57 F.R.D. 128 | D. Maryland | 1972
Plaintiff, a ship maintenance and shipyard employee, alleges that he was injured on November 7, 1968 in the course of performing, at the direction of his employer, the third party defendant herein, maintenance services for a vessel owned, controlled and/or managed by defendants and used for training seamen who are members of the defendant Union. The parties are in agreement that the vessel is owned by the trustees of a trust created in 1965 jointly by the Union and a group of employers. The trust instrument specifically provides that “[i]t shall be known as the HARRY LUNDEBERG SCHOOL OF SEAMANSHIP.”
I.
Defendant Harry Lundeberg School of Seamanship (School) has filed a motion seeking, as to itself as one of the defendants, a dismissal of the complaint on the ground that plaintiff should have named the trustees of the defendant trust as defendants and not the trust itself as an entity. Pursuant to the provisions of Federal Civil Rule 17(b), this Court looks to Maryland law to determine if the trust, as such, has the capacity to be sued.
In this case, School has, for some time, conducted substantial business activities under the trade name (in which it is designated as defendant in the original complaint herein) without having indicated its status as a trust. Further School, or those controlling its destiny, formed a corporation with a name very similar to the trade name of the trust for the purpose of holding title to some, but not all,
II.
Because of the closeness of the question posed by School’s aforesaid motion to dismiss, plaintiff has asked this Court to grant plaintiff’s motion to amend his complaint
Plaintiff’s suit herein is predicated on general maritime law. Giddens v. Isbrandtsen Co., 355 F.2d 125, 126 (4th Cir. 1966); Larios v. Victory Carriers, Inc., 316 F.2d 63, 65 (2d Cir. 1963). Thus, there is no “rigid limitation” period. Giddens, supra 355 F.2d at 126. Rather, courts are wont to apply the doctrine of laches, and in so doing, “customarily follow by analogy the state statute of limitations and hold the claim barred unless the [plaintiff] shows special circumstances excusing the delay.” Wilson v. Northwest Marine Iron Works, 212 F.2d 510, 511 (9th Cir. 1954). Md.Ann.Code art. 57, § 1 provides a three-year limitations period in negligence actions. That provision would appear to provide the statutory measuring rod herein.
Rule 15(c)’s requirement that the “claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . .,” is clearly satisfied, for the only occurrence in question is the alleged injury to plaintiff on November 7,1968.
Additionally, Rule 15(c) requires that the party to be brought in by the amendment receive notice “within the period provided by law for commencing the action against him” and also that such party receive “such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and [further that such party] knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Defendant contends that that notice was not communicated to the trustees within three years after November 7, 1968. But that contention is not supported by the uncontroverted evidence. A suit relating to the accident which is the subject of this case was filed by plaintiff in the Eastern District of Virginia, Norfolk Division, on September 25, 1970, naming as the sole defendant the Union defendant herein. That action was voluntarily dismissed by plaintiff without prejudice after plaintiff’s counsel was informed by local Baltimore counsel for the Union, Solomon Kaplan, Esq., that the defendant School and not the Union was the owner of the vessel in question. Mr. Kaplan, though he is not counsel for any of them in this case, has acted at one or more times as local counsel for all three defendants herein. Mr. Kaplan, appearing at the request of this Court, stated in this case on the record that “he certainly didn’t expect plaintiff to drop his cause,” i. e., the original suit brought in Norfolk. Similarly, plaintiff’s counsel has made affidavit that he indicated to Mr. Kaplan, when plaintiff dropped the Norfolk suit, that plaintiff “would sue the appropriate owner.” It would appear that the knowledge of Mr. Kaplan constituted sufficient notice within the meaning of Federal Civil Rule 15(c) to the trustees prior to November 7,1971.
But even if this Court did not so find, defendant’s argument that service of process on November 17, 1971 does not meet the requirements of Rule 15(c) can only succeed if that Rule frowns automatically upon service effected ten days after the running of the analogous three-year Maryland limita
Initially this obligation is ordinarily satisfied by the defendant’s noting that the action was not commenced within the statutory time-parallel of laches, or by facts otherwise revealing a lack of vigilance. The second element — prejudice—must also be demonstrated by the defendant, but in this he is aided by the inference of prejudice warranted by the plaintiff’s delay. The plaintiff is then to be heard to excuse his apparent laggardness and to prove facts manifesting an absence of actual prejudice.
However, even if the delay be beyond the preceptive statutory period, or appear inordinate on other considerations, and although it be explained only insubstantially or not at all, the defendant is not relieved of his burden of proving prejudice. But he may either rest on the inference alone or introduce additional evidence.
In the end, the court weighs the excuse, or absence of excuse, against the actual or reasonably anticipated injury. On the equities then evident, the court allows or disallows the plea.
In this case, plaintiff seeks to excuse his delay in instituting action by his difficulties in determining the proper vessel owner and in procuring local counsel. Even assuming those excuses not to be too strong, a “weak excuse may suffice if there has been no prejudice.” Giddens, supra at 129 quoting Judge Friendly’s words in Larios v. Victory Carriers, Inc., supra 316 F.2d at
III.
In sum, plaintiff’s motion to amend effective November 4, 1971 is grounded upon sound principles. An appropriate Order granting that motion and also denying defendant’s motion to dismiss will accordingly be entered.
. Language quoted from page 1 of the trust instrument which is part of the record in this case.
. Id.
. See the first part of the third sentence of Rule 17(b), preceding the word “except”. Subsection (1) of the “except” clause is inapplicable in the ab
. And not including the vessel herein involved.
. Plaintiff has asked that such amendment be allowed even if, as this Court has held under I above, School’s motion to dismiss is denied.
. The plaintiff in Giddens sued within three years, but after more than two years, from the date of the alleged accident. In Giddens, there was available “[a]s the more pertinent analogy . . . the 3-year indulgence of the Jones Act,” Giddens, supra at 126, which Judge Bryan characterized (at 127) as “a more logical and acceptable polestar” than the Virginia two year personal injury limitations period. Thus, the plaintiff did not apparently need the beneficent fluidity of laches to save him from the more rigid bar of limitations. But Judge Bryan’s reasoning in Giddens speaks generally to the applicability of state limitations provisions in personal injury suits governed by the law of admiralty, and emphasizes the subjection of those limitations provisions to the principles of laches. Accordingly, Judge Bryan’s words in Giddens provide applicable guidelines herein.
. In view of the close interrelationship of the trust, i. e., School, and the corporate defendant, there is little merit in defendant School’s contention of lack of notice to the trustees of School when the corporate defendant was served on November 10, 1971. Thus, the latest date which the trustees of the defendant School could be heard to assert is November 10, 1971, only three days after the November 7, 1971 deadline, a short period indeed in the context of laches.
. Judge Friendly also added (at 67) “. . . an exceedingly good one might still do even when there has been some [prejudice].”
. See n. 7 supra.