United States District Court, D. Maryland
Xinis, United States District Judge.
before the Court are Defendants' motion to amend their
answer (ECF No. 154), Defendants' motion to withdraw
their offer on the location of depositions (ECF No. 155), and
Plaintiffs' Bill of Costs and Attorney's Fees. ECF
No. 66. The motions are fully briefed, and no hearing is
necessary. See Loc. R. 105.6. For the following
reasons, the Court denies Defendants' motions (ECF Nos.
154, 155) and grants in part and denies in part
Plaintiffs' Bill of Costs. ECF No. 66.
Court has written extensively on this case and so will
summarize the facts and procedural posture relevant to the
December 2, 2014, Seldon Loring was killed when traveling on
an aircraft that crash-landed in the ocean off the coast of
the Bahamas. ECF No. 109 ¶ 39. Seldon Loring had
purchased his ticket from Southern Air Charter Company, Ltd.
(“Southern Air Bahamas”), but was told to board a
plane registered to Fergs Air Limited (“Fergs
Air”). Id. ¶¶ 30-31. On November 30,
2016, Seldon Loring's wife, Aila Tuulikki Loring, and
their two children, Leila Loring and Jaana Loring Melia,
brought a wrongful death action under the Death on the High
Seas Act, 46 U.S.C. § 762 et seq., against
Southern Air Bahamas, Southern Air Charter Company, Ltd.
(“Southern Air Maryland”), and Alpha Gibbs
(“Gibbs”). ECF No. 1. According to Plaintiffs,
Gibbs incorporated Southern Air Maryland and serves as chief
financial officer of Southern Air Bahamas. ECF No. 109
¶¶ 5, 21.
Air Bahamas contested personal jurisdiction (ECF No. 12), and
the Court granted jurisdictional discovery. ECF No. 31. After
Defendants' repeated, willful failures to comply with
such discovery, the Court found that Southern Air Bahamas
waived its objection to personal jurisdiction. ECF No. 65 at
2. The Court thus found that it retained personal
jurisdiction over all Defendants and ordered Gibbs and
Southern Air Bahamas to answer the Amended Complaint by no
later than February 1, 2018. Id. at 3. Defendants
timely answered. ECF Nos. 67, 71-73; see also Fed. R.
Civ. P. 12(a)(4) (“Unless the court sets a
different time, serving a motion under this rule alters
these periods as follows: (A) if the court denies the motion
or postpones its disposition until trial, the responsive
pleading must be served within 14 days after notice of the
court's action . . . .”) (emphasis
Court also granted sanctions against Gibbs and ordered
payment of “all reasonable expenses in connection with:
1. Preparing and filing all pleadings (including letter
pleadings) relevant to the delinquent discovery production;
2. All lodging and transportation costs for Plaintiff's
counsel to attend the January 25 and February 1, 2018
hearings.” ECF No. 65. Plaintiffs have submitted a Bill
of Costs for the Court's approval. ECF No. 66.
the grave error of their ways, Defendants extended a
discovery olive branch to Plaintiffs, offering “to
travel to Massachusetts [where Plaintiffs' counsel is
located] for any deposition.” ECF No. 145 at 41; ECF
No. 146 at 17; ECF No. 79 at 3. The parties memorialized this
agreement both in writing and in open court. Defendants have
since hired new counsel who now wish to withdraw this offer,
arguing that the scope of the offer was unclear and the cost
associated with such travel excessive. ECF No. 155.
Defendants, through new counsel, also seek to amend their
answer to the Amended Complaint to withdraw certain
concessions and provide “accurate and fair
responses.” ECF No. 154 at 1. The Court addresses each
pending motion in turn.
Motion to Amend Complaint
plaintiff may amend pleadings only once without leave of
court, if the plaintiff complies with specified timeframes.
Fed.R.Civ.P. 15(a). Thereafter, courts “should freely
give leave when justice so requires.” Fed.R.Civ.P.
15(a)(2). Leave may be denied, however, when allowing
amendment would “be prejudicial to the opposing party,
when the moving party has acted in bad faith or with a
dilatory motive, or when the amendment would be
futile.” Arora v. James, 689 Fed.Appx. 190,
190 (4th Cir. 2017) (quoting Laber v. Harvey, 438
F.3d 404, 426 (4th Cir. 2006)) (internal quotation marks
Air Maryland filed its first answer on January 16, 2017. ECF
No. 13. Rather than answer, Southern Air Bahamas and Gibbs
filed motions to dismiss. ECF Nos. 11-12. The motions were
withdrawn on June 12, 2017, and Defendants were permitted
refile them at the close of jurisdictional discovery. ECF No.
38. After the Court found that personal jurisdiction was
waived on January 25, 2018 (ECF No. 65 at 2), on January 31,
2018, Defendants timely answered. ECF Nos. 67, 65 at 3;
see also supra nn. 1-2. Nearly nine months later,
Defendants seek leave to amend this answer, or alternatively,
to allow Southern Air Maryland's first answer to function
as the answer for all Defendants. ECF No. 154 at 17 n.13.
argue that leave to amend should be granted because prior
counsel made inaccurate and unauthorized admissions in the
January 2018 answer. ECF No. 154 at 4. Of particular note,
Defendants now attempt to deny that Southern Air Bahamas and
Southern Air Maryland “were the alter-ego of each other
and operated in concert as a single corporate entity.”
ECF No. 154-4 ¶ 28. Defendants also attempt to deny that
the crashed flight was “Southern Air Flight 302,
” and instead wish to name it a Fergs Air flight.
Id. ¶ 58. Finally, Defendants seek to include
defenses, including that the Court lacks personal
jurisdiction and that Maryland is an inconvenient forum,
although both issues were resolved by the Court and neither
defense is marked as new material in the redlined copy of the
proposed answer. Id. at 49; ECF No. 65 at 2
(personal jurisdiction); ECF Nos. 120-1 (forum non
conveniens); see also Loc. R. 103.6.c (requiring new
material in an amended pleading to be underlined or set forth
in bold-faced type).
rightfully respond that they spent nearly two years
“endeavoring to prove that the two Southern Air
entities were one and the same, while defendants stonewalled
discovery” before eventually conceding the point.
Id. Accordingly, to allow amendment now-so that
Defendants may contest that which has been admitted-would
work substantial prejudice on Plaintiffs. ECF No. 157 at 6-7.
Plaintiffs also argue that a change in counsel is
insufficient reason to permit amendment. Id. at 4,
11. For the following reasons, the Court will not allow
Defendants to unring this bell.
beyond dispute that Defendants “substantially stalled
the progress of this case and placed Plaintiffs at a distinct
disadvantage for several months” (ECF No. 65 at 2).
Although “[m]ere delay” is insufficient to deny
leave to amend, Barnes Grp., Inc. v. C & C Prods.,
Inc., 716 F.2d 1023, 1035 n.35 (4th Cir. 1983),
Defendants have done far more. For over two years,
Defendants' machinations have obfuscated court processes
and stonewalled discovery so significantly that the Court had
to hold a contempt proceeding and impose sanctions. ECF No.
65. The Court will not permit Defendants to build upon the
prejudice visited on Plaintiffs by allowing them to
“redo” their answers. Nor does a change in
counsel entitle Defendants to amendment. Rangarajan v.
Johns Hopkins Health Sys. Corp., No. ...