Ziegler v. M/Y Intermission et al

Filing 32

ORDER ON MOTION TO STRIKE. Beers Group's Motion to Strike Cross-Claim, ECF No. 28 , is DENIED. The Defendant Cross-Claim, ECF No. 27 , is deemed filed with leave of Court. Beers Group shall file its Answer to the Cross-Claim no later than September 29, 2017. (Beers Group, Inc. response due 9/29/2017). Signed by Judge Beth Bloom on 9/18/2017. (mc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60693-BLOOM/Valle

NICHOLAS A. ZIEGLER,
Plaintiff,
v.
M/V INTERMISSION, a 1998 85.6’ Burger
built aluminum hulled motor yacht,
U.S. Coast Guard Documented, Official Number
1066533, her engines, tackle, apparel, appurtenances,
personal watercraft and tender, in rem, et. al.
Defendants.
________________________________________/
ORDER ON MOTION TO STRIKE
THIS CAUSE is before the Court upon Defendant/Cross-Defendant Beers Group., Inc.’s
(“Beers Group”) Motion to Strike Cross-Claim of Defendants/Cross-Plaintiffs LAH Yachts, LLC
(“LAH Yachts”) and Hamid Hashemi (“Hashemi”) (collectively “Cross-Plaintiffs”), ECF No.
[28], (the “Motion”). The Court has carefully reviewed the Motion, the applicable law, the
parties’ briefs, and is otherwise fully advised. For the reasons that follow, the Motion is denied.
I.

BACKGROUND
Plaintiff, Nicholas Ziegler (“Plaintiff”), commenced this action by filing claims against

LAH Yachts and Hashemi for unseaworthiness, negligence under the Jones Act for failure to
provide a reasonably safe place to work and failure to provide prompt, proper, and adequate
medical care. See ECF No. [1]. In addition, Plaintiff alleged claims for maintenance and cure
against LAH Yachts, Hashemi and the M/Y Intermission and a state law negligence claim
against Beers Group. Id. These claims arise from two incidents that occurred while Plaintiff was

Case No. 17-cv-60693-BLOOM/Valle
a First Mate on board the M/Y Intermission, resulting in personal injuries to him. Id. Both the
Cross-claim and the Motion deal only with the second incident; therefore, the Court limits its
discussion and analysis to that incident.
According to the Complaint, on September 8, 2016, the Captain of the M/Y Intermission
hired Beers Group to repair the vessel’s air conditioning system. Id. Beers Group sent two of its
technicians to remove the necessary equipment for repairs and the Captain ordered Plaintiff, as
the First Mate, to assist them. Id. While removing the air chiller from the vessel’s engine room
to a hand truck on the adjacent dock, one of the technicians let go of the chiller, causing it to slip
out of Plaintiff’s grasp and injuring his right hand and middle finger. Id. Plaintiff alleges his
medical bills remain unpaid and that he was discharged from his employment on the vessel prior
to recovering for the second injury. Id.
Following the filing of the Complaint, on May 8, 2017, LAH Yachts and Hashemi filed
their respective Answers and Affirmative Defenses. See ECF Nos. [10] and [11]. Two months
later, on July 21, 2017, they jointly filed a Cross-Claim against Beers Group without leave of
Court in which they asserted claims for common-law indemnity (Count I) and contribution
(Count II). Beers Group thereafter moved to strike the Cross-Claim on procedural and
substantive grounds. See ECF No. [28]. Cross-Plaintiffs’ Response and Beers Group’s Reply
timely followed. See ECF Nos. [30] and [31]. The Motion is now ripe for review.
II.

LEGAL STANDARD
Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter,” granting courts broad discretion in
making this determination.

Fed. R. Civ. P. 12(f); see also Morrison v. Exec. Aircraft

Refinishing, Inc., 434 F. Supp. 2d 1314, 1318-19 (S.D. Fla. 2005); Williams v. Eckerd Family

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Case No. 17-cv-60693-BLOOM/Valle
Youth Alt., 908 F. Supp. 908, 910 (M.D. Fla. 1995). Under Rule 12(f), “[a] motion to strike will
usually be denied unless the allegations have no possible relation to the controversy and may
cause prejudice to one of the parties.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F. Supp. 2d
1215, 1218 (S.D. Fla. 2010) (internal quotation and citation omitted); see also BB In Tech. Co. v.
JAF, LLC, 242 F.R.D. 632, 641 (S.D. Fla. 2007) (same); Home Mgmt. Sols., Inc. v. Prescient,
Inc., No. 07-20608-CIV, 2007 WL 2412834, at *1 (S.D. Fla. Aug. 21, 2007) (same); Action
Nissan, Inc. v. Hyundai Motor Am., 617 F. Supp. 2d 1177, 1187 (M.D. Fla. 2008) (same).
Courts have broad discretion in considering a motion to strike under Rule 12(f). See, e.g.,
Sakolsky v. Rubin Memorial Chapel, LLC, No. 07-80354-CIV, 2007 WL 3197530, at *2 (S.D.
Fla. Oct. 26, 2007). However, Rule 12(f) motions to strike are considered drastic, granted
sparingly and often disfavored. See Pujals ex rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F.
Supp. 2d 1322, 1327 (S.D. Fla. 2011); Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp.
2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty.,
Fla., 306 F.2d 862, 868 (5th Cir. 1962)). Through this lens, the Court considers Beers Group’s
Motion.
III.

DISCUSSION
In the Motion, Beers Group initially sought to strike the Cross-Claim for both procedural

and substantive reasons. From a procedural standpoint, Beers Group argues the Cross-Claim
should be stricken because it was filed without leave of Court. ECF No. [28] at 2. Throughout
the course of the parties’ briefs, however, their focus shifted from whether the Cross-Claim
should be stricken for a procedural deficiency to whether leave to amend to correct such a
deficiency should be granted. As a result, Beers Group’s position evolved from arguing that
Cross-Plaintiffs could, under no circumstances, state a claim for indemnity and contribution in

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this “otherwise [] straightforward personal injury case” to arguing it would be futile to allow an
amendment for indemnity and contribution as to certain claims.
Turning to the procedural question of whether the Cross-Claim should be stricken for
failure to seek leave of Court, both parties agree that Cross-Plaintiffs failed to follow the
procedure for amending pleadings. Federal Rule of Civil Procedure 15 permits an amendment to
a pleading “once as a matter of course within 21 days after serving it.” Fed. R. Civ. P.
15(a)(1)(A). Because they filed their Answer on May 8, 2017, Cross-Plaintiffs could have filed
an amended pleading containing a cross-claim without leave of Court prior to May 29, 2017.
However, they did not file their Cross-Claim within this timeframe. Instead, they waited until
the last day to amend the pleadings under the Court’s Scheduling Order, July 21, 2017, and then
filed their Cross-Claim without obtaining leave of Court. See ECF No. [27]. Thus, Beers
Groups is correct in stating that the Cross-Claim was improperly filed pursuant to Rule
15(a)(1)(A).
However, in their Response to the Motion, Cross-Plaintiffs concede the error and
belatedly seek leave of Court to retroactively cure this procedural deficiency. See ECF No. [30]
at 3-5. “The grant or the denial of an opportunity to amend is within the discretion of the district
court.” Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend should be given freely “in
the absence of any apparent or declared reason – such as 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, futility
of amendment, etc.” Cadence Bank, N.A. v. 6503 U.S. Highway 301, LLC, No. 8:13-cv-840-T33TGW, 2013 WL 12157897 (M.D. Fla. Oct. 7, 2013) (quoting Foman, 371 U.S. at 182). In its

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Case No. 17-cv-60693-BLOOM/Valle
Reply, Beers Group does not argue the existence of undue delay, bad faith, dilatory motive or
repeated failure to cure prior deficiencies. Instead, Beers Group argues futility of amendment.
However, before the Court may reach the issue of futility and whether leave to amend
should be granted, it must first determine whether good cause exists to consider the belated
request pursuant to Federal Rule of Civil Procedure 16(b)(4).

The Rule provides that a

scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). This Court has the inherent authority to control and manage its own docket to
allow the expeditious disposition of cases. Cadence Bank, 2013 WL 12157897 at *3 (quoting
Voter Verified, Inc. v. Premier Elec. Sols., Inc., No. 6:09-cv-1968-ORL19-KRS, 2010 WL
1049793, at *2 (M.D. Fla. Mar. 22, 2010)). Here, the allowance of the Cross-Claim will promote
judicial efficiency by having matters of indemnity and contribution decided in the main action.
Given that Beers Group was on notice of the Cross-Claim prior to the deadline to amend the
pleadings, there is little to no prejudice by the belated amendment. Moreover, Beers Group does
not raise prejudice as a concern. As such, the Court finds that good cause exists to modify the
Scheduling Order and allow an amendment of the pleadings. Id. (finding good cause existed to
allow amendment of the pleadings to raise cross-claims, counterclaims and third-party claims
even though the request was made shortly after the deadline to amend the pleadings).
Having found that good cause exists, the Court may now consider whether leave to
amend should be granted or whether the pleading should be stricken. Id.; Thorn v. Blue Cross &
Blue Shield of Fla., Inc., 192 F.R.D. 308, 309-10 (M.D. Fla. 2000). Rule 15 provides that leave
to amend should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). When
making this decision, the Court may only deny leave to amend when one of the factors
enumerated above is present. Beers Group’s only argument in its Reply against allowing the

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amendment is futility. See ECF No. [31]. For that reason, the Court limits its analysis to
determine whether it would be futile to allow the amendment.
In its Reply, Beers Group appears to abandon its initial argument that Cross-Plaintiffs
cannot assert any claims whatsoever for indemnity and contribution as its Reply “takes no issue
with LAH and Hashemi’s right to seek contribution and indemnity but only for maintenance and
cure paid to Plaintiff.” Id. In fact, Beers Group concedes that Cross-Plaintiffs may properly
seek indemnity and contribution for the “ordinary costs associated with furnishing the plaintiff
with maintenance and cure benefits from the date of incident through the day plaintiff attained
maximum medical improvement.” Id. at 6-7. Instead, Beers Group argues that the “fundamental
‘issue’” is whether the Cross-Claim improperly “seeks common-law indemnity and contribution
for all liabilities which arise out of the ‘second incident’ alleged by the Plaintiff to have occurred
on September 8, 2016.” Id. at 2-3. Beers Group argues that allowing Cross-Plaintiffs leave to
amend to assert such claims would be futile in that maritime law does not allow such claims.
Upon review of the proposed Cross-Claim, the Court does not agree that the amendment
would be futile. Starting with the indemnity claim, Cross-Plaintiffs seek to hold Beers Group
liable under maritime law for a violation of the implied warranty of workmanlike performance,
which was created by the oral contract between Cross-Plaintiffs and Beers Group to repair the
vessel’s air conditioning system. 1 See ECF No. [30] at 6-7. “As a general rule, there is implied
in every maritime contract for work or services a duty to perform with reasonable care, skill and
diligence, and in a workmanlike manner” known as “the implied warranty of workmanlike
performance.” F.W.F., Inc. v. Detroit Diesel Corp., 494 F. Supp. 2d 1342, 1366 (S.D. Fla. June
25, 2007). A vessel owner may pursue a claim for indemnity for a stevedore’s or contractor’s

1

See Sanchez v. Yacht Path Int’l, Inc., No. 12-cv-61277-DIMITROLEAS/SNOW, 2012 WL 12915423, *1 (S.D.
Fla. Oct. 31, 2012) (“Maritime jurisdiction exists even if the contract is oral”).

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breach of the implied warranty of workmanlike service or performance. See Vierling v. Celebrity
Cruises, Inc., 339 F.3d 1309, 1315-16 (11th Cir. 2003) (“The failure [of a stevedore or contractor
to perform services with a reasonable level of safety and competency] constitutes a breach of
contract and provides shipowners with a right to indemnification for foreseeable loss resulting
therefrom”); see also Whisenant v. Brewster-Bartle Offshore, Co., 446 F.2d 394, 401 (5th Cir.
1971). 2 This claim does not sound in tort, but instead sounds in contract. See Vierling, 339 F.3d
at 1317. The negligence or non-negligence of the shipowner “has no bearing on its right to
indemnification” based on a contractual agreement, making tort principles inapplicable. Id. In
fact, even if a vessel owner were found to be negligent, such a finding does not necessarily
preclude recovery for indemnity against the contractor. Id. “A determination of whether a
shipowner is entitled to indemnification should turn on whether its liability was foreseeable
when the contractor performed in less than a workmanlike manner.” Id. at 1319. As long as the
contractor provided a “substandard performance which led to foreseeable liability of [the
shipowner], the latter [i]s entitled to indemnity. . .” Id. (quoting Weyerhauser S.S. Co. v.
Nacirema Operating Co., 355 U.S. 563, 567 (1958)). These principles hold true regardless of
whether the shipowner is sued under a theory of negligence or absolute liability, such as
seaworthiness of the vessel. Id. at 1318.
In the Reply, Beers Group merges the principles of common-law indemnity and
contribution when discussing the viability of such claims within the area of maritime law. In
doing so, Beers Group focuses on each of the underlying counts within Plaintiff’s Complaint and
argues that the concepts of common-law indemnity and contribution cannot apply to claims
involving Cross-Plaintiffs’ alleged negligence. See ECF No. [31]. By seeking to use a pro rata
2

Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions
rendered by the United States Court of Appeals for the Fifth Circuit on or before September 30, 1981 will be binding
precedent within the Eleventh Circuit).

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share approach for apportionment of fault, Beers Group fails to recognize Cross-Plaintiffs’
concession that its indemnity claim is limited to a breach of the warranty of workmanlike
performance – a claim that does not apply tort principles. Significantly, Beers Group does not
distinguish the Eleventh Circuit’s decision in Vierling, which allowed a shipowner to assert an
indemnity claim against a contractor for a breach of the warranty of workmanlike performance
regardless of whether the shipowner was sued for negligence or seaworthiness. Vierling, 339
F.3d at 1317-19.
A review of the Cross-Claim reveals that Cross-Plaintiffs state a claim for indemnity
under this theory of maritime law. It alleges (1) that LAH Yachts retained Beers Group to repair
the vessel’s air conditioning system, (2) that employees of Beers Group arrived on the vessel to
repair the air conditioning system on September 8, 2016, (3) that Plaintiff allegedly sustained a
personal injury while assisting Beers Group’s employees with moving the chiller, (4) that Beers
Group and its employees “owed a duty to perform its repair work in a reasonably safe manner,”
(5) that Plaintiff was injured “[a]s a direct result of Beers [Group’s] breach of duty,” and (6)
“[b]y reason of the foregoing, [Cross-Plaintiffs] are entitled to indemnification by Beers [Group]
in the event they are found liable.” ECF No. [27]. Although the Court recognizes that the CrossClaim is far from a model of clarity in that Count I is entitled “Common Law Indemnity,” CrossPlaintiffs readily concede in their Response that their indemnity claim is limited to breach of the
warranty of workmanlike performance and the Court will hold them to this characterization
throughout these proceedings. Thus, Cross-Plaintiffs’ indemnity claim against Beers Group is
limited to the alleged breach of warranty of workmanlike service arising from the oral contract to
perform air conditioning repairs on board the vessel. As such, there is no futility in permitting
Cross-Plaintiffs to assert this indemnity claim against Beers Group. See Cadence Bank, 2013

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Case No. 17-cv-60693-BLOOM/Valle
WL 12157897 at *3 (citing Halliburton & Assoc., Inc. v. Henderson, Few & Co., 774 F.2d 441,
444 (11th Cir. 1985)) (“Denial of leave to amend is justified on grounds of futility when the
pleading, as amended, is subject to dismissal.”).
As to Cross-Plaintiffs’ contribution claim, both parties agree that maritime law only
allows contribution for maintenance and cure claims. See ECF No. [30] at 8; ECF No. [31] at 67. “The shipowner’s obligation to pay maintenance and cure . . . is not based on fault but results
from the relationship of ship and seaman.” Great Lakes Dredge & Dock Co. v. Tanker Robert
Watt Miller, 92 F.3d 1102, 1107 (11th Cir. 1996). The shipowner is liable to provide food,
medical care and lodging to a sick or injured seaman within the ship’s employ. Id. Unlike a
non-settling joint tortfeasor, a shipowner does not receive the benefit of a proportionate credit.
Id.

As a result, “the only way to apportion the cost of maintenance and cure among all

tortfeasors responsible for the harm to seamen is to allow claims for contribution.” Id. (emphasis
in original).

To hold otherwise would require that a shipowner always be liable for its

maintenance and cure expenses even if there is some fault on the part of other joint tortfeasors.
Id. In this case, the Court recognizes that the scope of the contribution claim was unartfully
drafted to be over-inclusive. However, Cross-Plaintiffs, through their reliance upon Great Lakes,
recognize that contribution claims in maritime law are allowed only for maintenance and cure
claims and that contribution is not generally available for all claims.

Given both parties’

agreement that contribution is allowed for a seaman’s claim for maintenance and cure, the Court
finds no futility in allowing the Cross-Claim for contribution limited to maintenance and cure.
Going to the heart of Beers Group’s request to strike the pleading, the Court is cognizant
that Motions to Strike are considered drastic, are granted sparingly, are often disfavored, and that
Rule 12(f) only permits a court to “strike from a pleading an insufficient defense or any

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redundant, immaterial, impertinent, or scandalous matter.” For the reasons explained above, the
request to strike the Cross-Claim is denied and the Cross-Claim is deemed filed. With that said,
Cross-Plaintiffs’ failure to properly seek leave of Court unnecessarily complicated the posture of
the case and the briefing on Beers Group’s Motion. The parties are, therefore, reminded that
they must follow the Federal Rules of Civil Procedure as well as all deadlines within the Court’s
Scheduling Order, ECF No. [16], throughout these proceedings.
IV.

CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED that Beers Group’s

Motion to Strike Cross-Claim, ECF No. [28], is DENIED. The Defendants’ Cross-Claim, ECF
No. [27], is deemed filed with leave of Court. Beers Group shall file its Answer to the CrossClaim no later than September 29, 2017.
DONE AND ORDERED in Miami, Florida, this 18th day of September, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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