In re Complaint of Bertucci Contracting Co.
| Decision Date | 08 June 2012 |
| Docket Number | CIVIL ACTION NO: 12-664 c/w,CIVIL ACTION NO: 12-697 |
| Parties | IN THE MATTER OF THE COMPLAINT OF BERTUCCI CONTRACTING CO., LLC, AS OWNER OF THE M/V SHARON GAIL, FOR EXONERATION FROM OR LIMITATION OF LIABILITY This Document Applies to: ALL CASES |
| Court | U.S. District Court — Eastern District of Louisiana |
MAG. JUDGE KNOWLES
NASDI, LLC ("NASDI") and Bertucci Contracting Company, LLC ("Bertucci") (collectively, "Limitation Plaintiffs") have each filed Limitation Complaints under the Shipowner's Limitation of Liability Act ("Limitation Act" or "Act"), 46 U.S.C. §§ 30501, et. seq., which have been consolidated before this Section (collectively, "Limitation Actions"). Claimants-in-Limitation Daniel and Shirley Wagner, et al., (sometimes referred to as "Claimants/Movers" or simply "Claimants") presently move the Court for an order directing the Limitation Plaintiffs to amend their Complaints to specify which claims are subject to the Limitation Actions. Rec. Docs. 70, 73, 87. Additionally, and in the alternative, Claimants move to dismiss the Limitation Actions for lack of subject matter jurisdiction and/or because the Limitation Plaintiffs had privity and knowledge of the conditions giving rise to the complained-of harms. Id. Additionally, and in the alternative, Claimants request that the Court's previous ordersenjoining the prosecution of claims against the Limitation Plaintiffs be lifted or narrowed in scope. Id. Opposition and reply briefs were filed, Rec. Docs. 90, 91, 105, 107, and the matter was submitted without oral argument on May 23, 2012. For the reasons explained below, Claimants' motions are GRANTED IN PART and DENIED IN PART.
This controversy arises from an ongoing project in St. Tammany Parish, Louisiana, to recycle concrete recovered from the original Interstate 10 Twin Span Bridge ("Twin Spans"). The Twin Spans are a pair of parallel bridges that traverse the eastern portion of Lake Pontchartrain and connect the lake's southern (Orleans Parish) and northern (St. Tammany Parish) shores. In 2005, the Twin Spans were severely damaged by Hurricane Katrina. Although repairs were made, the State of Louisiana ("State")1 ultimately determined that new, more robust bridges should be built and the old Twin Spans demolished. The State further decided to use the concrete from the old Twin Spans in a variety of other projects, including shoreline protection in nearby Lake Borgne, creating an artificial reef in Lake Pontchartrain, and building a fishing pier in St. Tammany Parish.
Demolition and removal of the old Twin Spans commenced in May of 2011. As demolition progressed, tugboats and barges transported the removed concrete and other bridge materials from the lake to a "staging area." The staging area is a piece of undeveloped property just north of Lake Pontchartrain. A canal connects the staging area to the lake. On the opposite bank of the canal lie Lakeshore Estates Subdivision and other residential areas ("residential areas" or "residential properties"). At the staging area concrete is mechanically broken or crushed into smaller pieces, then sorted by size. Some of the broken concrete is then placed into metal, basket-like structures ("marine baskets"), which are transported by barge to Lake Borgne for use in shoreline protection.
The State contracted with several parties to complete this work, only two of which are relevant here. NASDI was contracted to demolish the old Twin Spans, transport concrete from the lake to the staging area, and conduct some of the concrete-breaking operations. Bertucci was similarly involved with transporting concrete to the staging area and conducting some of the breaking operations. Bertucci also assembled and transported the marine baskets for the shoreline protection project.
On January 17, 2012, four of the residents from the residential areas, who are also the Claimants/Movers here, brought an action in state court against NASDI, Bertucci, and other parties("State Action").2 The State Action asserts that the concrete crushing operation generates noise, dust, and vibrations sufficient to cause physical discomfort, annoyance, and/or damage to the residential areas nearby. See State Petition ¶¶ 30-32, 38, 52-53, 57-58, 65 . These claims generally sound in nuisance, although negligence and—in the case of dust landing on the residential properties—trespass are also asserted. The State Action also pleads trespass claims against the owners/operators of the vessels. Id. ¶¶ 45, 49, 53, 58. Claimants assert that some of the residential properties extend to the canal's midpoint. When the vessels navigate on the Claimants' side of the canal, they allegedly trespass on these properties.3 The State Action seeks preliminary and permanent injunctions, a declaratory judgment, class certification, and monetary damages. Most claims are brought under Louisiana law; however, it is also alleged that certain defendants (none of whom are the Limitation Plaintiffs) are liable for punitive damages under general maritime law. Id. ¶ 64.
On March 9 and March 14, respectively, Bertucci and NASDIfiled the instant Limitation Actions, seeking exoneration from or limitation of liability relative to the claims asserted in the State Action. See Rec. Doc. 1 ¶¶ 4-7; Rec. Doc. 32 ¶ XLVII. NASDI claims it is the owner pro hac vice and operator of one tugboat, two pushboats, and multiple barges, which it used to transport concrete to the staging area. See Rec. Doc. 32. Bertucci claims it is the owner and operator of the M/V SHARON GAIL, a tugboat used to move barges to and from the staging area. After the Limitation Actions were filed, the Court enjoined the prosecution of claims against the Limitation Plaintiffs, including the claims in the State Action. See 46 U.S.C. § 30511(c); Fed. R. Civ. P. Supp. Rule F(3). However, the State Action was not restrained as to the other defendants.
On March 18, 2012, Claimants filed an "Emergency Motion to Limit Stay, Lift Stay, and/or Set Preliminary Injunction Hearing." See Rec. Doc. 17. The Court denied this motion during a telephone conference with counsel held the next day. See Tr. of 3/19/12 Status Conf. p.24, Rec. Doc. 80; Minute Entry, Rec. Doc. 22. However, Claimants were not precluded from re-raising their arguments at a later time. Tr. of Status Conf. 3/19/12 p.24, Rec. Doc. 80. On April 23, 2012, Claimants formally answered and asserted claims in the Limitation Actions (other parties, who are not relevant here, also have filed claims in the Limitation Actions). Rec. Docs. 52, 53. On April 26 and May 14, 2012,Claimants filed the instant motions. Rec. Docs. 70, 73, 87.
Claimants' motions present several arguments. First, they move for a more definite statement under Rule 12(e), arguing that it is not possible to determine from the Complaints whether the Limitation Plaintiffs seek to limit liability—and by extension, enjoin proceedings outside the Limitation Action—as to all claims in the State Action or only those relating to vessel activity. Claimants urge that the Limitation Act applies only to vessels; therefore, the stay of proceedings should only relate to the claims focusing on vessel activity (i.e., the vessel trespass claims). Second, Claimants urge that admiralty jurisdiction is not present, and consequently, the Limitation Actions must be dismissed. Specifically, Claimants argue that the situs element of admiralty jurisdiction is not met because the canal is a private, as opposed to a public, waterway. Situs is also not met, Claimants contend, because damage took effect on land, as opposed to water. Claimants further argue that the requisite maritime nexus is lacking because the activity at issue is primarily land-based construction work, which is not a traditional maritime activity. Third, Claimants urge that the Limitation Plaintiffs should be deemed to have privity and knowledge that their operations were causing the complained-of harms, because any inspection would have revealed the alleged nuisances and violations of the applicable environmentallaws and local ordinances. Finally, Claimants assert that the Court's injunction restraining the State Action is overly broad and violates the Anti-Injunction Act, 28 U.S.C. § 2283.
Limitation Plaintiffs counter that the Court previously and correctly ruled on many of the issues raised in the instant motions, and therefore the motions should be denied under the law of the case doctrine. As to the request for a more definite statement, Limitation Plaintiffs argue that their complaints meet the pleading standards of Rule 8, as evidenced by the 100+ claimants that answered and asserted claims in the Limitation Actions. Limitation Plaintiffs also state that it is clear that they seek to restrain prosecution of all claims against them arising out of the Twin Spans project, particularly those brought in the State Action. As to the jurisdictional argument, Limitation Plaintiffs assert that whether a waterway is private or public has no bearing on admiralty jurisdiction. Furthermore, the Admiralty Extension Act, 46 U.S.C. § 30101, extends admiralty jurisdiction to injuries incurred on land that were caused by a vessel on navigable water. As to maritime nexus, they contend that the claims relating to vessel activity center around the daily transport and discharge of cargo, which are traditional maritime activities.4 As to privity and knowledge, Limitation Plaintiffs assert there arefactual issues that preclude resolution of this issue at this stage. Finally, as to Claimants' position that the stay should be lifted or modified, Limitation Plaintiffs counter that the Limitation Act requires the Court to stay all claims against the Plaintiffs.
As mentioned above, on March 19, 2012, the Court held a telephone conference with c...
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