United States District Court, E.D. Louisiana
D&B BOAT RENTALS, INC.
UNITED STATES OF AMERICA, NATIONAL POLLUTION FUNDS CENTER
ORDER AND REASONS
the Court are Defendant United States of America through the
National Pollution Funds Center's (“NPFC”)
Motion to Dismiss for Lack of Subject Matter Jurisdiction and
Failure to State a Claim (Rec. Doc. 16) and Plaintiff D&B
Boat Rentals, Inc.'s (“D&B”) Response in
Opposition (Rec. Doc. 19). Accordingly, IT IS
ORDERED that the motion to dismiss is
IS FURTHER ORDERED that the NPFC file the
administrative record no later than April 29,
2019. Parties shall file cross-motions for
summary judgment based on that record no later
than May 20, 2019; opposition memorandum shall
be filed no later than May 28,
2019; reply memoranda no later than
June 3, 2019.
AND PROCEDURAL HISTORY
is a Lafayette, Louisiana company. See Rec. Doc.
16-1 at 4. It owned OSV RICKY B, a steel-hulled offshore
supply vessel built in 1981. See id. On May 28,
2013, RICKY B was operating offshore in the Gulf of Mexico
when it began to take on water. See id. at 1. The
next day, May 29, 2013, the crew was forced to abandon the
vessel. See id. The Coast Guard was called and kept
apprised of the situation but was not materially involved.
See Rec. Doc. 19 at 2. On May 30, 2013, RICKY B sank
to the bottom as it was being towed toward land. See
Rec. Doc. 16-1 at 1.
hired several contractors to monitor the wreck, prevent fuel
from leaking from the vessel into the ocean, and salvage the
vessel. See id. One of the contractors was the
American Pollution Control Corporation (“AMPOL”).
See Rec. Doc. 19 at 2. AMPOL presented $240, 488.51
in invoices to D&B and its underwriters. See
Rec. Doc. 16-1 at 5. D&B and its underwriters paid $164,
629.51, stating that the short-payment was warranted because
AMPOL did not perform all that it was hired to perform.
See id. AMPOL then, rather than suing D&B
directly in state or federal court, submitted its invoices to
the NPFC. See Rec. Doc. 19 at 2. D&B submitted a
response to the NPFC, stating why AMPOL should not be
paid. See id. After review of
AMPOL's claim, D&B's response, and other
materials, the NPFC approved AMPOL's claim. See
Rec. Doc. 16-1 at 5.
three year later, the NPFC sent a letter to D&B seeking
reimbursement from D&B and its underwriters for the
monies paid to AMPOL. See id. D&B contested that
letter administratively, outlining why AMPOL should not have
been paid and pointing out that the statute of limitations
had run on the NPFC's reimbursement claim. See
Rec. Doc. 19 at 3. The NPFC sent D&B another letter
stating that it “would reassess its determination in
light of the concerns [D&B] raised and stating that the
agency would perform an administrative review of its debt
determination.” Rec. Doc. 16-1 at 6. After that review,
the NPFC affirmed its decision. See id. Having
exhausted administrative remedies, D&B filed this
lawsuit. See Rec. Doc. 19 at 3. D&B asks this
Court for a judgment holding that the NPFC is time-barred
from proceeding against D&B or its underwriters; the NPFC
was arbitrary and capricious in its determination that
D&B is responsible for the costs owed to AMPOL; and the
NPFC is violating D&B's due process rights.
See Rec. Doc. 9 at 5-6. D&B also asks this court
for its fee, costs, and any other relief warranted. See
id. at 6.
March 30, 2018, D&B filed an amended complaint. See
id. at 1. On June 15, 2018, the NPFC filed a motion to
dismiss for lack of subject matter jurisdiction and failure
to state a claim. See Rec. Doc. 16. On July 09,
2018, D&B filed a response in opposition. See
Rec. Doc. 19. The NPFC did not seek leave to file a reply.
instant issue is whether D&B sufficiently alleged that it
is bringing its cause of action against the NPFC under the
Administrative Procedure Act (“APA”) to have this
Court review the NPFC's determination that AMPOL's
claim warranted approval and therefore the sums sought by the
NPFC are valid and owing.
12(b)(1) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for lack of
subject matter jurisdiction. “A 12(b)(1) motion may be
appropriate when a plaintiff's claim is barred by
sovereign immunity, as well as in the typical situation where
a defendant alleges that there is no diversity of citizenship
between the parties, jurisdictional amount, and/or the
plaintiff's claim does not involve a federal
question.” Buck Kreihs Co. v. Ace Fire Underwriters
Ins. Co., 2004 U.S. Dist. LEXIS 12442 *1, *6 (E.D. La.
deciding whether subject matter jurisdiction is lacking,
”a court may evaluate (1) the complaint alone, (2) the
complaint supplemented by undisputed facts evidenced in the
record, or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Id. at *7. All uncontroverted allegations of the
complaint must be accepted as true. See id.