Blue Gulf Seafood v. TransTexas Gas Corp, e ( 2000 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 98-41436
____________
BLUE GULF SEAFOOD INC,
Plaintiff-Appellant,
and
DOLPHIN J, INC; MERMAID SEAFOOD, INC; T& J
OYSTERS, INC,
Intervenor Plaintiffs-Appellants,
versus
TRANSTEXAS GAS CORPORATION; FALCON DRILLING
COMPANY, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(G-98-CV-349)
December 12, 2000
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Blue Gulf Seafood, Inc. (“Blue Gulf”), Dolphin J, Inc. (“Dolphin”), T & J Oysters, Inc. (“T
& J”), and Mermaid Seafood, Inc. (“Mermaid”), appeal the district court’s dismissal of their claims
against TransTexas Gas Corporation (“TransTexas”), and Falcon Drilling Company, Inc. (“Falcon”)
pursuant to FED. R. CIV. P. 12(b)(6). Blue Gulf, Dolphin, and T&J allege that they are Louisiana
corporations; Mermaid alleges it is a Texas corporation. Each alleges ownership rights in oyster
leases in Galveston Bay, Texas. Each asserts that they incurred damages to their oyster beds and
suffered a loss of production due to the activities of TransTexas and Falcon. The district court
properly dismissed Blue Gulf’s, Dolphin’s, and T&J’s complaints for failure to state a claim because
under TEX. PARKS & WILD. CODE § 76.008 foreign corporations are not permitted to “lease and
control land” in Texas, and under TEX. PARKS & WILD. CODE § 76.031 foreign corporations may not
receive a permit to plant or harvest oysters from public waters. Therefore, Blue Gulf, Dolphin, and
T & J have “failed to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
Further, these parties may not defeat dismissal based on the argument that they are commercial
fishermen, because they failed to plead this claim in their complaint. Mermaid’s claim against
TransTexas and Falcon, however, was improperly dismissed because it is a Texas corporation.
Accordingly, the district court’s dismissal of Blue Gulf’s, Dolphin’s, and T&J’s claims is
AFFIRMED, and the dismissal of Mermaid’s claims is VACATED and REMANDED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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