Dunklin v. LA Riverboat Gaming ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31455
Summary Calendar
ANTHONY DUNKLIN; BENITA DUNKLIN; THERESA BUTLER, Individually and
on behalf of Lucille Griffin; SUSAN ANN CUBIE, Individually and
on behalf of Velma Griffin Cubie; GEORGE CUBIE, JR., Individually
and on behalf of Velma Griffin Cubie; CHRISTOPHER CUBIE,
Individually and on behalf of Velma Griffin Cubie; ANTHONY CUBIE,
Individually and on behalf of Velma Griffin Cubie; MARIA CUBIE,
Individually and on behalf of Velma Griffin Cubie; TIMOTHY CUBIE,
Individually and on behalf of Velma Griffin Cubie; WILLIE J.
GRIFFIN, Individually and on behalf of Lucille Griffin; PAULINE
JACKSON, Individually and on behalf of Lucille Griffin,
Plaintiffs - Appellants,
versus
LOUISIANA RIVERBOAT GAMING PARTNERSHIP, doing business as
Isle of Capri Casino; LOUISIANA DOWNS INC, doing business as Isle
of Capri Casino; C S N O INC; L R G P HOLDINGS INC; XYZ INSURANCE
COMPANY; ELLIOTT BURT; BRIAN STENZ; BRUCE PORTER; KELVIN PINESET,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-2354
--------------------
May 22, 2001
Before SMITH, BENAVIDES, AND DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiffs appeal from a dismissal of their complaint
pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject-matter
jurisdiction. We affirm, albeit for reasons different from those
of the district court. See United States v. Real Property
*
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that this opinion should not be published and is not precedent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.
No. 00-31455
-2-
Located at 14301 Gateway Blvd. W., 123 F.3d 312, 313 (5th Cir.
1997) ("we will not reverse a judgment of the district court if
it can be affirmed on any ground, regardless of whether the
district court articulated the ground").
Plaintiffs brought suit against the owners of the LADY OF
THE ISLE casino in the district court for the Western District of
Louisiana. The LADY OF THE ISLE casino was allegedly negligent
in serving Rodney Baker alcohol after he was to the point of
visible intoxication. Further, a valet for the defendant gave
Baker the keys to his car and allowed him to drive. After
leaving the casino, the car was involved in a fatal accident
killing Baker and one of his passengers. Plaintiffs sought to
recover tort damages against the casino under federal admiralty
law.
“‘A party seeking to invoke federal admiralty jurisdiction
over a tort claim must satisfy conditions both of ‘location’ and
of ‘connection’ with maritime activity.’” Egorov,Puchinsky,
Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453,
455 (5th Cir. 1999)(quoting Jerome B. Grubart, Inc. v. Great
Lakes Dredge and Dock Co., 513 U.S. 527, 531-32 (1995)). The
“location prong” can be satisfied if (1) the tort occurred on
navigable water or (2) the injury suffered on land was caused by
a vessel on navigable water. Id. at 456.
Plaintiffs cannot satisfy the requirement that their land-
based injuries were caused by a vessel on navigable water. The
undisputed evidence submitted by the parties in support of and in
opposition to the Rule 12(b)(1) motion shows that the LADY OF THE
No. 00-31455
-3-
ISLE is not a vessel in navigation under general maritime law.1
See Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560,
570 (5th Cir. 1995).
In Pavone, this Court held that the BILOXI BELLE, an
“indefinitely moored, shore-side, floating casino[]” was not a
“vessel” for purposes of the Jones Act or general maritime law.
52 F.3d at 570. This Court chose not to analyze the vessel
status of floating casinos under traditional maritime
1
Both parties submitted evidence to the magistrate judge on
the issue whether the LADY OF THE ISLE was a vessel in
navigation. The following are the undisputed facts: (1) the LADY
OF THE ISLE is moored to land by lines tied to steel pilings; (2)
the LADY OF THE ISLE has her own power source, but also receives
from land additional shoreside lines, including water, telephone,
electric, sewer, cable T.V., computer and data processing lines,
which are connected indefinitely and semi-permanently to shore;
(3) the LADY OF THE ISLE sits in an enclosed pond in a cofferdam,
which was created with a weir gate system and then closed by use
of fill and steel sheeting; (4) since her placement in the
cofferdam, the LADY OF THE ISLE has never been used as a seagoing
vessel to transport passengers, cargo, or equipment across
navigable waters;(5) to unmoor her and move her into the Red
River, the cofferdam would have to be dismantled, (including
redredging access to the river and removing barricades, steel
sheeting, and rock) requiring weeks of work, permits from the
Army Corps of Engineers and other governmental agencies, and a
cost of between $500,000 and $1,000,000; (6) the LADY OF THE ISLE
is not required to sail; (7) the only transit the LADY OF THE
ISLE has ever had was her initial delivery from the ship yard to
her present location;(8) the LADY OF THE ISLE has a captain for
each of three watches; (9) a log is kept; (10) there is a
continuously manned pilot house on board with navigational
equipment, engine controls, and navigational radar; (11) the LADY
OF THE ISLE is powered by diesel engines, which are tested weekly
to ensure that they are operational; (12) she is inspected by the
Coast Guard every three months and is subject to unannounced
inspections; (13) she has her own generators capable of
generating electricity despite using shore-based utilities; (14)
the Coast Guard requires that the LADY OF THE ISLE have on board
a master, chief mate, a chief engineer, one oiler and eight
seamen; however, the number of crewmen required has decreased
since the LADY OF THE ISLE is not in transit and remains in the
cofferdam; (15) the LADY OF THE ISLE is 251.6 feet long, 72 feet
in breadth, and her hull is 14 feet deep.
No. 00-31455
-4-
methodology, choosing instead to apply the analysis used for
vessels withdrawn from navigation and those used as work
platforms, with a focus on the putative vessel’s status at the
time pertinent to the alleged injury. Id. at 568.
To determine the BILOXI BELLE’s status, this Court used the
following factors set forth in Bernard v. Binnings Construction
Co., 741 F.2d 824, 831 (5th Cir. 1984), for analyzing work-
platform cases: (1) was the structure involved constructed and
used primarily as a work platform; (2) was the structure moored
or otherwise secured at the time of the accident; and (3)
although capable of, and at times engaging in, movement over
navigable water, was the structure’s function as a means of
transportation merely incidental to its primary purpose of
serving as a work platform. Id. at 568-69. This Court also
recognized the later expansion of Bernard’s first factor to
encompass a structure that had not originally been constructed as
work platform, “as long as it was primarily used as a work
platform at the time of the accident and met the other factors.”
Id. at 569 (citing Ducrepont v. Baton Rouge Enterprises, Inc.,
877 F.2d 393, 395 (5th Cir. 1989).
Applying these factors, this Court undertook the following
analysis:
Here, the semi-permanently or indefinitely moored barge
supporting the BILOXI BELLE casino was constructed ab
initio to be the floating site of a restaurant and bar
(not a key factor given [] [the] recognition that
original construction as a work platform is not a
prerequisite). From its inception the instant barge
was used first as a floating restaurant and bar until
its conversion to a casino and its renaming as the
BILOXI BELLE, after which it has been used only for
casino purposes. Upon its arrival in Mississippi from
No. 00-31455
-5-
Texas, the BILOXI BELLE was moored to the shore in a
semi-permanent or indefinite manner, and continued to
be thus moored before, during and after the accidents
in question. The BILOXI BELLE is susceptible of being
moved, and in fact was moved across navigable waters
one time in the course of “normal operations” (assuming
that movement to avoid the threat of a hurricane on a
single occasion can be deemed “normal operations”),
which one-time movement was purely incidental to the
barge’s primary purpose of physically supporting a
dockside casino structure.
Id. at 570 (citation omitted). This Court therefore held that at
the time of the alleged injuries, the BILOXI BELLE “(1) was
removed from navigation, and (2) was a work platform” and was
thus not a vessel for Jones Act purposes or general maritime law.
Id. Defendants argue that Pavone is controlling.
Using Pavone’s analysis, the LADY OF THE ISLE can be
distinguished from the BILOXI BELLE because she does have
operational engines, a captain, a crew, navigational aids, her
own generators, and a continuously manned pilot house. Like the
BILOXI BELLE, however, the LADY OF THE ISLE is semi-permanently
moored to the shore by lines tied to steel pylons. The LADY OF
THE ISLE also has numerous shore-side utility lines connected to
her in a semi-permanent fashion. The parties present conflicting
evidence regarding whether the LADY OF THE ISLE was built with
the intention to cruise, however, as noted in Pavone, that factor
is not necessarily dispositive. 52 F.3d at 569, 570. The LADY
OF THE ISLE, moreover, had been relieved of the statutory duty to
cruise since 1993; a duty previously imposed on other riverboat
casinos in the state.2
2
La. Rev. Stat. Ann. 27:65B(1)(b)(i)(West Supp. 2001)
formerly read: “For the purposes of this Chapter, on or after
September 15, 1993, in any parish which borders the Red River
No. 00-31455
-6-
Whatever its original purpose, the LADY OF THE ISLE has
clearly been withdrawn from navigation. Since her arrival in
Bossier City, the LADY OF THE ISLE has been semi-permanently
moored to the shore including during the time of the accident.
Although she was originally required to leave the cofferdam every
five years for a hull inspection, that requirement has since been
waived by the Coast Guard. Even had the Coast Guard not waived
that requirement, this type of movement would be incidental to
the LADY OF THE ISLE’s primary purpose of serving as a casino.
Should the LADY OF THE ISLE leave the cofferdam, such a move
would require massive amounts of time and money. Under Pavone,
the LADY OF THE ISLE is not a “vessel” under general maritime
law.
Accordingly, we AFFIRM the judgment of the district court.
Because we affirm the dismissal of plaintiffs’ complaint for lack
of subject-matter jurisdiction, we do not reach plaintiffs’
request for additional discovery for purposes of summary
judgment.
beginning five miles south of the Kansas City Southern
Company/Louisiana Arkansas Crossing Railroad Bridge in Rapides
Parish and ending five miles north of the Mid-South Company
Railroad Bridge in Caddo Parish, gaming may be conducted while a
riverboat is docked.” On March 27, 2001, the statute was amended
to read “gaming shall be conducted while a riverboat is docked
and no cruises or excursions shall be conducted,” and La. Rev.
Stat. Ann. 27:66 was enacted to allow certain riverboat casinos
in other parishes to remain docked. H.R. 2, 2001 Leg., 1st
Extraordinary Sess. (La. 2001).