SEAMAN'S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD EMPLOYER'S REINSURER AS DEFENDANT IN NEGLIGENCE CLAIM DENIED WHEN BROUGHT AFTER EXPIRATION OF THREE YEAR STATUTE OF LIMITATIONS
STEVEN DURGIN VERSUS CRESCENT TOWING & SALVAGE, INC., ET AL
CIVIL ACTION NO: 00-1602 SECTION: "N" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 9650
May 17, 2002, Filed; May 20, 2002, Entered
DISPOSITION: Motion to file second amended complaint granted in part and denied in part.
PROCEDURAL POSTURE: Plaintiff seaman filed a motion to file a second amended complaint and requested leave to amend his complaint to add a reinsurer as a defendant and to request a trial by jury. The seaman had initiated his original action for negligence against defendants, employer, insurer, and company. The matter was submitted to the magistrate judge for determination.
OVERVIEW: The seaman was injured while he was a crewman on a tug that was assisting an oceangoing vessel. The injury occurred in June 1997 and the seaman filed his original complaint in June 2000. The court denied the seaman's motion to amend his complaint to add the reinsurer as a defendant. The court, through the magistrate judge, held that the seaman's action would be time barred under the three year statute of limitations set forth in 46 U.S.C.S. § 736(a). Moreover, there was nothing that would make the amended complaint timely under the relation back provisions of Fed. R. Civ. P. 15(c) because there was no showing that the reinsurer received actual notice of the action or should have known about the action. The reinsurer was not in privity with the employer and there was no identity of interest sufficient to allow the seaman's claim to relate back under Rule 15(c). The seaman's request for a jury trial was not within the 10 day requirement of Fed. R. Civ. P. 38, but the seaman's late jury demand would be granted under Fed. R. Civ. P. 39 (b) because the case was one that was normally tried to a jury and defendants had not established that they would be prejudiced thereby.
OUTCOME: The court through the magistrate judge denied the seaman's motion to amend his complaint to add the reinsurer as a defendant in the seaman's action for negligence. The court granted the seaman's request for a trial by jury.
