John Doe v. Carnival Corp., et al – Part 6

Lipcon, Margulies, Alsina & Winkleman, P.A

May 24, 2013

John Doe v. Carnival Corp., et al – Part 6

Motion for Leave

In this motion for leave to amend his pleadings, the Plaintiff seeks permission from the Court to amend his Complaint to include new claims under the supplemental admiralty rules. The knowledgeable attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. ensure that every client’s case is litigated to its full potential under the rules. Through zealous representation, the experienced maritime lawyers at Lipcon, Margulies, Alsina & Winkleman, P.A. ensure that our clients make the best recovery possible under the circumstances of their case.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-CV-23345 – UNGARO
JOHN DOE,
Plaintiff,

v.

CARNIVAL CORPORATION,
Defendant
______________________________/

PLAINTIFF’S MOTION FOR LEAVE TO AMEND HIS COMPLAINT TO INCLUDE CLAIMS AGAINST THE MEDICAL DEFENDANTS’ PROPERTY UNDER SUPPLEMENTAL ADMIRALTY RULE B[1]

Plaintiff, JOHN DOE, by and through his undersigned counsel and pursuant to the Federal Rules of Civil Procedure, hereby files this Motion for leave to amend his complaint to incorporate claims against the Medical Defendants, WILLIAM PRETORIUS, JACQUELINE GOBEIL, and BRYAN PATIU monies oweing from Carnival Corp. under Supplemental Admiralty Rule B, and as good cause therefore relies on the following:

i. Introduction

Plaintiff originally brought suit against the former medical defendants in this case, in personam. [D.E. 1]. On February 14, 2013, this Honorable Court granted the Medical Defendants’ Motions to Dismiss for Lack of Personal Jurisdiction. [D.E. 53]. On March 15, 2013, Plaintiff filed a notice of interlocutory appeal regarding the Court’s order granting the Medical Providers’ Motions to Dismiss. [D.E. 55]. That appeal is still pending.

On May 9, 2013, Plaintiff filed a separate Complaint invoking Supplemental Admiralty Rule B, See JOHN DOE v. William Pretorius, et al, Case No.: 13-21690 (So. Dist. Fla.). This Honorable Court issued, sua sponte, an order dismissing Plaintiff’s Complaint, id D.E. 5, finding that Plaintiff’s newly filed complaint should properly have been brought as an amended complaint in the present action. Herein, Plaintiff respectfully requests leave to file such an amended complaint, for good cause shown.

Ii. Plaintiff should be given leave to amend in the interests of justice.

Leave to amend pleadings “shall be freely give when justice so requires.” Fed. R. Civ. P. 15(a). “The Supreme Court has emphasized that leave to amend must be granted absent a specific, significant reason for denial.” Spanish Broadcasting System v. Clear Channel, 376 F.3d 1065, 1077 (11th Cir. 2004)(quoting Forman v. Davis, 371 U.S. 178, 182 (1962)).

The permissible reasons that can justify denial of leave to amend include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Id. at 1077. “Unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” 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)).

In its sua sponte order dismissing Plaintiff’s Complaint under Supplemental Admiralty Rule B in case no.: 13-21690, this Honorable Court found that Plaintiff’s complaint should properly have been brought as an amended complaint in the present action. The Court further noted that the time for filing amendments to the pleadings in this action expired on March 15, 2013. Accordingly, this Honorable Court may believe that the time between the Court’s order dismissing the Medical Defendants for lack of personal jurisdiction and the present motion for leave to amend constitutes an unreasonable delay.

However, Plaintiff submits that his delay in moving for leave to amend was not unreasonable and further is not a substantial reason to deny leave for several reasons. First and foremost, the use of Rule B against cruise line medical providers is a new and novel idea that was only recently realized and researched. Further, at all times material, Plaintiff was of the belief that his Rule B action should be filed separately from the present action and as such the deadline for a motion for leave to amend was immaterial. Plaintiff believed this in good faith because this Honorable Court allowed the same course of proceedings in an action in front of it in the matter of Sylvia Nelson Johnson v. Del Monte Fresh Produce Comp., et al, Case No. 09-22425-UNGARO (original case) and Sylvia Nelson Johnson v. Del Monte Fresh Produce Comp., et al, Case No. 10-22909-UNGARO (Rule B action. Accordingly, there is adequate good cause for what this Honorable Court may perceive as undue delay. More importantly, there is no prejudice to the defendants as a result of this delay.

Lastly, this Honorable Court should use its discretion to grant Plaintiff leave to amend because a Rule B action is the only viable way for Plaintiff to seek compensation for his injuries from the Medical Defendants who reside in three different countries. Denying Plaintiff leave to amend would force the Plaintiff to pursue four separate lawsuits in four different countries to receive compensation for his injuries arising out of this single incident aboard Carnival’s vessel. Accordingly, the interests of justice militate towards allowing Plaintiff leave to amend his complaint to include quasi in rem relief under Rule B.

IIi. Conclusion

Any delay in Plaintiff’s moving for leave to amend in the present action was not unreasonable given the circumstances and further is not a substantial reason to deny leave herein. This motion is filed in good faith, and no party will be prejudiced if the Court grants the relief sought herein.

WHEREFORE,Plaintiff respectfully requests this Honorable Court grant him leave to amend his complaint to incorporate his claims under Supplemental Admiralty Rule B and in so doing deem the attached Amended Complaint as filed. Exhibit 1.

Respectfully submitted,

LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Counsel 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/ Eric C. Morales
ERIC C. MORALES
FLORIDA Bar No. 91875

CERTIFICATE OF CONFERENCE

Pursuant to Local Rule 7.1, the Plaintiff contacted counsel for Defendant who represented that the Defendant opposes the relief sought herein.

 


[1] Plaintiff filed a separate action against the medical defendants’ (WILLIAM PRETORIUS, JACQUELINE GOBEIL, and BRYAN PATIU) property in this district pursuant to Supplemental Admiralty Rule B. However, this Honorable Court dismissed that case sua sponte, stating that such a case was barred under the doctrine of claim preclusion, and further that Plaintiff should have amended his complaint in the present action to include those claims. Plaintiff believes that his separately filed action is a new and distinct action and thus Plaintiff has filed a motion for reconsideration of the court’s order dismissing his Rule B complaint. In an abundance of caution, Plaintiff files the present motion should the Court deny Plaintiff’s motion for reconsideration and deem it proper to proceed by way of amendment.