Fematt v. Nedlloyd Line

• Decision Date: 02 March 1961
• Docket Number: Civ. No. 321-59.
• Citation: 191 F. Supp. 907
• Court: U.S. District Court — Southern District of California
• Parties: Elmer FEMATT, Plaintiff, v. NEDLLOYD LINE, a corporation, and Does I to V, inclusive, Defendants. N. V. STOOMVAART MAATSCHAPPIJ "NEDERLAND", a corporation, Third Party Plaintiff, v. CITY OF LOS ANGELES, a Municipal Corporation, and San Pedro Tug Boat Co., a Corp. (aka "Redstack") a Corp., Third Party Defendants.

191 F. Supp. 907

Elmer FEMATT, Plaintiff, v. NEDLLOYD LINE, a corporation, and Does I to V, inclusive, Defendants.

N. V. STOOMVAART MAATSCHAPPIJ "NEDERLAND", a corporation, Third Party Plaintiff, v. CITY OF LOS ANGELES, a Municipal Corporation, and San Pedro Tug Boat Co., a Corp. (aka "Redstack") a Corp., Third Party Defendants.

Civ. No. 321-59.

United States District Court S. D. California, Central Division.

March 2, 1961.

Magana & Olney, by Mitchell Levy, Los Angeles, Cal., for plaintiff Elmer Fematt.

Graham, James & Rolph by Reed M. Williams, Long Beach, Cal., for defendant and third-party plaintiff N. V. Stoomvaart Maatschappij "Nederland", sued herein as Nedlloyd Line.

Ekdale & Shallenberger by Gordon P. Shallenberger, San Pedro, Cal., and Roger Arnebergh, City Atty., Arthur W. Nordstrom, Asst. City Atty., Walter C. Foster, Harry D. Miller, Jr., Deputy City Attys., Los Angeles, Cal., for third-party defendant City of Los Angeles.

Manns & Manns by William Manns, Beverly Hills, Cal., for third-party defendant San Pedro Tug Boat Company.

KUNZEL, District Judge.

This matter comes up on a motion for an order allowing plaintiff to file an amended complaint bringing in new parties defendant.

Plaintiff, a citizen of California, filed this action in a California state court on February 16, 1959, against defendant owner of the vessel S. S. "Lomboc", alleging personal injuries sustained while assisting in the undocking of the vessel on December 15, 1958, from her berth in Wilmington, California.

From answers to interrogatories, it appears that plaintiff was tending the forward spring line when the line failed and struck plaintiff.

The original complaint, in addition to naming the defendant, named Does I to V and alleged that their names were unknown to plaintiff, and that when known, plaintiff would seek leave to amend the complaint. Paragraph III of the complaint alleged, "* * * the defendants, and each of them owned, operated, managed, maintained, and controlled the vessel S. S. `Lomboc', and used and employed said vessel in the transportation of cargo for hire in interstate and foreign commerce." The complaint further alleged, "That at said time and place, plaintiff was employed as a linesman by National Lines Bureau, and was working on the dock adjacent to said vessel. * * *" Paragraph VI alleged, "* * * the defendants and each of them were negligent and the vessel was unseaworthy in that, * *."

The defendant N. V. Stoomvaart Maatschappij "Nederland", a corporation, erroneously sued as Nedlloyd Lines, on April 8, 1959, filed a petition for removal which alleged in part, "That defendants `Does I to V, inclusive,' herein have been fraudulently joined as defendants for the purpose of preventing removal;". This allegation was not controverted by plaintiff until January 24, 1961, and then in a memorandum filed in support of the motion to amend his complaint.

On April 15, 1959, plaintiff filed a demand for trial by jury. On May 29, 1959, plaintiff filed his first amended complaint. Does I to V did not appear in the title of the first amended complaint. In lieu thereof, the term "et al." was used. Paragraph III of the original complaint was repeated. However, the language in paragraph VI was changed to read, "* * * at said time and place, the defendant was negligent in that, * * *."

The amended complaint alleged negligence of defendant in the first count, and that the vessel was unseaworthy in the second count.

On March 15, 1960, defendant filed the third-party complaint herein under Fed.R.Civ.P. 14. It sought indemnity from City of Los Angeles and San Pedro Tug Boat Co. The third-party complaint alleges that third-party plaintiff employed the City of Los Angeles to perform the services of docking master and to direct the operation of undocking third-party plaintiff's vessel from its berth at Wilmington, California and that pursuant thereto a pilot employee of the City of Los Angeles performed the service. The third-party complaint further alleges that third party plaintiff engaged the services of the San Pedro Tug Boat Co. to supply a tug to assist in the undocking of the vessel. The third-party complaint alleges that the injuries to plaintiff and the breaking of the forward spring line were caused by the negligence of the third-party defendants.

On July 27, 1960, plaintiff filed a notice of motion for an order permitting him to file a second amended complaint. A copy of the proposed second amended complaint attached to the notice of motion, names City of Los Angeles and San Pedro Tug Boat Co. as defendants, and also seeks to amend paragraph VI of the first amended complaint to read, "* * * the defendants and each of them were negligent in that, * * *."

If the motion to amend were granted, the case would have to be remanded to the state court for lack of diversity inasmuch as the third-party defendants sought to be named as defendants are both citizens of California.

By order of court on December 20, 1960, leave to amend was denied on the ground that the statute of limitations had run against the cause of action alleged in the proposed second amended complaint against the new defendants. This order was vacated upon the court's own motion, and the motion to file the proposed second amended complaint was re-submitted. All parties were requested to file briefs. The purpose of the resubmission was to determine whether or not the doctrine of laches applied rather than the statute of limitations.

Preliminarily, there seems to be no question that plaintiff is not in a category which would allow him to...