John Doe v. Star Clippers, Ltd, Star Clippers, GSA d/b/a Star Clippers Americas, and Luxembourg Shipping Services

Lipcon, Margulies, Alsina & Winkleman, P.A

September 09, 2013

John Doe v. Star Clippers, Ltd, Star Clippers, GSA d/b/a Star Clippers Americas, and Luxembourg Shipping Services

Reply to Response to Motion for Leave

In this reply brief, our experienced maritime attorneys respond to arguments raised by the Defendant cruise line in their opposition to the Plaintiff’s motion for leave to amend.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 12-CV-23768-KING/McALILEY
JOHN DOE,
Plaintiff,

v.

STAR CLIPPERS, LTD. CORP.,
STAR CLIPPERS GSA, INC., d/b/a
STAR CLIPPERS AMERICAS and
LUXEMBOURG SHIPPING SERVICES, S.A.,
d/b/a STAR CLIPPERS, S.P.V. STAR FLYER, LTD.,
and STAR FLYER, N.V.
Defendants.
_____________________________/

PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

Plaintiff, JOHN DOE, by and through his undersigned counsel and pursuant to the Federal Rules of Civil Procedure, hereby files his Reply to Defendants’ Response to Plaintiff’s Motion for Leave to File an Amended Complaint, and for good cause states as follows:

On August 13, 2013, Plaintiff filed a Motion for Leave to File an Amended Complaint. [D.E. 55].

The need for amendment arose out of information obtained during jurisdictional discovery. Specifically, Plaintiff obtained a bareboat charter agreement and a rider to the bareboat charter agreement naming two additional entities as owners of the vessel on which the Plaintiff was injured. Those two additional entities are S.P.V. Star Flyer, Ltd., and Star Flyer, N.V., which Plaintiff now seeks to add as Defendants through amendment.

On August 30, 2013, the Defendants filed their response to Plaintiff’s Motion for Leave to File an Amended Complaint. [D.E. 58].

In the response, Star Clippers, Ltd. agreed to withdraw one of the defenses presented in its Motion to Dismiss, to wit, that Star Clippers, Ltd. is not the owner of the Star Flyer and can thus not be held liable for the unseaworthiness of the vessel.

By withdrawing this defense, Star Clippers, Ltd. argues that it has mooted Plaintiff’s Motion for Leave to File an Amended Complaint. Respectfully, Plaintiff disagrees.

Although Star Clippers, Ltd. agreed to withdraw its Defense, it has not agreed to stipulate that at least for purposes of this accident and litigation, it is the sole owner of the Star Flyer and thus the only responsible party for any alleged unseaworthiness should unseaworthiness be found. Plaintiff will have the burden to prove this at trial if he is to recover for his claim of unseaworthiness.

Star Clippers, Ltd.’s agreement to withdraw its defense does not entirely help the Plaintiff with resolving the need for amendment. If Star Clippers, Ltd. is not the owner of the Star Flyer, then Plaintiff will be unable to prove this at trial, whether that defense is pled or not. Alternatively, if Star Clippers, Ltd. is only a partial owner of the Star Flyer and there are additional owners, absent an agreement to assume the liability of those owners, Star Clippers, Ltd.’s agreement to withdraw a defense does not mean that Plaintiff will be able to wholly recover on his claim for unseaworthiness.

As there is now evidence that there are potentially two other owners of the vessel, Plaintiff cannot agree to forgo amendment simply because Star Clippers, Ltd. has agreed to withdraw a defense. In an abundance of caution, Plaintiff must add these additional Defendants should further discovery prove that at the time of the incident either party was the owner, in whole or in part, of the Star Flyer.

Plaintiff is hopeful that once all parties are involved, a stipulation or request for admission will be worked out that will allow for the subsequent dismissal of some parties. However, until such a stipulation or response to request for admission has been provided by the Defendants, Plaintiff should be allowed to add these additional parties who are potentially owners of the Star Flyer and thus liable for its alleged unseaworthiness.

WHEREFORE, Plaintiff respectfully requests this Honorable Court grant Plaintiff’s Motion and allow Plaintiff leave to file his amended complaint.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By: /s/ Eric Charles Morales
ERIC C. MORALES
FLORIDA BAR # 91875