United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
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.
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).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.
Plaintiffs each filed a separate complaint, for purposes of
determining subject matter jurisdiction, the relevant
allegations are the same and are as follows:
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. (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.).
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
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.).
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.).
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.).
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.).
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).
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 ...