United States District Court, D. Connecticut
MERLYN V. KNAPP and BEVERLY KNAPP, Plaintiffs,
AMERICAN CRUISE LINES, INC., Defendant,
OTIS ELEVATOR COMPANY, Third-Party Defendant.
RULING ON PLAINTIFFS' MOTION TO AMEND COMPLAINT
[DOC. 21] AND THE PARTIES' JOINT MOTION TO STAY CASE
PROCEEDINGS [DOC. 31]
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Merlyn Knapp and Beverly Knapp, husband and wife, bring this
action for bodily injuries sustained by Merlyn while cruising
aboard the paddle wheel riverboat QUEEN OF THE WEST
("QOW") on the Columbia River, departing from
Portland, Oregon, on May 6, 2017, and returning to that same
port on May 13, 2017. Defendant American Cruise Lines, Inc.
("ACL") owned and operated the QOW. The vessel,
which had multiple decks, was equipped with an elevator,
which transported passengers from one deck to another.
Third-Party Defendant Otis Elevator Company
("Otis") installed and maintained the
forth in the Complaint [Doc. 1], Plaintiffs allege that
Merlyn Knapp, aged eighty-eight at the departure date of the
cruise, suffered from diabetes and diabetic neuropathy of his
legs and feet, which interfered with his ability to walk
comfortably. Doc. 1, ¶ 14. Consequently, he rented a
motorized scooter to take with him on the cruise to assist
his movement around the QOW. Id., ¶ 15. On May
8, 2017, while the QOW was docked at The Dalles, Oregon, a
port on the Columbia River, the Knapps entered the
vessel's elevator after lunch to go from the main deck to
the fourth deck. Id., ¶¶ 19-20. Merlyn
Knapp drove his scooter onto the elevator. Id.,
¶ 20. According to the Complaint, the elevator was
defective and failed to stop level with the landing on the
fourth deck, instead overshooting the landing and stopping
higher than its surface: a condition termed as
"misleveling." Id., ¶ 21. Merlyn,
seated in his scooter and facing the back wall of the
elevator, was unaware of the misleveling and backed his
scooter out of the elevator to exit on the fourth deck.
Id., ¶¶ 24-25. Due to the misleveling, his
scooter's "rear wheels dropped off the edge of the
misleveled floor of the elevator," causing him to
"fall backward, striking his head and neck against the
fourth-floor deck and an immediately adjacent vertical
door." Id., ¶ 26. Merlyn sustained
"severe, painful and permanent injuries,"
including, inter alia: "a severe shock to his
nervous system" and "a severe flexion injury of his
neck, with fractures of the C7 vertebra in his neck and the
T1 vertebra in his upper back." Id., ¶ 27.
Alleging Merlyn's severe injuries and substantial money
damages, Plaintiffs filed this action to recover from ACL.
their original Complaint, Plaintiffs asserted three counts of
state law claims against ACL: negligence, bystander emotional
distress, and loss of consortium. These three claims sounded
in tort but also arose under maritime law. For example, the
Complaint included allegations against ACL for such maritime
claims as "failing to maintain the vessel in accordance
with applicable United States Coast Guard Regulations,
including 46 C.F.R. Subchapter K," and "failing to
provide a seaworthy vessel for carrying Mr. Knapp as a
passenger for hire." See Doc. 1, ¶¶ 33
(h) and (i).
March 21, 2018, Plaintiffs filed a third-party complaint
against defendant Otis based on that company's
installation and maintenance of the allegedly defective
elevator. As in their main Complaint against ACL, Plaintiffs
asserted a negligence claim against Otis, alleging, inter
alia, that Otis failed to maintain and properly service
the elevator, failed to properly and timely inspect the
elevator for reasonable safety, failed to repair the elevator
and/or to cause ACL to make and purchase necessary repairs,
and failed to warn Merlyn Knapp about the elevator's
defective condition or to install a warning device regarding
misleveling on the elevator. Doc. 14, ¶¶ 33(a)-(h).
their Third-Party Complaint, as in their main Complaint
against ACL, Plaintiffs also included two derivative claims
against Otis on behalf of Beverly Knapp. The first claim was
for "bystander emotional distress," stemming from
the distress she suffered in witnessing her husband being
injured, evacuated, transported and treated for his serious
injuries. Id., ¶¶ 36-38. The second count
was for "loss of consortium" for the damage to
Beverly's marriage, including a "loss of society,
affection, comfort, care and support" of her husband
Merlyn. Id., ¶¶ 39-40.
before the Court are two motions which will be addressed in
this Ruling. The first is Plaintiffs' "Motion for
Leave to Amend Complaint" [Doc. 21], in which Plaintiffs
seek leave to add three claims. First, Plaintiffs request
leave to add a fourth count to allege that ACL was reckless
in that it had actual knowledge that the elevator was worn
out, defective, and subject to misleveling before Merlyn
Knapp was injured and failed to either warn Plaintiffs or to
repair the defect. Doc. 21, at 2. In addition, Plaintiffs
request to add two "derivative counts" against ACL,
the Fifth and Sixth Counts, seeking recovery for reckless
"bystander emotional distress" and reckless
"loss of consortium," respectively. Plaintiffs
represent that they have acquired information to bring the
proposed amendments from documents received during the
initial discovery disclosures from Otis. Plaintiffs assert
that they bring this motion "in good faith" and
that justice requires permitting said amendments under
Federal Rule of Civil Procedure 15(a)(2).
opposes Plaintiffs' proposed amendments, arguing that the
newly added claims would be "futile." Doc. 25, at
5. First, ACL claims that Plaintiffs will be unable to meet
the standard necessary to plead that ACL was
"reckless" in the Fourth Count. Moreover, ACL
maintains that even if Plaintiffs could plead the necessary
facts, they "have waived such claims in their contract
with ACL" when they purchased their tickets for their
trip aboard the QOW. Id., at 5, 13. According to
ACL, in that contract, Plaintiffs waived "all claims for
consequential or punitive damages." Id., at 13.
In addition, ACL asserts that the derivative claims in the
Fifth and Sixth Counts are duplicative of those brought in
the Second and Third Counts. Id., at 5 n.1.
second pending motion addressed by this Ruling, the parties
jointly request a stay of the case proceedings to allow them
to focus on participating in an upcoming, scheduled mediation
of this matter. Doc. 31. As part of this motion, they ask the
Court to reset each case deadline with an extension of 120
days. Id., at 4.
Court resolves Plaintiffs' motion to amend and the
parties' motion to stay herein.
Standard to Amend
Pursuant to Rule 15(a), Fed. R. Civ. P., a plaintiff may
amend his complaint once as a matter of course within
twenty-one days after service of the complaint or within
twenty-one days after service of a responsive pleading
(i.e., answer or motion to dismiss) or of a Rule
12(b), (e), or (f) motion, whichever is earlier. See
Fed. R. Civ. P. 15(a)(1)(A) and (B). Thereafter, a party may
amend its pleading only by leave of court or written consent
of the adverse party; and "[t]he court should freely
give leave when justice so requires." Fed.R.Civ.P.
Foman v. Davis, 371 U.S. 178, 182 (1962), the United
States Supreme Court articulated the relevant standard for a
court to determine whether to grant a party's request to
amend his or her pleading under Federal Civil Rule 15(a)(2).
In particular, the Foman court stated: "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 the
amendment, etc. - the leave sought should, as the rules
require, be 'freely given.'" 371 U.S. at 182.
"Of course, the grant or denial of an opportunity to
amend is within the discretion of the District Court, but
outright refusal to grant the leave without any justifying
reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules."
the amended portion of the complaint would fail to state a
cause of action, however, the district court may deny the
party's request to amend." Parker v. Columbia
Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000)
(citing S.S. Silberblatt, Inc. v. East Harlem Pilot
Block, 608 F.2d 28, 42 (2d Cir.1979)). Under such
circumstances, the amendment would be futile.
burden of proving futility rests on the party opposing the
amendment. Schaghticoke Tribal Nation v. Norton, No.
3:06-CV-81(PCD), 2007 WL 867987, at *11 (D. Conn. March 19,
2007). "[I]n making this determination [regarding
futility], the court should not consider the merits of a
claim or defense on a motion to amend unless the amendment is
clearly frivolous or legally insufficient on its face."
Id. (quotation marks omitted). See also
Zuppardi's Appizza, Inc. v. Tony Zuppardi's Appiza,
LLC, No. 3:10-CV-1363 (RNC), 2012 WL 1067652, at *1 (D.
Conn. Mar. 30, 2012).
Plaintiff's Motion to Amend
1. "Good Faith" Basis for
their "Motion to Amend" the Complaint, the
Plaintiffs request to "add one count against American
Cruise Lines, Inc. ('ACL'), seeking damages for
ACL's 'reckless disregard for the safety of its
passengers.'" Doc. 21, at 1 (citing proposed Amended
Complaint). They also request to add "two counts
derivative therefrom, for bystander emotional distress and
loss of consortium." Id.
Plaintiffs explain, they "became aware of the existence
of facts giving rise to [their] proposed new counts after
they received an initial document production from defendant
Otis Elevator Company, in compliance with [Rule] 26(a),"
Fed.R.Civ.P. Id., at 2. With the new facts,
Plaintiffs "now allege that ACL had actual knowledge,
long before [Merlyn] was injured, that the pump and the valve
system in its elevator was worn out, defective and subject to
misleveling." Id. Accordingly, "Plaintiffs
claim that ACL behaved recklessly by failing to repair or
replace the pump and valve system and by failing to warn
plaintiff [Merlyn Knapp] that the elevator misleveled."
Id. Plaintiffs include these new allegations in
their proposed Fourth Count, at paragraphs 127 to 136 and
144. Id. They also append supporting exhibits to
their proposed Amended Complaint as "Exhibit B."
Id., at 24-37.
respect to the Foman standard, Plaintiffs assert
that their motion to amend "is made in good faith, does
not result in undue delay, will not prejudice defendant's
ability to defend this case, and would not be futile."
Doc. 21, at 2. They thus assert that "[t]he
court should freely give leave [to amend] when justice so
requires." Id. (quoting Fed.R.Civ.P. 15(a)(2)).
particular, Plaintiffs argue that "[t]he record
demonstrates that [their] proposed amendment is made in good
faith" after they received the initial disclosures from
third party defendant Otis. Id., at 3. The documents
from Otis allegedly provided the factual basis for the
proposed recklessness claim. Id. Plaintiffs
thereafter set forth a summary of the newly disclosed facts.
Id., at 3-5.
among the new facts recounted are the following. On June 1,
2016, Roy V. Sarrafian, P.E., the Director of Engineering for
ACL, sent an email to Otis employees Ryon Keath Rosvold and
Steven Haupt, stating that ACL still had "some
unresolved issues with [the] elevator on the Queen of the
West" and "need[ed] to get a plan together to get
this wrapped up" by the end of the week. Doc. 21, at 3,
25. On the same day, Rosvold responded, stating that
Otis's technician had gone to the ship and was
recommending replacement of valves and starter contacts
because "the elevator is re-levelling so often that
starter contacts are suffering over-use." Id.,
at 3, 26 (Otis document OEC-KOU0000001).
to Plaintiffs, six days later, Otis's Rosvold urged ACL
to purchase "a whole new pump unit" to replace
critical components that had become old and obsolete.
Id., at 3, 27. Said new pump would make operation of
the elevator "quieter," more reliable, and
"better ab[le] to fine tune levelling."
Id., at 3-4, 27 (OEC-KOU0000003).
June 28, 2016, Otis's Rosvold emailed ACL's
Sarrafian, Haupt and Fry a proposal to "replace the
existing faulty Beranger valve with a new Maxton valve"
at a "[p]rice [of] $14, 763.09." Id., at
4, 30 (OEC- KOU0000006). ACL did not, however, replace the
faulty valve. Id., at 4.
months then passed with the QOW out of service for the
winter. Id. On May 5, 2017, three days before Merlyn
Knapp was injured, R.D. Fry of ACL emailed Otis's
Rosvold, copying ACL Director of Engineering Sarrafian. In
that email, Fry stated:
[T]he elevator on the QOW seems to be having a problem
leveling itself to the floor it is called to. It is either 6
inches higher or lower from the floor. Then after a period of
time it levels its self. The ship will be a[t] Jantzen Beach
at 11 p.m. tonight and will leave at 1:30 p.m. tomorrow.
I'd like to see about getting somebody down there to look
Id. at 4, 34 (text of email, OEC-KOU0000042).
responded by sending its technician Mike Ziegler to the QOW.
Id. Rosveld reported Ziegler's findings on May
8, 2017, at 10:54 a.m.:
He found that the existing Beranger valve continues to be
problematic and needs to be replaced. This valve is original
to elevator installation. We have had no luck in finding a
direct replacement for this valve. Our only suggestion is to
replace with a new Maxton valve (originally proposed June,
2016). Here is that proposal again.
Id., at 4.
hours later, at approximately 2:00 p.m., Merlyn Knapp was
injured exiting the elevator on the QOW's fourth deck.
QOW's Mate Matthew Gelatt made the 911 call to get help
for Merlyn, which was recorded on .mp3 audio data files.
Id., at 4-5. In that call, Gelatt was heard stating
to the operator that Merlyn "fell getting off the
elevator in his scooter and the elevator wasn't
level." Id., at 5.
present an email from ACL's Sarrafian to Otis's
Rosvold on May 9, 2017, the day after Merlyn Knapp was
injured. At that time, ACL decided to go forward with the
valve replacement work on the elevator. Id. That
Consider this the confirmation. We want to get the parts
ordered ASAP with expedited delivery for tomorrow. As
discussed we would like the work to begin tomorrow night in
I will sign the proposal and get it to you within ½
Doc. 21, at 35 (OED-KOU00000043).
show that by May 10, 2017, at 3:30 p.m., the valve
replacement had not been completed. At that time Sarrafian
wrote an email to Rosvold, voicing his frustration about the
pace of the work on the defective elevator:
When exactly will you receive the part? The way the elevator
is running right now it is significantly drawing on the
crew's resources to continue safe operation. We need to