John Doe v. Lake Front Group, Ltd.

Lipcon, Margulies & Winkleman, P.A

September 24, 2012

John Doe v. Lake Front Group, Ltd.

Response in Opposition to Defendant’s Motion for leave to Amend Answer and Affirmative Defenses

Our experienced injury attorneys actively litigate developments in maritime law. In this response in opposition to a motion to amend, the Plaintiff argues that the antiquated doctrine of the primary duty rule should not be allowed by the Court as it is a disfavored and archaic approach not largely followed by modern courts.

CASE NO.: 12-20497-CIV-KING


a foreign company,


Plaintiff, JOHN DOE, by and through undersigned counsel, and hereby files his Response in Opposition to Defendant’s Motion for Leave to Amend Answer and Affirmative Defenses. [D.E. 21]. In support thereof, the Plaintiff alleges as follows:

I. Background.

1. This matter arises out of severe injuries sustained by the Plaintiff while working as a seafarer on board Defendant’s vessel, CHARGE IT. Because the Plaintiff was assigned to permanently work on a vessel, as a member of the vessel’s crew, he is considered a “seaman” and as such is entitled to all benefits and rights provided by the General Maritime Laws of the United States, the Jones Act and the Seaman’s Wage Act. Offshore Co. v. Robinson, 266 F. 2d 769 (5th Cir. 1959); McDermott International v. Wilander, 498 U.S. 337 (1991).[1]
2. On or about January 14, 2010, Plaintiff was aboard the vessel, which was returning to Miami, Florida from a voyage to the Caribbean. During the return voyage to Miami on the above-referenced date, Plaintiff suffered severe injuries when he attempted to close the vessel’s sunroof which was malfunctioning.
3. On or about May 16, 2011, Defendant discharged and/or terminated Plaintiff from employment without paying wages and/or reimbursements which were, and continue to be, rightfully due and owing to Plaintiff.
4. As a result of the incident, on February 8, 2012, Plaintiff filed claims against Defendant, his employer and the vessel’s operator, for Jones Act Negligence, Unseaworthiness, Failure to Provide Maintenance and Cure, Failure to Treat, and Retaliatory Discharge. [D.E. 1]. Shortly thereafter, on February 22, 2012, Plaintiff filed an Amended Complaint for the limited purpose of correcting a scrivener’s error. [D.E. 2].
5. On April 13, 2012, Defendant filed its Answer and Affirmative Defenses to the Amended Complaint [D.E. 9].
6. On September 5, 2012 (5 months after filing its original Answer), Defendant filed a Motion for Leave to file an Amended Answer to the Complaint. [D.E. 21]. In the Motion, Defendant argues 1) that it “seeks leave to amend its Answer to include an additional affirmative defense” and 2) that “Plaintiff will face no prejudice by Defendant amending its Answer.”

Defendant’s proposed affirmative defense, provides as follows:

39. As for its second affirmative defense, as master of the vessel in question, Plaintiff was solely responsible for the maintenance and upkeep of the vessel, including but not limited to repairs of equipment and appurtenances. To the extent that Plaintiff’s failure to perform his duty to properly perform his duties, Plaintiff is precluded from recovery under the Primary Duty Doctrine. [2]

As shown below, Defendant’s Motion should be denied.

I. Defendant’s Motion for Leave should be denied because it is untimely. In the Motion, Defendant fails to explain why it waited five months to amend its answer.

First, Defendant’s motion is untimely. See Estate of Miller ex. rel. v. Thrifty Rent-A-Car System, Inc., 609 F. Supp. 2d 1235 (M.D. Fla. 2009) (“An untimely motion to amend a pleading is distinctly disfavored under the Local Rules of this District”).

In its Motion for Leave [D.E. 21], Defendant seeks to Amend its Answer to add one additional affirmative defense. Notably, in the Motion, Defendant does not show good cause or even attempts to explain why it waited 5 months to amend its Answer.

Indeed, as set forth in by the Eleventh Circuit in Maschino v. Valpak Direct Marketing Systems, Inc.,, 349 Fed. Appx. 368 (11th Cir. 2009) and Sosa v. Airprint Sys., 133 F. 3d 1417 (11th Cir. 1998), for Defendant to be able to amend its pleading (5 months after filing its original answer), Defendant is required to demonstrate good cause, by showing that the “facts underlying the proposed amendment could have been discovered with the exercise of due diligence in advance of the amended deadline.” Maschino, at 370 – 371 (emphasis added). See also Sosa v. Airprint Sys., 133 F. 3d 1417 (11th Cir. 1998) (“Scheduling orders may be modified only upon a showing of good cause… if a party was not diligent the good cause inquiry should end”) (emphasis added).

Here, the Motion for Leave does not explain why Defendant waited until the last minute (6 weeks before the discovery cut-off period)[3] to amend its answer. In fact, Defendant’s grounds for amending, to add an affirmative defense under the Primary Duty Doctrine, could have been done at any time during the last five months. Nothing prevented Defendant from doing so. Had Defendant exercised due diligence it would have added the affirmative defense in its original answer or sought to amend sooner.

Therefore, pursuant to Maschino and Sosa, because Defendant was not diligent, there is no good cause for the untimely amendment and the Motion for Leave should be denied. If counsel for Defendant made a mistake and forgot to add the affirmative defense to its original answer, such lack of diligence is not sufficient to show good cause.[4]

Second, if Defendant is allowed to Amend, Plaintiff will be severely prejudiced. Up to this point, the Plaintiff has relied on Defendant’s existing affirmative defenses for five months. The new affirmative defense would require the propounding of additional interrogatories and requests for production, before Plaintiff can follow up with depositions. However, under the current discovery deadline (setting the cut-off on October 31, 2012), Plaintiff would have only four weeks to accomplish this.

Certainly, it would be inequitable to allow Defendant to conduct discovery for 8 months on all of the Plaintiff’s causes of action, while limiting the Plaintiff’s discovery period of Defendant’s new affirmative defense to 1 month.

Bottom line, what Defendant is attempting to do is the equivalent of a Plaintiff seeking to add a new cause of action into the Complaint a few weeks before the discovery cut-off. There is no question that Defendant would find that prejudicial and unfair.

II. Defendant’s Motion for Leave should be denied because the amendment would be futile anyway. The affirmative defense of “primary duty” is an antiquated concept that has been abrogated in favor of the concept of comparative negligence.

When a party has no right to amend and must obtain leave of court to do so, it is proper for a court to deny such leave if an amendment would be futile. In other words, amended pleadings that would clearly not prevail or improve the position of a party should be rejected. Foman v. Davis, 371 U.S. 178 (1962); Jefferson County School Dist. No. R-1 v. Moody’s Investor Services, Inc., 174 F. 3d 848 (10th Cir. 1999) (“[T]he district court may deny leave to amend where the amendment would be futile”); Rose v. Harford Underwritters Ins. Co. v., 203 F. 3d 417, 420 (6th Cir. 2000) (proposed amendment is futile if it cannot withstand motion to dismiss under 12(b)(6).

In this case, Defendant’s proposed amendment to add the affirmative defense of “primary duty” would be futile because simply put, that doctrine has been largely abrogated.

The antiquated primary duty rule (also referred as the Walker doctrine) holds that ship’s captain or officer is not able to recover for negligence or unseaworthiness against his employer where he is under a continuing duty to exercise due care to maintain safe conditions aboard the vessel and he is injured as a result of this breach of duty. The source of the doctrine is the 1952 decision of Walker v. Lykes Brothers S.S. Co., 193 F. 2d 772 (2d Cir. 1952).

The theoretical basis of the Walker doctrine is “the employer’s independent right to recover against the employee for the non-performance of a duty resulting in damage to the employer, which in effect offsets the employee’s right to recover against the employer for failure to provide a safe place to work.” Dixon v. United States, 219 F. 2d 10, 16-17 (1st Cir. 1955). In essence, therefore, the primary duty doctrine relies on the principles of contributory negligence and assumption of the risk.

After the flurry of activity to establish the primary duty doctrine, however, courts around the country began to retrench, and over the next four decades the doctrine was taken apart to the point of being abrogated. Part of the reason for the abrogation is that Congress has explicitly abolished “contributory negligence” and “assumption of the risk” in Jones Act cases. See 45 U.S.C.A. §54.

Indeed, the Former Fifth Circuit has rejected the primary duty rule as obsolete. Louisiana & Arkansas Ry. Co. v. Johnson, 214 F. 2d 290, 292 (5th Cir.1954) (discussing abolition of the primary duty defense under the Federal Employer’s Liability Act).[5]

The Seventh Circuit also concluded that the doctrine is inconsistent with the Jones Act. Kelley v. Sun Trans. Co., 900 F. 2d 1027, 1031-32 (7th Cir.1990)(“Our rejection of a rule barring recovery by a ship’s officer comports with the statute’s [Jones Act] rejection of a harsh application of contributory negligence.”). The Seventh Circuit reasoned that if the officer’s negligence was the sole cause of his injuries, he would not be able to recover damages because “the employer’s non-negligence bars recovery.” Id. at 1031.

Other circuits have found the doctrine inapplicable. The Eleventh Circuit has refused to apply the primary duty in cases where no misconduct or actual knowledge of an unsafe condition existed, even in the case of the vessel’s captain. Villers Seafood Co., Inc. v. Vest, 813 F. 2d 339, 342-43 (11th Cir. 1987). The Eleventh Circuit concluded that even if the captain was aware of the unsafe condition, “it would not bar recovery in [the] action. Assumption of the risk and contributory negligence are not defenses to a claim of unseaworthiness but may only be proven in mitigation of damages.” Id. at 342. Absent misconduct, the vessel “owner’s right to have his condition of employment and instructions obeyed is adequately vindicated … by application of mitigation of damages according to the doctrine of comparative negligence.” Id. at 343 (emphasis added).[6]

Similarly, in the Sixth Circuit, “[t]he rule only applies to a knowing violation of a duty consciously assumed as a term of employment.” Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 910 (6th Cir. 2009).

All in all, as the leading commentator in Admiralty and Maritime Law has put it “by barring recovery altogether, the Walker doctrine is inconsistent with the abolition of assumption of the risk and the application of comparative negligence in Jones Act and unseaworthiness cases.” Thomas J. Shoenbaum, Fourth Edition, Admiralty and Maritime Law, §4-24 The Primary Duty Doctrine, pg. 287. “The correct rule was stated by the Court in Kelley v. Sun Transp. Co., 900 F. 2d 1027 (7th Cir. 1990):

We believe that the modern cases after Walker [the original primary duty doctrine case] and Peymann present the prevalent rule of law in the United States. The inquiry at trial should endeavor to apportion responsibility for the injury. This does not mean, however, that a supervisory employee will recover in every case for the injuries suffered on the ship. A ship’s officer can be found to be negligent with respect to his accident. If such negligence is the sole cause of the injury, the employer’s non-negligence bars recovery. See Boudreaux v. Sea Drilling Corp., 427 F.2d 1160, 1161 (5th Cir. 1970).

Id.” Shoenbaum, Fourth Edition, Admiralty and Maritime Law, pg. 287, citing Kelley, at 1031 (7th Cir. 1990). See also Bartoe v. Missouri Barge Line Co., Inc., 635 F. Supp. 2d 1020, ft. 2 (E.D. Miss. 2009):

Defendants ask me to introduce the doctrine to the law of this circuit. I would be reluctant to do so in general in light of the Second Circuit’s own resistance to the primary duty doctrine, the history of the doctrine, the fact that Judge Hand’s opinion predates the Supreme Court’s decision in Pope & Talbot, Inc. (which specifically rejects the bar of contributory negligence in a Jones Act case), and the decisions of the Courts of Appeals finding it inconsistent with the Jones Act. I believe the doctrine is inconsistent with the Jones Act’s rejection of contributory negligence and assumption of the risk as bars to recovery.

Id., (emphasis added).

Accordingly, because Defendant’s proposed amendment to include an affirmative defense under the primary duty doctrine would be futile (the doctrine has been abrogated) its Motion for Leave should be denied. See Jefferson County School Dist. No. R-1 v. Moody’s Investor Services, Inc., 174 F. 3d 848 (10th Cir. 1999) (“[T]he district court may deny leave to amend where the amendment would be futile”); Rose v. Harford Underwritters Ins. Co. v., 203 F. 3d 417, 420 (6th Cir. 2000) (proposed amendment is futile if it cannot withstand motion to dismiss under 12(b)(6)).


[1] Persons who claim the status of “seamen” under the law of admiralty have access to special rights and remedies not accorded to other workers. Thomas J. Shoenbaum, Admiralty Law, 4th Ed., §4-1, pg. 197. A seaman who is injured may sue his employer and the ship-owner under the Jones Act, for Unseaworthiness, Maintenance and Cure, and Failure to Pay Wages. Id. In Wilander, the United States Supreme Court established that the definition of “seaman” encompasses all who work on board a vessel. Applying this definition, virtually every profession on board the vessel has been given “seaman” status: cooks, firemen, musicians, engineers, interpreters, doctors, carpenters, waiters, cabin stewards, kitchen boys, pilots, engineers, radio operators, pursers, etc. See Wilander, 498 U.S. at 339-41 (1991). For this reason Defendants do not dispute – and cannot dispute – that the Plaintiff is a seaman.

[2] As will be explained in greater detail below, the Primary Duty Doctrine is a form of “contributory negligence” under admiralty law. Because comparative negligence is now the majority rule in admiralty; the primary duty doctrine is an antiquated concept which has been abrogated.

[3] On September 24, 2012, at Defendant’s request, this Honorable Court extended the discovery cut-off period to from October 10, 2012 to October 31, 2012. [D.E. 25].

[4] Notably, in the Maschino case, the party seeking to amend, blamed the 7 month delay in amending the pleading on the tragedy of his wife’s death and his resulting inability to communicate with his attorney. The Eleventh Circuit affirmed the lower court’s denial of the motion for leave, finding that “without discounting the profound effect of that sad event must have had on Maschino, it does not satisfy the good cause standard because … [t]he facts underlying the proposed amendment were actually known or could have been discovered with the exercise of due diligence.”

Therefore, if the Eleventh Circuit found under these compelling facts that there was no good cause to amend; here, counsel’s neglect to include the affirmative defense earlier is, undoudedly, not sufficient to establish good cause to amend.

[5] In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir. 1981) (en banc), this circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

[6] See Bartoe v. Missouri Barge Line Co., Inc., 635 F. Supp. 2d 1020, ft. 2 (E.D. Miss. 2009):

Although the Eleventh Circuit stated that it was unwilling to extend the doctrine to cases where there was no finding of (1) misconduct or (2) actual knowledge of the unsafe condition, I believe the only remaining possible application of the primary duty doctrine [in] the Eleventh Circuit is in cases of affirmative misconduct because the court stated that even if the ship’s captain was aware of an unsafe condition, that would not bar recovery, but only serve to mitigate the damages. Villers Seafood Co., Inc., 813 F. 2d at 342 (“Even if the court did make such a finding, and even if that finding was supported by evidence, it would not bar recovery in this action. Assumption of the risk and contributory negligence are not defenses to a claim for unseaworthiness but may only be proven in mitigation of damages.”).

Notably, here, none of the allegations in Defendant’s proposed affirmative defense makes any allegation of intentional misconduct by the Plaintiff.