In re Steinle

• Decision Date: 12 December 2011
• Docket Number: Case No. 3:08 CV 2934.
• Citation: 835 F.Supp.2d 437
• Parties: In re Phil STEINLE, Jr., Owner of a 41' Formula, Hull, etc.
• Court: U.S. District Court — Northern District of Ohio

835 F.Supp.2d 437

In re Phil STEINLE, Jr., Owner of a 41' Formula, Hull, etc.

Case No. 3:08 CV 2934.

United States District Court,

N.D. Ohio,

Western Division.

Dec. 12, 2011.

Michael J. Manahan, Kate E. Schuyler, Rohrbachers Cron Manahan, Toledo, OH, David M. Spotts, Ashtabula, OH, for Petitioner.

Robert E. Kelly, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter derives from the June 15, 2008 collision between two recreational vessels in Sandusky Bay, Lake Erie. The collision, which occurred between the forty-one foot M/V Secret Formula (“the Secret Formula”), and the smaller, twenty-foot Sea Ray vessel, (“the Sea Ray”), resulted in the death of one passenger and personal injuries to others. In the aftermath of the collision, six separate lawsuits were filed, all of which were consolidated under the above-captioned matter. Included among the consolidated cases are the two actions sub judice: Miller v. United States, No. 10–cv–788, and Franklin v. United States, No. 10–cv–1199.

Currently pending before the Court is Defendants United States' and United States Coast Guard's (collectively, “the Government”) Fed. R. Civ. P. 12(b)(1) motion to dismiss the Miller Complaint and the Franklin Complaint for lack of subject matter jurisdiction. (Doc. 89). Also pending is the Government's Fed. R. Civ. P. 12(f) motion to strike Plaintiff Ashley Franklin's Supplemental Authority List, (Doc. 162), Plaintiff Ashley Franklin's request to file a revised Supplemental Authority List, (Doc. 163), and Plaintiffs' requests for oral argument. (Doc. 159; Doc. 160).

For the reasons stated herein, the Government's motion to dismiss is granted, the Government's motion to strike is granted, Plaintiff Ashley Franklin's request for leave to file a revised Supplemental Authority List is denied, and Plaintiffs' requests for oral argument are denied.¹

I. Background

On the night of June 14, 2008, Coast Guard Petty Officers Nicholas Hupp, Eric Heyob, and Gregory Penny were on board the Coast Guard patrol Boat CG 25725 in Sandusky Bay. The boat was under the command of Hupp, the coxswain, and was crewed by Heyob and Penny.

Shortly before midnight, the crew observed the Secret Formula exiting Sandusky Bay's Neuman Dock area without displaying all of the nighttime navigation lights that are mandatory under the Coast Guard's Inland Navigation Rules (“Inland Navigation Rules,” or “Rules”). While the Secret Formula displayed red and green side lights, it did not display the required 225–degree forward-facing white masthead light, or the 135–degree rear-facing white stern light. Consequently, the Coast Guard crew ordered the Secret Formula back to the dock for inspection. Petty Officer Heyob—a recently credentialed Boarding Officer—assumed the Boarding Officer role and led the inspection. Penny assisted Heyob as a boarding team member, and Hupp remained on the Coast Guard vessel and took no part in the inspection.

Upon boarding the Secret Formula, Heyob and Penny confirmed that neither the masthead nor the stern lights were illuminated. Heyob, in his role as Boarding Officer, informed the Secret Formula's owner, Phil Steinle, that he must find a replacement light or terminate his trip. Steinle then produced a battery powered, 360–degree “all-round” type white masthead light that was mounted on a two-to-three foot pole. Steinle also informed Heyob that he planned only to make the short trip back to the Venetian Marina, located approximately 2.25 miles away.

In determining how to handle the situation described above, Heyob testified that he drew on his Boarding Officer training, his knowledge of the Inland Navigation Rules, and on guidance provided by the Coast Guard's Boarding Officer Job Aid Kit (“BOJAK”) manual. (Doc. 89–2). Notably, for a vessel of the Secret Formula's length, (approximately 41 feet), Inland Navigation Rule 23 requires a forward-facing 225–degree masthead light, and a rear-facing 135–degree stern light. The Rules do not provide for a 360–degree “all-round” type light. Despite this, Heyob concluded that the 360–degree light would be a sufficient temporary correction so long as Steinle displayed the light and headed directly to the Venetian Marina. Heyob informed Steinle of these instructions, and Steinle responded that he did not have any questions. Heyob then provided Steinle with the appropriate paperwork indicating the required corrective actions, ended the inspection, and returned with Penny to the Coast Guard boat shortly after midnight. None of the Coast Guardsmen took any further action to verify that Steinle complied with Heyob's instructions.

The Secret Formula subsequently departed the Neuman Dock area. While en route to the Venetian Marina it collided with Kevin Lake's Sea Ray. Plaintiff Ashley Franklin, a passenger on the Sea Ray, sustained serious injuries as a result of the collision. Benjamin Miller, also a passenger on the Sea Ray, was thrown overboard and died.

On April 15, 2010, decedent Benjamin Miller's parents sued the Government for negligence pursuant to the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq. (“SAA”). See No. 10–cv–788. On May 27, 2010, Ashley Franklin filed a substantially identical Complaint, see No. 10–cv–1199,² and Plaintiffs' actions were consolidated with several other lawsuits into the instant matter. The Government filed a Fed. R. Civ. P. 12(b)(1) motion to dismiss the Millers' Complaint and Franklin's Complaint for lack of subject matter jurisdiction on April 4, 2011.

II. Standard of Review:

Fed. R. Civ.

P. 12(b)(1)

Motion to Dismiss

Generally, a Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matterjurisdiction falls into one of two categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994)cert. denied,513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994); see also Wenz v. Rossford Ohio Transp. Improvement Dist., 392 F.Supp.2d 931, 934 (N.D.Ohio 2005). A facial attack challenges the sufficiency of the pleading itself, and requires the Court to take all of the material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In contrast, a factual attack challenges the factual existence of subject matter jurisdiction, Ohio Hosp. Ass'n v. Shalala, 978 F.Supp. 735, 739 (N.D.Ohio 1997), and requires a court to “weigh the conflicting evidence to arrive at the factual predicate that subject-matter [jurisdiction] does or does not exist.” Gentek Bldg. Prods. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007). Both the Plaintiffs and the Government agree that the instant motion to dismiss involves a factual attack.

When assessing a factual attack on subject matter jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction, RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996), and “no presumptive truthfulness applies to the factual allegations....” Ritchie, 15 F.3d at 598 (internal citations omitted). Instead, “the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id.;see also RMI Titanium, 78 F.3d at 1135. Moreover, “a district court is to probe the facts and assess the validity of its own jurisdiction. In doing so, the Court has a wide discretion to consider affidavits and the documents outside the complaint, and may even conduct a limited evidentiary hearing if necessary.” Shalala, 978 F.Supp. at 739 (relying on Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)); see also Kroll v. United States, 58 F.3d 1087, 1090 (6th Cir.1995) (“The Court may examine evidence of its power to hear a case, and must make any factual findings to determine whether it has jurisdiction.”).

Despite their agreement that the Government's 12(b)(1) motion to dismiss involves a factual attack on subject matter jurisdiction, Plaintiffs' briefs argue that the appropriate standard of review is not as described above. Instead, Plaintiffs argue the appropriate standard of review is that of summary judgment. ( See Doc. 151 at 12; Doc. 152 at 7–8). Plaintiffs draw on three nonbinding cases from outside the Sixth Circuit to advance this proposition. Plaintiffs also cite a Western District of Michigan case that is likewise non-binding, and that applies the summary judgment standard in an apparent misinterpretation of the Sixth Circuit's Ohio National decision. See Gillett v. United States, 233 F.Supp.2d 874, 877 (W.D.Mich.2002) (citing Ohio Nat'l, 922 F.2d at 324) (applying summary judgment standard to 12(b)(1) factual attack). Contrary to the Gillett Court's conclusions, Ohio National discusses summary judgment only for purposes of distinguishing its res judicata effects from those of a 12(b)(1) factual attack on subject matter jurisdiction. See id. at 324–25 (confining preclusive effect of 12(b)(1) factual determinations to issues of jurisdiction, while extending preclusive effect of summary judgment factual determinations to the merits).

Plaintiffs also advocate for application of the summary judgment standard by citing a footnote in Ritchie, supra. The Ritchie footnote states that the Sixth Circuit distinguishes 12(b)(1) factual attacks from situations “in which the jurisdictional issue is so factually intertwined with the merits of the action as to require a ruling on the merits with a ruling on the jurisdictional issue. These are different situations requiring a different analysis.” 15 F.3d at 598 n. 5. Plaintiff's invocation of the Ritchie footnote is unavailing, as they fail to discern when the existence of such an entanglement compels courts to assume jurisdiction and apply the summary judgment standard. The Sixth Circuit's ruling in Gentek Bldg. Prods., supra, provides...