Rollin v. Kimberly Clark Tissue Co.

211 F.R.D. 670, 2002 A.M.C. 898, 2001 U.S. Dist. LEXIS 24867, 2001 WL 34047313
CourtDistrict Court, S.D. Alabama
DecidedDecember 13, 2001
DocketNo. 01-0122-CB-L
StatusPublished
Cited by2 cases

This text of 211 F.R.D. 670 (Rollin v. Kimberly Clark Tissue Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rollin v. Kimberly Clark Tissue Co., 211 F.R.D. 670, 2002 A.M.C. 898, 2001 U.S. Dist. LEXIS 24867, 2001 WL 34047313 (S.D. Ala. 2001).

Opinion

ORDER

BUTLER, Chief Judge.

This matter comes before the Court on the Motion to Dismiss (Docs. 53 & 54), filed by Troy H. Middleton, III, M.D., Neurosurgery, P.A., and Coastal Neurological Institute, P.A. (collectively, “Dr.Middleton”), the response thereto (Docs. 57 & 58), filed by Kimberly Clark Tissue Co. (“Kimberly Clark”), Dr. Middleton’s subsequent reply (Doc. 60), and Kimberly Clark’s sur-reply (Doc. 62). After careful review of the pleadings, the argu[672]*672ments of the parties, and relevant case law, the Court finds that Dr. Middleton’s motion is due to be GRANTED.

I. Background

This case arises from an accident aboard the ship Fast Eddie, and subsequent medical treatment provided by Dr. Middleton, that allegedly caused Plaintiff to suffer spinal injuries and undergo further surgery. On July 31, 2000, Plaintiff filed suit in the United States District Court for the Eastern District of Louisiana, bringing claims under the Jones Act for negligence and under general principles of admiralty and maritime law for unseaworthiness and failure to provide maintenance and cure. (Doc. 1). To determine the potential liability of Kimberly Clark on these facts, Plaintiff demanded a jury trial. Id.

On January 25, 2001, Kimberly Clark answered Plaintiffs complaint and moved to transfer venue to this Court, (Doc. 12). Such motion was granted on February 12, 2001, (Doc. 14), and Plaintiff then moved to consolidate this claim with another action pending before the Court.1 (Doc. 29). With Kimberly Clark voicing no objection save that such consolidation should not prejudice its right to file a third-party complaint pursuant to Rule 14 of the Federal Rules of Civil Procedure within ten days of its answer to Plaintiffs complaint in the second action, (Doc. 33), the Court consolidated the two actions, with leave for Kimberly Clark to file a third-party complaint. (Doc. 38). Kimberly Clark subsequently filed its Third-Party Complaint, seeking indemnification or contribution from Dr. Middleton.

II. Conclusions of Law

A. Joinder

1. Rule 11(c)

Kimberly Clark claims that it properly joined Dr. Middleton under Rule 14(c) of the Federal Rules of Civil Procedure.2 Where a plaintiffs claims have multiple bases for jurisdiction, as here, the availability of Rule 14(c) joinder turns on the language contained in the original plaintiffs complaint. If the plaintiff explicitly identifies his or her claim as an admiralty or maritime claim within the meaning of Rule 9(h), the defendant may utilize Rule 14(c). The failure of a plaintiff to include such an explicit identifying statement, though, has been held to foreclose Rule 14(c) practice. See Smith v. Pinell, 597 F.2d 994 996-97, n. 2 (5th Cir.1979) (finding a mere statement that “[t]his is a case of Admiralty and Maritime Jurisdiction” insufficient to invoke Rule 9(h) in a complaint alleging Jones Act negligence and general maritime law unseaworthiness); Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1418 (E.D.La.1988) (requiring an explicit reference to Rule 9(h) in complaint presenting multiple bases of jurisdiction for defendant to utilize Rule 14(c)). In addition, Official Forms 2 and 15 of the Federal Rules of Civil Procedure suggest that a plaintiff seeking to [673]*673bring his or her complaint within the purview of Rule 9(h) include a statement to the effect of “[t]his is an admiralty or maritime claim within the meaning of Rule 9(h).” Because Plaintiffs Complaint raises additional bases of jurisdiction beyond admiralty but makes no reference at all to Rule 9(h), the Court finds that Plaintiffs complaint is not “within the meaning of Rule 9(h),” as required by Rule 14(c).

Even without requiring an explicit identifying statement, the Court would find Plaintiffs complaint outside the boundaries of Rule 9(h) because of Plaintiffs plain and repeated demands for a jury. No right to a jury trial exists in admiralty cases. Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032, 1037 (11th Cir.1996) (citing Waring v. Clarke, 46 U.S. (5 How.) 441, 459, 12 L.Ed. 226 (1847)). Moreover, “[i]t is no part of the purpose of unification [of maritime and civil procedure] to inject a right to jury trial into those admiralty cases in which that right is not provided by statute.” Fed. R. Civ. P. 9, Advisory Committee Notes, 1966 Amendment. Plaintiffs demands for a jury trial thus conclusively demonstrate that he does not seek the special procedures protect by Rule 9(h), which renders Rule 14(c) unavailable to Kimberly Clark.

2. Rule 14(a)

Even if it failed to properly join Dr. Middleton under Rule 14(c), Kimberly Clark submits that it met the requirements of Rule 14(a) of the Federal Rules of Civil Procedure. Dr. Middleton argues that Kimberly Clark failed to file its Third-Party Complaint under Rule 14(a) within the time frame for doing so without leave of court. Notably, a “third-party plaintiff need not obtain leave [to file a third-party complaint] if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer.” Fed. R. Civ. P. 14(a). Kimberly Clark never sought leave to file its Third-Party Complaint.

When computing any filing deadline, “the day of the act... from which the designated period of time begins to run shall not be included.” Fed. R. Civ. P. 6(a). Moreover, whenever “the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” Id. As Kimberly Clark filed its Answer on August 2, 2001, its time for filing a third-party complaint began to run on August 3, 2001. Excepting weekends, August 16, 2001 represented the last day on which Kimberly Clark could file a third-party complaint. Because Kimberly Clark indeed filed its Third-Party Complaint on August 16, 2001, it did so in a timely manner, and joinder of Dr. Middleton was thus possibly procedurally proper.

B. Admiralty Jurisdiction

Kimberly Clark posits that the instant claims concern maritime torts, and therefore support admiralty jurisdiction. Even if the Court does not find admiralty jurisdiction over the tort claims, Kimberly Clark seeks leave to amend its complaint to include a claim for breach of warranty under admiralty contract principles.

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Bluebook (online)
211 F.R.D. 670, 2002 A.M.C. 898, 2001 U.S. Dist. LEXIS 24867, 2001 WL 34047313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rollin-v-kimberly-clark-tissue-co-alsd-2001.