June 27, 2013
John Doe v. Carnival Corp., et al – Part 7
Reply to Response in Opposition to Motion for Leave to Amend
Maritime personal injury cases are complex and can involve high amounts of legal research and argument. That is why it is important to hire an experienced maritime attorney if you or someone you know is injured while traveling or working aboard a vessel. In this case, Carnival oppposed the Plaintiff’s moiton for leave to amend, necessitating a reply that analyzed the law in favor of allowing Plaintiff to amend.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-CV-23345 – UNGARO
PLAINTIFF’S REPLY TO CARNIVAL’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND HIS COMPLAINT
Plaintiff, JOHN DOE, (“Doe”) by and through his undersigned counsel, hereby files his reply to CARNIVAL CORPORATIONS, (“Carnival”), Response in Opposition to Plaintiff’s Motion for Leave to Amend his Complaint, and as good cause therefore relies on the following:
PLAINTIFF SHOULD BE ALLOWED TO AMEND HIS COMPLAINT TO ADD HIS ACTION UNDER RULE B. CARNIVAL’S ARGUMENTS REGARDING DILIGENCE, GOOD CAUSE, AND FUTILITY ARE UNAVAILING BECAUSE THE PLAINTIFF HAS DONE NOTHING BUT ZEALOUSLY PURSUE RECOVERY FOR A LEGITIMATE INJURY IN WHAT HAS BEEN A DIFFICULT CASE DUE TO THE STATUS OF THE LAW. AT NO POINT DID THE PLAINTIFF SLEEP ON HIS RIGHTS OR CAUSE UNDUE DELAY, AND IF THERE WAS ANY DELAY IT IS AT WORST EXCUSABLE NEGLECT. FINALLY, PLAINTIFF HAS DEMONSTRATED GOOD CAUSE FOR HIS MOTION FOR LEAVE TO AMENd.
At the outset of this reply, it is important that Plaintiff clarify that he is mindful of the Court’s deadlines and of the rules regarding amendment. Carnival insinuates that Plaintiff attempted to file a separate lawsuit to avoid the Court’s deadline to amend the pleadings after pursuing a fruitless appeal. This could not be further from the truth.
As pointed out in his motion for leave to amend, Plaintiff’s counsel moved forward in the exact same procedural fashion it had in another Rule B action before this Honorable Court. Further, in Plaintiff’s separately filed Rule B Complaint, Plaintiff specifically mentioned the present case, stated that Plaintiff would seek to consolidate the two actions, and further noted on his civil coversheet that the Rule B Complaint was related to the present action. That is why the separately filed Rule B Complaint was transferred to the Hon. J. Ungaro. Contrary to what Carnival would have this Court believe, Plaintiff acted in good faith based on past experience with the Court and used all of the procedural tools available to him to make his best case.
As for the remainder of Carnival’s response, Carnival argues that the Plaintiff should not be given leave to amend because 1) Plaintiff failed to act diligently, 2) Plaintiff has no good cause to amend, and 3) amendment would be futile. Each of Carnival’s arguments misses the mark as Plaintiff more fully sets forth below.
Ii. Plaintiff’s Motion for Leave to Amend, despite being filed after the Court’s deadline for amendment, was filed as soon as the Plaintiff became aware that amendment was necessary. Accordingly, the Plaintiff acted diligently and with good cause.
Rule 16 of the Federal Rules of Civil Procedure pertaining to case management and scheduling is pertinent to the analysis of whether Plaintiff’s motion to amend his complaint was timely. The Eleventh Circuit’s decision in Sosa v. Airprint Systems, Inc., 133 F.3d 1417 (11th Cir.1998), is instructive as to how Rule 16 is applied to amendments outside the time frame established in the court’s case management and scheduling orders.
Once the district court has entered a scheduling order limiting the time for amendments to pleadings as required by Rule 16(b), the schedule set by the court will control the course of the action unless the schedule is later modified by court order “upon a showing of good cause.” Fed.R.Civ.P. 16(b). “This good cause standard precludes modification unless the schedule cannot ‘be met despite the diligence of the party seeking the extension.’ ” Sosa, 133 F.3d at 1418 (quoting Fed.R.Civ.P. 16 advisory committee’s note).
In Sosa, the court considered three factors in assessing diligence exercised in meeting the deadline set in the scheduling order for amending the complaint: 1) the plaintiff failed to ascertain facts prior to filing the complaint and to acquire information during the discovery period, 2) the information supporting the proposed amendment was available to the plaintiff, and 3) even after acquiring information, the plaintiff delayed in asking for amendment. Id.
Herein, Plaintiff only became aware that amendment was necessary when the Court sua sponte dismissed his separately filed Rule B action. See JOHN DOE v. William Pretorius, et al, Case No.: 13-21690, S.D. Florida. Plaintiff could not ascertain this fact any earlier as a search of case law revealed no similar fact pattern requiring a Plaintiff to amend his original in personam complaint to include a Rule B attachment claim rather than filing a separate Rule B action. This is a reasonable position given the different nature of the claims.
Further, as noted in Plaintiff’s Motion for Leave to Amend, Plaintiff was unaware that amendment was necessary because this Honorable Court allowed Plaintiff’s counsel to proceed under the exact same procedural posture in the case 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).
Plaintiff sought leave to amend his Complaint in the present action to add claims under Supplemental Admiralty Rule B within 10 days of the Court’s sua sponte order dismissing his separately filed Rule B action and informing him that the proper procedural course was to seek amendment. Accordingly, Plaintiff acted diligently pursuant to the three factor test promulgated by the Eleventh Circuit Court of Appeals in the Sosa decision. Further, Plaintiff acted with good cause, because as demonstrated above, Plaintiff moved to amend as soon as he became aware of the need for amendment.
III. Carnival’s claim that Plaintiff’s amendment would be futile because Plaintiff missed the statute of limitation and because a rule b attachment in this case is barred by federal maritime law are unavailing because Carnival’s limitations period does not apply to the claim Plaintiff is seeking to bring and because the Medical Defendants are not, according Carnival “seaman” and do not earn “wages” as “employees” of Carnival. Further, any argument from Carnival that there is no property to attach is properly made in response to the amendment, not in response to a motion for leave to amend.
Amendment is not futile in this action as the Plaintiff should be allowed to maintain his claims against the Medical Defendants’ Property in this jurisdiction. The arguments pointed to by Carnival in support of its argument are 1) the one year limitation period prescribed by Carnival’s passenger ticket contract, 2) a federal statute precluding attachment of seaman’s wages, and 3) Carnival’s counsel stating that there is only a small amount of property in the jurisdiction available to attach.
Firstly, as to the one year limitation period called for in Carnival’s passenger ticket contract, it has no application to claims against the Medical Defendants or their property. Notably, in response to the Medical Defendant’s motion to dismiss, Plaintiff argued that the Medical Defendants cannot be permitted to avail themselves of the limitations in Carnival’s passenger ticket contract if they would not also submit to the jurisdictional provisions of that contract. In response to this, the Medical Defendants argued that the Doctor was not a party to the ticket contract and was thus not subject to the limitation provisions therein. If the Defendants take an about face on this issue by attempting to avail the medical defendants or their property of this one year limitation, then they should submit to the jurisdiction of this Court by way of the ticket’s forum selection clause.
To the extent Carnival argues that Plaintiff is claiming against Carnival in violation of the limitations contained in the passenger ticket contract, this argument fails because 1) Plaintiff is making no new claim against Carnival, but rather only against property in Carnival’s possession, and 2) the limitation in Carnival’s passenger ticket contract does not apply to claims for attachment, but rather only to personal injury claims. Plaintiff need not re-address the first point as plaintiff has already pointed out above and in his initial motion for leave to amend that the claims he is seeking to pursue are against the Medical Defendants property, not against Carnival. As to the second point, Carnival’s ticket contract states only that:
“Carnival shall not be liable for any claims whatsoever for personal injury, illness or death of a guest, unless full particulars in writing are given to Carnival within 185 days after the date of the injury, event, illness or death giving rise to the claim. Suit to recover on any such claim shall not be maintainable unless filed within one year from the date of injury, event, illness or death.”
D.E. 43-10, pg. 5. The one year limitation provision specifically limits only claims for personal injury, illness or death of a guest. The limitation says nothing regarding actions for garnishment like those in Plaintiff’s amended complaint. At the very worst, the new claims in Plaintiff’s amended complaint relate back to his original complaint and are thus timely filed. Fed. R. Civ. P. 15(c).
Secondly, Carnival argues that attachment of the Medical Defendants’ property is barred by 46 U.S.C. 11109, a statute pertaining to seaman’s wages. The Court should not bar amendment based on this because Carnival is making a convenient argument to fit its position at this moment despite taking a prior inconsistent position in this litigation. This practice is barred under the doctrine of judicial estoppel. See Burnes v. Pemco Aeroplex, 291 F.3d 1282, 1285-86 (11th Cir.2002). “Under this doctrine, a party is precluded from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. Judicial estoppel is an equitable concept intended to prevent the perversion of the judicial process.” Id (internal quotations omitted). Further, this doctrine exists “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) (internal citations and quotations omitted). At the outset of this litigation, Carnival moved to dismiss Plaintiff’s claims based on vicarious liability for the actions of the medical defendants. In that motion to dismiss, Carnival stated that the Medical Defendants are independent contractors, not employees of Carnival. D.E. 12.
To support its claims, Carnival attached and quoted its passenger ticket contract. D.E. 12-1. That contract states that the ships medical personnel are not employees of Carnival and that they are present solely for the convenience of the ship’s passengers. D.E. 12-1. Carnival also cited case law standing for the proposition that it is not in the business of running a floating hospital. D.E. 12, pg. 7. Carnival’s ticket contract makes clear that the Medical Defendants act on their own behalf and can be paid for their services, but this is done only as a convenience for passengers. D.E. 12-1. Plaintiff further pled in his complaint that there is a profit sharing arrangement between Carnival and the Medical Defendants. Carnival has in the past argued that ships medical personnel are not employees of Carnival that can make a claim under the Jones Act, but rather are independent contractors without the rights of a seaman. See Gerald Stopzynski v. Carnival Corporation, Case No.: 04-22082 CA 10, Motion for Summary Judgment attached hereto as Exhibit 1.
Essentially, in its Motion to Dismiss Carnival argued that the Medical Defendants are not members of the vessels crew, i.e. not seaman doing ship’s work. After all, as Carnival argued, it is not in the business of running a floating hospital, so a doctor offering medical services is not doing ship’s work. The effect of this is that Carnival cannot now claim that the Medical Defendants are seaman whose property cannot be attached. Further, Carnival cannot claim that any property it is holding is in fact a “wage”, rather than a portion of the profit created by the enterprise it was jointly running with the independent contractor Medical Defendants, and or the fees earned for providing medical services to passengers as alleged in Plaintiff’s amended Complaint. In fact, Plaintiff’s amended complaint never once asks this Honorable Court to garnish any wages.
This is important because Carnival has the burden to establish that whatever property it may have in its possession are in fact wages of a seaman entitled to the exemption given by 46 U.S.C. 11109, however Carnival has offered no evidence or affidavits to demonstrate this. See Carter v. Helena Marine Serv., Inc., 251 Ark. 876, 475 S.W.2d 528 (1972). Further, the protection of 46 U.S.C. 11109 only apply to “wages” so long as they are in the hands of an “employer”. Erenerol v. McCarthy, N.Y.A.D. 2 Dept.1964, 248 N.Y.S.2d 464, 20 A.D.2d 798. As made clear by Carnival in this litigation and in past litigation, it is not the Medical Defendants employer and the Medical Defendants earn a fee for their services rendered to patients. This is not the employer-employee relationship and/or wages that 46 U.S.C. 11109 was designed to protect.
Thirdly, neither the Plaintiff or this Honorable Court should have to take the Defendant’s counsels word that Carnival is not in possession of significant property that can be attached in these proceedings. Carnival is welcome to state in response to Plaintiff’s action for attachment that there is no property to be attached, but that is not an appropriate response to Plaintiff’s motion for leave to amend. Importantly, Carnival has already admitted that there is property here that can be attached for at least one of the Medical Defendants. Plaintiff should be given the chance to attach this property and conduct discovery to determine if any other property is in the jurisdiction.
Despite Carnival’s arguments, Plaintiff has done nothing but zealously pursue a recovery with whatever tools are available to him. In doing so, Plaintiff submits that he has acted diligently and tirelessly in what has been a difficult case given the status of the law and the system that Carnival has created. Plaintiff has demonstrated that there is good cause for his motion for leave to amend, and should be given the opportunity to amend so that this case can move forward and be decided on all of its merits.
WHEREFORE,Plaintiff respectfully requests this Honorable Court grant him leave to amend his complaint to incorporate his claims under Supplemental Admiralty Rule B.
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
 Further, this information (the necessity of amendment) was not available to the Plaintiff prior to this Honorable Court’s sua sponte dismissal of his Rule B Complaint, because to undersigned counsel’s knowledge after a diligent search, no case law existed that barred the Plaintiff from filing a separate Rule B action.
 Plaintiff again reiterates that the in personam claims against the medical defendants are different from the claims raised in his Rule B action which sues the medical defendant’s property, rather than the medical defendants themselves.
 Carnival argues that Plaintiff’s stated good cause is “we didn’t think of this sooner”. On the contrary, Plaintiff’s good cause is that there was no case law (and notably Carnival has found none) that informed Plaintiff that he had any need to amend rather than file a separate action. Accordingly, Plaintiff filed a separate action. Plaintiff only seeks amendment because this Honorable Court sua sponte dismissed the separate action and stated that amendment in this action was the proper course. Accordingly, the good cause offered by the Plaintiff is the Court’s instruction that amendment is the proper course.
 Carnival’s ticket contract specifically seeks to limit actions for liability. The garnishment sought be Plaintiff herein is more akin to an equitable remedy. In the Rule B amendment, Plaintiff is not seeking liability against Carnival, but rather seeking transfer of property in Carnival’s possession. Liability is separate and apart from Carnival. This is important as Carnival only seeks to limit its liability, not prevent itself from being named as a garnishee. See Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002) ( “..for restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.” )
 “the essential requirements for seaman status are twofold. First, as we emphasized in Wilander, an employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission. The Jones Act’s protections, like the other admiralty protections for seamen, only extend to those maritime employees who do the ship’s work.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). The second requirement involves the length of the seaman’s connection to a vessel in navigation.
 Due to Carnival’s system of hiring foreign medical personnel despite having predominately American passengers, Plaintiff is faced with the proposition of pursuing four different lawsuits in four separate countries if the Court denies his motion for leave to amend.