John Doe v. Star Clippers, Ltd, Star Clippers, GSA d/b/a Star Clippers Americas, and Luxembourg Shipping Services – Part 2

Lipcon, Margulies, Alsina & Winkleman, P.A

August 13, 2013

John Doe v. Star Clippers, Ltd, Star Clippers, GSA d/b/a Star Clippers Americas, and Luxembourg Shipping Services – Part 2

Motion for Leave to Amend

If you are injured at sea it is imperative to seek the aid of an experienced maritime attorney like those at Lipcon, Margulies, Alsina & Winkleman, P.A. In this motion for leave, our cruise injury lawyers seek leave from the Court to amend a complaint to add additional defendants that were previously undisclosed. By doing so, our admiralty lawyers ensured that this injured crewmember preserved all of his rights and potential claims.

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 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, Rule 15, hereby moves for leave to file an amended complaint, attached hereto as exhibit 1, and as grounds therefore states as follows:

1. Plaintiff filed his original complaint in this matter on October 16, 2012 [D.E. 1] against Defendants STAR CLIPPERS, LTD., STAR CLIPPERS GSA, INC., and LUXEMBOURG SHIPPING SERVICES, S.A. (hereinafter “Original Defendants”).
2. In response to Plaintiff’s complaint, the Original Defendants filed a Motion to Dismiss. [D.E. 24]. Amongst other representations in the motion to dismiss, the Original Defendants alleged that they were not the owners of the vessel on which Plaintiff worked and was injured.
3. After the filing of the Original Defendants’ Motion to Dismiss, [D.E. 24], the parties agreed to a period of jurisdictional discovery and requested same from this Honorable Court. [D.E. 25]. The Court granted this motion and stayed a ruling on the Original Defendants’ Motion to Dismiss until the completion of limited jurisdictional discovery.
4. During jurisdictional discovery, facts came to light that demonstrated that there were two additional Star Clippers entities that could potentially have been the shipowner in this matter. Those entities are S.P.V. STAR FLYER, LTD. and STAR FLYER, N.V., (hereinafter “New Defendants”). S.P.V. STAR FLYER, LTD. is a Bahamian Corporation and STAR FLYER, N.V. is a corporation in Belgium.
5. When Plaintiff deposed the various corporate representatives of the Original Defendants and inquired as to who the shipowner was in this matter on the date of the incident, the corporate representatives were not sure.
6. Thereafter the parties finished briefing related to the Original Defendants’ Motion to Dismiss [D.E. 24].
7. On July 17, 2013, Plaintiff’s counsel contacted counsel for the Original Defendants seeking to confirm the identity of the shipowner on the date of the incident.
8. To date, Defense counsel has been unable to determine for certain who the shipowner was on the date of the incident alleged in the complaint.
9. Further adding to the ambiguity, Plaintiff’s employment contract, on which the Original Defendants have heavily relied in this case, lists two of the Original Defendants, LUXEMBOURG SHIPPING SERVICES, S.A. and STAR CLIPPERS, LTD. as the shipowner.
10.Ultimately, this only further proves the points made in Plaintiff’s Response in Opposition to the Original Defendants’ Motion to Dismiss, i.e. that the Star Clippers entities do not observe corporate distinctions and are truly just one large corporation registered to do business in Florida with a base of operations in Miami, FL. [D.E. 47].
11. In an abundance of caution however, Plaintiff moves for leave to file this amended complaint to add the New Defendants. Beyond the addition of the new Defendants, against which all counts are alleged, there are no substantive changes to the amended complaint.[1] Good cause exists to allow this amendment, as Plaintiff was unaware and could not have been aware of the existence of these two new entities until jurisdiction discovery revealed them.
12. Under Rule 15(a), leave to amend shall be “freely given when justice so requires.” Fed.R.Civ.P. 15(a). “In the absence of any apparent or declared reason-such as 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.-the leave sought should, as the rules require, be ‘freely given.’ ” Foman v. Davis, 371 U.S. 178, 182 (1962). No reasons to deny amendment exists herein.
13. The Defendants will not be prejudiced by the allowance of amendment, as there are no substantive changes to the Complaint beyond the addition of the New Defendants. Accordingly, there is no need for additional briefing regarding the Original Defendants’ Motion to Dismiss. Further, the New Defendants already have notice of this action as they are all part of the same Star Clippers family. In fact, the corporate representatives put forth by the Original Defendants also work for the New Defendants.

WHEREFORE, Plaintiff respectfully requests this Honorable Court grant the instant motion, and deem the attached amended complaint as filed.

CERTIFICATE OF CONFERENCE

In accord with Local Rule 7.1, Plaintiff contacted counsel for Defendants on August 7, 2013 to confer regarding this motion, but Defense counsel did not respond. Plaintiff again contacted Defense counsel on August 9, 2013, but Defense counsel has not yet responded. Accordingly, Defendants’ opposition to this motion is unknown.

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

 


[1] The only other change besides adding the New Defendants, is the addition of the date of the incident, to correct a clerical error from the original complaint.