In the Matter of C. F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation of Liability

Filing 156

Order Granting C.F. Bean LLC, Bean Meridian, LLC, and Archer Western Contractors, LLC'S 124 Motion for Leave to File Second Supplemental and Amended Third Party Complaint, Granting in Part and Denying in Part RSM International, Inc.'s [11 3] Motion to Quash Service of Process and to Dismiss Bob's Machine Shop, Inc. From This Civil Action, Denying as Moot RSM International, Inc. and BMS International, Inc.'s 84 Motion to Dismiss and Motion for More Definite Statement, and Denying as Moot Suzuki Motor Corporation and Suzuki Motor of America Inc.'s 107 Motion to Dismiss. Signed by District Judge Halil S. Ozerden on October 6, 2014. (NM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
IN THE MATTER OF C.F. BEAN
§
L.L.C., AS OWNER PRO HAC
§
VICE AND OPERATOR, AND BEAN §
MERIDIAN L.C.C., AS THE RECORD §
OWNER, OF THE BARGE BEAN 20, §
OFFICIAL NO. 627225, PRAYING
§
FOR EXONERATION FROM OR
§
LIMITATION OF LIABILITY
§

CIVIL NO.: 1:13cv77-HSO-RHW

CONSOLIDATED WITH
JERRIE P. BARHANOVICH,
§
EXECUTRIX AND PERSONAL
§
REPRESENTATIVE OF THE
§
ESTATE OF MARK BARHANOVICH, §
DECEASED
§
§
v.
§
§
C.F. BEAN LLC AND ARCHER
§
WESTERN CONTRACTORS, LLC
§
§
v.
§
§
BOB’S MACHINE SHOP, INC.,
§
SUZUKI MOTOR CORP., SUZUKI
§
MOTOR OF AMERICA, INC.
§

PLAINTIFF

CIVIL NO. 1:13cv84-LG-JMR
DEFENDANTS/
THIRD PARTY PLAINTIFFS

THIRD PARTY DEFENDANTS

ORDER GRANTING C.F. BEAN LLC, BEAN MERIDIAN, LLC, AND
ARCHER WESTERN CONTRACTORS, LLC’S [124] MOTION FOR LEAVE
TO FILE SECOND SUPPLEMENTAL AND AMENDED THIRD PARTY
COMPLAINT, GRANTING IN PART AND DENYING IN PART RSM
INTERNATIONAL, INC.’S [113] MOTION TO QUASH SERVICE OF
PROCESS AND TO DISMISS BOB’S MACHINE SHOP, INC. FROM THIS
CIVIL ACTION, DENYING AS MOOT RSM INTERNATIONAL, INC. AND
BMS INTERNATIONAL, INC.’S [84] MOTION TO DISMISS AND MOTION
FOR MORE DEFINITE STATEMENT, AND DENYING AS MOOT SUZUKI
MOTOR CORPORATION AND SUZUKI MOTOR OF AMERICA INC.’S [107]
MOTION TO DISMISS

1

Before the Court are the Motion to Dismiss and Motion for More Definite
Statement [84] filed by RSM International, Inc., and BMS International, Inc., d/b/a
Bob’s Machine Shop, Inc., the Motion to Dismiss [107] filed by Third-Party
Defendants Suzuki Motor Corporation and Suzuki Motor of America Inc., and RSM
International, Inc.’s Motion to Quash Service of Process and to Dismiss Bob’s
Machine Shop, Inc. From This Civil Action [113]. Also before the Court is the
Motion for Leave to File Second Supplemental and Amended Third-Party
Complaint [124] filed by Complainants in Limitation/Defendants C.F. Bean LLC
and Bean Meridian, LLC, and Limitation Claimant/Defendant Archer Western
Contractors, LLC. Having considered the Motions, the parties’ submissions, the
record, and relevant legal authorities, the Court finds that the Motion for Leave to
File Second Supplemental and Amended Third-Party Complaint [124] should be
granted, the Motion to Quash Service of Process and to Dismiss Bob’s Machine
Shop, Inc. From This Civil Action [113] should be granted in part and denied in
part, and that the Motions to Dismiss [84] [107] should be denied as moot without
prejudice to being reasserted at a later date.
I. FACTS AND PROCEDURAL HISTORY
This lawsuit stems from a fatal accident which occurred on September 16,
2012, involving a recreational water vessel operated by Mark Barhanovich. The
underlying Complaint for Exoneration was filed by Complainants-in-Limitation
C.F. Bean LLC and Bean Meridian, LLC (collectively, “Bean”), on March 15, 2013,
and alleges that C.F. Bean LLC was the “owner pro hac vice and operator of the

2

Barge Bean 20[,]” and that Bean Meridian, LLC, was the record owner of the Barge
Bean 20. Compl. for Exoneration from or Limitation of Liability 1-2 [1]. Bean
asserts that Plaintiff Jerrie P. Barhanovich, as Executrix of the Estate of Mark
Barnovich (“Plaintiff”), “contend[s] that a discharge line from the Bean 20 caused or
contributed to the” accident. Id.
On February 3, 2014, Bean, joined by Limitation Claimant Archer Western
Contractors, LLC (“Archer Western”),1 filed a Third Party Complaint [51-2]
asserting negligence claims against Suzuki Motor Corporation (“SMC”) and Suzuki
Motor of America, Inc. (“SMAI”), the entities which designed, manufactured, and
sold the outboard motor allegedly attached to Barhanovich’s vessel. Third Party
Compl. 1-3 [51-2]. Bean and Archer Western also assert negligence claims against
Bob’s Machine Shop, Inc., the entity which designed, manufactured, marketed, sold,
or distributed a jack plate allegedly attached to the outboard motor at the time of
the accident. Id.
On July 3, 2014, RSM International, Inc. (“RSM”) and BMS International,
Inc. (“BMS”) d/b/a Bob’s Machine Shop, Inc., moved to dismiss the Third Party
Complaint on grounds that “Bob’s Machine Shop, Inc.” was an unregistered trade
name and was “not a separate and distinct legal entity and not a proper party in
this matter.” Third Party Defs.’ Mot. to Dismiss and Mot. for More Definite
Statement 1-2 [84]. Bean and Archer Western were granted leave to file a First
Archer Western claims to have contracted with the Mississippi State Port Authority to
perform services related to the Port of Gulfport Restoration Program. Claim 1 [11]. Archer Western
further contends that it contracted with C.F. Bean LLC to have the latter conduct dredging related
to the Port of Gulfport Restoration Program, and that, pursuant to that contract, Archer Western is
entitled to indemnity from CF Bean LLC as to any claims asserted by Plaintiff against Archer
Western. Id. at 1-2.
1

3

Supplemental and Amended Third Party Complaint [103] and did so on July 17,
2014. The First Supplemental and Amended Third Party Complaint purports to
substitute “‘RSM International, Inc., as successor-in-interest to BMS International,
Inc., as successor-in-interest to Bob’s Machine Shop, Inc.’ in place of ‘Bob’s Machine
Shop, Inc.’ . . . .” First Am. and Supplemental Third Party Compl. 2 [103].
On July 21, 2014, SMC and SMAI filed a separate Motion to Dismiss [107],
asserting that Bean and Archer Western did not plead sufficient facts indicating
that the Court had personal jurisdiction over SMC, and that Bean and Archer
Western failed to state a plausible claim against either SMC or SMAI. Mot. to
Dismiss 3-4 [107]. Bean and Archer Western then filed the present Motion for
Leave to File Second Supplemental and Amended Third Party Complaint [41] “to
address the legal arguments and claimed insufficiencies of its Third Party
Complaint and First Supplemental and Amended Third Party Complaint.” Mot. for
Leave to File Second Supplemental and Amended Third Party Compl. 2 [124]. Bean
and Archer Western attach their proposed pleading [124-1] as an exhibit.
On August 12, 2014, RSM filed a Motion to Quash Service of Process and to
Dismiss Bob’s Machine Shop, Inc. from this Civil Action [113]. RSM argues that
Bean and Archer Western attempted but were unable to properly serve RSM with
process and that Bob’s Machine Shop, Inc., should be dismissed as a Defendant.
Mot. to Quash Service of Process and to Dismiss Bob’s Machine Shop, Inc. 1-3 [113].
Bean and Archer Western were subsequently able to effect proper service upon RSM
[135], and Bean and Archer Western did not respond to RSM’s request to have Bob’s

4

Machine Shop, Inc., dismissed. Proof of Service [135]; Mem. in Opp’n to Mot. to
Quash Service of Process and to Dismiss Bob’s Machine Shop, Inc. 1-4 [129].
II. DISCUSSION
A.

Plaintiff’s Motion for Leave to File Second Supplemental and Amended
Complaint [124]
Federal Rule of Civil Procedure 15(a) provides that “[t]he Court should freely

give leave [to amend a pleading] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
The United States Court of Appeals for the Fifth Circuit has articulated five
considerations in determining whether to grant a party leave to amend a complaint:
1) undue delay; 2) bad faith or dilatory motive; 3) repeated failure to cure
deficiencies by previous amendments; 4) undue prejudice to the opposing party; and
5) futility of the amendment. Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir.
2004) (citing Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)).
SMC and SMAI argue [139] that Bean and Archer Western’s request [124] to
amend the Third Party Complaint is not supported by good cause under Rule 16,
such that the Court should not evaluate Bean and Archer Western’s request under
Rule 15. The Court finds that good cause exists. See S&W Enterprises, L.L.C. v.
SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (noting courts
should consider the explanation for and importance of the amendment along with
the potential for prejudice and ability to cure that prejudice) (citations and internal
marks omitted). Bean and Archer Western seek to enhance the Third Party
Complaint’s existing allegations related to the Mississippi Products Liability Act,
Mississippi Code § 11-1-63(a)-(h), which SMC and SMAI contend serves as the

5

foundation for Bean and Archer Western’s claims against them, and any prejudice
to SMC and SMAI is minimal.
Although Bean and Archer Western have previously filed a First
Supplemental and Amended Third Party Complaint [51-2], that prior amendment
was unopposed and made solely for the purpose of substituting the name of the
correct defendant in place of “Bob’s Machine Shop, Inc.” as a current Defendant.
Unopposed Mot. for Leave to File First Am. and Supplemental Third Party Compl.
1-2 [100]. Bean and Archer Western’s current Motion [124] seeking leave to file an
amended complaint represents the first effort to address the legal arguments and
“claimed insufficiencies” raised by RSM, BMS, SMC, and SMAI. The Court finds
that granting Bean and Archer Western’s Motion [124] will not result in any
significant delay. Nor is the request to amend otherwise inconsistent with the other
considerations under Rule 15. See Smith, 393 F.3d at 595. Bean and Archer
Western’s Motion for leave to file a Second Supplemental and Amended Complaint
should be granted.
B.

Remaining Pending Motions [84] [107] [113]
In view of the Court permitting Bean and Archer Western to file a Second

Supplemental and Amended Complaint, RSM and BMS’s Motion to Dismiss and
Motion for More Definite Statement [84], and SMC and SMAI’s Motion to Dismiss
[107] are now rendered moot, and will each be denied without prejudice to the right
to reassert these Motions at a later date, if appropriate. In addition, RSM and
BMS’s Motion to Quash Service of Process and to Dismiss Bob’s Machine Shop [113]

6

will be granted in part and denied in part such that Bob’s Machine Shop, Inc., will
be dismissed as a party to this case. The remainder of the Motion [113] will be
denied.
III. CONCLUSION
Based on the foregoing, Bean and Archer Western’s Motion for Leave to File
Second Supplemental and Amended Complaint [124] should be granted, and the
Second Supplemental and Amended Complaint shall be filed within five (5)
calendar days of entry of this Order. RSM and BMS’s Motion to Dismiss and
Motion for More Definite Statement [84], and SMC and SMAI’s Motion to Dismiss
[107] should be denied without prejudice as moot. RSM’s Motion to Quash Service
of Process and to Dismiss Bob’s Machine Shop [113] should be denied in part and
granted in part, as Bob’s Machine Shop, Inc., will be dismissed as a Defendant.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Bean and
Archer Western’s Motion for Leave to File Second Supplemental and Amended
Complaint [124] is GRANTED. Bean and Archer Western shall file their Second
Supplemental and Amended Complaint within five (5) calendar days of entry of this
Order.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant RSM
and BMS’s Motion to Dismiss and Motion for More Definite Statement [84] is
DENIED AS MOOT, without prejudice to RSM and BMS’s right to reassert their
arguments at a later date, if warranted.

7

IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant SMC
and SMAI’s Motion to Dismiss [107] is DENIED AS MOOT, without prejudice to
SMC and SMAI’s right to reassert their arguments at a later date, if warranted.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant RSM’s
Motion to Quash Service of Process and to Dismiss Bob’s Machine Shop, Inc. [113] is
DENIED IN PART and GRANTED IN PART. To the extent RSM seeks
dismissal of Bob’s Machine Shop, Inc., the Motion [113] is granted and Bean and
Archer Western’s claims against Bob’s Machine Shop, Inc., are DISMISSED WITH
PREJUDICE. RSM’s Motion [113] is denied in all other respects.
SO ORDERED this the 6th day of October, 2014.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

8