United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
E. BOASBERG UNITED STATES DISTRICT JUDGE
response to a Memorandum Opinion granting in part
Entertainment Cruises and its subsidiary Spirit Cruises'
motion to dismiss, pro se Plaintiff Tamea Grant
seeks again to plead a cause of action under the federal
Jones Act, a maritime statute. Although her proposed Second
Amended Complaint is somewhat convoluted on this score, the
Court will nevertheless grant her Motion.
explained in the prior Opinion, this case finds its genesis
in Grant's work as a deckhand on vessels operated by
Spirit Cruises in the District of Columbia's harbor.
Grant v. Entertainment Cruises, Inc. (Grant
I), 2017 WL 4675737, at *1 (D.D.C. Oct. 16, 2017). While
her factual allegations remain rather opaque, the ship
captain's purported negligence on an April 2015 cruise
apparently resulted in certain injuries to Grant's head
and elbow. Id. Plaintiff subsequently filed two
essentially identical actions, one against Spirit and the
other against its parent company, Entertainment Cruises, both
in District of Columbia Superior Court. After removal on
diversity grounds, this Court consolidated the cases.
See No. 17-1410, Minute Order of Aug. 29, 2017.
Amended Complaint set out four causes of action, all found in
the D.C. Code: violations of §§ 32-1103(a) &
1117(e) (occupational safety), 32-808(a) (safe place of
employment), and 12-301(8) (statute of limitations).
Grant I, 2017 WL 4675737, at *1. Additionally, the
Amended Complaint in No. 17-1410 obliquely referenced a claim
under 46 U.S.C. § 30104 (Jones Act) and “federal
maritime law.” Id. In the prior Opinion, this
Court dismissed all of her counts, except for that under
§ 32-808(a), which alleged Defendants had negligently
failed to furnish a safe place of employment. Id. at
*2-3. As to her claim under the Jones Act, which pertains to
injured seamen, the Court found Grant had insufficiently pled
that cause of action, but permitted her leave to amend.
Id. at *3. She has now done so.
explaining her new allegations, the Court pauses to note
that, as Defendants correctly point out, the Order
accompanying the prior Opinion incorrectly stated that
“[a]ll causes of action in both cases are DISMISSED
WITH PREJUDICE, with the exception of Count II.” ECF
No. 29. The dismissal of the Jones Act claim, as the Opinion
expressly noted, was actually “without
prejudice.” Grant I, 2017 WL 4675737, at *3
(emphasis added). As a result, Grant is clearly within her
rights to seek amendment.
prior Amended Complaint, the heading for Count IV had
included language saying, “Pursuant to Personal Injury,
U.S. Code 46 § 30104, Federal Maritime Law, Based on
Negligence.” No. 17-1410, ECF No. 16 at p. 13. The body
of the count, however, said nothing about the Jones Act,
which is indeed found at § 30104, or how Grant satisfied
the elements of pleading such a claim. See Grant I,
2017 WL 4675737, at *3. This time around, she alters the
language in the heading of Count IV, which now refers to
“U.S.C. Title 46, Appendix-Shipping, Chapter
18-Merchant Seamen (§668), Subchapter VII - Protection
and Relief, Recovery for Injury to or Death of a Seaman . . .
Admiralty, Maritime, and Prize Cases and General Maritime
Law.” ECF No. 33 at ECF p. 14. In addition, in the body
of the count, Plaintiff alleges that Defendants behaved
negligently on the April 15 cruise, thereby causing her
injuries. The cruise lines contest such amendment.
Standard of Review
plaintiff may amend her complaint once within 21 days of
serving it or within 21 days of the filing of a responsive
pleading. See Fed.R.Civ.P. 15(a)(1). Otherwise, she
must seek consent from the defendant or leave from the court.
The latter permission “should [be] freely give[n] . . .
when justice so requires.” Fed.R.Civ.P. 15(a)(2). In
deciding whether to grant leave to file an amended complaint,
courts may consider “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). In this Circuit,
“it is an abuse of discretion to deny leave to amend
unless there is sufficient reason.” Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).
“The defendant bears the burden of demonstrating that a
plaintiff's motion to file an amended complaint should be
denied.” Clayton v. District of Columbia, 999
F.Supp.2d 178, 183 (D.D.C. 2013).
clear, as mentioned, that amendment should not be permitted
if it would be futile. Foman, 371 U.S. at 182
(noting “futility of amendment” is permissible
reason to deny Rule 15(a) motion). In other words, if the new
or amended causes of action would still be deficient
notwithstanding the proposed amendment, courts need not grant
leave. In re Interbank Funding Corp. Securities
Litigation, 629 F.3d 213, 218 (D.C. Cir. 2010)
(“[A] district court may properly deny a motion to
amend if the amended pleading would not survive a motion to
dismiss.”); James Madison Ltd. v. Ludwig, 82
F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny a
motion to amend a complaint as futile . . . if the proposed
claim would not survive a motion to dismiss.”).
Plaintiff's latest effort now cites 46 U.S.C. § 668,
a former iteration of the Jones Act, the Court, reading her
pro se pleading liberally, believes she desires to
rely on the current version of that statute. The Act, which
“created a statutory cause of action for negligence,
” Atlantic Sounding Co., Inc. v. Townsend, 557
U.S. 404, 415 (2009), entitles “[a] seaman injured in
the course of employment . . . to bring a civil action at law
. . . against the employer.” 46 U.S.C. § 30104. As
the Supreme Court has explained, “The Jones Act does
not define ‘seaman.' . . . [W]e assume that when a
statute uses such a term, Congress intended it to have its
established meaning.” McDermott Intern., Inc. v.
Wilander, 498 U.S. 337, 342 (1991) (citations omitted).
The Court ultimately held that “the key to seaman
status is employment-related connection to a vessel in
navigation.” Id. at 355.
a number of Jones Act cases revolve around whether a
plaintiff's employment is sufficiently connected to the
vessel's voyage, there is no dispute on that front here,
given that Grant was a deckhand on the ship for two months.
See Harbor Tug and Barge Co. v. Papai, 520 U.S. 548,
554 (1997) (“an employee's duties must contribut[e]
to the function of the vessel or to the accomplishment of its
mission”) (internal quotation marks and citation
omitted; alteration in original). The next question is
whether the boat was a “vessel in navigation.”
See, e.g., O'Hara v. Weeks Marine,
Inc., 928 F.Supp. 257, 259 (E.D.N.Y. 1996) (holding
materials barge used as work platform not vessel in
navigation). Defendants here do not contend that a ship
providing a harbor cruise is somehow unprotected, and, in
fact, “a watercraft need not be in motion to qualify as
a vessel.” Stewart v. Dutra Const. Co., 543
U.S. 481, 495 (2005). This is, moreover, typically a factual
issue for the jury. Chandris, Inc. v. Latsis, 515
U.S. 347, 373 (1995) (“the underlying inquiry whether a
vessel is or is not ‘in navigation' for Jones Act
purposes is a fact-intensive question that is normally for
the jury and not the court to decide”).
are no doubt correct that the claim could have been better
and more clearly pled, but the Court believes that it
sufficiently alleges negligence on a vessel in navigation to
survive a motion to dismiss. In any event, as Defendants
themselves recognize, see Opp. at 3, the count is
essentially duplicative of the other negligence count.
Although certain common-law defenses may not be available,
see Rannals v. Diamond Jo Casino, 265 ...