Opinion
CIVIL ACTION, NO. 05-4206 CONSOLIDATED CASE, SECTION "L" (2), THIS DOCUMENT RELATES TO CASE 07-5179.
November 21, 2007
ORDER REASONS
Before the Court is Defendant Murphy Oil USA, Inc.'s Motion to Dismiss Plaintiff's Claims for Failure to State a Claim. (Rec. Doc. No. 2065) For the following reasons the motion is GRANTED.
I. Factual and Procedural Background
This case arises out of an oil spill at Defendant Murphy Oil USA, Inc.'s ("Murphy") refinery located in Meraux, Louisiana, caused by Hurricane Katrina. The Plaintiff, J.P. Morgan Chase Bank, N.A. ("J.P. Morgan"), operated a branch located at 9109 West Judge Perez in Chalmette, Louisiana. J.P. Morgan filed suit against Murphy in this Court on August 29, 2007. (Case No. 07-5179, Rec. Doc. No. 1) J.P. Morgan alleged causes of action based on the Oil Pollution Act, 33 U.S.C. §§ 2701, et seq. (the "OPA"), and under Louisiana tort law.
Murphy has moved to dismiss J.P Morgan's claims for failing to state a claim. Specifically, Murphy argues that J.P. Morgan cannot assert a claim under the OPA because it has failed to comply with the notice requirements of the statute. Also, Murphy argues that J.P. Morgan cannot assert a claim under the OPA because the oil release in this case occurred on land and not on navigable waterways or their adjoining shoreline. With respect to J.P. Morgan's claims under Louisiana tort law, Murphy argues that J.P. Morgan's claims are prescribed.
J.P. Morgan opposes the motion and argues that it complied with the OPA notice requirement and that the original class action provided adequate notice; alternatively, J.P. Morgan asks the Court to waive the notice provision. J.P. Morgan also argues that the alleged oil discharge took place on navigable waters or their adjoining shore because at the time the area surrounding Murphy's refinery was flooded and combined with the refinery's close proximity with the Mississippi River, Lake Borge and the Mississippi River-Gulf Outlet, caused the oil to be discharged into navigable waters. Additionally, J.P. Morgan argues its state law claims are valid because the Louisiana environmental statutes were enacted as a compliment to the OPA and are not prescribed.
II. Law and Analysis
"The district court may not dismiss a complaint under rule 12(b)(6) '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.'" Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court must construe the complaint liberally in favor of the plaintiff, "and all facts pleaded in the complaint must be taken as true." Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)).
A. OPA Notice Requirement
The OPA requires that "all claims for removal costs or damages shall be presented first to the responsible party." 33 U.S.C. § 2713(a). A party can file suit after a claim has been presented and the person to whom the claim is presented denies all liability or the claim is not settled within 90 days of when the claim was presented. 33 U.S.C. § 2713(c). A "claim" is defined as "a request, made in writing for a sum certain, for compensation for damages or removal costs from an accident." 33 U.S.C. § 2701(3). This notice provision is a "mandatory condition precedent" to bringing a suit under the OPA. Boca Ciega Hotel, Inc. v. Bouchard Trans. Co., 51 F.3d 235, 240 (11th Cir. 1995); see also Marathon Pipe Line Co. v. LaRoche Industries Inc., 944 F. Supp. 476, 477 (E.D. La. 1996) (Clement, J.) ("The Court agrees that § 2713's presentation requirement is jurisdictional and mandates dismissal when that provision is applicable and not complied with by the claimant."); Jonhson v. Colonial Pipeline Co., 830 F. Supp. 309, 310 (E.D. Va. 1993) ("If plaintiffs fail to comply with the prerequisites for bringing such a claim, the OPA claim must be dismissed."). Indeed the Court has stated as much in this consolidated case: "the case law indicates that notice in the form of presentment of a claim is a mandatory condition to bringing suit under the OPA." Turner v. Murphy Oil USA, Inc., Civil Action No. 05-4206, Order and Reasons, dated December 29, 2005, Rec. Doc. No. 104.
The purpose of the OPA notice requirement is to promote settlement and avoid litigation. Johnson, 830 F. Supp at 310; see also Abundiz v. Explorer Pipeline Co., 2003 WL 23096018, *3 (N.D. Tex. Nov. 25, 2003). At least two courts have emphasized the need for specificity in the presentment of any claim to the responsible party. See Johnson, 830 F. Supp. at 311; Abundiz v. Explorer Pipeline Co., 2002 WL 2030880, *2 (N.D. Tex. Sept. 3, 2002). This is so because "[i]n order to accomplish [its] purpose, the claim presented must inform the responsible party with some precision of the nature and extent of the damages alleged and of the amount of monetary damages claimed." Jonhson, 830 F. Supp. at 311. If the claim does not have the necessary specificity, the responsible party will be unable to make a informed offer of settlement. Id. These courts point to the regulations issued by the United States Coast Guard, pursuant to the OPA, that set forth the requirements for filing claims against the OPA Fund. Id. These regulations require that a claim must provide "a general description of the nature and extent of the impact of the oil spill and the associated damages, a list of the damages with a 'sum certain' attributed to each type of damage listed, and evidence to support the claim." Id. (citing 33 C.F.R. §§ 136.105, 136.109).
The Court finds that the initial class action is insufficient to serve as proper notice under the requirements of the OPA. The various filings did not provide Murphy with the required specificity of J.P. Morgan's claim. The Court also will not waive the notice requirement under the OPA. Accordingly, the Court finds that J.P. Morgan failed to comply with the notice requirements of the OPA, and J.P. Morgan's OPA claims are dismissed. This dismissal, however, will be treated as a dismissal without prejudice and J.P. Morgan remains free to refile this action if and when it complies with the OPA procedure. See Boca Ciega Hotel, 51 F.3d at 240.
B. State Law Claims
J.P. Morgan does not specify what statute or code provision their state law cause of action arises under. In its complaint, J.P. Morgan alleges "that, upon information and belief, the discharge of oil was caused by the negligent actions and omissions of the Defendant. If it is determined that the Oil Pollution Act does not apply, [J.P. Morgan] alleges that the Defendant is liable to it under tort law." In their opposition to this motion, J.P. Morgan argues that their claim is brought under Louisiana's environmental statutes, La.Rev.Stat. 30:2453, et seq. Based on a plain reading of the complaint, the Court concludes that J.P. Morgan's state law claims set forth in its complaint are based on negligence.
In Louisiana, there is a one year prescriptive period for negligence actions. La. Civ. Code art. 3492, see also Allstate Ins. Co. v. Torres, 2007 WL 3102791, *2 (E.D. La. Oct. 23, 2007). "This prescription commences to run from the day of injury or damage is sustained." Id. Under Louisiana law, however, a class action interrupts prescription as to all claims of all class members. Broussard v. Foti, 2001 WL 322066, *2 (E.D. La. April 2, 2001).
Hurricane Katrina stuck St. Bernard Parish on August 29, 2005, causing widespread flooding to the area. Under Article 3492, J.P. Morgan, therefore, had until August 29, 2006, to file their action. The class action in this case was filed on September 9, 2005, and therefore prescription was tolled. (Rec. Doc. No. 1) On January 30, 2006, the Court granted Plaintiffs' Motion for Class Certification, however, J.P. Morgan's property was located out of the class area. (Rec. Doc. No. 226) Once the Court certified the class in a manner that did not include J.P. Morgan's property, prescription commences to run anew. See Orleans Parish School Bd. v. U.S. Gypsum Co., 892 F. Supp. 794, 802 (E.D. La. 1995). Under the Louisiana Civil Code, J.P. Morgan had until January 29, 2007 to file suit. La. Civ. Code. art. 3466. J.P. Morgan filed suit on August 29, 2007. Accordingly, any claims based on negligence are prescribed.
III. Conclusion
Accordingly, IT IS ORDERED that Defendant Murphy Oil USA, Inc.'s Motion to Dismiss Plaintiff's Claims for Failure to State a Claim is GRANTED, and J.P. Morgan's claims under the OPA are DISMISSED WITHOUT PREJUDICE, and J.P. Morgan's claims based on negligence are DISMISSED WITH PREJUDICE.