Murray v. AET Inc.

• Decision Date: 26 August 2022
• Docket Number: 21-CV-3360 (TMR)
• Parties: ERIN F. MURRAY AS EXECUTRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF TIMOTHY M. MURRAY, Plaintiff, v. AET INC. LTD., in personam and the MV EAGLE TURIN, in rem, Defendants.
• Court: U.S. District Court — Southern District of New York

ERIN F. MURRAY AS EXECUTRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF TIMOTHY M. MURRAY, Plaintiff, v. AET INC. LTD., in personam and the MV EAGLE TURIN, in rem, Defendants.

No. 21-CV-3360 (TMR)

United States District Court, S.D. New York

August 26, 2022

OPINION & ORDER

TIMOTHY M. REIF, JUDGE, United States Court of International Trade, Sitting by Designation:

Before the court is a motion by defendants AET INC. LTD. (“AET”) and MV EAGLE TURIN (“EAGLE TURIN” and together with AET “defendants”) to dismiss the amended complaint of Erin F. Murray (“plaintiff”) for failure to state a claim under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) and to strike plaintiff's jury demand under FRCP 38(e).^[1] Notice of Mot. Dismiss Am. Compl. and Strike Jury Demand at 1, ECF No. 19.

For the reasons that follow, the court grants in part and denies in part defendants' motion to dismiss and grants defendants' motion to strike plaintiff's jury demand.

BACKGROUND

Plaintiff is the widow, executrix and personal representative of the estate of Captain Timothy M. Murray (“decedent”) a professional sea pilot, who died after falling from a pilot ladder on the side of the EAGLE TURIN on August 5, 2020 (“Accident”), Verified Am. Compl. ¶¶ 5-7, ECF No. 14, at a distance of approximately seven nautical miles from the shore of New York, Affirmation of Thomas M. Canevari, Esq. Supp. Mot. Dismiss Am. Compl. and Strike Jury Demand (“Def. Affirmation”), Ex. H ECF No. 20-8; see also Def. Affirmation ¶ 9 ECF No. 20. Plaintiff does not specify this distance in the amended complaint. Instead, on July 16, 2021, defendants presented an exhibit that depicts data from the EAGLE TURIN and pilot boat AMERICA that indicates the approximate location of the Accident on National Oceanic and Atmospheric Administration (“NOAA”) charts. See Def. Affirmation, Ex. H; see also Def. Affirmation ¶ 9.

On September 14, 2021, plaintiff submitted an exhibit that consisted of a stipulation dated August 30, 2021 (“Stipulation”), in which the parties stipulated to and agreed: “The [A]ccident leading to death of Captain Timothy Murray occurred at a distance of approximately 7 nautical miles off the shore of New York at or near the Pilot Station as designated on the official NOAA Charts.” Aff. of Ralph J. Mellusi Supp. Opp'n to Mot. Dismiss Am. Compl. and Strike Jury Demand (“Pl. Aff.”), Ex. 1 ¶ 1, ECF No. 26-1. The court so ordered the Stipulation on August 26, 2022. Stipulation, Aug. 26, 2022, ECF No. 29. The court takes judicial notice of the location of the Accident pursuant to Federal Rule of Evidence 201(b)(2) based on the incontrovertible location data for the EAGLE TURIN and AMERICA during the time of the Accident plotted by defendants on NOAA charts filed as an exhibit in this court. See Def. Affirmation ¶ 9 and Ex. H.^[2],^[3] See generally Dixon v. von Blanckensee, 994 F.3d 95, 101-02 (2d Cir. 2021) (“When ruling on a Rule 12(b)(6) motion, [the court] may also consider ‘matters of which a court may take judicial notice.'” (quoting Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007))). The court also takes note that the parties agree on the location of the Accident, as stated in the Stipulation. See Stipulation ¶ 1.

On April 16, 2021, plaintiff filed the original complaint. Verified Compl., ECF No. 1. Following a motion to dismiss the complaint from defendants, the court ordered that an amended complaint be filed by June 28, 2021. Order, June 8, 2021, ECF No. 12; see Notice of Mot. Dismiss and Strike Jury Demand, ECF No. 9. On June 26, 2021, plaintiff filed the amended complaint. Verified Am. Compl., ECF No. 14.^[4]

In the amended complaint, plaintiff alleges that the Accident occurred “within the jurisdiction and territorial waters of the State of New York, and the United States of America.” Id. ¶ 4.

Plaintiff brings four causes of action in the amended complaint. Id. at 15-23.

First, under diversity jurisdiction, 28 U.S.C. § 1332, and alleging unseaworthiness and unseaworthiness per se, plaintiff asserts a cause of action for: (1) wrongful death under general maritime law, including Moragne v. States Marine Lines, 398 U.S. 375 (1970); (2) survival under general maritime law; (3) wrongful death under New York's wrongful death statute, N.Y. EST. POWERS & TRUSTS LAW (“EPTL”) § 5-4.1 (McKinney 2022); and (4) survival under New York law. Verified Am. Compl. at 15; id. ¶¶ 2, 80-94.^[5]

Second, under diversity jurisdiction, 28 U.S.C. § 1332, and alleging negligence and negligence per se, plaintiff asserts a cause of action for: (1) wrongful death under general maritime law, including Moragne; (2) survival under general maritime law; (3) wrongful death under EPTL § 5-4.1; and (4) survival under New York law. Verified Am. Compl. at 20; id. ¶¶ 2, 95-101.

Third, under 28 U.S.C. § 1333, plaintiff asserts a cause of action in the alternative for wrongful death, alleging negligence, negligence per se, unseaworthiness and unseaworthiness per se, under the Death on the High Seas Act (“DOHSA” or the “Act”).^[6] Id. ¶¶ 1-2, 102-08; see 46 U.S.C. §§ 30301-30308.

Fourth, under 28 U.S.C. § 1333 and DOHSA, plaintiff also brings an in rem cause of action against the EAGLE TURIN for wrongful death and survival based on a maritime lien, alleging negligence, negligence per se, unseaworthiness and unseaworthiness per se.^[7] Verified Am. Compl. at 22; id. ¶¶ 1, 109-112.

Plaintiff also asserts that the court has subject matter jurisdiction under 28 U.S.C. § 1332 and 28 U.S.C. § 1333 and DOHSA against AET and jurisdiction under 28 U.S.C. § 1333 and DOHSA against the EAGLE TURIN.^[8] Id. ¶ 1. In addition, plaintiff asserts that the court has supplemental jurisdiction under 28 U.S.C. § 1367 over the state law claims. Id.

Plaintiff asserts personal jurisdiction in rem over the EAGLE TURIN and in personam over AET based on the prior agreement by United Kingdom Mutual Steam Ship Assurance Association (Europe) Limited (the “Association”) to appear. Id. ¶ 3; see Pl. Aff., Ex. 2 [hereinafter Letter of Undertaking (“LOU”)].^[9] Plaintiff asserts further: “In addition, the cause of action arose within the territorial waters of New York.” Verified Am. Compl. ¶ 3.

Plaintiff also demands a trial by jury. Id. at 1.

Defendants argue that the court should dismiss the amended complaint and strike the jury demand. Def. Mem. Mem. L. Supp. Mot. Dismiss Pl.'s Am. Compl. and Strike Jury Trial Demand (“Def. Mem.”) at 3-4, ECF No. 21. Defendants present four main arguments in response to plaintiff's amended complaint:

(1) Defendants allege improper pleading of the state and general maritime law claims because defendants assert that plaintiff's only possible remedy is under DOHSA. Def. Mem. at 1, 3; see 46 U.S.C. §§ 30301-30308.

(2) In addition, defendants argue that the court should dismiss the DOHSA claim due to improper pleading. Def. Mem. at 3.

(3) Further, defendants allege that the court should dismiss the in rem claim due to a failure to designate the claims under admiralty jurisdiction as admiralty and maritime claims, a lack of invocation of FRCP Rule 9(h), a lack of “valid causes of action [for the in rem claim] to attach to,” and because in rem jurisdiction over the EAGLE TURIN is improper. Id. at 3-4, 19.

(4) Finally, defendants allege that plaintiff cannot obtain a trial by jury because plaintiff's only claim is under DOHSA and so must be brought in admiralty and, therefore, without a jury. Id. at 3, 21.

On September 14, 2021, plaintiff filed a memorandum in opposition to defendants' motion to dismiss. Mem. L. in Opp'n Mot. Dismiss (“Pl. Mem.”), ECF No. 26. On October 5, 2021, defendants filed a reply in support of the earlier motion. Reply Mem. L. Supp. Mot. Dismiss Pl.'s Am. Compl. and Strike Jury Trial Demand (“Def. Reply Mem.”), ECF No. 28.

LEGAL FRAMEWORK

Under FRCP 8(a), pleadings must contain “short and plain” statements of jurisdiction and entitlement to relief, as well as a demand for relief. “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Taken as true, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. Further, a claim must be “plausible” and provide more than “mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The court is to draw all reasonable inferences in favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).

In addition, FRCP 9(h) describes the circumstances under which a claim may be designated as an admiralty or maritime claim:

If a claim for relief is within the admiralty or maritime jurisdiction and also within the court's subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.

Fed. R. Civ. P. 9(h)(1) (emphasis supplied).

DISCUSSION

Defendants' motion to dismiss presents two main issues pertaining to DOHSA, 46 U.S.C. §§ 30301-30308. The first issue is whether DOHSA applies to the Accident that occurred seven miles from shore. See Stipulation ¶ 1. If DOHSA applies, the second...