National Union Fire Insurance Company of Pittsburgh PA v. Sonimar Marine, Corp. et al
Filing
85
AMENDED OPINION AND ORDER denying re 37 MOTION to Strike. Amended to correct the ISC date. Nunc Pro Tunc as of 11/21/13. Signed by US Magistrate Judge Marcos E. Lopez on 11/21/13.(ov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
CIVIL NO. 12-1420 (JAG)
v.
SONIMAR MARINE CORP., et al.,
Defendants.
OPINION AND ORDER
Pending before the court is defendants Sonimar Marine Corp. and José A. Mercado
Fernández’s motion to strike plaintiff’s first and second amended complaints, plaintiff National
Union Fire Insurance Company of Pittsburgh, PA’s response in opposition, defendants’ reply,
and plaintiff’s sur-reply. ECF Nos. 37, 40, 43, 48. For the reasons set forth below, the motion to
strike is DENIED.
Plaintiff filed the original complaint for declaratory judgment on June 4, 2012, alleging,
inter alia, that an investigation of the engine failure of defendants’ yacht revealed that “the raw
(salt) water cooling pumps of the failed engine was in a severe state of deterioration caused by
lack of maintenance and wear and tear.” ECF No. 1, ¶11. In their answer to the complaint filed
on August 29, 2012, defendants alleged, however, that their investigation “determined that the
weep hole cavity of the raw water (seawater) pump became corroded with iron oxide over a
relatively long period of time as a result of the corrosion of the cast iron center housing material
when it is exposed to seawater.” ECF No. 8, ¶11.
On September 7, 2012, plaintiff filed an amended complaint stating that its “investigation
revealed that the raw (salt) water cooling pumps of the failed engine was in a severe state of
deterioration caused by lack of maintenance, wear and tear, rust and corrosion.” ECF No. 14,
¶11 (emphasis added). On October 16, 2012, the court granted leave to file a second amended
complaint, but solely to remove the cause of action for misrepresentation. ECF No. 22 at 1. A
second amended complaint was thus filed, reiterating the allegation of the first amended
complaint that the “investigation revealed that the raw (salt) water cooling pumps of the failed
engine was in a severe state of deterioration caused by lack of maintenance, wear and tear, rust
and corrosion.” ECF No. 21, ¶12 (emphasis added).
Defendants move to strike the first and second amended complaints, arguing that plaintiff
changed its theory for the cause of the loss by adding rust and corrosion without explanation.
Defendants claim that plaintiff mislabeled the supplemental complaints as amended complaints
and that Federal Rule of Civil Procedure 15(d), as opposed to Rule 15(a), applies. In filing what
defendants view as supplemental complaints, plaintiff allegedly failed to provide reasonable
advance notice, depriving the court of the opportunity to exercise its discretion on whether such
supplemental complaints should have been allowed.
With respect to the first amended complaint, defendants implicitly assume that the fact
that plaintiff’s investigation revealed rust and corrosion is an event that happened after the date
that the original complaint was filed. Although such assumption may or may not be true, the
court will neither engage in nor rely on speculation as to whether plaintiff’s investigation
discovered rust and corrosion before or after the filing of the original complaint. Furthermore,
the first amended complaint was filed well within twenty-one days after the answer to the
complaint was filed. Fed.R.Civ. 15(a)(1)(B).1 Although defendants strenuously argue that the
filing of the first amended complaint was circumscribed by Fed.R.Civ. 15(c), their reasoning is
unpersuasive.
1
“Although Rule 15(c) applies to all pleading amendments that satisfy its
No Rule 12(b), (e), or (f) motion appears to have been filed prior to the answer to the original complaint.
2
requirements, the doctrine of relation back is of importance primarily in the context of
amendments with leave of court under Rule 15(a) when the statute of limitations is implicated.”
6A Wright, Miller & Kane, Federal Practice and Procedure Civil 2d §1496. Defendants have not
clearly articulated any statute of limitations issue in the case presently before the court.
Ultimately, no actual prejudice has been shown by defendants regarding an amendment to the
complaint filed more than a month before the Initial Scheduling Conference was held and adding
an allegation of corrosion, the presence of which is acknowledged by defendants themselves in
their answer to the original complaint.
Defendants’ argument with respect to the filing of the second amended complaint does
not need a lengthy discourse. At the Initial Scheduling Conference held on October 16, 2012 the
court allowed the filing of a second amended complaint solely to remove the cause of action for
misrepresentation. ECF No. 22. “Inasmuch as the discretion exercised by the court in deciding
whether to grant leave to amend is similar to that exercised on a motion for leave to file a
supplemental pleading, the court’s inattention to the formal distinction between amendment and
supplementation is of no consequence.” 6A Wright, Miller & Kane, Federal Practice and
Procedure Civil 2d §1504.
WHEREFORE, defendants’ motion to strike (ECF No. 37) is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of November, 2013.
s/Marcos E. López
U.S. Magistrate Judge
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