Knapp v. American Cruise Lines, Inc.

          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

         I. INTRODUCTION

         Plaintiffs 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 elevator.^[1]

         As set 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.

         In 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."^[2] See Doc. 1, ¶¶ 33 (h) and (i).

         On 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).

         In 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.

         Pending 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).

         ACL 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.

         In the 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.

         The Court resolves Plaintiffs' motion to amend and the parties' motion to stay herein.

         II. DISCUSSION

         A. 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. 15(a)(2).

         In 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." Id.

         "Where 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.

         The 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).

         B. Plaintiff's Motion to Amend

          1. "Good Faith" Basis for Amendment

         In 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.

         As 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.

         With 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)).

         In 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.

         Key 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).

         According 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).

         Then on 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.

         Ten 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 at this.

Id. at 4, 34 (text of email, OEC-KOU0000042).

         Otis 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.

         Three 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.

         Plaintiffs 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 email states:

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 Portland, OR.

I will sign the proposal and get it to you within ½ [one-half] hour.

Doc. 21, at 35 (OED-KOU00000043).

         Plaintiffs 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:

         Ryon,

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 get ...