United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
before the Court is the Motion to Dismiss for No. Right or
Cause of Action [Rec. Doc. 106], which was filed by Defendant
B&J Inc. The motion is unopposed. The motion was referred
to the undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636 and
the standing orders of this Court. For the following reasons,
it is recommended that the motion be GRANTED.
case is related to other cases that arise out of a vessel
collision in Rockefeller Wildlife Refuge located in the
inland waters of Cameron Parish Louisiana in October of 2015.
[Rec. Doc. 1]. B&J, Inc. owned and operated a crewboat
known as the Miss Debbie. [Rec. Doc. 106-1, p.1]. It was
involved in a collision with a recreational fishing vessel in
which Joseph Nicholas was a passenger. [Rec. Doc. 1]. Mr.
Nicholas alleges that he was injured in the accident and a
complaint was brought on his behalf, on behalf of his spouse,
a minor child, a major child who is dependent and a
stepchild, Mariah Calais. [Rec. Doc. 12, pp. 5-7]. B&J
seeks dismissal of the claims of Mariah Calais on the basis
that she is not an eligible beneficiary for her claims of
loss of consortium under Louisiana law and there is no
evidence that she would be entitled to relief as a bystander
under La. Civ. Code art. 2315.6.
styled as a motion to dismiss on the basis of no cause or
right of action, i.e. a motion under Rule 12(b)(6), B&J
attaches a number of exhibits to its motion thereby seeking
to expand the court's analysis beyond the allegations of
the complaint. Under Rule 12(d), “if matters on the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” This Court recommends the motion be so converted
as the record evidence is necessary for disposition of the
12(d) also requires that “all parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Counsel for the Nicholas
family has indicated they have no opposition to this motion
in a letter submitted to the court. [Rec. Doc. 109]. However,
as the Fifth Circuit has “approached the automatic
grant of a dispositive motion, such as a grant of summary
judgment based solely on a litigant's failure to respond,
with considerable aversion, ” this Court will analyze
the merits of motion as factually uncontroverted under Rule
56. Leura v. Kleberg Cnty. Tex., 460 Fed. App'x.
447, 449 (5th Cir. 2012).
undisputed that the vessel collision occurred in the state
territorial waters of Louisiana. It is also undisputed that
Mr. Nicholas is neither a Jones Act seaman nor a
longshoreman. Therefore, his claim is brought as a
non-seafarer, and as such, even though his claim may be
governed by maritime law, non-pecuniary damages for loss of
consortium sustained by his spouse/beneficiaries may be
afforded by the use of state law as a supplement to maritime
law. Yamaha Motor Corp. v. Calhoun, 16 U.S. 199');">516 U.S. 199
(1996). That such relief may be awarded under Louisiana law
to the beneficiaries of a recreational fisherman such as Mr.
Nicholas who is injured in state territorial waters is beyond
dispute. Felarise v. Cheramie Marine, L.L.C. 2010 WL
375229, *2-3, (E.D. La. 1/26/10); Liner v. Dravo Basic
Materials, 2000 WL 1693678, *2 (E.D. La. 11/7/00).
evidence submitted by B&J supports the fact that Mariah
Calais is a child born of a relationship of Sue Anna Calais
Nicholas and Mitchell Davis. [Rec. Doc. 106-2; 106-3; and
106-4, pp. 1-3.] Joseph Nicholas is married to Sue Nicholas
but he has never adopted Ms. Calais. [Rec. Doc. 106-3]. It is
also undisputed that Ms. Calais was not present at the time
of the accident nor did she come upon the scene shortly
after. [Rec. Doc. 106-4, pp. 4-5].
La. Civ. Code Art. 2315.2, made applicable by Art. 2315(B),
the spouse and children of Mr. Nicholas would be the first
beneficiary class for which non-pecuniary damages are
available. The statute is clear that the delineated classes
are the only members who may recover. Roche v. Big Moose
Oil Field Truck Svc., 1 So.2d 396');">381 So.2d 396, 399 (La. 1980).
Under article 2315.2(D), a “child” who may bring
a claim under article 2315.2 includes a child by adoption.
Further, article 3506(8) defines “child” as
“those persons born of the marriage, those adopted, and
those whose filiation to the parent has been established in
the manner provided by law, as well as descendants of them in
the direct line.”
evidence is Ms. Calais was not born of the marriage between
Joseph and Sue Nicholas, nor has she provided any evidence of
filiation to Joseph Nicholas. She has not been adopted and
since there is no provision for an un-adopted child to be a
member of the beneficiary class, she has no ability to
recover as she has no right of action. La. Civ. Code art.
2315.2(D). Lollis v. Concordia Parish, 2010 WL
454721, *5 (W.D.La. 2/9/10); Henderson v. Turner,
2012 WL 3109482, *3 (M.D. La 7/31/12); Cormier v.
Williams/Sedco Horn Constructors, 1010');">460 F.Supp. 1010, 1012
(E.D.La. 1978); Aymond v. State, Dept. of Highways,
333 so.2d 380, 381, 382 (La.App. 3d Cir. 1976).
La. Civ. Code art. 2315.6 a person who views an event causing
injury to another person or who comes upon the scene of the
event soon thereafter may recover for their own mental
anguish or emotional distress. Since it is undisputed that
Ms. Calais did not view the event, nor did she come upon it
soon thereafter and first saw her ...