Estate of Reginald Ross v. M/V Stuttgart Express et al

Filing 125

ORDER by Judge Joseph C. Spero Granting in Part and Denying in Part 104 Motion for Leave to File First Amended Complaint; Denying Without Prejudice 111 Motion to Dismiss (jcslc2, COURT STAFF) (Filed on 9/16/2011)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ESTATE OF REGINALD ROSS, 8 9 Plaintiffs, v. M/V STUTTGART EXPRESS, ET AL, 11 For the Northern District of California 10 United States District Court Case No. C-08-03989 JCS Defendants. ____________________________________/ ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DENYING WITHOUT PREJUDICE DEFENDANT’S MOTION TO DISMISS [Docket Nos.104, 111] 12 13 This maritime action involves allegations that a shipowner is responsible for the death of a 14 longshoreman, Reginald Ross, who was fatally injured aboard the M/V Stuttgart Express while it 15 was docked in Oakland, California. The purported wife of Reginald Ross, Glenda Ross, and their 16 minor children, Gloria and Reyanne Ross, and the estate of Reginald Ross (hereafter “Plaintiff”) 17 filed suit under section 5(b) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 18 905(b), alleging negligence of the shipowner, which caused the death of Reginald Ross. 19 Sometime during the course of this litigation, Plaintiffs learned that Glenda Ross was in fact 20 the sister of the deceased, Reginald Ross, not the mother of his children. As a result, Plaintiffs have 21 filed a Motion for Leave to File First Amended Complaint in order to correct this deficiency in the 22 original Complaint.1 Defendants oppose the Plaintiffs’ Motion and bring a Motion to Dismiss 23 seeking dismissal of all of Plaintiffs’ claims. All parties have consented to the jurisdiction of a 24 United States magistrate judge, pursuant to 28 U.S.C. § 636(c). A hearing was held on September 25 16, 2011 at which counsel for the parties appeared. 26 27 28 1 Plaintiffs also seek amendment in order to add additional detail to the negligence allegations of the Complaint. 1 For the reasons stated on the record, the Defendant’s Motion to Dismiss is DENIED WITHOUT 2 PREJUDICE. Plaintiffs’ Motion is GRANTED IN PART and DENIED IN PART as follows: 3 1) 4 5 litem on behalf of Mr. Ross’s minor child, Gloria Ross; 2) 6 7 Plaintiffs may amend their complaint to allege that Glenda Ross sues as guardian ad Plaintiffs may amend their complaint further to clarify that Reyanne Ross who is no longer a minor, sues in her own right; 3) Plaintiffs’ Motion to Amend is DENIED in all other respects; 8 Plaintiffs shall file their First Amended Complaint within ten (10) days of the date of the hearing in 9 this matter, and Plaintiffs shall file a motion to appoint Glenda Ross as guardian ad litem within fourteen (14) days of the hearing in this matter. Further, on or before November 18, 2011, Plaintiffs 11 For the Northern District of California United States District Court 10 shall file a notice disclosing both of the following: 12 1) 13 14 whether Plaintiffs believe that they are entitled under the remaining causes of action to recover for emotional distress and pain and suffering of the decedent; and 2) whether they are seeking such a recovery. 15 Finally, the Court reiterates that it has previously dismissed all claims of the Estate of Reginald Ross 16 including all claims by anyone purporting to sue on behalf of Reginald Ross, and has dismissed the 17 personal claims of Glenda Ross. 18 19 IT IS SO ORDERED. Dated: September 16, 2011 20 21 22 _____________________________ JOSEPH C. SPERO United States Magistrate Judge 23 24 25 26 27 28 2

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