J.S.,Plaintiff, v. GREG ABRAMS SEAFOOD INC.,

Lipcon, Margulies, Alsina & Winkleman, P.A

PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
The Plaintiff, J.S., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby respectfully moves for leave to file an Amended Complaint for the purpose of requesting punitive damages and correcting a typographical error concerning the injury Plaintiff suffered as a result of the incident at issue in this case. In furtherance thereof, the Plaintiff states as follows:

          I. Introduction
The instant matter arises out of the personal injuries sustained by the Plaintiff while he was working as a seaman aboard Defendant, GREG ABRAMS SEAFOOD INC.’S “(Greg Abrams[’]”) vessel. Specifically, the Plaintiff alleges that he suffered a severe injury to his left thumb due to Defendant’s failure to properly configure and/or equip its vessel for the duties assigned by the Defendant to the Plaintiff. [D.E. 1, ¶13]. As a result thereof, on May 8, 2014, the Plaintiff filed his Complaint, alleging Jones Act Negligence (Count I), Unseaworthiness (Count II), Failure to Pay Maintenance and Cure (Count III), and Failure to Treat (Count IV).
On January 28, 2015, Defendant took the deposition of the Plaintiff. Throughout the course of such deposition, it became clear to the Plaintiff that there were grounds for punitive damages arising from Defendant’s conduct in failing to fulfill its maintenance and cure obligations. Accordingly, the Plaintiff hereby moves for leave to file an Amended Complaint for the purpose of requesting for punitive damages. The Plaintiff also seeks to correct a typographical error concerning the injury Plaintiff suffered following the incident at issue in this case. (Plaintiff’s proposed Amended Complaint is attached hereto as Exhibit 1.)
As set forth in detail below, there is good cause to allow the Plaintiff to amend the Complaint because the extent of Defendant’s willful, arbitrary and/or capricious violation of its duties under maritime law was only recently revealed in the Plaintiff’s deposition, taken on January 28, 2015.
II. There is good cause to allow the Plaintiff to amend the complaint.
This Court’s Scheduling Order incorporates the deadlines set forth in the parties’ Joint Discovery Plan and Conference Report. [D.E. 12, ¶2]. Under the Joint Discovery Plan and Conference Report, the deadline to amend the pleadings and join other parties was August 25, 2014. [D.E. 12]. The Plaintiff submits, however, that there is good cause to extend such deadline based on the recently identified behavior of the Defendant in its attempt to violate maritime law.
Pursuant to Federal Rule of Civil Procedure 15, “[t]he court should freely give leave [to amend pleadings] when justice so requires.” Fed. R. Civ. P. 15; see Spanish Broadcasting System of Fla. v. Clear Channel Communications, Inc., 376 F. 3d 1065, 1077 (11th Cir. 2004) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)) (“The Supreme Court has emphasized that leave to amend must be granted absent a specific, significant reason for denial.”); see also Thomas v. Town of Davie, 847 F. 2d 771, 773 (11th Cir. 1988) (quoting Dussouy v. Gulf Coast Investment Corp., 660 F. 2d 594, 597 (Former 5th Cir. 1981)) (“[u]nless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial.”).
Furthermore, under Federal Rule of Civil Procedure Rule 16, a scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see John Morrell & Co. v. Royal Caribbean Cruises Ltd., 243 F.R.D. 699 (S.D. Fla. 2007) (requiring good cause for an extension five months after the deadline to amend pleadings). In order to establish “good cause,” the movant has the burden of proving that the scheduling deadline could not have been met despite the movant’s diligent efforts to do so. John Morrell & Co., 243 F.R.D. at 701 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“If [a] party was not diligent, the [good cause] inquiry should end.”)).
Herein, the undersigned has diligently prosecuted his claims against Defendant. Despite his efforts, however, the deadline to amend pleadings for the purpose of seeking punitive damages could not have been met because the grounds for such damages did not come to light until after the deadline – on the date of Plaintiff’s deposition (January 28, 2015).
Specifically, under maritime law, the seaman’s employer has the duty to pay maintenance and cure when the seaman falls ill or is injured and leaves the ship. See Morales Garijak, Inc., 829 F. 2d 1355 (5th Cir. 1987). This duty continues until the seaman is cured or, if there is permanent impairment, until he reaches the point of “maximum cure” and/or “maximum medical improvement,” which is a medical determination, not a legal one. See Farrel v. United States, 336 U.S. 511 (1949).
If an employer terminates maintenance and cure payments despite having knowledge that the seaman’s treating physicians have not declared him at “maximum cure,” it is considered a willful and arbitrary refusal warranting the imposition of punitive damages. See Hines v. J.A. LaPorte, Inc., 820 F. 2d 1187 (11th Cir. 1987) (finding that defendant’s termination of cure payments – despite lack of information concerning whether he had reached maximum medical cure – was arbitrary and in bad faith, warranting the imposition of punitive damages).
In this case, during the course of the Plaintiff’s deposition, the Plaintiff testified that his doctor prescribed physical therapy for his hand, but when he presented to the physical therapist’s facility, he was told that payment was not authorized by the Defendant. The Plaintiff further testified that he then telephoned the Defendant requesting payment for his therapy, and in response to such request, Defendant’s owner, Greg Abrams, stated: “F*** you and your lawyer.”
Moreover, according to Defendant’s own records, Defendant ceased paying maintenance on December 31, 2013. (A copy of the Payment List produced by Defendant is attached hereto as Exhibit 2.) In addition, Defendant only made one payment for the entire month of November 2013 and one payment for the entire month of December 2013 (as opposed to four or five payments for each month from April 2013 to October 2013). However, the latest prescription for physical therapy that the Plaintiff received was on January 7, 2014, which means the Plaintiff was not yet at MMI when the Defendant ceased making maintenance and cure payments.
In sum, Defendant terminated both the Plaintiff’s maintenance and cure despite knowing that the Plaintiff had not yet reached MMI and was still being prescribed treatment. Under binding Eleventh Circuit precedent (Hines, supra), this provides the Plaintiff sufficient grounds to move for punitive damages. Further, because the extent of Defendant’s actions and attempt to violate maritime law were unknown to the Plaintiff until after the deadline to amend pleadings, Plaintiff hereby respectfully requests that this Honorable Court allow the Plaintiff to amend the Complaint.
Lastly, as to the Plaintiff’s injury, the original Complaint mistakenly alleged that the Plaintiff suffered a “partial amputation” to his left thumb as a result of the subject incident. [D.E. 1, ¶13]. That is a typographical error, however, and the Plaintiff seeks, unopposed, to amend the allegation to correctly identify the Plaintiff’s injury as a “laceration” not an amputation.
WHEREFORE, based on the foregoing, the Plaintiff respectfully requests this Honorable Court enter an order granting this motion in its entirety, as well as any further relief this Court deems just and proper.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

Undersigned counsel hereby certifies that Plaintiff’s counsel has communicated with counsel for Defendant in effort to confer on the relief sought herein. Defendant does not oppose the Plaintiff amending the Complaint for the purpose of correcting the typographical error concerning the Plaintiff’s injury. Defendant does, however, oppose the Plaintiff amending the Complaint for the purpose of seeking punitive damages.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By: /s/ Ricardo V. Alsina
RICARDO V. ALSINA
Florida Bar No. 883182

CERTIFICATE OF SERVICE

I hereby certify that on February 4, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some electronically Notices of Electronic Filing.
By: /s/ Ricardo V. Alsina
RICARDO V. ALSINA