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