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In re Crosby Marine Transportation, LLC

United States District Court, E.D. Louisiana

June 19, 2019

IN THE MATTER OF CROSBY MARINE TRANSPORTATION, LLC, ET AL

         SECTION: M (4) Pertains to all cases

          ORDER & REASONS

          BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, motion for more definite statement under Rule 12(e) filed by third-party defendants Tracker Marine, LLC, Tracker Marine Group, White River Marine Group, Tracker Marine Retail, LLC, and Kenner Manufacturing Co. (collectively, “Third-Party Defendants”).[1] Third-party plaintiffs Crosby Marine Transportation, LLC (“Crosby Marine”), Crosby Tugs, LLC (“Crosby Tugs”), Bertucci Contracting Company, LLC (“Bertucci”), Crosby Dredging, LLC, Chris Carter, and Derek Hebert (collectively, “Third-Party Plaintiffs”) filed a memorandum in opposition, [2] and Third-Party Defendants filed a reply in further support of the motion.[3] Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This matter concerns a maritime accident. Crosby Marine and Crosby Tugs were the owner and owner pro hac vice, respectively, of the M/V Delta Duck (“Delta Duck”), a towing vessel.[4]On November 19, 2017, the Delta Duck, along with its tow, Barge BBL 798, which was owned by Bertucci, was moored against the bank of Bayou Segnette in Jefferson Parish, Louisiana, when they were struck by a recreational vessel.[5] One passenger of the recreational vessel died, and others were injured.[6]

         Crosby Marine, Crosby Tugs, and Bertucci filed this action seeking limitation of, and exoneration from, liability for the November 19, 2017 accident.[7] They allege that the accident was caused by the negligence of the recreational vessel's driver, who was intoxicated at the time of the accident and operating the vessel in a careless or reckless manner at an excessive speed.[8]

         The Louisiana Department of Wildlife and Fisheries (“LDWF”) investigated the accident and determined that the configuration of the navigation light aboard the recreational vessel may have obscured the driver's vision and contributed to the accident.[9] As a result, Third-Party Plaintiffs filed their third-party complaint against the manufacturers and seller of the recreational vessel, along with their respective insurers, raising claims under the Louisiana Products Liability Act (“LPLA”), La. R.S. 9:2800.51, et seq., and for negligence and redhibition.[10] The Third-Party Plaintiffs tendered their defense to the Third-Party Defendants, and tendered the Third-Party Defendants to claimants as original defendants pursuant to Rule 14(c) of the Federal Rules of Civil Procedure.[11]

         II. PENDING MOTION

         Third-Party Defendants filed the instant motion to dismiss arguing that Third-Party Plaintiffs' complaint is insufficient to state an LPLA claim because it does not allege any facts supporting such a claim.[12] They also contend that Third-Party Plaintiffs cannot maintain a negligence cause of action because the LPLA is the exclusive remedy against product manufacturers.[13] Further, Third-Party Defendants argue that Third-Party Plaintiffs cannot bring a claim for redhibition because they did not purchase the recreational vessel in question, and only the purchaser has such a cause of action.[14] Alternatively, Third-Party Defendants move for a more definite statement under Rule 12(e) requiring Third-Party Plaintiffs to allege facts to support their claims.[15]

         Third-Party Plaintiffs oppose the motion arguing that their complaint adequately informed Third-Party Defendants of the LPLA claim against them by alleging:

To the extent not caused solely by the negligence and intoxication of Chad Williams, the above-described injuries, damages and/or losses, if any, were caused, either entirely and/or in part, by a design defect in the lighting on the Fishmaster that obstructed the view of Chad Williams who was operating the vessel at all relevant times. The Fishmaster Manufacturers are responsible for this design defect.[16]

         Third-Party Plaintiffs argue that this allegation identifies their theory of recovery, which “is that the Third Party Defendants may be liable to the extent that they designed a vessel configuration that allows the operator to be blinded by the required navigation light and failed to give any warning of this eventuality.”[17] They also argue that Third-Party Defendants could be liable for the defect in the design of the vessel as to placement of the lighting, “failure to employ an available alternate design (namely placement of the all-around white light at the stern), and failure to warn the end user of the vessel of the possibility that the center console light could cause night blindness.”[18] Further, Third-Party Plaintiffs argue that Third-Party Defendants have had access to the record, discovery, and the allegedly defective vessel, and are thus “fully aware of the basis of the claims asserted against them.”[19] Third-Party Plaintiffs ask that, in the event that the Court finds their third-party complaint deficient, they be allowed to amend their third-party complaint to allege more fully additional facts.[20] As to the redhibition claim, Third-Party Plaintiffs acknowledge that it is not their claim, but that they have tendered the claim to the owner of the recreational vessel, Claude Toups (“Toups”), pursuant to Rule 14(c).[21]

         III. ANALYSIS

         A. Rule 12(b)(6) Standard

         The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must “‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does not comply with Rule 8 if it offers “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts pleaded in the complaint “do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs the two-pronged approach utilized in Twombly. The court “can choose to begin by identifying pleadings that, because they are no more than conclusions [unsupported by factual allegations], are not entitled to the assumption of truth.” Id. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Motions to dismiss are disfavored and rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

         A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao., 418 F.3d 453, 457 (5th Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the allegations found in the complaint, but courts may also consider “documents incorporated into the complaint by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 Fed.Appx. 408, 409 (5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

         B. The LPLA

         The LPLA prescribes “the exclusive theories of liability for manufacturers for damage caused by their products.” La. R.S. 9:2800.52. Under the LPLA, a plaintiff may only recover against a manufacturer “for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” Id. 9:2800.54(A). The statute further limits recovery for damage resulting from “unreasonably dangerous” characteristics to four theories of liability: (1) unreasonably dangerous in construction or composition;[22] (2) unreasonably dangerous in design;[23] (3) unreasonably dangerous for failure to provide an adequate warning;[24] and (4) unreasonably dangerous for nonconformity to an express warranty.[25] Id. 9:2800.54(B). The unreasonably dangerous characteristic “must exist at the time the product left the control of its manufacturer.” Id. 9:2800.54(C). The plaintiff bears the burden of proving each of these elements of an LPLA claim. Id. 9:2800.54(D); see also Johnson v. Transwood, Inc., 2015 WL 5680369, at *3 (M.D. La. Sept. 25, 2015) (an unreasonably dangerous condition is not presumed solely because an injury occurred).

         1. Unreasonably Dangerous in Construction or Composition

         “A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.” La. R.S. 9:2800.55. “Accordingly, a claimant must demonstrate not only what a manufacturer's specifications or performance standards are for a particular product, but how the product in question materially deviated from those ...


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