UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

IN THE MATTER OF DELTA TOWING, )

LLC, AS OWNER OF THE M/V DELTA )

AMBER, AND DELTA MARINE SERVICE,)

INC., AS PURPORTED OWNER, ) CIVIL ACTION NO. 15-00128-KD-M

BROKER, CHARTERER, OR PRO HAC )

VICE OWNER OF THE M/V DELTA )

AMBER, FOR EXONERATION FROM )

OR LIMITATION OF LIABILITY. )

MIKE HOOKS, INC., and )

GULF COAST MARINE, LLC, )

PLAINTIFF, )

)

V. ) CIVIL ACTION NO. 15-00136-KD-N

)

DELTA TOWING, LLC and )

DELTA MARINE SERVICES, INC. )

DEFENDANTS. )

BILLY LEE, )

PLAINTIFF, )

)

v. ) CIVIL ACTION NO. 15-00295-KD-N

)

MIKE HOOKS, INC., OWNER OF THE )

M/V NICHOLAS, in personam. )

DEFENDANT.1 )

ORDER 

This action is before the Court on Plaintiff Billy Lee’s motion to amend his complaint2

(doc. 30) to allege unseaworthiness as to the M/V Nicholas and the M/V Delta Amber, 

 1 In the Matter of Mike Hooks, Inc., as Owner of the M/V Nicholas, Petitioning for Exoneration 

from, or Limitation of Liability, Civil Action No. 15-00330-KD-B, was dismissed October 26, 

2015 (doc. 86). 

2

 In the original complaint, Lee alleged a claim of negligence against Mike Hooks, Inc. (doc. 

30), p. 4). 

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negligence per se, and Jones Act Negligence against Defendant Mike Hooks, Inc. (doc. 102), the 

response in opposition filed by Hooks (doc. 106), and Lee’s reply (doc. 113). Upon 

consideration and for the reasons set forth herein, the motion is GRANTED and Lee shall file 

his first amended complaint on or before May 23, 2016. 

Pursuant to the Rule 16(b) Scheduling Order, the deadline for amendment of pleadings 

expired November 20, 2015. Lee’s motion was filed on February 19, 2015 approximately three 

months beyond the deadline. Therefore, the Court applies the “good cause” standard found in 

Fed. R. Civ. P. 16(b)(4), which provides for modification of the Rule 16(b) Scheduling Order 

“only for good cause and with the judge’s consent”. The “good cause” requirement “precludes 

modification unless the schedule cannot be met despite the diligence of the party seeking the 

extension.” Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir.1998) (citation and 

internal quotation marks omitted). Generally, “[t]o establish good cause, the party seeking the 

extension must have been diligent.” Romero v. Drummond Co., 552 F.3d 1303, 1319 (11th Cir. 

2008). Diligence and not lack of prejudice to the opposing party, determines whether the 

schedule should be modified. De Varona v. Discount Auto Parts, LLC, 285 F.R.D. 671, 672–73 

(S.D. Fla. 2012) (“In short, diligence is the key to satisfying the good cause requirement.”). 

Lee argues that good cause exists to allow the amendment because discovery of facts, 

unknown at the time of his original complaint, support the additional causes of action against 

Hooks. Lee points out that after depositions in late January 2016 and receipt of the Coast Guard 

Incident Investigation Report, he learned the extent of Hooks’ actions and inactions and the 

nature and extent of its control over the M/V Delta Amber. 

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Hooks argues3 that lack of diligence in pursuing discovery precludes a finding of good 

cause and that Lee cannot meet his burden to show the requisite diligence. Hooks points out that 

“Lee did not propound any discovery to Mike Hooks, insist on depositions to be taken, keep to 

his first deposition scheduled for September 15, 2015 (which he unilaterally cancelled), or 

request an extension of the amendment deadlines.” (Doc. 106, p. 4, parenthetical in original) 

Review of the docket indicates that on two occasions, the parties jointly moved to 

continue the deadlines set forth in the Rule 16(b) Scheduling Order. Although these joint 

motions were filed after the deadline for amendment to pleadings, in each motion, the parties 

state that they all diligently pursued discovery (doc. 91, “the parties have diligently pursued 

discovery in this case”; doc. 107, “Through today’s date all parties have been diligent in 

discovery efforts . . . Given all parties have diligently pursued discovery ...”). Both motions 

were granted, and upon granting the latter, the trial was continued from the October 2016 trial 

term to the January 2017 trial term. Discovery now ends August 5, 2016 and dispositive motions 

are due August 26, 2016 (doc. 110). Upon consideration of the foregoing joint representations of 

the parties and Lee’s representations in the motion to amend, the Court finds that Lee has 

exercised diligence in pursuing discovery and that good cause exists for allowing a modification 

to the Scheduling Order for the narrow purpose of allowing Plaintiff Lee to amend his complaint. 

Now, the Court must determine whether leave to amend should be granted. See Fed. R. 

Civ. P. 15(a). In Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962), the Supreme 

Court explained that leave should be given “[i]f the underlying facts or circumstances relied 

 3

 Hooks also argues that Lee cannot file any new pleadings because Civil Action No. 15-00295-

KD-N was “administratively closed pending resolution of the limitation of liability proceeding”. 

This argument is misplaced. The consolidation order states, in relevant part, that the 

“consolidated action shall proceed under the lower case number for all purposes” (doc. 29). The 

consolidation order did not stay the proceedings. 

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upon by the plaintiff may be a proper subject for relief.” Foman, 371 U.S. at 182. Therefore, 

“there must be a substantial reason to deny a motion to amend.” Laurie v. Ala. Ct. of Crim.App., 

256 F.3d 1266, 1274 (11th Cir.2001). Generally, a district court may deny leave to amend where 

there is a “substantial ground for doing so, such as ‘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, [and] futility of 

amendment.’” Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008) (brackets in original) 

quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.1999) (quoting Foman, 

371 U.S. at 82, 83 S.Ct. at 230)). 

The only factor that merits consideration is whether allowing Lee to amend his complaint 

would be futile. In this Circuit, “[l]eave to amend a complaint is futile when the complaint as 

amended would still be properly dismissed or be immediately subject to summary judgment for 

the defendant.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Therefore, a “district 

court may deny leave to amend a complaint if it concludes that the proposed amendment would 

be futile, meaning that the amended complaint would not survive a motion to dismiss.” 

Christman v. Walsh, 416 Fed.Appx. 841, 844 (11th Cir. 2011); Cockrell v. Sparks, 510 F.3d 

1307, 1310 (11th Cir. 2007). To reach a decision, the district court must accept “the allegations 

in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Nunez 

v. J.P. Morgan Chase Bank, 2016 WL 1612832, at *1 (11th Cir. Apr. 22, 2016) (quoting 

Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir.2011)). 

“Even when assertions in a complaint are arguably ambiguous, they should be construed in the 

light most favorable to the plaintiff.” Id. (citing Miccosukee Tribe of Indians of Fla. v. S. 

Everglades Restoration Alliance, 304 F.3d 1076, 1083–84 (11th Cir.2002). “To survive a 

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motion to dismiss, a complaint need only contain sufficient facts, accepted as true, to ‘state a 

claim to relief that is plausible on its face’ and must ‘raise a right to relief above the speculative 

level.’” Id., (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 555, 127 S.Ct. 1955, 1974 

(2007). Overall, if the proposed amended complaint could not survive scrutiny under Rule 

12(b)(6), then allowing the amendment would be futile and the motion for leave to amend should 

be denied. Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).

Hooks argues that the proposed amended claims for unseaworthiness and Jones Act 

negligence would fail because the alleged undisputed facts show that Lee was not an employee 

or borrowed employee of Hooks and was not a member of the crew of the M/V Nicholas. Hooks 

also argues that the claims are futile because the alleged undisputed facts show that Hooks was 

not the owner or owner pro hac vice of the M/V Delta Amber by virtue of a demise4 or bareboat 

charter of the M/V Delta Amber, but instead chartered the vessel for a time charter. Hooks 

argues that under the oral time charter, Delta Towing retained liability for seaworthiness of the 

M/V Delta Amber and liability to its employees under the Jones. Act. 

In response, Lee argues that the facts alleged regarding the demise or charter agreement 

and Hooks control, command and possession of the M/V Delta Amber, when viewed in the light 

most favorable to him5 establish that his unseaworthiness and Jones Act claims are not subject to 

dismissal. Lee also argues that application of the nine factors found in Ruiz v. Shell Oil Co., 413 

 4

 In support, Hooks states that “demise, or bareboat charters must be in writing.” (Doc. 106, p. 

7) However, Hooks did not cite any legal authority in support. Therefore, this statement does 

not advance the argument that Hooks is not the owner or owner pro hac vice of the M/V Delta 

Amber. 

5

 Lee also argues that his proposed amended complaint would survive a motion for summary 

judgment because taking the facts in the light most favorable to Hooks, the non-movant, 

demonstrates that there are genuine issues of material fact as to the extent of Hooks’ control over 

the M/V Delta Amber as well as the employer/employee relationship of Lee to Hooks. However, 

application of a summary judgment analysis is not necessary at this time. 

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F. 2d 310 (5th Cir. 1969) to the facts alleged, establishes that his Jones Act claims, based upon 

his status as Hook’s borrowed employee, are not subject to dismissal. 

The Court finds that the proposed amended complaint appears to contain “sufficient 

factual matter, accepted as true to state a claim to relief that is plausible on its face.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

570, 127 S.Ct. 1955 (2007)). The facts may end up showing that Lee was not an employee of 

Hooks, when thoroughly analyzed under the Ruiz factors. However at this stage of the litigation, 

the Court cannot say the claims are futile based on the limited facts of record. 

DONE and ORDERED this the 10th day of May 2016. 

s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE 

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