     Case: 13-30587      Document: 00512490229         Page: 1    Date Filed: 01/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 13-30587                          January 6, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
WARRIOR ENERGY SERVICES CORPORATION; FASTORQ, L.L.C.;
STABIL DRILL SPECIALTIES, L.L.C.; WORKSTRINGS INTERNATIONAL,
L.L.C.; SUPERIOR ENERGY SERVICES, L.L.C., doing business as Superior
Completion Services,

                                                 Plaintiffs - Appellants
v.

ATP TITAN M/V, its equipment, appurtenances, furniture, etc., in rem; ATP
TITAN, L.L.C., in personam,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2297


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Warrior Energy Services Corporation, Fastorq, L.L.C., Stabil Drill
Specialties, L.L.C., Workstrings International, L.L.C., and Superior Energy
Services, L.L.C., d/b/a Superior Completion Services (collectively, “Superior”)



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-30587        Document: 00512490229          Page: 2     Date Filed: 01/06/2014



                                          No. 13-30587
appeal the order of the district court dismissing their claims against ATP Titan
M/V (the “TITAN”) and ATP Titan, L.L.C. (“ATP”). We AFFIRM.

                                     I.    Background
       The TITAN is a floating oil and gas production facility moored on the
Outer Continental Shelf, miles offshore of Louisiana. The TITAN is owned by
ATP and is operated by ATP Oil & Gas. Superior contracted with ATP Oil &
Gas to provide certain services and supplies to the TITAN to support its
operations. After Superior performed under the contract, ATP Oil & Gas
declared bankruptcy, and Superior was not paid.
       Superior filed suit, asserting maritime liens and, in the alternative, state
law privileges against the TITAN. 1 Superior also sought declaratory relief
against both the TITAN and ATP. ATP and the TITAN moved to dismiss,
asserting that the district court lacked in rem admiralty jurisdiction over the
TITAN and that Superior had failed to state a claim against ATP. After
jurisdictional discovery, the district court granted the motion and Superior
appealed. 2




       1   The only jurisdictional basis asserted for the state law claims was supplemental
jurisdiction under 28 U.S.C. § 1367; Superior does not argue that the district court had
original jurisdiction over the state law claims against the TITAN. With respect to its claims
against ATP, Superior conceded in the district court that those claims relied upon TITAN’s
status as a vessel. Thus, if TITAN is not a vessel, Superior conceded that it does not have a
claim against ATP. Before our court, it does not argue any basis for liability against TITAN
or ATP that does not turn on the classification of the TITAN as a vessel or not.
        2 Superior argues that the district court erred in denying its motion for leave to file a

sur-reply because ATP and the TITAN raised new arguments in their reply addressing a
recently decided case, Lozman v. City of Riviera Beach, Florida, 133 S. Ct. 735 (2013).
However, “[s]urreplies are heavily disfavored by courts.” Weems v. Hodnett, No. 10-CV-1452,
2011 WL 2731263, at *1 (W.D. La. July 13, 2011). The district court did not abuse its
discretion in denying Superior leave to file a sur-reply, especially as Superior had previously
addressed Lozman in its memorandum in opposition.
                                               2
     Case: 13-30587       Document: 00512490229         Page: 3     Date Filed: 01/06/2014



                                       No. 13-30587
                              II.   Standard of Review
       We review a district court’s dismissal for lack of subject matter
jurisdiction de novo. See Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th
Cir. 2012). The burden of proof lies with the party asserting jurisdiction, who
must prove “by a preponderance of the evidence that the court has jurisdiction
based on the complaint and evidence.” Id. A court can find a lack of subject
matter jurisdiction based on “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). 3
       We review a district court’s dismissal for failure to state a claim de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” Sullivan v. Leor Energy, LLC, 600 F.3d 542,
546 (5th Cir. 2010). Dismissal is appropriate where the plaintiff fails to allege
“enough facts to state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), and thus does not “raise a right to
relief above the speculative level,” id. at 555. This standard is met where a
plaintiff “pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
                                    III.    Discussion
       Superior seeks to enforce a maritime lien against the TITAN pursuant
to the Maritime Lien Act, 46 U.S.C. §§ 31301, et seq., which states that “a
person providing necessaries to a vessel . . . has a maritime lien on the vessel
[and] may bring a civil action in rem to enforce the lien.” 46 U.S.C. § 31342(a)


       3 We reject Superior’s invitation to assume hypothetical jurisdiction in order to reach
the merits. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998).

                                              3
     Case: 13-30587       Document: 00512490229         Page: 4     Date Filed: 01/06/2014



                                       No. 13-30587
(emphasis added). Federal jurisdiction under the Maritime Lien Act therefore
turns in this case on whether the TITAN is a “vessel.” See Lozman, 133 S. Ct.
at 745 (“A court’s jurisdiction, e.g., admiralty jurisdiction, may turn on
application of the term ‘vessel.’”).
       A vessel is defined as “every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of transportation on
water.” 1 U.S.C. § 3. This includes “any watercraft practically capable of
maritime transportation, regardless of its primary purpose or state of transit
at a particular moment.” Stewart v. Dutra Constr. Co., 543 U.S. 481, 497
(2005). The dispositive question is “whether the watercraft’s use as a means
of transportation on water is a practical possibility or merely a theoretical one.”
Id. at 496 (internal quotation marks omitted).
       We conclude that the district court did not err in concluding as a matter
of law that the TITAN does not constitute a vessel based upon our prior
precedent addressing similar structures. First, the TITAN is moored to the
floor of the Outer Continental Shelf by twelve chain mooring lines connected
to twelve anchor piles, each weighing 170 tons and each embedded over 200
feet into the seafloor, and by an oil and gas production infrastructure. See
Stewart, 543 U.S. at 494 (“[A] watercraft is not capable of being used for
maritime transport in any meaningful sense if it has been permanently moored
or otherwise rendered practically incapable of transportation or movement.”)
(internal quotations omitted); see also Mendez v. Anadarko Petroleum Corp.,
466 F. App’x 316, 317 (5th Cir. 2012) (unpublished) (concluding that similarly
moored spar was not a vessel), 4 cert. denied, 133 S. Ct. 979 (2013); Fields v.


       4 Superior contends that the district court erred in relying on the unpublished opinion
in Mendez. While Mendez is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006). Given the factual
similarities between this case and Mendez, we agree with the district court that Mendez is
persuasive.
                                              4
     Case: 13-30587       Document: 00512490229         Page: 5    Date Filed: 01/06/2014



                                      No. 13-30587
Pool Offshore, Inc., 182 F.3d 353, 355 (5th Cir. 1999) (same). Second, the
TITAN has not been moved since it was constructed and installed at its current
location in 2010. See Lozman, 133 S. Ct. at 741 (concluding that houseboat
that had been moved only four times in seven years was not a vessel); see also
Mendez, 466 F. App’x at 317 (finding that spar that had been moored in one
location for nine years was not a vessel). Third, the TITAN has no means of
self-propulsion, apart from repositioning itself within a 200-foot range by
manipulating its mooring lines. See Fields, 182 F.3d at 355, 359 (concluding
that spar that had no means of self-propulsion, but could reposition itself
within a 250-foot range by manipulating its mooring lines, had “extremely
limited and purely incidental mobility” and was not a vessel). Fourth, moving
the TITAN would require approximately twelve months of preparation, at least
fifteen weeks for its execution, and would cost between $70 and $80 million.
See Mendez, 466 F. App’x at 319 (concluding that spar was not a vessel where
relocating it would take nearly two months and would cost $42 million); Moore,
748 F. Supp. 2d at 606 (same). In light of these characteristics, we agree with
the district court that the TITAN is not practically capable of transportation
on water and is therefore, as a matter of law, not a vessel. 5 See Stewart, 543
U.S. at 497.
       Finally, Superior sought a declaratory judgment that the TITAN is a
vessel and that Superior has valid maritime liens against the TITAN. Because
we conclude that the TITAN is not a vessel, Superior has failed to state a claim
for declaratory relief.



       5 In Lozman, the Supreme Court articulated a standard to be applied in “borderline
cases where ‘capacity’ to transport over water is in doubt.” 133 S. Ct. at 745. This is not a
“borderline case.” Application of the Lozman “reasonable observer” test would nonetheless
lead to the same result, as, for the reasons already enumerated, no reasonable observer,
looking to the TITAN’s physical characteristics and activities, would consider it designed to
a practical degree for water transportation. See id. at 741.
                                             5
Case: 13-30587   Document: 00512490229   Page: 6   Date Filed: 01/06/2014



                          No. 13-30587
 AFFIRMED.




                                6
