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26 ORDER GRANTING MOTION TO AMEND - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EDDIE HERNANDEZ, 

Plaintiff,

v.

57 DEGREES NORTH, LLC, et al.,

Defendants.

Case No. C06-1098L

ORDER GRANTING 

MOTION TO AMEND

I. INTRODUCTION

This matter comes before the Court on a motion filed by defendant 57 Degrees

North, LLC (“57 Degrees”) to amend its answer to assert an additional affirmative

defense, entitlement to limitation of liability pursuant to 46 U.S.C. § 181 et seq. (Dkt.

#24). The statute allows a shipowner to limit its liability to the value of the owner’s

interest in the vessel involved in the incident. Plaintiff opposes the motion.

For the reasons set forth in this order, the Court grants the motion.

II. DISCUSSION

Plaintiff alleges claims for Jones Act negligence and unseaworthiness. He alleges

that he was injured while working aboard the F/V Ballyhoo on October 15, 2003. 

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26 ORDER GRANTING MOTION TO AMEND - 2

Plaintiff asserts that an unsecured crab pot fell over due to a vessel roll and struck both of

his legs while he was working. Plaintiff filed his complaint on August 3, 2006. Trial is

set for December 3, 2007.

Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P.

15(a). The Court considers four factors in deciding whether to grant leave to amend:

“bad faith, undue delay, prejudice to the opposing party, and the futility of amendment.” 

Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). A proposed amendment is futile if it

could be defeated by a motion to dismiss or if plaintiff cannot prevail on the merits. See,

e.g., Smith v. Commanding Officer, 555 F.2d 234, 235 (9th Cir. 1977).

Plaintiff argues that 57 Degrees waived the affirmative defense because it failed to

raise it earlier. The Court finds that no waiver occurred because 57 Degrees has timely

moved to amend its answer. The deadline for amending pleadings is June 6, 2007, and

the discovery cutoff is August 5, 2007. Furthermore, although 57 Degrees previously

amended its answer to delete a counterclaim, a party can move to amend more than once.

The Court will not penalize a party for simplifying the proceedings by deleting a claim or

counterclaim.

Plaintiff also argues that 57 Degrees has caused delay by waiting to file this

motion until after plaintiff filed a motion for partial summary judgment. Defendants’

counsel, however, contacted plaintiff’s counsel to seek his agreement to the amendment

before plaintiff filed his motion. There is also no evidence that any delay was strategic or

in bad faith. Instead, defense counsel asserts that additional facts learned in December

2006 prompted the proposed amendment. Also, plaintiff’s pending motion will not

dispose of the entire case, so this amendment will not delay resolution. Plaintiff further

asserts that he will be prejudiced and resolution will be delayed because he has already

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26 ORDER GRANTING MOTION TO AMEND - 3

inspected the vessel, and it has since been sold. 57 Degrees asserts, and plaintiff has not

disputed, that the vessel is still in the area and plaintiff is welcome to inspect it again. 

Although plaintiff may incur some additional expense, he will not be prejudiced or

delayed, as discovery is ongoing.

Plaintiff argues that he will incur prejudice because 57 Degrees discouraged him

from taking the deposition of the first mate by stating that it would not contest liability.

The deposition can be rescheduled, so plaintiff has not been prejudiced. Finally, plaintiff

argues that the amendment would be futile, but it does not appear futile based on the

current record.

III. CONCLUSION

For the foregoing reasons, the Court GRANTS 57 Degrees’ motion (Dkt. #24).

57 Degrees may file an amended answer in the docket within ten days of the date of this

order.

DATED this 20th day of February, 2007.

A

Robert S. Lasnik

United States District Judge

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