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VOILLAT v. RED AND WHITE FLEET

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 ...


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