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
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.
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.
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.
"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).
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
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).
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.
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 ...