In the matter of: Tamer Gozleveli and Farideh Gozleveli, as owners of a 2012 11’ Sea-Doo Bombarder 21CA

Lipcon, Margulies & Winkleman, P.A

Response in Opposition to Motion to Bifurcate

Our experienced maritime lawyers handle all kinds of boating injuries. In this case, the Plaintiff was injured when her jet ski collided with an obstruction in a waterway. The owners of the jet ski filed a limitation of liability action, and our admiralty attorneys filed a counter claim. As the case approaches its trial date, the owners of the jet ski asked the Court to bifurcate the proceedings. Our maritime injury lawyers opposed the motion and ultimately prevailed on the issue.

CASE NO. 12-61458-CIV-RNS
In the matter of: Tamer Gozleveli and
Farideh Gozleveli, as owners of a
2012 11’ Sea-Doo Bombarder 21CA,
Hull Identification Number YDV22280B212,
for Exoneration from and Limitation of Liability,
Petitioners/Counter-Defendants (“Owners”),


Respondent/Counter-Claimant/Third-Party Plaintiff (“Claimant”),


Aydin Gozleveli,
Third-Party Defendant.



Respondent/Counter-Claimant/Third-Party Plaintiff, JANE DOE(“Claimant”), by and through undersigned counsel, hereby files the instant response in opposition to Petitioners/Counter-Defendants, TAMER GOZLEVELI and FARIDEH GOZLEVELI, and Third-Party Defendant, Aydin Gozleveli’S (at times collectively referred to as the “Gozlevelis[’]”) Motion for Enlargement of Time to File Motion to Bifurcate [D.E. 74] and, in furtherance thereof, states as follows:

I. Procedural History and Introduction

The instant matter involves the severe injuries sustained by the Claimant as a result of an accident involving the Gozlevelis’ wave runner. Specifically, the Claimant alleges that the Gozlevelis negligently allowed the Claimant to operate the wave runner even though she had no prior training in the operation of a personal watercraft and had never operated a personal watercraft before. [D.E. 9, p. 9, 25]. The Claimant further alleges that despite her inexperience, the Third-Party Defendant (who was operating a second wave runner) instructed her to follow him while driving at excessive high rates of speed and taking sharp turns. [D.E. 9, p. 9, 28, 30]. The Claimant, however, was not able to make one of the sharp turns like the Third-Party Defendant, which caused her to collide into a dock and get thrown into the water. [D.E. 9, p. 9, 30]. As a result thereof, the Claimant sustained severe injuries to her hip requiring intensive debridement surgery, punctured lungs, and fractures to her ankle, humerous and pelvis. [D.E. 9, pp. 9-10, 31].

The above accident occurred on March 1, 2012. On July 23, 2012, TAMER GOZLEVELI and FARIDEH GOZLEVELI filed a petition seeking to exonerate or limit any liability assessed against them for the above incident and injuries to the value of the subject wave runner after the accident. [D.E. 1]. On the same date (July 23, 2012), this Honorable Court entered its Order requiring “any claims that might arise as a result of any incident resulting in any injury or death” to be filed by September 6, 2012. [D.E. 5, 3-4]. Accordingly, on September 5, 2012, the Claimant filed her answer along with a counterclaim and third-party complaint against the Gozlevelis. [D.E. 9].

Pursuant to this Honorable Court’s Amended Scheduling Order, this matter is set for the two-week trial period beginning February 24, 2014, expert disclosures were due by November 1, 2013, and all pretrial discovery motions were due by December 16, 2013. [D.E. 39]. The Gozlevelis, however, failed to submit their “rebuttal”[1] expert’s report within this Court’s deadline and moved for an extension to submit such report after the deadline had already passed. [D.E. 59]. On December 11, 2013, the Court granted the Gozlevelis’ motion and extended the deadline for the Gozlevelis’ expert report to December 19, 2013; the Court also extended the deadline for pretrial motions to December 31, 2013. [D.E. 64].

At issue herein is the Gozlevelis’ Motion for Enlargement of Time to File Motion to Bifurcate, with the Motion to Bifurcate attached as Exhibit 1. [D.E. 74]. The motion was filed on January 27, 2014 – after this Court’s deadline for pretrial motions which, as evident from the above, has been an ongoing theme for the Gozlevelis.

The Claimant hereby respectfully requests that the Gozlevelis’ motion be denied in its entirety as the Gozlevelis fail to even provide a reason for requiring additional time, let alone establish the required excusable neglect. Even if this Honorable Court does consider the Motion to Bifurcate, however, the motion should still be denied because liability and damages issues are so intertwined in limitation of liability cases that convenience, expedition and economy would not be served.

II. The Gozlevelis fail to show – or even mention – excusable neglect, and they do not even provide a reason for requiring additional time.

Pursuant to Federal Rule of Civil Procedure 6, “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time: …. on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B) (emphasis added).

Pursuant to the United States Supreme Court, excusable neglect encompasses “situations in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 393-394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In determining whether to excuse a party’s neglect of a deadline, the Supreme Court advises lower courts to “take account of all relevant circumstances surrounding the party’s omission,” including such factors as “the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395; see also Ashmore v. Sec’y, Dep’t of Transp., 503 F. App’x 683, 686 (11th Cir. 2013) (discussing Pioneer); McMullen v. Charter Sch. USA, Inc., 09-61578-CIV-ZLOCH, 2011 WL 56065 (S.D. Fla. Jan. 7, 2011) (same).

Herein, the Gozlevelis failed to establish – or even mention – excusable neglect in their Motion for Enlargement of Time, as required under Rule 6. In fact, they do not even attempt to explain why they are moving for an enlargement nearly one month after this Court’s December 31, 2013 deadline. For this reason alone, the Court should deny the Gozlevelis’ motion.

In addition, however, the Claimant would be severely prejudiced should this Honorable Court grant the Gozlevelis’ Motion for Enlargement and consider their Motion to Bifurcate. To date, this case has proceeded on a single track without any prejudice or delay, and the Claimant has already started preparing her case for trial in reliance on both liability and damages being tried together. There is no reason that the Gozlevelis could not have moved for bifurcation early on in the case or, at the very least, within this Court’s deadline for pretrial motions one month ago. Instead, the Gozlevelis once again fail to abide by this Court’s Scheduling Order for the third time[2]and expect this Honorable Court to simply allow them to do so without being held accountable. Where one party follows the rules and the other blatantly disregards those rules, the offending party should not be rewarded (and the complying party penalized) for doing so. Otherwise, what purpose do deadlines serve?

Accordingly, because the Gozlevelis fail to even attempt to show excusable neglect or provide a reason for their delayed motion and because the Claimant would be prejudiced if the Court grants their motion, this Honorable Court should deny the Gozlevelis’ Motion for Enlargement of Time.

III. The liability and damage portions should not be bifurcated because liability and damages issues are so intertwined in limitation of liability cases that convenience, expedition and economy would not be served.

In the event that this Court does consider the Gozlevelis’ Motion to Bifurcate, the Claimant submits that the motion should be denied because liability and damages issues are so intertwined that bifurcation would not serve judicial economy or avoid inconvenience.

Under Federal Rule of Civil Procedure 42, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). “Whether to bifurcate a trial is a matter to be decided on a case-by-case basis and must be subject to an informed discretion by the trial judge in each instance.” Brown v. Toscano, 630 F. Supp. 2d 1342, 1345-46 (S.D. Fla. 2008) (citations omitted). The party seeking bifurcation “bears the burden of demonstrating that bifurcation would serve judicial economy, avoid inconvenience, and not prejudice any of the parties.” Id.

This Court has routinely held against bifurcation, finding that convenience, expedition and economy are not usually served. Id., see also Joseph v. Liberty Nat. Life Ins. Co., 08-20117-CIV, 2008 WL 2026006 at *2, n. 3 (S.D. Fla. May 9, 2008); Gastaldi v. Sunvest Resort Communities, LC, 709 F.Supp.2d 1284, 1299, n. 12 (S.D. Fla. 2010).

Herein, as stated above, TAMER GOZLEVELI and FARIDEH GOZLEVELI filed this case in order to either be exonerated from liability for the Claimant’s personal injury claims, or for such liability to be limited to the value of the subject wave runner after the accident, which they claim is $800.00. [D.E. 1, ¶23].

To determine whether the owner of a vessel is entitled to limit their liability under the Limitation of Liability Act, 46 U.S.C. § 181 et seq., the Court engages in a two-step analysis. See Hercules Carriers, Inc. v. Claimant State of Fla., Dep’t of Transp., 768 F.2d 1558, 1563-64 (11th Cir. 1985). First, the Court determines what acts of negligence or conditions of unseaworthiness caused the accident at issue. Id. Second, the Court determines whether the owner had knowledge of or was privy to those acts. Id. at 1564. The claimant asserting damages bears the initial burden of establishing either negligence or unseaworthiness. Id. Once a claimant satisfies the initial burden of proving negligence or unseaworthiness, the burden of proof shifts to the owner of the vessel to prove the lack of privity or knowledge. Id.

In meeting the initial burden, however, the claimant “must establish that [she] suffered injuries as a result of the… alleged negligence or alleged conditions of unseaworthiness.” In re Sortwell, Inc., C 08-05167 JW, 2011 WL 4896475 (N.D. Cal. Oct. 12, 2011) (second alternation in original) (citation omitted); see also Complaint of Sheen, 709 F. Supp. 1123, 1131 (S.D. Fla. 1989) (considering which of two alleged negligent acts proximately caused the claimant’s injuries under the first part of the limitation of liability case); Matter of Hechinger, 890 F.2d 202, 207 (9th Cir. 1989) (“If the [vessel] was unseaworthy at the time the injury occurred and the unseaworthiness was the cause of the injury, then the owner cannot claim limitation of liability under the Act.”). For this reason, admiralty courts typically deny motions to bifurcate in limitation of liability cases because the issues as to liability and damages are so intertwined. See Sortwell, supra; see also In re Diamond B Marine Servs., Inc., CIV.A. 99-951, 2000 WL 37987 (E.D. La. Jan. 14, 2000). The Sortwell court, for instance, held as follows:
there is necessarily an “overlap” between the case that a claimant must prove regarding exoneration or limitation of liability and the case that a claimant must prove regarding damages, “to the extent that [a claimant] will have to present evidence as to what [its] injuries or losses were in each case.”

Here, the Court finds that bifurcation would not serve judicial economy, because the issue of limited liability is not separable from the issue of damages, insofar as Claimant will have to show that the [vessel] was negligent or unseaworthy in order to resolve the issue of limited liability. Claimant will have to present evidence as to its “injuries or losses” in order to prove its case regarding exoneration or limitation of liability. Claimant will also have to present the same evidence to prove its case regarding damages. Thus, the evidence relating to exoneration or limitation of liability and the evidence relating to damages are overlapping, which “counsel[s] against bifurcation.”

Sortwell, Inc., 2011 WL 4896475 at *2-3 (internal citations omitted).

Therefore, as in Sortwell and as required for the first step of the Court’s analysis, the Claimant will have to present evidence concerning her “injuries or losses” in order to prove the “acts of negligence or conditions of unseaworthiness [that] caused the accident at issue.” The Claimant will then have to present the same evidence to prove her damages case. As a result, evidence concerning the liability and damages are so intertwined that it would not serve judicial economy. In fact, it would likely make the trial twice as long. Further, bifurcation would create (rather than avoid) inconvenience for the parties and the witnesses having to provide the same evidence and testimony twice, as well as for the Court having to consider such evidence and testimony twice.

Other than to intimate that the case would settle if the Court finds liability, the Gozlevelis have failed to set forth any specific reason why the Court should exercise its discretion to bifurcate the trial of this relatively straightforward matter. A civil case by its very nature typically involves the dual issues of liability and damages. Following the Gozlevelis’ argument to its logical conclusion, every civil trial should therefore be conducted in two phases. Clearly, this is an untenable proposition.

WHEREFORE, based on the foregoing, the Claimant respectfully requests that this Honorable Court deny the Gozlevelis’ motion in its entirety.

Respectfully submitted,
Attorneys for Claimant
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By: /s/ Jason R. Margulies
Florida Bar No. 57916
Florida Bar No. 104358


[1] The Claimant maintains that the Gozlevelis’ experts are not “rebuttal” experts at all but, rather, are the Gozlevelis’ attempt to solicit testimony for their case-in-chief after missing the Court’s deadline for initial expert reports. Claimant refers to the pending motions to strike each of the Gozlevelis’ experts and/or non-rebuttal opinions [D.E. 62, 68].

[2] 1) They failed to disclose their experts within this Court’s December 1, 2013 deadline; 2) they failed to submit a report with their Rebuttal Expert Disclosures; and now 3) they failed to file a pretrial motion within this Court’s deadline.