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Simar v. Tetra Technologies Inc.

United States District Court, W.D. Louisiana, Lafayette Division

March 1, 2019

Simar
v.
Tetra Technologies Inc et al

          RULING AND ORDER ON MOTION TO DISMISS

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE

         Before 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].

         I. Background

         This 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.

         Plaintiff sued Tetra/Maritech[1] 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.[2] 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.

         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.[3] 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.

         In a 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.

         II. Law and Analysis

         A. 12(b)(6) Motion To Dismiss Standard

         A 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).

         To 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.

         A claim 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).

         B. Whether Tetra/Maritech's Third Party Complaint Against Island Should be Dismissed

         1. Island's Obligations ...


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