`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF TENNESSEE, WESTERN DIVISION
`______________________________________________________________________
`
`
`RIVERFRONT DEVELOPMENT, INC.,
`As Managing Agent of Mud Island, and
`On Behalf of THE CITY OF MEMPHIS,
`Owner of Mud Island,
`
`
`
`
`
`
`v.
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`
`
`
`WEPFER MARINE, INC.
`
`Defendant.
`
`______________________________________________________________________
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`COMPLAINT
`______________________________________________________________________
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`COMES NOW the Plaintiff, Riverfront Development, Inc., as managing agent of
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`Plaintiff,
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`No.: 2:16-cv-2553
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`
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`Mud Island, and on behalf of the City of Memphis, owner of Mud Island, by and through
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`undersigned counsel, and hereby files this Complaint against Wepfer Marine, Inc. for
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`damages and all other relief to which the Plaintiff is entitled. For its cause of action,
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`Plaintiff states as follows:
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`I.
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`PARTIES
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`1.
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`Plaintiff, Riverfront Development,
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`Inc.,
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`is a Tennessee non-profit
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`corporation located in Memphis, Shelby County, Tennessee. Its principal address is 22
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`N. Front Street, Suite 960, Memphis, Tennessee 38103-2194. At all times relevant
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`hereto, the City of Memphis was the owner of Mud Island, and had appointed the
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`Plaintiff, Riverfront Development, Inc. as the manager and operator of certain Memphis
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`riverfront properties owned by the City of Memphis, including Mud Island. Plaintiff,
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`Riverfront Development, Inc. therefore brings this action for damages as the managing
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`Case 2:16-cv-02553-SHL-cgc Document 1 Filed 07/06/16 Page 2 of 12 PageID 2
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`agent of Mud Island, and on behalf of the City of Memphis as the owner of Mud Island.
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`Hereinafter, Plaintiff, Riverfront Development, Inc., will be referred to as the “Plaintiff” or
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`“RDC”.
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`2.
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`Defendant, Wepfer Marine, Inc., is a Tennessee for-profit corporation
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`located in Memphis, Shelby County, Tennessee. Upon information and belief,
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`Defendant, Wepfer Marine, Inc., is the owner and operator of the navigable vessel
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`named the LUCY WEPFER. Defendant, Wepfer Marine, Inc.’s principal address is 2661
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`Channel Avenue, Memphis, Tennessee 38113. The Defendant’s annual report filings
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`and profile with the Tennessee Secretary of State list its registered agent as John
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`Wepfer, but provided its registered agent’s address improperly at a non-physical
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`location, to wit: P.O. Box 13363 in Memphis, Tennessee 38113-0363. Therefore,
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`Defendant, Wepfer Marine, Inc., may be served with process through its registered
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`agent, John Wepfer, at the Defendant’s principal address, located at: 2661 Channel
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`Avenue; Memphis, Tennessee 38113-0363. Hereinafter, Defendant, Wepfer Marine,
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`Inc., will be referred to as the “Defendant”, “Wepfer” or “Defendant Wepfer”.
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`II.
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`JURISDICTION & VENUE
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`1.
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`This is an action for damages arising under federal Admiralty and Maritime
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`law. The United States District Court for the Western District of Tennessee, Western
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`Division, has jurisdiction over the claims asserted herein pursuant to 28 U.S.C §§ 1331
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`and 1333 of the Judiciary Act of 1789 and 46 U.S.C.S. § 30101 of the Extension of
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`Admiralty Jurisdiction Act of 1948.
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`2.
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`The situs of the wrongful acts, omissions and resulting damage described
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`in this Complaint all occurred on navigable, interstate waters, to wit, the Mississippi
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`2
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`Case 2:16-cv-02553-SHL-cgc Document 1 Filed 07/06/16 Page 3 of 12 PageID 3
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`River in Memphis, Shelby County, Tennessee, and the incident occurred in connection
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`with traditional maritime activity.
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`3.
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`Upon information and belief, at all times relevant hereto, an employee
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`and/or agent of the Defendant was entrusted with and was operating a navigable
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`vessel, the LUCY WEPFER (“vessel” or “LUCY WEPFER”), owned and maintained by
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`the Defendant, in the course and scope of the Defendant’s for-profit business of
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`operating harbor and fleeting services in the Mississippi River and surrounding areas.
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`4.
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`The Defendant’s business constitutes activities that typify, epitomize or are
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`otherwise closely related to traditional notions of maritime activity or commerce, and/or
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`bear a significant relationship to activities of maritime commerce with a nexus to
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`traditional maritime activity.
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`5.
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`The Defendant, as a Tennessee for-profit corporation with a principal
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`address located in Memphis, Shelby County, Tennessee, has minimum contacts with
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`Tennessee and its business places vessels into the navigable waters of interstate
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`commerce, including the Mississippi River.
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`6.
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`The incident complained of herein occurred on the interstate, navigable
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`waters of the Mississippi River just west of the downtown Memphis coastline, where the
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`LUCY WEPFER struck and became grounded on the tip of Mud Island, where the land
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`jettisons into the Mississippi River.
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`7.
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`Venue is appropriate in the United States District Court for the Western
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`District of Tennessee, Western Division pursuant to 28 U.S.C § 1391.
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`3.
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`This case has been timely filed within the applicable statutory limitations
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`period governing Plaintiff’s cause of action.
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`3
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`III.
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`ALLEGATIONS
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`4.
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`Plaintiff incorporates all foregoing paragraphs herein as if restated again in
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`full.
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`5.
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`At all times relevant hereto, the City of Memphis owned Mud Island which
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`is located on the most western edge of the Memphis shoreline.
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`6.
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`At all times relevant hereto, the City of Memphis appointed RDC as the
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`managing agent of Mud Island.
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`7.
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`At all times relevant hereto, Wepfer was a marine company, advertising
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`and holding itself out as operating harbor and fleeting services in the Mississippi River
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`and surrounding areas.
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`8.
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`On or about July 6, 2015, Wepfer had entrusted the LUCY WEPFER to an
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`employee and/or agent of Defendant Wepfer (hereinafter referred to as the “Employee”).
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`9.
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`At approximately 3:00 p.m. on or about July 6, 2015, the Employee was
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`operating a barge owned and operated by Wepfer named LUCY WEPFER, in the
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`Mississippi River near the tip of Mud Island.
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`10. At approximately 3:00 p.m. on or about July 6, 2015, the LUCY WEPFER
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`struck and became grounded on the tip of Mud Island during a time of high tide.1
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`11. After the LUCY WEPFER barge grounded on the tip of Mud Island,
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`significant efforts were utilized by the United States Coast Guard and others to dislodge
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`and/or remove the barge from the tip of Mud Island.
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`12.
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`The grounding of the LUCY WEPFER barge caused damage to the tip of
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`Mud Island.
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`1 Please see Exhibit A, which is a photograph of the LUCY WEPFER grounded on the tip of Mud Island.
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`4
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`13.
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`The damage to Mud Island caused by the grounded LUCY WEPFER
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`barge was two (2) large holes gorged out of the land mass.2
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`14. Upon information provided by the United States Coast Guard pursuant to
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`RDC’s request under the Freedom of Information Act, 5 U.S.C. § 552, the incident
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`complained of herein is the subject of an ongoing criminal investigation.3
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`IV.
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`CAUSES OF ACTION
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`COUNT I: NEGLIGENCE
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`15. Plaintiff incorporates all foregoing paragraphs herein as if restated again in
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`full.
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`16. Plaintiff brings this action against the Defendant to recover damages
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`resulting from the Defendant’s negligent operation of the subject vessel, LUCY
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`WEPFER, on or about July 6, 2015.
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`17. At all times relevant hereto, Defendant Wepfer was the owner and
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`operator of the subject vessel, LUCY WEPFER.
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`18. At all times relevant hereto, as the owner and operator of the LUCY
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`WEPFER, Defendant Wepfer owed the Plaintiff a duty to exercise the highest degree of
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`care in ensuring the proper entrustment and operation of the LUCY WEPFER in order to
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`prevent injuries and property damage to others, including the Plaintiff.
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`19. At all times relevant hereto, as the principal and employer of its Employee,
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`Defendant Wepfer owed the Plaintiff a duty to exercise the highest degree of care in the
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`operation of the LUCY WEPFER in order to prevent injuries and damage to property to
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`others, including the Plaintiff.
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`2 Please see Exhibit B, which is a photograph depicting the damage to Mud Island.
`3 Please see Exhibit C, which is a copy of the correspondence produced by the United States Coast
`Guard in response to RDC’s FOIA request.
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`5
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`Case 2:16-cv-02553-SHL-cgc Document 1 Filed 07/06/16 Page 6 of 12 PageID 6
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`20. At all times relevant hereto, as the principal and employer of its Employee,
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`Defendant Wepfer owed the Plaintiff a duty to ensure that the Employee exercised the
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`highest degree of care in the operation of the LUCY WEPFER in order to prevent
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`injuries and damage to property to others, including the Plaintiff.
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`21. As the principal and employer of its Employee, Defendant Wepfer is
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`vicariously liable for the acts and/or omissions of the Employee.
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`22. As the principal and/or employer of its Employee, Defendant Wepfer is
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`also and/or alternatively liable for its own independent act(s) of negligence in regards to
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`its negligent hiring, supervision, training and/or entrustment of the Employee with the
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`LUCY WEPFER as Defendant Wepfer’s employee and/or agent, whether actual or
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`apparent.
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`23. On or about July 6, 2015 at approximately 3:00 p.m., Defendant Wepfer,
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`by and through its Employee, struck and/or allided with the tip of Mud Island with the
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`LUCY WEPFER and grounded the subject vessel at the point of impact where Mud
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`Island jettisons into the Mississippi River.
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`24. Defendant Wepfer breached its duties to the Plaintiff and was therefore
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`negligent in breaching its duties of care to the Plaintiff by and through its Employee, as
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`follows:
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`a. By failing to maintain a proper lookout where the same would have
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`prevented the subject vessel from striking or alliding with, and
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`becoming grounded upon, the tip of Mud Island;
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`b. By failing to maintain the LUCY WEPFER in the navigable waters of
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`the Mississippi River;
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`6
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`Case 2:16-cv-02553-SHL-cgc Document 1 Filed 07/06/16 Page 7 of 12 PageID 7
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`c. By failing to exercise due care in the operation of the LUCY WEPFER;
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`and,
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`d. By failing to determine whether a risk of collision existed in the relevant
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`portion of the Mississippi River.
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`25. Defendant Wepfer breached its duties to the Plaintiff and was therefore
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`independently negligent in breaching its duties of care to the Plaintiff as follows:
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`a. By failing to ensure that its Employee maintained a proper lookout
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`where the same would have prevented the subject vessel from striking
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`or alliding with, and becoming grounded upon, the tip of Mud Island;
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`b. By failing to ensure that its Employee maintained the LUCY WEPFER
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`in the navigable waters of the Mississippi River;
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`c. By failing to ensure that its Employee exercised due care in the
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`operation of the LUCY WEPFER; and,
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`d. By failing to ensure that its Employee determined whether a risk of
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`collision existed in the relevant portion of the Mississippi River.
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`26. As a result of the material breaches by Defendant Wepfer of its duties to
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`the Plaintiff, the LUCY WEPFER allided with and became grounded on the tip of Mud
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`Island.
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`27. Defendant Wepfer was negligent and caused serious and extensive
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`damage to Mud Island.
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`28. Defendant Wepfer’s acts of negligence were each a direct and proximate
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`cause of or contributing factor to the incident described herein and the concomitant
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`damage to Mud Island.
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`7
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`29.
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`It was foreseeable to Defendant Wepfer that the negligent operation of the
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`LUCY WEPFER by its Employee would cause damage to Mud Island.
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`30. Great costs and expenses will be incurred in repairing the damage caused
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`by the LUCY WEPFER to Mud Island, for which recovery is sought from Defendant
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`Wepfer.
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`COUNT II: GROSS NEGLIGENCE,
`WILLFUL AND WANTON CONDUCT AND/OR RECKLESSNESS
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`31. Plaintiff incorporates all foregoing paragraphs herein as if restated again in
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`full.
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`32. Plaintiff brings this action against the Defendant to recover damages
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`resulting from the Defendant’s grossly negligent, willful, wanton and/or reckless
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`operation of the subject vessel, LUCY WEPFER, on or about July 6, 2015.
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`33. At all times relevant hereto, Defendant Wepfer was the owner and
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`operator of the subject vessel, LUCY WEPFER.
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`34. At all times relevant hereto, as the owner and operator of the LUCY
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`WEPFER, Defendant Wepfer owed the Plaintiff a duty to exercise the highest degree of
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`care in ensuring the proper entrustment and operation of the LUCY WEPFER in order to
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`prevent injuries and property damage to others, including the Plaintiff.
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`35. At all times relevant hereto, as the principal and employer of its Employee,
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`Defendant Wepfer owed the Plaintiff a duty to exercise the highest degree of care in the
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`operation of the LUCY WEPFER in order to prevent injuries and damage to property to
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`others, including the Plaintiff.
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`36. At all times relevant hereto, as the principal and employer of its Employee,
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`Defendant Wepfer owed the Plaintiff a duty to ensure that the Employee exercised the
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`8
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`Case 2:16-cv-02553-SHL-cgc Document 1 Filed 07/06/16 Page 9 of 12 PageID 9
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`highest degree of care in the operation of the LUCY WEPFER in order to prevent
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`injuries and damage to property to others, including the Plaintiff.
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`37. As the principal and employer of its Employee, Defendant Wepfer is
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`vicariously liable for the gross negligence, willfulness, wantonness and/or recklessness
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`of the Employee.
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`38. As the principal and/or employer of its Employee, Defendant Wepfer is
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`also and/or alternatively liable for its own independent act(s) of gross negligence,
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`willfulness, wantonness and/or recklessness in regards to its hiring, supervision, training
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`and/or entrustment of the Employee with the LUCY WEPFER as Defendant Wepfer’s
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`employee and/or agent, whether actual or apparent.
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`39. On or about July 6, 2015 at approximately 3:00 p.m., Defendant Wepfer,
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`by and through its Employee, struck and/or allided with the tip of Mud Island with the
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`LUCY WEPFER and grounded the subject vessel at the point of impact where Mud
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`Island jettisons into the Mississippi River.
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`40. Defendant Wepfer breached its duties to the Plaintiff and was therefore
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`grossly negligent, willful, wanton and/or reckless in breaching its duties of care to the
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`Plaintiff by and through its Employee, as follows:
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`a. By failing to maintain a proper lookout where the same would have
`
`prevented the subject vessel from striking or alliding with, and
`
`becoming grounded upon, the tip of Mud Island;
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`b. By failing to maintain the LUCY WEPFER in the navigable waters of
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`the Mississippi River;
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`9
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`Case 2:16-cv-02553-SHL-cgc Document 1 Filed 07/06/16 Page 10 of 12 PageID 10
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`c. By failing to exercise due care in the operation of the LUCY WEPFER;
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`and,
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`d. By failing to determine whether a risk of collision existed in the relevant
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`portion of the Mississippi River.
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`41. Defendant Wepfer breached its duties to the Plaintiff and was therefore
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`independently grossly negligent, willful, wanton and/or reckless in breaching its duties of
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`care to the Plaintiff as follows:
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`a. By failing to ensure that its Employee maintained a proper lookout
`
`where the same would have prevented the subject vessel from striking
`
`or alliding with, and becoming grounded upon, the tip of Mud Island;
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`b. By failing to ensure that its Employee maintained the LUCY WEPFER
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`in the navigable waters of the Mississippi River;
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`c. By failing to ensure that its Employee exercised due care in the
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`operation of the LUCY WEPFER; and,
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`d. By failing to ensure that its Employee determined whether a risk of
`
`collision existed in the relevant portion of the Mississippi River.
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`42. As a result of the material breaches by Defendant Wepfer of its duties to
`
`the Plaintiff, the LUCY WEPFER allided with and became grounded on the tip of Mud
`
`Island.
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`43. Defendant Wepfer was grossly negligent, willful, wanton and/or reckless
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`and caused serious and extensive damage to Mud Island.
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`10
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`44. Defendant Wepfer’s acts of gross negligence, willfulness, wantonness
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`and/or recklessness were each a direct and proximate cause of or contributing factor to
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`the incident described herein and the concomitant damage to Mud Island.
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`45.
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`It was foreseeable to Defendant Wepfer that the grossly negligent, willful,
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`wanton and/or reckless operation of the LUCY WEPFER by its Employee would cause
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`damage to Mud Island.
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`46. Great costs and expenses will be incurred in repairing the damage caused
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`by the LUCY WEPFER to Mud Island, for which recovery is sought from Defendant
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`Wepfer.
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`V.
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`AD DAMNUM
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`
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`WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays
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`for
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`judgment against Defendant Wepfer and prays as follows:
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`1.
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`That a copy of the Complaint be served upon the Defendant and that it be
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`required to answer as provided by law.
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`2.
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`That the Court find that Defendant Wepfer was negligent, grossly
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`negligent, willful, wanton and/or reckless, in causing the damage complained of herein.
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`3.
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`That the Court enter a judgment against the Defendant and in favor of the
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`Plaintiff as follows:
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`a.
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`for an amount to be proven at trial for the costs associated with
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`repairing the damage to Mud Island; and
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`b.
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`for any and all pre-judgment and post-judgment interest due and
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`payable.
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`11
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`4.
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`That the Court award the Plaintiff reasonable attorney fees, costs and
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`expenses.
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`5.
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`6.
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`That the Court award the Plaintiff punitive damages.
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`And for all such other relief as the Court deems just and proper, based
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`upon the premises.
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`By:
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`Respectfully Submitted,
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`/s/ Robert L. J. Spence, Jr.
`ROBERT L. J. SPENCE, JR. (BPR #12256)
`The Spence Law Firm, PLLC
`80 Monroe Ave.
`Garden Suite One
`Memphis, Tennessee 38103
`Telephone: 901.312.9160
`Facsimile: 901.521.9550
`rspence@spence-lawfirm.com
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`Attorney for the Plaintiff
`Riverfront Development, Inc.
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`12
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