Whittaker v. Vane Line Bunkering, Inc.
| Decision Date | 27 November 2018 |
| Docket Number | 1:18-CV-00539 (MAD/DJS) |
| Parties | FRANK WHITTAKER, Plaintiff, v. VANE LINE BUNKERING, INC., individually and doing business as VANE BROTHERS, VANE BROTHERS COMPANY, THE VESSEL DBL-25, DANN OCEAN TOWING, INC., and THE VESSEL RUBY M, Defendants. |
| Court | U.S. District Court — Northern District of New York |
STEVEN M. MELLEY, ESQ.
JAMES E. FORDE, ESQ.
EDWARD P. FLOOD, ESQ.
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this action on April 4, 2018 against Vane Line Bunkering, Inc., Vane Brothers Company, the Vessel DBL-25, Dann Ocean Towing, Inc., and the Vessel Ruby M (collectively, "Defendants"). Plaintiff alleges violations of the Jones Act (46 U.S.C. § 30104), the General Maritime Law (including The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b)), New York Labor Law § 200, et seq., and common law negligence claims. See Dkt. No. 2. Additionally, the Complaint discusses an executed arbitration agreement between the parties that, in Plaintiff's opinion, should be voided. See id. at ¶¶ 49-53.
Presently before the Court is Plaintiff's unopposed Motion to File and Serve a Second Amended Verified Complaint and to Vacate the Notice of Removal. See Dkt. No. 14. For the following reasons, that motion is granted.
Plaintiff was an employee of Vane Line Bunkering, Inc. and Vane Brothers Company (collectively, "Vane"), where he worked as a crew member on the tank barge DBL-25. See Dkt. No. 14-5 at ¶¶ 2-7. As a crew member, Plaintiff was a "seaman" as defined in the Jones Act, 46 U.S.C. § 30104, who "performed traditional seaman's duties" in navigable waters. See id. at ¶¶ 8-9; Dkt. No. 8 at ¶ 9. Dann Ocean Towing, Inc. is a Florida corporation that owns Ruby M, a tug boat operating in navigable waters. See Dkt. No. 7 at ¶¶ 3, 4.
Plaintiff alleges that on April 5, 2015, he was injured aboard DBL-25 while on navigable waters at Phillips Bayway in or near New Jersey and/or New York "due to the negligence, carelessness and recklessness of [Vane]." See Dkt. No. 14-5 at ¶ 25. Additionally, he alleges that on March 19, 2016, he "sustained continuing, enhanced and/or additional bodily injuries due to the negligence, carelessness and recklessness of [Vane]." Id. at ¶ 26. Specifically, Plaintiffclaims that DBL-25 and Ruby M were not "safe and seaworthy vessel[s]," that were (1) inadequately staffed, (2) improperly positioned, navigated, and moved, (3) not equipped with proper gear, and (4) not properly supervised. See id. at ¶ 27. Additionally, Plaintiff alleges that Vane "violated all applicable federal, marine, maritime, state and/or local laws, statutes, [and] regulations," and did not properly train Plaintiff to safely perform the work, which led to his injuries. See id. Plaintiff claims that he suffered economic and non-economic losses, including "numerous, serious and debilitating bodily injuries." See id. at ¶¶ 28, 29.
On April 4, 2018, Plaintiff filed a Complaint against Defendants in the Supreme Court of the State of New York in Ulster County. See Dkt. No. 14-4. The next day, Plaintiff filed an Amended Verified Complaint, which added a "verification" but was otherwise identical to the original Complaint. See Dkt. No. 14-5; Dkt. No. 14-2 at ¶¶ 3, 4. Defendants filed a Notice of Removal on May 3, 2018, claiming that this Court has diversity jurisdiction and "original and exclusive jurisdiction . . . pursuant to 28 U.S.C. §§ 1331 and 1333 because the Complaint alleges in rem claims against the vessels DBL-25 and Ruby M." See Dkt. No. 1 at ¶¶ 3-9.
On June 15, 2018, Plaintiff filed a Motion to File and Serve a "Second Amended Verified Complaint" and to Vacate the Notice of Removal. See Dkt. No. 14; Dkt. No. 14-1. With this motion, Plaintiff submitted a proposed Second Amended Verified Complaint which removes (1) the vessels DBL-25 and Ruby M from the case and (2) the claim for "vessel negligence" brought under The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). See Dkt. No. 14-1 at 4; Dkt. No. 14-3 at 1, 17. That motion is unopposed, and is now before the Court.
According to Rule 15 of the Federal Rules of Civil Procedure, since a responsive pleading has already been filed, Fed. R. Civ. P. 15(a)(2). Notwithstanding this lenient standard, the decision to grant or deny leave to amend is within the discretion of the district court. See Foman v. Davis, 371 U.S. 178, 182 (1962). A district court may properly deny leave to amend for "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Id.; see also SCS Commc'ns, Inc. v. Herrick Co., Inc., 360 F.3d 329, 345 (2d Cir. 2004) (). However, "'mere delay' is not, of itself, sufficient to justify denial of a Rule 15(a) motion." Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000) (citation omitted). Additionally, the Northern District's Local Rule 7.1(a)(4) requires that a party moving to amend a pleading attach an unsigned copy of the proposed amended pleading to its motion papers. N.D.N.Y. L.R. 7.1(a)(4).
In rem jurisdiction is based on the court's power over property within its territory. Shaffer v. Heitner, 433 U.S. 186, 199 (1977). An action brought in rem "depends on the court's having jurisdiction over the res, the property which is named as defendant," although "this possession may be actual or constructive." See R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 964 (4th Cir. 1999); see also Rolls Royce Indus. Power (India) v. M.V. Fratzis M. Stratilatis Navigation Ltd., 905 F. Supp. 106, 107 (S.D.N.Y. 1995) (). "The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court." Shaffer, 433 U.S. at 199.
According to the Supplemental Admiralty and Maritime Claims Rules, an in rem admiralty action may only be brought "'[t]o enforce any maritime lien . . . [or] . . . [w]henever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto.'" Garcia v. M/V Kubbar, 4 F. Supp. 2d 99, 1998 A.M.C. 893, 896 (N.D.N.Y. 1998) (). The Longshore and Harbor Workers' Compensation Act specifically grants an in rem claim for injuries resulting from the negligence of a vessel. See Luera v. M/V Alberta, 635 F.3d 181, 184 n.1 (5th Cir. 2011) (citing 33 U.S.C. § 905).
Plaintiff requests leave to remove the vessels and his claim for "vessel negligence" under the Longshore and Harbor Workers' Compensation Act. See Garcia, 1998 A.M.C. at 896; Luera, 635 F.3d at 184 n.1. Plaintiff claims that he unintentionally named the vessels as Defendants and did not mean to invoke in rem jurisdiction with regard to either vessel. See Dkt. No. 14-1 at 4-5. While the Court is not persuaded that the inclusion of the vessels and maritime lien claim was unintentional, the Court finds no improper delay or bad faith on Plaintiff's part. See Foman, 371 U.S. at 182. Granting leave to amend will not unduly prejudice Defendants, particularly because Plaintiff seeks to remove one claim and two Defendants from this action. Id. Additionally, there is no indication that this jurisdiction has actual or constructive possession over the vessels, which is required for in rem jurisdiction. See R.M.S. Titanic, 171 F.3d at 964. Finally, Plaintiff hassubmitted a proposed Second Amended Verified Complaint in compliance with Local Rule 7.1(a)(4), and Defendants have not opposed Plaintiff's motion. See Dkt. No. 14-3 at 4-22. As such, Plaintiff's request for leave to file a Second Amended Verified Complaint to remove the vessels and "vessel negligence" claim from this action is granted.
A defendant may remove to federal court any civil action brought in a state court if the case could have originally been filed in federal court. See Shapiro v. Logistec USA, Inc., 412 F.3d 307, 309-10 (2d Cir. 2005) (quoting 28 U.S.C. § 1441(a)). An action may be filed in federal court if the action "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Once a case has been removed, it must be remanded "'[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.'" Shapiro, 412 F.3d at 310 (quoting 28 U.S.C. § 1447(c)). If there are any doubts as to removability, they are resolved against removability "out of respect for the limited jurisdiction of the federal courts and the rights of states." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (citation omitted). Although there is a presumption that the court has jurisdiction when the matter is...
To continue reading
Request your trial