248 F.3d 95 (2nd Cir. 2001), 98-9020, Le Blanc v Cleveland

Docket Nº:Docket No. 98-9020
Citation:248 F.3d 95
Party Name:ETOILE LE BLANC, PLAINTIFF-APPELLANT, STEPHEN OSSEN, PLAINTIFF, v. TERRY CLEVELAND AND ROBERT GRANT, JR., DEFENDANTS-THIRD-PARTY-PLAINTIFFS, J.R.D. RETAILERS LTD, D/B/A SYD AND DUSTY'S OUTFITTERS, THIRD-PARTY-DEFENDANT-APPELLEE.
Case Date:May 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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248 F.3d 95 (2nd Cir. 2001)

ETOILE LE BLANC, PLAINTIFF-APPELLANT,

STEPHEN OSSEN, PLAINTIFF,

v.

TERRY CLEVELAND AND ROBERT GRANT, JR., DEFENDANTS-THIRD-PARTY-PLAINTIFFS, J.R.D. RETAILERS LTD, D/B/A SYD AND DUSTY'S OUTFITTERS, THIRD-PARTY-DEFENDANT-APPELLEE.

Docket No. 98-9020

United States Court of Appeals, Second Circuit

May 4, 2001

Argued: September 9, 1999

Appeal from a final order of the United States District Court for the Northern District of New York (Kahn, J.), denying plaintiff's motion to vacate its judgment of October 2, 1997 and to reinstate her complaint.

VACATED AND REMANDED.

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Paul S. Edelman, Esq., Kreindler & Kreindler, New York, N.Y. (Todd J. Krouner, Esq., Chappaqua, N.Y. on the brief), for Plaintiff-Appellant.

E. David Duncan, Esq., Albany, N.Y., for Third-Party-Defendant-Appellee.

Before: Walker, Chief Judge, Feinberg and Calabresi, Circuit Judges.

Per Curiam

Appellant Etoile LeBlanc appeals from a June 23, 1998 Decision and Order of the District Court for the Northern District of New York (Lawrence E. Kahn, Judge) denying her motions (1) to vacate the judgment of October 2, 1997, which dismissed her action on the basis that admiralty jurisdiction was lacking, and to reinstate her complaint pursuant to Fed. R. Civ. P. 60(b); (2) to amend her complaint pursuant to 28 U.S.C. § 1653 and Fed. R. Civ. P. 15 to allege diversity subject- matter jurisdiction; and (3) to discontinue the action as to the non- essential, non-diverse plaintiff, Stephen Ossen, pursuant to Fed. R. Civ. P. 21. We vacate and remand with instructions to grant plaintiff- appellant LeBlanc's motions in their entirety.

BACKGROUND

On July 4, 1994, plaintiffs Etoile LeBlanc and Stephen Ossen were injured when a motor boat struck the kayak they had rented on the Upper Hudson River. As a result of the accident, LeBlanc suffered serious injuries. On March 29, 1995, LeBlanc and Ossen brought this action in the Southern District of New York against defendants Robert Grant and Terry Cleveland, the owner and operator of the motor boat, respectively. LeBlanc and Ossen alleged negligence and invoked the court's admiralty jurisdiction under 28 U.S.C. § 1333. On September 22, 1995, the action was transferred to the Northern District of New York.

Defendants subsequently filed a third-party complaint against appellees J.R.D. Retailers, Ltd., ("Syd and Dusty's"), the outfitter from whom LeBlanc and Ossen had rented their kayak, life vests, and other equipment. The defendants contended that Syd & Dusty's had contributed to the accident by providing the plaintiffs a darkly colored kayak and life vests, which prevented defendants from seeing plaintiffs on the river. By virtue of the third-party complaint against Syd & Dusty's alleging Syd &

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Dusty's negligence, the case proceeded as if the action had originally been brought against both the initial defendant and the third-party defendant. see 29 James William Moore, Moores Federal Practice (Admiralty) § 704.06[1], at 704-74 (1996). On July 22, 1997, on the eve of trial, Syd & Dusty's moved to dismiss the complaint against it for lack of subject-matter jurisdiction.

On October 2, 1997, the district court granted Syd & Dusty's motion to dismiss the complaint. The district court held that it lacked admiralty jurisdiction because the Hudson River was not a navigable waterway at the location where the accident occurred. LeBlanc and Ossen appealed that decision separately, and a panel of this court affirmed. See LeBlanc v. Cleveland, 198 F.3d 353 (2d Cir. 1999).

On November 20, 1997, LeBlanc moved to vacate...

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