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VOILLAT v. RED AND WHITE FLEET

United States District Court, N.D. California


March 18, 2004.

SERGE VOILLAT and SIMONE VOILLAT, individually and as successors-in-interest to LIONEL VOILLAT, Plaintiffs,
v.
RED AND WHITE FLEET, FISHERMAN'S WHARF BAY CRUISE CORPORATION d/b/a RED AND WHITE FLEET, GOLDEN GATE SCENIC STEAMSHIP CORPORATION, LON RICHARDS, LOU'S BLUE SNAX, INC., JOHNNY BRETT and KEITH O'REILLY, both individually and d/b/a "OBLIVION," "OBLIVIONSF," and/or "OBLIVIONSF.COM," SPECIALIZED SECURITY ENTERPRISES, WILLIAM O. MONAGHAN, and DOES 1-50, inclusive, Defendants

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

AMENDED MEMORANDUM AND ORDER Motion to Dismiss and to Strike
On October 26, 2002, plaintiffs' decedent, Lionel Voillat, died after allegedly being thrown overboard from the M/V Royal Prince ("Royal Prince") by defendant William O. Monaghan during a cruise in the San Francisco. Bay. On June 27, 2003, decedent's parents, plaintiffs Serge and Simone Voillat, brought this wrongful death and survival action against Red and White Fleet, Fisherman's Wharf Bay Cruise Corporation d/b/a Red and White Fleet (collectively "Red and White Fleet"), Golden Gate Steamship Corporation, Lon Richards, Lou's Blue Snax, Inc., Johnny Brett and Keith O'Reilly, individually Page 2 and d/b/a "Oblivion," OblivionSF," and "OblivionSF.com" (collectively "Oblivion"), Specialized Security Enterprises, William O. Monaghan, and Does 1-50. In substantial part, plaintiffs' complaint alleges that defendants, with the exception of Monaghan, were negligent in failing to adequately inspect, maintain, and repair the vessel; improperly operating the vessel; providing inadequate security on board; knowingly hiring individuals who inadequately performed their job functions and inadequately supervising those individuals; and serving alcohol to an obviously intoxicated passenger ("dram shop liability"). For these alleged violations, plaintiffs seek compensatory damages for prejudgment loss of wages, future loss of earning capacity, loss of support, loss of services and funeral expenses, and punitive damages.

This case is properly before this court pursuant to its admiralty jurisdition. See 28 U.S.C. § 1333. Now before the court is defendants' motion to dismiss the survival and dram shop liability claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to strike portions of plaintiffs' prayer for relief under Federal Rule of Civil Procedure 12(f). The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows.

 BACKGROUND *fn1

  On October 26, 2002, the Royal Prince set out for a cruise on the San Francisco. Bay. Defendants John Brett d/b/a Oblivion and Keith O'Reilly had chartered the Royal Prince on September 11, 2002, for the October 26, 2002, cruise. Defendants Red and White Fleet and Golden Gate Scenic Steamship Corporation owned, operated and maintained the Royal Prince. On the evening of the cruise, Lon Richards was the Royal Prince's master and skipper; Lou's Blue Snax served alcohol; and Specialized Security Enterprises provided security. Voillat purchased a ticket and attended the cruise. During the course of the cruise, Monaghan, a fellow passenger, allegedly threw Voillat overboard into the San Francisco. Bay. Voillat was pronounced dead on November 14, 2002. See Pls.' Offer of Proof and Conditional Request for Discovery, ¶ 7.

  On November 17, 2003, defendants Red and White Fleet, Golden Gate Scenic Steamship Corporation, and Lon Richards filed a motion to dismiss the survival action and the sixth claim for improper service of alcohol for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. Page 3 12(b)(6). Alternatively, defendants request the court to strike those portions of plaintiffs' prayer for relief relating to pre-death pain and suffering, lost future earning capacity and punitive damages. See Fed.R.Civ.P. 12(f). On November 21, 2003, Lou's Blue Snax, John Brett d/b/a Oblivion and Keith O'Reilly filed motions to join their co-defendants' motion to dismiss.

 LEGAL STANDARD

 1. Motion to Dismiss

  "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Gilligan v. Jamco. Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (internal quotation marks omitted). Such dismissal is only proper in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). A motion to dismiss will be denied unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Parks Sch. of Bus. Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); Fidelity Fin. Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in determining whether dismissal is proper without transforming the motion to one for summary judgment. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1997); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

 2. Motion to Strike

  Federal Rule of Civil Procedure 12(f) permits a court to strike from any pleading "any insufficient defense or any redundant, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Striking a portion of a pleading is a drastic remedy, and as such, it is a remedy to be used only when the interests of justice so require. See Augustus v. Bd. of Public Instruction, 306 F.2d 862, 868 (5th Cir. 1962). A motion to strike Page 4 may be used to strike a prayer for relief where the damages sought are not recoverable as a matter of law. See Tapley v. Lockwood Green Engineers, Inc., 502 F.2d 559, 560 (8th Cir. 1974); Bureerong v. Uvawas, 922 F. Supp. 1450, 1479 (C.D. Cal. 1996).

 DISCUSSION

  Defendants request that the court dismiss plaintiffs' general maritime law survival action and plaintiffs' sixth claim for improper service of alcohol ("dram shop liability") for failure to state a claim upon which relief can be granted. Alternatively, to the extent the court finds that plaintiffs are entitled to assert a general maritime law survival action, defendants request that the court apply California's survival statute and strike those portions of the prayer for relief which seek pre-death pain and suffering, lost future earning capacity, and punitive damages because they are unavailable to plaintiffs as a matter of law. The court will address each in turn.

 I. Motions to Dismiss

  The crux of defendants' argument is that no general maritime action exists for either survival or dram shop liablity. Defendants argue that in the absence of a general maritime survival action the court should dismiss plaintiffs' survival claim entirely. Defendants also argue that in the absence of a general maritime dram shop liability rule the court should apply California state law, which would immunize defendants from liability. See Cal. Bus. & Prof. Code § 25602.

  A. General Maritime Survival Action

  The first question before this court is whether plaintiffs can maintain a general maritime survival action.*fn2 Plaintiffs argue that Evich v. Comelly, 759 F.2d 1432, 1434 (9th Cir. 1985) ("Evich I") which recognized a general maritime survival action, is still good law. Defendants, by contrast, argue that the Supreme Court overruled Evich I in Miles v. Apex Marine Corporation, 498 U.S. 19 (1990) (holding that a deceased's survivors could not supplement their Jones Act remedies with general maritime survival action). In Sutton, the Ninth Circuit held that Miles did not overrule Evich I's recognition of a general maritime survival action. Sutton v. Earles, 26 F.3d 903, 919 (9th Cir. 1994). Rather, plaintiffs may bring a Page 5 general maritime survival action where no applicable federal statute would otherwise limit their recovery. Id. As the Ninth Circuit stated in Sutton:

We do not consider the vitality of Evich as applied in the circumstances of this case to have been called into doubt by the Supreme Court's holding [in Miles]. . . the Court clearly rested its decision in Miles on the existence of the Jones Act's limitation on remedies — a limitation not present in this case. . . . Not only does Miles fail to undermine Evich, much of the Court's discussion indicates approval of Evich, at least in cases not involving the death of seamen or death on the high seas.
Id. Since Sutton, the Ninth Circuit has continued to recognize general maritime survival actions. See Koirala v. Thai Airways International, Ltd., 126 F.3d 1205, 1212 (9th Cir. 1997) (holding that a deceased non-seaman's estate could assert a general maritime survival action); Davis v. Bender Shipbuilding and Repair Co., 27 F.3d 426, 430 (9th Cir. 1994) (holding that a general maritime survival claim may be pursued for the death of a non-seaman in state territorial waters so long as there was no federal wrongful death statute imposing a damages limitation). The Supreme Court also appears to agree with the Ninth Circuit's recognition of a general maritime survival action in such cases. See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 211 (1996) ("[W]e assume without deciding that Moragne[v. States Marine Lines, Inc., 398 U.S. 375 (1996)] also provides a survival action."). None of the applicable federal maritime statutes that could potentially limit plaintiffs' recovery apply to Voillat because he was neither a seaman nor a maritime worker, and the incident occurred within state territorial waters.*fn3 Plaintiffs properly state a claim for relief under a general maritime survival action.

  B. Dram Shop Liability

  The second question before this court is whether this court should recognize a general maritime dram shop rule or, conversely, apply California's anti-dram shop provision. Defendants contend that no general maritime dram shop rule exists, as recognized by this court in Meyer v. Carnival Cruise Lines, Inc., No. C-93-2383, 1994 WL 832006, at *4 (N.D. Cal. Dec. 29, 1994) (Patel, J.). They argue that in the absence of such a rule, California state law should apply and this court should dismiss plaintiffs' dram shop claim. According to plaintiffs, this court should recognize and apply a general maritime dram shop rule based on the Fifth Circuit's recognition of such a rule. See Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 146 (5th Cir. 1980). Page 6

  Under California's dram shop statute, defendants are not liable for negligent service of alcohol. California's dram shop statute provides, in relevant part:

No person who sells, furnishes, gives or causes to be sold, furnished, or given away, any alcoholic beverage . . . shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverages.
Cal. Bus. & Prof. Code § 25602(b). The statute immunizes providers of alcoholic beverages from liability for merely furnishing alcohol. Williams v. Saga Enterprises, Inc., 225 Cal.App.3d 142, 148 (Cal. Ct. App. 1990). Statutory immunity extends to providers who serve alcohol to an individual who later injures someone else because of intoxication. See id. The only exception to the statute exists in cases in which a person has sold alcoholic beverages to an obviously intoxicated minor. Cal. Bus. & Prof. Code § 25602.1. That exception does not apply in this case because neither party has alleged that either Monaghan or Voillat was a minor. In the absence of such an allegation, section 25602 precludes plaintiffs' dram shop claim.

  California's anti-dram shop provision applies to this case. In Meyer, this court held that California's dram shop law governed in a general maritime case. 1994 WL 832006, at *4. Meyer was seriously injured when she and another passenger were playing on and sliding down the stairway railing of a Carnival cruise ship. Id. at *1. Both Meyer and the other passenger had been drinking. Id. Meyer alleged that the other passenger unintentionally pushed her over the railing, causing her to fall and sustain serious injuries. Id. She sued Carnival, arguing that the company was negligent in serving alcohol to the other passenger when it knew or should have known that he was intoxicated. Id. Carnival contended that California's dram shop law applied to the case, immunizing the company from liability. Id. at *3. The court declined to fashion its own general maritime dram shop rule, concluding that California's anti-dram shop provision should apply in the absence of a federal maritime dram shop rule. Id. at *4. ("Because extensive research has uncovered no federal maritime dram shop rule, the court finds that California's dram shop law applies under Wilburn.") (citing Wilburn Boat Co. v. Fireman's Fund Insurance Co., 348 U.S. 310 (1955)).*fn4 Page 7

  Since Meyer, the Ninth Circuit has not adopted a general maritime dram shop rule. The court declines to fashion its own rule because doing so would require the court to engage in the difficult task of choosing among various competing state regulatory approaches. Such regulatory power is more appropriately left to the states. See Wilburn, 348 U.S. at 313. Under California law, plaintiffs fail to state a claim for relief under their sixth claim for improper service of alcohol.

 III. Motion to Strike

  Defendants ask the court to strike portions of plaintiffs' prayer for relief because certain remedies are unavailable as a matter of law. According to defendants, if the court chooses to recognize a general maritime action, the court should apply California state law. Defendants argue that California law would bar recovery of damages for pre-death pain and suffering, damages for lost future earning capacity, and punitive damages.*fn5 The court will address each damages request in turn.

  A. Pre-Death Pain and Suffering

  Plaintiffs are entitled to seek damages for pre-death pain and suffering under a general maritime survival action. The Ninth Circuit has held as much, see Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987) ("Federal circuit courts considering survival damages have generally stated that pre-death pain and suffering is compensable.") ("Evich II"), and Miles did not overrule or otherwise modify this portion of Evich II. Miles, 498 U.S. at 36; In re Air Crash Disaster Near Honolulu, Hawaii on February 24, 1989, 783 F. Supp. 1261, 1265 (N.D. Cal. 1992) (Walker, J.); Newhouse v. United States, 844 F. Supp. 1389, 1394 (D. Nev. 1994). "Pre-death pain and suffering is also an element of most states' survival statutes." In re Air Crash Disaster Near Honolulu, 783 F. Supp. at 1265. A number of lower courts have also recognized a damages remedy for pre-death pain and suffering in a general maritime survival action. Newhouse, 844 F. Supp. at 1394 ("[T]he Court finds that Miles does not preclude recovery of pre-death pain and suffering . . . in a general maritime survival action."); Favaloro v. S/S Golden Gate, 687 F. Supp. 475, 479 (N.D. Cal. 1987) (Patel, J.) ("In Evich v. Morris, the court recognized a general maritime survival action for pain and suffering and explicitly held that state law was not the source of the action, finding state law to be preempted by general federal maritime law."); In re Air Crash Off Point Mugu, California, Page 8 145 F. Supp.2d 1156, 1166 (N.D. Cal. 2001) (Legge, J.) ("In theory, a survival action recognizes the right of a victim's estate to recover damages for his or her personal injuries prior to death."). Plaintiffs are entitled to seek damages for pre-death pain and suffering.*fn6

  B. Lost Future Earning Capacity

  Plaintiffs are not entitled to damages for both loss of support and lost future earning capacity, though they may seek one or the other. In Evich II, the Ninth Circuit explicitly recognized the recovery of lost future earnings in general maritime survival action where wrongful death beneficiaries do not exist. 819 F.2d at 258 ("Most states and the Jones Act allow these damages to be recovered in the form of loss of support when wrongful death beneficiaries exist. Where, as here, those beneficiaries do not exist, potential problems with double recovery do not exist."). Miles subsequently overruled Evich II, holding that a general maritime survival action could not supplement Jones Act claims. Miles, 498 U.S. at 35.

  While the Jones Act does not apply in this case, the reasoning of the Miles Court is nonetheless persuasive. Noting the policy behind the refusal to allow recovery for lost future earnings, the Court stated, "[r]ecovery of lost future income in a survival suit will, in many instances, be duplicative of recovery by dependents for loss of support in a wrongful death action; the support dependents lose as a result of a seaman's death would have come from the seaman's future earnings." Id. Since Miles, the Ninth Circuit has held that "where no wrongful death beneficiaries exist, the decedent's estate can receive an award for loss of future earnings because in such cases, potential problems of double recovery in the form of loss of support awards to wrongful death beneficiaries do not arise." Sutton, 26 F.3d at 919. In this case, plaintiffs bring both wrongful death and survival actions. They seek damages for both loss of support and lost future earnings. As wrongful death beneficiaries, plaintiffs are entitled to damages for loss of support. The support plaintiffs would receive as a result of their son's death would have come from his future earnings. Were this court to allow plaintiffs to recover damages both for loss of support and lost future earning capacity, problems of duplicative recovery would arise.*fn7 Plaintiffs may not recover damages for both loss of support and lost future earning capacity in this action.

  In their motion, defendants ask the court to strike plaintiffs' request for lost future earning capacity. While problems of duplicative recovery may eventually arise, this matter is at a relatively early stage in the Page 9 litigation. The court will therefore leave this question open pending resolution of the wrongful death action.

  C. Punitive Damages

  Plaintiffs are entitled to seek punitive damages. "Punitive damages are available under the general maritime law and may be imposed for conduct which manifests reckless or callous disregard for the rights of others or for conduct which shows gross negligence or actual malice or criminal indifference." Churchill v. F/V Fjord, 857 F.2d 571, 579 (9th Cir. 1988) (internal quotation marks omitted). Punitive damages are also available in a general maritime survival action. Evich II, 819 F.2d at 258. "Nothing in Miles indicates that the Ninth Circuit's holding in Evich II regarding the recovery of pre-death pain and suffering and punitive damages or prejudgment interest in a general maritime survival action is not still good law." Newhouse, 844 F. Supp. at 1394; see also In re Air Crash Off Point Mugo, California, 145 F. Supp. at 1166 (holding that punitive damages are available in a survival action based upon the death of a nonseafarer in state territorial waters). This court declines to strike plaintiffs' request for punitive damages because such damages are available in a general maritime survival action.*fn8 Whether plaintiffs may eventually recover such damages is a question of fact.

 CONCLUSION

  For the foregoing reasons, the court DENIES defendants' motion to dismiss plaintiffs' general maritime survival action. The court GRANTS defendants' motion to dismiss plaintiffs' sixth claim for improper service of alcohol. This claim is dismissed without prejudice to any of the other claims that are properly asserted in this action or to any claims that may be asserted in state court. The court DENIES defendants' motion to strike plaintiffs' request for damages for pre-death pain and suffering, damages for Page 10

  IT IS SO ORDERED.

  ENDNOTES


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