## Facts

- Operaciones Tecnicas Marinas S.A.S. (OTM), a marine operating company, purchased two sea-going vessels for commercial use.
- OTM contracted with Diversified Marine Services, LLC (DMS) to drydock the vessels, assess their condition, and perform or arrange repairs needed to make them seaworthy.
- OTM alleged DMS told OTM the vessels had been repaired and were fit to sail to Colombia.
- OTM alleged it agreed to deliver the vessels to a third party in Colombia by July 15, 2011 and that it entered that third-party agreement based on DMS’s assurances that the vessels would be ready for use.
- The vessels departed for Colombia but allegedly experienced mechanical and electrical problems and had to be towed to land.
- OTM alleged subsequent assessments identified electrical and mechanical problems and that an engine-repair company concluded the engines on each vessel had not been repaired, contrary to DMS’s representations.
- OTM alleged that, because the vessels did not timely reach the third party, OTM was in breach of its agreement with that third party.
- OTM sued DMS in the U.S. District Court for the Eastern District of Louisiana asserting breach of contract, negligent misrepresentation, intentional misrepresentation, gross negligence, breach of warranty, and fraud, and attached the engine-repair company report to the complaint.
- DMS moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) the gross-negligence and fraud claims.

## Issues

1. Whether OTM’s complaint stated a plausible claim for gross negligence based on alleged failures to repair the vessels and alleged misstatements that the repairs had been completed and the vessels were seaworthy.
2. Whether OTM pleaded fraud with the particularity required by Federal Rule of Civil Procedure 9(b) based on alleged misrepresentations about the vessels’ repairs and readiness to sail.

## Decision

- The court denied DMS’s Rule 12(b)(6) motion to dismiss OTM’s gross-negligence claim, finding the allegations sufficient at the pleading stage.
- The court denied DMS’s Rule 12(b)(6) motion to dismiss OTM’s fraud claim, concluding the complaint pleaded the alleged misrepresentations with enough detail to satisfy Rule 9(b).

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true and determines whether the complaint states a plausible claim for relief.
- In ruling on a motion to dismiss, a court may consider documents attached to the complaint as part of the pleadings.
- Federal Rule of Civil Procedure 9(b) requires a party alleging fraud to plead the circumstances of the fraud with particularity, generally identifying the statements (or omissions), the speaker, the context and timing, and why the statements were false or misleading; intent may be alleged generally but must be supported by factual allegations that make fraudulent intent plausible.
- Gross negligence requires allegations of conduct that goes beyond ordinary carelessness and reflects a serious departure from reasonable care or a reckless disregard of likely consequences.

## Conclusion

Operaciones Tecnicas Marinas S.A.S. v. Diversified Marine Services, LLC held that, taking OTM’s allegations as true and considering the report attached to the complaint, OTM adequately pleaded gross negligence and fraud arising from alleged false assurances that vessel repairs were completed and the vessels were fit to sail to Colombia, so dismissal of those claims at the Rule 12(b)(6) stage was not warranted.


Operaciones Tecnicas Marinas S.A.S. v. Diversified Marine Services, LLC, 913 F. Supp. 2d 254 (2012)