Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


January 8, 2002


The opinion of the court was delivered by: J. Phil Gilbert, U.S. District Judge


Before the Court is a motion to dismiss (Doc. No. 16) made pursuant to Federal Rule of Civil Procedure 12(b)(6) by third-party defendant Ohio Power Company.


When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the plaintiff. Holman v. Indiana, 211 F.3d 399, 402 (7th Cir.), cert. denied, 121 S.Ct. 191 (2000). The Court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Id. at 405. "The reason why judges accept a complaint's factual allegations when ruling on motions to dismiss under Rule 12(b)(6) is that a motion to dismiss tests the legal sufficiency of a pleading. Its factual sufficiency will be tested later — by a motion for summary judgment under Rule 56, and if necessary by trial." Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001).

When evidence outside the pleadings is attached to a motion labeled as a motion to dismiss, a court may construe the motion as a motion for summary judgment. See Wilkow v. Forbes, Inc., 241 F.3d 552, 555 (7th Cir. 2001); Berthold Types Ltd. v. Adobe Systems Inc., 242 F.3d 772, 775 (7th Cir. 2001). However, a motion styled as one to dismiss is not automatically rendered a motion for summary judgment at the instant of its filing just because the movant attaches extra documents. See Berthold, 242 F.3d at 775. "It is, rather, that once the district court actually considers additional documents, the motion must be treated as one for summary judgment." Id.

In this case, an affidavit is attached to Ohio Power's motion to dismiss. The Court will not, however, construe the motion as a motion for summary judgment. Rather, the Court will simply disregard the attached affidavit.


On June 13, 2001, Orgulf Transport Co. ("Orgulf") filed the underlying complaint invoking the admiralty or, alternatively, the diversity jurisdiction of Court. Orgulf's Complaint ¶¶ 1-3 (Doc. No. 1). The complaint contains two counts against Hill's Marine Enterprises, Inc. (Hill's), one for negligence (Id. at ¶¶ 18-20) and one for breach of contract (Id. at ¶¶ 21-24).

The complaint alleges that Orgulf was the owner of three barges-barge numbers T13645B, SCF9102 and OR-7028 ("the barges"). Id. at ¶ 6. In March and April 2000, Orgulf delivered the barges to Trico Steel Company, LLC ("Trico") at its facility in Alabama. Id. at ¶ 7; Hill's Answer ¶ 7. The barges were allegedly loaded with HBI briquettes and pig iron. Id. Orgulf alleges that pursuant to a contract with Orgulf, Trico was responsible for unloading and cleaning the barges. Id. at ¶ 8. Orgulf alleges that Trico contracted with Hill's to unload and clean the barges. Id. at ¶¶ 9-10.

Orgulf alleges that Hill's unloaded the cargo from the barges but improperly and negligently cleaned the barges, leaving pig iron and HBI briquette debris on the barges. Id. at ¶¶ 11-16. Orgulf further alleges that the barges were loaded with coal and transported by Orgulf to a Gulf Power Company Power Plant in Pensacola, Florida. Id. at ¶ 15. Orgulf alleges that Gulf Power refused the shipment because the coal had been contaminated by the HBI briquette and pig iron debris. Id. at ¶ 16. Orgulf claims that it sustained more than $75,000 in damages as a result of Hill's allegedly negligent conduct.

On July 25, 2001, Hill's filed a third-party complaint against Ohio Power Company ("Ohio Power"). Hill's Third-Party Complaint (Doc. No. 4). Hill's claims that it properly swept and cleaned the barges. Id. at ¶ 6. Hill's further alleges that after it cleaned the barges, the barges were taken to a loading facility in Illinois and loaded with coal. Id. at ¶ 7. Hill's further alleges that Ohio Power Company was responsible for loading one or more of the barges. Finally Hill's alleges as follows:

Assuming that the barges were not cleaned properly by Hill's, which Hill's stringently denies, then Third Party Defendants negligently inspected said barges and should have rejected said barges for loading until the barges could be properly cleaned. . . . The negligence of the Third Party Defendants was the sole proximate or contributing legal cause of any damages sustained by the Plaintiff.

Id. at ¶ 11. On September 24, 2001, Ohio Power filed a motion to dismiss the third-party complaint. (Doc. No. 16). Both Hill's and Orgulf have responded to the motion. (Doc. Nos. 21 and 22). Ohio Power has replied to those responses. (Doc. No. 23).

For the reasons discussed below, the Court will deny the motion to dismiss.


The claims in this case fall within the admiralty jurisdiction of this Court. The Constitution extends to Article III courts the power to hear "all Cases of admiralty and maritime Jurisdiction." U.S. Const. art. III, § 2. That power was codified at 28 U.S.C. § 1333(1), which provides for "original jurisdiction exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction. . . ." 28 U.S.C. § 1333; see also Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 382 (7th Cir. 2001).

If the plaintiff properly invokes admiralty jurisdiction "neither complete diversity of citizenship nor a minimum jurisdictional amount in controversy is required, and the fact that diversity jurisdiction also can be alleged by the plaintiff as a basis of subject matter jurisdiction is of no moment." Wright & Miller 14A Fed. Prac. & Proc. Juris.3d § 3676 (2001). Federal Rule of Civil Procedure 9(h) sets forth the procedure for invoking a federal court's admiralty jurisdiction. It provides as follows:

A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15. A case that includes an admiralty or maritime claim within this subdivision is an admiralty case within 28 U.S.C. § 1292(a)(3).

Fed.R.Civ.P. 9(h). Both the plaintiff and the defendant/third-party plaintiff have invoked admiralty jurisdiction, expressly citing Rule 9(h). The plaintiff has invoked this Court's diversity jurisdiction only as an alternative source of jurisdiction.

The mere invocation of the Court's admiralty jurisdiction and reference to Rule 9(h) does not necessarily make this an admiralty case. There must be a proper basis for this Court to assert ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.