Rivera v. Kirby Corporation et al
Filing
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MEMORANDUM OPINION AND ORDER granting 19 Opposed MOTION for Leave to File First Amended Complaint (Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JAY RIVERA,
Plaintiff,
VS.
KIRBY CORPORATION, et al,
Defendants.
February 06, 2018
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 3:17-CV-111
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MEMORANDUM OPINION AND ORDER
This is a maritime personal injury case alleging that Plaintiff Jay Rivera injured his foot
while on the M.V. Tarpon. Rivera is an Aransas-Corpus Christi pilot who was sent to the M.V.
Tarpon to provide navigational guidance as it traveled from the Port of Aransas sea buoy to Oil
Dock #11. Rivera alleges that he boarded the vessel, “[a]s he had done thousands of time before,
. . . by climbing up the pilot ladder and onto the deck of the barge DBL 76,” where he was met
by “an able bodied seaman . . . who was apparently on his first hitch,” and he then proceeded
onto the deck of the M.V. Tarpon. As Rivera entered the interior of the M.V. Tarpon, stepping
over a bulwark and through a watertight door, he stepped on the engine room access hatch,
which was raised above the surface of the deck by approximately two inches. Rivera’s foot rolled
as he stepped on the uneven surface, and he alleges that he suffered serious and debilitating
injuries to his foot. Rivera’s complaint alleges that the Defendants were negligent because they
failed to mark the uneven surface, failed to warn him of the hazard, and failed to train the seaman
who escorted him, and he also alleges that the M.V. Tarpon was unseaworthy because the engine
room access hatch was defectively designed and not marked in a safe manner.
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Rivera filed his complaint on April 10, 2017. The Court entered a docket control order in
this case on August 3, 2017. Dkt. 9. The deadline for motions to amend pleadings passed on
October 2, 2017. The expert designation deadlines are in February and March 2018, and the
discovery deadline is May 30, 2019. Trial is set for October 2018.
After this Court entered the August 2017 docket control order, approximately four
months passed. Then, in early December 2017, the parties sought the Court’s assistance with a
discovery dispute. Plaintiff alleged that he had properly requested documents relating to safety
policies and training from the Defendants, but he alleged that the Defendants’ responses had
been insufficient. The parties were able to clarify the dispute after sending additional
interrogatories, and they did not seek additional intervention from the Court or file a motion to
compel.
Instead, on January 19, 2018, Plaintiff filed a motion to amend his complaint. Dkt. 19.
First, Rivera alleges that his medical condition has grown more serious since the case was filed,
and that he was recently diagnosed with “Complex Regional Pain Syndrome.” He therefore seeks
leave to amend his allegations in his complaint to clarify that he will not be able to return to
work and to update his allegations about his physical condition and injuries. Second, Rivera also
seeks to add an allegation of negligence per se under The Pennsylvania Rule. He explains that,
although he did not originally include such an allegation in his complaint, documents recently
produced by Defendants lead him to now believe that such an allegation is well-founded.
Defendants oppose the request, in part. Dkt. 20. Defendants explain that they are not
opposed to Plaintiff including additional information about his medical condition, but they do
oppose any new causes of action, particularly Rivera’s requested additions of negligence per se
and The Pennsylvania Rule. In particular, the Defendants contend that Plaintiff’s request is
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simply too late, and the operative facts underlying his proposed amendments were available
before the deadline for amended pleadings passed.
“Rule 16(b) provides that once a scheduling order has been entered, it ‘may be modified
only for good cause and with the judge’s consent.’” Marathon Financial Insurance, Inc., RRG v.
Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting FED. R. CIV. P. 16(b)(4)). “The good
cause standard requires the ‘party seeking relief to show that the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.’” S&W Enterprises, L.L.C. v.
SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles Alan
Wright, et al., FEDERAL PRACTICE
AND
PROCEDURE § 1522.1 (2d ed. 1990)). To determine
whether the moving party has established good cause, courts consider four factors: “(1) the
explanation for the failure to timely move for leave to amend; (2) the importance of the
amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.” Marathon, 591 F.3d at 470 (quoting Southwestern Bell
Telephone Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)). If a movant establishes
good cause to extend the scheduling order, courts analyze the motion to amend under Rule 15(a),
which states that “[t]he court should freely give leave when justice so requires.” S&W
Enterprises, 315 F.3d at 535.
The Pennsylvania Rule is a rule in maritime cases that has been described by the Fifth
Circuit as an “evidentiary presumption of fault . . . premised on a statutory violation or, put
another way, when ‘a vessel is in derogation of a statutory rule.’” See In re Mid-South Towing
Co., 418 F.3d 526, 533 (5th Cir. 2005). It is most traditionally applied in causes of allisions or
collisions between vessels. See, e.g., American River Trans. Co. v. Kavo Kaliakra SS, 148 F.3d
446, 449 (5th Cir. 1998)(citing The Pennsylvania, 86 U.S. 125). The rule states:
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[W]hen ... a ship at the time of a collision is in actual violation of a statutory rule
intended to prevent collisions, it is no more than a reasonable presumption that the
fault, if not the sole cause, was at least a contributory cause of the disaster. In
such a case the burden rests upon the ship of showing not merely that her fault
might not have been one of the causes, or that it probably was not, but that it
could not have been.
The Pennsylvania, at 136. The rule addresses burden of proof; it is not a rule of ultimate liability.
American River at 449; Pennzoil Producing Co. v. Offshore Exp., Inc., 943 F.2d 1465, 1472 (5th
Cir. 1991)). The rule has been held to apply not only to fact scenarios involving collisions or
allisions, but also to “violations of statutes intended to prevent the injury that actually occurred.”
United States v. Nassau Marine Corp., 778 F.2d 1111, 1116 (5th Cir. 1985). The presumption
under the rule, however, is rebuttable and it “applies only to violations of statutes that delineate a
clear legal duty.” Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 966 (5th Cir.
2001).
Rivera’s proposed amended complaint not only cites The Pennsylvania Rule, it also
specifically pleads that the M.V. Tarpon is required by international conventions and federal
regulations to maintain a security plan, mandating an escort for pilots such as Rivera when they
board and leave a vessel. Rivera’s proposed amended complaint further contends that the seaman
assigned to escort Rivera failed to complete his task, abandoning Rivera at a crucial point, and
Defendants therefore violated their own federally-required ship security plan, federal regulations,
and the International Convention for Safety of Life at Sea (SOLAS). Rivera also alleges that the
vessel was not in compliance with federal regulations requiring handrails. He specifically pleads
that he is among the class of persons intended to benefit from these regulations, and that the
failure to comply with them was a cause of his injuries.
After considering these proposed amendments in light of the four factors laid out in the
Fifth Circuit’s Rule 16(b) case law, the Court finds that Rivera’s motion to amend should be
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GRANTED. Although Rivera’s motion to amend is indeed filed after the deadline for amended
pleadings has expired, and the Court also notes that many of these issues were at least obliquely
(if not directly) raised during the discovery dispute about the vessel’s safety manuals and
training, the Court finds that the overall circumstances of the discovery dispute and the pleadings
in this case, as well as the fact that the discovery deadline is still months away, as well as the
importance of the amendments to Rivera’s case, weigh in favor of granting the motion. The
Court does not find that there is any significant prejudice to the Defendants by granting the
motion because they have not pointed to any new discovery or pleadings they will need to rebut
these new additions.
Considering all of the circumstances, the Court finds that Rivera has
established good cause and that leave to amend should be GRANTED.
Further, the Court hereby ORDERS the Clerk of the Court to file the “First Amended
Complaint,” attached as Exhibit 2 to Plaintiff’s Motion to Amend (Dkt. 19), among the papers in
this case.
SIGNED at Galveston, Texas, this 6th day of February, 2018.
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George C. Hanks Jr.
United States District Judge
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