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,
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
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.
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
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.
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
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
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
properly state a claim for relief under a general maritime survival
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).
Under California's dram shop statute, defendants are not liable for
negligent service of alcohol. California's dram shop statute provides, in
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
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
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
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
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,
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
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
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.
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
IT IS SO ORDERED.