United States District Court, E.D. New York
IN THE MATTER OF THE COMPLAINT OF WITTICH BROS. MARINE, INC., as Owner and Operator of the Tug SEA BEAR, for Exoneration from or Limitation of Liability, Petitioner.
MAHONEY & KEANE, LLP BY: Edward A. Keane, Esq. Garth S.
Wolfson, Esq. Attorneys for Petitioner.
HOFFMANN & SCHWEITZER BY: Paul T. Hoffmann, Esq.
Attorneys for Claimant
MEMORANDUM AND ORDER
LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's motion for a judgment on the
pleadings, pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. The Claimant-in-Intervention opposes the
motion in its entirety. For the following reasons,
Petitioner's motion is granted in part and denied in
Wittich Bros. Marine, Inc. ("Petitioner" or
"Wittich Bros."), is the owner and operator of the
vessel at issue herein, the tug Sea Bear (the "Tug"
or "Sea Bear"). On or about March 14, 2015, the Tug
and a crew of four departed from a dredge site west of
Moriches, New York, to return to Petitioner's office in
Bayonne, New Jersey. (Petition ¶ 4.) Donald Maloney was
one of the crew members present on the Tug that day.
(Id. ¶ 8.) Some time during the trip to New
Jersey, the Tug sank in approximately forty-six feet of water
about three-quarters of a mile south of Fire Island Pines.
(Id. ¶ 4, 7.) While the United States Coast
Guard recovered the Tug's four crew members, all of whom
had abandoned the vessel, Donald Maloney
("Maloney") was deceased when his body was located.
(Id. ¶ 8.)
September 9, 2015, Petitioner filed the within limitation of
liability action. On January 9, 2017, the
Claimant-in-Intervention, Carolyn Badke ("Badke" or
"Claimant") Maloney's ex-wife - filed an Answer
and Claim as the Personal Representative of the Estate and
Beneficiaries of Donald Maloney. Badke asserts that Maloney
drowned to death due to the negligence of Petitioner and the
unseaworthiness of the Sea Bear. (Badke Aff. ¶ 2;
Claim-in-Intervention ¶¶ 36-38.)
time of Maloney's death, his only beneficiary was his
daughter with Badke, Corrine Maloney ("Corrine").
(Badke Aff. ¶¶ 1, 7.) On June 15, 2015, Corrine was
appointed personal representative and Administrator of
Maloney's estate. ( Id. ¶ 7; Hoffmann Aff.,
Ex. 5.) Corrine passed away in an automobile accident on
September 3, 2015, prior to commencing any action with
respect to Maloney's death. (Badke Aff. ¶ 8;
Hoffmann Aff., Ex. 6.)
on October 7, 2015, Badke was granted Letters of Limited
Administration with respect to Corrine's estate, which
included the authority to prosecute, settle and defend any
claim or cause of action arising from Maloney's death.
(Badke Aff. ¶ 11; Hoffmann Aff., Ex. 7.) On April 20,
2016, Badke was also appointed Administrator of Maloney's
estate. (Badke Aff. ¶ 13; Hoffmann Aff., Ex. 8.) Badke
then filed the Claim-in-Intervention herein, asserting
negligence and unseaworthiness claims with respect to
Maloney's death on behalf of Corrine's estate. Badke
brings her claims under both the Jones Act, 46 U.S.C. §
688, and the general maritime law. Petitioner now seeks to
dismiss all of Badke's claims.
evaluating a motion for a judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c), the court employs
the same standard as that for a motion to dismiss under Rule
12(b)(6). See Troni v. Holder, No. 09 Civ. 10239,
2010 U.S. Dist. LEXIS 79670, at *4-5 (S.D.N.Y. July 29, 2010)
(citing Patel v. Contemporary Classics. 259 F.3d
123, 126 (2d Cir. 2001)); Astrazeneca AB v. Apotex
Corp., No. 01 Civ. 9351, 2010 U.S. Dist. LEXIS 58044, at
*9 (S.D.N.Y. June 8, 2010) (citing Irish Lesbian &
Gav Ore, v. Guiliani, 143 F.3d 638, 644 (2d Cir. 1998)).
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
668 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). "Facial plausibility" is
achieved when the "the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal. 556 U.S. at 668 (citing Twombly, 550
U.S. at 556). As a general rule, the court is required to
accept as true all of the allegations contained in the
complaint, see Iqbal. 556 U.S. at 678; Kassner
v. 2nd Ave. Delicatessen. Inc., 496 F.3d 229, 237 (2d
Cir. 2007), and to "draw all reasonable inferences in
the plaintiffs favor." Troni, 2010 U.S. Dist.
LEXIS 79670, at *5 (quoting In re NYSE Specialists Sec.
Litig., 503 F.3d 89, 95 (2d Cir. 2007)).
on the pleadings is appropriate where material facts are
undisputed and where a judgment on the merits is possible
merely by considering the contents of the pleadings."
FDIC v. M/V "Ville D'Aquarius", No. 08
Civ. 8997, 2009 U.S. Dist. LEXIS 97349, at *8 (S.D.N.Y. Oct.
20, 2009) (quoting Sellers v. M.C. Floor Crafters
Inc., 842 F.2d 639, 642 (2d Cir. 1988)). Although the
court is generally limited to the facts alleged in the
complaint when determining a Rule 12(c) motion, the court may
also refer "to documents attached to the complaint as an
exhibit or incorporated in it by reference, to matters of
which judicial notice may be taken, or to documents either in
plaintiff['s] possession or of which plaintiff had
knowledge and relied on in bringing suit." Brass v.
Am. Film Tech.. Inc.. 987 F.2d 142, 150 (2d Cir. 1993)