In Re: In the Matter of American River Transportation Co. LLC.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF AMERICAN CIVIL ACTION

RIVER TRANSPORTATION, CO.,

LLC, AS THE OWNER AND

OPERATOR OF THE M/V NO: 18-2186

LOUISIANA LADY, PRAYING FOR

EXONERATION FROM OR

LIMITATION OF LIABILITY SECTION: "S" (2)

ORDER AND REASONS

IT IS HEREBY ORDERED that the Rule 12 motions filed by third-party defendant

Walter Kidde Portable Equipment, Inc. ("Kidde") (Rec. Doc. 53) are granted in part and denied

in part as follows:

IT IS ORDERED that Kidde's Rule 12(b)(6) motion to dismiss plaintiffs' LPLA claims

is granted;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(6) motion to dismiss plaintiffs'

products liability claims under the general maritime law for failure to state a claim is denied;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(6) motion to dismiss plaintiffs'

maintenance and cure claims against Kidde for failure to state a claim is granted as unopposed;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(6) motion to dismiss the

Graveses' claims for loss of financial support is denied, however counsel for the Graveses is

ordered to amend the complaint to allege dependency more specifically within 15 days of entry

of this order;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(1) motion to dismiss the

Graveses' wrongful death claims brought in their personal capacities is granted; and

IT IS FURTHER ORDERED that Kidde's motion to strike pursuant to Rule 12(f) is

denied.

BACKGROUND

On September 3, 2017, the M/V LOUISIANA LADY, an inland tug owned and operated

by American River Transportation Company ("ARTCO"), caught fire when it was doing fleet

work on the Mississippi River. The fire broke out in the deck locker on the vessel's main deck.

Two crew members, Spencer Graves and Ronald D. Neal, who were in their crew quarters on the

main deck, suffered smoke inhalation and loss of consciousness. Graves, who was a Jones Act

seaman aboard the vessel, died as a result of the accident. Neal, who was also a Jones Act

seaman aboard the vessel, sustained injuries as a result of the accident.

On March 1, 2018, ARTCO filed the instant petition for limitation of liability pursuant to

46 U.S.C. § 30501, et seq. and within the meaning of Rules 9(h) and F of the Supplemental

Rules of Admiralty or Maritime Claims and Asset Forfeiture Actions seeking exoneration from

or limitation of liability for the September 3, 2017, accident. Philip and Rebecca Whaley Graves,

Spencer Graves' parents, filed a claim in their individual capacities and as representatives of

Spencer Graves' estate. Neal also filed a claim.

On September 3, 2018, the claimants filed third-party claims against, inter alia, Walter

Kidde Portable Equipment, Inc. ("Kidde").1 The claims against Kidde were brought pursuant to

the Louisiana Products Liability Act, La. R.S. 9:2800.51 et seq., and the general maritime law. In

their third-party complaint, third-party plaintiffs (hereinafter, "plaintiffs") allege that an

1 Claimants originally identified this 3rd party defendant as United Technologies

Corporation d/b/a/ Kidde, Inc., but amended its complaint to name Walter Kidde Portable

Equipment, Inc. in its stead. Rec. Doc. 44, ¶ V.

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electronic cigarette with a lithium battery exploded on a shelf in the deck locker, ignited, caught

fire, and was propelled around the room, and that subsequently, the smoke and gas detectors and

alarms, allegedly manufactured by Kidde, all failed to work properly, resulting in Graves' death

Ronald Neal's injuries.

In this motion, Kidde seeks dismissal of the LPLA claims brought against it by claimants,

and the striking of certain allegations as redundant or immaterial. With respect to the dismissal

of the LPLA claims, Kidde premises its motion on two grounds:

(1) Pursuant to Federal Rule of Civil Procedure 12(b)(6), Kidde argues that claims under

the Louisiana Products Liability Act are inapplicable to this general maritime products liability

case, and plaintiffs have failed to properly allege any defect existed at the time Kidde's product

left Kidde's control, as is required under general maritime law and Section 402A of the

Restatement (Second) of Torts. Further, to the extent any claims have been properly made, Kidde

contends that relief cannot be granted because plaintiffs have admitted actual knowledge of the

purportedly unreasonably dangerous condition. To the extent any other claims remain, for non-

pecuniary (punitive) damages, maintenance and cure, found, and loss of financial support, Kidde

argues they are not available and must necessarily be dismissed.

(2) Pursuant to Federal Rule of Civil Procedure 12(b)(1), Kidde seeks dismissal of all

claims brought individually by Phillip Graves and Rebecca Whaley Graves, arguing that they

lack standing to bring any action in their individual capacities, and therefore the court lacks

subject matter jurisdiction.

Additionally, Kidde argues pursuant to Federal Rule of Civil Procedure 12(f), that

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paragraphs 88 and 106(h) of Claimants' Master Complaint, Counter-Claims, and Third-Party

Complaint for Damages (Rec. Doc. 31), should be stricken, because they invoke res ipsa

loquitur, which is an evidentiary doctrine, rather than a separate cause of action, and claims for

past and future meals, lodging and found, contending they are redundant.

ANALYSIS

I. Motion to Dismiss Under Federal Rule 12(b)(6)

Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted. "To survive a Rule

12(b)(6) motion to dismiss, 'enough facts to state a claim for relief that is plausible on its face'

must be pleaded." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)

(quoting Bell Atl. v. Twombly, 550 U.S. 544 (2007). A claim is plausible on its face when the

plaintiff pleads facts from which the court can “draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual

allegations must be enough to raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,

550 U.S. 544, 555 (citations omitted). The court “must accept all well-pleaded facts as true and

view them in the light most favorable to the non-moving party.” In re S. Scrap Material Co.,

LLC, 541 F.3d 584, 587 (5th Cir. 2008). However, the court need not accept legal conclusions

couched as factual allegations as true. Iqbal, 556 U.S. at 678.

LPLA vs. General Maritime Law

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Kidde contends that the claims against it are governed by the general maritime law,

which preempts Louisiana state law (specifically the Louisiana Products Liability Act

("LPLA")), and thus plaintiffs' claims brought under the LPLA must be dismissed. Plaintiffs

contend that the LPLA may be applied in cases in which it does not conflict with the LPLA, and

that Kidde has not identified a conflict between the two that prevents application of the LPLA.

It is undisputed that this matter lies within the court's admiralty jurisdiction. “With

admiralty jurisdiction comes the application of substantive admiralty law. Absent a relevant

statute, the general maritime law, as developed by the judiciary, applies.” East River S.S. Corp.

v. Transamerica Delaval, Inc. 476 U.S. 858, 864 (1986) (citations omitted). "Drawn from state

and federal sources, the general maritime law is an amalgam of traditional common-law rules,

modifications of those rules, and newly created rules." Id. (citations omitted).

In East River, the Supreme Court acknowledged that it had developed a body of maritime

tort principles, and questioned whether it should "incorporate products-liability concepts, long a

part of the common law of torts, into the general maritime law." Id. at 865. The Supreme Court

recognized that "the Courts of Appeals sitting in admiralty overwhelmingly have adopted

concepts of products liability, based both on negligence and on strict liability. Id. (citations

omitted). The Supreme Court unequivocally "join[ed] the Courts of Appeals in recognizing

products liability, including strict liability, as part of the general maritime law." Id. The Fifth

Circuit and the majority of circuit courts have imported and applied the Restatement (Second) of

Torts § 402A as the applicable general maritime law in maritime products liability actions.

Transco Syndicate No. 1, Ltd. v. Bollinger Shipyards, Inc., 1 F. Supp. 2d 608, 614 (E.D. La.

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1998) (citing Vickers v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir.1987); Ocean Barge

Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 123 (3d Cir.1984); Pan–Alaska

Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129, 1134 (9th Cir.1977) (stating that

Restatement § 402 is the “best and most widely-accepted expression of the theory of strict

liability.”); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir.1972); McKee

v. Brunswick Corp. 354 F.2d 577, 584 (7th Cir.1965)(same); 1 Thomas J. Schoenbaum,

ADMIRALTY AND MARITIME LAW § 5–7 (5th ed. 2012) (“The applicable substantive law of

products liability in admiralty is Section 402A of the Restatement (Second) of Torts.”).

And, while there is some authority that the LPLA may be applied to maritime actions

when its provisions do not conflict with Section 402A of the Restatement (Second) of Torts, see

Transco, 1 F. Supp. 2d at 614, a recent case from this district analyzed the question, and

determined that there is no basis to supplement the general maritime law of products liability

with the LPLA. Parekh v. Argonautica Shipping Investments B.V., 2017 WL 3456300, at *2–3

(E.D. La. Aug. 11, 2017). In Parekh, the court noted that the Supreme Court has approved the

application of state law where it serves to supplement, but not contravene, the general maritime

law by filling a gap in the general maritime law. Id. at *2 (citing Yamaha Motor Corp., U.S.A. v.

Calhoun, 516 U.S. 199, 206 (1996)). The court observed that the general maritime law may be

supplemented with state law when three conditions are present: “'(1) where there is no applicable

admiralty rule; (2) where local and state interests predominate; and (3) where the uniformity

principle is not crucial.'” Id. (citing 1Schoenbaum at § 4–2 (citing Wilburn Boat Co. v.

Fireman’s Fund Ins. Co., 348 U.S. 310, (1955); Southern Pacific Co. v. Jensen, 244 U.S. 205,

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216 (1917)).

Because both the Supreme Court and the Fifth Circuit have embraced Section 402A of

the Restatement (Second) of Torts as the applicable rule for strict products liability under general

maritime law, there is no gap in the products liability regime of the general maritime law. Thus,

the first requirement for supplementation by the LPLA is not met. Id. at *2. The Parekh court

also found that the second and third requirements were not met, because "by applying the

Restatement [rather than state law] in maritime products liability cases, 'the Court furthers the

federal interest in establishing uniform rules of maritime law.'" Id. at *3. Based on this rationale,

the Parekh court declined to supplement the general maritime law with state law, and considered

plaintiff's claims under the general maritime law.

The reasoning in Parekh is well-founded, and results in maintaining uniformity in

admiralty cases. Accordingly, in this case, the general maritime law of products liability applies,

and plaintiffs' products liability claims brought pursuant to the LPLA are dismissed. However,

the court notes that the plaintiffs also invoked the general maritime law in connection with the

products liability allegations, and the court thus will consider plaintiffs' products liability claims

under Section 402A of the Restatement (Second) of Torts.

Restatement (Second) of Torts

Section 402A of the Restatement (Second) of Torts provides as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to

the user or consumer or to his property is subject to liability for physical harm

thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

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(b) it is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of

his product, and

(b) the user or consumer has not bought the product from or entered into

any contractual relation with the seller.

The commentary to this provision further provides:

Contributory negligence. Since the liability with which this Section deals

is not based upon negligence of the seller, but is strict liability, the rule applied to

strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is

not a defense when such negligence consists merely in a failure to discover the

defect in the product, or to guard against the possibility of its existence. On the

other hand the form of contributory negligence which consists in voluntarily and

unreasonably proceeding to encounter a known danger, and commonly passes

under the name of assumption of risk, is a defense under this Section as in other

cases of strict liability. If the user or consumer discovers the defect and is aware

of the danger, and nevertheless proceeds unreasonably to make use of the product

and is injured by it, he is barred from recovery.

RESTATEMENT (SECOND) OF TORTS (1965) § 402A, cmt. n (emphasis added).

Applying these principles, Kidde argues that because plaintiffs have acknowledged actual

knowledge of the unreasonably dangerous condition, they may not recover. Plaintiffs counter

that they did not allege actual personal knowledge of the alleged defects in the Kidde detection

and alarm systems, and that even if they did, that defense applies only to failure to warn claims,

citing Authement v. Ingram Barge Co., 977 F. Supp. 2d 606 (E.D. La. 2013).

Plaintiffs alleged that "Crewmembers, including Claimants, notified Petitioner and its

Captains, Engineers, and Vessel Manager, on numerous occasions prior to the September 3, 2017

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fire and casualties aboard the M/V LOUSIANA of the defective, dysfunctional and inoperable

heat, fire, smoke and/or gas detection, protection and alarm systems . . . " Rec. Doc. 31, ¶ 38.

Thus, it appears that plaintiffs did in fact acknowledge their personal, actual knowledge of the

alleged Kidde defects. Moreover, while the Authement case pointed to by plaintiffs discussed the

fact that actual knowledge is an affirmative defense to a failure to warn claim, it does not suggest

that the actual knowledge defense applies solely to such claims. To the contrary, the clear

language of comment "n" to the section 402A of the Restatement is that "if the user or consumer

discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make

use of the product and is injured by it, he is barred from recovery."

However, comment "n" requires that a claimant voluntarily proceed in the presence of a

known risk. In this vein, section 496(E) of the Restatement (Second), "Necessity of Voluntary

Assumption," provides that:

a. Since the basis of assumption of risk is the plaintiff's willingness to accept the

risk, take his chances, and look out for himself, his choice in doing so must be a

voluntary one. If the plaintiff's words or conduct make it clear that he refuses to

accept the risk, he does not assume it.

RESTATEMENT (SECOND) OF TORTS § 496E.

The allegations in this case do not suggest that plaintiffs herein voluntarily assumed the

risk of the defective gas and smoke detectors; in fact, they suggest the opposite: that plaintiffs

and other crew members lodged numerous complaints about the state of disrepair of the alarm

systems. However, given their position as crewmen on the ship, they were not in a position to

sleep elsewhere besides the crew quarters. They simply had no choice but to accept the sleeping

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conditions on board. In this context, they cannot be said to have voluntarily assumed the risk

associated with faulty gas and smoke detectors. Accordingly, the affirmative defense of

assumption of the risk is inapplicable in this case.

Failure to State a Claim

Kidde also argues that plaintiffs have failed to state a maritime products liability claim

under section 402A. Kidde contends that under section 402A, a plaintiff must allege, among

other things, "that the product was unreasonably dangerous or was in a defective condidtion

when it left he defendant's control," citing In re M/V DANIELLE BOUCHARD, 164 F. Supp. 2d

794, 798 (E.D. La. 2001)(quoting 1. Thomas J. Schoenbaum, ADMIRALTY & MARITIME LAW §

5-6 (3d ed. 2001). Kidde argues that plaintiffs' allegations in this respect are inadquate.

Plaintiffs allege, inter alia, that the third-party defendants, including Kidde, "knew, as of

the time the defective products left their control . . . that the defective products possessed

dangerous characteristics known to cause injuries, such as those sustained by Claimants. Rec.

Doc. 31, ¶ 87(j). They further alleged that third-party defendants, including Kidde, "are strictly

liable as the manufacturers, installers and/or servicers because at the time the defective products

left their control . . .. they knew, or could have known, of the characteristics that caused

Claimants' injuries. . . ." Id. at ¶ 87(o). Thus, the court declines to dismiss plaintiffs' general

maritime law product liability claims against Kidde.

Non-Pecuniary Damages

Plaintiffs acknowledge that the non-pecuniary damages sought, namely, punitive

damages, are not available under controlling case law in this circuit, including McBride v. Estis

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Well Serv., LLC,768 F.3d 382 (5th Cir. 2014) (en banc). However, plaintiffs ask the court to

defer ruling on these claims pending the Supreme Court's decision in Batterton v. Dutra Group,

880 F.3d 1089 (9th Cir. 2018), cert. granted, Dutra Group v. Batterton, 139 S. Ct. 627

(Mem)(Dec. 7, 2018), in which the district court declined to strike or dismiss claims for

non-pecuniary damages brought under the general maritime law. Plaintiffs argue that deferral is

appropriate because there is a distinct possibility that the U.S. Supreme Court may overrule

McBride, and authorize recovery of non-pecuniary damages under the general maritime law.

This circuit has held that “neither one who has invoked his Jones Act seaman status nor

his survivors may recover nonpecuniary damages from non-employer third parties.”

Scarborough v. Clemco Indus.,391 F.3d 660, 668 (5th Cir. 2004) (emphasis added). Dutra and

McBride both involve a claim against a Jones Act employer, not against a non-employer third

party, as is the case with plaintiffs' claims against Kidde. Thus, it does not necessarily follow that

the Supreme Court's ruling in Dutra, even if it overruled McBride, would overrule Scarborough.

Accordingly, the pendency of that action does not provide a basis for deferring ruling on this

portion of the instant motion. In addressing the plaintiffs' punitive damages claims against their

employer in a prior ruling, the court stated that "in the face of clear and applicable precedent

rendering the punitive damage claims herein invalid, petitioner is entitled to dismissal of the

claims. . . ." See Rec. Docs. 30 & 43. Likewise, Kidde is entitled to dismissal of plaintiffs' non-

pecuniary punitive damages claims.

Claims for Loss of Financial Support

The Graves plaintiffs also seek damages for the loss of their son's financial support.

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Kidde contends that no facts have been alleged to establish either parent was financially

dependent on Spencer William Graves.

“[U]nder the maritime wrongful death remedy, the members of the decedent's dependents

may recover damages for their loss of support.” Sea-Land Services Inc. v. Gaudet, 414 U.S. 573

(1974). “Dependency” carries its ordinary meaning for the purposes of general maritime

wrongful death claims. Neal v. Barisich, Inc., 707 F. Supp. 862, 872 (E.D. La. 1989). In moving

to dismiss, defendants argue that plaintiffs have failed to allege facts that suggest Phillip Graves

or Rebecca Whaley Graves were dependent on their son prior to his death.

The court's review of the complaint reflects that plaintiffs alleged that the death of their

son greatly affected his parents . . . and as a consequence, they are entitled to damages." Rec.

Doc. 31 ¶ 111. They specifically request damages for loss of financial support to Spencer

William Graves' parents. Id., ¶ 119(e). These allegations are enough to put Kidde on notice of the

claim. Accordingly, they are not subject to dismissal. However, counsel for the Graveses is

ordered to amend the complaint to allege dependency more specifically within 15 days of entry

of this order. See Fed. R. Civ. P. 15(a)(2).

Maintenance and Cure claims

Plaintiffs acknowledge that they are not entitled to maintenance and cure and found from

this defendant. Accordingly, those claims against Kidde are dismissed.

II. Motion to Dismiss Under Federal Rule 12(b)(1)

“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party

to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v.

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United States, 281 F.3d 158, 161 (5th Cir. 2001). “Lack of subject matter jurisdiction may be

found in any one of three instances; (1) the complaint alone; (2) the complaint supplemented by

undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts

plus the court's resolution of disputed facts.” Id. In a 12(b)(1) motion, the party asserting

jurisdiction bears the burden of proof that jurisdiction does in fact exists. Id.

Kidde seeks dismissal of all claims brought individually by Phillip Graves and Rebecca

Whaley Graves, arguing that they lack standing to bring any action in their individual capacities,

and therefore the court lacks subject matter jurisdiction. Specifically, Kidde argues that only the

decedent’s personal representative may bring suit on behalf of the beneficiaries, and thus no

action may be asserted individually, as it is already encompassed in the representative’s action.

Defendants contend that the Graveses have their own personal wrongful death claims, which

they are bringing individually, which are distinct from their son's survival claim, which is

brought in their capacity as co-administrators of the Succession of Spencer William Graves.

Under both the Jones Act and general maritime law, only the personal representative of a

decedent's estate has standing to initiate suit for any survival damages (which inure to the

decedent's estate and ultimately to the estate's beneficiaries) and for any wrongful death damages

(which inure directly to the decedent's survivors). Neal, 707 F. Supp. at 865 (citing Ivy v.

Security Barge Lines, Inc., 585 F.2d 732, 734–35 (5th Cir.1978), modified en banc on other

grounds, 606 F.2d 524 (5th Cir.1979), cert. denied, 446 U.S. 956 (1980). Accordingly, the

Graveses lack procedural capacity to pursue wrongful death claims in their individual capacities,

and those claims, to the extent they are brought in the Graveses' individual capacities, must be

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dismissed. The claims may be pursued by the Graveses in their capacities as co-administrators of

their son's succession. Accordingly, the motion to dismiss under Rule 12(b)(1) is granted.

II. Motion to Strike Under Federal Rule of Civil Procedure 12(f)

Under Rule 12(f) of the Federal Rules of Civil Procedure the court may strike “from any

pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” Fed. R. Civ. P. 12(f). Rule 12(f) motions are generally disfavored and rarely granted.

Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla., 306 F.2d 862, 868 (5th Cir. 1962). “It

is a drastic remedy to be resorted to only when required for the purposes of justice [and] should

be granted only when the pleading to be stricken has no possible relation to the controversy.” Id.

(quotation omitted). The court cannot decide a disputed issue of fact on a motion to strike. Id.

Further, the court should not determine disputed and substantial questions of law when there is

no showing of prejudicial harm to the moving party. Id. “Under such circumstances the court

[should] defer action on the motion and leave the sufficiency of the allegations for determination

on the merits.” Id.

Kidde argues pursuant to Federal Rule 12(f), that paragraph 88 should be stricken as

immaterial and paragraph 106(h) should be stricken as redundant.

With respect to paragraph 88, Kidde takes issue with the statement that “Claimants

further pled [sic] the doctrine of res ipsa loquitur.” Kidde agues that the paragraph should be

stricken as immaterial pursuant to Rule 12(f), because “Res ipsa loquitur is… not a separate

cause of action; rather, it is an evidentiary doctrine that permits the trier of fact to infer

negligence from circumstantial evidence,” citing Gandhi v. Carnival Corp., 2014 WL 1028940,

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at *2 (S.D. Fla. Mar. 14, 2014). Plaintiffs have responded that they invoked the doctrine in their

complaint solely as an evidentiary mechanism, and not as a separate cause of action. That is

how the court has interpreted it and how the court will go forward.

Finally, with respect to Kidde's argument that the claim for past and future meals,

lodging, and found at paragraph 106(h) should be stricken because they are redundant of

plaintiffs' wage loss claims, the court disagrees. As discussed by Professor David Normann in

Has Found Been Lost? An Analysis of A Seldom Utilized Concept in the Maritime Law, 14

LOY. MAR. L.J. 92, 94 (2014), while found is sometimes merged with cash wages, that is not

always the case, and there are advantages to maintaining found as a distinct concept and element

of damages. While it is true that found may be duplicative of past and future meals and lodging

(although not with maintenance, see Normann, supra), the court can ensure that no double

recovery occurs. Accordingly, the Rule 12(f) motion is denied.

CONCLUSION

IT IS ORDERED that Kidde's Rule 12(b)(6) motion to dismiss plaintiffs' LPLA claims

is granted;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(6) motion to dismiss plaintiffs'

products liability claims under the general maritime law for failure to state a claim is denied;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(6) motion to dismiss plaintiffs'

maintenance and cure claims against Kidde for failure to state a claim is granted as unopposed;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(6) motion to dismiss the

Graveses' claims for loss of financial support is denied, however counsel for the Graveses is

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ordered to amend the complaint to allege dependency more specifically within 15 days of entry

of this order;

IT IS FURTHER ORDERED that Kidde's Rule 12(b)(1) motion to dismiss the

Graveses' wrongful death claims brought in their personal capacities is granted; and

IT IS FURTHER ORDERED that Kidde's motion to strike pursuant to Rule 12(f) is

denied.

New Orleans, Louisiana, this 2nd day of July, 2019.

MARY fs VIAL LEMMON

UNITED STATES DISTRICT JUDGE

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