James v. General Dynamics Corporation et al

MOTION to Dismiss for Lack of Jurisdiction Under Fed. R. Civ. P. 12

D. AlaskaApril 28, 2017

TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 1 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Barbara L. Holland, WSBA #11852 Admitted Pro Hac Vice Tyler W. Arnold, WSBA #43129 Admitted Pro Hac Vice GARVEY SCHUBERT BARER 1191 Second Avenue, Suite 1800 Seattle, WA 98101 Tel: (206) 464-3939 Fax: (206) 464-0125 bholland@gsblaw.com tarnold@gsblaw.com Attorneys for Defendants TOTE, Inc. and TOTE Maritime Alaska, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA AT ANCHORAGE DAYLE JAMES, as Personal Representative of the ESTATE OF CHARLIE THOMAS JAMES, JR., Plaintiff, v. GENERAL DYNAMICS CORPORATION; GENERAL DYNAMICS LAND SYSTEMS CO.; GENERAL DYNAMICS LAND SYSTEMS CUSTOMER SERVICE & SUPPORT CO.; TOTE, INC.; TOTE MARITIME ALASKA, INC.; ABC ENTITY; ABC CORP.; JOHN DOES 1-4, Defendants. Case No. 3:17-CV-00046 JWS TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) I. INTRODUCTION Defendants TOTE, Inc. (“TOTE”) and TOTE Maritime Alaska, Inc. (“TMAK”) respectfully request that the Court enter an order dismissing Plaintiff’s claims against them for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 1 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 2 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim for relief under Fed. R. Civ. P. 12(b)(6). Plaintiff pleads two bases for subject matter jurisdiction in this Court: diversity of citizenship under 28 U.S.C. § 1332, and an undefined basis under 33 U.S.C. § 905, a non-jurisdictional provision of the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (“LHWCA”). Both bases fail. The Estate and TMAK are both citizens of Alaska for purposes of 28 U.S.C. § 1332. Diversity jurisdiction is therefore lacking, because Plaintiff is not of diverse citizenship with each Defendant. Similarly, 33 U.S.C. § 905(b) does not confer federal question jurisdiction, and Plaintiff’s allegations do not satisfy the requirements for admiralty jurisdiction as to either TOTE or TMAK. These jurisdictional defects are fatal, cannot be cured by amendment, and mandate that Plaintiff’s claims be dismissed. Plaintiff’s allegations in its Amended Complaint, on their face, also fail to allege facts establishing that either TOTE or TMAK owed Charlie Thomas James, Jr. (the “Decedent”) a duty under 33 U.S.C. § 905(b), nor does such a duty exist as a matter of law. The facts as alleged show an incident far removed in time and space from TMAK’s vessel.1 Plaintiff’s claims should accordingly be dismissed with prejudice. II. PERTINENT ALLEGATIONS OF THE AMENDED COMPLAINT The Amended Complaint alleges that Plaintiff and Decedent were “residents” of Alaska at all relevant times.2 Am. Compl., Dkt. #5, at ¶¶ 1-2. Despite acknowledging that 1 Plaintiff’s counsel has been advised that TOTE, Inc. is not the vessel owner and thus the allegation to the contrary in the Amended Complaint is incorrect. He offered to dismiss the claim against TOTE, Inc. upon receipt of a Declaration to that effect, which was provided on April 24, 2017. See Declaration of Hugh Simpson (“Simpson Decl.”). 2 By referencing the allegations of the Amended Complaint, TOTE and TMAK do not admit any of them and reserve the right to deny and contest any such factual and/or legal assertions. Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 2 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 3 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TMAK is a corporation (as the “Inc.” in its name suggests), Plaintiff conspicuously fails to allege TMAK’s place of incorporation, alleging only that TMAK is “head quartered [sic] in Washington State.” Am. Compl. ¶ 4. According to TMAK’s publicly available Articles of Incorporation, filed with the State of Alaska, TMAK is incorporated in Alaska. 3 Declaration of Grace Greene (“Greene Decl.”), Ex. A (TMAK Articles of Incorporation). 4 Beyond the conclusory allegation that the Court “has jurisdiction over this matter pursuant to 28 USC 1332, and 33 USC 905(b) [sic],” Am. Compl. ¶ 9, the Amended Complaint alleges no further jurisdictional facts with respect to TOTE or TMAK. Plaintiff alleges that Decedent was working for Sea Star Stevedoring Company (“Sea Star”) at the Port of Anchorage, Alaska, on March 13, 2015. Am. Compl., Dkt. #5, at ¶ 11. At that time, he was “assisting a group of longshoreman [sic] loading U.S. Army Stryker vehicles . . . unto [sic] rail cars, for transport to Joint Base Eielson-Wainwright, Alaska.” Am. Compl. ¶ 12. Decedent was guiding the Army Stryker, driven by his co- worker, onto the rail car when the Stryker struck Decedent, killing him. Am. Compl. ¶¶ 13, 17-18. Plaintiff alleges the brakes on the Stryker failed to stop the vehicle. Am. Compl. ¶ 15. Plaintiff alleges that the Army Strykers had been transported to Anchorage and offloaded from a vessel owned by TOTE and operated by TMAK. Am. Compl. ¶¶ 3, 4, 12. Plaintiff does not allege that Decedent was involved in offloading the Strykers from the 3 The Court is free to consider facts outside the pleadings on a motion to dismiss for lack of subject matter jurisdiction unless they are inextricable from the merits of the case. Kingman Reef Atoll Investments, LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). 4 TMAK was originally named Totem Ocean Trailer Express, Inc., but changed its name to TMAK in November 2015. Greene Decl. Ex. B. Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 3 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 4 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vessel, or that Decedent ever went aboard the vessel. Nor does Plaintiff allege that Decedent was killed by a condition on the vessel or its equipment, or even that a vessel was present. All that Plaintiff alleges is that Decedent was on shore helping to load Strykers onto railcars. Am. Compl. ¶ 12. The vessel that transported the Stryker in question to Anchorage is the M/V NORTH STAR (the “Vessel”). Greene Decl. ¶ 4. The NORTH STAR is owned by TMAK, not TOTE. Id.; Simpson Decl. ¶ 2. In fact, the Army Strykers, including the Stryker that struck Decedent, had been offloaded from the Vessel on March 1, 2015, nearly two weeks prior to Decedent’s death. Greene Decl. ¶ 4. The Vessel departed from Anchorage on March 1, and was not present at the port when the incident occurred nearly two weeks later. Id. Plaintiff alleges that TOTE and/or TMAK are liable under 33 U.S.C. § 905(b). Am. Compl. ¶ 50. First, Plaintiff alleges that the Army Stryker had “brake problems” when it was loaded onto the Vessel and that TOTE and/or TMAK knew or should have been aware of this fact. Am. Compl. ¶ 51. Second, Plaintiff alleges that TOTE and/or TMAK had a duty to warn Decedent of the Army Stryker’s “latent brake problems.” Am. Compl. ¶ 52. Third, and implicit in the first allegation, Plaintiff alleges that TOTE and/or TMAK were required to inspect and test the Army Stryker’s brakes to discover any brake problems. Am. Compl. ¶¶ 53-54. Fourth, Plaintiff alleges that TOTE and/or TMAK knew Decedent and his fellow Sea Star employees had not been adequately trained to discover any brake problems. Am. Compl. ¶ 55. Plaintiff then states two pure legal conclusions: that TOTE and/or TMAK were negligent, and that Decedent’s death was the “proximate result of [such] negligence.” Am. Compl. ¶ 56. Not only are Plaintiff’s allegations spun from thin air, they are insufficient to establish the existence of a duty under 33 U.S.C. § 905(b). Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 4 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 5 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT A. The Court Lacks Subject Matter Jurisdiction over Plaintiff’s Lawsuit Plaintiff fails to establish that the Court has subject matter jurisdiction over this action. Under Fed. R. Civ. P. 12(b)(1), the Court must dismiss a claim when the plaintiff does not prove the existence of subject matter jurisdiction. Marinese v. United States, No. 1:10-cv-00008 JWS, 2013 WL 878284, at *1 (D. Alaska Mar. 7, 2013) (citing Tosco Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2000), overruled on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010)). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Plaintiff cannot meet its burden of proving diversity jurisdiction, or jurisdiction based on 33 U.S.C. § 905. i. Plaintiff Fails to Plead a Basis for Diversity Jurisdiction and Cannot Establish Complete Diversity of Citizenship Because Plaintiff and TMAK are Citizens of Alaska Under 28 U.S.C. § 1332 Under 28 U.S.C. § 1332(a)(1), the Court has diversity jurisdiction only “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.” This requires complete diversity, meaning “the citizenship of each plaintiff is diverse from the citizenship of each defendant.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). “The party seeking to invoke the district court’s diversity jurisdiction always bears the burden of both pleading and proving diversity jurisdiction.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 613-14 (9th Cir. 2016). Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 5 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 6 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For purposes of diversity under the federal jurisdictional statute, “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C. § 1332(c)(2). Consistent with the Amended Complaint, Plaintiff is thus a citizen of Alaska for purposes of diversity jurisdiction. Similarly, “a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (emphasis added). A corporation, unlike an individual, may thus be deemed a citizen of two different states. See Rouse v. Wachovia Mortg., FSB, 747 F.3d 707, 714 (9th Cir. 2014) (“a state-chartered corporation is a citizen of both the state of incorporation and the state of its principal place of business”); Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994); Bank of Cal. Nat’l Ass’n v. Twin Harbors Lumber Co., 465 F.2d 489, 492 (9th Cir. 1972). As TMAK’s publicly available Articles of Incorporation filed with the State of Alaska show, TMAK’s state of incorporation is Alaska. Greene Decl. Ex. A. In determining whether or not it has jurisdiction, the Court may consider this matter of public record on this Motion. Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Even accepting Plaintiff’s allegation that TMAK is headquartered in Washington, TMAK is thus a citizen of both Washington and Alaska. Because TMAK and Plaintiff are both citizens of Alaska under 28 U.S.C. § 1332, this case lacks complete diversity of citizenship between Plaintiff and each Defendant, and the Court therefore lacks diversity jurisdiction. Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 6 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 7 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. Plaintiff’s Attempt to Plead Subject Matter Jurisdiction Under 33 U.S.C. § 905(b) Fails Because That Statute Does Not Confer Federal Question Jurisdiction Plaintiff next alleges jurisdiction under 33 U.S.C. § 905. This section of the LHWCA is not a jurisdictional statute, nor does it give rise to federal question jurisdiction. Garcia v. Amfels, Inc., 254 F.3d 585, (5th Cir. 2001) (stating that “there is no question that the LHWCA does not create federal subject matter jurisdiction supporting removal,” which must be based on diversity or federal question jurisdiction). The Court’s federal question jurisdiction extends only to cases “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Courts have repeatedly held that vessel negligence claims under § 905(b) do not “arise under” federal law because that statute did not create a new cause of action. Richendollar v. Diamond M Drilling Co., 784 F.2d 580, 583 (5th Cir. 1986) (“[T]he presentation of a claim under § 905(b) does not automatically raise a federal question cognizable under 28 U.S.C. § 1331.”). Congress enacted § 905(b) in 1972 as part of a series of amendments to the LHWCA under which “[t]he longshoreman- employee’s right to recover for unseaworthiness was abolished; his right to recover from the vessel was preserved but was limited to an action for negligence; and the vessel owner's right to indemnity from the stevedore was abolished.” Gravatt v. City of New York, 226 F.3d 108, 116 (2d Cir. 2000). In doing so, Congress did not create a new federal cause of action for longshoremen, it simply maintained the longshoreman’s traditional negligence claim against the vessel owner while curtailing other related claims. Parker v. S. La. Contractors, Inc., 537 F.2d 113, 117 (5th Cir. 1976), cert. denied, 430 U.S. 906 (1977). As the Parker Court explained, Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 7 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 8 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Taken as a whole, the manifest purpose of section 905(b) is to curtail rather than expand the availability of third party actions in admiralty. With respect to third party actions for negligence, the reasonable inference is that the boundaries of maritime jurisdiction as defined under prior law . . . were neither expanded nor constricted by passage of the 1972 Amendments, but simply retained. Id. The longshoreman’s negligence claim against a vessel owner preserved by 33 U.S.C. §905(b) is based on the general maritime law, which similarly does not create a federal question “arising under” federal law. See Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 368 (1959); Kathriner v. Unisea, Inc., 740 F. Supp. 768, 769 (D. Alaska 1990) (noting that “causes of action based upon the general maritime law are not federal questions within the meaning of 28 U.S.C. § 1331”). In Romero, the Supreme Court explained that the general maritime law cannot be considered to arise solely under federal law: Although the corpus of admiralty law is federal in the sense that it derives from the implications of Article III evolved by the courts, to claim that all enforced rights pertaining to matters maritime are rooted in federal law is a destructive oversimplification of the highly intricate interplay of the States and the National Government in their regulation of maritime commerce. Id. at 373. Therefore, even if Plaintiff pled facts sufficient to establish a § 905(b) claim, which it did not, Plaintiff has not and cannot plead federal question jurisdiction. iii. Plaintiff Fails to Allege Facts Sufficient to Establish Admiralty Jurisdiction Plaintiff has likewise failed to plead a claim under the Court’s admiralty jurisdiction, 28 U.S.C. § 1333. As the Fifth Circuit noted, “§ 905(b) has no effect on the reach of admiralty jurisdiction. It neither expands nor limits its availability.” Rosetti v. Avondale Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 8 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 9 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shipyards, Inc., 821 F.2d 1083, 1085 n.2 (5th Cir. 1987) (citing Parker, 537 F.2d 113). Plaintiff must satisfy traditional admiralty jurisdiction standards regardless of the Decedent’s alleged status as a longshoreman on a marine terminal. Admiralty jurisdiction requires the Plaintiff to satisfy the location test and to show a significant connection to traditional maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). Plaintiff cannot satisfy either of these requirements, and the Court accordingly lacks admiralty jurisdiction. “The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not, admiralty jurisdiction did not exist.” Grubart, 513 U.S. at 531–32. The Supreme Court confronted a case similar to Plaintiff’s in Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971), and held that admiralty jurisdiction was lacking. There, a longshoreman sued a vessel owner in federal court after he was injured on the pier while driving a forklift loaded with cargo for the vessel. Id. at 203. Analyzing whether the claim fell within admiralty jurisdiction, the Court stated that “[t]he historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the incident and that maritime law governs only those torts occurring on the navigable waters of the United States.” Id. at 205. Thus, “the gangplank has served as a rough dividing line between the state and [federal] maritime regimes.” Id. at 207; see also Whitcombe v. Stevedoring Servs. of Am, 2 F.3d 312, 315 (9th Cir. 1993) (holding that no admiralty jurisdiction existed where plaintiff’s car was damaged on the terminal while being stored for shipment by sea); David Wright Charter Serv. of N.C., Inc. v. Wright, 925 F.2d 783, 784 (4th Cir. 1991) (holding that court did not have admiralty jurisdiction under the location test Case 3:17-cv-00046-JWS Document 17 Filed 04/28/17 Page 9 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 10 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 where shipyard worker was killed when vessel exploded when on blocks in a shed 75 feet from the water). The Court in Victory Carriers rejected the longshoreman’s argument that he should be able to sue in admiralty, even though the forklift that caused his injuries was not part of the vessel or its equipment, merely because he was injured on the pier while in the service of the ship. The Court pointed to the amphibious nature of the longshoreman’s occupation and the need to preserve the application of state law to accidents occurring on land. 404 U.S. 212-214. The Court found that, like this case, the “typical elements of a maritime cause of action are particularly attenuated: [the plaintiff longshoreman] was not injured by equipment that was part of the ship’s usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard the ship or on the gangplank.” Id. at 213-14. The Court held that the longshoreman’s claims thus did not fall within federal admiralty jurisdiction. Id. at 214; Davis v. W. Bruns & Co., 476 F.2d 246, 248 (5th Cir. 1973) (holding that longshoreman injured by conveyor belt loading bananas onto vessel could not satisfy location test for admiralty jurisdiction because the conveyor belt was not “attached to the ship” and thus his injury was not caused by the vessel or its equipment); Heim v. City of New York, 442 F. Supp. 35, 37 (E.D.N.Y. 1977) (holding that worker injured when he stepped in a hole while carrying debris to be loaded onto a vessel could not satisfy admiralty jurisdiction because the “injury did not result from the negligent handling of the vessel or any of its gear or appurtenances”). Like the longshoreman in Victory Carriers, Plaintiff cannot satisfy the location test for admiralty jurisdiction. The injury at issue occurred on land, not on navigable waters. Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 10 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 11 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Am. Compl. ¶¶ 12-18; see Oppen v. Aetna Ins. Co., 485 F.2d 252, 256 (9th Cir. 1973) (“The locus of a tort is the place where injury takes effect.”) (citing T. Smith & Son, Inc. v. Taylor, 276 U.S. 179 (1928)). Decedent was not killed by the Vessel or its equipment, but was instead killed by an Army Stryker driven by a co-worker on a railcar located on shore. Am. Compl. ¶¶ 17-18. Plaintiff does not—and cannot—allege that the incident occurred on navigable waters or that a vessel on navigable waters caused Decedent’s death, and cannot satisfy the location test for admiralty jurisdiction. Plaintiff likewise cannot satisfy the second requirement of admiralty jurisdiction because Decedent was not involved in traditional maritime activity at the time of the incident. In 1972, the Supreme Court raised the threshold for admiralty jurisdiction by adding a second requirement: the tort must have a significant relationship to traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972); see also Holland v. Sea-Land Serv., Inc., 655 F.2d 556, 558 (4th Cir. 1981) (“Executive Jet . . . did not abolish the locality test. Instead, it added a second prerequisite for admiralty jurisdiction, saying: ‘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.’”). Specifically, the incident must be one that has “a potentially disruptive impact on maritime commerce.” Sisson v. Ruby, 497 U.S. 358, 362 (1990). There must also be a “substantial relationship between the activity giving rise to the incident and traditional maritime activity.” Sisson, 497 U.S. at 364. Plaintiff alleges that Decedent was loading a railcar with Army vehicles at the time of his death. He was not loading or unloading a vessel. Cf. Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 423 (1985) (stating that Congress’s purpose in amending the LHWCA “was Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 11 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 12 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is ‘clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered’”) (emphasis added) (quoting Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 267 (1977)). There is nothing particularly maritime about loading a military vehicle onto a railcar on land, regardless of the fact that it was one time transported by a ship. See Owens-Illinois, Inc. v. U.S. Dist. Ct. for W. Dist. of Wash., at Tacoma, 698 F.2d 967, 971 (9th Cir. 1983) (holding that admiralty jurisdiction did not exist where instrumentality of injury did not possess any peculiarly maritime attributes). Plaintiff’s allegations are similar to the jurisdictional allegations in Whitcombe, 2 F.3d 312. There, the plaintiff’s cargo was being stored in a container on a marine terminal so it could be loaded onto a vessel for shipment by sea. Id. at 313. Before the container could be loaded onto a vessel, the container fell over and damaged the cargo inside. Id. On appeal, the Ninth Circuit held that the case did not fall within the court’s admiralty jurisdiction because the damage occurred on land, and not during vessel loading. Id. at 315. As in Whitcombe, the damage alleged by Plaintiff in this case was caused by an Army Stryker vehicle that was stored on a terminal during a shoreside operation that did not involve a vessel. The incident did not occur on navigable waters and railcar loading is not a traditional maritime activity. Plaintiff has failed to plead and prove the requirements for admiralty jurisdiction. Accordingly, the Court lacks subject matter jurisdiction and Plaintiff’s claims should be dismissed. B. Plaintiff Fails to State a Claim For Relief Under Fed. R. Civ. P. 12(b)(6) Plaintiff’s Amended Complaint also fails to state a claim for relief against TOTE or Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 12 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 13 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TMAK under 33 U.S.C. § 905(b), and its claims should be dismissed. To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), Plaintiff must allege “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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 557). Plaintiff must offer real facts that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 pp. 235–36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”)). Among other things, this requires a cognizable legal theory, the absence of which is fatal. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). And while the Court must accept factual allegations at the pleading stage, it need not accept Plaintiff’s legal conclusions. Iqbal, 556 U.S. at 678. Plaintiff fails to offer factual allegations that establish a plausible claim for relief against TOTE or TMAK under 33 U.S.C. § 905(b). i. Plaintiff’s Claims Fail Because the Vessel Did Not Breach a Duty of Care Under 33 U.S.C. § 905(b) Section 905(b) provides that “[i]n the event of injury to a person covered by this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party . . . .” The Supreme Court has interpreted this provision to mean that “a shipowner must exercise ordinary care to maintain the ship and its equipment in a condition so that an expert and experienced stevedore can load and unload cargo with reasonable safety.” Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 13 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 14 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 93-94 (1994) (emphasis added). “In order to hold the vessel owner liable, there must be some condition of the vessel that caused or contributed to the plaintiff's injury.” Dean v. McKie Co., 771 F. Supp. 466, 476 (D. Mass. 1991). Plaintiff has not alleged that the Vessel or its equipment were not properly maintained for loading and unloading the Vessel, or that any such omission proximately caused Decedent’s death. Instead, Plaintiff alleges that Decedent was killed by an Army Stryker vehicle with defective brakes while it was being loaded onto a railcar located on shore two weeks after it was discharged from the Vessel. Section 905(b) does not provide relief for a claim so tenuously related to the Vessel. See Brown v. McKinnon Bridge Co., Inc., 732 F. Supp. 1479, 1485 (E.D. Tenn. 1989) (holding that plaintiff could not maintain a claim under § 905(b) because he “was not engaged in any activity related to the vessel at the time of his injury”). Plaintiff has in essence alleged that shipowners have a duty to inspect cargo and correct any latent defects. Courts confronted with similar allegations have roundly rejected the existence of such duties. In Brown v. Peter Hahn GmbH, 89 F. Supp. 2d 735 (E.D. Va. 2000), a longshoreman sued the vessel owner when he was injured due to a defect in a container that had been offloaded from the vessel. Id. at 736. The longshoreman alleged that the vessel owner was “negligent in failing to properly inspect the container and warn of its dangerous condition when it was unloaded” at the port. Id. at 737. The court rejected the allegation: “There is no duty of a vessel . . . to inquire about specific containers, nor is there a duty to open and inspect the contents of every container a vessel transports in order to discover hidden dangers.” Id. at 740. Similarly, in Reechel v. Italia DiNavigazione Societa Per Azioni Genova, 690 F. Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 14 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 15 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supp. 438 (D. Md. 1988), a longshoreman’s widow sued a vessel owner after her husband was killed by a cargo container that had been unloaded from the vessel. The longshoreman was transporting a container that had been unloaded from the defendant’s vessel to a storage lot when the container fell and crushed him. Id. at 439. The plaintiff claimed that the load in the container had been improperly secured and required special handling, “both of which are potentially dangerous conditions of which the defendants [vessel owners] should have given warning.” Id. The court refused to impose liability under § 905(b), stating that “the shipowner has no duty to inquire about specific containers or undertake to inspect the contents of sealed containers” in the absence of knowledge or circumstances that would reasonably have put the shipowner on notice. Id. at 444. Like the longshoremen in Brown and Reechel, Plaintiff has not established, and cannot establish, breach of any duty owed by the vessel owner which caused Decedent’s death. TOTE and TMAK had no obligation to inspect the Army Stryker to discover defects with its brakes. If problems with the Army Stryker’s brakes existed when it was offloaded from the Vessel, as Plaintiff speculates, Sea Star’s longshoremen, as the ones actually operating it, were the only ones in a position to discover such problems. Plaintiff’s factual allegations do not establish a plausible claim for relief under the standards set forth in Howlett. Furthermore, to the extent Plaintiff alleges based on nothing but speculation that the Army Stryker’s brakes were not working at the time of transport on the Vessel, or that TOTE or TMAK actually knew of such a defect, such conclusory allegations do not save Plaintiff’s complaint. See Iqbal, 556 U.S. at 678 (rejecting allegations that defendant “knew of” improper conduct as “nothing more than a ‘formulaic recitation of the elements’” of Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 15 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 16 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff’s claim) (quoting Twombly, 550 U.S. at 555). The federal pleading standards do not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. Plaintiff thus fails to state a claim against TOTE or TMAK under § 905(b) as a matter of law. ii. Plaintiff Cannot Allege a § 905(b) Claim Against TOTE Because TOTE Did Not Own the Vessel Plaintiff’s only allegation against TOTE is that it owned the Vessel, which is incorrect. The Vessel is owned by TMAK, not TOTE. Simpson Decl. ¶ 2; Greene Decl. ¶ 4. TOTE is not one of the entities listed in the statute as subject to liability under § 905(b). For purposes of the statute, § 905(b) liability may only be imposed on the “owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.” See 33 U.S.C. § 902(21). Plaintiff’s claim against TOTE fails. V. CERTIFICATION OF COMPLIANCE Pursuant to the Court’s Order dated March 21, 2017, the parties conferred on April 12, 2017 regarding TOTE and TMAK’s plan to file this motion and were unable to agree that the Plaintiff’s Amended Complaint is curable by a permissible amendment. See Declaration of Compliance with Court’s Order Re Motion to Dismiss and Exhibit 1 thereto. Plaintiff’s counsel agreed to dismiss TOTE, Inc. upon receipt of a declaration from an authorized representative confirming that TOTE, Inc. does not own or control the NORTH STAR. The Simpson Declaration was provided to Plaintiff’s Counsel on April 24, 2017, and is filed with this motion. VI. CONCLUSION For the foregoing reasons, Defendants TOTE, Inc. and TOTE Maritime Alaska, Inc. respectfully request that the Court enter an order dismissing Plaintiff’s claims against them Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 16 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 17 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with prejudice. DATED this 28th day of April, 2017. GARVEY SCHUBERT BARER s/ Barbara L. Holland Barbara L. Holland, WSBA # 11852 admitted pro hac vice Tyler W. Arnold, WSBA #43129 admitted pro hac vice Attorneys for Defendants TOTE, Inc. and TOTE Maritime Alaska, Inc. Eighteenth Floor, 1191 Second Avenue Seattle, Washington 98101-2939 Phone: (206) 464-3939 Fax: (206) 464-0125 Email: bholland@gsblaw.com Email: tarnold@gsblaw.com Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 17 of 18 TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) ESTATE OF JAMES V. GENERAL DYNAMICS, ET AL., Case No. 3:17-CV- Page 18 of 18 G A R V E Y S C H U B E R T B A R E R E ig h te en th F lo o r 1 1 9 1 S ec o n d A ve n u e S ea tt le , W a sh in g to n 9 8 1 0 1 -2 9 3 9 (2 0 6 ) 4 6 4 -3 9 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on April 28, 2017, I caused to be electronically filed the foregoing TOTE, INC. AND TOTE MARITIME ALASKA, INC.'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B) with the Clerk of the Court using the CM/ECF system which causes parties who are registered ECF participants to be served by electronic means. Dated this 28th day of April, 2017, at Seattle, Washington. GARVEY SCHUBERT BARER By: s/Patricia Shillington Patricia Shillington Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 18 of 18