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Associated Terminals of St. Bernard, LLC v. Potential Shipping HK Co.

United States District Court, E.D. Louisiana

December 14, 2017

ASSOCIATED TERMINALS OF ST. BERNARD, LLC
v.
POTENTIAL SHIPPING HK CO., ET AL.

         SECTION: “I” (1)

          LANCE M. AFRICK, JUDGE

          ORDER AND REASONS

          Janis van Meerveld United States Magistrate Judge

         Before the Court is the Motion for Leave to File Cross-Claim filed by intervenor Oakley Barge Line, Inc. (“Oakley”). (Rec. Doc. 61). Oral argument was held on December 13, 2017. For the following reasons, the Motion is DENIED.

         Background

         This lawsuit arises out of a May 19, 2017, incident when the M/V UNISON POWER was being offloaded at the Chalmette Midstream Buoys. Associated Terminals of St. Bernard, LLC (“Associated Terminals”) was acting as stevedore and its operator was operating the fixed crane aboard the M/V UNISON POWER to unload cargo from the vessel to Oakley's Barge ESV-101B. Without warning, the main hoist cable of the crane failed, causing the cargo of steel wire coils as well as block and tackle to fall onto the barge. Associated Terminals alleges it sustained damage to its spreader bar, Oakley alleges its barge was damaged, and intervenor Jamaal Ford alleges personal injuries (it appears that three other individuals were injured during the incident, but they have not joined this lawsuit). Intervenor American Longshore Mutual Association (“ALMA”) provided insurance to the employers of the injured individuals and has joined this action to recover the amounts it has paid in indemnity and medical benefits.

         Associated Terminals filed this action against the M/V UNISON POWER, in rem, and the vessel's owner Potential Shipping HK Co., Ltd. (“Potential”) on May 22, 2017 (Potential and M/V UNISON POWER are hereinafter referred to as “Defendants”). Associated Terminals argues that the poor condition of the vessel's crane wires are to blame for the incident. Oakley, ALMA, and Mr. Ford intervened promptly thereafter, asserting claims only against Defendants. Defendants answered on July 12, 2017, and counterclaimed against Associated Terminals arguing that Associated Terminals is responsible because the negligence, fault, or inattention to duty of Associated Terminals and its stevedores caused the incident. Oakley, ALMA, and Mr. Ford never asserted any claims against Associated Terminals. The deadline to amend pleadings passed on September 7, 2017, and the trial is set to begin on February 20, 2018.

         Oakley now seeks to amend its pleadings to file a cross-claim against Associated Terminals. Oakley admits that “there has been insufficient discovery to determine whether Associated Terminals has any liability for this incident.” Although the discovery deadline is December 15, 2017, Oakley insists that no additional discovery and no trial continuance will be required if its cross-claim is permitted. It explains that it delayed in filing this cross-claim because it was attempting the resolve the matter directly with the Defendants.

         Associated Terminals opposes the motion. It insists that Oakley's explanation for its failure to previously allege a cross-claim is not an explanation at all because it does not show any diligence on Oakley's part. It points out that there is no evidence of any liability of Associated Terminals. And it also points out that Oakley has received security for its claim from the Defendants' Protection and Indemnity Insurance Club (in the amount of up to $250, 000). It argues that because the parties responsible for the incident will be liable jointly and severally under maritime law, even if Associated Terminals were jointly liable, Oakley would be able to recover fully from the Defendants as long as some fault is attributable to them. Associated Terminals insists it would be prejudiced if the amendment is allowed because the deadline to complete discovery has almost passed and it would not have time to discover Oakley's theory of liability against Associated Terminals, nor to defend against Oakley's claimed damages (of approximately $51, 000).

         Law and Analysis

         1. Standard for Amending Pleadings

         Where the court ordered deadline for amending pleadings has passed, that schedule “may be modified” to allow for additional amendments “only for good cause and with the judge's consent.” Fed. R. Civ. Proc. 16(b)(2); see S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (“We take this opportunity to make clear that Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired.”). When determining whether the movant has shown good cause, the Court considers “(1) the explanation for the failure to [timely move for leave to amend]; (2) the importance of the [amendment]; (3) potential prejudice in allowing the [amendment]; and (4) the availability of a continuance to cure such prejudice.' ” S&W Enterprises, 315 F.3d at 536 (quoting Reliance Ins. Co. v. Louisiana Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)) (alterations in original).

         2. Oakley's Proposed Cross Claim

         Considering the four factors, the Court finds that Oakley has failed to establish good cause to permit the filing of a cross claim against Associated Terminals. First, Oakley's delay is not justifiable under the circumstances. Oakley says that it was engaged in settlement discussions with the Defendants and did not wish to incur the expense of filing a claim against Associated Terminals. But this explanation seems ...


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