Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Complaint of Wittich Bros. Marine, Inc.

United States District Court, E.D. New York

January 9, 2018

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



         Before 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 part.


         Petitioner, 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.)

         On 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.)

         At the 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.)

         Thereafter, 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.


          I. Legal Standard

         When 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)).

         "Judgment 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) (citation omitted).

         II. T ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.