In re: the Petition/Complaint of Libertad 54 Ltd, as owner of the S/V Libertad

January 18, 2013

In re: the Petition/Complaint of Libertad 54 Ltd, as owner of the S/V Libertad

Response to Motion to Dismiss

The experienced maritime attorneys at Lipcon, Margulies & Winkleman, P.A. work to ensure that injured seaman and their loved ones are compensated for injuries sustained as part of their employment. In this response, Lipcon, Margulies & Winkleman, P.A. argue that a Plaintiff’s spouse should be allowed to maintain a claim for loss of consortium.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
IN ADMIRALTY
CASE NO. 11-CV-23201-COOKE
IN RE: the Petition/Complaint of LIBERTAD 54,
LTD., as Owner of the S/V LIBERTAD, a Cayman
Islands Flagged Amel 54’ Sailboat, Reg. No. 738533,
and DANIEL STRULOVIC, as Owner Pro Hac
Vice or Beneficial Owner, for Exoneration
from or Limitation of Liability,
Petitioner/Complainants,

v.

LEWMAR, INC., a Conn. Corp., LEWMAR MARINE,
PLC, a U.K. Corp., LEWMAR, LTD., a U.K. Corp., and
CHANTIERS AMEL S.A., a French Corp.,
Defendants.
____________________________ /

JANE DOE, JOHN DOE, and
JANE DOE II,
Claimants/Counter-Plaintiffs,

v.

LIBERTAD 54, LTD.,
Counter-Defendant.
____________________________ /
JANE DOE, JOHN DOE, and
JANE DOE II,
Claimants/Cross-Plaintiffs,

v.

LEWMAR, INC., LEWMAR MARINE, PLC,
LEWMAR, LTD. and CHANTIERS AMEL S.A.,
Cross-Defendants.

CLAIMANT, JANE DOE II’S RESPONSE IN OPPOSITION TO MOTIONS TO DISMISS FILED BY CROSS-DEFENDANTS, LEWMAR, INC., LEWMAR MARINE, PLC, AND LEWMAR, LTD.

The Claimant, JANE DOE II (hereinafter “Claimant” or “ Jane Doe II”), by and through undersigned counsel, hereby responds in opposition to the Motions to Dismiss filed by Cross-Defendants, LEWMAR, INC., LEWMAR MARINE, PLC, and LEWMAR, LTD. (hereinafter collectively referred to as “Lewmar Defendants”) [D.E. 57, 58, 59][1] and, in support thereof, relies on the following memorandum of law.

the lewmar defendants’ motions to dismiss should be denied in their entirety because any limitations on loss of consortium claims do not apply to this case. claims for loss of consortium were long recognized by the supreme court and a summary of the case law shows that the supreme court only intended the limitations to apply to seafarers with WRONGFUL DEATH and jones act claims – which is not the case here. in addition, THE LEWMAR DEFENDANTS DO NOT HAVE STANDING TO ASSERT THAT JANE DOE II’S CLAIM WAS FILED LATE. EVEN IF THEY DID HAVE STANDING, Equity supports allowing Jane Doe II’s claim to proceed because, due to the FLUCTUATION in THIS AREA OF law, neither Jane Doe II nor her counsel was aware of the availability of a consortium claim in maritime law until after the deadline and there is no actual or alleged prejudice to the Lewmar Defendants by the 31-day late filing because the case was (and remains) stayed and the parties have yet to conduct merit discovery.

I.Introduction

The instant matter arises out of an incident which occurred on or about March 5, 2011. On such date, Claimant, JANE DOE (“Jane Doe”), was working aboard the S/V Libertad 54 as an unpaid seaman or unpaid Sieracki seaman. While Jane Doe was performing her duties aboard the vessel, a defective Lewmar winch, switch, or system aboard the vessel malfunctioned causing injuries to Jane Doe, including, but not limited to, the loss of her left arm and permanent impairment of her right arm. Claimant, JOHN DOE (hereinafter “John Doe”), was on another yacht with his wife, Jane Doe II, at the time the incident with Jane Doe was occurring. Upon hearing the screams of Jane Doe, John Doe ran to assist her. [D.E. 54, 84]. In doing so, however, his hands became caught between the rope and the defective winch and, as a result thereof, he sustained severe injuries, including, but not limited to, amputation of eight fingers. [D.E. 54, 84].

On September 4, 2011, Petitioners/Complainants, Libertad 54, Ltd. and Daniel Strulovic, filed a petition/complaint seeking to exonerate or limit any liability assessed against them for the above incidents and injuries to the value of the subject vessel. [D.E. 1]. On September 27, 2011, this Honorable Court entered its Order (1) appointing trustee; (2) directing issuance of notice; and (3) entering monition and injunction. [D.E. 9]. The Order required that all persons asserting claims against the Petitioners/Complainant file such claims on or before November 1, 2011. [D.E. 9, ¶2]. Accordingly, on November 1, 2011, John Doe filed his answer along with a counterclaim and cross-claims against the Lewmar Defendants. [D.E. 41].

On November 22, 2011, each Lewmar Defendant moved to dismiss John Doe’s cross-claims under Federal Rule of Civil Procedure 12(b)(2). [D.E. 51, 52, 53]. Because the Petitioners/Complainants had already alleged grounds for dismissal of Jane Doe’s claims based, in part, on personal jurisdiction and forum non conveniens like the Lewmar Defendants, this Honorable Court stayed the case in order to allow the parties to conduct limited jurisdictional discovery. [D.E. 47].

In the interim, Jane Doe II, a citizen of Norway, was unaware that consortium claims were available to her. She therefore did not retain counsel until November 30, 2011. Immediately upon being retained, the undersigned conducted research on the matter and concluded that the claim could be made. As such, on December 2, 2011 (while the case was stayed and the parties were conducting jurisdictional discovery), John Doe filed an Amended Answer and Amended Counter and Cross-Complaint, which added Jane Doe II as a Claimant asserting her consortium claim (Count VII). [D.E. 54].

In response, each Lewmar Defendant moved to dismiss Jane Doe II’s claim which are the motions at issue herein. [D.E. 57, 58, 59]. The Lewmar Defendants argue that Jane Doe II’s consortium claim should be dismissed because the claim is purportedly not permitted under general maritime law and because the claim was filed late and without leave of court.[2] These arguments fail for three reasons. First, Jane Doe II’s loss of consortium claim is properly pled. Consortium claims have long been recognized under general maritime law and the limitations on such claims were only meant to apply to seafarers alleging wrongful death claims and Jones Act claims – which is not the case here.

Second, the Lewmar Defendants do not have standing to argue that Jane Doe II’s claim was filed too late. Alternatively, even they did have such standing, equity supports allowing Jane Doe II to file the late claim because, due to all of the changes in the law concerning consortium claims, Jane Doe II was unaware that she could, in good faith, file a consortium claim in maritime law until after the deadline. Further, no prejudice would result from allowing the late claim because the case was (and remains) stayed and the parties have yet to conduct merit discovery. Third, Jane Doe II’s only recourse was not to seek leave for intervention because John Doe added her and her claim by amending his pleading “as a matter of course” in accordance with Federal Rule of Civil Procedure 15(a). Accordingly, the Lewmar Defendants’ motions to dismiss should be denied in their entirety.

II.Argument

The Lewmar Defendants bring their motions under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Eleventh Circuit has held that “[t]he threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low.” Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 995 (11th Cir. 1983) (emphasis added). As such, this Court has routinely stated that such motions are “viewed with disfavor and rarely granted.” Jackson v. BellSouth Telecommunications, Inc., 181 F. Supp. 2d 1345 (S.D. Fla. 2001), aff’d sub nom. Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004); see International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 400 F.2d 465, 471 (5th Cir. 1968) (noting that “dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate”). Further, when reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).

For reasons set forth below and in concurrent responses filed by both Jane Doe and John Doe, the Lewmar Defendants’ arguments for dismissal fail.

A.Jane Doe II’s loss of consortium claim is properly pled because consortium claims have long been recognized under general maritime law and the limitations on such claims are not applicable because the Ahlgrens are not seafarers alleging wrongful death or Jones Act claims.

The Lewmar Defendants rely on two Eleventh Circuit cases, Lollie v. Brown Marine Service, Inc. and In re Amtrak “Sunset Limited” Train Crash, for the proposition that general maritime law does not permit claims for loss of consortium. A brief history on this area of law, however, shows that consortium claims have long been recognized under general maritime law. It also shows that, although limitations were later placed on such claims, they were only meant to apply to areas of maritime law where Congress expressly chose to limit the rights and remedies of certain classes of plaintiffs (such as seafarers) with claims under the Jones Act or the Death on the High Seas Act (DOHSA). Those circumstances are not present herein.

In American Exp. Lines, Inc. v. Alvez, the United States Supreme Court held that a cause of action for loss of consortium was recognized under general maritime law. Alvez, 446 U.S. 274, 283 (1980). The Court noted that “a clear majority of States permit[ted] a wife to recover damages for loss of consortium from personal injury to her husband” and, by such standards, “a common-law principle… translated into maritime law.” Alvez, 446 U.S. at 284 (1980) (emphasis added). In fact, “[t]he ability to recover for loss of consortium has been discussed in cases dating back to 1860.” Barrette v. Jubilee Fisheries, Inc., C10-01206 MJP, 2011 WL 3516061 (W.D. Wash. Aug. 11, 2011) (“[T]he Court finds that loss of consortium damages have long been available at common law, and that the common-law tradition allowing recovery for loss of consortium extends to general maritime claims.”)

Thereafter, in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), the mother of a seaman brought suit for the wrongful death of her son. The Supreme Court itself explained in a later case[3] that one of the principal issues before the Court was whether general maritime law should provide a cause of action for wrongful death based on unseaworthiness and, if so, what remedies were available under same. The Court in Miles first concluded that the “unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes” authorizing maritime wrongful-death actions, supported the recognition of a general maritime action for wrongful death of a seaman. Id., at 24 (citations omitted); see also Atlantic Sounding, 557 U.S. at 419.

With regard to remedies, the Court ultimately found that Congress chose to limit the damages available for wrongful-death actions under DOHSA and the Jones Act, such that neither statute allowed a recovery for non-pecuniary losses (such as loss of society). Miles, 498 U.S. at 31-33. Accordingly, the Court held that such damages should not be available under a general maritime action for wrongful death either, reasoning that they must maintain “a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.” Id., at 33 (citing Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978)) (emphasis added).[4]

The Supreme Court later made clear, however, that the reason Miles looked at the remedies available under DOHSA and the Jones Act is because “until then, there was no general common-law doctrine providing for such an action [wrongful death]”. Atlantic Sounding, 557 U.S. at 420. Rather, “it was only because of congressional action that a general federal cause of action for wrongful death on the high seas and in territorial waters even existed.” Id. As such, “[i]t would have been illegitimate to create common-law remedies that exceeded those remedies statutorily available under the Jones Act and DOHSA.” Id.

Thus, in the interest of uniformity in admiralty law, the Supreme Court in Miles and Higginbotham limited the scope of recovery under the judicially created general maritime law to that of overlapping statutory law. It is therefore clear that the limitation on consortium claims was only meant to apply to seafarers’ wrongful death cases under DOHSA, the Jones Act, or general maritime law.[5] Importantly, however, the Supreme Court in Miles and Higginbotham did not reach the issue of remedies available under the general maritime law in cases where statutory law does not overlap a general maritime claim (which is the case here).

Herein, neither John Doe nor Jane Doe II are seafarers, and neither are raising wrongful death claims or claims under DOHSA or the Jones Act. Furthermore, the cases which the Lewmar Defendants rely on are inapplicable. First, Lollie v. Brown Marine Service, Inc. involved the claims of a seafarer under the Jones Act. Second, a Supreme Court decision following In re Amtrak “Sunset Limited” Train Crash, has called into question Amtrak’s holding.

Specifically, the Eleventh Circuit’s position in Amtrak was based on the view that personal injury plaintiffs in maritime actions did not enjoy traditional common law remedies. In re Amtrak, 121 F.3d at 1429 (“until the United States Supreme Court should decide to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for nonpecuniary damages such as… loss of consortium or punitive damages”)). Since that opinion, however, the Supreme Court clarified that neither the Jones Act nor the Supreme Court’s own precedents were intended to supplant remedies that were previously available at common law. Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).

Specifically, the Court in Atlantic Sounding arrived at its conclusion to allow a non-pecuniary damage (i.e., punitive damages) in a maintenance and cure claim by addressing three legal principles. “First, punitive damages have long been available at common law. Second, the common-law tradition of punitive damages extends to maritime claims. And third, there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule. Atlantic Sounding, 557 U.S. at 414-15.

Like punitive damages, recovery for loss of consortium has long been available at common law and extends to maritime claims. See Alvez, supra; see also Barette, supra. Also like punitive damages, Congress has not enacted any legislation to limit a passenger’s right to recover damages for loss of consortium in a personal injury action under general maritime law. Therefore, to the extent that Amtrak foreclosed a plaintiff’s right to recover damages for loss of consortium in a personal injury case under general maritime law, it is inconsistent with the principles of law espoused by the Court in Atlantic Sounding and is no longer the correct rule of decision in the Eleventh Circuit.

This Honorable Court recently agreed that “[t]he exceedingly narrow standard… annunciated in Amtrak… is no longer viable in view of the broad reasoning in Atlantic Sounding that, as a rule, common law remedies extend to federal maritime actions.” Doe v. Royal Caribbean Cruises, Ltd., 11-23323-CIV, 2012 WL 920675 (S.D. Fla. March 19, 2012) (emphasis added). This Court has called into question whether Amtrak is still valid law in several other cases as well. See Lobegeiger v. Celebrity Cruises, Inc., 2012 A.M.C. 202 (S.D. Fla. 2011) (“Amtrak… is no longer the correct rule of decision in the Eleventh Circuit”); see also Boney v. Carnival Corp., No. 08–22299–CIV, 2009 WL 4039886, at *1, n. 1 (S.D. Fla. Nov. 20, 2009) (“While the Eleventh Circuit Court of Appeals stated in Amtrak that it looks ‘disfavorably’ on the availability of punitive damages under maritime law, the Supreme Court has now suggested that punitive damages are available in general maritime claims unless Congress has expressed otherwise.”).

Accordingly, the Lewmar Defendants’ Motions to Dismiss the Claimant’s loss of consortium claim should be denied as 1) the limitation of non-pecuniary damages does not apply to this case because the Ahlgrens are not seafarers alleging wrongful death claims under DOHSA or the Jones Act; and, 2) the Eleventh Circuit’s preclusion of consortium claims in Amtrak is no longer valid based on the Supreme Court’s holding in Atlantic Sounding because consortium claims have in fact long been recognized under general maritime law.

B.The Lewmar Defendants do not have standing to argue that Jane Doe II’s claim was filed late. Further, and in the alternative, equity supports allowing Jane Doe II’s late claim because, due to the fluctuation in the law, Jane Doe II was unaware of the availability of a consortium claim in maritime law until after the deadline. Furthermore, the Lewmar Defendants fail to even allege prejudice by the late filing.

Contrary to the Lewmar Defendants’ assertion, Jane Doe II’s claim should not be summarily dismissed by this Honorable Court because the Lewmar Defendants do not have standing to raise the argument that Jane Doe II’s claim was filed late. Alternatively, even if the Lewmar Defendants do have standing, Jane Doe II’s claim should still proceed because the Claimant has cause for filing her claim late, and the Lewmar Defendants fail to even allege prejudice resulting from the claim being filed 31 days after the deadline.

1.The only parties with standing to assert that Jane Doe II’s claim was filed late are the Petitioner/Complainants and not the Lewmar Defendants.

Although the Lewmar Defendants argue that Jane Doe II’s consortium claim should be dismissed because it was filed late, they do not have standing to make such argument because none of them is the vessel or the vessel’s owner.

In discussing the purpose behind limitation of liability actions, the Former Fifth Circuit and the Supreme Court have explained that such actions allow a vessel owner to collect all claims against it into one suit and that “all others having similar claims against the vessel and the owner may be brought into concourse in the proceeding by monition, and enjoined from suing the owner and vessel on such claims in any other court.” J. Ray McDermott & Co. v. Hunt Oil Co., 262 F.2d 127, 128 (5th Cir. 1959) (citing Hartford Acc. & Indem. Co. of Hartford v. S. Pac. Co., 273 U.S. 207, 215 (1927)) (emphasis added); see also Maryland Cas. Co. v. Cushing, 347 U.S. 409, 415 (1954) (noting that the heart the Limitation Act system is “a concursus of all claims to ensure the prompt and economical disposition of controversies in which there are often a multitude of claimants” that ensures that the substantive benefits of the Act may be realized).

To that end, this Honorable Court’s September 29, 2011 Order specified:

A notice shall be issued by the Clerk of the Court to all persons asserting claims with respect to with the Complaint seeks limitation or exoneration, admonishing them to file their respective Claims with the Clerk of this Court…, and to serve a copy of said claims on the attorneys for the Petitioners on or before November 1, 2011, or be defaulted. lf any claimant desires to contest either the right to exoneration from or the right to limitation of liability, the claimant shall file with the Clerk of the Court and serve on all Petitioners’ attorneys an answer to the Complaint on or before the above date or be defaulted.

[D.E. 9, 2] (emphasis added).

It is therefore clear that the monition period and deadline set by this Court was intended for the Claimants’ claims against Petitioners/Complainants, Libertad 54, Ltd. and Daniel Strulovic, as “the vessel and the vessel owner”. Thus, the only parties that could argue that Jane Doe II’s claim was filed too late are the Petitioners/Complainants–not the Lewmar Defendants. Petitioners/Complainants did not, however, make such argument. CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270 (11th Cir. 2006) (parties “generally must assert [their] own legal rights and interests, and cannot rest [their] claim to relief on the legal rights or interests of third parties”). Pursuant to 46 USCA §30106, Jane Doe II has three years to sue the Lewmar Defendants for the incident at issue herein.

Accordingly, the Lewmar Defendants’ argument that Jane Doe II’s claim was filed too late has no merit because they do not have standing to argue same.
2.In the alternative, equity supports allowing Jane Doe II’s late claim because, due to the fluctuation in the law, Jane Doe II was unaware of the availability of a consortium claim in maritime law until after the deadline. Furthermore, the Lewmar Defendants fail to even allege prejudice by the late filing.

Alternatively, assuming arguendo, that the Lewmar Defendants do have standing, Jane Doe II’s claim should still proceed because the Claimant has cause for filing her claim late, and the Lewmar Defendants fail to even allege prejudice resulting from the claim being filed 31 days after the deadline.

Supplemental Admiralty Rule F(4) grants courts discretion to allow the filing of a late claim in a limitation of liability proceeding “for cause shown.” Thus, pursuant to binding precedent, it is well settled that “so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims… upon a showing of the reasons therefor.” Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 362 (5th Cir. 1963)[6] (emphasis added); see In re Hartwig, No. 6:06CV1232 ORL18UAM, 2007 WL 2209235 at *3 (M.D. Fla. July 30, 2007) (allowing a late claim under the Former Fifth Circuit standard); see also Admiralty & Mar. Law § 15–5 (4th ed.) (referring to the Texas Gulf Sulphur Co. standard as “[t]he test for allowing late-filed claims”). In fact, the Texas Gulf Sulphur court instructs that “[a]dmiralty is administered with equitable liberality and a simultaneous freedom from restraints or frustrations occasioned by technicalities or formal imperfections.” Id. at 362; see also In re River City Towing Servs., Inc., 420 F.3d 385, 388 (5th Cir. 2005) (even if the claimants received constitutionally satisfactory notice of the limitation proceeding, the court could conclude that a balancing of the equities favors the late claimant).

Herein, equity supports allowing Jane Doe II’s claim to be filed. Due to the fluctuation in this area of law (as demonstrated above), Jane Doe II was unaware of the availability of consortium claims in maritime law until after the deadline. Furthermore, the Lewmar Defendants fail to even allege prejudice by the late filing and such allegation, even if raised, would fail because Jane Doe II filed her claim only 31 days after the deadline when the case was stayed and the parties were still only conducting jurisdictional discovery. In fact, to date, the parties have yet to commence merit discovery. Therefore, the limitation proceeding is clearly pending and undetermined, the rights of the parties are not adversely affected, and this Honorable Court should “freely” grant Jane Doe II permission to file her claim.

Accordingly, this Honorable Court should deny the Lewmar Defendants’ motions to dismiss and allow Jane Doe II’s consortium claim to proceed.[7]

C.Jane Doe II’s only option was not to intervene because she was added as a party pursuant to Rule 15 of the Federal Rules of Civil Procedure.

The Lewmar Defendants also argue that the Claimant was required to “intervene” in order to be added as a party in this case. Jane Doe II’s only recourse was not, however, to intervene because John Doe amended his pleading and added her as a party in accordance with Rule 15 of the Federal Rules of Civil Procedure.

Pursuant to Rule 15: “A party may amend its pleading once as a matter of course within… 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B).

Herein, as stated above, on November 22, 2011, each Lewmar Defendant moved to dismiss John Doe’s initial pleading for lack of personal jurisdiction under Rule 12(b)(2) or, in the alternative, forum non conveniens. [D.E. 51, 52, 53]. Therefore, pursuant to Rule 15(a)(1)(B), John Doe had until December 13, 2011 to amend his pleading “as a matter of course” without leave of court. John Doe did so before the deadline on December 2, 2011.

Furthermore, “Rule 15(c) permits a plaintiff to amend a complaint to add a claim involving an existing party or a new party that, if filed as an entirely new lawsuit would be barred by the statute of limitations.” Harris v. Johns, 3:06CV433J32MCR, 2007 WL 2310784 (M.D. Fla. 2007) (citations omitted). This relation back is permitted if the amended complaint satisfies the requirements of Rule 15(c), that the amended complaint “arose out of the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Specifically, when adding a new plaintiff, an amended complaint will relate back if the provisions of Rule 15(c)(2) are satisfied, the amendment does not prejudice the defendant(s) and the original complaint provided the defendant(s) with adequate notice of the claims raised by the newly-added plaintiffs. Harris, supra (citing Cliff v. Payco General American Credits, Inc., 363 F.3d 1113, 1131 (11th Cir. 2004)); see also Hughes v. American Tripoli, Inc., 2007 WL 2010786 at *2 (M.D. Fla. 2007). See In re Tug Robert J. Buchard, Inc.,CIVA 05-1420, 2006 WL 3692677 (E.D. La. Dec. 11, 2006) (applying Rule 15 of the Federal Rules of Civil Procedure to a limitations of liability case).

Herein, the amendment unquestionably relates back. First, Jane Doe II’s consortium claim arose out of the same conduct set forth in John Doe’s original pleading. Second, the parties – including the Lewmar Defendants – had adequate notice that Jane Doe II may raise claims along with John Doe because they were aware that the Ahlgrens were together when the incident occurred and that John Doe was married to Jane Doe II. Lastly, as discussed above, the Lewmar Defendants have not even alleged that they were prejudiced by the amendment nor could they make such allegation successfully because 1) the amendment was done only 31 days after the deadline; 2) the case was stayed when the amendment was made; 3) the parties were still only conducting jurisdictional discovery when the amendment was made; and 4) to date, the parties have yet to commence merit discovery.

To be clear, the Claimant acknowledges that this Honorable Court’s permission is required in order to allow Jane Doe II’s claim and submits that she has demonstrated sufficient cause for same above. However, contrary to the Lewmar Defendants’ argument, Jane Doe II’s only recourse was not to intervene pursuant to Rule 15(a). Therefore, the Lewmar Defendants’ motions to dismiss based on Jane Doe II failing to meet the requirements of Rule 24 must fail.

Alternatively, should this Honorable Court find that Jane Doe II does not have sufficient cause to file a late claim and/or was not appropriately added as a party under Rule 15(a), Jane Doe II hereby respectfully requests leave to intervene as a Claimant in this case.

WHEREFORE, based on the foregoing, the Claimant respectfully requests that this Honorable Court deny the Lewmar Defendants’ Motions to Dismiss [D.E. 57, 58, 59] in their entirety or, in the alternative, allow the Claimant to correct any deficiencies of her claim consistent with this response.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for the Claimants
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204
By:____________________________/s/ Michael A. Winkleman
MICHAEL A. WINKLEMAN
Florida Bar No. 36719

 

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[1] Due to the fact that all three motions are identical, the Claimant consolidates her response to all three motions for the Court’s convenience and judicial economy.

[2] The Lewmar Defendants also raise personal jurisdictional and forum non conveniens as grounds for dismissal. As stated below, however, the Claimant Jane Doe II expressly incorporates by reference and adopts Lola Khon and John Doe’s arguments against these grounds.

[3] Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).

[4] The need to maintain uniformity is not an issue in this case because the Claimant is not alleging causes of action under an admiralty statute. See Emery v. Rock Island Boatworks, Inc., 847 F.Supp. 114 (C.D. Ill. 1994) (explaining that the “the concerns of uniformity addressed in Miles do not exist where the statutory law does not apply”).

[5] As such, numerous federal district and appellate courts have allowed non-pecuniary damages (such as loss of consortium claims) and expressly declined to extend Miles to actions that: 1) merely involve personal injuries and not deaths; 2) involve deaths occurring in territorial waters because DOHSA does not apply; and/or 3) involve non-seamen claims. See Sutton v. Earles, 26 F.3d 903, 916-17 (9th Cir. 1994) (loss of society damages recoverable by parents of non-seamen in maritime wrongful death action that occurred in territorial waters: “[I]t is true that DOHSA and the Jones Act would not permit an award of such non-pecuniary damages, but DOHSA does not apply because the death was not on the high seas (beyond the three-mile limit), and the Jones Act does not apply because the decedents were not seamen); CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 700-02 (1st Cir. 1995) (declining to extend Miles to claim for punitive damages since such damages were not limited by federal statutes such as DOSHA or the Jones Act, reasoning that “[t]he concern expressed in Miles, however, was not with respect to an award of nonpecuniary damages in maritime cases in general, but with inconsistency with Congressional pronouncement.); Powers v. Bayliner Marine Corp., 855 F.Supp. 199, 201–02 (W.D. Mich. 1994) (concluding that, notwithstanding Miles, estates of deceased passengers could seek punitive damages), aff’d without treating the point, 83 F.3d 789 (6th Cir.), cert. denied, 519 U.S. 992, 117 S.Ct. 481, 136 L.Ed.2d 375 (1996); Jurgensen v. Albin Marine, Inc., 214 F.Supp.2d 504, 509 (D. Md. 2002) (allowing personal representatives of non-seamen to assert a claim for punitive damages in maritime wrongful death action, since “there is no legislation that applies to plaintiffs, and therefore, they should not be restricted from pursuing [their common law remedies]”); Schumacher v. Cooper, 850 F.Supp. 438, 454 (D. S.C. 1994) (wife of swimmer struck by vessel could recover damages for loss of consortium in husband’s personal injury action where Congress had not specifically addressed the issue of damages to negligence claims by non-seamen); see also Emery v. Rock Island Boatworks. Inc., 847 F.Supp. 114 (D. Ill. 1994) (injured passenger’s husband could recover non-pecuniary damages for loss of society because his claim was not cognizable under the Jones Act or DOHSA).

[6] In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

[7] In the event that this Court finds that Jane Doe II does not have sufficient cause to file a late claim, it is her position that her claim fails solely as to Petitioners/Complainants and not as to the Lewmar Defendants whom she has three years to make such claims against. See 46 USCA §30106.