IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SUPERIOR ENERGY SERVICES, LLC, :

:

Plaintiff, :

:

vs. : CA 09-0321-KD-C

:

BOCONCO, INC., :

:

Defendant. :

REPORT AND RECOMMENDATION

This matter is before the undersigned, pursuant to 28 U.S.C. §

636(b)(1)(B), on Defendant’s Motion to Dismiss Second Amended

Complaint (Doc. 33), filed November 13, 2009, along with its supporting

memorandum (Doc. 34) and attachments (Doc. 34-1), and Plaintiff’s

Opposition to Defendant Boconco’s Motion to Dismiss Second Amended

Complaint (Doc. 40), filed December 7, 2009. After consideration of the

motion, it is the undersigned’s recommendation that it be DENIED.

I. Background.

On June 5, 2009, Plaintiff Superior Energy Services, LLC (hereafter

“Superior”) filed a complaint, amended on June 12, 2009, against

Defendant Boconco, Inc. (hereafter “Boconco”) alleging that as a result of

numerous delays, Superior had expressed its desire to exercise a clause in

the contract between the two companies that would have allowed Superior

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to take control of whatever work Boconco, a shipbuilding enterprise, had

already completed for Superior in the event of unsatisfactory or untimely

performance. (Docs. 1 & 4.) After all claims then pending were resolved

through a settlement agreement executed between Superior and Boconco

(Docs. 17 & 24), the action was dismissed on August 27, 2009 (Doc. 17). 

With leave of court, this action was reinstated on September 28, 2009 (Doc.

19) and Plaintiff, Superior Energy Services, LLC, was given the

opportunity to file an amended complaint (Doc. 22) on October 30, 2009. 

In this amended complaint, filed after arguments and disagreements

arose over the import of the settlement agreement, Superior adds Thompson

Tractor Co. (hereafter “Thompson”) as a defendant and seeks a declaratory

judgment that it, not Boconco, is the rightful owner of four separate

generator sets then in Thompson’s possession. The additional request was

made that the judgment also grant possession of the four generator sets to

Superior and that the custodian, Thompson, be ordered to relinquish

custody (Doc. 22, p. 6.) In the alternative, Count Two of the Second

Amended Complaint is a conversion action against Boconco, seeking

compensatory damages in the amount of $387,333, “plus punitive damages,

together with interest, attorney’s fees, and costs.” (Id. at 7.) Finally, Count

Three is a breach of contract action against Boconco, again seeking

$387,333, plus interest, attorney’s fees, and costs. (Id.) 

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On November 13, 2009, Defendant Boconco filed a 12(b)(6) motion

to dismiss, believing the current dispute (over four generator sets or

“gensets”) to be precluded by the terms of the settlement agreement that the

parties entered into on August 12, 2009. (Doc. 34, p. 1-2.) Boconco therein

contends that the settlement agreement specifically terminated “each party’s

respective rights, remedies, and obligations under each of the four vessel

contracts” (from which the generator contracts stem). (Id. at 4; Settlement

Agreement, ¶ 2.) Essentially, Boconco feels that Superior could have

bargained for the title to the gensets in the months leading up to the

settlement agreement, but that since they failed to do so, they “cannot now

attempt to enforce any alleged pre-existing agreement” because all claims

relating to the vessel contracts were disposed of by virtue of the settlement

agreement. (Doc. 34, p. 5.)

Turning to the facts in the complaint, which are accepted as true for

purposes of the motion to dismiss, Superior concisely explains that “[t]he

property giving rise to and made the subject of this action includes four 175

[kilowatt] gensets, the aggregate value of which is approximately

$357,333.” (Doc. 22, p. 2.) After asking for a declaratory judgment that it

owns the gensets at issue, Superior also states a claim for conversion,

remarking that they “recently learned that Boconco hid certain property

from Superior during the attempted consummation of the settlement.” (Id.) 

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1 Since the filing of Plaintiff’s Second Amended Complaint, Thompson moved

(Doc. 39) to have a third-party custodian take control of the four generator sets, a motion granted

on January 21, 2010 (Doc. 48). On January 22, 2010, Thompson confirmed the delivery of the

property in question to the requested custodian, Merchants Transfer Company. (Doc. 49.)

4

Superior elaborates:

Specifically, Boconco induced Superior to assume purchase

orders to Thompson for four engines and numerous parts and

accessories[,] thereby obligating Superior to pay a substantial

sum (as shown in the confidential Settlement Agreement filed

under seal) to Thompson; however, Boconco suppressed from

Superior that it had already taken delivery of the engine parts

and accessories, hid this property from Superior during the

attempted consummation of the settlement, and has converted

these parts in violation of Superior’s rights and Alabama law. 

These parts and accessories have a value of at least $30,000. 

Superior seeks to compel Boconco to deliver such property or

provide replacements therefor, seeks compensatory damages

for breach of contract and/or seeks compensatory and punitive

damages for Boconco’s tortious conduct. Superior also seeks

an award of attorney’s fees and costs from Boconco. Superior

seeks a declaratory judgment and delivery of possession of

the gensets as to Thompson.1

(Id.) 

Superior explains that the four gensets under dispute are part of six

gensets originally installed on the uncompleted vessels Boconco was then in

the process of constructing, known as “Hulls 128 and 129.” (Doc. 22, p. 3.) 

Although this construction was pursuant to a contract between Boconco and

a non-party to this suit, Moreno Energy, Inc., Superior acquired a one-half

interest in the vessel-building contracts, and therefore in Hulls 128 and 129. 

(Id.) Inspecting its newfound investment, Superior examined the hulls and

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came to the conclusion that the 175kw gensets produced insufficient power

thereto. (Id.) As a result, Superior purchased four 300 kw gensets at their

own cost, and installed these, two each, on Hulls 128 and 129. (Id.) Two

of the six 175 kw generator sets, one on each hull, remained as spare

generators, while the remaining four 175 kw gensets were removed from

the hulls altogether. (Id.) Superior explains the disposition of those four

remaining gensets:

Hulls 128 and 129 were subsequently delivered to Superior

with the four 300 kw gensets purchased directly by Superior

on board, and two of the 175 kw gensets on board as spares. 

The other four 175 kw gensets were returned to the supplier

thereof, Thompson. Superior was not given a credit on the

purchase price of Hulls 128 and 129 for the four 175 kw

gensets not used in the construction and was not given an

offset for the cost Superior incurred in providing the four 300

kw gensets installed on Hulls 128 and 129. Rather, it was

agreed that the four 175 kw gensets returned to Thompson

were to be held as property of Superior, and that two of those

175 kw gensets would be installed as spares on Hulls 130 and

131 (which at the time were being constructed by Boconco for

Superior) and that Superior would use the remaining two 175

kw gensets as spares elsewhere in its operations.

(Id.) Boconco’s progress in completing Hulls 130 and 131 was halted when

Superior terminated those contracts, bringing an action for possession of

those hulls and for damages against Boconco. (Id.) That action resulted in

the above-mentioned settlement agreement, filed under seal (Doc. 24) in the

current litigation.

Regarding that settlement agreement, Superior states in its Second

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Amended Complaint that it “effected or at least acknowledged” the transfer

of title to the gensets to Superior.” (Doc. 22, p. 4.) Superior also alleges

that prior to the settlement agreement, they and Boconco agreed “that two

of [the four] gensets would be later installed as spares on Hulls 130 and 131

and the other two would be used by Superior elsewhere in its operations.” 

(Id.) Superior explains that this agreement regarding the gensets was the

consideration they received after paying for the six 175 kw gensets in the

purchase price of Hulls 128 and 129 “with no offset for the four 175 kw

gensets which were removed from the vessels and no credit for the four 300

kw gensets [that] Superior purchased separately [and] which were installed

on Hulls 128 and 129.” (Id. at 5.) Superior closes its assertion of the facts

with the following:

As part of the settlement, Boconco assigned and Superior

assumed Boconco’s rights against and obligations to certain

vendors, including Thompson. Specifically, Superior

assumed purchase orders to Thompson for the engines and the

parts and accessories therefor. When implementing the

settlement, Boconco provided an inventory of all items, for

which Boconco had paid or for which Superior was assuming

the obligation to pay [and] which Boconco had taken

possession of and were to be loaded out on the hulls upon

departure from Boconco’s yard. In preparing this inventory

and physically effecting a transfer of numerous items of

property, Boconco suppressed that it had already taken

delivery of the parts and accessories for the engines and hid

the parts and accessories from Superior at the time of load

out. Representatives of Boconco represented that all of the

items Superior had paid for as part of the settlement or was

obligating itself to pay for by assuming purchase orders were

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2 It is inferred that Boconco intends to posit this statement as a reason that Count

Two (conversion) and Count Three (breach of contract) should also be dismissed. It does not

appear from the pleadings, however, that these claims were specifically mentioned or discussed

in Boconco’s filings. 

7

on the inventory and would be made available at load out. 

Boconco also assembled various items of property in certain

areas on its yard to be taken by Superior. However, Boconco

had either removed from the yard or hid from Superior on the

yard the parts and accessories for the engines, apparently

intending to sell or use the parts and accessories for its own

benefit. Boconco has wrongfully asserted ownership and

retained possession over these engine parts and accessories,

and thereby converted the same.

(Id. at 5-6.) Finally, Superior points out that the delivery of four cooling

towers was also provided for in the settlement agreement, noting the fact as

a strong indication of Superior’s pre-existing ownership of the gensets, as

the cooling towers would be useless without anything to cool. (Doc. 40, p.

6.)

Boconco contends that the settlement agreement terminated all rights

and obligations stemming from the four vessel contracts, and that clearly

this genset claim arises from those contracts, as the generators were

intended for use on Hulls 130 and 131. Furthermore, Bonconco argues that

if Superior did have an agreement with them as to the ownership of the

gensets, the rights stemming from that agreement were subsumed and

destroyed by the settlement agreement. (Doc. 34, p. 5.)2

II. Discussion.

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A. Motion to Dismiss

1. Standard(s) of Law

To survive a 12(b)(6) motion to dismiss, a complaint must comply

with Rule 8(a)(2) by providing “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949 (2009) (internal citations and quotations omitted). While Rule

8’s pleading standard “does not require detailed factual allegations,” it does

demand “more than an unadorned, the defendant-unlawfully-harmed-me

accusation.” Id. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (internal quotations omitted)). Indeed, “[a] pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of

a cause of action will not do.’” Id. (citing Twombly, supra, at 555). Put

another way, “[n]or does a complaint suffice if it tenders ‘naked assertions’

devoid of ‘further factual enhancement.’” Id. (citing Twombly, supra, at

557). 

“[W]hen considering a motion to dismiss, all facts set forth in the

plaintiff’s complaint ‘are to be accepted as true and the court limits its

consideration to the pleadings and exhibits attached thereto.” Grossman v.

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc.

v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). Although pleadings

that are “no more than conclusions are not entitled to the assumption of

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truth,” a court faced with “well-pleaded factual allegations” should “assume

their veracity and then determine whether they plausibly give rise to an

entitlement to relief,” a “context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 129

S.Ct. at 1950 (internal citations omitted). Iqbal continues by noting that

according to Rule 8(a)(2), “where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint

has alleged– but it has not shown– that the pleader is entitled to relief.” Id.

(internal citations and quotations omitted).

Next, “a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949

(citing Twombly, 550 U.S. at 570). Then, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). 

Furthermore, Iqbal explains that [t]he plausibility standard is not

akin to a ‘probability requirement,’” but does ask “for more than a sheer

possibility that a defendant has acted unlawfully,” stating that “[w]here a

complaint pleads facts that are ‘merely consistent with’ a defendant’s

liability, it ‘stops short of the line between possibility and plausibility of

entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 556-57). Put yet

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another way, a plaintiff must put forth allegations in his or her complaint

that nudge their claims “across the line from the conceivable to the

plausible.” Id. (citing Twombly, 550 U.S. at 570). 

When attacking a complaint in a motion filed pursuant to Rule

12(b)(6), the moving party bears the burden to show that the complaint

should be dismissed for failure to state a claim upon which relief may be

granted. Vitola v. Paramount Automated Food Services, Inc., 2009 WL

5214962 (S.D.Fla. Dec. 28, 2009). See also Lowe v. Metabolife Int’l, Inc.,

206 F.Supp.2d 1195, 1202 (S.D.Ala. 2002) (stating that the defendant’s

motion to dismiss “fails because [he] has failed to carry [his] burden of

showing why the claims ought to be dismissed.”); Larsen v. AirTran

Airways, Inc., 2007 WL 2320592, *3 (M.D.Fla. Aug. 10, 2007) (“Under the

Rule 12(b)(6), the party moving for dismissal has the burden of proving that

no claim has been stated.”). In reviewing the merits of a motion to dismiss,

the Court is required to consider that “[a] complaint may not be dismissed

merely because it appears unlikely that the plaintiff can prove [the alleged]

facts or will ultimately prevail on the merits.” McTernan v. City of York,

PA, 564 F.3d 636, 646 (3rd Cir. 2009) (quoting Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3rd Cir. 2008)) (in turn quoting Twombly, 550

U.S. at 553, n. 8). 

After analyzing the pending motion under these standards, it is

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decided that for both procedural and substantive reasons, Defendant’s

motion to dismiss should be denied. First, Boconco has failed to support its

motion with any precedent or legal support for its argument that the

settlement agreement at issue operates to bar the claims for a declaratory

judgement, conversion and breach of contract. Even though Local Rule

7.1(a) clearly requires that motions to dismiss filed pursuant to Rule 12(b)

be supported by a brief (“Any motion filed pursuant to Rule 12(b) ... of the

Federal Rules of Civil Procedure must be supported by a brief.”), the

document filed by Boconco and designated as it’s “LEGAL

MEMORANDUM IN SUPPORT OF DEFENDANT BOCONCO, INC.’S

MOTION TO DISMISS SECOND AMENDED COMPLAINT” (Doc. 34)

does not comply with the spirit of the Rule. A thorough search of that

memorandum fails to reveal any precedent that would clearly show that the

factual allegations of Superior fail to state a claim upon which relief may be

granted or that the complaint is otherwise fatally deficient as a matter of

law. This failure to comply with the Court’s local rule is revealing and a

sufficient reason, standing alone, to justify a denial of the motion to

dismiss. 

The specific warning in Local Rule 7.1(a) is that if the moving party

fails to file a brief as required, such failure “may result in the denial of the

motion.” This longstanding local rule was designed to address serious

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3 The Eleventh Circuit, in an en banc decision, Bonner v. City of Pritchard, 661

F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit

rendered prior to October 1, 1981.

12

policy concerns over the failures of litigants’ provide support for motions or

responses to motions and the impact those failures have on the Court. See,

e.g., Arundar v. DeKalb County School District, 620 F.2d 493, 495 (5th Cir.

1980) (“A trial court should have the benefit of briefs from both sides in

ruling on a motion. ... Without a brief, a trial court often cannot understand

the legal grounds [of motions to dismiss] without much independent labor

of its own, and our courts are too burdened to require the courts to do the

work of counsel for the parties as all counsel and citizens are well

aware.”)3

; United States v. Vernon, 108 F.R.D. 741, 742 (S.D. Fla. 1986)

(denying motion partly because it was “devoid of any legal authority” and

lacked supporting memorandum of law); Montgomery v. First Family Fin.

Servs., Inc., 239 F.Supp.2d 600, 602 n. 1 (S.D. Miss. 2002) (denying

motion that was “completely devoid of both argument and authority”

(internal quotes omitted)); Piquard v. City of East Peoria, 887 F.Supp.

1106, 1127 (C.D. Ill. 1995) (rejecting argument “presented without any

citation to authority [or] supportive legal memorandum”). 

Secondly, a fair reading of what is presented as a “brief” reveals

Boconco’s argument to be that the Second Amended Complaint fails to

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4 Most often, in the experience of the undersigned, 12(b) motions based on the

existence of affirmative defenses are granted in cases where it is obvious that a statute of

limitations has expired or that judgment against a party is barred by a grant of immunity or 

privilege. Any precedent for finding that a declaratory judgment action should be dismissed for

failing to state a claim because the issues are precluded by a settlement between the parties has

13

state a claim upon which relief may be granted because the Settlement

Agreement of August 12, 2009 should be interpreted as “terminating all of

the existing disputes between the parties.” (Doc. 34, p. 2) This argument

does not implicate a pleading deficiency as to the three claims presented or

a factual deficiency to support the claims but is considered an assertion of

an affirmative defense in a motion to dismiss. See e.g., Thornton v.

Solutionone Cleaning Concepts, Inc., 2007 WL 210586, *2, *4 (E.D. Cal.

Jan. 26, 2007) (interpreting statement that “Defendants are not liable

because ‘Plaintiff has already settled all claims by way of Compromise and

Release in his wage and hour claims[]’” as an affirmative defense). 

No one disputes that “[a] complaint is subject to dismissal for failure

to state a claim if the allegations, taken as true, show the plaintiff is not

entitled to relief.” Jones v. Bock, 549 US 199, 215, 127 S.Ct. 910, 166

L.Ed.2d 798 (2007). However, in order to dismiss claims for failure to state

a claim because of the existence of affirmative defenses, the allegations of

the complaint must contain the information necessary to show that an

affirmative defense bars recovery. Douglas v. Yates, 535 F.3d 1316, 1321

(11th Cir. 2008); Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).4

 In

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not been cited by Boconco or discovered independently the undersigned.

14

the present action, it is far from clear that the complaint or its attachments 

establish that the claims now being asserted are barred by the terms of the

aforementioned settlement agreement. In fact, the Court has reinstated this

action as was authorized in the dismissal order (“Accordingly, it is hereby

ORDERED that the parties’ joint Motion to Dismiss, as it related to

Defendant Boconco, Inc., is GRANTED and the above-styled action be

DISMISSED with prejudice from the active docket of this Court subject to

the right of any party to reinstate the action within thirty (30) days of the

date of this order should the settlement agreement not be consummated.”) 

and allowed Superior to amend its complaint in order to move forward on

those claims that could not be resolved by agreement. (Doc. 17) Boconco

clearly disputes the factual allegations contained in Superior’s Second

Amended Complaint and disagrees with the interpretation and legal scope

of the settlement agreement. Defendant’s arguments as to why the

complaint should be dismissed appear to be a request, through a motion to

dismiss, that the terms of the settlement agreement be enforced as

interpreted by Boconco - one might expect substantially the same argument

to appear in defense of the declaratory judgment action. 

And finally, for the reasons stated above, Boconco has failed to carry

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its burden to show that Superior has failed to state a claim upon which relief

may be granted. If the facts alleged in the Complaint are shown to be true,

it cannot be said that Superior could not be granted relief in the form of a

judgement that it is the owner of those gensets described or that it could not

be granted damages for either conversion or breach of contract. Thus, on

the present record, the undersigned is unable to find that Superior has failed

to state a claim upon which relief can be granted. 

III. Conclusion.

For all of the foregoing reasons, it is the undersigned’s

recommendation that Defendant’s Motion to Dismiss Second Amended 

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Complaint, (Doc. 33) be DENIED.

The instructions that follow the undersigned’s signature contain

important information regarding objections to the report and

recommendation of the Magistrate Judge.

DONE this 26th day of March, 2010.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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5

 Effective December 1, 2009, the time for filing written objections was extended to “14

days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

17

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within fourteen (14) days of the date of service of this document, file specific written

objections with the Clerk of this court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar an attack, on appeal, of the

factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855

F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)

(en banc). The procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days5 after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

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