Kelly v. Hoegh Autoliners Shipping PTE, LTD.
| Decision Date | 12 June 2020 |
| Docket Number | Civil Action No. 2:18cv8599 ES-SCM |
| Parties | BARBARA KELLY f/k/a BARBARA KENNEDY, and ALFATAH KENNEDY, Plaintiffs, v. HOEGH AUTOLINERS SHIPPING PTE, LTD., HOEGH AUTOLINERS, INC., HOEGH AUTOLINERS SHIPPING AS, and/or HOEGH AUTOLINERS MANAGEMENT AS, as owner of the vessel Hoegh Masan voy. 66, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
OPINION & ORDER[D.E. 41]
Before this Court is defendant Hoegh Autoliners Shipping PTE, LTD's ("Hoegh PTE") motion to dismiss for insufficient process, insufficient service of process, and lack of personal jurisdiction.1 Plaintiffs Barbara Kelly and her husband Alfatah Kennedy (together, "the Kennedys") oppose and informally request additional time for discovery and service of process. For the reasons set forth herein, the Kennedys' informal motion for additional time for service of process and time for jurisdictional discovery are granted. Hoegh PTE's motion to dismiss isadministratively terminated without prejudice to refiling after completion of jurisdictional discovery.
I. BACKGROUND AND PROCEDURAL HISTORY
On October 18, 2015, Barbara Kennedy was injured while working as a harbor worker for Ports America, Inc. aboard the Motor Vessel Hoegh Masan Voy. 66 ("the Vessel") while it was docked in Port Newark, New Jersey.2 As a result of these injuries, she and her husband brought this action pursuant to the Longshore and Harbor Workers' Compensation Act ("LHWCA")3 against Hoegh PTE, Hoegh Autoliners Shipping ("Hoegh Shipping"), Hoegh Autoliners, Inc. ("Hoegh Autoliners"), and Hoegh Autoliners Management AS ("Hoegh Management").4
It is not disputed that Hoegh PTE, a Singapore corporation, is the title owner of the Vessel.5 The Kennedys allege that Hoegh PTE or one of the other Hoegh entities was in possession or control of the Vessel at the time of her injury.6 It was Hoegh PTE's practice to tie down vehicles being transported across the ocean.7 The Vessel's crew was responsible for removing the tie downs and stowing them before the stevedores boarded to remove the vehicles.8 Mrs. Kennedy tripped and fell over a tie that was not properly stowed before she boarded to move vehicles.9
The Second Amended Complaint was filed with the consent of the parties.10 The Hoegh Defendants answered on the same date11 and the parties stipulated to the dismissal of Hoegh Autoliners, Hoegh Shipping, and Hoegh Management.12 An order dismissing those parties with prejudice was entered on June 19, 2019, leaving Hoegh PTE as the sole remaining defendant.13
On November 11, 2019, Hoegh PTE moved to dismiss.14 The Kennedys have opposed.
Magistrate judges may ready dispositive motions for resolution by report and recommendation, but are authorized to decide any non-dispositive motion designated by the Court.15 This District blanketly specifies that magistrate judges may determine all non-dispositive pre-trial motions.16 Non-dispositive motions include motions for jurisdictional discovery17 and motions for extension of time for service of process.18
III. LEGAL STANDARD AND ANALYSIS
This action concerns claims by a harbor worker for negligence against the title owner of the vessel on which she was injured.19 The LHWCA provides in pertinent part:
(b) In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person ... may bring an action against a vessel as a third party....20
The Act did not "specify the acts or omissions of the vessel that would constitute negligence," the bounds of a vessel's duty are "left to be resolved through the 'application of accepted principles of tort law and the ordinary process of litigation."21
Shipowners owe a duty to exercise ordinary care in turning over a vessel to the stevedoring contractor.22 This includes a duty to "warn of latent defects in the cargo stow and cargo area" of "hazards that are not known to the stevedore and that would be neither obvious to nor anticipated by a skilled stevedore in the competent performance of its work."23 For these reasons, the turn over duty is "narrow when the alleged defect occurs in the cargo stow or cargo area (an area typically within the purview of the stevedores)...."24
A vessel owner, however, will not have liability if the vessel was within the possession and control of a bareboat charterer.25 A "bareboat charterer" (a/k/a demissee or owner pro hac vice) is one who assumes "full possession and control of" a vessel in "bare" condition for a period of time and provides a crew to navigate and maintain it in seaworthy condition.26 "It has long been recognized in the law of admiralty that... the bareboat charterer is to be treated as the owner" and is "personally liable for the unseaworthiness of a chartered vessel...."27 "Because the bareboat charterer stands in the shoes of the owner, the bareboat charterer assumes the duties and responsibilities appurtenant to ownership, and the owner is relieved of the same."28
Conversely, a "time charterer" obtains use of a vessel for a fixed charter period during which the vessel owner (or owner pro hac vice) retains control of the vessel.29 If there is a dispute whether a charter is a bareboat or a time charter, a time charter "is presumed to exist as a matter of law and such presumption may be overcome only by specific facts showing a demise charter existed."30
A. Insufficient Process & Insufficient Service of Process
A court obtains personal jurisdiction over a defendant through the filing of a complaint, issuance of a summons by the clerk of court, and effective and timely service of the summons and complaint on the defendant.31 The plaintiff must therefore obtain a summons from the clerk of court for the court to obtain jurisdiction over a defendant.32 "The failure of a plaintiff to obtain valid process from the court to provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff's case."33
A defendant may move to dismiss on grounds of insufficient process.34 Such motions challenge the absence or form of process rather than the method of service. The Federal Rules require the plaintiff have the summons and complaint served upon the defendant within 90 days, otherwise:
the court ... shall dismiss the action without prejudice ... or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.35
The Kennedys failed to comply with the Federal Rules by not obtaining a summons. They failed to correct that error within the 90 days allowed. Then, even in the face of Hoegh PTE's motion to dismiss they doubled down by making no effort to comply with Rule 4. Plaintiffs areresponsible for service and bear the burden of proving sufficient service of process.36 The 90-day service period began on June 13, 2019 when Hoegh PTE was added to the case.37 That deadline expired on September 12, 2019. The Kennedys admit that they have not served Hoegh PTE.
The Kennedys argue that Hoegh PTE waived service by consenting to the filing of their pleading and appearing in the case. Insufficient process and insufficient service of process are waived if, not either asserted by motion before a responsive pleading or if not preserved in the defendant's answer.38 The defense is not waived by a defendant because it appeared in the case, engaged in discovery, attended scheduling conferences, and consented to the filing of an amended pleading.39 The Court finds that Hoegh PTE has not waived its insufficient process or insufficient service of process defenses.
The Court must now determine whether dismissal or an extension to serve is most appropriate. An extension must be granted if the plaintiff has shown good cause for the delay.40 Here, the Kennedys point only to their reliance upon counsel's belief that service was not requiredbecause Hoegh PTE entered an appearance in the case. The Third Circuit has been clear that inadvertence, "half-hearted" efforts, and misplaced reliance does not constitute good cause.41 The Court therefore does not find good cause for the Kennedys' six-month delay.
Nonetheless, even absent good cause, courts "must consider whether any other factors warrant extending time [for service]."42 Those factors include "(1) actual notice of the action; (2) prejudice to the defendant; (3) statute of limitations; (4) conduct of the defendant; (5) whether the plaintiff is represented by counsel; and (6) any other relevant factor."43
This case is similar to Fehl v. Manhattan Ins. Grp., wherein the plaintiff risked dismissal of its case due to its failure to serve a summons on the defendant company.44 Like the Kennedys, the Fehl plaintiff argued in favor of waiver based on the defendant company having entered an appearance in the case.45 The Fehl Court determined that filing an appearance in a case alone does not excuse a plaintiff from executing proper service on defendants.46 However, the Court in Fehlgranted an extension of time for the plaintiff to serve the defendant company with a summons where, as is also the case here, the length of the delay was approximately 6 months and was based on the plaintiff's mistaken, but not completely unreasonable, belief that the defendant company waived its objection.47 Although incorrect, the Kennedys' reliance is understandable.
First, the filing of the Second Amended Complaint was done on consent by all parties, including counsel for the remaining defendant - Hoegh PTE.48 Second, the corporate entities who have been dismissed from this case and Hoegh PTE are related entities, thereby increasing the likelihood of confusion. Additionally, although the three year statute of limitations for maritime torts has run in this case,49 Hoegh PTE has known about this litigation as reflected in its inclusion in the Answer- filed in response to the...
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