UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Plaintiff, Defendants.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

WILLIAM J. CANNON,

Plaintiff, v.

AUSTAL USA, LLC and UNITED STATES OF AMERICA,

Defendants.

Case No.: 15-cv-2582-CAB (BLM)

ORDER DENYING THIRD-PARTY DEFENDANT AUSTAL USA, LLC, MOTION TO DISMISS, OR,

ALTERNATIVELY, MOTION TO TRANSFER VENUE

[Doc. Nos. 33, 35, 40]

Third-party Defendant Austal USA, LLC (“Austal”) moves to dismiss the complaint filed by Plaintiff, William Cannon, and the third party complaint filed by the United States pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, to transfer venue to the United States District Court for the Southern District of Alabama under 28 U.S.C §1404(a). [Doc. No. 33.] For the reasons set forth below, the Court

DENIES Austal’s motion. I. Background

Plaintiff filed this lawsuit on November 17, 2015 against Austal and the United States of America (“United States”) seeking damages for alleged injuries he suffered abroad the USS Coronado (the “Coronado”), a public vessel of the United States, under various admiralty laws. [FAC ¶ 1.] Plaintiff asserted a separate claim against the United

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States for negligence under § 905(b) of the Longshore and Harbor Workers Compensation Act (“LHWCA’), 33 U.S.C. §§ 901, et seq. [FAC ¶¶ 26-27.] One week later, Plaintiff filed an amended complaint (the “FAC”) asserting the same claims. [Doc. No. 5.]

On November 24, 2015, the date the FAC was filed, the Coronado was located in California’s state territorial waters within this district. [FAC ¶ 2.] Plaintiff’s injuries, however, occurred on or about November 25, 2013, while Plaintiff was onboard the Coronado in navigable waters near Mobile, Alabama. [FAC ¶ 11.] Plaintiff asserts that while attempting to pick up and move lifts with three members of the Navy, he was injured when other persons dropped their corners of the lift, causing excessive weight to be placed on him and injuring his lumbar spine. [FAC ¶ 11.] Plaintiff also asserts either 1) that he was a seaman pursuant to the Jones Act, 46 U.S.C. § 30104, on the date of the alleged injury and is entitled to sue for negligence, maintenance and cure, and the unseaworthiness of the Coronado [FAC ¶¶ 8, 15-17, 18-20, 21-25], or 2) that he was a harbor worker/repair worker entitled to bring a negligence claim pursuant to the LHWCA. [FAC ¶¶ 26-27.]

On December 29, 2015, Plaintiff voluntarily dismissed his claims against Austal. Then on January 22, 2016, the United States filed a Third Party Complaint (“TPC”) against Austal pursuant to the Federal Rule of Civil Procedure 14(c). The TPC alleges that while acting as a seaman, Plaintiff was working with Austal employees at the time of his alleged injury and it was the acts and/or omissions of the Austal employees that caused Plaintiff’s injuries. [TPC ¶ 11.] The TPC also asserts that although the United States was the owner of the Coronado, Plaintiff’s injury was proximately caused by Austal’s negligence, breach of duty, breach of statute and/or regulation with respect to safe working conditions. [TPC ¶¶ 3, 14.]

Third-party Defendant now moves to dismiss the FAC and the TPC, or in the alternative to transfer venue of this action to the Southern District of Alabama. [Doc. No. 33.]

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II. Motion to Dismiss A. Legal Standard

Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The facial plausibility standard is not a “probability requirement” but mandates “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and citations omitted).

Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a party make “a short and plain statement of the claim showing that the pleader is entitled to relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”). The court must be able to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663. “Determining whether a complaint states a plausible claim for relief … [is] a

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specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

B. Discussion1

The TPC alleges that Austal is liable for Plaintiff’s injuries pursuant to Rule 14(c). Rule 14(c)(2) provides that for admiralty or maritime claims a “the third-party defendant must defend under Rule 12 against the plaintiff’s claim as well as the third-party plaintiff’s claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.” Fed. R. Civ. P. 14(c)(2). Third-party Defendant’s motion to dismiss is therefore brought against both the Third Party Complaint and the First Amended Complaint and all arguments are applied to both.

Third-party Defendant’s arguments for dismissal all concern whether the FAC states claims under admiralty and maritime law. To that end, Third-party Defendant makes three arguments. First, Third-party Defendant argues that the Admiralty Act and Public Vessels Act (“PVA”) do not apply because admiralty law does not apply to Plaintiff’s injuries. Second, Third-party Defendant argues that the Jones Act does not apply because Plaintiff was not a “seaman” at the time of his injuries. Third, Third-party Defendant argues that the exclusivity provision of the Suits in Admiralty Act (“SIAA”) precludes it from being sued because it was acting as an “agent” of the United States. As discussed below, the Court is not persuaded by any of these arguments.

1. The Coronado’s Status as a Vessel.

Since the parties dispute whether the Coronado is a vessel as defined by the Acts under which the claims are brought, as a preliminary matter, the Court will address whether, for pleading purposes, Plaintiffs have sufficiently alleged that the Coronado was a vessel.

1 Austal attaches over fifty pages of declarations and evidence to its motion. Because most of these materials are not appropriate for consideration on a motion to dismiss, the Court has not considered them in connection with this opinion. The Court’s analysis is limited to the pleadings, materials incorporated in the pleadings by reference, and matters of which the court may take judicial notice. Metzler Inv. GMBH v. Corinthian Colleges, Inc. 540 F.3d 1049, 1061 (9thCir. 2008).

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A federal district court has original jurisdiction to hear “any case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. 1333(1). The Extension of Admiralty Jurisdiction Act (the “EAJA”) provides that “[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable waters, even though the injury or damage be done or consummated on land.” 46 U.S.C. §30101(a); see also Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531 (1995) (holding that the EAJA gave the federal courts admiralty “jurisdiction over ‘all cases’ where the injury was caused by a ship or other vessel on navigable water, even if such injury occurred on land”). The EAJA reiterates that “[i]n a civil action against the United States for injury or damage done or consummated on land by a vessel on navigable waters, chapter 309 [the Suits in Admiralty Act] or 311 [the Public Vessels Act] of this title, as appropriate, provides the exclusive remedy.” 46 U.S.C. § 30101(c)(1).

Invocation of admiralty jurisdiction under the Jones Act, the Public Vessels Act or Suits in Admiralty Act requires the involvement of a vessel. The SIAA applies when (1) a vessel is owned by the United States or operated on its behalf, and (2) there is a remedy cognizable in admiralty for the injury. Ali v. Rogers, 780 F.3d 1229, 1233 (9thCir. 2015). The PVA applies to “civil action[s] in personam in admiralty … for damages caused by a public vessel of the United States.” 46 U.S.C. § 31102(a)(1). For all sections of Title 46 of the United States Code, under which the Jones Act, the PVA and SIAA falls, the term vessel is given the same meaning given at 1 U.S.C. § 3. See Stewart v. Dutra Construction, 543 U.S. 481, 496 (2005); In re Mission Bay Jet Sports, LLC, 570 F.3d 1124, 1127 (9th Cir. 2009). Section 3 provides that “the word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. §3. For purposes of determining seaman status under the LHWCA the expansive definition of “vessel” in 1 U.S.C. §3 must also be used. Stewart, 543 U.S. 496.

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Notably, “a watercraft need not be in motion to qualify as a vessel under §3.” Stewart, 543 U.S. 495. Although the Supreme Court has used the phrase “vessel in navigation,” the Court “did not mean that the ‘in navigation’ requirement stood apart from § 3, such that a ‘vessel’ for purposes of § 3 might nevertheless not be a ‘vessel in navigation . . . .’” Id. at 496. “[T]he ‘in navigation’ requirement is an element of the vessel status of a watercraft . . . . The question remains in all cases whether the watercraft’s use ‘as a means of transportation on water’ is a practical possibility or merely a theoretical one.” Id. See Crawford v. Electric Boat Corp., 515 F.Supp.2d 282, 289-291 (D.C. Conn. 2007) (“Although Macklin-Ducre indicated that a vessel undergoing sea trials was not a ‘vessel in navigation,’ the court believes that, in light of Stewart, this is not necessarily so because a vessel at sea performing final sea trials is not only capable of, but was actually being used for, maritime transportation.”).

Third-party Defendant argues that the Coronado was still under construction at the time of the alleged incident and was not a completed “vessel” and/or a “vessel in navigation” for Title 46 purposes. Both the FAC and TPC refer to the Coronado as a public vessel, and the FAC alleges that the incident in question occurred while the Coronado was on navigable waters. These allegations are sufficient to infer that the Coronado was “capable of being used for maritime transportation,” and therefore qualifies as a vessel for pleading purposes.

2. The Suits in Admiralty Act and the Public Vessels Act Claims

Third-party Defendant argues that the Suits in Admiralty Act and Public Vessels Act do not apply because Plaintiff’s tort claims arose solely in the process of new ship construction and therefore lack the “maritime flavor” sufficient to invoke federal admiralty jurisdiction.

“To create a maritime tort, the incident must have occurred on navigable waters and have a maritime flavor.” Christensen v. Georgia-Pacific Corp., 279 F.3d 807, 814 (9th Cir. 2002). For tort claims, courts use two tests to determine if the tort has the requisite “maritime flavor” for federal admiralty jurisdiction to be available. Ali, 780 F.3d 1229,

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1236 (9thCir. 2015). Under the first test, called the “location test,” the tort must have occurred on navigable waters (or a vessel on navigable water having caused the injury on land). Id. Under the second test, called the “connection test,” the tort must have (a) “a potentially disruptive impact on maritime commerce,” and (b) a “substantial relationship to traditional maritime activity.” Id. (quoting Jerome B. Grubart, Inc., 513 U.S. at 534).

In support of the argument that tort claims arising solely in the process of new ship construction lack the “maritime flavor” sufficient to invoke federal admiralty jurisdiction, Third-party Defendant rely on Owens-Illinois, Inc. v. United States Dist. Court for Western Dist., 698 F.2d 967 (9th Cir. 1983) and interpret the case as setting a bright line rule. Third-party Defendant’s reliance is misplaced. First, Owens was not decided on a Rule 12(b) motion to dismiss. Second, in Owens, the court focused on the second prong of the connection test and held that tort claims arising out of exposure to asbestos products during construction of ships on navigable waters did not satisfy the maritime relationship requirement of admiralty jurisdiction. Id. The court indicated that four factors must be considered in determining whether an alleged tort bears such a relationship “(1) traditional concepts of the role of admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injuries suffered.” Id. at 970. Noting the traditional distinction in admiralty between construction and repair contracts, the court determined that exposure to asbestos products during the construction of ships lacked the “maritime flavor” necessary to invoke admiralty jurisdiction. Id.

Here, the FAC alleges that Plaintiff’s injuries occurred on the Coronado while it was on navigable waters in Mobile, Alabama. [FAC ¶ 11.] Third-party Defendant does not dispute this allegation. Accordingly, because Plaintiff’s injuries (and the alleged torts that caused them) occurred on navigable waters, the location test regarding the maritime flavor test is satisfied. The connection test is also satisfied. The incident in question involves a seaman and member of the crew being injured on the deck of a Navy ship while picking up and moving lifts with three members of the Navy. An injury suffered by a seaman

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working on a Navy ship has a substantial relationship to maritime activity. Ali, 780 F.3d at 1236 (noting that work as a seaman is one of the most basic maritime activities). Moreover, because Plaintiff’s injury could have potentially disrupted the Coronado’s activities, the incident had a potentially disruptive impact on maritime commerce. See Gruver v. Lesman Fisheries, Inc., 489 F.3d 978, 982-83 (9th Cir. 2007) (finding that depriving a vessel of a deck-hand could have detrimental effects on maritime commerce). Accordingly, both parts of the connection test are present here.

For the reasons described above, and inferring for pleading purposes that the Coronado is a vessel, Plaintiff’s claims have the requisite maritime flavor to invoke admiralty jurisdiction under the Suits in Admiralty Act and the Public Vessels Act.

3. The Jones Act Claim

Next, Third-party Defendant second argues that the Jones Act is not applicable because Plaintiff was not a “seaman” at the time of his injuries.

The Jones Act permits a seaman to sue his employer for personal injuries suffered in the course of employment. 46 U.S.C. § 30104. “[A] seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).

Third-party Defendant contends that Plaintiff cannot be a seaman because the Jones Act requires a watercraft to be “in navigation,” and the Coronado was still under construction at the time of the alleged injury. But whether or not a vessel is “in navigation” is a fact-intensive question that is normally for the jury and not the court to decide. Chandris, 514 U.S. at 373.

Applying the expansive definition of “vessel” discussed above, the Court finds that the allegations in the FAC and TPC are sufficient to infer that the Coronado was “capable of being used for maritime transportation,” and therefore satisfies the “in navigation” requirement as to Plaintiff’s status as a seaman at the time of his injuries. Whether Plaintiff or the United States will be able to prove that he was a seaman is best left for summary

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judgment or a jury because that determination requires review of “the total circumstances of an individual’s employment . . . to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon.” Id. at 370 (quoting Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (1984)). Such an analysis is not appropriate at the pleading stage.

4. Whether the Exclusivity Provision of the Suits in Admiralty Act Applies

Finally, Third-party Defendant asserts that the exclusivity provision of the Suits in Admiralty Act (“SIAA”) precludes it from being sued because it was acting as an “agent” of the United States. A maritime action may be maintained against the United States only under the SIAA. T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855, 856 (9thCir. 1974). In such circumstances, the SIAA waives the United States’ sovereign immunity and provides seamen who are injured aboard a vessel of the United States with a cause of action against the United States, even if the vessel is operated by a private entity. 46 U.S.C. §§ 30903, 31102.

As discussed above, the FAC and TPC provide sufficient allegations to infer that the Coronado was a vessel “capable of being used as a means of transportation” therefore satisfying the vessel requirement of the SIAA.

The SIAA exclusivity provision of Section 30904 provides “[i]f a remedy is provided by this chapter, it shall be exclusive of any other action arising out of the same subject matter against the officer, employee, or agent of the United States, or the federally-owned corporation whose act or omission gave rise to the claim.” Id. “Where a remedy lies against the United States, a suit against an agent of the United States ‘by reason of the same subject matter’ is precluded.” Dearborn v. Mar. Ship Operations, Inc., 113 F.3d 995, 996 (9thCir. 1997).

An agent is one who “act[s] on the principal’s behalf and subject to the principal’s control.” Restatement (Second) Agency § 1(1) (1958). Two characteristics must be present to establish agency: first, the principal must exercise significant control over the

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agent’s activities, and, second the agent must be engaged in conducting the business of the principal. Dearborn 113 F.3d 997-998. “[A]n independent contractor . . . may be an agent” in limited circumstances in which he acts “subject to the principal’s overall control and direction.” Id. at n.3.

Here, the agency status of Third-party Defendant is disputed. The United States has alleged that it entered into a contract with Bath Iron Works to perform new construction and repair work related to Coronado for the United States Navy. [TPC at ¶7.] The United States has also alleged that, at various times, including on and prior to November 25, 2013, Third-party Defendant was a subcontractor to Bath Iron Works for certain ship build, repair and alteration work aboard the Coronado. [TPC at ¶6.] The TPC specifically alleges that Third-party Defendant was not an “agent” of the United States pursuant to the exclusivity provision of the SIAA. [TPC ¶8.] Furthermore, the TPC refers to Third-party Defendant as a subcontractor, who was obligated to the United States to exercise due and proper care in the performance of its services and to perform its services safely and properly. [TPC ¶3].

For purposes of a motion to dismiss, the Court accepts as true the factual allegations of the TPC that Third-party Defendant was acting as a subcontractor to Bath Iron Works and was not an agent of the United States. Accordingly, the court finds that a suit against Third-party Defendant is not precluded by the SIAA.

III. Motion to Transfer Venue A. Legal Standard

A district court has discretion to transfer an action to another venue “for the convenience of the parties and witnesses and in the interest of justice.” 28 U.S.C. § 1404(a). The purpose of Section 1404(a) is to “prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barraack, 376 U.S. 612, 616 (1964) (internal citations and quotation marks omitted). A motion for transfer lies within the broad discretion of the district court and must be determined on a case-by-case basis. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9thCir. 2000).

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A movant must establish that venue is proper in the transferor district; that the transferee district is one where the action might have originally been brought; and that transfer will serve the convenience of the parties and witnesses and will promote the interests of justice.” Vu v. Ortho–McNeil Pharm., Inc., 602 F.Supp.2d 1151, 1155–56 (N.D. Cal. 2009) (quoting Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503, 506 (C.D. Cal.1992)).

Once it is established that venue is proper in both districts a motion to transfer venue under Section 1404(a) requires the court to determine whether transfer is appropriate. Jones, 211 F.3d at 498-99.

B. Discussion.

Plaintiff brought suit in the Southern District of California pursuant to multiple maritime and admiralty acts. Third-party Defendant moves to transfer the action to the Southern District of Alabama on the grounds that it would be more convenient for the parties and witnesses.

Third-party Defendant has the burden of establishing that venue is proper in the Southern District of California and that this action could have been brought in the Southern District of Alabama. Vu, 602 F.Supp.2d at 1155–56. Third-party Defendant has not satisfied these requirements. The Savings to Suitors Act gives general admiralty jurisdiction to the district courts. 28 U.S.C. §1333. The Public Vessels Act states “a civil action under this chapter shall be brought in the district court of the United States for the district in which the vessel or cargo is found within the United States. 46 U.S.C. §31103. In contrast, the SIAA provides a choice of venue as being in any district in which “(1) any plaintiff resides or has its principal place of business; or (2) the vessel or cargo is found.” 46 U.S.C. §30906.

Courts have held that when an action is cognizable under both the PVA and the SIAA and the relevant portions of the two acts are inconsistent, the more restrictive provisions of the PVA control. See Ali, 780 F.3d at 1235 (the PVA makes all claims subject to the SIAA except to the extent to which the two are inconsistent); Gaines v. U.S, No.

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Civ.CCB-04-0055, 2004 WL 3007091, at *1 (D. Md. Aug. 9, 2004) (for claims involving public vessels the terms of the PVA control); United States v. United Cont’l Tuna Corp., 425 U.S. 164, 181 (1976) (holding that claims within scope of the PVA remain subject to its terms notwithstanding amendments to the SIAA).

Plaintiff has alleged he suffered injuries on the Coronado, a public vessel of the United States. Venue is proper in the Southern District of California because, at the time of the filing of this suit, the Coronado was located in territorial waters within the Southern District of California. [FAC ¶ 2.] Because the Southern District of California provides the sole venue for Plaintiff’s PVA claim, the Court declines to address whether the transfer would otherwise be appropriate.

IV. Conclusion

For the reasons discussed above, Third-party Defendant’s motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is DENIED. Third-party Defendant’s alternative motion to transfer venue to the United States District Court for the Southern District of Alabama under 28 U.S.C §1404(a) is also DENIED.

IT IS SO ORDERED.

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