THOMAS G. WILSON, Magistrate Judge.
Claimant Willie J. Richardson, Jr., has filed a Motion to Dismiss and/or Transfer Venue (Doc. 14), arguing that the plaintiff's limitation action should be dismissed for improper venue in light of his earlier filed and related action. Upon consideration of the motion and responsive pleadings, arguments made at hearing, and post-hearing supplemental memoranda, I recommend that the motion be granted in part and this case be transferred to the United States District Court for the Southern District of Texas, Galveston Division.
On August 30, 2018, Willie J. Richardson, Jr., filed suit against Luhr Bros., Inc. (Luhr) and Bolivar Offshore Services, LLC (Bolivar) in the Southern District of Texas, asserting claims against both defendants under the Jones Act, 46 U.S.C. 30104, and the general maritime law of unseaworthiness (Doc. 14, Ex. A).
On September 25, 2018, Luhr initiated this action pursuant to the Limitation of Liability Act (Doc. 1).
On January 23, 2019, Richardson filed his instant motion, requesting dismissal of the limitation complaint for improper venue pursuant to Rule F(9) of the Supplemental Rules for Certain Admiralty and Maritime Claims (Doc. 14).
On February 5, 2019, Luhr responded that it was not required to file its limitation action in that district. It argued that Richardson's complaint did not include a claim with respect to which it sought to limit liability because each claim pertained solely to the Blue Marlin, Luhr did not own the Blue Marlin, and no claims involving the LB 148 were alleged (Doc. 17). Luhr maintained that it properly filed its limitation action in this district because the LB 148 had not been arrested or attached, it had not been sued, and it was located in this district at the time of filing (
On February 8, 2019, Richardson sought leave to file an amended complaint in the Texas action to "clarify the identity of the vessels involved in the incident..." (Doc. 36, Exh. A, p. 2, ¶ 4). He added that, at the time of the incident, he "was employed in the service of the Blue Marlin and then was instructed to board the workboat LB 148 to assist in changing out anchor buoy lights ..." (
On April 11, 2019, I held a hearing on Richardson's motion. While the issue was not raised in the motion or pleadings, counsel were asked to address the import of relation back under Fed. R. Civ. P. 15(c), i.e., whether Richardson's first amended complaint related back to the date of his original complaint. In that event, Luhr would be deemed to have been sued as the owner of the LB 148 in the Southern District of Texas before it filed its limitation complaint here, and Supplemental Rule F(9) would direct that its complaint be filed in Texas. Consequently, determining the applicability of relation back would dictate the proper venue provision under Supplemental Rule F(9) and, in turn, resolve the dispute. As directed, Richardson and Luhr both filed post-hearing supplemental memoranda (Docs. 33, 36).
The issue here is whether the limitation complaint was properly filed in this district. Supplemental Rule F(9) pertinently provides that where, as here, a vessel has not been attached or arrested, the complaint shall be filed "in any district in which the owner was sued," but if "suit has not been commenced against the owner, the proceedings may be had in the district in which the vessel may be." Fed. R. Civ. P. Supp. Rule F(9).
The problem here is that Richardson sued Luhr in the Southern District of Texas before this suit was filed, but he got the name of the vessel owned by Luhr wrong. Thus, he incorrectly alleged that Luhr owned the Blue Marlin, rather than LB 148. However, after Luhr filed its limitation complaint in this court, Richardson amended his complaint in the Texas action to allege that Luhr owned the LB 148. If that amendment relates back to the date Richardson filed his initial complaint against Luhr in the Texas action, Supplemental Rule F(9) would direct that Luhr's limitation complaint be filed in Texas.
Federal Rule of Civil Procedure 15(c)(1)(B) provides:
Richardson's amended complaint falls squarely within the terms of Rule 15(c)(1)(B). Thus, the amended complaint iterates the occurrence set out in the original complaint. The only difference is that in two places it adds "LB 148" (Doc. 23, Ex. 1, ¶¶ 5-6). The occurrence, however, remains the same in the amended complaint. Significantly, Luhr does not contend that the amendment fails to allege a claim that arose out of the "occurrence set out—or attempted to be set out—in the original pleading."
Luhr asserts three reasons why relation back should not apply in these circumstances: (1) venue must be determined based on the facts as they existed at the time of filing; (2) relation back under Rule 15(c) is limited to the context of statute of limitations; and (3) irrational results could be reached if relation back was used in determining venue (Doc. 36). These contentions are unpersuasive.
First, I recognize that Rule 15(c)'s relation-back principles generally are applied only with reference to the statute of limitations.
The only mention of statute of limitations in Rule 15(c) is in subsection (1)(A), which states that relation back applies when "the law that provides the applicable statute of limitations allows relation back." Fed. R. Civ. P. 15(c)(1)(A). That provision, which permits relation back in statute of limitations situations, does not restrict relation back to those situations. Moreover, the applicable provision of Rule 15(c) in this case — Rule 15(c)(1)(B) — does not even mention statute of limitations. Therefore, the wording of Rule 15(c) does not support Luhr's contention that the doctrine of relation back applies only when the statute of limitations is implicated.
To the contrary, in
Luhr points to the statement in
Second, Luhr is correct that venue is generally determined based on the facts at the time of filing.
Third, Luhr asserts that the use of the relation-back doctrine in determining venue could lead to irrational results. In this respect, Luhr argues that claimants could delay amending a complaint until after the issue of venue has been considered and thus pose problems for the court or the limitation plaintiff (Doc. 36, p. 9, ¶ 27).
In the circumstances of this case, that contention is disingenuous. Luhr initiated its limitation action in this district less than four weeks after Richardson brought suit against it in Texas, yet made no mention of the suit. Rather, Luhr relied on Richardson's failure to identify the LB 148 in the Texas action to support its venue allegations in this district and did so with the knowledge that the LB 148 was involved in incident alleged in Richardson's complaint. Thus, Luhr cannot plausibly claim to be surprised by Richardson's amendment of the complaint.
Moreover, the problems that Luhr asserts could result from permitting an amended complaint to relate back in connection with the question of venue are overstated and speculative. Under Rule 15, Fed. R. Civ. P., a plaintiff only has a right to amend his complaint within twenty-one days; after that it requires leave of court or the opposing party's consent.
Upon finding that Richardson's first amended complaint relates back to the original complaint, the facts contained therein are considered as the facts that existed at the time Luhr filed its limitation action, which affects the venue determination under Supplemental Rule F(9). The factual allegations in the amended complaint establish that Luhr, as owner of the LB 148, was sued in Texas with respect to the incident of May 31, 2018. Given those allegations, Supplemental Rule F(9) requires that Luhr file its limitation action in the Southern District of Texas.
Supplemental Rule F(9) states that, if venue is improper, "the court shall dismiss [the action] or, if it be in the interest of justice, transfer the action to any district in which it could have been brought."
Under the circumstances here, dismissal of this action is not warranted. Dismissal would be prejudicial to Luhr in that it would likely be barred from refiling a limitation action in Texas because the six-month period of time within which to file a limitation action has expired.
Accordingly, I find that it is in the interests of justice and judicial economy to transfer this action to the Southern District of Texas.
For the foregoing reasons, I recommend that Richardson's Motion to Dismiss and/or Transfer Venue (Doc. 14) be granted to the extent that this case be transferred to the United States District Court for the Southern District of Texas, Galveston Division.