BROWNING v. SAFMARINE, INC. et al
Filing
42
MEMORANDUM OPINION FILED, RE: 21 . Signed by Magistrate Judge Joel Schneider on 11/7/12. (js)
[Doc. No. 21]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEITH BROWNING,
Plaintiff,
Civil No. 11-2436 (JHR/JS)
v.
SAFMARINE, INC., et al.,
Defendants.
MEMORANDUM OPINION
This
matter
is
before
the
Court
on
Motion to Amend Complaint” [Doc. No. 21].
plaintiff’s
“Second
Plaintiff is seeking
to amend his complaint to substitute Jaco Trader Shipping, Ltd
(“Jaco”) for named defendant Safmarine, Inc. (“Safmarine”). The
Court
received
defendants’
response
[Doc.
No.
23]
and
parties’ supplemental submissions [Doc. Nos. 34, 36, 37].
Court
also
heard
oral
argument.
For
the
reasons
to
the
The
be
discussed, plaintiff’s motion is GRANTED.
Since
the
parties
are
familiar
with
the
facts
and
procedural history of the case, only a brief summary will be set
forth herein.
Plaintiff filed his complaint in New Jersey state
court on March 10, 2011, and the action was removed to this
court on April 28, 2011.
The named defendants, all represented
1
by the same counsel, are:
Lines,
N.V.,
Maersk
Moller-Maersk Group.
that
occurred
Douala.
on
Safmarine, Inc., Safmarine Container
Line,
A.P.
Moller-Maersk
A/S
and
A.P.
The complaint arises out of an accident
March
13,
2008
aboard
Complaint ¶10 [Doc. No. 1-2].
the
vessel
Safmarine
Plaintiff alleges that
at the time of his accident he was a longshoreman employed by
Delaware River Stevedores.
Id. at ¶9. Plaintiff alleges that
when he filed his complaint he was under the impression that the
subject vessel was owned by Safmarine.
During the course of the
case defense counsel informed plaintiff that the actual owner
was Jaco.
On July 29, 2011, plaintiff filed his first motion to
amend his complaint to name Jaco.
On October 24, 2011, the
Court denied the motion on the ground that it was futile.
October 24, 2011 Order [Doc. No. 16]. 1
See
The Court found that
since plaintiff’s accident occurred on March 13, 2008, and his
motion to amend was not filed until more than two years later on
July 29, 2011, the claim against Jaco was barred by the statute
of limitations.
The Court denied plaintiff’s request to “relate
back” his amended pleading pursuant to Fed. R. Civ. P. 15(c).
The Court held that although plaintiff argued that notice of the
filing
of
the
complaint
was
imputed
to
Jaco
because
of
its
identity of interest with the defendants, “plaintiff has not
supplied evidence of this.”
Tr. 18:23-19:1.
1
The Court’s Oral Opinion denying the motion is contained in the transcript
of the October 24, 2011 hearing at pp. 16:15-21:5 [Doc. No. 31].
2
Subsequent to the Court’s October 24, 2011 Order denying
plaintiff’s
discovery.
motion
to
amend,
the
parties
completed
fact
On May 30, 2012, defendants filed their motion for
summary judgment. In their motion defendants argued, inter alia,
that they “did not own or charter the ship [Safmarine Douala].”
Brief in Support of Motion for Summary Judgment at 2 [Doc. No.
20-1].
They also argued, “none of the defendants . . . had
anything whatsoever to do with the alleged incident on March 13,
2008” (id.), and that the owner of the Safmarine Douala was
“Jaco Trader Shipping Ltd.”
On
amend.
June
1,
2012,
Id.
plaintiff
filed
the
instant
motion
to
Plaintiff alleges, and defendants do not contest, that
the facts supporting the motion were learned in discovery taken
after plaintiff’s first motion to amend was denied on October
24, 2011.
Like its first motion to amend, plaintiff’s present
motion also seeks to add Jaco as a party defendant. Plaintiff
argues he now presents evidence that supports his contention
that his amended complaint relates back to the filing of his
original complaint.
Plaintiff argues that because the same law
firm, Palmer Biezup & Henderson LLP (“Palmer”), represented Jaco
and the defendants, the firm’s knowledge regarding the filing of
plaintiff’s complaint should be imputed to Jaco.
3
DISCUSSION
The
complaint
parties
agree
relates
back
that
the
unless
amendment
the
naming
proposed
amended
Jaco
futile
is
because it is barred by the statute of limitations.
acknowledges
that
his
sole
basis
for
complaint relates back is Rule 15(c). 2
arguing
the
Plaintiff
amended
In relevant part Rule
15(c) reads as follows:
(1) An amendment to a pleading relates back to the
date of the original pleading when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence
set out — or attempted to be set out in the original
pleading; or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will
not be prejudiced in defending on the merits; and
(ii) knew, or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party’s identity.
2
Defendants argue Rule 15(c)(1)(C) relation back is unavailable
because plaintiff’s motion seeks to add Jaco, rather than to
substitute Jaco for an existing party defendant. Defendants’
Opposition Brief at 2 [Doc. No. 23] (citing Jordan v. Tapper, 143
F.R.D. 567, 573-74 (D.N.J. 1992)). However, the Third Circuit
construes Rule 15(c) to permit the addition or substitution of a
defendant. See Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
In any event, the argument is moot because plaintiff clarified his
intent to substitute Jaco for Safmarine.
4
Pursuant to Rule 15(c)(1)(C) relation back is available if
a proposed defendant received actual or constructive notice of
the action within 120 days of the filing of a complaint.
Id.
(citing Fed. R. Civ. P. 4(m)). The Rule also requires that the
proposed defendant have actual or constructive knowledge that he
or she would have been named but for a mistake on the part of
the plaintiff. 3
As to the notice that a proposed defendant must receive
within 120 days of the filing of the complaint, the notice is
sufficient when a party has a reasonable expectation of being
named a defendant after learning about the litigation through
some informal means.
Singletary v. Pa. Dep’t of Corr., 266 F.3d
186, 195 (3d Cir. 2001).
However, “the notice received must be
more than notice of the event that gave rise to the cause of
action; it must be notice that the plaintiff has instituted the
action.”
Id.
The Third Circuit permits an inference of timely notice by
way of the “shared attorney” method or an “identity of interest”
method.
See Ward v. Taylor, 250 F.R.D. 165, 168 (D. Del. 2008)
(citing
Singletary,
266
F.3d
at
196-200).
“[T]he
relevant
inquiry under [the shared attorney] method is whether notice of
the institution of this action can be imputed to [the defendant
3
Defendants do not dispute that the proposed amendment meets the
threshold requirement of “assert[ing] a claim or defense that arose
out of the conduct, transaction, or occurrence set out” in the first
amended complaint. See Rule 15(c)(1(B).
5
sought to be named] within the relevant 120 day period . . . by
virtue of representation [he] shared with a defendant originally
named in the lawsuit.”
Garvin v. City of Philadelphia, 354 F.3d
215,
Cir.
2003)(alterations
F.3d
at
223
(3d
Singletary,
method,
266
on
the
other
196).
The
hand,
in
original)(quoting
“identity
“requires
the
of
interest”
plaintiff
to
demonstrate that the circumstances surrounding the filing of the
lawsuit permit the inference the notice was actually received by
the parties sought to be added as defendants during the relevant
time period.”
Miller v. Hassinger, 173 Fed. Appx. 948, 956 (3d
Cir. 2006) (per curiam) (citing Singletary, 266 F.3d at 197-200;
Garvin, 354 F.3d at 227).
Plaintiff is only pursuing the shared attorney method of
relation back.
forth
in
the
Relevant facts related to this issue are set
affidavits
of
Kevin
G.
O’Donovan,
Esquire,
and
Richard Q. Whelan, Esquire, partners with the Palmer law firm.
See Doc. No. 34.
According to Mr. O’Donovan’s affidavit, on
March 13, 2008, the same date of plaintiff’s accident, he was
retained
by
Affidavit ¶1.
2011,
after
Jaco
to
investigate
the
incident.
See
O’Donovan
Mr. O’Donovan further alleges that on March 24,
the
statute
of
limitations
expired,
he
was
instructed to “close the file” which was done on March 25, 2011.
Id. ¶2.
Approximately two weeks later Mr. Whelan was retained
to represent the defendants in the case. See Whelan Affidavit
6
¶2.
The shared attorney method assumes that where an originally
named
party
and
a
party
later
sought
to
be
added
share
representation within 120 days of the filing of a complaint, the
shared
attorney
will
likely
inform
the
latter
likelihood that he may be joined in the action.
266 F.3d at 196.
party
of
the
See Singletary,
The facts of record clearly demonstrate that
the Palmer law firm had knowledge of this lawsuit within 120
days after the case was first filed in state court on March 10,
2011.
This is evident by the fact that the firm was retained to
represent defendants on April 7, 2011.
firm
represented
knowledge
is
Jaco
imputed
when
to
it
Jaco.
gained
As
Thus, since the Palmer
this
defendants
knowledge,
argue,
the
“[t]he
premise of the shared-representation method is that the lawyer
can be expected to advise the co-client (the putative defendant)
that the lawsuit has been filed and that the co-client is likely
to be brought into the lawsuit once the plaintiff realizes that
he has mistakenly sued the wrong party.” Defendants’ Response to
Plaintiff’s Supplemental Brief in Support of Second Motion to
Amend Complaint at 2 (“Defs.’ Supp. Brief”)[Doc. No. 37].
Even
though Palmer closed its Jaco file on March 25, 2011, it can be
reasonably expected that promptly after the firm was retained to
represent defendants, the firm is likely to have notified Jaco
that plaintiff’s complaint was filed. Given the allegations in
plaintiff’s
complaint,
it
is
also
7
reasonable
to
expect
that
defense
counsel
advised
Jaco
that
it
would
soon
be
named
a
defendant after plaintiff realized his mistake in failing to
name it. This is especially true since defense counsel knew or
should
have
complaint
known
was
limitations,
that
filed
but
was
it
was
within
not
possible
the
served
applicable
until
limitations expired on March 13, 2011.
knew
or
should
have
known
that
that
after
plaintiff’s
statute
the
of
statute
of
Further, defense counsel
although
the
statute
of
limitations had already run on March 25, 2011 when Mr. O’Donovan
closed his file, this did not necessarily mean that plaintiff’s
complaint was not filed before the statute of limitations ran.
Defendants
argue
the
knowledge
of
the
Palmer
law
firm
should not be imputed to Jaco because the firm did not represent
Jaco after March 25, 2011.
This argument is premised on the
Palmer firm’s belief that it did not represent Jaco after it
“closed its file.”
The Court disagrees.
Defense counsel avers
it represented Jaco from March 13, 2008 to March 24, 2011 for
the purpose of investigating plaintiff’s accident.
Affidavit ¶2.
25, 2011.
O’Donovan
Counsel further avers it closed its file on March
Id. ¶3.
However, although Mr. O’Donovan avers “[t]he
file was closed effective March 25, 2011” (id.), he provides no
information
as
to
termination
of
the
when
or
how
he
attorney-client
notified
Jaco
relationship.
of
“Once
the
an
attorney undertakes to represent a client, he cannot withdraw
8
from
employment
without
intention to do so.”
see
also
R.P.C.
“reasonable
properly
his
client
of
his
In re Schwartz, 99 N.J. 510, 519 (1985);
1.16(d)
notice”
representation).
advising
(requiring
to
a
that
upon
client
a
lawyer
give
termination
of
Defense counsel has not adequately shown that
it terminated its representation of Jaco as of April 7, 2011 or
soon afterwards.
when
Mr.
The Court does not accept the argument that
O’Donovan
closed
his
file
he
instantaneously stopped representing Jaco.
plaintiff’s
motion,
the
Court
finds
there
automatically
and
For the purpose of
was
at
least
an
implied attorney-client relationship between counsel and Jaco on
or
about
April
thereafter.
obligation
7,
See
of
a
2011,
Schwartz,
lawyer
and
for
99
N.J.
applies
to
a
at
reasonable
517
persons
time
(“[T]he
who,
period
fiduciary
although
not
strictly clients, he believes or has reason to believe rely on
him.”);
see
also
Bell
v.
Cumberland
County,
C.A.
09-6485
(JHR/JS), 2012 WL 1900570, at *9 (D.N.J. May 23, 2012) (citing
the plaintiff’s reasonable belief in the attorney’s continued
representation); Robinson v. Hornell Brewing Co., C.A. No. 112183
(NLH/JS),
2012
WL
71730,
at
*2
(D.N.J.
Jan.
10
2012)(citations omitted)(“[T]he attorney-client relationship can
be created in the absence of an express agreement and may be
9
inferred
from
the
conduct
of
the
attorney
and
client
or
by
surrounding circumstances.”). 4
Plaintiff
represented
by
has
shown
the
same
that
law
Jaco
firm
and
within
defendants
120
days
of
were
the
institution of this action, and that the firm had knowledge of
the filing of this lawsuit within 120 days after it was filed.
Accordingly, the Court finds that plaintiff may use the “shared
attorney” method to impute notice of the action to Jaco pursuant
to Rule 15(c)(1)(C).
The Court also finds that Jaco will not be
prejudiced by defending itself on the merits. 5
Defendants
rely
on
Singletary
and
Garvin
in
their
opposition. In both cases, however, the court denied relation
back because the shared attorney did not represent the proposed
additional defendants within 120 days of the institution of the
action as required by Rule 15(c)(1)(C).
Singletary, 266 F.3d at
197; Garvin, 354 F.3d at 223-24.
4
It is not insignificant that only approximately two weeks after the
Palmer firm closed its Jaco file, it was hired to represent defendants
in this litigation. Although it may be reasonable to hold that after
an extended period of time an attorney-client relationship ceases
after a law firm closes its file, this did not occur here. In this
case the Palmer firm learned of this lawsuit only two weeks after it
closed its Jaco file.
5
Jaco will not be prejudiced by its joinder because there is no
contention that any relevant evidence or witnesses have been lost.
Further, Jaco’s law firm (Palmer) has been defending the case from its
outset and is obviously familiar with all relevant facts and issues.
The Court rejects defendants’ argument that to date it has not been
defending the case “on the merits.” This is evidenced by the fact,
inter alia, that defendants conducted a defense medical examination of
plaintiff.
10
Having found Rule 15(c)(1)(C)’s notice provision satisfied
as
to
Jaco,
the
should
have
known
against
it,
identity.”
but
Court
must
that
for
a
the
determine
action
mistake
whether
would
concerning
Jaco
have
the
“knew
or
been
brought
proper
party’s
See Rule 15(c)(1)(C)(ii); Krupski v. Costa Crociere
S.p.A., 130 S. Ct. 2485, 2493 (2010).
“[The Rule] asks what the
prospective defendant knew or should have known during the Rule
4(m) period, not what the plaintiff knew or should have known at
the time of filing [his or] her original complaint.”
130 S. Ct. at 2493.
Krupski,
“Information in the plaintiff’s possession
is relevant only if it bears on the defendant’s understanding of
whether
the
plaintiff
party’s identity.”
made
a
mistake
regarding
the
proper
Id. at 2493-94; see also Arthur v. Maersk,
Inc., 434 F.3d 196, 208 (3d Cir. 2006) (“A ‘mistake’ is no less
a ‘mistake’ when it flows from lack of knowledge as opposed to
inaccurate description.”).
Plaintiff’s complaint alleges injuries arising out of an
incident
that
occurred
on
the
Safmarine
Douala.
In
his
complaint, plaintiff identifies as defendants the entities that
“owned,
managed,
operated,
controlled” the vessel.
chartered,
Complaint ¶7.
possessed,
and/or
Plaintiff’s complaint
plainly intended to name as defendants all entities having any
connection to the vessel, including its owner. As the apparent
actual owner of the Safmarine Douala, the Court finds that Jaco
11
knew or should have known that, but for a mistake on plaintiff’s
part, it would have been named as a defendant in the complaint.
Accordingly,
the
Court
finds
that
plaintiff
meets
Rule
the
finds
that
15(c)(1)(C)(ii)’s mistake provision.
CONCLUSION
For
all
plaintiff’s
defendant
the
foregoing
proposed
relates
reasons,
amended
back
under
complaint
Rule
Court
naming
15(c)(1)(C).
Jaco
as
a
Accordingly,
plaintiff’s “Second Motion to Amend Complaint” is GRANTED 6 and
plaintiff is granted leave to substitute Jaco Trader Shipping,
Ltd. for Safemarine, Inc. in his amended complaint. 7
/s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated:
November 7, 2012
6
The Court’s Order granting plaintiff’s motion was entered on October
31, 2012.
7
Defendants argue that if the Court grants plaintiff’s motion all
defendants should be dismissed and not just Safmarine. Defendants
argue plaintiff made the same mistake as to all defendants that he did
as to Safmarine. The Court rejects this argument. The record in the
case demonstrates that when plaintiff filed his complaint he was under
the impression that Safmarine owned the vessel. The other defendants
were not just named in their capacity as an owner. Thus, the mistake
as to Safmarine is not applicable to the other defendants. As an
aside, if defendants are correct that they had no involvement with
plaintiff’s accident, their motion for summary judgment [Doc. No. 20]
will be granted.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?