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Loring v. Southern Air Charter Company Ltd.

United States District Court, D. Maryland

January 11, 2019

AILA TUULIKKI LORING, et al., Plaintiffs


          Paula Xinis, United States District Judge.

         Pending 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.

         I. Background

         The Court has written extensively on this case and so will summarize the facts and procedural posture relevant to the pending motions.

         On 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.

         Southern 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;[1] 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 added).[2]

         The 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.

         Recognizing 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.

         II. Motion to Amend Complaint

         A plaintiff may amend pleadings only once without leave of court, if the plaintiff complies with specified timeframes. Fed.R.Civ.P. 15(a).[3] 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 omitted).

         Southern 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.

         Defendants 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).

         Plaintiffs 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.

         It is 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. ...

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