Opinion
CIVIL ACTION NO. 04-0060, SECTION "K" (2)
March 4, 2004
ORDER AND REASONS
Before the Court is defendant's unopposed Motion to Dismiss (Rec. Doc. No. 3). Having reviewed the pleadings, memoranda and relevant law, the Court GRANTS defendant's motion as meritorious.
I. BACKGROUND
Plaintiff Gwen Ward was employed as a Master Bank Cashier upon the M/V TREASURE CHEST riverboat casino owned and operated by defendant Boyd Gaming beginning in December 2002. On July 21, 2003, plaintiff seriously injured her right leg on the job, and alleges defendant's negligence and the vessel's unseaworthiness as the cause of the accident.
The M/V TREASURE CHEST is a paddlewheel-driven riverboat casino styled after a 19th century era Louisiana passenger steamboat. It is a 213.5 foot-long fully operational self-propelled vessel. It began operations in Lake Pontchartrain in September of 1994. From that time until March 31, 2001, the M/V TREASURE CHEST was required to and did make daily gaming cruises for ninety minutes out of every three hours, weather permitting. However, in 2001 the Louisiana Legislature abolished the gaming cruise requirement, amending the law to provide that "gaming may only be conducted on a riverboat while it is docked and the licensee shall not conduct cruises or excursion." La. Rev. Stat. Ann. § 27:65(c). See also, La. Rev. Stat, Ann. § 27:66, 91 (West Supp. 2002). Consequently, since April 1, 2001, the M/V TREASURE CHEST has been moored to a floating dock.
On July 31, 2001, the United States Coast Guard issued a Certificate of Inspection effective through July of 2007 requiring the M/V TREASURE CHEST to remain in "continuously moored operation on Lake Pontchartrain." Nevertheless, the M/V TREASURE CHEST is required to man its pilothouse at
all times passengers are aboard and to staff the vessel with a full "navigational crew," including a captain, mate, chief engineer, and oiler, and deckhands. Except for its continuous mooring requirement, the current Coast Guard Certificate is identical to the one issued before the riverboat casino legislation change effective April 1, 2003.
"Since the April 1, 2001, amendment to riverboat casino legislation, the M/V TREASURE CHEST has sailed only twice, on 4th and 5th day of June, 2002. Both cruises, which occurred two months after plaintiff's accident, were brief maintenance trips in which the vessel moved roughly 200 feet from her permanently moored location to allow for maintenance dredging. No passengers were aboard during these cruises and no freight was transported.
On January 9, 2004, plaintiff Ward filed suit in this Court, alleging admiralty jurisdiction under the Jones Act 46 U.S.C. § 688 and General Maritime Law under Fed.R. CIV. P. 9(h). Boyd Gaming filed the instant Motion to Dismiss on January 20, 2004.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." To determine whether a motion to dismiss has merit, Jefferson Parish v. Lead Ind. Ass'n. Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) instructs that "[t]he standard to be applied to a motion to dismiss under Federal Rule 12(b)(6) is a familiar one." When considering a motion to dismiss under Rule 12(b)(6), district courts should construe the complaint liberally in favor of the plaintiff, assuming all factual allegations to be true and resolving any ambiguities and doubts in favor of the plaintiff. Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th Cir. 1993); see Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999). A complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); Fernandez-Montes, 987 F.2d at 284-85. However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
III. ANALYSIS
A. The Jones Act and Vessel Status
The Jones Act provides that "any seaman" who sustains personal injury in the course of his employment may maintain an action for damages at law, with the right to trial by jury. 46 U.S.C. § 688. "Seaman" is left undefined in the statute. The United States Supreme Court has established two essential requirements for seaman status: (1) the employee's duties must contribute to the function of the vessel or the accomplishment of its mission and (2) the employee must establish that she has an "employment-related connection to a vessel in navigation" that is "substantial in terms of its nature and duration." Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995). The Supreme Court articulated the purpose underlying the second prerequisite in Chandris'.
The fundamental purpose of the substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.Id.
In Chandris, the Supreme Court focused on "the essence of what it means to be a seaman," noting that "[t]he Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to 'the special hazards and disadvantages to which they who go down to sea in ships are subjected.'" Id. at 370, 115 S.Ct. 2172 (citation omitted).
The plaintiff alleges that at the time of her injury, the TREASURE CHEST was a vessel in navigation and as such, she was a member of the crew, entitling her to seaman status under the Jones Act, 46 U.S.C. § 688, and general maritime law. The defendants contend that the TREASURE CHEST no longer is a vessel in navigation because it ceased conducting gaming cruises in April 2001, following the legislature's statutory authorization of dockside gaming. Because the TRE AS URE CHEST no longer conducts, or intends to conduct gaming cruises, the defendants assert that the plaintiff lacks the employment-related connection to a vessel in navigation mandated in Chandris to qualify as a Jones Act seaman. The Court agrees and relies on this Court's recent holdings in Hemrtz v. Treasure Chest Casino. LLC., 274 F. Supp.2d 795 (E.D. La. 2003) and Martin v. Boyd Gaming Corporation, et al, 252 F. Supp.2d 321 (E.D. La. 2003).
Federal Courts have consistently held that indefinitely or permanently moored riverboat casinos are not Jones Act vessels. In Pavone v. Mississippi Riverboat Amusement Corp., the Fifth Circuit addressed that issue. There, the court considered whether the BILOXI BELLE, an indefinitely moored floating dockside casino, constituted a vessel under the Jones Act or general maritime law. 52 F.3d 560 (5th Cir. 1995). Relying on the "semi-permanently or indefinitely moored" status of the barge supporting the BILOXI BELLE, the Fifth Circuit held that, at the times of the plaintiff's' alleged accidents, the BILOXI BELLE was removed from navigation and constituted a mere "work platform." Id. at 570. Indeed, the Court reiterated the three common attributes of non-vessels: (1) the structure was constructed to be used as a work platform; (2) the structure is moored or otherwise secured at the time of the accident; and (3) although the platform is capable of movement, and is sometimes moved across navigable waters in the course of normal operations, any transportation function is merely incidental to the platform's primary purpose." Id. at 570 (citing Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293-94 (5th Cir. 1990)). Ultimately, the Fifth Circuit's analysis of putative vessels included, not only vessels used as work platforms, but also vessels that had been "withdrawn from navigation." Id. at 568. Importantly, it noted that the BILOXI BELLE was susceptible of being moved and was moved once after being converted into a casino but that such "one-time movement was purely incidental to the barge's primary purpose of physically supporting a dockside casino structure." Id.
Additionally, in Ducrepont v. Baton Rouge Enterprises, Inc., 877 F.2d 393, 395 (5th Cir. 1989), the appeals court wrote that the barge at issue was originally built to navigate and was used in navigation, but had ceased to navigate and therefore no longer constituted a vessel "in navigation" for Jones Act purposes. This Court notes that the TREASURE CHEST was also built to navigate, but ceased its transportation function on April 1, 2001, well before plaintiff's accident, and has moved only for maintenance purposes on two occasions. Such limited movement, was clearly incidental to TREASURE CHEST's primary function as a floating, but stationary, gambling casino. This "extremely limited transportation function is 'subordinate to its contrasting function1 of providing dockside gaming." Gremillion v. Gulf Coast Catering, Inc., 904 F.2d 290, 294, n. 9 (5th Cir. 1990). Moreover, the defendants' two-year history of compliance and intent to comply with Louisiana law, its Coast Guard Certificate of Inspection reflecting a "continuously moored" status, and intent to remain moored while engaging in its primary function of casino gambling is also telling. See id. at 293 ("[T]he intention of the owner to move the structure on a regular basis . . . and the length of time that the structure has remained stationary are also relevant to the inquiry").
Thus, the TREASURE CHEST is not a vessel in navigation, and Jones Act seaman status does not apply to plaintiff. B. General Maritime Law
Plaintiff next asserts that if she is not a seaman, then she still has a general maritime law cause of action because TREASURE CHEST was floating in navigable waters at the time of her injury and thus was within the admiralty jurisdiction. The Court disagrees. When state laws come into conflict with the general maritime law, the latter prevails, even in the case that federal maritime standards supercede state workman's compensation statutes. See Green v. Vermillion Corp., 144 F.3d 332, 341 (5th Cir. 1998). If the instant matter falls under admiralty jurisdiction, then plaintiff may have a tort claim against Treasure Chest. If, on the other hand, this matter lacks admiralty jurisdiction, plaintiff is limited to a state law worker's compensation claim.
Supreme Court jurisprudence has established a two part test for determining a maritime nexus sufficient to establish admiralty jurisdiction:
(1) First, a court must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce;
(2) Second, the court must examine the general conduct from which the incident arose to determine whether there is a substantial relationship between the activity giving rise to the incident and traditional maritime activity.Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 115 S.Ct 1043 (1995). This test is designed to operate as a policy-based filter that allows courts flexibility in screening out unusual fact situations that are not maritime in nature, but happen to occur in navigable waters. Thomas J. Schoenbaum, Admiralty and Maritime Law, § 3-5 at 96 (3d ed.2001).
Traditionally, a tort was considered within the admiralty jurisdiction if it occurred on navigable waters. Frank L. Maraist Thomas C. Galligan, Jr., Personal Injury in Admiralty, § 4-1 at 29 (2000). This erstwhile standard is known as the "locality test." The Supreme Court began its modern focus on the applicability of admiralty's ancient locality rule in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493 (1972). There, an airplane struck a flock of sea gulls while taking off from a lakefront airport. The aircraft lost control and then settled in Lake Erie just off the end of the runway. No personal injuries resulted, but the aircraft soon sank and became a total loss. In invoking federal admiralty jurisdiction, the owner of the aircraft filed suit for property damage alleging that the crash was caused by the city's negligent failure to keep the runway free from the birds or to give warning of their presence. Since the plane landed in navigable waters, the site of the damage, the plaintiff alleged the applicability of the general maritime law. Addressing admiralty jurisdiction, the Supreme Court amended the locality test as follows:
[T]here has existed over the years a judicial, legislative and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test. One area in which locality as the exclusive test of admiralty tort jurisdiction has given rise to serious problems in application is that of aviation. For the reason discussed above and those to be discussed we have concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation cases.Id. at 261,93 S.Ct. 493. In conclusion, the Court remarked: "It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity." Id. at 269, 93 S.Ct. 493.
In place of the traditional locality rule, Executive Jet court created what has been termed the "locality plus" standard. Under this rule, for admiralty jurisdiction to apply the wrong must occur on navigable waters plus it must bear a significant relationship to traditional maritime activity. Although the Executive Jet ruling discussed aviation, the new rule was quickly applied to all cases of maritime jurisdiction. See Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973); Peytavin v. Government Employees Ins. Co., 453 F.2d 1121 (5th Cir. 1972). Executive Jet's locality plus rule required both a maritime locus and a maritime nexus. Locus, the traditional requirement, was understandably easier to determine than nexus. The crux of this new rule was the significant relationship to traditional maritime activity determination.
Three subsequent Supreme Court opinions defined the scope of the Executive Jet Court's groundbreaking test for admiralty jurisdiction. The first case, Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654 (1982), arose out of the collision between two pleasure boats on navigable waters. The district court found that neither of the pleasure boats involved in the collision had ever been used in a commercial context, and that, since the vast majority of traditional maritime activities was commercial in nature, this precluded admiralty jurisdiction. Richardson v. Foremost Ins. Co., 470 F. Supp. 699 (M.D.La.1979). However, the Fifth Circuit reversed, noting that two boats traversing navigable waters are engaged in a "traditional maritime activity" when a collision occurs between them since, regardless of their size or purpose, boats are governed by the same "Rules of the Road." See Richardson v. Foremost Ins. Co., 641 F.2d 314 (5th Cir. 1981). Affirming the Court of Appeals, the Supreme Court expressly refuted the assertion that a commercial flavor is required for a maritime activity to satisfy the Executive Jet locality plus test. Foremost Ins. Co., 457 U.S. at 674, 102 S.Ct. 2654. Instead, the Court held that jurisdiction existed because of the potential disruptive impact such a collision may have on maritime commerce coupled with the traditional concern of admiralty courts over navigation. See id. at 675-77, 102 S.Ct. 2654. The Court further noted that the inquiry focused on the relationship of the alleged wrong to maritime commerce. Id. at 675, 102 S.Ct. 2654.
The Supreme Court again addressed admiralty jurisdiction in Sisson v. Ruby, 497 U.S. 358,110 S.Ct. 2892 (1990), which addressed tort claims arising out of a fire caused by a defective washer/dryer aboard a yacht docked at a marina that burned the yacht, nearby boats, and the marina itself. The Court began by restating the two-pronged test of Foremost: (1) the potential disruptive impact on maritime commerce and (2) an activity bearing a substantial relationship to maritime commerce. Id. at 362,110 S.Ct. 2892. The Sisson Court concluded that the proper analysis must focus on the "general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity," holding that a fire aboard a vessel docked at a marina was a potential disruption to maritime commerce. Id. at 363, 110 S.Ct. 2892. As to the substantial relationship prong of the Foremost test, the Court in Sisson defined the relevant activity "not by the particular circumstances of the incident, but by the general conduct from which the incident arose." Id. at 364, 110 S.Ct. 2892. Thus, the Court determined that the relevant activity in that case was the storage and maintenance of a vessel on navigable waters. Id. at 365, 110 S.Ct. 2892. The Court then looked to the definition of "traditional maritime activity" and concluded that its definition extended "at least to any other activities traditionally undertaken by vessels, commercial or noncommercial." Id. at 367, 110 S.Ct. 2892. Docking a vessel at a marina on navigable waters was held to be an essential maritime activity, which brought the case within the Court's admiralty jurisdiction. Id.
The final significant case, Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527,115 S.Ct. 1043 (1995), held that admiralty jurisdiction extends to claims for damages caused by a vessel's pile driving activities in the Chicago River which weakened underground tunnels and caused flooding of several Chicago buildings. There, the Supreme Court held that the first prong of the inquiry turned "on a description of the incident at an intermediate level of possible generality," which the Court described as damage by a vessel in navigation to an underwater structure. Id. at 539, 115 S.Ct. 1043. Turning the second inquiry, the Court discussed "whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand," concluding that this test was met because the case concerned maintenance work being done on a navigable waterway performed by a vessel in navigation. Id. at 539-40,115 S.Ct. 1043. Grubart also sounded the death knell for Kelly v. Smith, Maraist Galligan, § 4-2(g) at 39. In Grubart, the Court flatly rejected multi-factor tests such as that presented in Kelly.
Sitting en bane, the Fifth Circuit abandoned Kelly and applied the Sisson/Grubart incident/activity test in Coats v. Penrod Drilling Corp., 61 F.3d 1113 (5th Cir. 1995). However, the Fifth Circuit later cited the abrogated Kelly factors in Green v. Vermillion Corp., 144 F.3d 332, 336 (5th Cir 1998).
Together, Executive Jet, Foremost, Sisson, and Grubart developed a two part test for determining maritime nexus sufficient to establish admiralty jurisdiction. First, the court must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Next, the court must examine the general conduct from which the incident arose to determine whether there is a substantial relationship between the activity giving rise to the incident and traditional maritime activity. This Court finds that plaintiff has failed to establish a sufficient maritime nexus here due to a lack of potential impact on maritime commerce. Consequently, her claims are not within the Court's admiralty jurisdiction and, therefore, must be dismissed.
The accident in question did not present a potentially disruptive impact on maritime commerce. At the time of plaintiff's accident, the M/V TREASURE CHEST had been permanently moored for over a year. During that time, the vessel was stationary and did not engage in maritime commerce. In fact, since July 2001, the United States Coast Guard has required that the M/V TREASURE CHEST remain "continuously moored," thus restricting the vessel from engaging in maritime commerce. Likewise, plaintiff, an employee stationed on that idle vessel, was more than a year removed from commercial maritime employment and seaman status. As Judge Fallon observed in Hertz, M[h]is vessel has been beached." Hertz, 274 F. Supp.2d at 807. Consequently, plaintiff's injuries did not deprive the maritime economy of an a active marine employee. Clearly, an accident aboard a vessel no longer engaging in maritime commerce injuring a laborer no longer contributing to the marine economy does not even potentially disrupt maritime commerce. Ward's connection with maritime commerce is too attenuated to invoke admiralty jurisdiction under Executive Jet and its progeny. Thus, although plaintiff has satisfied the locus aspect of the "locality plus" admiralty jurisdiction determination, Ward has failed to meet the nexus requirement. Consequently, this matter is not within the admiralty jurisdiction of the general maritime law and must be dismissed. Accordingly,
IT IS ORDERED that defendant's Motion to Dismiss (Rec. Doc. 3) is hereby GRANTED and plaintiff's claims are hereby DISMISSED WITH PREJUDICE.