Mylonakis v. Georgios M.

• Decision Date: 14 May 2013
• Docket Number: CIVIL ACTION NO. H-10-3031
• Parties: IOANNIS MYLONAKIS, Plaintiff, v. THE M/T GEORGIOS M., her engines, tackle, etc., in rem; STYGA COMPANIA NAVIERA S.A.; HELFORD MARINE INC.; KYRIAKOS MAMIDAKIS; NIKOLAOS A. MAMIDAKIS; ALEXANDROS N. MAMIDAKIS; and ALEXANDROS G. PROKOPAKIS, Defendants.
• Court: U.S. District Court — Southern District of Texas

IOANNIS MYLONAKIS, Plaintiff,

v. THE M/T GEORGIOS M., her engines, tackle, etc., in rem;STYGA COMPANIA NAVIERA S.A.; HELFORD MARINE INC.; KYRIAKOS MAMIDAKIS;NIKOLAOS A. MAMIDAKIS; ALEXANDROS N. MAMIDAKIS; and ALEXANDROS G. PROKOPAKIS, Defendants.

CIVIL ACTION NO. H-10-3031

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

SIGNED: May 14, 2013

MEMORANDUM OPINION AND ORDER

Pending before the court are Plaintiff's Motion to Amend Original Complaint to Restate Jurisdictional Basis and Jury Trial Demand (Docket Entry No. 134) and plaintiff's Motion for Leave to File Supplemental Complaint (Docket Entry No. 152). For the reasons stated below, both motions will be granted and all the claims asserted in this action will be tried to a jury.

I. Background

The factual background underlying the claims asserted in this action is described in the Memorandum Opinion and Order (Docket Entry No. 129) entered on December 4, 2012.¹ Plaintiff initiallyfiled suit on August 24, 2010, against the M/T GEORGIOS M., her engines, tackle, etc., in rem ("the Vessel"); STYGA Compania Naviera S.A. ("STYGA"), Helford Marine Inc. ("Helford"), Kyriakos Mamidakis, Emmanuel A. Mamidakis, Nikolaos A. Mamidakis, Alexandros N. Mamidakis (collectively, "the Mamidakis Defendants"), and Alexandros G. Prokopakis, asserting claims for violation of the Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1910, general maritime claims for unseaworthiness, negligence, intentional misrepresentation, breach of the duty to defend, maintenance and cure, double wages under 46 U.S.C. § 10313, and pendent state law claims for malicious prosecution, breach of fiduciary duty, and gross negligence.² The caption to the plaintiff's Original Verified Complaint stated "Admiralty Jury Trial,"³ and under the heading "Subject Matter Jurisdiction," the plaintiff stated:

This is an admiralty and maritime law claim within the meaning of Rule 9 (h) of the Federal Rules of Civil Procedure. Jurisdiction exists pursuant to the admiralty and maritime jurisdiction of the United States Courts as provided under 28 U.S.C. § 1333. Subject matter jurisdiction in admiralty is also specifically founded on the provisions of 33 U.S.C. § 1910; and 46 U.S.C. § 10313. The Court has also pendent jurisdiction over Plaintiff's state law claims because they arise from the same common nucleus of operative facts as the statutory and general maritime law claims.⁴

On November 17, 2011, defendants filed a Motion to Strike Plaintiff's Jury Demand (Docket Entry No. 67), and on December 5,2011, plaintiff responded by filing his Response in Opposition to Defendant's Motion to Strike Jury Demand (Docket Entry No. 68). Plaintiff opposed defendants' motion to strike his jury demand by arguing that

[a]part from the maritime law claims, designated as such with reference to Rule 9(h) admiralty jurisdiction, the Verified Complaint pleads two additional discrete categories of claims, i.e.: non-maritime state-law claims, pendent to the Court's federal question and admiralty jurisdictions; and claims arising under statutes of the United States, and within the Court's federal question jurisdiction.

Plaintiff is entitled to trial by jury of these non-admiralty claims. It is consistent with Fifth Circuit Court of Appeals practice as stated in Luera v. M/V Alberta, 635 F.3d 181, 192 (5th Cir. 2011), in these circumstances, for the admiralty and non-admiralty claims to be tried together in one jury trial for reasons of judicial efficiency and the fair administration of justice, which override the historic tradition of trying admiralty claims to the bench. Assuming arguendo, if by reason of his invocation of Rule 9(h) admiralty jurisdiction, Plaintiff has confounded his right to have the jury trial he demands; it is respectfully submitted that he should be allowed to amend the Verified Complaint to restore it, particularly since Defendants have not been and would not be, in any way, prejudiced thereby.⁵

Plaintiff explained that the defendants' motion to strike his demand for a jury

ignored those portions of the Verified Complaint which specifically plead: (1) the Court's pendent jurisdiction over state common law claims; and (2) the court's federal question jurisdiction (28 U.S.C. § 1331) over federal statutory claims — in this instance the Act to Prevent Pollution from Ships. These are two of the threejurisdictional foundations, of Plaintiff's claims, the third being the admiralty jurisdiction of the Court.⁶

At the status conference held on December 29, 2011, the court granted defendants' motion to strike plaintiff's jury demand,⁷ and denied plaintiff's motion to amend without prejudice explaining:

This case has been pending for 15 months. The deadline for amendments to pleadings has long passed. There are many pending dispositive motions. Considerable discovery has been completed, and the Court hopes to try the case this summer. That is the summer of 2012.

Moreover, plaintiff has not even submitted a copy of his proposed amended complaint. However, after the Court has ruled on the pending motions to dismiss and for summary judgment, the case -- the scope of the case may change. There may be fact issues that will be more suitable for a jury to decide. Plaintiff may therefore seek to amend the basis for jurisdiction in his complaint within 20 days after the Court rules on all of the pending dispositive motions.⁸

On December 4, 2012, the court entered a Memorandum Opinion and Order (Docket Entry No. 129) that disposed of the pending motions.⁹ The court dismissed for lack of personal jurisdiction all the claims asserted against the individual defendants, i.e., the Mamidakis Defendants and Alexandros G. Prokopakis, and the claim for intentional misrepresentation asserted against STYGA and Helford. The court also granted defendants' motions for summary judgment on plaintiff's claims for violation of the APPS, 33U.S.C. § 1910, and for malicious prosecution and breach of the duty to defend in violation of Texas law. As a result of the December 4, 2012, Memorandum Opinion and Order the remaining defendants are the Vessel, STYGA, and Helford; and the remaining claims are general maritime claims for unseaworthiness, maintenance and cure, negligence, and statutory claims for double wages under 46 U.S.C. § 10313, and Texas common law claims for breach of fiduciary duty and gross negligence.¹⁰

On December 21, 2012, the court held a scheduling conference at which plaintiff was granted until January 18, 2013, to file a motion to seek a jury trial on his pendent state law claims.¹¹ On January 18, 2013, plaintiff filed a Motion to Amend Original Complaint to Restate Jurisdictional Basis and Jury Trial Demand ("Plaintiff's Motion to Amend") (Docket Entry No. 134). Citing Fitzgerald v. United States Lines Co., 83 S.Ct. 1646 (1963), .plaintiff argues that the remaining claims may all be tried to a jury because his claim for penalty wages under 46 U.S.C. § 10313 provides federal question jurisdiction. Alternatively, plaintiff argues that he is entitled to a jury trial on his pendent state law claims.

On May 6, 2013, plaintiff filed his Motion for Leave to File Supplemental Complaint (Docket Entry No. 152), in which plaintiff seeks leave to supplement his Original Verified Complaint by

add[ing] a tenth count that will allow him to add an additional heading of damages arising from and relating to the events that form the basis of his original complaint founded, however, on new developments in the condition of [his] health which has deteriorated, worsened, and recently required him to undergo major surgery.¹²

II. Standard of Review

Rule 15(a) provides that "the court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). "A decision to grant leave [to amend] is within the discretion of the court, although if the court 'lacks a substantial reason to deny leave, its discretion is not broad enough to permit denial.'" State of Louisiana v. Litton Mortgage Co., 50 F.3d 1298, 1302-03 (5th Cir. 1995) (quoting Jamieson By and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985)). Rule 15(a) provides "a strong presumption in favor of granting leave to amend." Financial Acquisition Partners, LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006). Nevertheless, "[d]enial of leave to amend may be warranted for undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of a proposed amendment." United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010) (citing Foman v. Davis, 83 S.Ct. 227, 230 (1962)).

III. Motion to Amend to Restate JurisdictionalBasis and Reassert Jury Demand

Plaintiff seeks leave to file a First Amended Verified Complaint in order

to clarify which claims arise under admiralty jurisdiction; which ones are statutory; and which ones are based on state law and under the Court's supplemental jurisdiction, with specific reference to the respective sections of 28 U.S.C. §§ 1331, 1333 and 1367. Plaintiff has also amended paragraphs 95 and 131 of the complaint to specifically allege the basis of the court's supplemental jurisdiction tracking the language of 28 U.S.C. § 1367.¹³

The Proposed First Amended Verified Complaint alleges the following basis for subject matter jurisdiction:

The jurisdiction of the Court over Plaintiff's claims is based: (1) on 28 U.S.C. § 1331 as to the statutory claim of Count one i.e. Defendants' violations of the Act to Prevent Pollution from Ships (33 U.S.C. § 1910 et seq.), and as to the statutory claim of Count Seven for penalty wages (46 U.S.C. § 10313); (2) on 28 U.S.C. § 1333 as to Counts Two, Three, Four, Five, and Six, and Seven which are admiralty and maritime law claims; and (3) on 2 8 U.S.C. § 1367 as to the state law claims of Counts Eight and Nine, which are based on the laws of the State of Texas, over

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