U.S. United Ocean Services, LLC v. Powerhouse Diesel Services, Inc.

932 F. Supp. 2d 717, 2013 WL 1136768, 2013 U.S. Dist. LEXIS 36989
CourtDistrict Court, E.D. Louisiana
DecidedMarch 11, 2013
DocketCivil Action No. 11-2316
StatusPublished
Cited by7 cases

This text of 932 F. Supp. 2d 717 (U.S. United Ocean Services, LLC v. Powerhouse Diesel Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. United Ocean Services, LLC v. Powerhouse Diesel Services, Inc., 932 F. Supp. 2d 717, 2013 WL 1136768, 2013 U.S. Dist. LEXIS 36989 (E.D. La. 2013).

Opinion

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

Before the Court is Defendant Powerhouse Diesel Services, Inc.’s (“Powerhouse”) Motion to Transfer Venue.1 After considering the motion, the memorandum in support, the opposition, the reply, the record, and the applicable law, the Court will grant the motion.

[720]*720 I. Background

A. Factual Background

On July 22, 2010, Plaintiff U.S United Ocean Services, LLC (“UOS”) and Defendant Powerhouse entered into an “Overhaul and Performance Agreement for M/V MARY ANNE HUDSON Main Engines,” (hereinafter “the Agreement”).2 Pursuant to the Agreement, Powerhouse was to repair the port and starboard main -propulsion engines of UOS’s ocean going vessel the M/V. MARY ANN HUDSON. The work was to be performed in two phases. During Phase One, Powerhouse was to “construct, -manufacture, re-manufacture, or obtain four (4) engine blocks as well as other parts and components necessary to perform the Work.”3 According to UOS, “Phase One was to be considered completed under the Agreement upon the stowage and securing of the four (4) engine blocks and their ABS certified parts and components into the cargo containers and onto the rail carriers in Benicia, California, for transport to New Orleans, Louisiana for inspection, then ultimately to a shipyard in Verzcruz, Mexico, aboard the M/V MARY ANNE HUDSON,” all no later than December 31, 2010.4

. UOS contends that during Phase Two of the Agreement, Powerhouse was to “oversee and direct the disassembly, repairs, and reassembly of both main engines at the shipyard,” which was to begin “when the first engine block, part or component shipped aboard the M/V MARY ANN HUDSON was unsecured from its position on the vessel in preparation for the Work at the shipyard.”5 The Agreement originally called for a total contract price of $2,400,000.00 to be paid in five installments. The first installment of $840,000.00 was paid by UOS to Powerhouse on July 30, 2010, and the second installment of $600,000.00 was not due, according to UOS, until after the completion of Phase One.6 UOS claims that “it became apparent that Powerhouse Diesel was behind schedule for the completion of Phase One,” and, in fact, later failed to meet the December 31, 2010 deadline.7 Regardless, UOS contends that it made the second installment payment to Powerhouse for $600,00.00 on January 21, 2011.8

On February 15, 2011, the parties executed amendments to the Agreement, agreeing that “UOS’s third, fourth and fifth payment installments were consolidated into two payments and the due dates were changed.”9 UOS paid Powerhouse $240,000.00 on February 27, 2011. UOS maintains that the final payment of $720,000.00 “was not due until ‘After the Successful Completion of Sea Trials, ABS Classing Certification / Approval of the Work, and Turnover of the M/V MARY ANN HUDSON to Owner.’ ”10 UOS avers that Phase One of the work was not completed until approximately April 20, 2011, “after the vessel was in the shipyard, arid approximately one-hundred and ten (110) days behind the deadline.”11 On May 20, 2011, the parties agreed upon a modification in the scope of the Agreement, whereby “the change order gave credit to UOS for certain parts, in consideration of additional parts used by Powerhouse Diesel in performing the Work, [and] the parties agreed to increase the [721]*721Agreement’s overall price by $80,000.00.”12 UOS also claims that “the parties agreed that the remaining $800,000.00 would be paid by UOS to Powerhouse Diesel in two equal payments. The first payment of $400,000.00 was paid by UOS on June 6, 2011. The final payment was due only ‘After the Successful Completion of Sea Trials, ABS Classing Certification / Approval of the Work, and Turnover of the M/V MARY ANN HUDSON to Owner.’ ”13

On June 18, 2011 it was discovered that the engines at issue were not working properly. UOS asserts that “it was determined there were defects in the engines’ crankcase blocks supplied by Powerhouse Diesel and installed on the vessel that prevented the engines from functioning properly.”14 UOS claims it provided Powerhouse with prompt notice of the defects on June 20, 2011, and on July 1, 2011, “UOS was informed by Powerhouse Diesel that they were demobilizing and withdrawing from the M/V MARY ANN HUDSON main engine project effective that date,” before the defects in the crankcase blocks had been corrected.15 UOS avers that “[a]s a result of Powerhouse Diesel’s refusal to complete the work per the terms of the agreement, UOS retained at its expense another company to complete Powerhouse Diesel’s original scope of Work. The work was finally completed on July 19, 2011.”16 UOS brings a cause of action for breach of contract and seeks liquidated damages as outlined under the Agreement.

In the Answer filed by Powerhouse, it asserts several affirmative defenses.17 In addition, Powerhouse brings a counterclaim, averring that “UOS failed to fulfill its contractual obligations in that it failed to otherwise order and/or procure additional component parts required for timely completion of the Work pursuant to the Agreement, and ultimately ordered said additional component parts from Powerhouse, which additional orders resulted in additional job growth and delays to the Work schedule in an amount no less that $400,000.”18 Moreover, Powerhouse contends that as a result of the May 20, 2011 change order, “Powerhouse and UOS agreed to an exclusive (sole source) parts and service agreement for the M/V MARY ANN HUDSON main engines for a five-year term for a fixed price list for parts and assemblies. UOS breached this exclusive parts and service agreement by ordering parts and services for the MARY ANN HUDSON from other vendors, thereby causing Powerhouse damages in the form of lost credits in an amount no less than $300,000.”19

B. Procedural Background

UOS initially filed suit in this matter on September 16, 2011, invoking this Court’s diversity jurisdiction under 28 U.S.C. § 1332, and the case was assigned to Judge Martin L.C. Feldman, Section “F.”20 The case was subsequently reassigned to Section “G” as part of a new docket.21 After discovering that UOS had improperly alleged the citizenship of itself as a limited liability company, on April 17, 2012, this Court ordered UOS to amend its complaint within ten (10) days to list the constituent members of the LLC to estab[722]*722lish citizenship.22 UOS amended its complaint, listing its sole member as another LLC, and then failed to allege properly the citizenship of that entity.23 In response, this Court dismissed UOS’s claims without prejudice on May 1, 2012.24

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932 F. Supp. 2d 717, 2013 WL 1136768, 2013 U.S. Dist. LEXIS 36989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-united-ocean-services-llc-v-powerhouse-diesel-services-inc-laed-2013.