Opinion
Civil Action No: 99-3256, Section: "J"(1).
May 11, 2000.
MINUTE ENTRY
HEARING ON MOTION
APPEARANCES: Submitted on briefs
MOTION: MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND FOR EXTENSION OF TIME TO EFFECT SERVICE OF PROCESSDENIED IN PART AND GRANTED IN PART.
This action arises out of injuries sustained by the plaintiff when she slipped and fell on the S/S Independence, while cruising in the Hawaiian Islands. The motion of the plaintiff, Bobby Ferguson Thomas, requests the following: 1) the plaintiff be granted leave to file an amended complaint re-naming The Delta Queen Steamboat Company ("Delta Queen") as a defendant, 2) the plaintiff be granted leave to file an amended complaint to include allegations that American Hawaii Cruises ("American Hawaii") is doing business in the State of Louisiana, and 3) the plaintiff be granted an extension of an additional sixty days of the deadline found in Rule 4(m) of the Federal Rules of Civil Procedure to serve American Hawaii. For the reasons assigned this Court denies the first request for relief and grants the second and third requests for relief
The plaintiff filed this action in the Civil District Court for the Parish of Orleans, State of Louisiana and named Delta Queen and American Hawaii as defendants. Plaintiff requested that service be made on Delta Queen, but instructed that service be temporarily withheld on American Hawaii. The action was removed to federal court, and Delta Queen moved to dismiss plaintiffs claims against it for failure to state a claim upon which relief could granted.
In reply to Delta Queen's motion to dismiss, plaintiff filed a motion for voluntary dismissal without prejudice pursuant to Rule 41(a)(2) as to Delta Queen. By minute entry, dated March 14, 2000, the Court dismissed Delta Queen without prejudice to plaintiffs right to proceed against Delta Queen for satisfaction of any judgment she may ultimately receive against American Hawaii. The Court also dismissed Delta Queen's motion to dismiss as moot. (Rec. doc. 11).
The plaintiff seeks leave to file an amended complaint rejoining Delta Queen as a defendant on the ground that she was misled by counsel for Delta Queen into consenting to dismiss Delta Queen. The plaintiff has not alleged that American Hawaii is not able to satisfy a judgment against it.
Fed.R.Civ. p. 15(a) governs leave to file amendments and the rule "evinces a bias in favor of granting leave to amend." Matter of Southmark, 88 F.3d 311, 314 (5th Cir. 1996), cert. denied, 519 U.S. 1057, 117 S.Ct. 686 (1997). However, this bias is not without limits and the court may deny leave if it finds factors which weigh against granting that leave. These factors include undue delay, bad faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies by prior amendments, undue prejudice to the opposing party or futility of amendment. Southmark at 314-15. The Fifth Circuit has also held that "if a complaint as amended is subject to dismissal, leave to amend need not be given." Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th Cir. 1980), cert. denied, 454 U.S. 927 (1981).
The record shows the futility of the amendment sought by the plaintiff. Delta Queen filed the affidavit of Elena Gonzales in support of its motion to dismiss. The affidavit contained statements showing that Delta Queen had no responsibility for the acts or omissions giving rise to plaintiffs claim. For example Ms. Gonzales states that, "The Delta Queen Steamboat Co. has no control over or connection with any of the conditions, policies or procedures followed on the S/S Independence." The plaintiff has not presented anything that contradicts the statements by Ms. Gonzales.
This Court does not find that the plaintiffs allegations of misrepresentation by counsel for the defendants are supported by the record. The plaintiff argues that counsel for Delta Queen misled plaintiff in the following respects: 1) Delta Queen and American Hawaii were separate and distinct entities, 2) Delta Queen has no connexity with the underlying claims of plaintiff, and 3) American Hawaii did not reveal that it intended to enforce the Hawaii forum selection clause found in the ticket purchased by plaintiff
The plaintiff enumerates nine factors in her memorandum that show the "true nature of the relationship" between Delta Queen and American Hawaii, but does not identify the factors that were the subject of any alleged misrepresentation by counsel for defendants. A review of the factors shows that the information was available to counsel for the plaintiff prior to filing her motion to dismiss Delta Queen. For example, plaintiff states that counsel for defendants has admitted that Delta Queen and American Hawaii are owned by the same parent company, but plaintiffs partial stipulation and memorandum in opposition to motion for dismissal with prejudice contains this statement of fact. Plaintiffs partial stipulation was filed on March 9, 2000, prior to the filing on March 15, 2000, of plaintiffs motion for voluntary dismissal. Similarly, the plaintiff refers to letters from Linda Angelicas of the defendants' risk management department to plaintiff. These letters are dated April 27 and May 5, 1999. and were attached to plaintiffs partial stipulation filed on March 9, 2000.
The plaintiff states that counsel for the defendant misled plaintiff concerning the statement that Delta Queen had no connexity with the underlying claims of the plaintiff The lack of such connexity is demonstrated by the affidavit of Elena Gonzales. The plaintiff has not shown anything to contradict that affidavit. Based on the record evidence presented, therefore, the proposed amendment to sue Delta Queen would be futile.
The plaintiff contends that counsel for defendants concealed their true motive to transfer the case to Hawaii. The plaintiff points to no statement to the effect that if plaintiff dismissed Delta Queen, American Hawaii will not invoke the forum selection clause. Rather, in their notice of removal, the defendants placed plaintiff on notice of a venue issue, when they reserved various defenses, including improper venue. The motion to re-sue Delta Queen is denied.
The plaintiff seeks leave to amend her complaint in order to state allegations concerning American Hawaii's activity in Louisiana. American Hawaii replies that the presence of jurisdiction in Louisiana over America Hawaii will have no bearing on whether the forum selection clause may be enforced, so that granting leave to amend will only delay the matter. This is an insufficient basis for denying the plaintiff the opportunity to amend to state allegations concerning American Hawaii's activity in Louisiana. American Hawaii is not delayed from filing its forum selection motion.
The plaintiff seeks an extension of sixty days to effect service upon American Hawaii. Rule 4(m) provides,
Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1).
Counsel for the plaintiff acknowledges that upon removal of the action to federal court, he should have arranged for the issuance of the summons and effected service within 120 days. American Hawaii replies that plaintiff should not be allowed this additional time as it may prejudice American Hawaii's prescription defense.
The Advisory Committee's Notes on Rule 4(m) states that courts have been accorded discretion to enlarge the 120 day period, even if there is no good cause shown. Fed.R.Civ.P.4(m), 28 U.S.C.A. (West Supp. 1999 at 124). This view was supported by Justice Ginsburg in Henderson v. U.S., 517 U.S. 654, 661, 116 S.Ct. 1638, 1643 (1996). Even if good cause were required, the Advisory Committee's Notes provide that relief may be justified if the applicable statute of limitations would bar the re-filed action. American Hawaii has raised the possibility of a prescription defense, so it is proper to grant the plaintiff additional time to serve American Hawaii.
Accordingly, the motion of Bobby Ferguson Thomas for leave to file an amended complaint adding The Delta Queen Steamboat Co. as a defendant is denied. The motion of plaintiff for leave to file an amended complaint that will allege facts regarding American Hawaii's activities in Louisiana is granted. The motion of plaintiff for additional time within which to serve American Hawaii is granted and plaintiff has sixty (60) days from the entry of this order within which to serve American Hawaii Cruises.