture or undertake any project costing m ore than $ 30 0 ,0 0 0 without prior voting interest approval, (2) the section 24.1 requirem ent of 8 Id. R. Doc. 115 at 5, ¶ 14. 10 R. Doc. 119 at ¶ 18. Plaintiff’s first am ended com plaint added Eni Operating Co., Inc. as Defendant. R. Doc. 22. Plaintiff’s second am ended com plaint added Eni U.S. Operating Com pany, Inc. as a defendant. R. Doc. 70 . Eni Operating Co, Inc. was subsequently dism issed as a party to the case on April 6, 20 17, R. Doc. 70 . On August 18, 20 17, the Court dism issed the claim s against Eni Petroleum Co., Inc., for lack of personal jurisdiction . R. Doc. 117. The rem ain in g Defen dants are En i Petroleum U.S., L.L.C. and En i U.S. Operatin g Com pany, Inc. 11 R. Doc. 1. 12 R. Doc. 32. 13 R. Doc. 132. 14 R. Doc. 38-1 at 2. 9 2 accurate financial disclosure, (3) the section 13.2 obligation to use com petitive bidding when reasonable, and (4) the section 4 duty of reasonable practicability with regards to charging the joint account. 15 Count 2 of Defendant’s counterclaim alleges a breach of the section 14.2 duty to obtain the unanim ous consent of the parties before abandoning a producible well. 16 Eni alleges SOI violated the UOA by using the Atwood Condor drilling rig in connection with the abandonm ent of the Popeye wells, resulting in a charge to the joint account three tim es higher than the prevailing m arket rate. 17 Eni alleges SOI acted in bad faith, concealed im portant m atters and facts, abused its position as operator, and engaged in gross negligence and willful m isconduct. 18 Eni alleges these breaches cum ulatively resulted in a loss of $ 23,982,569.76. 19 SOI filed a Partial Motion to Dism iss Eni’s counterclaim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 20 SOI argues, in part, that, even if SOI did breach the UOA, the exculpatory clause in UOA section 6.2 requires any claim s against the design ated operator be proven by a standard of “gross negligence or willful m isconduct.”21 SOI conten ds Eni’s claim s fail to adequately allege facts that m eet this higher standard of culpability, and therefore Eni has failed to state facts sufficient to m ake out a legally cognizable claim . 22 Eni filed an opposition to the m otion to dism iss on February 24, 20 17, arguing that section 6.2’s exculpatory clause applies only to SOI’s conduct related to its 15 R. Doc. 44 at 12-14. R. Doc. 44 at 15. 17 R. Doc. 32 at ¶¶ 28-32. 18 R. Doc. 32, para. 21,25, 26, 27, 28 , 30 , 31, 33, 34, 37, and 38. 19 R. Doc. 32 at 20 . 20 R. Doc. 38. 21 UOA § 6.2; R. Doc. 38 at 4. 22 Id. 16 3 operations in the field and not to accounting or adm inistrative conduct or other alleged breaches of the UOA. 23 SOI duly filed a reply. 24 LEGAL STAN D ARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 25 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”26 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.”27 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.”28 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 29 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”30 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not 23 R. Doc. 44. R. Doc. 49. 25 Bell Atl. Corp. v . Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v . Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 26 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 27 Id. 28 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 29 Iqbal, 556 U.S. at 663, 678 (citations om itted). 30 Tw om bly , 550 U.S. at 555. 24 4 show[n]’—that the pleader is entitled to relief.”31 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”32 AN ALYSIS I. As th e Sco p e o f th e Excu lp ato ry Clau s e is a Matte r o f Firs t Im p re s s io n in Lo u is ian a, th is Co u rt Mu s t Make an “Erie Gu e s s ” A federal court sitting in diversity m ust apply state law as construed by the state’s court of last resort. 33 As the parties agree, however, Louisiana courts have not defin itively interpreted the scope of exculpatory clauses in joint operating agreem ents to determ ine whether they apply only to field operations or also to adm inistrative duties of the operator. 34 “In the absence of a final decision by the state’s highest court on the issue at hand, it is the duty of the federal court to determ ine, in its best judgm ent, how the highest court of the state would resolve the issue if presented with the sam e case.”35 That is, this Court m ust m ake an “Erie guess.”36 In so doing, this Court m ay con sider, “am ong other sources, treatises, decisions from other jurisdictions, an d the ‘m ajority rule.’”37 Accordingly, although cases interpreting the law of other states, including the Texas Suprem e Court’s decision in Reeder v. W ood Cnty . Energy , LLC, 38 m ay inform this Court’s analysis of the UOA’s exculpatory clause, they do not govern it. The Fifth Circuit has discussed sim ilar exculpatory provisions in two cases, but has not established a rule of decision that dictates a particular result in this case. 39 The Fifth 31 Id. (quotin g Fed. R. Civ. P. 8(a)(2)). Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 33 Hughes v. Tobacco Inst., 278 F.3d 417, 420 -21 (5th Cir. 20 0 1) (citing Erie R.R. Co. v. Tom pkins, 30 4 U.S. 64, 78 (1938). 34 See R. Doct. 44 at 4; R. Doc. 49 at 3. 35 Am Int’l Specialty Lin es In s. Co. v . Canal Indem . Co., 352 F.3d 254, 260 (5th Cir. 20 0 3). 36 Keen v. Miller Environ m ental Group, Inc., 70 2 F.3d 239 (5th Cir. 20 12). 37 SMI Ow en Steel Co. v. Marsh USA, Inc., 520 F.3d 342 (5th Cir. 20 0 8). 38 395 S.W.3d 789, 794 (Tex. 20 12). 39 Lee v. Frozen Food Exp. In c., 592 F.2d 271 (5th Cir. 1979) (“Once a pan el of this Court has settled on the state law to be applied in a diversity case, the preceden t should be followed by pan els without regard to 32 5 Circuit’s decision in Stine v. Marathon Oil Co., 40 which held that an exculpatory clause in an operating agreem ent “m ay extend to adm inistrative functions perform ed by the operator,”41 interpreted Texas law, not Louisiana law. 42 Caddo Oil Co. v. O’Brien 43 held that an operator owed no fiduciary duty to a non-operating party with regard to accounting obligations not expressly provided for in the operating agreem ent, but did not rule on the standard to be applied in breach-of-contract claim s arising from specific contractual provisions. 44 In short, this Court m ust look to the UOA’s term s and determ ine “how the [Louisian a] Suprem e Court would decide the question before us.”45 II. Se ctio n 6 .2 ’s Excu lp ato ry Clau s e On ly Go ve rn s Claim s Aris in g Fro m Fie ld Op e ratio n s , N o t All Bre ach e s o f th e U OA When interpreting a contract, its m eanin g is “ordinarily determ ined from the instrum ent’s four corners.”46 A contract m ust be interpreted to give “the words of the contract their com m on and usual significance.”47 “The Court’s approach to a contract’s m eaning is driven by sim ple com m on sense principles.”48 In this case, neither party argues the UOA is am biguous; the parties each argue their interpretation is m andated by the term s of the agreem ent. 49 As here, “[t]he fact that one party m ay create a dispute about any alleged existin g confusion in state law, absent a subsequent state court decision or statutory am endm ent which m akes this Court’s decision clearly wrong.”). 40 976 F.2d 254 (5th Cir. 1992). 41 Id. at 260 . 42 And in any event, Stine has questionable precedential value after Reeder. See Lee, 592 F.2s at 271. 43 90 8 F.2d 13 (5th Cir. 1990 ). 44 Id. at 17. 45 Gilbane Bldg. Co. v. Adm iral Ins. Co., 664 F.3d 589, 593 (5th Cir. 20 11). 46 Oly m pia Mineral, LLC v. HS Resources, Inc., 20 13-2637 (La. 10 / 15/ 14); 171 So.3d 878 . 47 Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 20 12-20 55 (La. 3/ 19/ 13); 112 So.3d 187, 192. 48 W illiam s v. Great Am erican Insurance Com pan y , 240 F.Supp.3d 523, 528 (E.D.La. 20 17). 49 Com pare R. Doc. 49 at 10 (“the exculpatory clause unquestionably encom passes actions that are not lim ited to ‘operations’”) w ith R. Doc. 44 at 4 (“[exculpatory] clauses do not shield operators from liability for breach of contractual adm inistrative and accountin g duties like Shell’s breaches here”). 6 the m eaning of a contractual provision does not render the provision am biguous.”50 When the parties disagree over the m eaning of an unam biguous contract, the court m ust determ ine the parties’ intent from the agreem ent itself. 51 A. Field Operations and Adm inistrative Duties The text of Article 1 (“Definitions”) references two types of operations conducted in the field: “developm ent operations” and “exploratory operations.”52 1.2 Developm ent Operations shall m ean all operations conducted in the Joint Area not considered an Exploratory Operation, including but not lim ited to the drilling of a Developm ent Well, Developm ent Step-Out Well, the design, construction and installation of a Platform and associated facilities, and the design, construction and installation of a Subsea Production System and a Subsea Well Com pletion . . . 53 1.7 Exploratory Operations shall be those operations directly associated with the drilling of an Exploratory Well. 54 1.22 Operator shall, except as otherwise provided in Article 10 .5 hereof, m ean the Party designated by this Agreem ent to conduct the exploration, developm ent, producing, and associated operations on the Joint Area for the production of oil and gas therefrom . 55 These defin itions directly link the term “operations” to the conduction of physical activities on -site, such as drilling, production, and construction , and the design of m aterials or structures used for such actions. Moreover, “operator” is distinguished from other parties specifically by the grant of rights to conduct operations in the field: “to conduct the exploration, developm ent, producing, and associated operations on the J oint Area.” Accordingly, the use of these term s in other provisions, such as the exculpatory clause, necessarily in cludes these associations. 50 Cam pbell v. Melton, 20 0 1-2578 (La. 5/ 14/ 0 2); 817 So.2d 69. v. Rosenberg, 20 15-0 247 (La. 10 / 14/ 15); 182 So.3d 83, 89 (“When a clause in a contract is and unam biguous, the letter of that clause should not be disregarded under the pretext of pursuin g its spirit, as it is not the duty of the courts to bend the m ean in g of the words of a contract into harm ony with a supposed reasonable intention of the parties.”). 52 R. Doc. 49 at 3. 53 UOA § 1.2 (em phasis added). 54 UOA § 1.7 55 UOA § 1.22 (em phasis added). 51 Lobell 7 Article 6 of the UOA, titled “Authority and Duties of Operator,” provides in relevant part: 6.1 Exclusive Right to Operate. Unless otherwise provided, Operator shall have the exclusive right and duty to conduct all operations pursuant to this Agreem ent. 6.2 Workm anlike Conduct. Operator shall conduct all operations in a good and workm anlike m anner, as would a prudent operator under the sam e or sim ilar circum stances. Operator shall not be liable to the Parties for losses sustained or liabilities incurred as a result of its actions as Operator except such as m ay result from its gross negligence or w illful m isconduct. Unless otherwise provided, Operator shall consult with the Parties and keep them inform ed of all im portant m atters. 56 The language of this provision is consistent with the distinction between field operations an d adm in istrative duties. The reference to “Workm anlike Conduct” in the subheading of section 6.2 clearly applies to the conduction of field operations: the standard for perform ing drilling, production, exploration, an d well abandonm ent is considered “workm anlike.” On the other hand, accounting or adm inistrative conduct is not norm ally described as “workm anlike.”57 As the Tenth Circuit stated, “[w]hile a higher standard for breach m ight apply to drilling, extraction, and other risky “operations” because m ost operators have the sam e incentive as non-operators to do well in physical operations, it is nonsensical to apply such a standard to adm inistrative and accounting duties where the operator can profit by cheating, or sim ply overcharging, its working interest owners.”58 56 UOA § 6.2 (em phasis added). Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 759 (Tex. 20 0 0 ) (“The operator’s lim itation of liability is linked directly to im position of the duty to act as a reasonably prudent operator, which strictly concerns the m anner in which the operator conducts drilling operations on the lease”). Although the Abraxas line of cases was abrogated by the Texas Suprem e Court in Reeder, this Court finds the Abraxas court’s reasoning instructive. 58 Rocky Mountain Prod., LLC v. Ultra Resources, Inc., 415 F.3d 1158 (10 th Cir. 20 0 5). 57 8 B. The Reach of the Exculpatory Clause The text of section 6.2, the contract as a whole, and the purpose of exculpatory clauses in joint operating agreem ents, all lead this Court to conclude that the UOA distinguishes between field operations and adm inistrative conduct. The Court finds that section 6.2’s exculpatory clause applies only to claim s for breach of the operator’s duty to prudently conduct field operations. 59 The exculpatory clause of section 6.2 requires only that claim s arisin g from SOI’s field operations, such as drilling, production, and exploration, require a showing of gross negligence or willful m isconduct on the part of the Operator. Section 6.1 gives the Operator the sole ability to conduct field operations pursuant to the UOA. The first sentence in section 6.2 establishes that the Operator is subject to a “prudent operator” standard for this activity. The next sentence explicates the legal im port of this standard: the Operator is not liable for any losses sustained “as a result of its actions as Operator” unless they are the result of gross negligence or willful m isconduct. Moreover, the Court’s interpretation is consistent with a plain readin g of the UOA in its entirety. “Each provision in a contract m ust be interpreted in light of the other provisions so that each is given the m eaning suggested by the contract as a whole.”60 The UOA is a com prehensive agreem ent governing the relationship of the parties and includes detailed provisions for data m anagem ent, 61 accounting procedures, 62 and voting 59 Courts in the Ninth and Tenth Circuits have reached the sam e result. See Rocky Mountain Prod., LLC v. Ultra Resources, Inc., 415 F.3d 1158 (10 th Cir. 20 0 5) (applying Wyom ing law); Forest Oil Corp. v. Union Oil Com p., 20 0 6 WL 90 5345 (D. Alaska 20 0 6) (interpreting Alaska law). 60 LA. CIV. CODE art. 20 49; see Clovelly Oil Co., LLC v. M idstates Petroleum Co., LLC, 20 12-20 55 (La. 3/ 19/ 13); 112 So.3d 187, 192.rocm oun 61 UOA, Art. 8. R. Doc. 38-2 at 18. 62 UOA, Art. 9. R. Doc. 38-2 at 19. 9 procedures. 63 Section 6.5, “Records,” provides that the “Operator shall keep accurate books, accounts, and records of operations.”64 Article 9 provides that “All charges, credits, and accounting for expenditures shall be pursuant to Exhibit ‘C.’”65 Exhibit C, the “Accounting Procedure Offshore J oint Operations,”66 provides the m ethod for billing non-operations and clearly gives such parties the right to protest or question the corrections thereof, with no m ention that a showing of gross negligence or willful m isconduct is required: 2. Statem ents and Billings Operator shall bill Non-Operators on or before the last day of each m onth for their proportionate share of the joint Account for the preceding m onth. Such bills will be accom panied by statem ents which identify the authority for expenditure, lease or facility, and all charges and credits, sum m arized by appropriate classifications of investm ent and expense except that item s of Controllable m aterial and unusual charges and credits shall be separately identified and fully described in detail. 67 4. Adjustm ents Paym ent of any such bills shall not prejudice the right of any Non-Operator to protest or question the correctness thereof; provided, however, all bills and statem ents rendered to Non-Operators by Operator during any calendar year shall conclusively be presum ed to be true an d correct after twenty-four (24) m onths following the end of any such calendar year, unless within the said twenty-four (24) m onth period a Non-Operator takes written exception thereto and m akes claim on Operator for adjustm ent. No adjustm ent favorable to Operator shall be m ade unless it is m ade within the sam e prescribed period. The provisions of this paragraph shall not prevent adjustm ents resulting from a physical inventory of Controllable Material as provided for in Section V. 68 5. Audits A. A Non-Operator, upon notice in writing to Operator and all other Nonoperators, shall have the right to audit Operator’s accounts and records 63 UOA, Art. 7. R. Doc. 38-2 at 14. UOA Art.6.5, R. Doc. 38-2 at 12. 65 UOA Art. 9, R. Doc. 38-2 at 19. 66 R. Doc. 38-2. 67 UOA Exhibit C, R. Doc. 38-2 at 73. 68 Id. 64 10 relating to the J oint Account for any calendar year within the twenty-four (24) m onth period following the end of such calendar year . . . 69 Applying the exculpatory clause to the operator’s adm inistrative duties and the rights of the non-operators, particularly as set forth in Exhibit C, would underm ine the force of these provisions. As noted by one authority on oil and gas operating agreem ents, “it is difficult to perceive why the parties would include explicit and detailed directions on adm in istrative m atters that are supplem ental to ‘operations’ if they did not intend the operator to be liable for breach of those m atters.”70 It m akes far m ore sense to read the exculpatory clause in section 6.2 to refer only to actions taken pursuant to the grant of field operational rights and duties found in section 6.1. Finally, the underlying justifications for exculpatory clauses are not advanced by extending the scope of the clause to cover adm inistrative duties. Exculpatory clauses in joint operating agreem ents essentially govern the distribution of liability in response to the inherently risky nature of oil and gas exploration and production. Were operators held to a sim ple negligence standard for all conduct in the oilfield, “[t]he prospect of liability for m assive losses resulting from difficult and inherently hazardous operations for which one is not com pensated for the risk assum ed would quickly discourage m any industry parties from serving as operator.”71 Exculpatory clauses lim iting liability for negligence in field operations thus play an essential role in the form ation and success of joint oilfield operations. This rationale does not justify the application of the exculpatory clause’s higher standard to the actions of the operator that do not entail the sam e degree of risk, however. “The usual reason for using 69 Id. Gary B. Conine, The Prudent Operator Standard: Applications Bey ond the Oil and Gas Lease, 41 N AT. R ESOURCES J . 23, 68 n .168 (20 0 1). 71 Conin e, supra note 70 , at 70 . 70 11 an exculpatory clause is to preclude liability for blowouts or sim ilar catastrophes, rather than to avoid liability for unintentional breaches of contract.”72 Unlike the highly dangerous operations protected by the exculpatory clause, the perform ance of adm in istrative duties “does not generally involve extraordinary risks again st which the operator should be protected.”73 CON CLU SION The exculpatory clause in section 6.2 of the UOA applies only to the operator’s duty to perform field operations. It does not require a pleading of gross negligence or willful m isconduct to properly allege claim s of breach of the operator’s adm inistrative and accounting duties. As noted above, Defendant’s counterclaim does not allege a breach of SOI’s duty to prudently conduct field operations. Rather, the allegations involve breaches of accounting or adm inistrative duties specifically set forth in the UOA, and pleading that the breaches resulted from gross negligence or willful m isconduct is not required. 74 Thus, this Court finds that Defendant has properly alleged legally cognizable claim s in its counterclaim . IT IS ORD ERED that the Plaintiff’s partial m otion to dism iss for failure to state a claim is D EN IED . N e w Orle a n s , Lo u is ian a, th is 2 0 th d ay o f Se p te m be r, 2 0 17. ____________ ________ _______ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 72 Ernest E. Sm ith, Joint Operating Agreem ent Jurisprudence, 33 W ASHBURN L. J . 8 34 (1994). Conin e, supra note 70 at 68 n.168 . 74 Even if the claim s did require a showing of gross negligence or willful m isconduct, as SOI alleges, Eni’s counterclaim would satisfy the requirem ents of pleadin g. Eni alleges SOI acted in bad faith, concealed im portant m atters and facts, abused its position as operator, and en gaged in gross negligence and willful m isconduct. R. Doc. 32, para. 21,25, 26, 27, 28 , 30 , 31, 33, 34, 37, and 38. The alleged breaches m ay or m ay not actually m eet that standard on the m erits, but that is not a question to be decided in a 12(b)(6) m otion to dism iss. 73 12
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