Opinion
Civil Action 01-2600, Section "T" (1)
April 10, 2002
This cause came for hearing on April 10, 2002, upon the motion of defendant/third-party plaintiff, Port Ship Service, Inc., for reconsideration and reinstatement of the third-party complaint. Oral argument was not entertained by the Court, as such, this matter was considered on submission of the briefs only. The Court, having considered the defendant/third-party plaintiff's motion, the case record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
On August 23, 2001, the plaintiff, Tristar Marine, Inc., filed this suit to recover damages incurred when an air compressor, being transported aboard the M/V RAE ANN by defendant, Port third-party complaint on October 30, 2001, naming the United States as a third-party defendant. Port Ship, as third-party plaintiff, asserts that the USNS BELLATRIX caused an excessive wake that caused the compressor to be lost overboard from the small launch vessel, the M/V RAE ANN.
By Minute Entry dated November 7, 2001, this Court warned that unless service was made on the United States within 120 days of filing the complaint or good cause shown in writing for the failure to do so, the claims against this defendant would be dismissed. Thereafter, by Minute Entry dated March 11, 2002, the United States, as third-party defendant, was dismissed, without prejudice, in accordance with Rule 4(m) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). Port Ship now seeks to have this Minute Entry vacated and the third-party complaint reinstated.
Port Ship submits that service was in fact timely effected upon the United States Attorney for the United States District Court for the Eastern District of Louisiana and the Attorney General for the United States in Washington D.C., in accordance with Fed.R.Civ.P. 4(i)(1)(A) and (B). See, Exhibit B, C.
Rule 60(b) of the Federal Rules of Civil Procedure sets forth the requirements for relief from a judgment or order as follows:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
In an opinion by Judge Morey Sear of this Court, he set forth the following guidelines for applying this rule:
Rule 60(b) "must be equitably and liberally applied to achieve substantial justice." Blois v. Friday, 612 F.2d 938 (5th Cir. 1980). Accord, Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir. 1965). This rule, which allows the trial court to reopen a case, is:
most liberally applied to default judgments; its main application is to those cases in which the true merits of a case might never be considered because of technical error, or fraud or concealment by the opposing party, or the court's inability to consider fresh evidence. (Citations omitted.) The purpose of the motion is to permit the trial judge to reconsider such matters so that he can correct obvious errors or injustices and so perhaps obviate the laborious process of appeal. Weighing against the grant of a 60(b) motion is the desirability of finality in judgments. This is particularly true where the reopening of a judgment could unfairly prejudice the opposing party. (Citation omitted). But even without such prejudice, the desirability of orderliness and predictability in the judicial process speaks for caution in the reopening of judgments. These are matters that are addressed to the sound discretion of the trial court, and its ruling . . . will be reversed on appeal only upon a showing of abuse of discretion. (Citations omitted).Swift Chemical Co. v. Usamex Fertilizers, 490 F. Supp. 1343, 1349-1350 (E.D.La. 1980), affirmed 646 F.2d 1121 (5th Cir. 1981), rehearing denied 650 F.2d 282 (5th Cir. 1981) (quoting Fackelman v. Bell, 564 F.2d 734, 735-36 (5th Cir. 1977)).
Under the law as delineated above, this Court finds that service was in fact made in a timely fashion and therefore believes that the minute entry dismissing the United States for lack of service should be vacated.
Accordingly,
IT IS ORDERED that the Motion for Reconsideration and Reinstatement of Third-Party Complaint, be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the Minute Entry dated March 11, 2002 (Doc. #6), be and the same is hereby VACATED.
IT IS FURTHER ORDERED that the Third-Party Complaint, be and the same is hereby REINSTATED.
IT IS FURTHER ORDERED that the United States of America file an answer to the Third-Party Complaint on or before, Wednesday, May 1, 2002.