Johnson et al v. Carnival Corporation et al

Filing 127

ORDER GRANTING Plfs' 82 Motion to Amend Complaint as set out. Signed by Judge Callie V. S. Granade on 9/25/2014. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BERNADETTE W. JOHNSON, et al., )
)
Plaintiffs,
)
vs.
) CIVIL ACTION NO. 13-0330-CG-C
)
CARNIVAL CORPORATION, et al., )
)
Defendants.
)
)
)
ORDER
This matter is before the court on Plaintiffs’ motion to amend its complaint
(Doc. 82), opposition thereto filed by BAE Systems SSY Alabama Property Holdings,
LLC (Doc. 86), and Plaintiffs’ reply (Doc. 87). For the reasons explained below, the
court finds that Plaintiffs’ motion to amend should be granted.
This case involves damages and injuries that occurred when the mooring
bollards securing the CARNIVAL TRIUMPH allegedly failed while the CARNIVAL
TRIUMPH was undergoing repairs at the BAE Shipyard in Mobile, Alabama. The
original complaint asserts claims against BAE Systems SSY Alabama Property
Holdings, LLC (“BAE Property”), Carnival Corporation and Page & Jones, Inc.1
(Doc. 1-2, p. 9). Plaintiffs now seek to add two additional BAE entities, BAE
Systems Ship Repair, Inc. (“BAE Ship Repair”), and BAE Systems Southeast
Shipyards AMHC, Inc. (“BAE AMHC”). The allegations of the proposed amended

Page and Jones, Inc. was dismissed without prejudice from this case upon motion
by Plaintiffs. (Docs. 6, 12).
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complaint are predominantly the same. Both allege that Carnival and the BAE
entities were negligent (Count One) and were wanton or reckless (Count Two). BAE
Property opposes the amendment asserting that Plaintiffs have not alleged any
facts against the new BAE entities that would entitle it to relief. Specifically, BAE
Property asserts that to be liable for negligence and/or wantonness there must be a
breach of a duty, and there are no facts to support such a duty.
Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings
“shall be freely given when justice so requires.” See FED. R. CIV. P. 15(a). The
Eleventh Circuit recognized that Rule 15(a) “severely restricts” a district court’s
discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 1067, 1073 (11th Cir.
2005). “Unless a substantial reason exists to deny leave to amend, the discretion of
the District Court is not broad enough to permit denial.” Florida Evergreen Foliage
v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (citation
omitted). That said, leave to amend can be properly denied under circumstances of
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape
Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation omitted).
In the instant case, Plaintiffs timely filed its motion to amend before
expiration of the 16(b) deadline for amendments. BAE Property objected to the
amendment asserting that the amendment is futile because no facts have been

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alleged to support the requisite element of duty. “Because the court's jurisdiction is
grounded in admiralty, the court look[s] to the common law in considering maritime
torts. Royal Ins. Co. of America v. Southwest Marine, 194 F.3d 1009, 1015 (9th Cir.
1999) (citation and internal quotation omitted). “To establish negligence, [a]
plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty;
(3) proximate causation; and (4) damage or injury.” Martin v. Arnold, 643 So.2d 564,
567 (Ala.1994) (citation omitted). “To establish wantonness, [a] plaintiff must prove
that the defendant, with reckless indifference to the consequences, consciously and
intentionally did some wrongful act or omitted some known duty.” Id.
“In Alabama, the existence of a duty is a strictly legal question to be
determined by the court.” Proctor v. Fluor Enterprises, Inc., 494 F.3d 1337, 1347
(11th Cir. 2007) (citation omitted). “The ultimate test of a duty to use care is found
in the foreseeability that harm may result if care is not exercised.” Id. (quoting
Zanaty Realty, Inc. v. Williams, 935 So.2d 1163, 1168 (Ala. 2005)). Foreseeability
requires anticipating that “ ‘some general harm or consequence would follow,’ ” but
not the “ specific event.” Id. (quoting Smith v. AmSouth Bank, Inc., 892 So.2d 905,
910 (Ala. 2004)).
Plaintiffs contend that the new BAE entities’ duty of care arises because
there are facts that directly implicate them. Specifically, Plaintiffs assert that in
2010, their key managers and directors requested and were provided with an
engineering report which pointed out numerous safety deficiencies at Pier K and
that they failed to do anything to safeguard against the safety hazards. The

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engineering report found that the mooring hardware was in “serious condition” and
that the pier overall was in poor condition and would continue to deteriorate within
the next 3 to 5 years. (Doc. 87, p. 5). BAE entities reportedly had this knowledge
prior to acquiring the shipyard, but allegedly failed to warn of the defective
conditions and/or failed to ensure that the known defective and dangerous
conditions were remedied. Such facts could support a finding that harm was
foreseeable.
BAE Property asserts that simply being aware of the alleged condition of the
pier is not sufficient to impose a duty on the new BAE entities. According to BAE
Property the Alabama Supreme Court foreclosed such a theory in In re Birmingham
Asbestos Litig., 619 So.2d 1360 (Ala. 1993). However, in Birmingham Asbestos
Litig., there was no indication that the companies in question undertook any
assessment of the condition or that they had received reports informing them of the
hazards that subsequently caused injuries. The Supreme Court of Alabama did not
discuss the foreseeability of the harm. The Court merely found that the corporate
veil could not be pierced based solely on the basis of the parent companies’ control
over the subsidiary companies. Id. at 1362-63.
BAE Property also cites a Florida case which found that a parent corporation
of a Denny’s restaurant could not be held liable for injury sustained when a
waitress tripped over a kickplate that was installed to repair of a salad bar.
Flagstar Companies, Inc. v. Cole-Ehlinger, 909 So.2d 320, 321 (Fla.App. 2005).
However, in Flagstar, the Court found there was no liability because the evidence

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showed that the parent company had no role in the operation or maintenance of the
restaurant and played no role in the repair of the salad bar. Id. at 322. There was
no suggestion in the case that the parent company had investigated the condition of
the restaurant or the salad bar. Nor, was there any evidence that the parent
company had any prior knowledge of any defect or potential hazard. As such, the
court does not find that the Flagstar case has any application to the instant case.
The proposed amended complaint alleges that BAE Ship Repair “was
involved in the assessment of the condition of the mooring bollards on Pier K and
the condition Pier K.” (Doc. 82-1, ¶ 5). The amended complaint does not make any
similar statement directed specifically at BAE AMHC. However, the amended
complaint states that the BAE entities “failed to warn of the inadequacy and the
lack of maintenance repair and/or replacement of unsafe and/or deteriorated
wharfage and mooring equipment” and that “[t]hey knew or should have known
that the wharfage and mooring equipment at Pier K, including bollards, were not
adequate and/or safe for the mooring of vessels like the M/V CARNIVAL
TRIUMPH.” (Doc. 82-1, ¶¶ 16, 19). When considering whether a claim has been
stated, “the pleadings are construed broadly,” and “the allegations in the complaint
are viewed in the light most favorable to the plaintiff.” Watts v. Fla. Int'l Univ., 495
F.3d 1289, 1295 (11th Cir. 2007) (citations omitted). Although Plaintiffs refer to all
of the BAE entities together, the court finds that Plaintiffs’ negligence and
wantonness claims are sufficiently stated to comply with the notice requirements
for pleadings. The Federal Rules of Civil Procedure require only that the complaint

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provide “ ‘a short and plain statement of the claim’ that will give the defendant fair
notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (footnote omitted)
(quoting FED. R. CIV. P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); see also FED. R. CIV. P.
8(a)(2) (requiring that pleadings contain “a short and plain statement of the claim
showing that the pleader is entitled to relief”). The court finds that BAE Property
has not shown that Plaintiffs’ claims against BAE Ship Repair and BAE AMHC are
insufficient as a matter of law.
There being no substantial reason to deny leave to amend, the court must
allow the amendment. Accordingly, Plaintiffs’ motion to amend its complaint (Doc.
82), is hereby GRANTED.
DONE and ORDERED this 25th day of September, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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