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Ziegler v. M/V Intermission

United States District Court, S.D. Florida

September 18, 2017

M/V INTERMISSION, a 1998 85.6' Burger built aluminum hulled motor yacht, U.S. Coast Guard Documented, Official Number 1066533, her engines, tackle, apparel, appurtenances, personal watercraft and tender, in rem, et. al. Defendants.



         THIS CAUSE is before the Court upon Defendant/Cross-Defendant Beers Group., Inc.'s (“Beers Group”) Motion to Strike Cross-Claim of Defendants/Cross-Plaintiffs LAH Yachts, LLC (“LAH Yachts”) and Hamid Hashemi (“Hashemi”) (collectively “Cross-Plaintiffs”), ECF No. [28], (the “Motion”). The Court has carefully reviewed the Motion, the applicable law, the parties' briefs, and is otherwise fully advised. For the reasons that follow, the Motion is denied.

         I. BACKGROUND

         Plaintiff, Nicholas Ziegler (“Plaintiff”), commenced this action by filing claims against LAH Yachts and Hashemi for unseaworthiness, negligence under the Jones Act for failure to provide a reasonably safe place to work and failure to provide prompt, proper, and adequate medical care. See ECF No. [1]. In addition, Plaintiff alleged claims for maintenance and cure against LAH Yachts, Hashemi and the M/Y Intermission and a state law negligence claim against Beers Group. Id. These claims arise from two incidents that occurred while Plaintiff was a First Mate on board the M/Y Intermission, resulting in personal injuries to him. Id. Both the Cross-claim and the Motion deal only with the second incident; therefore, the Court limits its discussion and analysis to that incident.

         According to the Complaint, on September 8, 2016, the Captain of the M/Y Intermission hired Beers Group to repair the vessel's air conditioning system. Id. Beers Group sent two of its technicians to remove the necessary equipment for repairs and the Captain ordered Plaintiff, as the First Mate, to assist them. Id. While removing the air chiller from the vessel's engine room to a hand truck on the adjacent dock, one of the technicians let go of the chiller, causing it to slip out of Plaintiff's grasp and injuring his right hand and middle finger. Id. Plaintiff alleges his medical bills remain unpaid and that he was discharged from his employment on the vessel prior to recovering for the second injury. Id.

         Following the filing of the Complaint, on May 8, 2017, LAH Yachts and Hashemi filed their respective Answers and Affirmative Defenses. See ECF Nos. [10] and [11]. Two months later, on July 21, 2017, they jointly filed a Cross-Claim against Beers Group without leave of Court in which they asserted claims for common-law indemnity (Count I) and contribution (Count II). Beers Group thereafter moved to strike the Cross-Claim on procedural and substantive grounds. See ECF No. [28]. Cross-Plaintiffs' Response and Beers Group's Reply timely followed. See ECF Nos. [30] and [31]. The Motion is now ripe for review.


         Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, ” granting courts broad discretion in making this determination. Fed.R.Civ.P. 12(f); see also Morrison v. Exec. Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318-19 (S.D. Fla. 2005); Williams v. Eckerd Family Youth Alt., 908 F.Supp. 908, 910 (M.D. Fla. 1995). Under Rule 12(f), “[a] motion to strike will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F.Supp.2d 1215, 1218 (S.D. Fla. 2010) (internal quotation and citation omitted); see also BB In Tech. Co. v. JAF, LLC, 242 F.R.D. 632, 641 (S.D. Fla. 2007) (same); Home Mgmt. Sols., Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *1 (S.D. Fla. Aug. 21, 2007) (same); Action Nissan, Inc. v. Hyundai Motor Am., 617 F.Supp.2d 1177, 1187 (M.D. Fla. 2008) (same).

         Courts have broad discretion in considering a motion to strike under Rule 12(f). See, e.g., Sakolsky v. Rubin Memorial Chapel, LLC, No. 07-80354-CIV, 2007 WL 3197530, at *2 (S.D. Fla. Oct. 26, 2007). However, Rule 12(f) motions to strike are considered drastic, granted sparingly and often disfavored. See Pujals ex rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F.Supp.2d 1322, 1327 (S.D. Fla. 2011); Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)). Through this lens, the Court considers Beers Group's Motion.


         In the Motion, Beers Group initially sought to strike the Cross-Claim for both procedural and substantive reasons. From a procedural standpoint, Beers Group argues the Cross-Claim should be stricken because it was filed without leave of Court. ECF No. [28] at 2. Throughout the course of the parties' briefs, however, their focus shifted from whether the Cross-Claim should be stricken for a procedural deficiency to whether leave to amend to correct such a deficiency should be granted. As a result, Beers Group's position evolved from arguing that Cross-Plaintiffs could, under no circumstances, state a claim for indemnity and contribution in this “otherwise [] straightforward personal injury case” to arguing it would be futile to allow an amendment for indemnity and contribution as to certain claims.

         Turning to the procedural question of whether the Cross-Claim should be stricken for failure to seek leave of Court, both parties agree that Cross-Plaintiffs failed to follow the procedure for amending pleadings. Federal Rule of Civil Procedure 15 permits an amendment to a pleading “once as a matter of course within 21 days after serving it.” Fed.R.Civ.P. 15(a)(1)(A). Because they filed their Answer on May 8, 2017, Cross-Plaintiffs could have filed an amended pleading containing a cross-claim without leave of Court prior to May 29, 2017. However, they did not file their Cross-Claim within this timeframe. Instead, they waited until the last day to amend the pleadings under the Court's Scheduling Order, July 21, 2017, and then filed their Cross-Claim without obtaining leave of Court. See ECF No. [27]. Thus, Beers Groups is correct in stating that the Cross-Claim was improperly filed pursuant to Rule 15(a)(1)(A).

         However, in their Response to the Motion, Cross-Plaintiffs concede the error and belatedly seek leave of Court to retroactively cure this procedural deficiency. See ECF No. [30] at 3-5. “The grant or the denial of an opportunity to amend is within the discretion of the district court.” Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend should be given freely “in the absence of any apparent or declared reason - such as 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.” Cadence Bank, N.A. v. 6503 U.S. Highway 301, LLC, No. 8:13-cv-840-T-33TGW, 2013 WL 12157897 (M.D. Fla. Oct. 7, 2013) (quoting Foman, 371 U.S. at 182). In its Reply, Beers Group does not argue the existence of undue delay, bad faith, dilatory motive or repeated failure to cure prior deficiencies. Instead, Beers Group argues futility of amendment.

         However, before the Court may reach the issue of futility and whether leave to amend should be granted, it must first determine whether good cause exists to consider the belated request pursuant to Federal Rule of Civil Procedure 16(b)(4). The Rule provides that a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). This Court has the inherent authority to control and manage its own docket to allow the expeditious disposition of cases. Cadence Bank, 2013 WL 12157897 at *3 (quoting Voter Verified, Inc. v. Premier Elec. Sols., Inc., No. 6:09-cv-1968-ORL19-KRS, 2010 WL 1049793, at *2 (M.D. Fla. Mar. 22, 2010)). Here, the allowance of the Cross-Claim will promote judicial efficiency by having matters of indemnity and contribution decided in the main action. Given that Beers Group was on notice of the Cross-Claim prior to the deadline to amend the pleadings, there is little to no prejudice by the belated amendment. Moreover, Beers Group does not raise prejudice as a concern. As such, the Court finds that good cause exists ...

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