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Operaciones Tecnicas Marinas S.A.S. v. Diversified Marine Services, LLC

United States District Court, E.D. Louisiana

July 13, 2015

OPERACIONES TECNICAS MARINAS S.A.S
v.
DIVERSIFIED MARINE SERVICES, LLC, ET AL

ORDER

KAREN WELLS ROBY, Magistrate Judge.

Before the Court is a Motion for Leave to File Second Amended Complaint for Compensatory and Punitive Damages (R. Doc. 53) filed by the Plaintiff, Operaciones Tecnicas Marinas S.A.S. ("OTM"), seeking to add as defendants St. Paul Fire and Marine Insurance Company ("St. Paul") and Robert Boudreaux, Sr., and seeking to re-allege its previously dismissed fraud claim. The motion is opposed. See R. Doc. 55.

I. Background[1]

This case arises out of a failed maritime voyage from Houma, Louisiana to Cartagena, Colombia. OTM is a marine operating company based in Cartagena, Colombia that purchased two sister vessels, M/V MARY TIDE and M/V THOMAS TIDE, which had been out of service for several years. In November 2010, OTM entered into a contract with defendant, Diversified Marine Services, LLC ("Diversified"), to drydock the vessels, evaluate their condition, and determine the work necessary to make the vessels seaworthy.

Between November 2010 to June 2011, Diversified allegedly commenced work on the vessels and OTM approved a schedule of work that Diversified supposedly performed and told OTM it had performed. On May 17, 2011, based on Diversified's assurances that the vessels were nearly ready for use, OTM entered into a bareboat charter agreement with Serviport S.A. that was scheduled to commence on July 15, 2011. OTM contends that it informed Diversified of the charter agreement and Diversified told OTM that the vessels would be fit for the voyage to Colombia in sufficient time to commence the charter.

OTM paid Diversified a total of $344, 769.15 in repairs[2] purportedly performed to both vessels and on June 23, 2011, both vessels departed the Diversified shipyard for Cartagena, Colombia. During the voyage, the vessels experienced severe mechanical and electrical problems and had to be towed the last leg of the voyage. Upon inspection of the engines, OTM learned that the center main engine of M/V THOMAS TIDE and the starboard main engine of M/V MARY TIDE had not been overhauled as Diversified agreed. Due to the condition of the vessels, OTM was allegedly in breach of the OTM-Serviport bareboat charter agreement because the vessels were unavailable for delivery to Serviport on July 15, 2011.

OTM initiated this action on July 31, 2012 alleging claims for breach of contract; negligent misrepresentation; intentional misrepresentation; negligence, gross negligence, and recklessness; breach of warranty of workmanlike performance; and fraud. On December 19, 2012, the Court dismissed OTM's fraud claim for failure to allege fraudulent intent and granted OTM leave to amend its pleading as to its fraud claim. See R. Doc. 14. OTM filed its second amended complaint on January 10, 2013. On February 20, 2013, the Court, once again, dismissed OTM's fraud claim on the grounds that it failed to plead factual allegations that invite an inference of fraudulent intent. See R. Doc. 29.

On August 12, 2013, the Court issued a stay of the proceedings due to an allegation that one of the parties was engaged in witness tampering. See R. Doc. 38. On February 4, 2014, the Court granted OTM's motion to lift the stay on the proceedings due to the conclusion of the investigation into witness tampering. See R. Doc. 45. A new Scheduling Order (R. Doc. 50) was issued on March 10, 2015, setting April 9, 2015 as the deadline to amend.

In the subject motion, OTM seeks to add two new defendants, St. Paul and Boudreaux, and to re-allege the previously dismissed fraud claim. See R. Doc. 53. OTM contends that it seeks to add St. Paul as a defendant because it was Diversified's liability insurer for the relevant time of the incident. Id. As for Boudreaux, OTM argues that it seeks to add him as a defendant because he is a principal of Diversified and he intentionally misrepresented the work Diversified performed. See R. Doc. 58. OTM also seeks to re-allege the fraud claim with particularity the who, what, when, where, and how required under Federal Rules of Civil Procedure 9(b). See R. Doc. 53-1.

II. Standard of Review

Federal Rule of Civil Procedure ("Rule") 15(a), which governs the amendment of pleadings, provides that leave to amend pleadings "shall be freely given when justice so requires." This, and other federal rules, "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48 (1957).

Thus, Rule 15(a) evinces a liberal and lenient amendment policy and a motion to amend should not be denied absent a substantial reason to do so. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). Furthermore, "this policy' is strongest when the motion challenged is the first motion to amend." Thompson v. New York Life Ins. Co., 644 F.2d 439, 444 (5th Cir. 1981). Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. Id.

Leave to amend is by no means automatic, but is within the sound discretion of the trial court. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). In exercising its discretion, the trial court must determine that there is a "substantial reason" for the delay. Mayeaux v. La. Health Serv. and Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004). The Court may consider such factors as (1) undue delay, bad faith, or dilatory motive on the part of the movant; (2) repeated failure to cure deficiencies by amendments previously allowed; (3) undue prejudice to ...


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