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Brown v. Fairhope Yacht Club

United States District Court, S.D. Alabama, Southern Division

January 17, 2019

JANE BROWN, etc., et al., Plaintiffs,



         Defendant Fairhope Yacht Club has filed motions to dismiss each of the plaintiffs' complaints in this action, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that this Court lacks subject matter jurisdiction. (Docs. 48, 60, 64, 65). Also pending before the Court is Plaintiffs' motion for leave the amend their complaints. (Doc. 67). These motions have been referred to the undersigned Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72. Having reviewed and considered the relevant pleadings and briefs and the relevant law, the undersigned Magistrate Judge RECOMMENDS that Defendant Fairhope Yacht Club's motions to dismiss the complaints filed by Plaintiffs Amanda Beall, Angelina Tew, Jane Brown, Robert Luiten, and Lennard Luiten for lack of subject matter jurisdiction be DENIED for the reasons set forth below. The undersigned further RECOMMENDS that Plaintiffs' Motion for Leave to Amend Complaint be GRANTED.


         Plaintiffs Amanda Beall, Angelina Tew, Jane Brown, Robert Luiten, and Lennard Luiten have all filed complaints against Defendant Fairhope Yacht Club (FYC) arising from deaths and injuries suffered during the 2015 Dauphin Island Race, a sailboat race hosted by Defendant. (Docs. 1, 30, 31, and 47).[1]Defendant filed the instant motions to dismiss these complaints for lack of subject matter jurisdiction. (Docs. 48, 60, 64, and 65). Plaintiffs filed responsive briefs in opposition to the motions to dismiss (Docs. 56 and 69), and Defendant filed reply briefs in response to Plaintiffs' opposition (Docs. 58, 73, 74, and 75). The motions are now ripe for decision. On July 31, 2018, after their individual actions were consolidated into the present action, Plaintiffs filed a motion for leave to amend their complaints into a joint Amended Complaint for the sake of consistency and to avoid duplicative motion practice. (Doc. 67). Defendant filed a response in opposition to the motion for leave to amend the complaints on the ground that the motion was premature because of its allegation that the Court lacks subject matter jurisdiction. (Doc. 70). The motion for leave to amend is also now ripe.


         Although Plaintiffs each filed a separate complaint, for purposes of determining subject matter jurisdiction, the relevant allegations are the same and are as follows:

         On April 25, 2015, Defendant Fairhope Yacht Club sponsored and hosted the 2015 Dauphin Island Race, which was a sailboat race that began in Baldwin County, Alabama, and concluded in Mobile County, Alabama, at Dauphin Island.[3] (Doc. 1 at pp. 1-2). In the months leading up to the race, the Yacht Club's Race Committee, the group responsible for the planning and safe conduct of the race, chose not to develop any form of safety plan to respond to emergencies that might arise during the race, nor did the Committee create any weather plan to inform its decision-making in the event of severe weather. (Id. at p. 2). Before the race, the Yacht Club applied to the United States Coast Guard (Coast Guard or USCG) for a permit to conduct the race. (Id.). In its application, the Yacht Club represented to the USCG that no unusual hazards to participants would be introduced into the Regatta Area. (Id.). While the Yacht Club listed no specific vessels it was providing for safety purposes on the application, it represented that it deemed its patrol adequate for safety purposes and requested no Coast Guard or Coast Guard Auxiliary Patrol. (Id.).

         The Coast Guard issued the permit and made it clear that the Yacht Club was responsible for the safe conduct of the event, including, but not limited to, instruction to and qualification of participants, safety equipment inspections, and rescue and first aid facilities. (Id.). The Coast Guard also instructed the Yacht Club that it "must be constantly aware of weather forecasts and conditions so that unsafe conditions can be identified and responded to, including termination of the event if necessary to ensure safety of all participants." (Id.). The Coast Guard permit specifically stated that: "This permit is issued on the condition that the sponsor furnish a sufficient number of rescue vessels to provide adequate safety for all participants. These vessels must be adequately identified as Event Committee Boats. They are direct representatives of the sponsor who is responsible for briefing and coordinating each vessel 's operation ensuring positive control for the event." (Id.).

         At 6:11 p.m. on the evening before the race, the National Oceanic and Atmospheric Administration (NOAA) issued a weather forecast that indicated severe thunderstorms were possibly headed towards the Mobile Bay area. (Id. at p.3). On the morning of the race, April 25, 2015, at 3:48 a.m., the NOAA's weather forecast indicated severe thunderstorms possible near the Mobile Bay area. (Id.). The National Weather Service (NWS) in Mobile also issued severe thunderstorm warnings for Mobile and Baldwin Counties the morning of the yacht race. (Id.). The Yacht Club hosted a breakfast event from 7:30 am to 8:30 a.m. for race participants. (Id.). The race was originally scheduled to begin at 9:30 a.m. (Id.). At approximately 7:44 a.m. on the day of the race, the Yacht Club caused a cancellation notice to be posted on its website for about 30 minutes, stating that the race had been cancelled due to inclement weather. (Id.). The cancellation notice was removed at the direction of the Yacht Club at about 8:10 a.m. (Id.).

         Before the start of the race, all participants were informed that the Yacht Club would communicate with race participants on Channel 68 of the VHF radio band. (Id.). Due to the Yacht Club's original decision to cancel the race, the start time of the race was delayed. (Id.). The Yacht Club also ordered a restart of the already delayed race that further delayed the official start. (Id.). The race ultimately began at 11:00 a.m., instead of the originally scheduled 9:30 a.m. start time. (Id.). In all, approximately 476 people were on board 117 boats when the yacht race began after the restart. (Id.).

         At about 1:35 p.m., the Storm Prediction Center posted another severe thunderstorm watch for the area including Mobile Bay. (Id. at p. 4). At about 2:21 p.m. the NWS in Mobile issued another severe thunderstorm warning for Mobile County as a line of storms began to approach from the western border of Alabama. (Id.). At approximately 2:30 p.m., the USCG called the Race Committee aboard the Race Committee Boat at the finish line via telephone and advised that potentially severe weather was incoming. (Id.). Sometime shortly thereafter, the USCG made a VHF radio transmission to the Race Committee Boat stating that it was "on station" nearby. (Id.). At about 2:47 p.m., the NWS issued a second severe thunderstorm warning, this one for the Baldwin County area. (Id.). At about 3:10 p.m., the storm entered Mobile Bay from the west. (Id.). As a result of the delayed start, most of the boats in the race were still in Mobile Bay at 3:10 p.m. (Id.). At about 3:15 p.m., Middle Bay Lighthouse recorded a wind gust of 73 MPH, which is one MPH under hurricane strength. (Id.). In addition to the land warnings, marine warnings were also issued. (Id.).

         As the deadly storm entered Mobile Bay, the Yacht Club's Principal Race Officer, Anne Fitzpatrick, and Race Committee Co-Chairman, John Hirsch, occupied a forty-eight (48) foot motor yacht positioned at the finish line near Dauphin Island. (Id.). This vessel, owned and/or controlled by Mr. Hirsch and/or Ms. Fitzpatrick as representatives of the Yacht Club, was capable of safely rendering assistance to nearby boats in danger of sinking. (Id.). However, despite their awareness of the danger faced by nearby race participants, Ms. Fitzpatrick and Mr. Hirsch chose not to share weather warnings on VHF Channel 68 and chose not to participate in any rescue efforts until the storm had passed. (Id. at pp. 4-5). During the storm, boats carrying the plaintiffs or their decedents capsized on the Mobile County side of Mobile Bay. (Id. at p. 5). A total of ten (10) boats sank during the yacht race, putting forty (40) people into the water, six (6) of whom lost their lives and several who suffered injuries. (Id.).

         One of the counts in Plaintiffs' Complaints asserts a cause of action for negligence. (Id.). Plaintiffs allege that Defendant sponsored a yacht race and had a duty to exercise due care for race participants. (Id.). Plaintiff further alleges that the Yacht Club's decision to reverse its initial decision to cancel the race due to the threat of inclement weather was negligent, and that its negligence in this regard caused many boats to be positioned directly in the path of the storm. (Id.). Plaintiff also alleges that Defendant negligently induced and incentivized race participants to race in extremely dangerous severe weather, negligently failed to warn the race participants of the approaching severe weather system of which it was aware, and negligently or willfully violated its USCG permit by not providing for sufficient safety and rescue boats, by failing to be constantly aware of weather forecasts and conditions so that unsafe conditions could be identified, by not communicating with participants regarding unsafe conditions, and by not terminating the event to ensure the safety of all participants. (Id. at pp. 5-6).

         Plaintiffs also assert a cause of action against Defendant for failure to provide assistance at sea as required by 46 U.S.C.A. § 2304. (Id. at p. 6). They allege that the co-chairs of Defendant's race committee, who were anchored at the finish line aboard a 48-foot motor yacht, were aware or should have been aware of the general location of the at-risk vessels and the imminent danger faced by the occupants of the at-risk vessels and deliberately failed to render assistance to the ...

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