Kuntz et al v. Louisiana Marsh Adventures LLC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARRY KUNTZ, ET AL. 	CIVIL ACTION
VERSUS 	NUMBER: 24-1244
LOUISIANA MARSH ADVENTURES, L.L.C. 	SECTION: “A” (5)
ORDER AND REASONS
Before the Court is the Motion for Leave of Court to File Superseding Complaint for
Damages Pursuant to FRCP 15 (rec. doc. 17) filed by Plaintiff. 	Defendant opposes the
motion (rec. doc. 19), and Plaintiff filed a reply. 	(Rec. doc. 23). 	Having reviewed the
pleadings and the case law, the Court rules as follows.
I. 	Factual Background
Plaintiffs 	filed their original 	Complaint 	on May 15, 	2024 against 	Defendant,
Louisiana Marsh Adventures, L.L.C. (“LMA”), asserting claims of ordinary negligence under
the General Maritime Law of the United States. (Rec. doc. 1 at ¶ 5). This lawsuit involves
two separate and distinct claims for personal injuries by two different individuals who
reside outside of the State of Louisiana. LMA operates a guided alligator hunting excursion
on and around the Lake Lery area of Delacroix, Louisiana. 	The lawsuit stems from an
alleged vessel grounding that occurred during Plaintiffs’ participation in LMA’s guided
alligator hunting excursion, which, according to Plaintiffs, resulted in their injuries. (Id. at
¶ 5).
Specifically, on September 6, 2023, Larry Kuntz and Richard Przybelski arrived at
LMA’s facility and dock to participate in a scheduled alligator hunting excursion. (Id.). As a
condition to participate in the guided alligator hunting excursion, each individual is
required to sign a Passenger Release and Hold Harmless Agreement (“Passenger Release”).
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(Rec. doc. 19-1). 	Plaintiffs admit that they each signed a Passenger Release prior to
participating in the alligator hunting excursion. (Rec. docs. 19-3, 19-4).
After executing the Passenger Release and participating in the pre-boarding safety
meeting, Plaintiffs boarded the vessel to begin the excursion. 	Plaintiffs allege that they
were both injured when the Captain, “operating the vessel on navigable waters, struck land
at a high rate of speed.” (Rec. doc. 1 at ¶ 5). Specifically, Plaintiffs allege that as a result of
the grounding, they were both knocked off their seats down into the boat and sustained
injuries. (Id. at ¶¶ 7-8).
After the incident, the Captain asked Plaintiffs whether they wished to return to
shore for medical treatment, and Plaintiffs advised that they wanted to continue the guided
allegator hunt. Indeed, following the subject incident, both Plaintiffs not only participated
in the alligator hunt, but successfully baited, trapped, killed, and assisted in pulling six
alligators into the subject vessel before returning to shore. 	There is even a photograph
depicting Kuntz with two of the alligators killed during the guided alligator hunting
excursion. (Rec. doc. 19-5). The filing of this lawsuit followed on May 15, 2024. (Rec. doc.
1).
II. 	Legal Standard
Both parties agree the Plaintiffs filed their proposed amended Complaint before the
amended Scheduling Order deadline of October 24, 2025.1 	Plaintiff’s pleading is thus
governed by Federal Rule of Civil Procedure 15(a)(2) and not the more stringent good-
cause standard under Rule 16. 	Tran v. Jefferson Par. Sch. Bd., No. CV 24-2777, 2025 WL
1 Notably for purposes of the Court’s analysis here, the original deadline for amendments to pleadings was
December 30, 2024. (Rec. doc. 9). After the District Judge granted a motion to continue (rec .doc. 12), a new
deadline was set for October 27, 2025. (Rec. doc. 14). The current motion was filed before that deadline.
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903140, at *2 (E.D. La. Mar. 25, 2025). Under Rule 15(a)(2), the “court should freely give
leave [to amend] when justice so requires.” Id. A court must balance the difficult task of
assuring a party a fair opportunity to present its claims and defenses while at the same
time protecting the district court from being imposed upon by the presentation of theories
seriatim. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981) (citation omitted). Denial of
leave to amend is reviewed for abuse of discretion. 	Carroll v. Fort James, 470 F.3d 1171,
1173-74 (5th Cir. 2006) (citation omitted). 	Absent a “substantial reason,” the court's
discretion “‘is not broad enough to permit denial’” of a request for leave to amend.
Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004) (quoting
Martin's Herend Imps., Inc. v. Diamond & Gem Trading United States of Am. Co., 195 F.3d 765,
770 (5th Cir. 1999)).
Leave to amend is not, however, automatic. 	Avatar Expl., Inc. v. Chevron USA, Inc.,
933 F.2d 314, 320 (5th Cir. 1991) (citation omitted). While Rule 15 favors granting leave to
amend, denial of leave is justified in certain circumstances, such as when a movant unduly
delays or acts with bad faith or dilatory motive. 	Id. (citation omitted). 	The five factors
considered in determining whether leave to amend is appropriate or whether there is
substantial reason to deny the request are: (1) undue delay, (2) bad faith or dilatory
motive, (3) repeated failure to cure deficiencies by previous amendments, (4) undue
prejudice to the opposing party, and (5) futility of the amendment. Foman v. Davis, 371 U.S.
178, 182 (1962); Flannigan v. Universal Steel Am., Inc., No. CV 22-3080, 2023 WL 11918265,
at *4 (E.D. La. June 29, 2023), report and recommendation adopted, No. CV 22-3080, 2024
WL 4041322 (E.D. La. Sept. 4, 2024); SMH Enters., L.L.C. v. Krispy Krunchy Foods, L.L.C., 340
F.R.D. 554, 559-60 (E.D. La. 2022).
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III. 	Analysis
Plaintiffs seek to amend their Complaint to add two additional Defendants, Desi
Fulmer and Dob Beshel, and to assert a claim for gross negligence. For its part, Defendant
asks the Court to deny Plaintiffs’ motion to amend to add the gross negligence claim
because Plaintiffs have been dilatory (guilty of undue delay), have filed the claims in bad
faith, the amendment will impose undue prejudice on Defendants, and Plaintiffs’ claims are
futile.
A. 	Undue Delay
Rule 15(a)(2) does not itself impose a time limit on seeking leave to amend. Smith v.
EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (stating that Rule 15(a) does not impose a
time limit “‘for permissive amendment’”) (citation omitted); see also Mullin v. Balicki, 875
F.3d 140, 149 (3d Cir. 2017) (citation omitted) (“Lacking a time limit or an outer bound on
when amendment is permissible, [Rule 15(a)(2)] instructs courts to freely give leave to
amend when justice so requires.”). However, a litigant's failure to assert a claim as soon as
he could have done so is a proper factor to consider in deciding whether to grant leave to
amend. 	See Rosenzweig v. Azurix Corp., 332 F.3d 854, 865 (5th Cir.2003) (stating that a
“litigant's failure to assert a claim as soon as he could have is properly a factor to be
considered in deciding whether to grant leave to amend”). At some point, a plaintiff's delay
can be procedurally fatal. 	Smith, 393 F.3d at 595 (citing Whitaker v. City of Houston, 963
F.2d 831, 836 (5th Cir. 1992)); Matter of Southmark Corp., 88 F.3d 311, 315-16 (5th Cir.
1996) (affirming denial of motion to amend where plaintiff sought to add claim that it had
knowledge of for almost a year and stating that “[l]iberality in pleading does not bestow on
a litigant the privilege of neglecting her case for a long period of time”). In that situation, a
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plaintiff must meet the burden of showing that the delay “was due to oversight,
inadvertence, or excusable neglect.” 	Id. (citation omitted); see also Parish v. Frazier, 195
F.3d 761, 763 (5th Cir. 1999) (citations omitted). 	Further, “delay alone is an insufficient
basis for denial of leave to amend: The delay must be undue, i.e., it must prejudice the
nonmoving party or impose unwarranted burdens on the court.” Mayeaux, 376 F.3d at 427
(citations omitted).
Plaintiffs provide no justification as to why the same factual allegations alleged to
support their claim of ordinary negligence in May of 2024 now support a claim for gross
negligence in October of 2025. Plaintiffs blithely state that they now “believe the facts of
this case will show the operator of the vessel . . . operated in a grossly negligent manner.”
(Rec. doc. 17-1 at 1). However, the “facts” alleged by Plaintiffs to support this new claim of
gross negligence are the same as those outlined in Plaintiffs’ original Complaint. See, e.g.,
Rosenzweig, 332 F.3d at 865 (affirming district court’s denial of motion to amend when
“[p]laintiffs concede they have not raised any facts which were not available previous to
the district court's opinion. In this regard, plaintiffs did not exercise diligence. Moreover,
the motion to amend hardly presents any new information.”). 	Plaintiffs have alleged no
new facts to support their new claim of gross negligence. In short, nothing has changed and
no new information has been discovered during this litigation that would explain or justify
Plaintiffs’ decision to now assert a claim of gross negligence.
As no new factual information has been alleged to support their claim of gross
negligence, Plaintiffs must provide some justification for their delay in bringing this new
claim. However, Plaintiffs make no attempt to excuse their delay. Instead, Plaintiffs simply
argue that because their proposed amendment was timely filed, LMA must show a good
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faith basis for objecting to their proposed amendment. 	(See id. at 2). 	Because Plaintiffs
have provided zero justification for why – after a year-and-a-half of litigation – they now
seek to assert a claim for gross negligence based on the same factual allegations originally
alleged, Plaintiffs have unduly delayed in moving to amend their Complaint to assert a
claim for gross negligence.
B. 	Bad Faith
The Fifth Circuit has defined bad faith generally as
implying or involving actual or constructive fraud, or a design to mislead or
deceive another, or a neglect or refusal to fulfill some duty or some
contractual obligation, not prompted by an honest mistake as to one's rights
or duties but by some interested or sinister motive. 	The term bad faith
means more than mere bad judgment or negligence, it implies the conscious
doing of a wrong for dishonest or morally questionable motives.
Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 922 (5th Cir.
2002) (citation omitted) (interpreting Louisiana law).
This factor gives the Court some pause in this case. 	As LMA outlines in its
opposition,
As noted above, since suit was filed the parties have been engaged in early
settlement discussions in an attempt to resolve the claims. 	Given that
Plaintiffs’ negligence claims are governed under General Maritime Law,
LMA’s position from the outset of negotiations has been that the Release
Agreements signed by Plaintiffs are valid and enforceable. Further, as early
as November 20, 2023, months before suit was filed, LMA advised Plaintiffs’
counsel 	of 	this 	position 	and 	provided 	copies 	of 	the 	subject 	Release
Agreements 	executed 	by 	his 	clients. 	Despite 	this, 	Plaintiffs’ 	original
Complaint 	made 	no 	allegation 	that 	the 	Release 	Agreements 	were
unenforceable or that LMA’s conduct constituted “gross negligence.”
Indeed, it was only during the parties’ settlement discussions and
related discussions regarding the enforceability of the Release Agreements
that Plaintiffs’ counsel suggested that the Release Agreements may be
unenforceable if gross negligence was found. 	In response, undersigned
counsel reminded Plaintiffs’ counsel that only a claim of ordinary negligence
has been asserted against LMA, and there has never been any suggestion or
allegation that LMA or the vessel operator were grossly negligent.
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Nonetheless, on October 24, 2025, Plaintiffs’ counsel circulated a draft
Superseding 	Complaint 	alleging, 	for 	the 	first 	time, 	a 	claim 	for 	gross
negligence based solely on the alleged speed of the vessel. 	To be clear,
Plaintiffs do not allege any new or additional factual allegations to support
their new claim of gross negligence. Because there has clearly been no new
factual information since suit was filed over a year-and-a-half ago that would
support an allegation of gross negligence, Defendants rejected Plaintiffs [sic]
request for consent and objected to the draft Superseding Complaint.
(Rec. doc. 19 at 5-6) (footnote omitted).
Plaintiffs do not refute this version of the underlying facts. This troubles the Court.
While LMA has not filed a dispositive motion, it clearly intends to do so based on Plaintiffs’
original Complaint and their signed Passenger Releases. To sidestep such a filing, Plaintiffs
now seek to change their claim of ordinary negligence into one of gross negligence, yet the
proposed amended Complaint contains no new facts to support such a conversion. Indeed,
as Plaintiffs readily admit, little discovery has occurred in this lawsuit. (Rec. doc. 23 at 2).
Plaintiffs filed this lawsuit over a year and a half ago. 	No new information has arisen to
support 	Plaintiffs’ 	desire 	to 	convert 	their 	claim 	of 	ordinary 	negligence 	into 	gross
negligence, apart from the fact that LMA has notified Plaintiffs of its argument that their
signed Passenger Releases negate any claim of ordinary negligence.
In Wimm v. Jack Eckerd Corp., the Fifth Circuit stated:
We commented, however, that absent these special circumstances,
[a party's] awareness of facts and failure to include them in the
complaint might give rise to the inference that the [party] was
engaging in tactical maneuvers to force the court to consider
various theories seriatim. 	In such a case, where the movant
first presents a theory difficult to establish but favorable and,
only after that fails, a less favorable theory, denial of leave to
amend on the grounds of bad faith may be appropriate.
Id. This case presents circumstances very similar to those which we foresaw
in Dussouy. 	Wimm and Speer were aware of the facts supporting their
mislabeling and DTPA claims before they initiated this action, but they did
not present those claims until summary judgment was imminent, nine
months after the action was initiated. Consequently, we conclude that the
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district court's finding of bad faith and dilatory motive is supported by
the record and by our opinion in Dussouy. 	See id.; see also Mitsubishi
Aircraft Int'l, Inc. v. Brady, 780 F.2d 1199, 1203 (5th Cir. 1986) (stating that
failure to urge a claim which is “usually apparent at the outset of a case . . .
strongly suggests either a lack of diligence . . . or a lack of sincerity”); cf.
Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 391 (5th Cir. 1985) (holding
that district court abused its discretion by denying leave to amend where
movant “asked for amendment promptly upon discovering the basis for new
allegations”); Barrett v. Indep. Order of Foresters, 625 F.2d 73, 75 (5th Cir.
1980) (affirming denial of leave to amend, although bad faith and dilatory
motive not found, where “amendment sought to add several new parties and
additional counts,” and “[e]ven though the motion was not filed until nearly
ten months after the original complaint, there would appear to be no matters
. . . which could not have been raised initially”); Layfield v. Bill Heard
Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979) (upholding denial of leave
to amend, although bad faith and dilatory motive not found, where “all of the
facts relevant to the proposed amendment were known to the [movant] at
the time she filed her original complaint”), cert. denied, 446 U.S. 939, 100 S.
Ct. 2161, 64 L.Ed.2d 793 (1980).
3 F.3d 137, 141 (5th Cir. 1993) (bold emphasis added).
In this context, the Fifth Circuit has held that a court must consider whether the
proposed amendment (1) merely proposes alternative legal theories for recovery on the
same underlying facts or (2) fundamentally alters the nature of the case. Lowrey v. Tex. A &
M Univ. Sys., 117 F.3d 242, 246 n.2 (5th Cir. 1997). Amendments that fall into the former
category generally should be permitted, as they advance Rule 15(a)'s policy of promoting
litigation on the merits rather than on procedural technicalities; amendments that fall into
the latter category, however, may be denied if the circumstances warrant. 	Mayeaux, 376
F.3d at 427. Here, they clearly do.
Plaintiffs' so-called “Amended Complaint” – an unabashed attempt to avoid a
dispositive motion based on the Passenger Releases – essentially pleaded a fundamentally
different case with a new cause of action and two new parties. 	As stated by the Fifth
Circuit, “when late tendered amendments involve new theories of recovery and impose
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additional discovery requirements, courts [of appeal] are less likely to find an abuse of
discretion due to the prejudice involved.” Mayeaux, 376 F.3d at 427 (citing Bell v. Allstate
Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)). 	In their proposed Amended Complaint,
Plaintiffs are effectively reconstructing the case anew, after it had been pending in this
Court for over a year and a half. 	Such reconstructing – with no new facts pleaded to
support a wholly new alternative theory to avoid a potential defense – would unduly
prejudice LMA and change the course and scope of this litigation after over one and a half
years. As the case law cited above suggests, that is the very nature of bad faith. This factor
weighs against granting leave to amend.
C. 	Prejudice
The Fifth Circuit and other courts have found prejudice when the amendment is
asserted after the close of discovery; after dispositive motions have been filed, briefed, or
decided; or on the eve of or in the middle of trial. See Smith, 393 F.3d at 594-96 (affirming
denial of leave to amend based on undue delay and prejudice when amendment would add
a new claim in the middle of trial after discovery had closed); Campbell v. Emory Clinic, 166
F.3d 1157, 1162 (11th Cir. 1999) (citation omitted) (“Prejudice and undue delay are
inherent in an amendment asserted after the close of discovery and after dispositive
motions have been filed, briefed, and decided.”); Solomon v. N. Am. Life & Cas. Ins. Co., 151
F.3d 1132, 1139 (9th Cir. 1998) (affirming denial of leave to amend when the plaintiff filed
the motion “on the eve of the discovery deadline”); see also Ruby Slipper Cafe, L.L.C. v. Belou,
No. 18-01548, 2018 WL 11179117, at *2 (E.D. La. July 3, 2018) (looking to whether the
filing is within the court-imposed deadlines or would require the re-opening of discovery
to assess undue delay and prejudice). 	A defendant is prejudiced if an amendment would
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require that the defendant “reopen discovery and prepare a defense for a claim different
from the [one] . . . that was before the court.” Smith, 393 F.3d at 596 (quoting Duggins v.
Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999)).
Likewise, 	amendments 	that 	fundamentally 	alter 	the 	nature 	of 	the 	case 	are
considered prejudicial. 	In re Am. Int'l Refinery, Inc., 676 F.3d 455, 467 & n.12 (5th Cir.
2012) (finding leave properly denied when proposed amendment was based on documents
known to plaintiff for over a year and added new causes of action that would have
“dramatically altered the subject matter of the suit at a late juncture . . . requir[ing]
expansive [additional] discovery and litigation”); Mayeaux, 376 F.3d at 427-28 (finding that
complaint would be “fundamentally altered” when proposed amendment would destroy
jurisdiction and “effectively reconstruct the case anew.”). As this Court has found that the
proposed amendment here would fundamentally alter the nature of the case, prejudice to
LMA exists, and this factor weighs against granting leave to amend.
D. 	Futility
Consideration of the futility factor requires the Court to assess whether the
amended complaint would survive a Rule 12(b)(6) motion (i.e., whether it states a
plausible claim for relief). Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d
368, 378 (citing Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000)). 	The
Supreme Court clarified the Rule 12(b)(6) standard of review in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To avoid dismissal, a
complaint must contain sufficient factual matter to state a claim to relief that is plausible on
its face (i.e., the factual allegations must “be enough to raise a right to relief above the
speculative level”). 	Twombly, 550 U.S. at 555. 	It is not enough to allege facts consistent
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with a claim because the allegations must move past possibility and to plausibility of
“entitlement to relief.” 	Id. at 557-58; Iqbal, 556 U.S. at 678. 	If the “facts” alleged are
“merely consistent” with those minimally required to establish liability, the complaint
“stops short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678 (citation
omitted).
Determining whether a complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not “shown” – “that the pleader is entitled
to relief.”
Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (internal citation omitted); see also Gonzales v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (citation omitted) (stating that when the facts do not
allow the court to infer more than a mere possibility of misconduct, the complaint does not
show that the pleader is entitled to relief). Although the Court must accept all well-pleaded
facts as true and consider the complaint in the light most favorable to the plaintiff, the
Court should not accept as true “conclusory allegations, unwarranted factual inferences, or
legal conclusions.” 	Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation
omitted); Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (citations omitted); see also
Twombly, 550 U.S. at 555 (The “obligation to provide the grounds of [ ] entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”) (citations and internal quotation marks omitted).
This Court need not consider this factor and specifically declines to address it. See
Tran v. Jefferson Par. Sch. Bd., No. 24-2777, 2025 WL 903140 (E.D. La. Mar. 25, 2025)
(declining to conduct futility analysis in the context of a Rule 15 motion to amend because
“[t]his Court lacks authority to address substantive issues that have not been referred,
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however, and those issues are best addressed in the context of resolving . . . any
subsequently-filed motions addressing substantive issues.”). This Court’s resolution of the
foregoing three factors has already convinced the Court that conversion of Plaintiffs’
ordinary negligence claim to one of gross negligence is not warranted here.
E. 	The Additional Two Defendants
LMA does not object to Plaintiffs’ request to name the operator of the vessel, Captain
Desi Fulmer, as a Defendant. (Rec. doc. 19 at 1 n.1). However, LMA objects to the addition
of the deckhand, Captain Don Beshel, on the ground that Plaintiffs have failed to allege any
claims against him. 	(Id.). 	However, this Court’s reading of the proposed Amended
Complaint reveals that Plaintiffs assert the same claims against Fulmer and Beshel, using
an “and/or” between them.
This appears to be a case of Plaintiffs not knowing who the actual operator of the
vessel was at the time of the accident. 	Plaintiffs state that “the accident and injuries
occurred due to the wanton and reckless behavior of the boat operator, who plaintiffs
believe was either Desi Fulmer or Don [B]eshel, who operated the vessel at high [sic] rate
of speed under the conditions . . . .” (Rec. doc. 17-4 at 3). As LMA has now clarified that the
operator of the vessel was Fulmer and not Beshel (rec. doc. 19 at 1 n.1), this Court will
allow the addition of Fulmer as unopposed but not Beshel. 	The denial as to Beshel is
without prejudice to add him as a defendant if future discovery reveals him to have been
the operator of the vessel.
IV. 	Conclusion
For the foregoing reasons,
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IT IS ORDERED that Motion for Leave of Court to File Superseding Complaint for
Damages Pursuant to FRCP 15 (rec. doc. 17) is GRANTED IN PART and DENIED IN PART
as outlined above.
New Orleans, Louisiana, this 	day of 	, 2025.
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
4th	December
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