International Ship Repair & Marine Services, Inc. v. Northern Assurance Company of America

Case: 12-11717 Date Filed: 01/03/2013 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos.12-11717 & 12-12136
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D.C. Docket No. 8:10-cv-02049-RAL-AEP

INTERNATIONAL SHIP REPAIR & MARINE SERVICES, INC.,

Plaintiff-Appellee,

versus

NORTHERN ASSURANCE COMPANY OF AMERICA,

Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
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(January 3, 2013)

Before WILSON and COX, Circuit Judges, and VINSON, * District Judge.

PER CURIAM:

*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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Northern Assurance Company of America appeals the district court’s

judgment in favor of International Ship Repair & Marine Services, Inc. The

plaintiff, International Ship, sought a declaration that Northern Assurance was

required to defend International Ship in a wrongful death action and pay damages

for Northern Assurance’s failure to defend, and to pay damages for failure to

indemnify International Ship for the settlement in the wrongful death action. The

jury found in favor of International Ship and awarded it over $1 million dollars.

On appeal, Northern Assurance argues (1) that the district court erroneously

refused to allow it leave to amend its second amended answer after the scheduling

order deadline had passed and (2) that the court improperly denied Northern

Assurance’s motion to stay proceedings pending the resolution of a related action

in the Eastern District of Virginia. After careful review and the benefit of oral

argument, we affirm.

We review the district court’s denial of a request for leave to amend under

an abuse of discretion standard. Oravec v. Sunny Isles Luxury Ventures, L.C., 527

F.3d 1218, 1231 (11th Cir. 2008). In this case, Northern Assurance sought to add

an additional sixteen affirmative defenses to its second amended answer months

after the deadline to amend pleadings established by the court’s scheduling order

had passed. The court set August 15, 2011, as the deadline to amend all pleadings.

Northern Assurance sought leave to amend on December 30, 2011. Further, at

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least most of Northern Assurance’s proposed affirmative defenses are based on

facts and circumstances that Northern Assurance was aware of before the deadline

passed. Thus, we conclude that there was no abuse of discretion in the court’s

denial of Northern Assurance’s request for leave to amend.

Similarly, we review the district court’s refusal to grant the motion to stay

for an abuse of discretion. CTI-Container Leasing Corp. v. Uiterwyk Corp., 685

F.2d 1284, 1288 (11th Cir. 1982). Northern Assurance moved to stay the action

pending the resolution of an action that Northern Assurance had initiated in the

Eastern District of Virginia concerning the validity of the Northern Assurance

policy at issue in this case. The district court denied the motion.

In the Virginia action, Northern Assurance sued Advance Technology, Inc.

(its insured), seeking rescission of the Northern Assurance policy. The suit alleged

that Advance Technology’s material misrepresentations caused Northern

Assurance to issue a policy naming International Ship as an additional insured, and

that Northern Assurance would not have issued the policy had the facts been

known.

The plaintiff in this case, International Ship, was not a party to the Virginia

action. The motion to stay was grounded on the assertion that a favorable result

for Northern Assurance in the Virginia action would preclude recovery by

International Ship in this case. Neither Northern Assurance’s motion to stay nor

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the memorandum of law accompanying it cites any authority to support the

assertion that a favorable result for Northern Assurance in the Virginia action

would preclude recovery by International Ship in this case. And no such authority

has been called to our attention on appeal. International Ship was not a party to the

Virginia action, its interests were not adequately represented, and it did not have

the opportunity to litigate the issues presented in the Virginia action. It is not

bound by any judgment rendered in that case. See Parklane Hosiery Co. v. Shore,

439 U.S. 322, 327 n.7, 99 S. Ct. 645, 649 n.7 (1979) (“It is a violation of due

process for a judgment to be binding on a litigant who was not a party or a privy

and therefore has never had an opportunity to be heard.”); Wilson v. Attaway, 757

F.2d 1227, 1237 (11th Cir. 1985) (“A nonparty to a prior decision cannot be bound

by it unless he had sufficient identity of interest with a party that his interests are

deemed to have been litigated.”). The district court did not abuse its direction in

denying the motion to stay.

AFFIRMED.

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