     Case: 15-20490       Document: 00513634488          Page: 1     Date Filed: 08/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 15-20490                        United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
WREN THOMAS,                                                                August 11, 2016
                                                                             Lyle W. Cayce
               Plaintiff - Appellant                                              Clerk

v.

CHEVRON U.S.A., INCORPORATED,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
       In October 2014, Wren Thomas sued Chevron USA, Inc. (Chevron) and
Edison Chouest Offshore, LLC (Edison) 1 in Texas state court.                           Chevron
removed the suit to federal court and filed a motion to dismiss under Rule
12(b)(6). Thomas filed a response to Chevron’s motion to dismiss in which he
argued that the court should remand the case, deny Chevron’s motion to
dismiss, or, in the alternative, grant him leave to amend his complaint. After


       1 In its motion to dismiss for lack of personal jurisdiction, this defendant stated that
it was called Edison Chouest Offshore until June 2006, when it changed its name to Offshore
Service Vessels (OSV). It also stated that Edison is no longer a business entity, but that the
group of companies OSV is part of sometimes uses “Edison Chouest Offshore” as a trade
name.
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                                  No. 15-20490
the district court converted the motion to dismiss into a motion for summary
judgment and allowed the parties to file supplemental briefing, Thomas filed
a supplemental brief again requesting, inter alia, leave to amend his
complaint.     In July 2015, the district court issued an opinion granting
Chevron’s motion for summary judgment and denying Thomas’s motion for
leave to amend. The court concluded, “Thomas’s motion to amend pleadings is
denied because the proposed amendment would be futile.” Thomas timely
appealed.      Because the notice Thomas gave of his intent to amend his
complaint was sufficient under our circuit’s precedent, and because his
amended claims would not have been futile, we VACATE the district court’s
judgment, REVERSE the court’s ruling on Thomas’s motion for leave to amend,
and REMAND for further proceedings.
                                         I
      Thomas was the captain of the C-Retriever, a supply vessel supporting
Chevron’s platform operations in the Agbami Field off the Nigerian coast. In
his original petition, Thomas alleged that he told Chevron and Edison, his
primary employer, that he feared pirate attacks and worried that the C-
Retriever’s age, its lack of speed, and the fact that it used easily-accessed VHF
radios 2 to communicate its location made the vessel particularly vulnerable.
In the spring of 2013 he began receiving threats on the C-Retriever’s VHF
radio, which he reported to a Chevron area manager and to his Edison
supervisors.    He asked to be transferred, but Edison did not “effect[] his
transfer.”
      In October 2013, a militant group in Bayelsa, Nigeria, threatened to
kidnap Edison crews and burn their vessels if its demands were not met.



      VHF radios operate in the very high frequency range, transmitting short-range
      2

communications on standard, open, international frequencies known as channels.
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                                       No. 15-20490
Edison sent a warning to its vessels in the region, including the C-Retriever,
and encouraged the crews to “stay very vigilant.” Four days later, Edison
assigned Thomas to make a supply run through what Thomas described as
“one of the most pirate-infested areas in West Africa, and directly closer to the
source of the recent threats.” He objected, but ultimately complied. The C-
Retriever began the trip on October 22, 2013.               In accordance with “usual
practice,” Edison and Chevron broadcast the vessel’s position through VHF
radios.
       Pirates attacked the C-Retriever around 3:00 am on October 23, 2013.
Because the vessel did not have a citadel—a fortified safe room designed to
protect crewmembers in the event of a pirate boarding—Thomas and his crew
hid in the bulk tank room. The pirates breached the room after six hours and
began shooting. Thomas and his engineer surrendered to avoid the loss of life.
The pirates held Thomas for 18 days at various “holding camps,” where,
Thomas states, he was tortured and poorly fed. When he was released, he was
malnourished and suffered from posttraumatic stress disorder, sleep disorders,
and other medical problems.
       Thomas sued Chevron and Edison in Texas state court in October 2014,
asserting claims under the Jones Act and for unseaworthiness and
maintenance and cure against both defendants. Chevron removed the suit to
federal court on November 16, and on November 24 it filed a motion to dismiss
under Rule 12(b)(6) on the grounds that Chevron was not Thomas’s employer
and was not the owner of the vessel on which he was injured. 3 Edison, a




       3To state a claim under the Jones Act, a plaintiff must establish that the defendant
was his employer. 46 U.S.C. § 30104; see also Guidry v. S. L Contractors, Inc., 614 F.2d 447,
452 (5th Cir. 1980) (“A Jones Act claim also requires proof of an employment relationship
either with the owner of the vessel or with some other employer who assigns the worker to a
task creating a vessel connection.”). Furthermore, “[t]he law is clear that only the Jones Act
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Louisiana corporation, moved to dismiss for lack of personal jurisdiction. At a
hearing on January 23, 2015, the district court allowed the parties to conduct
jurisdictional discovery regarding Edison’s citizenship, personal jurisdiction
over Edison, and Thomas’s employment status. On February 5, Thomas filed
a response to Chevron’s motion to dismiss in which he argued that the court
should remand the case, deny Chevron’s motion to dismiss, or, in the
alternative, grant him leave to amend his complaint “to clarify his general
maritime claims and state law claims against Chevron as distinct from
employment-related claims against [Edison].”          Elsewhere in his response,
Thomas specifically noted that his petition “alleges a number of duties and
obligations which could be asserted under general maritime law and/or
common law against a non-employer, including risk management, providing
anti-terrorist security, failure to warn of known risks, and negligence in setting
routes and in broadcasting routes in light of the known piracy risks.”
      On July 6, 2015, the district court converted the motion to dismiss into a
motion for summary judgment and allowed the parties to file supplemental
briefing. Thomas filed a supplemental brief again requesting, inter alia, leave
to amend. Specifically, he sought to replace his Jones Act claims with “general
maritime law and negligence claims” and argued that “liability theories not
dependent on Chevron’s status as an employer should survive summary
judgment, and those arguments and evidence are incorporated for all purposes
herein.” Less than a week later, on July 29, the district court issued an opinion
granting Chevron’s motion for summary judgment and denying Thomas’s
motion for leave to amend.        With respect to Thomas’s motion, the court
reasoned that “even as amended to remove the Jones Act claims, Thomas’s



employer/shipowner owes an injured seaman maintenance and cure benefits.” Armstrong v.
Trico Marine, Inc., 923 F.2d 55, 58 n.2 (5th Cir. 1991).
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claims against Chevron fail as a matter of law. Thomas has not asserted any
basis for finding Chevron liable under general maritime law.”            The court
concluded:    “Thomas’s motion to amend pleadings is denied because the
proposed amendment would be futile.” Thomas timely appealed.
                                         II
      In general, we review the denial of a motion to amend for abuse of
discretion. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 347 (5th Cir.
2008). “A district court abuses its discretion if it: (1) relies on clearly erroneous
factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies
the law to the facts.” Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767
(5th Cir. 2016) (quoting Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667,
672 (5th Cir. 2013)). However, where the district court’s denial of leave to
amend was based solely on futility, this court applies a de novo standard of
review “identical, in practice, to the standard used for reviewing a dismissal
under Rule 12(b)(6).” City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148,
152 (5th Cir. 2010). Under that standard, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if the
complaint “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
                                         III
      Rule 15 governs motions to amend made before trial and provides that
“[t]he court should freely give leave when justice so requires.” FED. R. CIV. P.
15(a)(2). This court has observed that “Rule 15(a) ‘evinces a bias in favor of
granting leave to amend.’” Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302
F.3d 552, 566 (5th Cir. 2002) (quoting Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 598 (5th Cir. 1981)). A movant is required to give the court some
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notice of the nature of his or her proposed amendments. “[I]n order to take
advantage of the liberal amendment rules as outlined in the Federal Rules of
Civil Procedure, the party requesting amendment, even absent a formal
motion, need only ‘set forth with particularity the grounds for the amendment
and the relief sought.’” United States ex rel. Doe v. Dow Chem. Co., 343 F.3d
325, 330–31 (5th Cir. 2003) (quoting United States ex rel. Willard v. Humana
Health Plan of Tex. Inc., 336 F.3d 375, 386–87 (5th Cir. 2003)).
      Although we have not provided strict guidelines as to what constitutes a
sufficient request for leave to amend, it is clear that some specificity is
required. See, e.g., Doe, 343 F.3d at 331 (explaining that a “one-page, three-
sentence motion” that “offer[ed] no grounds on which an amendment should be
permitted” was an insufficient request for leave to amend); Goldstein v. MCI
WorldCom, 340 F.3d 238, 254–55 (5th Cir. 2003) (affirming denial of motion
for leave to amend where the request stated simply: “Should this Court find
that the Complaint is insufficient in any way, however, plaintiffs respectfully
request leave to amend.”); Willard, 336 F.3d at 387–88 (determining that a
bald statement that a “court should not dismiss a plaintiff’s complaint under
Rule 9(b) unless the plaintiff has already been given the opportunity to amend”
is an insufficient request of leave to amend); McKinney v. Irving Indep. Sch.
Dist., 309 F.3d 308, 315 (5th Cir. 2002) (finding no abuse of discretion in the
district court’s denial of leave to amend where the plaintiffs failed to file an
amended complaint as a matter of right or submit a proposed amended
complaint in a request for leave of the court and failed to alert the court as to
the substance of any proposed amendment).
      Proper notice having been given, permissible reasons for denying a
motion for leave to amend include “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
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allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371
U.S. 178, 182 (1962). In Jamieson By & Through Jamieson v. Shaw, 772 F.2d
1205, 1208 (5th Cir. 1985), we explained that “[w]hen futility is advanced as
the reason for denying an amendment to a complaint, the court is usually
denying leave because the theory presented in the amendment lacks legal
foundation or because the theory has been adequately presented in a prior
version of the complaint.”
      The district court denied Thomas’s request for leave to amend on the
grounds that amendment would be futile. The court explained:
      In his supplemental memorandum submitted after the court
      converted Chevron’s motion to dismiss into one for summary
      judgment, Thomas objected to the court’s apparent decision to rule
      on Chevron’s motion to dismiss and again asked, “subject to and
      without waiving his motion for remand,” that the court permit him
      to amend his pleadings to “[r]emove Jones Act claims against
      Chevron and replace those with general maritime law and
      negligence claims,” and to “[r]emove reference to Chevron as
      Thomas’s employer.” Thomas stated that his intent in seeking
      leave to amend was to “conform his pleadings to Chevron and
      [Edison’s] respective positions on employer status” and “allow
      Thomas to move forward with substantive discovery at trial.” But
      even as amended to remove the Jones Act claims, Thomas’s claims
      against Chevron fail as a matter of law. Thomas has not asserted
      any basis for finding Chevron liable under general maritime law.
      The undisputed evidence shows that [Edison] owned the vessel and
      employed Thomas.
Thomas asserts that the district court misinterpreted or ignored his request to
add maritime negligence claims to his complaint, claims which would not
depend on an employment or contractual relationship between Thomas and
Chevron. Chevron apparently agrees, arguing not that these claims would be
futile but rather that they were not stated with sufficient specificity.
      Under this court’s precedent, Thomas was required only to “set forth
with particularity the grounds for the amendment and the relief sought.” Doe,

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343 F.3d at 331. Although his motion was not particularly well organized, a
review of the pleadings convinces us that Thomas complied with this
requirement. He gave notice of the substance of his proposed amendments: he
wished to reclassify the claims at ¶ 30 of his complaint as maritime and
common law negligence claims. He provided a plausible basis for liability,
noting that Chevron owed duties and obligations under maritime and general
common law regardless of his employment status. Furthermore, because he
requested leave to replace his Jones Act claims with maritime law and
negligence claims, the relief he sought was presumably the same as that
outlined in his original petition: compensatory damages, punitive damages,
interest, reimbursement of costs, and any other general and equitable relief
deemed appropriate by the trial court.
      Finally, Thomas’s proposed amendments would not have been futile.
Applying the 12(b)(6) standard, a complaint is futile if it lacks “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Iqbal, 556 U.S. at 678. Reading his requests as an attempt to
reclassify the claims at ¶ 30 of his complaint as maritime and common law
negligence claims, Thomas alleged, inter alia, that Chevron: failed to heed
official warnings regarding the presence of pirates in waters where the C-
Retriever sailed; intentionally led the C-Retriever into waters where pirates
were present and knowingly placed Plaintiffs in harm’s way; intentionally
broadcast the C-Retriever’s route information through VHF airwaves, despite
open access to the airwaves; failed to provide adequate security personnel and
or security vessel escorts; failed to properly address the specific threats to
Thomas’s person; and failed to provide appropriate levels of security to protect
Thomas. These claims are broadly supported by Thomas’s factual allegations.
      Further, they are claims upon which relief can be granted. See FED. R.
CIV. P. 12(b)(b)(6). As we explained in Withhart v. Otto Candies, L.L.C., 431
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F.3d 840, 842 (5th Cir. 2005), “negligence is an actionable wrong under general
maritime law,” and the elements of that tort are “essentially the same as land-
based negligence under the common law.” To state a claim for relief under
maritime law, the “plaintiff must ‘demonstrate that there was a duty owed by
the defendant to the plaintiff, breach of that duty, injury sustained by [the]
plaintiff, and a causal connection between the defendant’s conduct and the
plaintiff’s injury.’” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th
Cir. 2000) (quoting In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991))
(alteration in original). “Under maritime law, a plaintiff is owed a duty of
ordinary care under the circumstances.” In re Great Lakes Dredge & Dock Co.
LLC, 624 F.3d 201, 211 (5th Cir. 2010). Significantly, this duty does extend to
third parties. See, e.g., Coats v. Penrod Drilling Corp., 61 F.3d 1113, n.27 (5th
Cir. 1995 (“The special solicitude for seaman . . . applies under the general
maritime law when the Jones Act is inapplicable, such as when a seaman is
injured through the fault of a third party.”).
      The determination of the existence and scope of a duty “involves a
number of factors, including most notably the foreseeability of the harm
suffered by the complaining party.” Consol. Aluminum Corp. v. C.F. Bean
Corp., 833 F.2d 65, 67 (5th Cir. 1987). Thomas alleged that Chevron knew
about of the real risk of piracy in the region and of the specific threats received
by the C-Retriever. He alleged that despite its knowledge, Chevron requested
that the C-Retriever take an unaccompanied support trip that would pass by
the source of the recent threats. Finally, he alleged that Chevron broadcast
his route information and locations over easily-accessible VHF radios, through
which they could be heard by pirates known to be in the area.               These
allegations are sufficient to suggest that the harm suffered by Thomas was
reasonably foreseeable to Chevron and that Chevron consequently owed him a
duty not to subject him to the conditions he encountered on his October 22,
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2013 voyage. See id. The allegations are thus “enough to raise a right to relief
above the speculative level” and Thomas’s claim for relief is plausible on its
face, Twombly, 550 U.S. at 555; consequently, his amendment would not have
been futile, City of Clinton, 632 F.3d at 152.
                                       IV
      The precise content of Thomas’s request for leave to amend was not
immediately apparent. However, a review of the pleadings demonstrates that
Thomas did in fact give notice of his intent to amend his complaint to include
negligence claims under general maritime law. Because these amendments
would not have been futile, the district court erred in denying his motion. We
therefore VACATE the district court’s judgment with respect to claims against
Chevron, REVERSE the court’s ruling on Thomas’s motion for leave to amend,
and REMAND for further proceedings.




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