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In re CF, LLC

United States District Court, W.D. Louisiana, Lake Charles Division

May 28, 2019

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.

         Before 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.

         I.

         Background

         This 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.

         LeBlanc 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[1] 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).[2] 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.

         II.

         Law & Application

         A. Rule 12(b)(1) Standards

         A 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. 2015).

         The 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 plaintiff's case,

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 1261).

         B. Jurisdiction under ...


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