Martin Operating P'ship v. United States
| Decision Date | 13 May 2014 |
| Docket Number | Civil Action No. 4:12–cv–3483. |
| Parties | MARTIN OPERATING PARTNERSHIP, Plaintiff v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Kuldeep S. Brar, Frederick William Mahley, Strasburger & Price LLP, Houston, TX, for Plaintiff.
Michael Wayne Kerns, U.S. D.O.J., Washington, DC, for Defendant.
Pending before the Court is Defendants', United States and United States Coast Guard's ("USCG") (collectively, "Defendants") Motion to Dismiss. (Instrument No. 25 ).
This is a claim for damages asserted under the Suits in Admiralty Act ("SAA"), 46 U.S.C. §§ 30901 –309181 and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346. Plaintiff Martin Operating Partnership, LP ("Martin" or "Plaintiff") is a Texas limited partnership that owns and operates a tank barge named the Ponciana which was scheduled to be inspected by the USCG on March 4, 2011, in Tampa, Florida. (Instrument No. 1 at 1, 3). Before the inspection, Martin requested that it be allowed to conduct a gas-free operation. The USCG denied Martin's request shortly before the operation and scheduled inspection. (Instrument No. 1 at 2–3). Martin alleges that the USCG imposed undue regulatory requirements on its barge, the Ponciana, causing damages in violation of the SAA and FTCA. (Instrument No. 1 at 1).
Martin is a Texas limited partnership that owns and operates a tank barge named the Ponciana. (Instrument No. 1 at 1). The Ponciana was scheduled to undergo a USCG inspection on March 4, 2011, in Tampa, Florida. (Instrument No. 1 at 3). In October of 2010, Martin notified the USCG that it intended to perform a gas-free operation on the Ponciana prior to its inspection. (Instrument No. 1 at 2). During the proposed operation, isobutene gas would be released from the Ponciana's tanks into the atmosphere through a flare system. (Instrument No. 1 at 2). Martin believed that the operation was necessary to ensure the safety of the USCG's inspectors during the Ponciana's upcoming inspection. (Instrument No. 1 at 2).
The USCG did not raise any concerns regarding the proposed gas-free operation, and consequently Martin proceeded with its plans. (Instrument No. 1 at 2). Martin obtained authorization from the Florida Environmental Protection Commission to conduct its gas-free operation at International Ship Repair's facility in Tampa. (Instrument No. 1 at 2–3). On February 26, 2011, the Ponciana embarked from Texas to Florida to conduct the gas-free operation and undergo the USCG inspection. (Instrument No. 1 at 3). On March 2, 2011, the USCG notified Martin that it could not conduct the gas-free operation, advising them that pursuant to 33 C.F.R. pt. 127, they were required to conduct the gas-free operation at a certified facility equipped to conduct operations involving the transfer of liquid hazardous gases. (Instrument No. 1 at 3). Martin informed the USCG that the operation would not involve a transfer of liquid hazardous gas. (Instrument No. 1 at 3). However, on March 4, 2011, the USCG issued a Captain of the Port Order ("COTPO") requiring Martin to conduct its gas-free operation at a certified facility. (Instrument No. 1 at 4).
In response to the COTPO, Martin arranged to conduct its gas-free operation at Sea–3, a certified facility in Florida. (Instrument No. 1 at 4). However, on March 7, 2011, the USCG notified Martin that it could not conduct its gas-free operation at Sea–3 because the flare system it intended to use during the operation had not been certified pursuant to 33 C.F.R. pt. 154. (Instrument No. 1 at 4). Martin and Sea–3 contacted the USCG to argue that the operation was safe and that 33 C.F.R. pt. 154 was inapplicable to this operation, but the USCG refused to retract its decision. (Instrument No. 1 at 4). Subsequently, on March 11, 2011, the USCG rescinded its COTPO, acknowledging that 33 C.F.R. pt. 127 was not applicable to the gas-free operation because it did not involve the transfer of liquid hazardous gases. (Instrument No. 1 at 5).
Martin sailed the Ponciana to Houston, Texas on March 11, 2011, where it conducted the gas-free operation. (Instrument No. 1 at 5). Subsequently, Martin sailed the Ponciana back to Tampa and on March 25, 2011, the USCG inspected the barge. (Instrument No. 1 at 5). On April 21, 2011, Martin formally appealed the USCG's decisions regarding its gas-free operation to the Captain of the Port for the USCG Sector St. Petersburg. (Instrument Nos. 1 at 5; 37–39 at 1). Martin alleges that on May 6, 2011, the Captain of the Port denied its appeal without an explanation. (Instrument No. 1 at 5). Martin appealed the Captain of the Port's decision to the Commander of the Seventh Coast Guard District, and that appeal was denied as moot on October 12, 2011. (Instrument No. 37–41 at 1).
On November 29, 2012, Martin filed suit against Defendants in the United States District Court for the Southern District of Texas pursuant to the Court's jurisdiction under 46 U.S.C. § 30906 and 28 U.S.C. § 1346. In its complaint, Martin alleges that Defendants imposed undue regulatory requirements on its barge the Ponciana causing Martin to suffer damages in violation of the SAA and the FTCA. (Instrument No. 1 at 1, 6). On February 11, 2013, Defendants filed a joint answer to Martin's complaint. (Instrument No. 9).
On February 18, 2014, Defendants filed this joint motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and Rule 12(h)(3) of the Federal Rules of Civil Procedure. (Instrument No. 25 at 1). Specifically, Defendants argue that Martin cannot show a private party analogue that creates a tort duty under state law, as required by the sovereign immunity waiver provisions of the FTCA and SAA. (Instrument No. 25–1 at 15–16, 22–23). Further, Defendants argue that Martin's claims are barred by the discretionary function exception of the FTCA and SAA because the USCG used statutorily proscribed discretion in deciding whether to apply its regulations to Martin's operation. (Instrument No. 25–1 at 23). On March 31, 2014, Martin filed a response to Defendants' motion to dismiss arguing that there are private party analogues and that the discretionary function exception does not apply to its claims. (Instrument No. 37). On April 7, 2014, Defendants filed a joint reply in support of their motion to dismiss. (Instrument No. 42).
On April 11, 2014, Martin filed a motion for leave to file a sur-reply (Instrument No. 44) which the Court granted on April 22, 2014. (Instrument No. 47). On April 28, 2014, Martin filed a sur-reply. (Instrument No. 51). On the same day, Martin filed a supplemental response to Defendants' motion to dismiss. (Instrument No. 50).2
" ‘A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.’ " Home Builders Ass'n of Miss. Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996) ). A district court may dismiss an action for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure on any one of three separate bases: (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Ramming v. U.S., 281 F.3d 158, 161 (5th Cir.2001) (citing Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996) ). In examining a Rule 12(b)(1) motion, the Court is empowered to consider matters of fact which are in dispute. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Any uncontroverted facts in the complaint must, however, be accepted as true. See Gaubert v. United States, 885 F.2d 1284, 1285 (5th Cir.1989), rev'd on other grounds, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (citing Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) ). Moreover, the Court must construe the complaint broadly and liberally. See Gaubert, 885 F.2d at 1285 (citing Norton v. Larney, 266 U.S. 511, 45 S.Ct. 145, 69 L.Ed. 413 (1925) ). The burden of establishing subject matter jurisdiction rests with the party "seeking to assert federal jurisdiction." New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir.2008). "[T]here is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court." Coury v. Prot, 85 F.3d 244, 248 (5th Cir.1996).
"A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a ‘facial’ attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a ‘factual’ attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned." Bank v. Spark Energy Holdings LLC, 2013 WL 5724507 *3 (S.D.Tex. Oct. 18, 2013) (citing In re Blue Water Endeavors, LLC, 2011 WL 52525 *3 (Bankr.E.D.Tex. Jan.6, 2011) ). A facial attack occurs when a defendant asserts a 12(b)(1) motion to dismiss without attaching evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). In that instance, the Court must take the allegations in the complaint as true. Saraw P'ship v. United States, 67 F.3d 567, 569 (5th Cir.1995). A factual attack occurs when the defendant attaches evidence relevant to the issue of jurisdiction to its motion to dismiss. Spark Energy Holdings LLC, 2013 WL 5724507 at *3. In that instance, "no presumption of truthfulness attaches to the plaintiffs allegations, and the court is free to decide the merits of the jurisdictional dispute." Id.(citing Williamson, 645 F.2d at 413 ). "The [c]ourt's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment." Id.; Williamson, 645 F.2d at 412.
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