     Case: 16-41074   Document: 00514191967     Page: 1   Date Filed: 10/11/2017




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

                                                                         FILED
                                                                    October 11, 2017
                                 No. 16-41074
                                                                      Lyle W. Cayce
                                                                           Clerk
INTREPID SHIP MANAGEMENT, INCORPORATED; VESSEL
MANAGEMENT SERVICES, INCORPORATED; CROWLEY MARITIME
CORPORATION,

             Plaintiffs - Appellees

MALIN INTERNATIONAL SHIP REPAIR & DRYDOCK, INCORPORATED,

             Movant - Appellee

v.

PRC ENVIRONMENTAL, INCORPORATED,

             Defendant - Appellant

************************************************************************

PRC ENVIRONMENTAL, INCORPORATED,

             Plaintiff - Appellant
v.

THE RESOLVE, her equipment, engines, tackle, furniture, apparel and
appurtenances, in rem; BARGE 650-3, her equipment, engines, tackle,
furniture, apparel and appurtenances, in rem; INTREPID SHIP
MANAGEMENT, INCORPORATED; VESSEL MANAGEMENT SERVICES,
INCORPORATED; CROWLEY MARITIME CORPORATION, in personam,

             Defendants - Appellees
     Case: 16-41074       Document: 00514191967         Page: 2     Date Filed: 10/11/2017



                                       No. 16-41074
                   Appeal from the United States District Court
                        for the Southern District of Texas
                      USDC Nos. 3:12-CV-243; 3:12-CV-359


Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       This case arose from an allision between a vessel owned and operated by
Intrepid Ship Management, Inc., Vessel Management Services, Inc. and
Crowley Maritime Corporation (collectively, “Crowley”) and a rig known as
VIKING PROSPECTOR (the “Rig”). This appeal, following a dismissal for lack
of standing and a Rule 54(b) certification, concerns only one aspect of a broader
series of cases: the counterclaims and cross-claims of PRC Environmental
(“PRC”), which was engaged to work on the Rig and sued in that capacity. PRC
claimed that it held a proprietary interest in the Rig by virtue of a joint venture
with Francisco Moreno, the title owner of the Rig. 1 Moreno himself was never
a party to the action.
       The District Court concluded that title of the Rig never passed from
Moreno to the joint venture. Thus, it determined that PRC lacked standing to
sue Crowley for damages to the Rig. The court also denied PRC’s motion for




       * 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.
       1  Moreno formed a limited liability company, Prospector Rig MGT, LLC (“PRM”),
apparently with the intent of conveying the Rig to PRM; however, title was never transferred.
PRM did not appeal the judgment in question here. Crowley also filed a third party suit
against Malin International Ship Repair & Drydock, Inc. (“Malin”), the owner of the drydock.
Malin later sued the Rig for failure to pay dockage fees, purchased the Rig at auction, and
dismantled it. Malin and Crowley’s positions relevant to this appeal do not differ, so we will
refer only to Crowley.
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                                      No. 16-41074
leave to amend “to clarify and confirm that PRC [was] appearing on behalf of
the Joint Venture.” 2 PRC timely appealed. We AFFIRM.
       Although a dismissal for lack of standing is appropriately judged under
Federal Rule of Civil Procedure 12(b)(1), which allows a court to make limited
findings of fact, the parties have argued this case under the standards
applicable to ordinary summary judgment motions.                      Compare Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (explaining that the district
court can resolve disputed facts as necessary to decide a challenge to subject
matter jurisdiction), with Int’l Marine, L.L.C. v. Integrity Fisheries, Inc., 860
F.3d 754, 759 (5th Cir. 2017) (applying de novo review to summary judgment
cases, explaining that “[s]ummary judgment is appropriate when ‘there is no
genuine dispute as to any material fact.’” (quoting Int’l Marine, L.L.C. v. Delta
Towing, L.L.C., 704 F.3d 350, 354 (5th Cir. 2013))). Because PRC’s challenges
fail even under the least deferential review, we need not explore this dichotomy
further.
       To recover in this case, PRC must prove, inter alia, a proprietary interest
in the Rig. See In re Deepwater Horizon, 784 F.3d 1019, 1025–26 (5th Cir.
2015). To try to meet this burden, PRC claims that the proprietary interest
stems from two events: (1) the creation of a joint venture between Moreno and
PRC, and (2) Moreno’s alleged transfer of the Rig to the joint venture. 3



       2 We conclude that PRC waived its challenge to the denial of its motion to amend
when it failed to object to the magistrate’s order. Lehmann v. GE Glob. Ins. Holding Corp.,
524 F.3d 621, 624 n.4 (5th Cir. 2008). Thus, we do not consider it.
       3 PRC additionally argued that, should the court not accept that PRC has a traditional
proprietary interest, PRC has standing due to being a de facto “bareboat charterer” by having
control “just shy of outright ownership,” which can satisfy the proprietary interest
requirement. In re Deepwater Horizon, 784 F.3d 1019, 1026 (5th Cir. 2015). Here, despite
PRC’s discretion in executing their agreement, Moreno maintained a level of control over the
Rig, including providing consent to move the Rig to Malin’s shipyard. Thus, this argument
fails.
                                             3
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                                     No. 16-41074
          We have carefully reviewed the relevant portions of the record in light of
the parties’ briefing and oral argument. We conclude that PRC failed to bring
forth facts that, if true, prove the existence of a joint venture. PRC failed to
prove an agreement between Moreno and PRC to share profits and losses,
meaning PRC could not gain a proprietary interest in the Rig through the joint
venture. See Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 319 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (enumerating the requirements to
have a valid Texas joint venture, which include an express agreement to share
both profits and losses). Even assuming, arguendo, that the joint venture was
created, PRC has not brought forth sufficient facts to prove that Moreno either
actually transferred or intended to transfer the Rig as required for individual
property to become joint venture property. See Siller v. LPP Mortg., Ltd., 264
S.W.3d 324, 329 (Tex. App.—San Antonio 2008, no pet.) (“Whether the
property used in the partnership operation is owned by the partnership is a
question of intention. Mere use of property in a partnership operation does not
make it an asset of the partnership.” (citing Littleton v. Littleton, 341 S.W.2d
484, 489 (Tex. Civ. App.—Houston 1960, writ ref’d n.r.e.))). Because PRC has
no proprietary interest in the Rig, it does not have standing to maintain this
suit. 4
          AFFIRMED.




         PRC’s lack of ownership interest means that we do not reach the issue of whether
          4

Malin’s February 2013 arrest of the Rig extinguished any ownership interest that PRC claims
to have held.
                                            4
