     Case: 11-31172   Document: 00512083481   Page: 1   Date Filed: 12/13/2012




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

                                                               FILED
                                                           December 13, 2012

                               No. 11-31172                   Lyle W. Cayce
                                                                   Clerk

IN RE: DEEPWATER HORIZON
__________________________________________________________

TERRY G. ROBIN, Individually and on behalf of all members of the 3 classes
represented by the named plaintiffs including individuals/entities which are
landowners, individuals/entities which are commercial fisherman, shrimpers,
oyster harvesters, etc.; CAROLYN FRIERE; DOROTHY MOLERO; JANICE
GONZALES; JANET ESTAVEZ; RICKY ESTAVEZ; ANABELLE NUNEZ;
DARDINELLA LONG; KAREN SCOTT; MARIE CAMPO; LARRY FRILOT;
B.M. PERRY, II, LIMITED; DAVID ESTAVEZ,

                                         Plaintiffs - Appellants
v.

SEACOR MARINE, L.L.C.; SEACOR MARINE, INCORPORATED; SEACOR
MARINE INTERNATIONAL, INCORPORATED; NAUTICAL VENTURES,
L.L.C.; ISLAND VENTURES, II; JOE GRIFFIN MV, in rem; MR. SIDNEY
MV, in rem; SEACOR WASHINGTON MV, in rem; SEACOR VANGUARD
MV, in rem,

                                         Defendants - Appellants

                             consolidated with



                               No. 11-31178


In Re: In the Matter of the Complaint of Seacor Worldwide, Incorporated, As
Beneficial Owner, Registered Owner, and Managing Owner of the M/V Seacor
Lee, for Exoneration from or Limitation of Liability
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     Nos. 11-31172, 11-31178, 11-31179, 11-31180, 11-31181, & 11-31183

__________________________________________________________
SEACOR HOLDINGS, INCORPORATED; SEACOR OFFSHORE, L.L.C.;
SEACOR MARINE, L.L.C.; SEACOR WORLDWIDE, INCORPORATED, As
Beneficial Owner, Registered Owner, and Managing Owner of the M/V Seacor
Lee Petitioning for Exoneration from or Limitation of Liability,

                                          Petitioners - Appellees
v.

TERRY G. ROBIN; AIMAN ABDEL; CARL ALEXANDER; SERGIO
ALVARADO; BILLY BENSEL; ET AL.,

                                          Claimants - Appellants


                              consolidated with



                                No. 11-31179


In Re: In the Matter of the Complaint of Seacor Marine, L.L.C., As Beneficial
Owner, Registered Owner, and Managing Owner of the M/V Seacor
Vanguard, for Exoneration from or Limitation of Liability
__________________________________________________________
SEACOR HOLDINGS, INCORPORATED; SEACOR OFFSHORE, L.L.C.;
SEACOR MARINE, L.L.C., As Beneficial Owner, Registered Owner, and
Managing Owner of the M/V Seacor Vanguard Petitioning for Exoneration
from or Limitation of Liability,

                                          Petitioners - Appellees
v.

TERRY G. ROBIN; AIMAN ABDEL; CARL ALEXANDER; SERGIO
ALVARADO; BILLY BENSEL; ET AL.,

                                          Claimants - Appellants


                              consolidated with


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     Nos. 11-31172, 11-31178, 11-31179, 11-31180, 11-31181, & 11-31183



                                No. 11-31180


In Re: In the Matter of the Complaint of Siemens Financial, Incorporated, As
Beneficial Owner, Registered Owner, and Managing Owner of the M/V Seacor
Washington, for Exoneration from or Limitation of Liability
__________________________________________________________
SEACOR HOLDINGS, INCORPORATED; SEACOR OFFSHORE, L.L.C.;
SEACOR MARINE, L.L.C., SIEMENS FINANCIAL, INCORPORATED, As
Beneficial Owner, Registered Owner, and Managing Owner of the M/V Seacor
Washington Petitioning for Exoneration from or Limitation of Liability,

                                         Petitioners - Appellees
v.

TERRY G. ROBIN; AIMAN ABDEL; CARL ALEXANDER; SERGIO
ALVARADO; BILLY BENSEL; ET AL.,

                                         Claimants - Appellants

                             consolidated with



                                No. 11-31181


In Re: In the Matter of the Complaint of Island Ventures, II, L.L.C., As
Owner of the M/V Joe Griffin, for Exoneration from or Limitation of Liability
__________________________________________________________
ISLAND VENTURES, II, L.L.C., As Owner of the M/V Joe Griffin, Petitioning
for Exoneration from or Limitation of Liability,

                                         Petitioner - Appellee
v.

TERRY G. ROBIN; AIMAN ABDEL; CARL ALEXANDER; SERGIO
ALVARADO; BILLY BENSEL; ET AL.,



                                     3
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     Nos. 11-31172, 11-31178, 11-31179, 11-31180, 11-31181, & 11-31183

                                                  Claimants - Appellants

                                    consolidated with



                                       No. 11-31183


In Re: In the Matter of the Complaint of Nautical Solutions, L.L.C., As Owner
of the M/V Mr. Sidney, for Exoneration from or Limitation of Liability
__________________________________________________________
NAUTICAL SOLUTIONS, L.L.C., As Owner of the M/V Mr. Sidney,
Petitioning for Exoneration from or Limitation of Liability,

                                                  Petitioner - Appellee
v.

TERRY G. ROBIN; AIMAN ABDEL; CARL ALEXANDER; SERGIO
ALVARADO; BILLY BENSEL; ET AL.,

                                                  Claimants - Appellants




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:10-MD-2179


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*




       *
         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.

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      Nos. 11-31172, 11-31178, 11-31179, 11-31180, 11-31181, & 11-31183

       Terry Robin and a group of persons asserting losses (“Plaintiffs”) as a
result of the 2010 Deepwater Horizon incident1 sued Defendant rescue vessels
and their owners and/or operators (“Defendants”) for economic damages and
personal injuries allegedly incurred as a result of the incident.                      Plaintiffs
asserted a claim for general maritime law negligence, a claim under the Oil
Pollution Act of 1990, and a negligence claim under Louisiana state law, alleging
that Defendants’ negligence in attempting to extinguish the fire on the
Deepwater Horizon ultimately caused the oil spill and Plaintiffs’ resulting
damages. Specifically, Plaintiffs alleged that “[a]s a result of the flooding of the
rig by the fireboats, the rig began to sink. When the rig turned and began to
sink, the pipe connected to the wellhead collapsed and fell to the sea floor.”
Further, they claimed that “[t]he actions of Defendants were independent of the
fire and are separate and distinct causes of the resulting mega-spill of oil that
continues to cause Plaintiffs’ damages.”
       Defendants moved for a judgment on the pleadings under Federal Rules
of Civil Procedure 12(b)(6) and 12(c). Pertinent to this appeal, the district court
dismissed Plaintiffs’ general maritime law negligence claim on the ground that
it did not state a plausible claim of foreseeability of the types of harm alleged.
Alternatively, the district court concluded that all general maritime law
negligence claims except those of Terry Robin, a commercial fisherman, and
Rafael Lopez, Aiman Abdel, and Sergio Alvarado, personal-injury claimants,2
were also subject to dismissal under the rule announced in Robins Dry Dock &
Repair Co. v. Flint, 275 U.S. 303 (1927), as articulated in Louisiana ex rel. Guste
v. M/V Testbank, 752 F.2d 1019, 1021 (5th Cir. 1985) (en banc) (limiting



       1
           For a description of this incident, see the district court’s opinion in this case, In re
Oil Spill, MDL No. 2179 Section: J, 2011 U.S. Dist. LEXIS 117969 (E.D. La. Oct. 12, 2011).
       2
           The plaintiffs allege that they were personally injured by exposure to dispersants.

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     Nos. 11-31172, 11-31178, 11-31179, 11-31180, 11-31181, & 11-31183

plaintiffs’ foreseeable injuries by finding that general economic losses absent
physical injuries are unrecoverable). In re Oil Spill, 2011 U.S. Dist. LEXIS
117969, at *22 n.10. We AFFIRM.
      At the outset, we note that Plaintiffs failed to challenge this alternate
holding in their opening brief. Accordingly, we conclude that any such challenge
is waived. See R.R. Mgmt. Co. v. CFS La. Midstream Co., 428 F.3d 214, 220 n.3
(5th Cir. 2005) (noting that where appellant challenges only one alternate
holding, argument that other holding was in error is waived). Under the
alternate holding, however, the claims of Robin, Lopez, Abdel, and Alvarado
(“Remaining Plaintiffs”) remain, a point that Defendants do not challenge. Thus,
we consider whether the dismissal on the pleadings as to the Remaining
Plaintiffs was proper.
      “We review de novo a district court’s ruling on a Rule 12(c) motion for
judgment on the pleadings.” In re Great Lakes Dredge & Dock Co., 624 F.3d 201,
209 (5th Cir. 2010). “A motion under Rule 12(c) for failure to state a claim is
subject to the same standards as a motion to dismiss under Rule 12(b)(6).” Id.
at 209-10. To survive Defendants’ motion, Plaintiffs’ “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) (internal
quotation marks and citation omitted).      Although the court must “accept all
well-pleaded facts as true and construe the complaint in the light most favorable
to the plaintiff . . . [, it] do[es] not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.” In re Great Lakes, 624
F.3d at 210 (internal quotation marks and citation omitted).
      We conclude that the district court correctly determined that the damages
alleged by the Remaining Plaintiffs are too attenuated and distant from the
alleged negligence of the Defendants to state a plausible claim of foreseeability,
as required for proximate cause. As the district court stated:

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     Nos. 11-31172, 11-31178, 11-31179, 11-31180, 11-31181, & 11-31183

       In order to foresee such a result, the Defendants would have had to
       have anticipated that spraying water on the [mobile offshore drilling
       unit, i.e., the Deepwater Horizon] would probably cause the vessel
       to capsize, and would probably cause the connecting pipe to collapse,
       and the blowout preventer would probably not control the flow of
       hydrocarbons, and the discharge would probably flow unabated for
       three months, and that oil would probably flow fifty miles inland.
       Moreover, as to those Claimants who assert physical injury damages
       from chemical dispersant, the harm is even further removed from
       Defendants’ scope of duty, given that the decision to use an allegedly
       toxic dispersant appears to have been made by parties other than
       Defendants . . . .3
In Re Oil Spill, 2011 U.S. Dist. LEXIS 117969, at *20. We agree. Accordingly,
we AFFIRM the judgment of the district court.




       3
         The three personal-injury claimants do not allege otherwise. They claim to have
been exposed to toxic dispersants used to control the oil spill that was, in turn, allegedly
caused by Defendants. They do not allege that Defendants themselves used the toxic
dispersants.

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