Strauss v. Douglas Aircraft Co.

• Decision Date: 12 December 1968
• Docket Number: No. 192,Docket 32620.,192
• Citation: 404 F.2d 1152
• Parties: Kurt STRAUSS, Appellant, v. DOUGLAS AIRCRAFT CO., Appellee.
• Court: U.S. Court of Appeals — Second Circuit

404 F.2d 1152 (1968)

Kurt STRAUSS, Appellant, v. DOUGLAS AIRCRAFT CO., Appellee.

No. 192, Docket 32620.

United States Court of Appeals Second Circuit.

Argued November 20, 1968.

Decided December 12, 1968.

Stanley B. Gruber, New York City (Freedman, Borowsky & Lorry, Greenhill & Speyer, New York City, on the brief), for appellant.

Frederic L. Atwood, New York City (James J. Sentner, Jr., Haight, Gardner, Poor & Havens, New York City, on the brief), for appellee.

Before KAUFMAN and ANDERSON, Circuit Judges, and TENNEY, District Judge.^*

IRVING R. KAUFMAN, Circuit Judge:

The dilemma to be resolved by us is how to strike a proper balance between the interest of Fed.R.Civ.P. 15(a) that leave to amend a pleading "shall be freely given when justice so requires," and the possible prejudice to other parties resulting from such amendment.

Kurt Strauss appeals from a final judgment in favor of Douglas Aircraft Co. now known as McDonnell Douglas Corp. and hereinafter referred to as Douglas after a trial before Judge Metzner and a jury in the Southern District of New York. He rests his claim, in part, upon a pre-trial order by Judge Tyler which belatedly allowed Douglas to amend its answer to Strauss' complaint in order to raise a defense based on California's Statute of Limitations. He also appeals from Judge Metzner's denial of his motion for a judgment notwithstanding the verdict and from various evidentiary rulings. Strauss' action, over which we have diversity jurisdiction, asserted that because of its faulty seat belt assembly in the airplane, Douglas was responsible for damages by reason of negligence, breach of warranty, and strict liability in tort.

I. THE FACTS

A. The Accident

Strauss, a paper products manufacturer from Coatesville, Pa., was a frequent air traveller, primarily for business purposes. On May 12, 1960, he boarded a DC-8 jet aircraft, built by Douglas and owned by Delta Airlines Inc. hereinafter Delta for a flight from Chicago, Ill. to Miami, Fla. At the trial, Strauss testified that he fastened the belt upon being seated and left it fastened during the trip, as was his custom. Within a few moments after boarding he fell asleep and when he opened his eyes again, approximately a half hour before the plane landed in Miami, he saw a physician (a fellow passenger) bending over him and informing the stewardess that Strauss would require surgery. It seems that the plane had encountered severe air turbulence over Florida and a down draft had caused it to drop precipitously. Because of this, Strauss was hurled out of his seat and struck his head on the acoustical ceiling above his seat.

Strauss' claim is grounded on his contention that the injury was caused by a defect in the "passenger seat belt cable disconnect assembly" hereinafter cable assembly, which is designed to attach the cloth webbing portion of the belt to the frame of the seat structure. He alleged that this cable assembly, manufactured by Douglas, was rended in the downdraft, thus bringing about the buffeting he received.¹

The aircraft in question, was designed and manufactured by Douglas at its Long Beach, Calif. plant and delivered to Delta there (it was also sold in California) on November 4, 1959, approximately six months before the accident. At that time, the Douglas DC-8 was a relatively new plane; not one had logged more than 1860 hours of flight experience before the date of the accident. The faulted plane in this case had accumulated only 1362 flight hours and Strauss maintains that this was the first seat belt failure to occur in any DC-8.²

B. The Litigation

The peripatetic history of this litigation illustrates the difficulties Strauss has encountered in having the merits of his claim against Douglas heard by a court. Strauss first commenced an action on Dec. 7, 1961 in the Eastern District of Pennsylvania EDPA against both Douglas and Delta. On Douglas' motion, it secured a dismissal from this suit on the ground that it was not amenable to service of process within that jurisdiction. While Douglas' motion was pending, Strauss filed suit against Douglas and Delta in Delaware since Douglas was a Delaware corporation. This action fell too because it was time-barred as against Douglas under the applicable one year Delaware Statute of Limitations. The claim against Delta was eventually withdrawn.

Accordingly, Strauss commenced the instant action solely against Douglas on April 6, 1962 in the Southern District of New York SDNY.³

Douglas served its original answer in the southern district action on May 14, 1962 and, after being granted five extensions of time while he pursued his EDPA litigation against Delta, Strauss filed a statement of readiness and note of issue in the SDNY action on May 13, 1965; a pretrial memorandum was served on Douglas in April, 1966. The EDPA suit, to which Strauss pinned his primary hopes of recovery, lumbered its way to trial in January, 1966 and resulted in a jury verdict and judgment in favor of Delta. Essentially, Delta's defense was that the cable assembly was a new innovation in the DC-8 and that the airline's routine safety precautions and inspections had failed to disclose any defects. Thus the EDPA trial did not foreclose, even by implication, Douglas' possible liability.

On May 12, 1966, four years after the complaint was filed in SDNY, Douglas sought leave to move to amend its answer to present — for the first time in the course of the litigation — its defense that California's one year Statute of Limitations on actions in implied warranty barred Strauss' cause of action in warranty or strict tort liability. The California law was applicable, it was argued, because that was the state in which the plane was sold and delivered to Delta — the state where Strauss' cause of action accrued. Judge Tyler granted leave to amend, over Strauss' vigorous opposition, on August 10, 1966. The SDNY trial commenced on April 8, 1968, at which time Judge Metzner felt obliged to follow Judge Tyler's order. After a two week trial devoted entirely to the issue of negligence, the jury returned a verdict for Douglas, and judgment was entered upon the verdict dismissing the action.

II. AMENDMENT OF THE PLEADINGS

A. Leave to Amend to Be Freely Given, Absent Substantial Prejudice

Fed.R.Civ.P. 15(a) requires that leave to amend the pleadings be granted freely "when justice so requires." At the same time, it is clear that such leave should be denied where the amendment would cause substantial prejudice to a party to the action. See Middle Atlantic Utilities Co. v. SMW Devel. Corp., 392 F.2d 380, 384 (2d Cir. 1968); United States v. 47 Bottles, More or Less, 320 F.2d 564, 573 (3d Cir. 1963), cert. denied, Schere v. United States, 375 U.S. 953, 84 S.Ct. 444, 11 L. Ed.2d 313; 1A Baron & Holtzoff, Federal Practice and Procedure (Wright ed. 1960) § 442; 3 Moore, Federal Practice ¶ 15.08 2. It seems to require little argument that where the party seeking to amend wishes to raise a defense of limitations long after the answer was first filed, a court would be remiss if it did not carefully balance the effects of such action for it is manifest that risk of substantial prejudice increases in proportion to the length of defendant's delay in seeking the amendment. That this maxim has substance is apparent from Strauss' argument that if the Statute of Limitations had been promptly raised, he could have undertaken various protective measures to avoid being frozen out completely, such as discontinuing this action and renewing it in another appropriate jurisdiction where it would not be time barred. See Ricciuti v. Voltarc Tubes, 277 F.2d 809 (2d Cir. 1960); Klee v. Pittsburgh & W. V. R. R., 22 F.R.D. 252 (W.D.Pa.1958). Moreover, we note that the Statute of Limitations is an affirmative or so-called "personal privilege" defense which may be waived if not promptly pleaded, Fed.R.Civ.P. 8(c); Wagner v. Fawcett Pub., 307 F.2d 409 (7th Cir. 1962), cert. denied 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718; Basko v. Winthrop Laboratories, 268 F.Supp. 26 (D.Conn.1967); Smith v. Ins. Co. of North America, 30 F.R.D. 540, 542 (M.D. Tenn.1962). See also Twentieth Century Fox v. Goldwyn, 328 F.2d 190, 214-215 (9th Cir. 1964), cert. denied 379 U.S. 880, 85 S.Ct. 143, 13 L.Ed.2d 87. In sum, the party wishing to raise the defense is obliged to plead the Statute of Limitations at the earliest possible moment. Certainty of success is not an essential element in determining whether to set forth the affirmative defense in a pleading. If the defense lurks in the case, vacillation can cause the other party irreparable injury.

B. Douglas Should Have Pleaded the Statute of Limitations Earlier

We are of the view that Douglas should have raised the limitations defense in its original answer. Strauss' complaint, contrary to Douglas' argument, clearly apprised Douglas that his action would be based at least in part on the doctrine of implied warranty. Paragraph 6 of the complaint not only plainly refers to "breach of warranty" but utilizes the distinctive language of implied warranty claims — that the belts were "safe for the purposes for which they were intended to be used." Compare Uniform Commercial Code § 2-314(2) (c). Moreover, in response to an interrogatory posed by Douglas, Strauss, on October 28, 1963, explicitly informed Douglas that he was claiming that it had breached its implied warranty.

In moving to amend, Douglas attempted to excuse its long delay by arguing that it did not believe it could prevail on the limitations question until the decision in George v. Douglas Aircraft Co., 332 F.2d 73 (2d Cir. 1964), cert. denied 379 U.S. 904, 85 S.Ct. 193, 13 L.Ed.2d 177 noted in 78 Harv.L.Rev. 881 (1965) was filed. George, Douglas claims, signaled a radical change in this court's interpretation of the choice of law rules relating to Statutes of Limitations in implied warranty actions.⁴ Until George, Douglas claims, the traditional rule of...