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