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Nancy Sharland, Individually and As Successor-In-Interest To John Shaw v. Mitsui O.S.K. Bulk Shipping

January 25, 2013


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


On February 10, 2012, Plaintiffs Nancy Sharland and Ajamu Shaw commenced this action seeking damages and other appropriate relief for the wrongful death of John Shaw. Plaintiffs are Mr. Shaw's surviving spouse and child. On September 12, 2012, Plaintiffs filed their First Amended Complaint ("FAC") against Defendant Pacific Maritime Association ("PMA"). (Doc. 11.) Defendant moves to dismiss the FAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject matter jurisdiction over the claims and that Plaintiffs fail to state a claim upon which relief may be granted. Plaintiffs oppose.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 48.) For the following reasons, the Court GRANTS Defendants' motion to dismiss for lack of subject matter jurisdiction.


On February 10, 2010, Mr. Shaw was employed as a longshoreman in San Diego. (FAC ¶ 16.) On that day, Defendant dispatched Mr. Shaw to work for Pasha Stevedoring & Terminals, Inc. on a container ship moored in the Port of San Diego. (Id.) While performing his duties, Mr. Shaw suffered a heart attack. (Id. ¶ 17.) Plaintiffs allege that Mr. Shaw's death resulted from Defendant's as well as others' failure to provide the training and equipment necessary to treat a heart attack, and from Mr. Shaw not receiving timely or reasonable medical care or having access to safety equipment which could have promptly improved his condition. (Id. ¶18.)

PMA is the "employers' collective bargaining representative in training, supervising, directing, and paying longshore workers" who are dispatched to various member employers' facilities to perform longshore work." (FAC ¶¶ 10--11.) Plaintiffs allege that PMA in conjunction with the employer is required to provide "training and equipment necessary to treat emergencies." (Id. ¶ 12.)

Plaintiffs assert two causes of action for: (1) wrongful death under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§901, et seq.; and (2) violation of California Code of Civil Procedure §377.61. Defendant seeks to dismiss each of these claims without leave to amend. Plaintiffs oppose.


The Court addresses the issue of subject matter jurisdiction first as "[t]he requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States and is 'inflexible and without exception.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95(1998) (quoting Mansfield, C & L.M. Ry. Co. v. , 111 U.S. 379, 382 (1884)).

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of , 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution or statute, which is not to be expanded by judicial decree." Id. (internal citations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted); see also Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).

Under Rule 12(b)(1), the Court can dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When challenging subject matter jurisdiction, a defendant can do so either facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). With a facial attack, "the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction," and the court assumes that all material allegations in the complaint are true. Id.; Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005).


Plaintiffs contend that jurisdiction is conferred by 28 U.S.C.§1331based upon this action arising under the LHWCA. (FAC ¶1.) This Court disagrees.

The LHWCA "is a 'comprehensive scheme' to provide compensation for the disability or death of employees resulting from injuries occurring upon the navigable waters of the United States." Price v. Stevedoring Serv.'s of Am., Inc., 697 F.3d 820, 823 (9th Cir. 2012) (quoting Roberts v. Sea-Land Servs., Inc., - U.S. -, 132 S.Ct. 1350, 1354 (2012)). Specifically, the LHWCA provides non-seaman maritime workers with "no-fault workers' compensation claims" against their employer, and negligence claims against a vessel for injury and death. Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001) (citing 33 U.S.C. ยงยง 904(b), 905(b)). Further, the Department of Labor is responsible for administering this compensation scheme. Price, 697 F.3d at 823 (citing Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 45 (1989)). In order ...

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