Opinion
Case No. 4:20-cv-10098-KMM
2020-11-24
BORDELON MARINE, LLC, Plaintiff, v. ETRAC, INC., et al., Defendants.
Charles Gullette De Leo, Jan Michael Kuylenstierna, De Leo & Kuylenstierna P.A., Miami, FL, Lawrence R. Plunkett, Jr., Pro Hac Vice, Reich, Album & Plunkett, L.L.C., Metairie, LA, Ryon Lyndon Little, De Leo & Kuylenstierna, P.A., MIami, FL, for Plaintiff. Allan Richard Kelley, Fowler White Burnett, Miami, FL, John D. Giffin, Pro Hac Vice, Keesal, Young & Logan, San Francisco, CA, for Defendant ETRAC, INC. Sarah Keast, Jared Hardin Hood, US Department of Justice, Civil Division, Washington, DC, for Defendants United States of America, National Oceanographic and Atmospheric Administration. Brett J. Novick, William Petros Law, William Lawrence Petros, Petros & Elegant, Coral Gables, FL, James Spiros, Pro Hac Vice, Matthew Duco, Pro Hac Vice, Miranda L. Soucie, Pro Hac Vice, Spiros Law, P.C., Danville, IL, for Defendants The Florida Keys Commercial Fishermen's Association, Frank Arencibia, Sr., Jesus A. Diaz, Ricardo Diaz, Juan A. Paan, Jr., Juan A. Paan, Sr., Emilia C. Paan-Palma, Ruben Ravelo, Manuel Ravelo. William Lawrence Petros, Petros & Elegant, Coral Gables, FL, for Defendant Martin L. Heidman.
Charles Gullette De Leo, Jan Michael Kuylenstierna, De Leo & Kuylenstierna P.A., Miami, FL, Lawrence R. Plunkett, Jr., Pro Hac Vice, Reich, Album & Plunkett, L.L.C., Metairie, LA, Ryon Lyndon Little, De Leo & Kuylenstierna, P.A., MIami, FL, for Plaintiff.
Allan Richard Kelley, Fowler White Burnett, Miami, FL, John D. Giffin, Pro Hac Vice, Keesal, Young & Logan, San Francisco, CA, for Defendant ETRAC, INC.
Sarah Keast, Jared Hardin Hood, US Department of Justice, Civil Division, Washington, DC, for Defendants United States of America, National Oceanographic and Atmospheric Administration.
Brett J. Novick, William Petros Law, William Lawrence Petros, Petros & Elegant, Coral Gables, FL, James Spiros, Pro Hac Vice, Matthew Duco, Pro Hac Vice, Miranda L. Soucie, Pro Hac Vice, Spiros Law, P.C., Danville, IL, for Defendants The Florida Keys Commercial Fishermen's Association, Frank Arencibia, Sr., Jesus A. Diaz, Ricardo Diaz, Juan A. Paan, Jr., Juan A. Paan, Sr., Emilia C. Paan-Palma, Ruben Ravelo, Manuel Ravelo.
William Lawrence Petros, Petros & Elegant, Coral Gables, FL, for Defendant Martin L. Heidman.
OMNIBUS ORDER
K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendants Florida Keys Commercial Fishermen's Association, Francisco Arencibia, Sr., Jesus Diaz, Ricardo Diaz, Juan Paan, Sr., Juan Paan, Jr., Emilia Paan-Palma, Manuel Ravelo, and Ruben Ravelo's ("Commercial Lobstermen Defendants") Motion to Dismiss ("Commercial Lobstermen Mot.") (ECF No. 25) and Defendant United States of America's ("Government") Motion to Dismiss ("Govt. Mot.") (ECF No. 42). Plaintiff Bordelon Marine, LLC ("Plaintiff") filed Responses in Opposition ("Resp. to Commercial Lobstermen Mot.") (ECF No. 28); ("Resp. to Govt. Mot.") (ECF No. 46). Commercial Lobstermen Defendants and the Government filed Replies. ("Commercial Lobstermen Reply") (ECF No. 32); ("Govt. Reply") (ECF No. 47). The Motions are now ripe for review.
The following background facts are taken from the Complaint for Declaratory Relief ("Compl.") (ECF No. 1) and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam Indus., Inc. , No. 09-22089-CIV-MOORE/SIMONTON, 2009 WL 10668267, at *1 (S.D. Fla. Oct. 21, 2009).
This action arises under the Court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333 and the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq. ("SAA"). Compl. ¶ 1. Plaintiff seeks declaratory judgment to determine the relative liability of the parties for alleged damages to Commercial Lobstermen Defendants’ spiny lobster gear while Plaintiff facilitated a hydrographic survey in Key West, Florida. Id. ¶¶ 2, 4. Other named defendants in this action include the National Oceanographic and Atmospheric Administration ("NOAA") and ETRAC, Inc. ("ETRAC"). See generally id.
In July 2018, NOAA, on behalf of the United States, contracted with ETRAC to conduct a hydrographic survey in the navigable waters off Key West. Id. ¶ 20. The contract provided that the survey would commence in August 2018 and conclude in December 2018, overlapping with the spiny lobster commercial fishing season. Id. ¶¶ 21–22. In September 2018, ETRAC chartered the M/V Marcelle Bordelon from Plaintiff to serve as ETRAC's vessel to conduct the survey. Id. ¶ 24. On or about September 18, 2018, the M/V Marcelle Bordelon arrived in Key West and the survey commenced. Id. ¶ 25. In late September and continuing into October 2018, the Florida Keys Commercial Fishermen's Association advised ETRAC that the survey was damaging spiny lobster gear in the survey area. Id. ¶¶ 27–28. On October 26, 2018, "all vessel operations related to the hydrographic survey were ceased" and the M/V Marcelle Bordelon departed Key West the following day. Id. ¶ 29. In December 2019, Plaintiff received a demand letter from counsel representing seven of the named Commercial Lobstermen Defendants indicating that they intended to bring claims against Plaintiff. Id. ¶¶ 32–33.
On August 18, 2020, nearly two years from the date the survey commenced, Plaintiff filed its Complaint for Declaratory Relief, in part to preserve its right to seek indemnification and contribution claims against the United States, NOAA, and ETRAC, which it was concerned would soon be deemed time barred by the SAA's two-year statute of limitations. See generally id. Plaintiff's Complaint for Declaratory Relief specifically requests that the Court: (1) determine that ETRAC is not an agent of the United States for the purposes of the SAA's two-year statute of limitations and any claims related to the hydrographic survey; (2) under a maritime indemnity theory, enter judgment against the United States, NOAA, and ETRAC for any amount Plaintiff may be required to pay Commercial Lobstermen Defendants; (3) under a contractual indemnity theory, enter judgment against ETRAC for any amount Plaintiff may be required to pay Commercial Lobstermen Defendants; (4) determine that Plaintiff is entitled to contribution from the United States, NOAA, and ETRAC for any amounts in excess of its pro rata share (if any) of responsibility; and (5) determine that Plaintiff has no liability to Commercial Lobstermen Defendants for any damage to commercial lobster gear that resulted from the hydrographic survey. Id. Plaintiff further seeks an award for the costs of suit and attorney's fees in connection with its claim. Id.
Now, Commercial Lobstermen Defendants and the Government move the Court to dismiss Plaintiff's Complaint for Declaratory Judgment pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See generally Commercial Lobstermen Mot. and Govt. Mot.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). This requirement "give[s] the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and alterations omitted). The court takes the plaintiff's factual allegations as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008).
A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int'l Univ. , 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers "a formulaic recitation of the elements of a cause of action will not do." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis , 297 F.3d 1182, 1188 (11th Cir. 2002).
III. DISCUSSION
Commercial Lobstermen Defendants move to dismiss Plaintiff's Complaint for Declaratory Judgment arguing that (1) the Declaratory Judgement Act does not permit actions that circumvent the traditional methods of litigating claims; (2) there is no danger that Plaintiff will be barred by the SAA's two-year statute of limitations for bringing claims against the federal government; and (3) the Complaint fails to allege facts sufficient to raise any theory of contribution or indemnification against the United States or NOAA. See generally Commercial Lobstermen Mot. The Government supports Commercial Lobstermen Defendants’ arguments and further argues that (4) venue is improper; and (5) NOAA is not a proper defendant and should be dismissed. See genera lly Govt. Mot. These arguments are addressed in turn below.
The Parties dispute whether Plaintiff would be time barred by the SAA's two-year statute of limitations for bringing a claim for contribution against the federal government (here, the United States, NOAA, and potentially ETRAC by extension). While the applicability of a statute of limitations might be a sufficient reason to seek declaratory judgment because Plaintiff was at risk of being solely liable for Commercial Lobstermen Defendants alleged damages, the inapplicability of a statute of limitations has no bearing on whether Plaintiff stated a cognizable claim for relief, and therefore does not warrant dismissal. Accordingly, the Court declines to consider whether the SAA's statute of limitations is applicable to Plaintiff's claims at this stage.
A. Plaintiff's Complaint for Declaratory Judgment Does Not Circumvent Traditional Methods of Litigation
Commercial Lobstermen Defendants argue that Plaintiff's Complaint for Declaratory Judgment is "nothing more than an attempt to compel the individuals it has harmed [ ] in a run of the mill negligence claim into court [at] a time of Bordelon's choosing," and that it "merely raises piecemeal issues to be litigated within the substantive lawsuit now on file by the commercial lobstermen Defendants." Commercial Lobstermen Mot. at 7. The Government joins Commercial Lobstermen Defendants in this argument, stating "the Declaratory Judgment Act is not a tool to compel potential negligence plaintiffs to litigate their claims at a time and in a forum chosen by the alleged tortfeasors." Govt. Mot. at 5. Plaintiff contends that its Complaint is proper because a two-year statute of limitations under the SAA, which could potentially serve as a barrier to seeking a claim for contribution against the United States, NOAA, and ETRAC, was quickly approaching and Commercial Lobstermen Defendants had not yet filed suit. Resp. to Commercial Lobstermen Mot. at 7. Accordingly, if Plaintiff was time barred from seeking contribution, Plaintiff faced a threat of harm of being solely liable for Commercial Lobstermen Defendants’ alleged damages. Id. at 8.
The Declaratory Judgment Act provides that "[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). When declaratory judgment is sought, as a threshold matter, a "justiciable controversy" must exist. See Atlanta Gas Light Co. v. Aetna Cas. and Sur. Co. , 68 F.3d 409, 414 (11th Cir. 1995). "The controversy must be more than conjectural; the case must touch [ ] the legal relations of parties having adverse legal interests." Id. (internal quotations and citations omitted). The party seeking declaratory judgment in federal court must show "that at the time the complaint was filed, he has suffered some actual or threatened injury resulting from the defendant's conduct, that the injury fairly can be traced to the challenged action, and that the injury is likely to be redressed by favorable court disposition." Id. (citing U.S. Fire Ins. Co. v. Caulkins Indiantown Citrus Co. , 931 F.2d 744, 747 (11th Cir. 1991) ). "Generally, the Act allows prospective defendants to sue to establish non-liability, or affords a party threatened with liability an opportunity for adjudication before its adversary commences litigation." Melton v. Century Arms, Inc. , 243 F. Supp. 3d 1290, 1308 (S.D. Fla. 2017).
Here, nine months after being served with a demand letter from counsel representing Commercial Lobstermen Defendants and with a potential statute of limitations deadline approaching, Plaintiff filed its Complaint for Declaratory Judgment to determine the liabilities of the parties involved in this matter to protect itself from being solely liable for Commercial Lobstermen Defendants’ alleged damages. Plaintiff's actions do not appear to usurp the traditional methods of litigation. Rather, Plaintiff appears to have acted out of an abundance of caution considering what it feared was a potentially applicable and imminent statute of limitations deadline. To the extent that Commercial Lobstermen Defendants challenge the justiciability of the controversy presented in the Complaint, their argument is deceived by their filing of a Counterclaim, Crossclaim, and Third-Party Complaint. See generally (ECF No. 25-1). Therein, Commercial Lobstermen Defendants assert claims against Plaintiff, inter alia , for negligence and conversion arising out of the same factual circumstances described in Plaintiff's Complaint. See generally id. Indeed, Commercial Lobstermen Defendants highlight their "adverse legal interests," interests that are so adverse that they require an entirely new pleading to defend. See generally id.
The Court finds that, because Plaintiff faced a threat of harm and a justiciable controversy among the parties exists, Plaintiff's Complaint for Declaratory Relief is proper and is not a misappropriation of the Declaratory Judgment Act. Accordingly, the Court declines to dismiss Plaintiff's Complaint for Declaratory Judgment on this basis. B. Plaintiff Sufficiently Alleges Claims Against the Government
Commercial Lobstermen Defendants argue that the contract drafted by NOAA makes "clear that [Plaintiff] and ETRAC—not the federal government—were responsible for ensuring the safe operation of the Marcelle Bordelon in compliance with Florida law and without destroying the [Commercial Lobstermen] Defendants’ property and livelihoods." Commercial Lobstermen Mot. at 9–10. The Government "joins and adopts the [Commercial Lobstermen] Defendants’ argument that [Plaintiff] has failed to state a claim against the United States," arguing that Plaintiff's "conclusory allegations are contradicted by the face of the contract between the United States and eTrac, and the United States is aware of no possible legal basis for an alleged duty—to the [Commercial Lobstermen Defendants or Plaintiff]—not to contract for surveying whatsoever during fishing season." Govt. Mot. at 10. Plaintiff argues that it is incorrect to presume, for purposes of determining whether Plaintiff failed to state a claim or allege facts sufficient to state a claim, that the contract reached between NOAA and ETRAC controls Plaintiff's claims against the United States and NOAA. Resp. to Govt. Mot. at 12–13.
When reviewing a motion to dismiss, courts are generally bound "to the face of the complaint and attachments thereto." Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1368 (11th Cir. 1997). An exception exists where "a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss." Fin. Sec. Assurance, Inc. v. Stephens, Inc. , 500 F.3d 1276, 1284 (11th Cir. 2007). "However, the Court may not engage in contract interpretation at the motion to dismiss stage, as these arguments are more appropriate for summary judgment." Geter v. Galardi S. Enters., Inc. , 43 F. Supp. 3d 1322, 1328 (S.D. Fla. 2014) (internal quotation omitted); see also Tarantino v. Riddell , No. 17-CV-60567, 2018 WL 2011551, at *5 (S.D. Fla. Apr. 30, 2018) ("Interpretation of ambiguous contracts at the motion to dismiss stage is generally inappropriate since it requires a court to examine facts and make determinations based on what one party believes the language of the contract to say.") (internal quotation omitted).
Commercial Lobstermen Defendants attach to their Motion to Dismiss, Counterclaim, Crossclaim, and Third-Party Complaint a copy of the written agreement between NOAA and ETRAC governing the contract work related to the hydrographic survey at issue here, which Plaintiff referenced in its Complaint. (ECF Nos. 1, 25-1). Commercial Lobstermen Defendants ask the Court to rely on the written agreement reached between NOAA and ETRAC and essentially determine that it serves as a waiver of liability as to the United States and NOAA, and that Plaintiff was bound to the terms agreed upon therein by extension. Yet, the agreement bares no reference to Plaintiff, nor does it in any way suggest that by conferring liability upon ETRAC that the United States and NOAA are thereby relieved of any and all liability. The extent to which the written agreement between NOAA and ETRAC extends to third-party contractors, like Plaintiff here, and the extent to which it waives liability against the United States and NOAA, requires contractual interpretation that is not appropriate at the motion to dismiss stage. See Geter , 43 F. Supp. 3d at 1328.
The sufficiency of Plaintiff's allegations against the Government are not undermined by Commercial Lobstermen Defendants’ presentation of the contract between NOAA and ETRAC. Accordingly, the Court declines to dismiss Plaintiff's Complaint for Declaratory Judgment on this basis.
C. Venue is Proper in the Southern District of Florida
The Government argues that venue is improper in the Southern District of Florida because Plaintiff's principal place of business is in Lockport, Louisiana, and the subject vessel is not located within the Southern District of Florida. Govt. Mot. at 3. The Government acknowledges that transferring the action to another district is an available remedial measure, but argues that since "this action is based on procedural fencing, and all [Commercial Lobstermen] Defendants are citizens of and domiciled in either Key West, Marathon, or Summerland Key, Florida ... it is unlikely that the interests of justice would be served by [transferring Plaintiff's] declaratory judgment action to Louisiana or Virginia." Id. at 4. Thus, the Government argues that the Complaint should be dismissed for improper venue under Federal Rule of Civil Procedure 12(b)(3). Id. at 5; Fed. R. Civ. P. 12(b)(3). Plaintiff argues that venue is proper in the Southern District of Florida because the subject vessel will return to the Southern District of Florida to allow for inspection by the parties’ maritime experts. Resp. to Govt. Mot. at 7. Plaintiff further argues that certain cargo at issue is located within the Southern District of Florida. Id. Finally, Plaintiff argues that if the Court determines that venue is not proper in the Southern District of Florida, the Complaint should be transferred to another district rather than being dismissed outright. Id. at 8.
The SAA's venue provision provides that "[a] civil action under this chapter shall be brought in the district court of the United States for the district in which (1) any plaintiff resides or has its principal place of business; or (2) the vessel or cargo is found." § 30906(a). The Second Circuit, addressing venue under the SAA, held that the subject vessel's presence in the jurisdiction during the pendency of the action cures any original defect as to venue. See Gill v. United States , 184 F.2d 49, 51 (2d Cir. 1950) ; see also Preussler v. United States , 102 F. Supp. 274, 275 (S.D.N.Y. 1952) (finding venue to be improper where the vessel's presence in the district was a "mere possibility" rather than a likelihood).
The Government contends that the Court should instead rely on more recent interpretations of the venue provision of the Public Vessels Act ("PVA"), 46 U.S.C. § 31104. Courts have interpreted the PVA's venue provision to confer jurisdiction in the district in the jurisdiction where the vessel is located at the time the action is commenced. See, e.g. , Dueitt v. United States , 204 F. Supp. 3d 1373, 1374 (S.D. Fla. 2016). The Government argues that the Second Circuit's interpretation of the SAA venue provision is outdated, but points to no authority supporting the proposition that judicial interpretation of venue under the PVA extends to cases brought under the SAA. Govt. Reply at 2–4. While there are similarities in the definitions, the venue provisions under the SAA and the PVA are distinctly different. See Janecka v. United States , No. C-10-362, 2011 WL 649971, at *2 (S.D. Tex. Feb. 10, 2011) (comparing the SAA and PVA venue provisions and finding "the [SAA's] venue provision is somewhat more liberal"); Wade v. Bordelon Marine, Inc. , 770 F. Supp. 2d 822, 826 (E.D. La. 2011) (finding that "under the PVA, there is a succession of venue inquiries, rather than a choice for the plaintiff").
The PVA's venue provision provides that "[a] civil action under this chapter shall be brought in the district court of the United States for the district in which the vessel or cargo is found within the United States[;] [i]f the vessel or cargo is outside the territorial waters of the United States (1) the action shall be brought in the district court of the United States for any district in which any plaintiff resides or has an office for the transaction of business; or (2) if no plaintiff resides or has an office for the transaction of business in the United States, the action may be brought in the district court of the United States for any district." § 31104.
The Government also argues that the definition of "cargo" is rather narrow and does not extend to the lobster traps at issue here. Govt. Reply at 4–5. The Government contends that cargo is defined as "goods transported by a vessel, airplane, or vehicle" or "the goods or merchandise conveyed in a ship, airplane, or vehicle." Id. at 4; Black's Law Dictionary (11th ed. 2019); Merriam-Webster Online Dictionary, 2020, htttps://www.merriam-webster.com. Further, the Government argues that (1) the M/V Marcelle Bordelon was not charted for the purpose of conveying the lobster traps, and (2) an officer with the Florida Fish and Wildlife Conservation Commission's Division of Law Enforcement categorized the seizure of the lobster traps as "evidence," rather than cargo. Govt. Reply at 4–5. However, the Government cites no authority suggesting that a characterization of goods as evidence forecloses further characterization as cargo. That a law enforcement body deemed the lobster traps as evidence in the course of an investigation has no bearing on whether they constitute cargo under the SAA. Moreover, there is no indication that the purpose for which goods or merchandise are transported or conveyed by vessel, airplane, or vehicle is determinative of whether such goods or merchandise meet the definition of cargo. Accordingly, the Court finds that the definition of cargo is not so limited to exclude the lobster traps at issue here.
The Court finds that venue is proper in the Southern District of Florida because Plaintiff intends to bring the subject vessel within the District during the pendency of the litigation and the lobster traps at issue are found within the District. Moreover, all parties appear to agree that transferring this action to another district would not serve the interests of justice. Accordingly, the Court declines to dismiss Plaintiff's Complaint for Declaratory Judgment on this basis.
D. NOAA is Not a Proper Defendant
The Government argues that NOAA is not a proper defendant in this matter and should be dismissed because the United States is the only proper defendant under the SAA's exclusivity provision. Govt. Mot. at 11. Plaintiff "acknowledges that there is support for the United States of America's position that NOAA should not be named as a party, and that the United States of America is the proper party to answer for any alleged negligent conduct of NOAA." Resp. to Govt. Mot. at 15. However, Plaintiff argues that the Complaint "alleges specific acts of negligence by NOAA that clearly implicate possible violations of its own regulations and/or contracting requirements." Id. at 16.
The SAA provides that "[i]f a remedy is provided by this chapter, it shall be exclusive of any other action arising out of the same subject matter against the officer, employee, or agent of the United States or federally-owned corporation whose act or omission gave rise to the claim." § 30904. "A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ " United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. King , 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) ). " Section 30904, on its face, only waives sovereign immunity with respect to the United States and does not waive immunity with respect to United States agencies, as there is no language whatsoever in the SAA to ‘unequivocally express’ a waiver of United States agencies’ sovereign immunity." Villarreal v. United States , No. 16-CV-21105, 2016 WL 10952527, at *3 (S.D. Fla. July 26, 2016) (citing Mitchell , 445 U.S. at 538, 100 S.Ct. 1349 ). "It is clear from the language of the [SAA] that the remedies of the Act are exclusive, and that agencies of the government cannot be named as defendants to the action." Dillingham Corp. v. Hawk , 97 F.R.D. 450, 451 (D. Haw. 1983).
In accordance with the plain language of the SAA, and the substantial weight of precedential authority on the issue, the Court finds that NOAA, as an agency of the United States, is not a proper party in this action and shall be dismissed accordingly.
Plaintiff has sufficiently pled facts supporting a claim upon which relief can be granted. Accordingly, the Court does not dismiss Plaintiff's Complaint, but does dismiss Plaintiff's claims against NOAA.
IV. CONCLUSION
UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Commercial Lobstermen Defendants’ Motion to Dismiss Plaintiff's Complaint for Declaratory Relief (ECF No. 25) is DENIED, and the Government's Motion to Dismiss Plaintiff's Complaint for Declaratory Relief (ECF No. 42) is GRANTED IN PART and DENIED IN PART. It is FURTHER ORDERED that Plaintiff's claims against Defendant NOAA are hereby DISMISSED WITH PREJUDICE, without effect to any claims asserted against Commercial Lobstermen Defendants, the United States, or ETRAC. The Clerk of Court shall TERMINATE NOAA as a party to this case.
DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of November, 2020.