Foley et al v. Loeb et al

MOTION to Amend/Correct 15 Third Party Complaint with supporting memo

D.R.I.November 20, 2006

06 038 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND JACK FOLEY, MARY O’DONOGHUE and DAVID ROBBINS VS C.A.NO. 06-0053 S-LDA STEVEN M. LOEB, BLAD CO., KEVIN DAILEY, WILLIAM TRIPP, INDIVIDUALLY, and d/b/a TRIPP DESIGN NAVAL ARCHITECTURE VS BLAIR BROWN MOTION TO AMEND Now comes the defendant, William Tripp, individually, and d/b/a Tripp Design Naval Architecture (Tripp), pursuant to FCRC 15 and LR CV 15 and moves to amend his third-party complaint. A copy of the amended third-party complaint is attached. The defendant Tripp relies upon the attached memorandum. /s/ THOMAS C. PLUNKETT ____________________________________ Thomas C. Plunkett (1662) KIERNAN, PLUNKETT & REDIHAN 91 Friendship Street Providence, RI 02903 (401) 831-2900 (401) 331-7123 FAX E-MAIL: tplunkett@kprlaw.com Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 1 of 13 06 038 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND JACK FOLEY, MARY O’DONOGHUE and DAVID ROBBINS VS C.A.NO. 06-0053 S-LDA STEVEN M. LOEB, BLAD CO., KEVIN DAILEY, WILLIAM TRIPP, INDIVIDUALLY, and d/b/a TRIPP DESIGN NAVAL ARCHITECTURE VS BLAIR BROWN AMENDED THIRD-PARTY COMPLAINT OF DEFENDANT WILLIAM TRIPP, INDIVIDUALLY, AND D/B/A TRIPP DESIGN NAVAL ARCHITECTURE 1. This third-party complaint is brought pursuant to F.R.C.P 14(a) and 14 (c) and is a case of admiralty and maritime jurisdiction within the meaning of F.R.C.P. 9(h) and 14(c). 2. This court has jurisdiction pursuant to 28 USC Section 1332 and 1333 and the third-party defendant is subject to the jurisdiction of this court. 3. The plaintiffs have filed an amended complaint against the defendant William Tripp, individually and d/b/a Tripp Design Naval Architecture (hereinafter Tripp), among others, seeking damages allegedly resulting from negligent conduct by defendant William Tripp while acting as tactician on the sailing vessel Sirena causing it to collide with the sailing vessel Sforzando. A copy of the amended complaint is attached. 4. The collision in question occurred within navigable waters of the United States. Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 2 of 13 5. At the time of the collision in question, the sailing vessel Sforzando was owned by the third-party defendant Blair Brown and was being operated and controlled by the agent of the said owner and/or by the third-party defendant as skipper. 6. At the time and place in question, the conduct of the third-party defendant was negligent and the vessel was unseaworthy. 7. If the defendant Tripp is found liable to the plaintiffs, which liability is hereby expressly denied, then the defendant Tripp will be entitled to indemnity or contribution for all sums for which he may be found liable to the plaintiffs or, in the alternative, the plaintiffs have direct claims against the third- party defendant. WHEREFORE, the defendant William Tripp demands 1.) judgment against the third-party defendant Blair Brown for indemnity or contribution for all sums for which he may be found liable to the plaintiffs plus interest and costs; 2.) that if the plaintiffs are entitled to relief, judgment should be entered directly against the third-party defendant; 3.) that the third-party defendant answer the plaintiffs’ amended complaint and that plaintiffs have a direct claim against the third-party defendant pursuant to F.R.C.P. 14(c). /s/ THOMAS C. PLUNKETT ____________________________________ Thomas C. Plunkett (1662) KIERNAN, PLUNKETT & REDIHAN 91 Friendship Street Providence, RI 02903 (401) 831-2900 (401) 331-7123 FAX E-MAIL: tplunkett@kprlaw.com Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 3 of 13 Said defendant hereby requests a trial by jury. /s/ THOMAS C. PLUNKETT ____________________________________ Thomas C. Plunkett (1662) KIERNAN, PLUNKETT & REDIHAN 91 Friendship Street Providence, RI 02903 (401) 831-2900 (401) 331-7123 FAX E-MAIL: tplunkett@kprlaw.com Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 4 of 13 06 038 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND JACK FOLEY, MARY O’DONOGHUE and DAVID ROBBINS VS C.A.NO. 06-0053 S-LDA STEVEN M. LOEB, BLAD CO., KEVIN DAILEY, WILLIAM TRIPP, INDIVIDUALLY, and d/b/a TRIPP DESIGN NAVAL ARCHITECTURE VS BLAIR BROWN MEMORANDUM OF THE DEFENDANT WILLIAM TRIPP, INDIVIDUALLY, AND d/b/a TRIPP DESIGN NAVAL ARCHITECTURE IN SUPPORT OF HIS MOTION TO AMEND THE THIRD-PARTY COMPLAINT The defendant William Tripp, individually, and d/b/a Tripp Design Naval Architecture (Tripp) filed his answer to the plaintiffs’ amended complaint in March of 2006. Shortly thereafter he filed a third-party complaint against the third-party defendant Blair Brown pursuant to F.R.C.P. 14. A copy of the third-party complaint is attached as Exhibit A. The third-party defendant filed an answer to the third-party complaint on September 25, 2006. In the amended complaint the plaintiffs seek damages for injuries allegedly suffered when a sailboat skippered by the defendant Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 5 of 13 Stephen M. Loeb and owned by the defendant Blad Co. was involved in an incident with a sailboat owned by the third-party defendant Blair Brown and skippered by him or his agent in which the boats had some contact. The plaintiffs were crew members on Mr. Brown’s sailboat. In the third-party complaint, the defendant Tripp seeks relief against the third-party defendant Brown for the action brought by the plaintiffs. By amending the third-party complaint, the defendant Tripp seeks to clarify the relief sought to assert claims for indemnity or contribution under F.R.C.P. 14(a) and 14(c) and also to demand judgment against the third-party defendant in favor of the plaintiffs pursuant to F.R.C.P. 14 (c). McAllister v. Ocean Marine, 742 F.Supp. 70 (SDNY 1989). F.R.C.P. 15(a) provides that a party may amend a party’s pleading by leave of court and that leave shall be freely given when justice so requires. Amendments are favored as a general matter and unless there is good reason to deny a motion to amend, it should be granted. Factors the court can consider are undue delay, bad faith, undue prejudice, or that the amendment asserts a frivolous or meritless claim or defense. McAllister, supra; O’Neil v. Q.L.C.R.I. Inc., 750 F.Supp. 551 (D.R.I. 1990). None of these factors would be a bar to the defendant’s motion. The amendment is requested in order to clarify that the defendant Tripp seeks indemnity or contribution under F.R.C.P. 14 and, in the alternative, that the plaintiffs have a direct claim against the third-party defendant Brown pursuant to F.R.C.P. 14(c). The case was transferred to this court in early 2006 and the defendant Tripp filed his answer to plaintiffs’ amended complaint Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 6 of 13 and his third-party complaint in March, 2006. A waiver of service of the third-party complaint was sought by defendant Tripp and despite assurances and requests for a late answer stipulation, the forms were not returned to defendant’s attorney. There was further contact between defendant’s attorney and attorneys for the third-party defendant Brown over the summer of 206 and a late answer stipulation was entered into extending the time to answer to July 28, 2006. No answer having been filed by that time the defendant proceeded with a motion for alternative service which was granted by this Court and the third-party defendant was served by mail. His answer was filed September 25, 2006. Discovery is just commencing and no responses have been served. Therefore, all facts relating to the incident are not yet known. The pre-trial order has been entered but the discovery deadline is July 2, 2007 for factual discovery and dispositive motions on the issue of liability are due by January 2, 207. There is, therefore, no prejudice to the third-party defendant or any other party and there has been no unnecessary delay. The defendant seeks this amendment now so that appropriate potential claims are asserted prior to the completion of discovery and to avoid the need for amendments later if the facts learned from discovery so require. Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 7 of 13 Accordingly, the defendant Tripp requests that his motion to amend his third- party complaint be granted. /s/ THOMAS C. PLUNKETT ____________________________________ Thomas C. Plunkett (1662) KIERNAN, PLUNKETT & REDIHAN 91 Friendship Street Providence, RI 02903 (401) 831-2900 (401) 331-7123 FAX E-MAIL: tplunkett@kprlaw.com Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 8 of 13 EXHIBIT A Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 9 of 13 06 038 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND JACK FOLEY, MARY O’DONOGHUE and DAVID ROBBINS VS C.A.NO. 06-0053 ML-LDA STEVEN M. LOEB, BLAD CO., KEVIN DAILEY, WILLIAM TRIPP, INDIVIDUALLY, and d/b/a TRIPP DESIGN NAVAL ARCHITECTURE VS BLAIR BROWN THIRD-PARTY COMPLAINT OF DEFENDANT WILLIAM TRIPP INDIVIDUALLY AND d/b/a TRIPP DESIGN NAVAL ARCHITECTURE 1. This is a case of admiralty and maritime jurisdiction within the meaning of F.R.C.P. 9(h) and 14(c). 2. This court has jurisdiction pursuant to 28 USC Section 1333. 3. The plaintiffs have filed an amended complaint against the defendant William Tripp, individually and d/b/a Tripp Design Naval Architecture (hereinafter William Tripp),among others, seeking damages allegedly resulting from negligent conduct by defendant William Tripp while acting as tactician on the sailing vessel Sirena causing it to collide with the sailing vessel Sforzando. A copy of the amended complaint is attached. 4. The collision in question occurred within navigable waters of the United States. Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 10 of 13 5. At the time of the collision in question, the sailing vessel Sforzando was owned by the third-party defendant Blair Brown and was being operated and controlled by the agent of the said owner as skipper. 6. At the time and place in question, the conduct of the third-party defendant was negligent and the vessel was unseaworthy. 7. If the defendant William Tripp is found liable to the plaintiffs, which liability is hereby expressly denied, then the defendant, William Tripp, will be entitled to indemnity or contribution for all sums for which he may be found liable to the plaintiffs. WHEREFORE, the defendant William Tripp demands judgment against the third-party defendant Blair Brown for indemnity or contribution for all sums for which he may be found liable to the plaintiffs plus costs. __________________________________ Thomas C. Plunkett (1662) KIERNAN PLUNKETT & REDIHAN 91 Friendship Street Providence, RI 02903 (401) 831-2900 TEL (401) 331-7123 FAX Said defendant hereby requests a trial by jury. __________________________________ Thomas C. Plunkett (1662) KIERNAN PLUNKETT & REDIHAN Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 11 of 13 CERTIFICATION I hereby certify that I have electronically filed the above document and it is available for viewing and downloading from the ECF system Notice will be electronically mailed to: Michael J. Daly mdaly@vetterandwhite.com Benjamin V. White, III bwhite@vetter&white.com; mdaly@vetterandwhite.com; Charles A. Cook cook@morrisonmahoney.com; smorriso@morrisonmahoney.com; gnotis@morrisonmahoney.com; jgraceffa@morrisonmahoney.com William E. O’Gara wogara@pld-law.com Seth S. Holbrook Holbrook_murphy@msn.com Cary R. Wiener cwiener@marinelex.com Richard S. Humphrey Richardhumphrey@richardhumphreylaw.com Stefanie A. Murphy stefaniemurphy@richardhumphreylaw.com I hereby certify that I have mailed a copy of the above document by regular mail, postage prepaid to the following attorneys: Notice will be delivered by other means to: Joseph E. Donat, Esq. Herzfeld & Rubin, P.C. 40 Wall Street New York, NY 10005 John K. Fulweiler, Esq. DeORCHIS & PARTNERS, LLP 61 Broadway, 26th Floor New York, New York 10006-2802 Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 12 of 13 John P. Graceffa Morrison Mahoney & Miller 250 Summer Street Boston, MA 02210 Gareth W. Notis Morrison Mahoney & Miller 250 Summer Street Boston, MA 02210 John P. Walsh Holland & Knight LLP One Financial Plaza Suite 1800 Providence, RI 02903-0819 Dated: November 20, 2006 /s/ THOMAS C. PLUNKETT _____________________________ _________________________________________ Case 1:06-cv-00053-S-LDA Document 56 Filed 11/20/2006 Page 13 of 13