Mackensworth v. S.S. American Merchant
| Decision Date | 16 June 1994 |
| Docket Number | D,No. 568,568 |
| Citation | 28 F.3d 246 |
| Parties | Richard J. MACKENSWORTH, Plaintiff-Appellant, v. S.S. AMERICAN MERCHANT, Defendant-Appellee. ocket 93-7616. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard J. Mackensworth, pro se.
Philip S. LaPenta, Healy & Baillie, New York City, for defendant-appellee.
Before OAKES, KEARSE and CARDAMONE, Circuit Judges.
Appellant, pro se, Richard J. Mackensworth, was a seaman serving aboard the S.S. American Merchant, when, in June 1981 he suffered a back injury aboard the vessel. One day short of three years later he commenced a personal injury action under Admiralty Law against his employer and the S.S. American Merchant in the District of New Jersey. The institution of this now ten-year-old suit created a procedural morass, which at one time required Mackensworth to litigate his claim in the Northern District of California. After the Northern District of California disposed of the complexities of the admiralty proceedings before it, and after unsuccessful appeals to the Ninth Circuit Court of Appeals, appellant's claims were transferred, at his suggestion, to the Southern District of New York (Ward, J.).
Acting as his own lawyer, Mackensworth then proceeded to contest subject matter jurisdiction in the Southern District. The district court, under the circumstances, dismissed for lack of subject matter jurisdiction what appears to be a viable cause of action for a $44,000 back injury claim. We reverse.
This case began its long, somewhat confusing voyage ten years ago on June 12, 1984 when Mackensworth, appearing pro se, filed a personal injury action in personam against United States Lines, Inc. (U.S. Lines), his employer, and also filed suit in rem against the S.S. American Merchant (AMERICAN MERCHANT), a vessel U.S. Lines had chartered. Venue was laid in the United States District Court for the District of New Jersey in both actions in which Mackensworth alleged injuries to his back as a result of work he performed on June 13, 1981 as a boatswain on the AMERICAN MERCHANT. Although plaintiff's employer U.S. Lines had the AMERICAN MERCHANT under charter, legal title to the vessel was held by Continental Illinois National Bank and Trust Company of Chicago (Continental Bank), as owner trustee.
When, on November 24, 1986, U.S. Lines filed a petition in bankruptcy in the Southern District of New York, Mackensworth's action against his employer was stayed. Subsequently, Sea-Land Services, Inc. (Sea-Land) obtained the right to purchase the vessel, and later was assigned all of the ownership rights, including any and all of the recovery from a judicial sale of the vessel. On September 23, 1987 the United States brought an admiralty action in rem to foreclose a First Preferred Ship Mortgage it held on the AMERICAN MERCHANT. The action was brought in the United States District Court for the Northern District of California because that was where the ship was then located. Ultimately, the vessel was sold and the proceeds deposited in the registry of the Northern District of California as a substitute res for the ship. After Mackensworth was relieved from the bankruptcy stay, he was permitted to intervene in the admiralty foreclosure proceeding asserting his in rem claim against the AMERICAN MERCHANT, alleging damages in the amount of $44,000. Because there were sufficient funds to satisfy all of the intervenors' claims, the district court satisfied the mortgage claim of the United States and established a reserve for the remaining intervenors' claims.
Subsequently, Sea-Land, now the owner of all the interests in the AMERICAN MERCHANT, moved to transfer Mackensworth's claim from the Northern District of California to the District of New Jersey, pursuant to 28 U.S.C. Sec. 1404(a) (1988). In addition, Sea-Land sought authority to post substitute security for the res pursuant to Rule E(5)(a) of the Fed.R.Civ.P. Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules). Its reason for requesting it be allowed to post substitute security was because the reserve in the registry of the Northern District of California was in excess of the amount required to pay the remaining claims against the res. In exchange for payment of the insurance deductible On July 10, 1989 appellant filed a pleading styled as a "Notice of Joinder" in the Northern District of California, in which he attempted to join to his intervening in rem complaint a new claim--a claim that is unrelated to his June 13, 1981 back injury cause of action. The proposed new claim, also asserted against the AMERICAN MERCHANT, was for alleged respiratory injuries he sustained on December 31, 1982, while employed by U.S. Lines. Sea-Land opposed the "Notice of Joinder" on the grounds that the new claim was time barred under 46 U.S.C.App. Sec. 763a (1988) because it was not filed within the three year statute of limitations for recovery of damages arising out of a maritime tort.
in the amount of $18,000, out of the reserve that would ultimately be due Sea-Land, Transport Mutual Services Inc. (Transport Mutual), as agent for the United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited, the indemnity insurer of the AMERICAN MERCHANT, agreed to provide a Letter of Undertaking as substitute security for the lien asserted by Mackensworth in his in rem action. Mackensworth opposed the motion to transfer his claim to the District of New Jersey, but suggested instead that a transfer to the Southern District of New York would be "much more convenient, less expensive, and [would] better serve[ ] the interest of justice."
The district court treated the "Notice of Joinder" as a motion to amend, and denied it as futile because the "proposed amendment would not 'relate back' to the original complaint, as it [did] not arise out of the same 'conduct, transaction, or occurrence set forth in the original pleading' as required by Fed.R.Civ.P. 15(c)." It concluded that Mackensworth's action should be transferred to the Southern District of New York as it would be "a more convenient forum for the parties and witnesses." This transfer was contingent upon Transport Mutual posting a Letter of Undertaking in the Northern District of California to serve as substitute security for the res pursuant to Supplemental Rule E(5)(a).
On August 11, 1989 Transport Mutual filed the Letter of Undertaking that agreed to pay Mackensworth up to $44,000 were he to be successful in his personal injury action. Transport Mutual also agreed to file a bond in accordance with Supplemental Rule E(5). The Northern District then ordered Mackensworth's action transferred to the Southern District of New York, and directed partial disbursement of the remaining proceeds of the vessel, retaining only $65,000 to satisfy other outstanding claims. On August 1, 1990, after all remaining claims in the Northern District of California had been satisfied, the remaining res representing the AMERICAN MERCHANT was disbursed to its owner, Sea-Land.
On October 1, 1990 Mackensworth appealed the August 1, 1990 disbursement order to the Ninth Circuit Court of Appeals, contesting not only the transfer of his personal injury action to the Southern District of New York, but also various interlocutory orders made by the Northern District of California during distribution of the vessel's proceeds. In a memorandum decision, the Ninth Circuit dismissed the appeal for lack of subject matter jurisdiction, stating that the appeal was moot as to the distribution of the res because Mackensworth had not moved for a stay of distribution of the proceeds prior to the district court's order becoming final. See United States of America v. S.S. American Merchant, No. 90-16412, 1992 WL 37386, at * 2, 1992 U.S.App. LEXIS 4017, at * 5-6 (9th Cir. Feb. 27, 1992). In addition, the Ninth Circuit declined to review appellant's contentions concerning the transfer of his action to the Southern District of New York, the denial of his motion to enjoin U.S. Lines and Sea-Land from defending against his complaint in intervention, or the denial of his motion to amend a complaint as these were unappealable interlocutory orders. See id. at * 2-3, 1992 U.S.App. LEXIS 4017, at * 8-9. It also refused to consider Mackensworth's appeal regarding the transfer order as a writ of mandamus because Mackensworth had already sought a writ of mandamus that had previously been denied. See id. at * 3, 1992 U.S. LEXIS 4017, at * 9.
Meanwhile, on September 28, 1989, upon receipt of Mackensworth's files from the Northern District of California, the Southern On November 16, 1992 appellant moved for a default judgment against defendant. By order entered February 17, 1993 Judge Ward restored the case to the active docket, denied Mackensworth's motion and directed him to appear at a deposition to be held on March 10, 1993. Although Mackensworth appeared, he failed to take part in the deposition. Defendant then moved for dismissal and for sanctions, which the district court denied. In Mackensworth's reply to defendants' motion to dismiss and for sanctions, he stated "PLAINLY, THIS COURT (SDNY) DOES NOT HAVE SUBJECT MATTER JURISDICTION, AND NEVER DID/HAS" (emphasis in original).
District of New York issued an order filing the case in that district, and on December 15 it issued a scheduling order instructing the parties to complete discovery by February 15, 1990 on pain of dismissal. On February 28, 1990 the AMERICAN MERCHANT moved to dismiss Mackensworth's complaint in intervention because he failed to appear for a scheduled deposition. On March 28, 1990 Judge Ward placed Mackensworth's case on the suspense docket pending resolution of the above mentioned application for writ of mandamus submitted to the Ninth Circuit.
In a memorandum decision and order entered May 10, 1993 the district court dismissed the...
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