United States District Court, E.D. Louisiana
ORDER AND REASONS
IVAN L.R. LEMELLE, District Judge.
I. NATURE OF THE MOTIONS AND RELIEF SOUGHT
Before the Court are five (5) motions:
1. Motion to Dismiss for Failure to State a Claim by Defendant, Bales Environmental Consulting & Management, LLC. Defendant, O'Brien's Response Management LLC filed an opposition in response. Accordingly, and for the reasons enumerated below, IT IS ORDERED that the Motion to Dismiss (Rec. Doc. No. 139) be GRANTED.
2. Motion to Strike by Bales Environmental Consulting & MeManagement, LLC. Defendant, Chill Boats, LLC, filed a response in opposition. Bales has filed a supplemental memorandum in reply. Accordingly, and for the reasons enumerate below, IT IS ORDERED that the Motion to Strike (Rec. Doc. No. 156) be hereby DISMISSED as MOOT without prejudice to re-urge.
3. Motion for Summary Judgment by Florida Marine, LLC. The motion is unopposed. Accordingly, and for the reasons enumerated below, IT IS ORDERED that the Motion (Rec. Doc. No. 172) be GRANTED.
4. Motion for Summary Judgment by O'Brien's Response Management, LLC. Chill Boats, LLC, filed a response in opposition. Plaintiff filed an opposition adopting the response. IT IS ORDERED that the Motion (Rec. Doc. No. 168) be DENIED.
5. Motion for Summary Judgment by Bales Environmental Consulting & Management, LLC. Chill Boats, LLC filed a response. Plaintiff filed an opposition adopting the response. IT IS ORDERED that the Motion (Rec. Doc. No. 173) be DENIED.
II. FACTS OF THE CASE AND PROCEDURAL HISTORY
This case arises out of an accident that occurred during the 2010 BP oil spill cleanup. Plaintiff, Timothy Lejeune ("Lejeune" or "Plaintiff"), brings this suit under the Jones Act, 46 U.S.C. § 688, et seq., and Admiralty and General Maritime Law, 28 U.S.C. § 1333, et seq. 
On or about October 4, 2010, Lejeune was employed by a subsidiary of Production Services Network U.S., Inc. ("PSN") as a paramedic, assigned to work aboard the DECON 1 barge. Lejeune was injured aboard a Hydra-Sport 30 vessel while transporting him from the barge to shore. The vessel was chartered and operated by Chill Boats, who employed Captain Brennon Sheldon ("Sheldon"). Sheldon purportedly received an order from the vessel's Barge Engineer, Brandon Tune ("Tune") to make the run, bringing Lejeune back to dock. Tune was hired by Michael Bales ("Mike Bales") as supervisor aboard the vessel. Sheldon elected to navigate without the use of lights and relied on radar and other electronic equipment to guide him. The vessel hit a wake, and the impact allegedly threw Lejeune from his seat, resulting in injuries to his neck and shoulder.
Lejeune claims he was injured due to the operational negligence of the crew of said vessel and/or unseaworthiness of said vessel and its equipment and appurtenances. Lejeune filed suit, naming as Defendants: Production Services Network U.S., Inc. ("PSN"); BP America Inc. and BP Products North America, Inc. ("BP"); Chill Boats, LLC ("Chill Boats"), Integrated Pro Services, LLC ("IPS"); Joe Cataloni ("Cataloni"); Florida Marine, LLC ("Florida Marine"); Bales Environmental Consulting & Management, LLC ("Bales"); and, O'Brien's Response Management, LLC ("O'Brien's"). Lejeune seeks recovery for past lost wages; future earning capacity; past and future pain and suffering, mental and emotional distress, loss of enjoyment of life; maintenance and cure benefits and punitive damages for failure to pay the same.
In the Second Amended Complaint, Lejeune contends that the vessel, owned by Cataloni, was contracted out to Chill Boats, IPS, BP, Bales and/or Florida Marine and captained by Brennon Sheldon.
On Plaintiff's motion, the Court dismissed Cataloni as a party to this action. The Court granted PSN's unopposed Motion for Summary Judgment. The Court granted BP's Motion for Summary Judgment. Plaintiff and Chill Boats reached a settlement, and the claims against Chill Boats were dismissed. There remain various cross-claims in this case.
III. LAW AND ANALYSIS
A. Fed.R.Civ.P. 12(b)(6) Motion to Dismiss by Bales
Defendant in Cross-Claim,  Bales, moves to dismiss the claims of O'Brien's for indemnity and attorney fees on the grounds that O'Brien's fails to state a claim as a matter of law. O'Brien's cross-claims against Bales to recover, in the event O'Brien's is held liable for the conduct of Tune, the vessel's Barge Engineer, and the individual who gave the order that the trip be taken. Tune was employed by Bales, and was in turn contracted to O'Brien's.
Under Federal Rule of Civil Procedure 12(b)(6) "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. South Central Bell Telephone Co., 904 F.2d 275, 276 (5th Cir. 1990)( quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 ( citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)).
Bales argues the cross-claim states no claim for indemnity and attorney fees because (1) the limited availability of common law tort indemnity under maritime law does not apply here; and, (2) absent a statute or enforceable contract, litigants must pay their own attorney fees in maritime disputes. O'Brien's responds that "if Brandon Tune was negligent, and if his negligence was the proximate cause of Mr. Lejeune's claimed injury, O'Brien's is entitled to recovery over or indemnity from Bales Environmental because of ...