United States District Court, W.D. Louisiana, Lake Charles Division
IN RE CF, LLC as operator and pro hac vice owner of the M/V LISA ANN
REPORT AND RECOMMENDATION
Kathleen Kay United States Magistrate Judge.
the court is a Motion to Dismiss filed pursuant to Federal
Rule of Civil Procedure 12(b)(1) by claimants Durward and
Penny LeBleu, relating to the claims filed in this matter by
LeBlanc Marine, LLC. Doc. 21. LeBlanc Marine opposes the
motion. Doc. 27. The matter has been referred to the
undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636.
matter relates to an alleged accident involving the M/V LISA
ANN on or about October 10, 2017. Doc. 1, ¶ 6. On that
date the vessel was transporting Durward LeBleu, an employee
of Sitech LA, LLC, to a vessel located at a remote work site
in Cameron Parish, Louisiana. Id. The vessel
allegedly struck an underwater obstruction and ran up onto
the bank, causing injuries to LeBleu. Id. LeBleu and
his wife, Penny, filed suit in the 38th Judicial District
Court, Cameron Parish, Louisiana, against CF; Leblanc Marine;
Patriot Construction and Equipment, LLC; and Grant Guidry, an
individual. Doc. 4, att. 2. They asserted that the accident
was caused by Guidry's negligence in operating the vessel
and that either LeBlanc, Patriot, and/or CF is his employer
and therefore vicariously liable for that negligence.
Id. at p. 2, ¶¶ 5, 7. They also maintain
that the vessel was owned by LeBlanc, Patriot, and/or CF, and
that one or more of these parties is liable for failing to
insure the vessel's seaworthiness and provide a
reasonably trained operator. Id. at p. 2, ¶ 6.
Marine was served with a copy of the state court petition on
August 15, 2018, and answered same on September 27, 2018.
Doc. 21, atts. 2 & 3. In its answer it asserted
“the benefits and protections of' the Limitation of
Liability Act (“Limitation Act”), 46 U.S.C.
§ 30501 et seq., as its thirteenth defense.
Doc. 21, att. 3, p. 4. CF filed the instant action in this
court on February 7, 2019, asserting that it is the operator
and pro hac vice owner of the M/V LISA ANN. Doc. 1. CF raises
claims for exoneration and limitation of liability under the
Limitation Act, as well as an admiralty and maritime claim
under the meaning of Federal Rule of Civil Procedure
9(h). Id. LeBlanc Marine filed an
answer and admiralty claim on April 2, 2019, in which it also
invoked the Limitation Act's protection as record owner
of the vessel. Doc. 14. The LeBleus now move to dismiss
LeBlanc Marine's claim for lack of jurisdiction,
asserting that LeBlanc Marine failed to timely invoke the
Limitation Act. Doc. 21, att. 4. LeBlanc Marine opposes the
motion. Doc. 27. The LeBleus have not filed a reply and their
time for doing so has passed.
Rule 12(b)(1) Standards
motion under Rule 12(b)(1) attacks the court's
jurisdiction to hear and decide the case. Fed.R.Civ.P.
12(b)(1). The burden lies with the party seeking to invoke
the court's jurisdiction. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). Lack of
subject matter jurisdiction may be found based on: (1) the
complaint alone; (2) the complaint supplemented by undisputed
facts in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts. Id. On a facial attack to subject matter
jurisdiction, which is based on the sufficiency of the
complaint, court accepts all well-pleaded allegations in the
complaint as true and construes those allegations in a light
most favorable to the plaintiff. Garcia v.
Copenhaver, Bell & Associates, M.D.'s,
P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997); Pike
v. Office of Alcohol and Tobacco Control of the La.
Dep't of Rev., 157 F.Supp.3d 523, 533 (M.D. La.
court is not required to show such deference when resolving
factual attacks, however. “On a factual attack of
subject matter jurisdiction, a court's power to make
findings of fact and to weigh the evidence depends on whether
the . . . attack . . . also implicates the merits of
plaintiff's cause of action.” Taylor v.
Dam, 244 F.Supp.2d 747, 753 (S.D. Tex. 2003) (quoting
Garcia, 104 F.3d at 1261). Where the facts necessary
to sustain jurisdiction do not implicate the merits of the
the trial court may proceed as it never could under 12(b)(6)
or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1)
motion is the trial court's jurisdiction-its very power
to hear the case-there is substantial authority that the
trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case. In short,
no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.
Id. at 753-54 (quoting Garcia, 104 F.3d at
Jurisdiction under ...