MARMAC, LLC v. InterMoor, Inc.
| Decision Date | 14 October 2021 |
| Docket Number | CIVIL ACTION NO. 21-115 |
| Citation | 566 F.Supp.3d 559 |
| Parties | MARMAC, LLC, Plaintiff v. INTERMOOR, INC., et al., Defendants |
| Court | U.S. District Court — Eastern District of Louisiana |
David Boies Sharpe, James Wesley Thurman, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Plaintiff.
Michael J. Wray, Cade W. White, Pro Hac Vice, Glenn R. Legge, Pro Hac Vice, Holman Fenwick Willan USA, LLP, Houston, TX, for Defendant InterMoor, Inc.
Joseph L. Spilman, III, Lawrence Pugh, III, Pugh, Accardo, LLC, Peyton C. Lambert, Locke Lord, New Orleans, LA, Earl S. Adams, Jr., Pro Hac Vice, Saul Ewing Arnstein & Lehr LLP, Toyja E. Kelley, Sr., Pro Hac Vice, Locke Lord, LLP, Washington, DC, Sunu M. Pillai, Pro Hac Vice, Saul Ewing Arnstein & Lehr, LLP, Pittsburgh, PA, for Defendant US Wind Inc.
SECTION "E"
ORDER AND REASONS
Before the Court is a Motion to Dismiss Plaintiff's Claims, or in the Alternative, Motion to Transfer filed by Defendant the Met Mast Tower, and its appurtenances, in rem (the "Met Mast").1 Also before the Court is Defendant US Wind Inc.’s ("US Wind") Motion to Dismiss Plaintiff's Claims and Cross-Claimant's Claims, or in the Alternative, Motion to Transfer.2 Plaintiff MARMAC, LLC, d/b/a McDonough Marine Services, ("MARMAC") filed a consolidated opposition to both motions.3 Defendant/Cross-Claimant InterMoor, Inc. ("InterMoor") filed an opposition to US Wind's motion.4 With leave of Court, the Met Mast and US Wind filed a joint supplemental memorandum in support of their motions.5 MARMAC filed a supplemental opposition to both motions.6 The Met Mast and US Wind filed a joint reply to MARMAC's supplemental opposition.7 The Court heard oral argument on both motions on September 28, 2021.8 The Court has considered the briefs, the record, and the applicable law, and now issues its ruling.
This case stems from the failed transportation of the Met Mast from Houma, Louisiana, to waters off the coast of Ocean City, Maryland, and the failed installation of the Met Mast at a wind farm there.10 This endeavor has resulted in several lawsuits in different jurisdictions across the United States. In 2014, Defendant US Wind obtained leases to the Maryland Wind Energy Area off the coast of Ocean City, Maryland (the "wind farm").11 US Wind commissioned the construction of a meteorological mast, the in rem Defendant Met Mast, in Houma, Louisiana, which US Wind planned to use at the wind farm to measure wind and other environmental conditions offshore.12 US Wind hired Defendant/Cross-Claimant InterMoor to serve as the prime contractor for the transportation of the Met Mast from Louisiana to the wind farm and its subsequent installation.13 InterMoor, in turn, entered into a time charter with Plaintiff MARMAC for use of the barge MARMAC 261 (the "Barge") to transport the Met Mast to the wind farm.14 The charter between MARMAC and InterMoor consists of a Universal Blanket Time Charter Agreement, dated February 7, 2012, and a Time Charter Order for this specific voyage, dated July 31, 2019 (collectively, the "Barge Charter").
By early September 2019, the Barge carrying the Met Mast reached the staging site at the wind farm, but weather forced several delays of its installation.15 Ultimately, on September 26, 2019, US Wind attempted to terminate its contract with InterMoor.16 That same day, US Wind requested that InterMoor deposit the Met Mast at US Wind's facility in Baltimore, Maryland.17 US Wind also contacted MARMAC seeking to charter the Barge to transport the Met Mast to the facility in Baltimore, but MARMAC responded that the Barge was chartered to InterMoor and that US Wind should contact InterMoor about the cargo.18 After failed negotiations, InterMoor directed the Barge to return to Louisiana with the Met Mast still on board.19
While en route to Louisiana, the Barge docked in Morehead City, North Carolina, to avoid inclement weather.20 On October 9, 2019, US Wind commenced a possessory action under Rule D of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (the "Supplemental Rules") in the United States District Court for the Eastern District of North Carolina.21 On October 10, 2019, the North Carolina court arrested the Met Mast while it was still on board the Barge, effectively arresting the Barge.22 InterMoor intervened in the action to attach the Met Mast under Supplemental Rule B as security for a breach of contract action against US Wind.23 On January 29, 2020, the court approved a special bond by US Wind to secure the release of the Met Mast, and ordered US Wind and InterMoor to split the custodia legis costs for the 111 days the Met Mast was arrested and attached, including MARMAC's daily charter.24 MARMAC alleges InterMoor paid its portion of MARMAC's charter for that period, but US Wind has only paid half of its portion.25
In the meantime, on October 11, 2019, US Wind filed a separate breach of contract action against InterMoor in the United States District Court for the District of Maryland.26 InterMoor filed a counterclaim against US Wind for breach of contract in that action.27 Once the Met Mast was released from arrest and attachment in North Carolina, the Eastern District of North Carolina transferred its case, along with the special bond, to the District of Maryland.28 The transferred case is stayed pending the resolution of the original Maryland breach of contract suit filed by US Wind.29 InterMoor filed its own breach of contract suit against US Wind in the United States District Court for the Southern District of Texas on October 3, 2019.30 On January 23, 2020, the Texas court dismissed InterMoor's claims without prejudice for lack of personal jurisdiction over US Wind.31 MARMAC is not a party to any of these three suits.32
After the Met Mast was released from arrest and attachment in North Carolina, InterMoor attempted to terminate the Barge Charter with MARMAC and ceased charter payments; however, MARMAC alleges charter continued to be due until the Barge was properly redelivered to MARMAC in Louisiana free of the Met Mast.33 MARMAC alleges US Wind refused to remove the Met Mast in North Carolina or arrange for towage of the Barge so the Met Mast could be removed elsewhere.34 Because of InterMoor's and US Wind's inaction, MARMAC alleges it hired a tug to return its Barge to Louisiana, still laden with the Met Mast.35 Once the Barge returned to Louisiana, MARMAC paid to have the Met Mast unloaded and stored onshore.36 MARMAC finally received the Barge free of the Met Mast on August 13, 2020.37
MARMAC filed this suit on January 20, 2021. MARMAC sues InterMoor in personam for breach of contract seeking unpaid charter from January 30, 2020, the day after InterMoor paid its portion of the North Carolina custodia legis and ceased payments, to August 13, 2020, the day MARMAC received the Barge free of the Met Mast.38 MARMAC sues the Met Mast in rem to enforce its maritime lien for maritime trespass, alleging US Wind failed to retake possession of the Met Mast, depriving MARMAC of the Barge's services while the Met Mast was on board.39 This Court arrested the Met Mast under Supplemental Rule C on January 21, 2021,40 and US Wind filed a statement of interest on February 9, 2021, to defend and seek restitution of its property.41 Finally, MARMAC sues US Wind quasi in rem for maritime trespass for failing to remove the Met Mast from the Barge and for unjust enrichment for forcing MARMAC to pay for the Met Mast's storage until it was removed.42 MARMAC also seeks the unpaid custodia legis expenses the Eastern District of North Carolina charged to US Wind.43 This Court attached the Met Mast under Supplemental Rule B on January 21, 2021,44 and approved a special bond of $1,000,000, on June 21, 2021, releasing the Met Mast from arrest and attachment.45 The Met Mast remains in storage, at MARMAC's expense.
InterMoor filed a crossclaim against US Wind for breach of contract.46 InterMoor's crossclaim is identical to its counterclaim in the active Maryland case. The Met Mast has filed a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), improper venue under Rule 12(b)(3), and failure to state a claim under Rule 12(b)(6).47 Alternatively, the Met Mast asks the Court to transfer this case to the District of Maryland.48 US Wind has filed a motion to dismiss MARMAC's claims against it and InterMoor's crossclaim against it for lack of personal jurisdiction under Rule 12(b)(2) and improper venue under Rule 12(b)(3).49 Alternatively, US Wind asks the Court to transfer this case to the District of Maryland.50
The Met Mast and US Wind object to the Court's exercise of in rem and quasi in rem jurisdiction over them, respectively.51 The Met Mast argues the exercise of in rem jurisdiction is improper under the due process clause because it never availed itself of the benefits of this forum; rather, InterMoor and MARMAC took the Met mast to Louisiana against US Wind's instructions to deposit it in Baltimore. The Met Mast also argues the posting of the special bond in the Eastern District of North Carolina bars MARMAC's claims in this Court. Similarly, US Wind argues the exercise of quasi in rem jurisdiction is improper under the due process clause because it never availed itself of the benefits of this forum since the Met Mast was taken to Louisiana contrary to its instructions.
A person claiming an interest in property arrested or attached usually challenges the validity of the arrest or attachment though a motion to vacate under Supplemental Admiralty Rule E(4)(f).52 Nevertheless, parties may assert similar attacks on arrest and attachment under Rule 12.53 While there are differences between Rule 12 motions to dismiss and Supplemental Rule E(4)(f) motions to vacate, a Rule 12(b)(2) motion c...
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