ORDER & REASONS

[As to the Motions to Dismiss the Pure Stigma, BP Dealer, and Recreation Claims]

CARL BARBIER, District Judge.

Before the Court are certain Defendants'1 motions to dismiss the "Pure Stigma Claims," "BP Dealer Claims," and "Recreation Claims."2 Oral argument was held on September 14, 2012. Having considered counsel's arguments, the relevant record, and the applicable law, the Court finds the motions should be GRANTED as set forth below.

I. PROCEDURAL AND FACTUAL BACKGROUND

This matter arises from the April 20, 2010 blowout, explosion, and fire aboard the DEEPWATER HORIZON semi-submersible drilling rig as it was engaged in oil exploration on the Outer Continental Shelf, and the subsequent discharge of millions of gallons of oil into the Gulf of Mexico. After cases were consolidated in a multidistrict litigation ("MDL") proceeding, the Court created various pleading bundles to manage the numerous and varied claims asserted. See Pretrial Order No. 11, Rec. Doc. 569. Relevant here is the "B1 Bundle," which concerns non-governmental claims for economic loss and property damage.

Pursuant to the Court's instruction, the Plaintiffs' Steering Committee ("PSC") filed a Master B1 Complaint, Rec. Doc. 879, and an Amended Master B1 Complaint, Rec. Doc. 1128 (collectively, "B1 Master Complaint"), which asserted claims under the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2701, et seq., general maritime law, and state law. Many defendants moved to dismiss the B1 Master Complaint. On August 26, 2011, the Court issued an Order and Reasons granting in part an denying in part these motions ("B1 Order"). Rec. Doc. 3830, 808 F.Supp.2d 943 (E.D.La.2011). The B1 Order held, inter alia, that the DEEPWATER HORIZON was a vessel, the claims in the B1 Master Complaint fall within the Court's admiralty jurisdiction, and that general maritime law is not entirely displaced by OPA. Id. at 5-8, 18-27, 808 F.Supp.2d at 950-51, 958-63. However, to the extent maritime law supplements OPA, traditional limitations such as the Robins Dry Dock rule (discussed below) remain in effect. Id. at 26, 808 F.Supp.2d at 962. The B1 Order also held that state law was preempted by maritime law, notwithstanding OPA's state-law savings clause, 33 U.S.C. § 2718. Id. at 8-18, 808 F.Supp.2d at 951-958; see also Order & Reasons of Nov. 14, 2011, Rec. Doc. 4578 at 6-17 & n. 19, 2011 WL 5520295, at *3-8 & n. 19 (finding penalties asserted under state law are preempted by the CWA, notwithstanding OPA's savings clause).

On May 2, 2012, the Court preliminarily approved a proposed class-action settlement regarding many, but not all, claims by private parties for economic loss and property damage resulting from the oil spill. Rec. Doc. 6418. A final fairness hearing is scheduled for November 8, 2012. In the interim, the Court directed the parties to file motions addressing the viability of three types of claims outside the proposed settlement: the "Pure Stigma," "BP Dealer," and "Recreation Claims." Rec. Doc. 6657. BP, Cameron, Halliburton, Transocean, and M-I moved to dismiss these claims under Fed.R.Civ.P. 12(b)(6). The PSC filed oppositions to these motions. Additionally, the plaintiffs in member case 11-956, Sellno v. BP Exploration & Production, Inc. ("Sellno Plaintiffs"), filed an opposition to the motions targeting the Pure Stigma and Recreation Claims. The plaintiffs in member case 10-4573, Tobatex, Inc. v. BP, p.l.c. ("Tobatex"), filed an opposition to the motions targeting the BP Dealer Claims.

II. LEGAL STANDARD

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To avoid dismissal, a complaint must plead enough facts to "`state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the factual allegations allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

III. PURE STIGMA CLAIMS

The Court's Order directing the parties to file the instant motions described the "Pure Stigma Claims" as "claims by or on behalf of owners, lessors, and lessees of real property that they have suffered damages resulting from the taint of their property caused by the oil spill, although no oil or other contaminant physically touched the property." Rec. Doc. 6657 (emphasis added). In light of the briefing submitted, the Court clarifies that "Pure Stigma Claims" means claims alleging a reduction in the value of real property caused by the oil spill or other contaminant even though (1) the property was not physically touched by oil and (2) the property was not sold. Furthermore, "Pure Stigma Claims" do not include claims by a person who earns a living selling property, such as a real estate agent. See infra note 6 and related text.

For illustrative purposes, the following Short-Form Joinders3 reflect Pure Stigma Claims:

Short-Form Joinder of Linda Hall, C.A. 10-8888, Rec. Docs. 245 (parentheticals appear in original).

Short-Form Joinder of Philip Michael Reid, C.A. 10-8888, Rec. Doc. 34817.

With the exception of the Sellno Plaintiffs, the parties agree that under the Court's previous rulings the Pure Stigma Claims are not viable under general maritime law or state law. The PSC argues that the Pure Stigma Claims are recoverable under two of OPA's damages provisions, 33 U.S.C. § 2702(b)(2)(B) & (E). The Sellno Plaintiffs urge that, in addition to OPA, these claims are cognizable under general maritime law and Louisiana law.

The Court first considers the Sellno Plaintiffs' arguments regarding maritime law and Louisiana law. As mentioned above, the B1 Order held that maritime law applies to the claims in the B1 Master Complaint and state law is preempted. The B1 Order also held that OPA did not entirely displace general maritime law. However, a significant limitation under general maritime law is the Robins Dry Dock rule; i.e., maritime law bars unintentional tort claims for economic losses when they are unaccompanied by physical injury to the plaintiff's proprietary interest. Louisiana ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1020 (5th Cir.1985) (en banc). The Pure Stigma Claims concern property that was not physically touched by oil. Nevertheless, the Sellno Plaintiffs contend that their claims are not defeated by Robins, because they have alleged intentional tort claims.

The Sellno Plaintiffs correctly point out that the Robins Dry Dock rule, as stated in TESTBANK, is limited to unintentional torts; e.g., negligence. See TESTBANK, 752 F.2d at 1020 n. 1. However, "[i]ntentional torts generally require that the actor intend `the consequences of an act,' not simply `the act itself.'" Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (citing Restatement (Second) of Torts § 8A, Comment a, p. 15 (1964)). Having reviewed the B1 Master Complaint and the Sellno Plaintiffs' complaint,4 the Court finds that neither plausibly allege facts that would take the Pure Stigma Claims outside the Robins Dry Dock rule. For example, although the Sellno Plaintiffs' repeatedly refer to Defendants' "intentional acts," they do not allege facts that would lead to the reasonable inference that the Defendants intended either the oil spill or the purported diminution in property value. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (2009) ("A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." (internal quotations omitted)). Thus, the Sellno Plaintiffs' argument regarding intentional conduct is unavailing.

The Court also is not persuaded by the Sellno Plaintiffs' argument that the Robins Dry Dock rule was generally abrogated by a 1986 amendment to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), codified at 42 U.S.C. § 9607(h). Neither the B1 Master Complaint nor the Sellno Plaintiffs' complaint assert a claim under CERCLA, and the Court is not persuaded that Congress intended to abrogate Robins Dry Dock outside the context of CERCLA. Indeed, the Fifth Circuit has continued to apply the Robins Dry Dock rule in maritime cases after the 1986 amendment to CERCLA. See Catalyst Old River Hydroelectric Ltd. v. Ingram Barge Co., 639 F.3d 207, 210-11 (5th Cir.2011) (stating the Robins Dry Dock rule is "well settled under general maritime law," but finding that the facts of that case qualified as damage to proprietary interest); Mathiesen v. M/V Obelix, 817 F.2d 345, 346-47 (5th Cir. 1987); see also In re Exxon Valdez, 270 F.3d 1215, 1253 (9th Cir.2001) (holding that summary judgment was properly granted against plaintiffs that claimed stigma damages following an oil spill: "Even without Robins Dry Dock, these groups' damages were too remote").

Accordingly, to the extent Pure Stigma Claims are asserted under general maritime law, those claims are dismissed.

In an alternative argument, the Sellno Plaintiffs contend that the Pure Stigma Claims are viable under Louisiana law, because (1) the Admiralty Extension Act ("AEA")5 does not extend admiralty jurisdiction to cases that do not concern physical damage to property; (2) the claims do not satisfy the four-part "maritime relationship" test established in Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.1973); and (3) OPA preserves state law claims. The Court is not persuaded. The Sellno Plaintiffs' argument respecting the AEA is foreclosed by cases such as TESTBANK, where, in a case involving a collision and chemical spill on navigable waters, the Fifth Circuit relied upon the AEA to hold that admiralty/Robins Dry Dock applied to claims for economic losses by onshore plaintiffs such as seafood restaurants and bait shops, even though those plaintiffs did not suffer physical damage to property. 752 F.2d at 1020-21, 1031-32. As to the Sellno Plaintiffs' second argument, the Supreme Court rejected Kelly's four-factor test when it decided Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 544-48, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); see also Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1118 (5th Cir.1995) (en banc) (recognizing Grubart abrogated the Kelly test). As discussed more fully in Part IV below, this Court applied Grubart's test for admiralty tort jurisdiction when it found in the B1 Order that admiralty jurisdiction was present. As to the Sellno Plaintiffs' third argument, while the Court has recognized that OPA contains a savings clause, 33 U.S.C. § 2718, the Court also has rejected the contention that this clause prevents other federal laws from preempting state law.

Accordingly, to the extent Pure Stigma Claims are asserted under state law, including Louisiana law, those claims are dismissed.

The Court turns to whether the Pure Stigma Claims are viable under OPA. Section 2702(a) contains OPA's general liability provision:

33 U.S.C. § 2702(a). Section 2702(b)(2) then enumerates six categories of damage, Subsections (A) through (F). Plaintiffs urge that the Pure Stigma Claims are cognizable under two categories, Subsection (B) and Subsection (E).

The Court considers Subsection (E) first. It states:

Id. § 2702(b)(2)(E). This Court previously recognized that Congress intended OPA to allow a broader class of claimants to recover economic losses than allowed under general maritime law. B1 Order p. 21, Rec. Doc. 3830, 808 F.Supp.2d at 959. Consistent with this intention, Subsection (E) does not require the plaintiff to be the owner of the property or natural resources injured, destroyed, or lost in order to recover under that Section. Thus, the Robins Dry Dock rule does not apply to a claim pursued under Subsection (E) of OPA.

Nevertheless, OPA is not without limits. Notably, Subsection (E) only allows recovery for "loss of profits" or "impairment of earning capacity." As explained above, the Pure Stigma Claims concern property that was not sold; they are claims for unrealized diminution of real property value. Such claims concern neither a "loss of profits" nor "impairment of earning capacity." Before real property is sold, there can be no "profits" to be lost. Likewise, unrealized diminution of property value usually is not an "impairment earning capacity."6 Furthermore, until property is sold and a loss realized, damages are speculative — it is possible that the value of real property eventually may meet or exceed its pre-spill amount. For these reasons, the Pure Stigma Claims are not viable under Subsection (E).7 Given this conclusion, the Court does not consider BP's alternative argument that the Pure Stigma Claims were not "due to" the injury, destruction, or loss of property or natural resources.

Turning to Subsection (B), that provision states:

Id. § 2702(b)(2)(B). In order to be viable under Subsection (B), a claim must concern "injury to" or "destruction of" one's property. Pure Stigma Claims do not involve cases where oil contacted property; thus, they do not involve "destruction of" property. Nor do these claims involve "injury to" property, because Subsection (B) is interpreted as requiring physical injury to the property. Sekco Energy, Inc. v. M/V Margaret Chouest, 820 F.Supp. 1008, 1015 (E.D.La.1993).

Sekco concerned an offshore drilling platform that was temporarily "shut in" by the now-defunct Minerals Management Service following reports of an unidentified sheen on the water near the platform. The platform owner claimed that the source of the sheen was a seismic cable towed from a defendant's vessel that snagged on one of the platform's legs and consequently discharged a type of mineral oil. The court specifically noted that the platform did not sustain "any compensable physical damage" from this incident. Id. at 1010. The court dismissed the platform owner's claim under Subsection (B), explaining:

Id. at 1015 (emphasis in original).8

Because the Pure Stigma Claims concern property that was not physically injured or destroyed, the Pure Stigma Claims are not viable under Subsection (B).

In addition to these reasons, the Court also notes that Cameron, Halliburton, and M-I are not liable to the plaintiffs/claimants under OPA, because they are not "responsible parties." See 33 U.S.C. §§ 2702(a), 2701(32). The PSC concedes this point and the Sellno Plaintiffs do not address it. As to Transocean, this Court previously held in the context of member case 10-4563, United States v. BP Exploration & Production LP, that it is not a responsible party under OPA with respect to the sub surface discharge of oil, as distinguished from a discharge that occurred at the water's surface. See Order & Reasons of Feb. 22, 2012, Rec. Doc. 5809 at 14-15, 844 F.Supp.2d 746, 755-56. Consistent with this holding, Transocean argues that it cannot be liable under OPA with respect to any subsurface discharge, a point the PSC and Sellno Plaintiffs also concede. The Court has not addressed whether Transocean is liable under OPA for a surface discharge, assuming such a discharge occurred, but need not reach this issue in light of the conclusions above regarding Subsections (B) and (E).

In conclusion, the Court holds that the Pure Stigma Claims do not state a claim for which relief may be granted. Accordingly, the motions to dismiss (Rec. Docs. 6891, 6895, 6921) are GRANTED only insofar as they seek to dismiss "Pure Stigma Claims," as defined above. This order does not affect claims relating to property that was sold or property that was oiled, or any other claims that are outside the scope of "Pure Stigma Claims;" the Court expresses no opinion on the validity vel non of non-Pure Stigma Claims. While it is clear that Pure Stigma Claims are asserted in this MDL, at this time the Court will not delve into the Short-Form Joinders, the Sellno Plaintiffs' complaint, or any other complaints to specifically determine the Pure Stigma Claims that should be dismissed in accordance with this Order.

IV. BP DEALER CLAIMS

The Order directing the parties to file the instant motions described the "BP Dealer Claims" as "claims by or on behalf of entities marketing BP-branded fuels that they have suffered damages, including loss of business, income, and profits, as a result of the loss of value to the `BP' brand or name." Rec. Doc. 6657. After considering the parties' briefs, the Court narrows the definition of "BP Dealer Claims" to mean only those plaintiffs whose claims for economic loss are based solely on consumers' decisions not to purchase fuel or goods from BP fuel stations and convenience stores following the explosion and oil spill; i.e., claims solely based on consumer animosity toward BP. For clarity, a BP Dealer Claim is distinguished from, for example, a hypothetical claim by a BP franchisee whose gas station is located near the Gulf Coast (or located along a highway frequently traveled by tourist heading to the Gulf Coast) alleging lost profits for reasons other than or in addition to consumer animosity toward BP, such as an area-wide decline in tourism. Again, the "BP Dealer Claims" concern only those plaintiffs/claimants whose claims are based solely on consumer animosity toward BP and the BP brand.

The Short-Form Joinder of Chmaysam Maher/East Main Getty is illustrative of a BP Dealer Claim:

C.A. 10-8888, Rec. Doc. 83422.

It is not disputed that under this Court's rulings the BP Dealer Claims are not viable under general maritime law. With the exception of Tobatex, the parties similarly agree that the BP Dealer Claims are not viable under state law. The PSC contends that the BP Dealer Claims are recoverable under Subsection (B) of OPA (quoted above). Tobatex contends that the BP Dealer Claims exist under state law, as well as under OPA.9

The Court first considers the arguments respecting OPA. The PSC appears to assert that the "injured property" for purposes of Subsection (B) is the "BP brand" leased by the BP Dealers. However, as explained in the context the Pure Stigma Claims, a claim under Subsection (B) requires a physical injury to the property leased or owned by the Plaintiff; e.g., a boat or real estate that is oiled. Because the "BP brand" is intangible property, it is not susceptible to physical injury. Therefore, the BP Dealer Claims are not compensable under Subsection (B).

Although the PSC does not urge that the BP Dealer Claims are viable under Subsection (E),10 the Court takes note of Professor David Robertson's article, cited by BP, which concluded that BP Dealer Claims likely would not be viable under Subsection (E).11 Although Tobatex adopted the PSC's brief insofar as it argued that the BP Dealer Claims were viable under OPA, Tobatex also states that its claims are viable under Subsection (E). However, it appears that Tobatex refers to claims based on a decline in tourism, which are not "BP Dealer Claims." See Tobatex Opp'n pp. 6-8, Rec. Doc. 7097 at 9-11. In any respect, to the extent Tobatex argues that BP Dealer Claims — those claims based solely on consumer animosity toward BP and the BP brand — are viable under Subsection (E), the Court disagrees for reasons stated in Professor Robertson's article.

For these reasons, the BP Dealer Claims are not viable under OPA. The Court also notes that the additional reasons for dismissing the Pure Stigma Claims brought under OPA and against Cameron, Halliburton, M-I, and Transocean apply equally here.

The Court turns to Tobatex's argument that its BP Dealer Claims are viable under state law. Tobatex does not dispute that its BP Dealer Claims would be precluded by the Robins Dry Dock rule; rather, it asserts that Robins does not apply to its claims because they arise under state common law.12 Tobatex points out that, unlike the B1 Master Complaint and the Sellno Plaintiffs' complaint, its complaint does not invoke admiralty jurisdiction. Instead, Tobatex invokes diversity jurisdiction, 28 U.S.C. § 1332(a), and jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).

Although Tobatex's jurisdictional election might affect what remedies are available to it, its election does not necessarily determine the substantive law that will govern its claims. If a claim falls within admiralty jurisdiction, then the substantive law of admiralty applies. See Grubart, 513 U.S. at 545, 115 S.Ct. 1043. This is so even when an in personam claim is brought "on the law side" of the federal court, as opposed to a claim explicitly brought "in admiralty" — a concept sometimes referred to as the "Reverse-Erie" doctrine. See 1 Robert Force & Martin J. Norris, The Law of Seamen §§ 1:9, 1:10 (5th ed.2003) (citing Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986)); see also Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 360, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962). Although state law may not be entirely irrelevant to admiralty — for instance, a court may look to state law to fill a substantive gap in an incomplete maritime system — state law cannot, for example, "`be employed to prejudice the characteristic features of the maritime law or to disrupt the harmony it strives to bring to international and interstate relations.'" See 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 4-3 (5th ed.2011) (quoting Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 317-18 (5th Cir.1987), rev'd on other grounds 486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d 127); see also B1 Order pp. 11-13, Rec. Doc. 3830, 808 F.Supp.2d at 953-55. In this respect, the preemption analysis is different from the more-familiar analysis that occurs outside of admiralty (i.e., express preemption, implied conflict preemption, etc.), although those concepts can apply in admiralty as well. See Schoenbaum, supra.

As explained above in the context of the Pure Stigma Claims, the Robins Dry Dock rule is a substantive rule of admiralty that bars unintentional tort claims for economic loss when they are unaccompanied by physical injury to a proprietary interest. Furthermore, when maritime law applies, state law may not be used to circumvent the Robins Dry Dock rule. See TESTBANK, 752 F.2d at 1031-32 (refusing to allow state law theories to avoid the Robins Dry Dock, because it is one of the "uniform rules of conduct" that advance the "federal interest in protecting maritime commerce" and provides "a workable and useful tool in our maritime jurisprudence"). Consequently, the question becomes whether Tobatex's claims fall within admiralty jurisdiction.

The Supreme Court in Grubart stated that the test for admiralty tort jurisdiction contains both locus and nexus components:

Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (citations and quotations omitted). When this Court determined in the B1 Order that the allegations of the B1 Master Complaint — which include BP Dealer Claims — met Grubart's test for admiralty jurisdiction, it stated:

B1 Order p. 8, Rec. Doc. 3830, 808 F.Supp.2d at 951.

Tobatex attempts to escape this holding by arguing that its claims are different from those asserted in the B1 Master Complaint. Specifically, Tobatex states that because the wrongful conduct and Tobatex's resulting injury occurred on land, Grubart's locus test is not met. Per Tobatex's brief:

Tobatex Opp'n pp. 10-11, 13-14, Rec. Doc. 7097 at 13-14, 16-17. Furthermore, Tobatex argues that the required maritime nexus is not present, because its claims

Id. at 17, Rec. Doc. 7097 at 20.

Tobatex's argument respecting the locus test is belied by its complaint, which asserts that a proximate cause of Tobatex's injury was the negligent operation of the DEEPWATER HORIZON — which this Court has found to be a vessel — as it was drilling for oil offshore and the resultant explosion, fire, and discharge of oil:

These allegations reflect that Tobatex's injury "suffered on land was caused by a vessel on navigable water." Grubart, 513 U.S. at 534, 115 S.Ct. 1043. Furthermore, even if BP and other defendants made decisions on land, those decisions do not extract Tobatex's claims from admiralty. See Helaire v. Mobil Oil Co., 709 F.2d 1031, 1042 n. 16 (5th Cir.1983) ("`[T]he fact that the decision to dispatch the crew boat was made on fixed ground hardly detracts from the maritime vessel-centered character of the negligence.'" (quoting Offshore Logistics Servs., Inc. v. Mut. Marine Office, Inc., 462 F.Supp. 485, 490 (E.D.La. 1978))); see also Matthews v. Grace Offshore Co., No. 93-3040, 1993 WL 241559, at *1-2 (5th Cir. June 18, 1993) (unpublished per curiam opinion) (same); Randall v. Chevron U.S.A. Inc., No. 89-4346, 1990 WL 109289, at *3 (E.D.La. July 26, 1990) (rejecting the argument that land-based decisions to evacuate an offshore platform do not give rise to claims under maritime law). In a similar vein, Grubart explained that the presence of a land-based tortfeasor will not frustrate admiralty jurisdiction. See 513 U.S. at 545, 115 S.Ct. 1043. For these reasons, the Court holds, as it did in the B1 Order, that the locus test is satisfied for Tobatex's claims.

With respect to maritime nexus, Tobatex's focus is misplaced and too narrow. With respect to the first part of the nexus test — where the Court must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce — the Court agrees with Tobatex that "service station franchising" likely has a negligible impact on maritime commerce. However, service station franchising is not the relevant "incident." At best, this is an activity that was affected by the incident. Instead, the general features of the type of incident involved are an explosion aboard a vessel and the subsequent discharge of oil, which exceeds the threshold of "potentially disruptive of maritime commerce." Thus, the first part of the nexus test is met.

As to the second part of the nexus test — determining whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity — contrary to Tobatex's arguments, "franchising and branding of service stations" did not give rise to the incident, the explosion and discharge. Instead, the general character of the activity giving rise to the incident is oil and gas drilling from a vessel on navigable waters, and this shows a substantial relationship to traditional maritime activity.13 Thus, the second part of the nexus test is met.

In a footnote to its brief Tobatex requests that it be allowed to amend its complaint "to more accurately set forth [its] claims." Tobatex Opp'n p. 10 n. 6, Rec. Doc. 7097 at 13 n. 6. Tobatex did not provide a proposed amended complaint, but states that its brief "will discuss the facts which such an amended complaint would allege." Id. Even if the Court were to grant this request, the result would not change.

Assuming Tobatex would merely add allegations focusing on the decisions BP made on land, such allegations would not remove the maritime flavor of this case. Where Tobatex's damages are caused by both maritime and non-maritime activity, the Court "need to look only to whether one of the arguably proximate causes of the incident originated in the maritime activity of a tortfeasor." Grubart, 513 U.S. at 541, 115 S.Ct. 1043; see also Helaire, supra. Even if Tobatex's amended complaint deleted the existing allegations that referenced offshore events, such as those quoted above, there would still remain the similar allegations in the B1 Master Complaint, which Tobatex readily adopts in order to assert claims under OPA. Finally, assuming Tobatex deleted all references to the DEEPWATER HORIZON, the explosion, the oil spill, and any other sort of offshore or maritime activity, and abandoned its incorporation of the B1 Master Complaint, and further assuming Tobatex could do so and still manage to state a plausible claim to relief; the Court would not blind itself to facts that are generally known within its territorial jurisdiction or that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (permitting a court to draw on its judicial experience and common sense in the context of a Rule 12 motion to dismiss). Notably, however, even Tobatex's carefully-worded brief cannot escape all references to the DEEPWATER HORIZON, the explosion, and the oil spill.14 Accordingly, Tobatex's request to amend its complaint is DENIED.15

The Court finds that Tobatex's claims give rise to admiralty jurisdiction. Consequently, maritime law applies, state law is excluded, and the BP Dealer Claims are barred by the Robins Dry Dock Rule.

In conclusion, the Court finds that the BP Dealer Claims do not state a claim for which relief may be granted. Accordingly, the motions to dismiss (Rec. Docs. 6892, 6893, 6922) are GRANTED only insofar as they seek to dismiss the "BP Dealer Claims," as defined above. The Court expresses no opinion as to a claim for economic loss based upon a decline in tourism, a claim based on both a decline in tourism and consumer animosity, or any other claim outside the scope of "BP Dealer Claims." While it is clear that BP Dealer Claims are asserted in this MDL, at this time the Court will not delve into the Short-Form Joinders or any other complaints in an attempt to specifically determine what claims are BP Dealer Claims. Specifically with respect to Tobatex, it may be that its claimed losses are not based solely on consumer animosity; thus, dismissal is not appropriate at this time.

V. RECREATION CLAIMS

The Order directing the parties to file the instant motions described the "Recreation Claims" as "claims by or on behalf of recreational fishermen, recreational divers, beachgoers, recreational boaters, etc., that they have suffered damages that include loss of enjoyment of life from the inability to use portions of the Gulf of Mexico for recreation and amusement purposes." Rec. Doc. 6657. The B1 Master Complaint provides an example of a Recreation Claim when it alleged:

Rec. Doc. 1128 ¶ 158. The Short-Form Joinder of Emily Wisniewksi similarly states:

C.A. 10-8888, Rec. Doc. 49862.

BP interprets the B1 Master Complaint as advancing two types of Recreational Claims: (1) "Loss of Enjoyment" claims, which allege a loss of enjoyment from the plaintiffs' inability to engage in preferred recreational activities (e.g., fishing, diving, boating, or beachgoing), and (2) "Loss of Deposit" claims, which allege that plaintiffs wasted money spent in preparation for such recreational activities. BP asserts that neither are recoverable here.

As occurred with the Pure Stigma Claims, all parties, save the Sellno Plaintiffs, agree that the Recreation Claims are not viable under general maritime law or state law given the Court's previous rulings. The PSC argues only that the "Loss of Deposit" type of Recreation Claims are viable under OPA, apparently conceding that the "Loss of Enjoyment" Recreation Claims are not recoverable under any theory. The Sellno Plaintiffs contend that the Recreation Claims are viable under general maritime law.

With respect to OPA and the "Loss of Enjoyment" Recreation Claims, although no party appears to urge that these claims are compensable under OPA, the Court notes that these are not claims for "loss of profits" or "impairment of earning capacity," and, thus, would not be recoverable under Subsection (E). See supra note 7 and accompanying text. The "Loss of Enjoyment" claims that do not arise from a physical injury or destruction to property owned or leased by the plaintiff also are not recoverable under Subsection (B). See supra note 8 and accompanying text. To the extent a "Loss of Enjoyment" claim actually involved physical injury or destruction to one's property (e.g., where a pleasure boat was oiled), Subsection (B) does not compensate this type of emotional, non-pecuniary damage. Accord 33 C.F.R. § 136.217.

As to the "Loss of Deposit" Recreation Claims, those claims are not available under Subsection (E) for the reasons just stated. "Loss of Deposit" claims are also not available under Subsection (B), because they do not involve "injury to" or "destruction of" real or personal property owned or leased by the Recreation Claimants as contemplated by Subsection (B). Although a monetary payment may qualify as "property" in some legal contexts, it does not qualify as property under Subsection (B) given that it is not capable of being "injured" or "destroyed" by oil pollution. Accord 33 C.F.R. § 136.217(b) ("Compensation for loss of use of noncommercial property is not allowable.").

The Court also notes that the additional reasons for dismissing the Pure Stigma Claims brought under OPA and against Halliburton, M-I, Cameron, and Transocean apply equally here.

Turning to general maritime law, the Sellno Plaintiffs urge, for nearly identical reasons asserted with respect to the Pure Stigma Claims, that the Recreation Claims are viable under general maritime law. The only new argument advanced by the Sellno Plaintiffs is based on an exception to the Robins Dry Dock rule for commercial fishermen, which the Court recognized in the B1 Order. See Rec. Doc. 3830 at 19-20, 808 F.Supp.2d at 958-59. The Sellno Plaintiffs argue that this exception should be expanded to include recreational boaters, recreational fishermen, recreational divers, and waterfront property owners. The Court is not persuaded by this new argument. See TESTBANK, 752 F.2d at 1020-21 & n. 2 (affirming dismissal of recreational fishermen, among others, who did not suffer a physical injury to a proprietary interest from the Coast Guard's closure of a waterway due to a chemical spill that resulted from a collision between two ships). The Recreation Claims that do not include physical injury to a proprietary interest are dismissed.

Furthermore, even those claims that could satisfy Robins Dry Dock's physical-injury-to-a-proprietary-interest requirement and, thus, might be entitled under general maritime law to recover some damages (e.g., the cost of repairing an oiled pleasure boat), the "Recreation Claims" sought here still would not be compensable. General maritime law does not compensate the loss of use of a private pleasure boat. See The Conqueror, 166 U.S. 110, 125, 133-34, 17 S.Ct. 510, 41 L.Ed. 937 (1897); Oppen v. Aetna Ins. Co., 485 F.2d 252, 257 (9th Cir.1973). By analogy, other claims for loss of non-commercial recreational expectations, such as a claim for loss of recreational use and enjoyment of a beachfront vacation home, are not viable under general maritime law.

In conclusion, the Recreation Claims do not state a claim for which relief may be granted. Accordingly, the motions to dismiss (6889, 6894, 6923) are GRANTED only insofar as they seek to dismiss the "Recreation Claims," as defined above. While it is clear that Recreation Claims are asserted in this MDL, at this time the Court will not delve into the Short-Form Joinders, the Sellno Plaintiffs' complaint, or any other complaints to specifically determine what claims are Recreation Claims.

VI. CONCLUSION

IT IS ORDERED that the Motions to Dismiss the Pure Stigma Claims (Rec. Docs. 6891, 6895, 6921), BP Dealer Claims (Rec. Docs. 6892, 6893, 6922), and Recreation Claims (Rec. Docs. 6889, 6894,6923) are GRANTED as set forth above.