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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESTATE OF REGINALD ROSS,

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Plaintiffs,
v.
M/V STUTTGART EXPRESS, ET AL,

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For the Northern District of California

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United States District Court

Case No. C-08-03989 JCS

Defendants.
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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]

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This maritime action involves allegations that a shipowner is responsible for the death of a

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longshoreman, Reginald Ross, who was fatally injured aboard the M/V Stuttgart Express while it

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was docked in Oakland, California. The purported wife of Reginald Ross, Glenda Ross, and their

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minor children, Gloria and Reyanne Ross, and the estate of Reginald Ross (hereafter “Plaintiff”)

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filed suit under section 5(b) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §

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905(b), alleging negligence of the shipowner, which caused the death of Reginald Ross.

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Sometime during the course of this litigation, Plaintiffs learned that Glenda Ross was in fact

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the sister of the deceased, Reginald Ross, not the mother of his children. As a result, Plaintiffs have

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filed a Motion for Leave to File First Amended Complaint in order to correct this deficiency in the

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original Complaint.1 Defendants oppose the Plaintiffs’ Motion and bring a Motion to Dismiss

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seeking dismissal of all of Plaintiffs’ claims. All parties have consented to the jurisdiction of a

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United States magistrate judge, pursuant to 28 U.S.C. § 636(c). A hearing was held on September

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16, 2011 at which counsel for the parties appeared.

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Plaintiffs also seek amendment in order to add additional detail to the negligence allegations
of the Complaint.

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For the reasons stated on the record, the Defendant’s Motion to Dismiss is DENIED WITHOUT

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PREJUDICE. Plaintiffs’ Motion is GRANTED IN PART and DENIED IN PART as follows:

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1)

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litem on behalf of Mr. Ross’s minor child, Gloria Ross;
2)

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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;

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Plaintiffs’ Motion to Amend is DENIED in all other respects;

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Plaintiffs shall file their First Amended Complaint within ten (10) days of the date of the hearing in

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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

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For the Northern District of California

United States District Court

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shall file a notice disclosing both of the following:

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1)

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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

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whether they are seeking such a recovery.

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Finally, the Court reiterates that it has previously dismissed all claims of the Estate of Reginald Ross

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including all claims by anyone purporting to sue on behalf of Reginald Ross, and has dismissed the

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personal claims of Glenda Ross.

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IT IS SO ORDERED.
Dated: September 16, 2011

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_____________________________
JOSEPH C. SPERO
United States Magistrate Judge

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