Compagnie Maritime Marfret v. San Juan Bay Pilots, Civ. No. 03-1654 (PG).

Citation532 F.Supp.2d 369
Decision Date24 January 2008
Docket NumberCiv. No. 03-1654 (PG).
PartiesCOMPAGNIE MARITIME MARFRET; et al., Plaintiffs, v. SAN JUAN BAY PILOTS CORPORATION; et al., Defendants, The United States of America, Third Party Plaintiff v. WV Providence, her apparel, tackle, engines, appurtenances, etc., in rem, et al., Third Party Defendants.
CourtUnited States District Courts. 1st Circuit. District of Puerto Rico

Jorge F. Blasini-Gonzalez, Manolo T. Rodriguez-Bird, Jimenez, Graffam & Lausell, San Juan, PR, for Plaintiffs.

Michelle T. Delemarre, Joseph E. Kramek, U.S. Department of Justice, Civil Division, Aviation & Admiralty Litigation, Washington, DC, Miguel A. Fernandez-Torres, U.S. Attorney's Office, San Juan, PR, for U.S.A.

OPINION AND ORDER

JUAN M. PÉREZ-GIMÉNEZ, District Judge.

The above-captioned claim is an admiralty, action brought pursuant to the Suits in Admiralty Act ("SAA"), 46. U.S.C. § 30901 et seq., by plaintiffs Compagnie Maritime Marfret, Marseille Fret and the Underwriters Concerned (collectively "Plaintiffs"). Plaintiffs are the owners and operators of a vessel, and have sued the United States1 for the damages sustained by their vessel after it was grounded while entering the San Juan Harbor. According to Plaintiffs' allegations, the grounding was due to the failure of the United States: (1) to properly position and maintain the aids to navigation that marked the entrance to the San Juan Harbor; (2) adequately warn mariners about inaccuracies in the position of these aids to navigation in the Bar Channel; and (3) properly notify mariners of the changes in the configuration of San Juan Harbor's Bar Channel.2

Before the Court now is the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket No. 124), to which Plaintiffs responded in opposition (Docket No. 139). The United States timely filed a Reply to Plaintiffs' Opposition (Docket No. 142), and Plaintiffs filed a Sur-Reply thereto (Docket No. 145). In the motions before the Court, the parties dispute whether the United States' actions fall within the "discretionary function exception" to the United States' statutory waiver of sovereign immunity. After careful consideration of the briefs and the evidentiary materials filed in support of the parties' arguments, this Court concludes that the United States' Motion to Dismiss is due to be GRANTED.

I. STANDARD OF REVIEW

As an initial matter, we must determine the applicable standard of review, as it is also a matter in dispute among the parties. The United States argues that their request for dismissal pursuant to FED. R.CIV.P. 12(b)(1) should be considered a factual attack on the Court's subject matter jurisdiction, and thus, even though extrinsic materials have been submitted for the Court's consideration, the Court need not convert their motion to a motion for summary judgment. See Docket No. 124 at page 10, n. 5 (citing Dynamic Image Technologies, Inc. v. U.S., 221 F.3d 34, 37-38 (1st Cir.2000) (conversion principle in Rule 12(b) does not apply to motions to dismiss under Rule 12(b)(1); the court, without conversion, may consider extrinsic materials)). On the other hand, Plaintiffs contend that the United States' motion to dismiss should be treated as one for summary judgment under Fed.R.Civ.P. 56 because matters outside the pleadings have been submitted, and because the jurisdictional question in this case is intertwined with the merits of the case. Accordingly, Plaintiffs request that this Court apply the summary judgment standard, and view all evidence and make all inferences in the light most favorable to the non-moving party. See Docket No. 139 at pages 5-6. Nevertheless, the United States disagreed with Plaintiffs' argument in its reply asserting that the merits of this case involve navigation, whereas the issues raised in their motion to dismiss involve what they allege are "discretionary decisions related to federal waterway project design and management." See Docket No. 142 at pages 2-3. Let's see.

A claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court lacks statutory or constitutional power to adjudicate on the merits of the claim. See Roman v. Townsend, 48 F.Supp.2d 100, 101 (D.P.R. 1999). In effect, Rule 12(b)(1) is the proper vehicle for challenging a court's subject matter jurisdiction. Valentin v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Under this rule a variety of different types of challenges to the Court's subject matter jurisdiction may be asserted, among them those based on sovereign immunity, ripeness, mootness, and the existence of a federal question. Id. Rule 12(b)(1) motions may be considered as a "facial attack" or a "factual attack" on the allegations in the complaint. See Vazquez v. Puerto Rico Police Dept., No. 01-2465, 2005 WL 2406170, at *2 (D.P.R. September 29, 2005) (citing Mortensen v. First Federal. Say. and Loan Ass'n, 549 F.2d 884 (3rd Cir.1977)). "In a facial attack, a defendant argues that the plaintiff did not properly plead jurisdiction ... whereas a factual attack asserts that jurisdiction is lacking on the basis of facts outside of the pleadings." Rivera Torres v. Junta de Retiro Para Maestros, 502 F.Supp.2d 242, 247 n. 3 (D.P.R.2007) (internal quotation marks and citations omitted).

"Facial attacks on a complaint require the court merely to look and see if the, plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiffs] complaint are taken as true for purposes of the motion." Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir.2007) (internal quotation marks and citations omitted). However, when a factual attack is made, the court is not confined to the allegations in the complaint and can look beyond the pleadings to decide factual matters relating to jurisdiction. Rivera Torres, 502 F.Supp.2d at 247 n. 3 (internal citations omitted). When a motion to dismiss for lack of subject matter, jurisdiction under Fed.R.Civ.P. 12(b)(1) involves factual questions, the court must engage in a two-part inquiry. Torres-Negran, 504 F.3d at 162, First, the court must determine whether the relevant' facts, which would determine the court's jurisdiction, also implicate elements of the plaintiffs cause of action. Id. at 163 (citing Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997)). Where the court finds that "the jurisdictional issue and substantive claims are so intertwined the resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment." Torres-Negron, 504 F.3d at 162 (citing Autery v. United States, 424 F.3d 944, 956 (9th Cir.2005)). In this situation, the trial court should grant the motion to dismiss only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Torres-Negron, 504 F.3d at 162 (internal citations omitted). Therefore, "[i]f the plaintiff presents sufficient evidence to create a genuine dispute of material (jurisdictional) facts, then the case proceeds to trial, so that the factfinder can determine the facts, and the jurisdictional dispute will be reevaluated at that point." Id.

However, if the trial court determines that, the facts relevant to, the jurisdictional inquiry are not intertwined with the merits of the plaintiffs claim, the court must apply the second part of the applicable test, and "may proceed as it never"could under 12(b)(6) or [Federal Rule of Civil Procedure 56]." Id. (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Torres-Negron, 504 F.3d at 162. Thus, in cases like this one, then, where the defendant makes a 12(b)(1) motion to dismiss, the parties should submit evidence, much as they would for a summary judgment motion, and the court should determine whether the dispute implicates the merits of the plaintiffs claim. Id.

As will be discussed infra, the First Circuit has, held that the discretionary function exception has been implied into the SAA by analogy to the Federal Tort Claims Act ("FTCA"), 28 U.S.C §§ 1346(b), 2671-2680.3 See Limar Shipping Ltd. v. United States, 324 F.3d 1, 6-7 (citing Gercey v. United States, 540 F.2d 536 (1st Cir.1976)), According to the analysis utilized by sister courts, it is appropriate for cases under the FTCA to guide the application of the discretionary function exception under the SAA. See, e.g., McMellon v. United States, 387 F.3d 329, 349 (4th Cir.2004); Arkansas River Co. v. U.S., 947 F.Supp. 941 (D.C.Miss.1996) (analysis of discretionary function exception is same under both SAA and FTCA). In cases involving the discretionary function under the FTCA, a number of courts have held that the determination of whether the FTCA excludes the government's actions from its waiver of sovereign immunity involves both jurisdictional and merits issues. See Pringle v. U.S., 208 F.3d 1220, 1223 (10th Cir.2000) (citing Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997)).4

In recent cases where the United States' immunity from suit pursuant to the discretionary function exception under the SAA was at issue, the District Court for the Middle District of Florida has held that the United States' request for dismissal shall be reviewed under the more stringent summary judgment standard. See Capt. Chance, Inc. v. U.S., 506 F.Supp.2d 1196, 1200 n. 3 (M.D.Fla.2007) (motions shall be reviewed under summary judgment standard when motions address negligence of United States and comparative fault of Plaintiffs, and when...

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