Coastal Distributors, Inc. et al v. DB Swing Thompson et al

Filing 26

ORDER AND REASONS: ORDERED that 23 Motion to Amend/Correct 21 Order of Dismissal is hereby GRANTED. The Courts November 9, 2016 Order is hereby amended to reflect that Conrad's claims are dismissed without prejudice. The other aspects of the order shall remain unchanged. Signed by Judge Martin L.C. Feldman. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

COASTAL DISTRIBUTORS, INC., ET AL.

CIVIL ACTION

v.

NO. 16-8744

DB SWING THOMPSON, her tackle, furniture,
apparel, appurtenances, etc., in rem, ET AL.

SECTION "F"

ORDER AND REASONS

Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

No memoranda in opposition to

Conrad Shipyard, LLC’s Rule 60(a) and Rule 60(b) motion to amend
order of dismissal with prejudice as to Conrad’s claims, noticed
for expedited submission on September 6, 2017, has been submitted.
Accordingly, because the motion is unopposed, and further, it
appearing to the Court that the motion has merit, 1 IT IS ORDERED:

On October 7, 2016, the Court entered a show-cause order, placing
Plaintiff-Intervenor Conrad’s claims on the call docket and
ordering Conrad to show cause before November 7, 2016 as to why
Conrad had not served Offshore Specialty Fabricators, Inc. or the
DB SWING THOMPSON. Before the Court could address Conrad’s nonservice, the plaintiff (Coastal Distributors, Inc.) filed a motion
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that Conrad’s Rule 60 motion to amend order of dismissal is hereby
GRANTED as unopposed. The Court’s November 9, 2016 Order is hereby
amended to reflect that Conrad’s claims are dismissed without
prejudice.

The other aspects of the order shall remain unchanged.

New Orleans, Louisiana this 6th day of September, 2017.

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

to dismiss the case with prejudice and represented that the entire
case had been resolved. The Court granted the motion and dismissed
the matter with prejudice.
Apparently, the plaintiff had
misrepresented to the Court that all claims had been resolved.
Conrad now says it did not consent to the dismissal with prejudice;
it submits that its claims should have been dismissed without
prejudice under Rule 4(m) due to Conrad’s failure to timely effect
service. Accordingly, Conrad urges the Court to amend its order
dismissing Conrad’s claims with prejudice to a dismissal without
prejudice.
The Fifth Circuit has affirmed the use of Rule 60(a) and 60(b)
to correct or amend dismissals with prejudice to dismissals without
prejudice. See, e.g., Rivera v. PNS Stores, Inc., 647 F.3d 188,
199 (5th Cir. 2011); McClure v. C.R. England & Sons, Inc., 199
F.3d 438 (5th Cir. 1999). Conrad has discovered that the vessel
is now under arrest in this district in Civil Action 17-1595, and
the sale of the vessel is imminent. Conrad seeks to amend this
Court’s order dismissing its claims with prejudice to reflect that
its claims were dismissed without prejudice so that it may seek to
recover (in another pending civil action in which the vessel is
under arrest) some $500,000 it says Offshore Specialty Fabricators
owes to it.
Because Rule 4(m) calls for dismissal without
prejudice for failure to serve, and Rule 60(a) and (b) are
appropriate vehicles to amend dismissals with prejudice to
dismissals without prejudice, Conrad has persuaded the Court that
the relief it seeks is warranted. The November 9 order shall be
amended to reflect that Conrad’s claims were dismissed without
prejudice.
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