United States District Court, W.D. Louisiana, Lafayette Division
RULING AND ORDER ON MOTION TO DISMISS
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
the Court is a Motion To Dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure filed by Island
Operating Company, Inc. (“Island”) [Rec. Doc.
122], an Opposition Memorandum filed by Tetra Technologies,
Inc. (“Tetra”) and Maritech Resources, Inc.
(“Maritech”) (collectively referred to as
“Tetra/Maritech”) [Rec. Doc. 127], Island's
Reply Memorandum [Rec. Doc. 138] and a Sur-Reply filed by
Tetra/Maritech [Rec. Doc. 154].
action arises from an injury sustained by Plaintiff, Wendell
Simar, employed as a rigger by Chicago Bridge and Iron
Company (CB&I), when a swing rope system on a platform
designated as Vermilion Block 250 C (“VR 250C”)
failed. Plaintiff, as part of CB&I's construction
crew, was hired by Maritech and supervised by Tetra to
refurbish parts of the platform in order to make it safe for
the platform's oil and gas wells to be plugged and
abandoned, decommissioned by the Department of Interior and
ultimately removed from the OCS.
sued Tetra/Maritech as the owner/operator of the platform,
claiming it was liable for damages caused by the failure of
the swing rope. Tetra/Maritech alleged that the accident was
caused by the fault of the Plaintiff and his employer,
CB&I, who were contracted by Maritech to inspect the
platform. Tetra/Maritech filed a Third Party
Complaint against Island, alleging in the alternative that
Island was contractually obligated to inspect the platform
and notify Maritech of any repair or reconditioning work
required and that Island breached its contractual obligation.
R. 109, ¶ 10. Thus, the allegations in
the Third Party Complaint at issue in this Motion allege a
breach of contract claim against Island.
filed the instant motion primarily contending that (1) the
Master Service Agreement (“MSA”) between Maritech
and Island contains no provisions that support
Tetra/Maritech's allegations, and (2) the Contract
Operating Agreement (“COA”) between Maritech and
Island has no application to VR 250C, the platform in this
case. Island attached the MSA and the COA to its
motion. R. 122-3, -4. Island also
attached the unsworn declaration of Gregg H. Falgout,
Island's President and CEO who made certain statements as
to the applicability of the MSA and the COA at issue to work
Island performed on the VR 250C. R. 122-5. In
Tetra/Maritech's opposition to Island's motion,
Maritech attached the May 8, 2018 deposition of Charles
Rougeau, consultant for GMS Contract Services, LLC, the
company assisting Maritech in decommissioning operations.
R. 127-1. Tetra/Maritech also attached the May 8,
2018 deposition of Lonnie Whitfield, vice president of land
for Maritech, who was responsible for BSEE annual review and
regulatory compliance. R. 127-2.
January 31, 2019 telephone conference with the parties, the
Court ruled the Falgout declaration was outside the pleadings
and not properly considered in the context of a Rule 12(b)(6)
motion. R. 143. The Court gave Island the option of
converting the instant motion to one for summary judgment
under the legal standard of Rule 56 or to withdraw the
declaration. Id. Island made an oral motion to
withdraw the declaration of Falgout, which the Court granted.
R. 144. The Court also granted Tetra/Maritech's
request for additional briefing of the motion as one for
failure to state a claim, without its reliance on the
depositions attached to its first opposition brief. In its
opposition to the motion to dismiss, Tetra/Maritech argues
that the allegations in its “Third Party Complaint
taken as true, along with the [MSA and COA], raise a
reasonable expectation that discovery will reveal relevant
evidence of each element of the [breach of contract]
claim.” R. 154, p. 1.
Law and Analysis
12(b)(6) Motion To Dismiss Standard
motion to dismiss for failure to state a claim under
Fed.R.Civ.P. 12(b)(6) is properly granted when a defendant
attacks the complaint because it fails to state a legally
cognizable claim. Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001) When considering such a motion, a
district court must limit itself to the contents of the
pleadings, including any attachments thereto, Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.
2000), accept all well-pleaded facts as true, and view the
facts in a light most favorable to the plaintiff. In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205
(5th Cir. 2007) However, conclusory allegations and
unwarranted deductions of fact are not accepted as true,
Kaiser Aluminum & Chemical Sales v. Avondale
Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), and
courts “are not bound to accept as true a legal
conclusion couched as a factual allegation, ” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
survive a Rule 12(b)(6) motion, the plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. The
allegations must be sufficient “to raise a right to
relief above the speculative level, ” Id. at
555, and “the pleading must contain something more ...
than ... a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. “While a complaint ... does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Id. See also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). If the plaintiff fails to allege
facts sufficient to “nudge[ ][his] claims across the
line from conceivable to plausible, [his] complaint must be
dismissed.” Twombly at 570.
meets the test for facial plausibility “when the
plaintiff pleads the factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, at 678.
“[D]etermining whether a complaint states a plausible
claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Therefore, “[t]he complaint (1) on its face (2) must
contain enough factual matter (taken as true) (3) to raise a
reasonable hope or expectation (4) that discovery will reveal
relevant evidence of each element of a claim.”
Lormand v. US Unwired, Inc., 565 F.3d 228,
257 (5th Cir. 2009).
Whether Tetra/Maritech's Third Party Complaint Against
Island Should be Dismissed
Island's Obligations ...