Passenger Claim Dismissed For Failure To Refile Suit Within 30 Days After Bankruptcy Plan Of Reorganization Approved
JACKIE DALTON, Plaintiff, -v- NEW COMMODORE CRUISE LINESLIMITED, Defendant.
02 Civ. 8025 (DLC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 2590
February 24, 2004, Decided
February 27, 2004, Filed
PROCEDURAL POSTURE: In a personal injury case, plaintiff passenger sued defendant cruise line in Louisiana. The cruise line's motion to transfer was granted. Pursuant to Fed. R. Civ. P. 56, the cruise line moved for summary judgment. The passenger moved to amend the complaint. After the accident, but prior to the present suit being filed, the cruise line filed for bankruptcy.
OVERVIEW: The passenger's lawsuit was filed in derogation of the automatic stay imposed by the bankruptcy court, and she did not petition the bankruptcy court for leave to file her suit. Her lack of notice that the cruise line had filed for bankruptcy was immaterial. Since the passenger's contractual one year statute of limitations expired during the pendency of the automatic stay, she had 30 days from the time she received notice that the stay had been lifted to re-file her lawsuit. She was aware that the automatic stay had been lifted since at least June 20, 2002. Rather than re-file her lawsuit, the passenger chose to pursue the lawsuit, which was void, in the Louisiana. The passenger was now time-barred from re-filing the lawsuit in the present district. Allowing the passenger to amend her pleading now would be both prejudicial and futile. There was no timely filed complaint to which this amendment may relate back. There was also no reasonable explanation as to why she waited until such a late stage in the litigation to file an amended complaint. She did not show that her failure to name the cruise line's insurer was due to either a mistake of law or fact.
OUTCOME: The cruise line's motion for summary judgment was granted, and the passenger's motion to amend was denied.
