Louisiana Crawfish Producers Ass'n-West v. Amerada Hess Corp.
Louisiana Crawfish Producers Ass'n-West v. Amerada Hess Corp.
Opinion of the Court
MEMORANDUM RULING
Pending before this Court is the Report and Recommendation of the magistrate judge [Rec. Doc. 379], on blanket motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by HESS CORPORATION F/K/A AMERADA HESS CORPORATION, CONOCO PHILLIPS CO., SOUTHERN NATURAL GAS COMPANY, EXXON MOBIL CORPORATION, EL PASO FIELD SERVICES MANAGEMENT INC.,
I. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination of those portions of the [magistrate judge’s] report [and recommendation] or specified proposed findings or recommendations to which objection is made.” Section 636(b)(1) further states “[a] judge of the court may accept, reject, or modify,, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.”
II. Procedural Posture
This case has a lengthy procedural history, and has been ongoing for six (6) years primarily in state court and is now before this Court by way of removal. The procedural posture relevant to the instant matter is as follows. On September 15, 2010, insurer defendants filed a “Motion and Order Pertaining to First Group of Dispositive Motions to be Heard by the Court.” [Rec. Doc. 226] The motion requested an order be issued governing the management and scheduling of the first group of dispositive motions. [Rec. Doc. 226-2] Thereafter, on September 16, 2010, the magistrate granted the motion and issued an order, which made dispositive motions filed by either corporate or insurer defendants globally applicable to all like defendants, unless a defendant expressly exercised their opt-out right.
Beginning on July 30, 2010, the Defendants filed multiple motions for summary judgment, on the basis maritime law does not provide a remedy to the plaintiffs under “group or enterprise” liability. [Rec. Doc. 162] The magistrate judge granted the motions for summary judgment to the
III. Applicable Law
When applying the proper standard of inquiry under a Rule 12(b)(6) motion to dismiss, the inquiry is properly limited to the pleadings, with only very limited exception. Where the motion is filed pursuant to Rule 12(b)(1), however, the inquiry can be broader, in certain instances, allowing a Court to consider evidence beyond the four corners of the complaint. As noted by the magistrate judge, the instant motion is a Rule 12(b)(6) motion and not a Rule 12(b)(1) motion, and, therefore, does not call for or allow the broader inquiry. The crux of the Rule 12(b)(6) inquiry before this Court is whether a maritime tort was sufficiently pled under Rule 12(b)(6) and the Twombly
The claims remaining to the plaintiffs, at this stage in the litigation, are only those couched under maritime law, as all state law claims have been dismissed. Thus, the sufficiency of the facts pled to support the alleged maritime tort frames the contextual basis of the immediate inquiry, rather than the probability of the claims or an inquiry into the probable existence of maritime jurisdiction. Thus, the procedural vehicle selected, i.e. Rule 12(b)(6) limits the depth of the inquiry to the sufficiency of the pleadings on their face, when judged under the Iqbal and Twombly standards as illuminated by Grubart and does not invite or allow determination of the actual underlying substantive questions suggested by the broader jurisdictional inquiry of Grubart. Thus, unlike a jurisdictional inquiry, often couched under 12(b)(1), which allows for certain fact finding, and substantive determination, the 12(b)(6) inquiry does not so allow, with very limited, and, here, nonapplicable, exception. Consequently, the inquiry before this Court is limited to the face of the pleadings and the sufficiency of the facts pled when viewed through the prism of Rule 12(b)(6) as clarified by Iqbal and Twombly and illuminated by Grubart.
The Rule 12(b)(6) Standard
When reviewing a motion to dismiss, this Court’s “analysis generally should focus exclusively on what appears in the complaint and its proper attachments.” Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012) cert. denied, - U.S. -, 133 S.Ct. 32, 183 L.Ed.2d 678 (2012) (citing Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006)). The Court reviews the motion to dismiss under Rule 12(b)(6), “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted)(emphasis added). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)(emphasis added). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (emphasis added). Thus, pursuant to a 12(b)(6) inquiry, the Court is
Maritime Law Claims
Again, it should be noted the claims at issue are alleged to be maritime torts; no other claims remain before the Court. Consequently, the parties, as well as the magistrate judge, looked to the U.S. Supreme Court case of Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) for guidance in determining whether the pleadings are sufficient to have pled a maritime tort when reviewed under the Iqbal and Twombly tests, as couched under Fed. R. Civ. P. 12(b)(6). It should be noted at the outset, Grubart was an inquiry into maritime jurisdiction — not the Rule 12(b)(6) inquiry now before this Court. However, the Court in Grubart, in dicta, inferred the necessary factual elements of a maritime jurisdiction inquiry and of a maritime tort inquiry are inextricably intertwined.
... exercise of federal admiralty jurisdiction does not result in automatic displacement of state law. It is true, that, “with admiralty jurisdiction comes the application of substantive admiralty law.”9
It is, of course, settled law that admiralty law defines the existence of a maritime tort and for one to have a maritime tort, one must sound in admiralty, which would, also, likely grant jurisdiction under “the admiralty.” Thus, substantively the two inquiries are, as Grubart suggests, more often than not, inextricably intertwined. However, Grubart does not, also, suggest a merging of procedural vehicles. Nonetheless, even within the more generous 12(b)(6) analysis, as the magistrate judge recognized, one must look to the law of the admiralty to determine if the tort pled can, in fact, sound in maritime law under the Twombly and Iqbal standards; however, under a 12(b)(6) analysis, to survive, plaintiff need not prove the tort, in fact, sounds in maritime law, or even that it is meets the “probability requirement,” rather, plaintiff need only prove the facts pled “nudge [his or her] claims across the line
First, this Court reminds, one must not lose sight of the fact this Court is not engaged in an examination of the actual or even probable existence, or lack thereof, of a maritime tort, or of the existence or lack thereof, of maritime jurisdiction — rather, the inquiry is that mandated by Rule 12(b)(6) as informed by Iqbal and Twombly, i.e. one which looks for “more than a sheer possibility” but less than “a probability requirement.” Here, defendants have surgically defined the inquiry by their selection of procedural vehicle, i.e. Fed.R.Civ.P. 12(b)(6), and neither party challenges nor raises question of jurisdiction at this time. The question at hand, therefore, is not whether maritime jurisdiction exists, or the probability of the existence of a maritime tort, rather, the inquiry is one of sufficiency of pleading under Iqbal and Twombly of the maritime torts alleged. With these defining distinctions in mind, this Court will look to whether the facts, as pled in plaintiffs pleadings, are sufficient to have pled the maritime torts argued under the 12(b)(6) standard — as defined by Iqbal and Twombly.
The Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., discussed the test for determining the existence of a maritime tort, within the context of a maritime jurisdiction inquiry. The Supreme Court instructed specifically, a tort can be brought in admiralty where it satisfies “conditions of both location and of connection with maritime activity.”
A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.
In re Katrina Canal Breaches Litig., 324 Fed.Appx. 370, 376 (5th Cir. 2009) (emphasis original) (quoting Grubart, 513 U.S. at 534, 115 S.Ct. 1043). Jurisprudentially, this discussion by the Court is often referenced, both, when analyzing whether there exists a maritime claim, and when analyzing whether maritime jurisdiction exists. The two inquiries are more often than not factually indistinguishable, but as noted, not always presented by the same procedural vehicles. Nonetheless, Grubart’s progeny often is argued for the proposition that the two analyses having been conflat
IV. Factual Background
The magistrate judge has extensively described the undisputed factual background in his report and recommendation and this Court will not repeat that recitation at this point, rather incorporates those undisputed facts into this Ruling by reference. [Doc. No. 379 pp. 2-8]
The parties suggest in their objections that the magistrate judge, also, made certain factual findings and substantive determinations in his report and recommendation to which they object. To the extent one could interpret the magistrate judge’s report and recommendation in that manner, this Court would specifically decline to adopt, at this particular juncture, any factual findings or substantive determinations which are not necessary to a ruling pursuant to 12(b)(6). Again, one should not lose sight of the procedural vehicle at hand, and the limited scope of the relevant inquiry pursuant to that procedural vehicle. The inquiry does not require factual findings outside of the pleadings or determinations of “probability” under a 12(b)(6) analysis, and to the extent any such factual findings or substantive determinations can be argued to have been made by the magistrate judge — this Court would decline to adopt those findings — at this juncture. Again, under a 12(b)(6) inquiry, factual findings and determinations of “probabilities” are not required or proper. It should be noted this Court is in no way speaking to the correctness or lack thereof of any possible findings of fact, or possible legal conclusions argued to have been made by the magistrate judge, rather, this Court merely declines to adopt any such findings or legal conclusions, at this juncture, as they are not essential to the limited scope
Y. Analysis
It is undisputed the remaining claims of plaintiffs are those alleged as maritime torts as all state law claims have been dismissed and no other basis for the remaining claims is argued by any of the parties. Therefore, under the .12(b)(6) analysis, this Court must look to the four corners of the complaint, and any proper attachments thereto, to determine whether plaintiffs’ sufficiently stated a claim for which relief can be granted — here specifically, as a maritime tort. This Court must, therefore, take all factual allegations made in the pleadings, accept them as true, and then determine whether those factual allegations are sufficient to “nudge” the claims “across the line from conceivable to plausible ...” as a maritime tort.
It is paramount that at the outset it be noted, this Court agrees with the outcomes of the magistrate judge and adopts those outcomes. [Rec. Doc. 379, pp. 34, 35] However, to the extent the parties infer and argue the magistrate judge might have made factual findings and substantive determinations not mandated by a 12(b)(6) inquiry — this Court would decline, at this juncture, to adopt any such argued factual and substantive determinations, as they are not necessary to the resolution of the actual motion before the Court. Consequently, this Court modifies the magistrate’s report and recommendation to the extent noted and as detailed below.
A. Objections
1. Dredging
a. Defendants lodge several objections surrounding the magistrate judge’s treatment of the analysis surrounding the dredging activities alleged by the plaintiffs in certain pleadings.
b. Plaintiffs also object to the magistrate judge’s treatment of the analysis surrounding alleged “dredging” activities:
[t]o the determination that the allegation of dredging in navigable waters in the Fifth Amended Complaint satisfied the “locus test” for a maritime tort. (Rec. Doc. 379, pp. 23-26). This is a eonclusory allegation that, under Bell Atlantic Corp. v. Twombly, 550 U.S. 544[, 127 S.Ct. 1955, 167 L.Ed.2d 929] (2007), and Ashcroft v. Iqbal, 556 U.S. 662[, 129 S.Ct. 1937, 173 L.Ed.2d 868] (2009), cannot be accepted. It is also inconsistent with the Court’s finding that plaintiffs’ factual allegations consist of dredging to create new canals where none existed and that the cause of plaintiffs’ alleged*766 damages is- the creation of spoil banks on land....
The Report and Recommendation finds that Plaintiffs have pled “two different types of dredging- activity: dredging navigation access canals to sites of wells and dredging pipeline canals during pipeline construction.” (Rec. Doc. 379, pp. 23-29). Defendants object to the determination that these types of dredging (or any other dredging alleged by plaintiffs) satisfy the “locality” and “connexity” tests required for maritime tort....
Defendants object to the determination that the “general nature of their activity” is “the dredging of canals through navigable waters of the Atchafalaya Basin.” (Rec. Doc. 379, p. 29)....
[Rec. Doc. 395, pp. 2-3]
c. Florida Gas, specifically, objects to the Report for the following reasons:
II. The general character of the activity of Florida Gas does not show a substantial relationship to traditional maritime activity.
[Rec. Doc. 394, p. 1]
Defendants’ objections, when viewed collectively, address more an interpretation suggested and the argued breadth of the magistrate judge’s ruling than, perhaps, its outcome. Again, one must not lose sight of the nature of the inquiry presented and declared by the magistrate judge as his procedural context; i.e. whether under a 12(b)(6) analysis plaintiffs’ allegations made within their pleadings — if accepted as true, are sufficient to meet the Iqbal and Twombly standards. Consequently, the relevant inquiry is not whether a maritime tort has been pled to a “probability” standard, but whether the pleadings are sufficient to “nudge” the claims made across the line from merely “conceivable to plausible.” Thus, specifically, the inquiry is not whether dredging actually meets the “locus test of admiralty,” rather, the inquiry is whether, as pled, it is plausible dredging could meet that test once discovery is complete and all facts are known. Consequently, one need not determine or delve into the substantive inquiry as to the actual nature of dredging in all instances, rather, what is relevant is whether, under Twombly and Iqbal, it is “plausible” the activity alleged, here, dredging, could be of a nature to support the maritime tort pled. Similarly, neither must this Court, at this juncture, determine whether all of the Atchafalaya Basin is navigable; rather, again, the question is whether, under Twombly and Iqbal, it is “plausible” the areas pled could be navigable. Therefore, this Court looks to the facts pled to determine, only, whether they are sufficient under the much more forgiving level of inquiry of Iqbal and Twombly. Consequently, the relevant, and limited, inquiry under the 12(b)(6) motion, is whether plaintiffs have pled sufficient facts within their pleadings to meet the Iqbal and Twombly standards, i.e., are the allegations as pled “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Stated differently, the test is whether the allegations, taken as true and in the light most favorable to the plaintiff, “nudge” [the] “claims across the line from conceivable to plausible ...” as a maritime tort.
For example, this Court notes when examining the pleadings, certain plaintiffs identified by the magistrate judge have alleged,
171.
On or about Jan 15, 1964, Defendant AMERADA HESS, and/or its agents, employees and contractors conducted operations in the Buffalo Cove Area consisting of dredging a navigation access canal to the site of AMERADA’s petrochemical well, Amerada Petroleum Corp Case Kurzwig No. 10. In connection with same, Defendant AMERADA HESS, its agents employees and contractors caused to be deposited within the Buffalo Cove Area dredge spoil which created an impediment to commercial navigation and water flows within the fishing area then known as Lake Chicot. Upon information and belief, the dredge spoil associated with this access canal remains to this day, an impediment to commercial navigation and water flows within the fishing area now known as Lake Chicot and/or “Amerada” in violation of federal, state, and local laws, as well as in violation of the U.S. Army Corps of Engineers permit issued for said canal.
(emphasis added.) [Rec. Doc. 280, p. 33] Again, the torts pled must be maritime in nature; Grubart enlightens as to the elements necessary for a tort to sound in admiralty. Thus, the magistrate judge noted certain plaintiffs have pled certain acts, i.e. dredging, occurred in/on areas alleged to be navigable which interfered with commercial navigation and water flow of those navigable waters. Thus, those plaintiffs have pled facts, which must be taken as true for these purposes, sufficient to “nudge” the allegations into the realm of a maritime tort as discussed by Grubart, when judged under the more forgiving 12(b)(6) standard as defined by Iqbal and Twombly. The magistrate judge found, and this Court agrees, those allegations noted were sufficiently pled to “nudge” those claims “across the line from conceivable to plausible,” as maritime torts, given the necessary elements for maritime torts as illuminated by Grubart. As noted, the allegations in the pleadings allege activity, i.e. dredging, which interfered with commercial navigation in an area alleged to be navigable, found in a body of water, and alleges the dredging of a navigation canal in an area alleged to be navigable,
Although it is inferred by the objections that the magistrate judge’s 12(b)(6) analysis went beyond that required for the Rule 12(b)(6) inquiry, the issue might be more one of language and semantics rather than genuine substance, as the magistrate judge was careful to note the question he addressed-was limited to a 12(b)(6) inquiry and not the broader 12(b)(1) inquiry. Consequently, any argued factual findings or substantive determinations would, of necessity, have to be dicta. However, to the extent it has been argued the magistrate judge made certain factual findings and substantive determinations outside the limited Rule 12(b)(6) inquiry at hand, this Court DECLINES, at this juncture, to adopt any such findings for the reasons noted.
Consequently, this Court IN PART SUSTAINS and IN PART OVERRULES those objections centering upon the magistrate judge’s “findings” as to “dredging.” This Court specifically DECLINES to adopt, at this juncture, any portion of the magistrate judge’s Ruling which could be argued to have made a factual “finding” or substantive determination as to the actual nature of “dredging,” as such a determination is not required by the motion before the Court under the inquiry of 12(b)(6), as clarified by Iqbal and Twombly and illuminated by Grubart, however, ADOPTS the magistrate judge’s results as to those plaintiffs found to have met the limited standard of 12(b)(6) as clarified by Iqbal and Twombly, and as to those the magistrate judge found did not.
2. Successor Liability
Certain Defendants, also, object to the magistrate judge’s use of Sperry
Defendants object to the determination that plaintiffs’ allegations of dredging as to the predecessors-in-interest of five defendants, namely Texaco Pipelines, LLC, Enterprise Products Company, Union Oil Company of California, El Paso CGP L.L.C., and ExxonMobil Corporation, are sufficient to support the existence of a maritime tort against these companies as successors. (Rec. Doc. 379, pp. 25-26).
[Rec. Doc. 395, p. 1]
However, again, the objection to the magistrate judge’s report and recommendation must be viewed through the prism of the limited 12(b)(6) inquiry at hand. Consequently, the question is not whether successor liability actually or more probably exists, rather, the inquiry is whether plaintiffs’ pleadings are sufficient to “nudge” the claims over the line from “conceivable to plausible”. Consequently, unless, as a matter of law, in all instances, there can be no successor liability, which is not yet determined in this matter, the question is, again, one of sufficiency of the pleadings judged through the prism of Iqbal and Twombly. Consequently, the question is not whether such successor liability actually exists or exists to the “probability standard,” but, rather, whether sufficient facts have been pled as to successor liability under the Iqbal and Twombly standards. This Court agrees with the magistrate judge that sufficient facts have been pled to meet the more forgiving 12(b)(6) standard. However, to the extent the parties argue the magistrate judge made determinations beyond those required to address Iqbal and Twombly, as suggested by argument within the objections, this Court, again, would DECLINE to adopt any such factual and substantive findings, at this juncture. This Court does note, however, the magistrate found “maritime claims attach to the claim against the successor,” and, although this Court is of the opinion this legal statement might be correct, it is not a determination which need be made in this particular inquiry, except to the degree required to meet the standards of Iqbal and Twombly. Therefore, this Court ADOPTS the magistrate judge’s recommendation that the group of “successor” entities not be dismissed at this time.' Again, this Court makes no determination — at this juncture and under this procedural vehicle — whether successor liability actually exists — only that sufficient facts have been pled under the applicable standards to withstand a motion couched under 12(b)(6).
3. Wikipedia & Meche
Certain Defendants, also, object to the magistrate judge’s citation to Wikipedia and this Court’s opinion in Meche, stating:
Defendants object to the reliance upon and/or acceptance of information found on Wikipedia and the Court’s decision in Meche v. Richard, No. 05-0385, 2007 WL 634154, 2007 U.S. Dist. LEXIS 17898 (W.D.La. Feb. 26, 2007), to support plaintiffs’ conclusory allegation that defendants’ tortious activities all took place on navigable waters. (Rec. Doc. 379, pp. 22-23)....
[Rec. Doc. 395, p. 3] Again, defendants objection, it would seem, is directed more to the argued breadth of the magistrate judge’s Ruling than its result. As noted, this Court had declined to adopt — at this juncture — any argued “findings” of the magistrate judge not necessary to the very narrow inquiry required by Rule 12(b)(6) as instructed by Iqbal and Twombly and
Certain objections, also, address the magistrate judge’s reference to this Court’s opinion in Meche v. Richard. Again, although Meche is not — nor did the magistrate judge suggest it is — determinative as to the legal question of the navigability of any areas at issue in this matter, it is, however, relevant to the Rule 12(b)(6) inquiry at hand as it establishes one cannot argue that, as a matter of law, none of the Atchafalaya Basin could be found to be navigable, when looking to the Iqbal and Twombly standards. Hence, Meche is relevant to the Twombly and Iqbal question of whether the “[f]actual allegations [are] must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Just as dredging has .been found to be maritime under certain factual scenarios within certain jurisprudence, certain portions of the Atchafalaya Basin have been found to be navigable under certain factual scenario— thus, the finding in Meche is relevant to the Iqbal and Twombly inquiry of whether the pleadings can cross the line from “conceivable to plausible,” but certainly, Meche is not determinative as to the underlying substantive issues not now before the Court. Whether the torts pled actually will be found to be maritime, or the areas pled actually will be found to be navigable, .or whether successor liability actually will flow, are not the questions before this Court, rather, this Court looks only to the lesser bar of plausibility set by Iqbal and Twombly. Thus, the magistrate judge was not in error to note this Court’s finding in Meche for the limited purpose noted. Defendants argue distinctions between, the area of the Atchafalaya Basin at issue in Meche versus the areas at issue in the present case are of note, and this Court and, it would seem, the magistrate judge agree. [Rec. Doc. 395, pp. 17-19] However, again, Meche was not put forth as determinative of the substantive issue, rather only as informative as to the more limited 12(b)(6) analysis. Under the 12(b)(6) motion before this Court, neither the magistrate judge nor this Court need make a determination, at this juncture, as to the actual navigability of the particular areas of the Atchafalaya Basin at issue in this case, thus, the objections are misplaced.
4. Objection to the mention of subject matter jurisdiction
Certain Defendants and certain Plaintiffs object to the magistrate judge’s passing mention of whether the Court has jurisdiction. As this Court has clarified, and as was noted by the magistrate judge — the question now before this Court is not one of jurisdiction, and, neither the magistrate judge, nor this Court, makes any legal finding as to whether jurisdiction actually exists — neither party has, at this juncture, challenged jurisdiction, nor does this Court speak to that question within this ruling.
5. American Home Assurance Company
American Home Assurance Company (“American Home”) an insurer of Shell Pipeline Company objects, arguing “Judge Hanna inadvertently omitted American Home from the list of insurers contained in the Report that are being dismissed because plaintiffs’ have failed to state a tort claim against their insureds under maritime law.”
6. Other Objections
The Court has reviewed all the remaining objections and their accompanying responses lodged by both plaintiffs and defendants and finds the remaining objections not to be sufficiently persuasive as to move this Court away from the magistrate judge’s report and reeom
VI. Conclusion
Considering the foregoing, this Court modifies the magistrate judge’s report and recommendation as noted; ADOPTS the magistrate judge’s report and recommendation, as noted; DECLINES to ADOPT those portions of the report and recommendation as noted; and REMANDS the report and recommendation to the magistrate judge for clarification as noted.
MEMORANDUM RULING
Currently pending before the Court is a Motion to Reconsider [Doc. 420] filed by plaintiffs, LOUISIANA CRAW-FISH PRODUCERS ASSOCIATION-WEST, et al (“Plaintiffs”), who move the Court to reconsider the portions of its Memorandum Ruling and Order [Docs. 416 and 417] that adopt portions of the Magistrate Judge’s Report and Recommendation. [Doc. 379] Specifically, Plaintiffs’ move this Court to reconsider its adoption of the magistrate’s recommendation of dismissal of defendants: CONCHA CHEMICAL PIPELINE LLC, ENTERPRISE LOU-TEX PROPYLENE PIPELINE COMPANY, BRIDGELINE HOLDINGS, L.P., SHELL PIPELINE COMPANY LP, SORRÉNTO PIPELINE COMPANY, WILLBROS RPI, INC, DENBURY ENERGY SERVICES, INC., and DOW INTRASTATE GAS COMPANY (“Dismissed Defendants”). The Motion for Reconsideration is GRANTED in part and DENIED in part for the following reasons:
This Court notes, a careful reading of the Report and Recommendation suggests the magistrate judge, in his Report and Recommendation, did not draw a distinction between “dredger/non-dredger” defendants, as Plaintiffs argue; rather, drew a distinction between those defendants whose activities were sufficiently pled under the applicable procedural standard to survive a challenge under Federal Rule of Civil Procedure 12(b)(6), and those defendants whose conduct was not sufficiently pled under the applicable procedural standard. He concluded, where the alleged activities were “related to oil and gas exploration and production” rather than activities that might be of a nature to constitute a maritime tort, those allegations were insufficient under the applicable procedural standard when addressing a maritime tort, i.e. the only tort still at issue. [Doc. 372, pp. 30-31] The outcome of this distinction, by happenstance, fell along the lines of the defendants that were alleged to have engaged in some type of “dredging” activity and those that were alleged to have engaged in land based activities, because no other form of conduct that could give rise to a maritime cause of action was pled and only torts, maritime in nature, remain.
After an exhaustive review of the pleadings, the magistrate found the allegations of tortious conduct as to the Dismissed Defendants were in the form of, “pipeline construction and maintenance, acquisition of interests in and/or purchase of existing pipelines, ‘trenching’ for pipelines, failing to maintain pipelines, leveling pipeline spoil banks with bulldozers, placing cement mats on pipeline sections, and other general allegations of wrongful acts’ on information and belief.’ ” The magistrate judge reasoned that “[pipeline construction and repair, even when it involves services from vessels and by divers, has been found to be
Considering the foregoing, the Motion to Reconsider is GRANTED to the extent that this Court did revisit the analysis contained in its Memorandum Ruling, and is DENIED as the Court finds the relief requested by the Plaintiffs is not due.
. El Paso CGP, LLC is successor by merger.
. Sometimes referred to as Florida Gas Transmission Co. in the pleadings.
.F/K/A Willbros RPI, Inc.
. Pursuant to an order negotiated by the parties the order governs, "[b]oth with regard to the first group of dispositive motions and any subsequent dispositive motions, and subject to the right to opt out as set forth herein, all Corporate Defendants ■ shall be deemed to have adopted any generally applicable dispositive motion filed by any other Corporate Defendant, and all Insurer Defendants shall be deemed to have adopted any generally applicable dispositive motion filed by any other Insurer Defendant. Any Corporate Defendant or Insurer Defendant may file notice of its intention not to adopt a particular motion, and nothing herein shall preclude any defendant from filing any such additional motions, memoranda, or arguments as may be desired or appropriate.” [Rec. Doc. 226-2, p. 2]
. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).
. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)
. Maritime jurisdiction is not challenged by either party at this juncture and this Court makes no determination on that legal question within this ruling.
. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 546, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), (citing East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298-2299, 90 L.Ed.2d 865 (1986))
. Id. at 534, 115 S.Ct. 1043. Again, one must not lose sight of the fact all claims, tort or otherwise, pled under state law have been dismissed.
. Mitchell v. Johnson, 07-40996, 2008 WL 3244283 (5th Cir. Aug. 8, 2008) (citing Twombly, 127 S.Ct. 1955, 1965).
. Mitchell v. Johnson, 07-40996, 2008 WL 3244283 (5th Cir. Aug. 8, 2008) (citing Twombly, 127 S.Ct. 1955, 1965).
. Certain portions of the Atchafalaya Basin have been found to be navigable, under certain factual scenarios, at certain points in time. Consequently, one cannot argue that, as a matter of law the areas pled by plaintiff cannot be found as navigable. Meche v. Richard, No. 05-0385, 2007 WL 634154, 2007 U.S. Dist. LEXIS 17898 (W.D.La. Feb. 26, 2007) — finding that specific area of the Atchafalaya Basin at issue, was in that instance and at that time navigable for purposes of an alleged maritime tort. Similarly, certain circuits, albeit not the Fifth Circuit, have found under certain factual scenarios dredging can be found to be maritime in nature. Consequently, similarly, one cannot argue that, as a
. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (emphasis added).
. Mitchell v. Johnson, 07-40996, 2008 WL 3244283 (5th Cir. Aug. 8, 2008) (citing Twombly, 127 S.Ct. 1955, 1965)
. Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319, 321-322 (5th Cir. 1980).
. This Court notes that in the Fourth Supplemental and Amending Petition the plaintiffs do list American Home as the insurer of Shell Pipeline Company. [Rec. Doc. 1-7, pp. 22-23]
Reference
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- LOUISIANA CRAWFISH PRODUCERS ASSOCIATION-WEST v. AMERADA HESS CORPORATION
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