United States District Court, M.D. Florida, Jacksonville Division
NORTH FLORIDA SHIPYARDS, INC. Plaintiff,
M/V ATLANTIS II, her engines, tackle, apparel, etc., in rem, Defendant.
Honorable Marcia Morales Howard United States District Judge.
REPORT AND RECOMMENDATION 
C. RICHARDSON UNITED STATES MAGISTRATE JUDGE.
THIS CAUSE is before the Court on
Plaintiff's Motion for Default Judgment (Doc. 19) and
Plaintiff's Motion for Interlocutory Judicial Sale of
Vessel, or, In the Alternative, Motion for Judicial Sale of
Vessel (“Motion for Sale”) (Doc. 27). The owner
of the Defendant Vessel has not appeared in this matter and
has not responded to the Motion for Default Judgment. The
motions are therefore deemed to be unopposed by the Defendant
Vessel. In addition, although Intervening Plaintiff David
Allen has not filed his own motion for default judgment, Mr.
Allen agrees that default judgment should be awarded in favor
of Plaintiff. (Doc. 24 at 2.) Both Plaintiff and Mr. Allen
agree that a default judgment rendered in favor of Plaintiff
would not preclude Mr. Allen from claiming any amount of the
res after a sale of the vessel. (Id.)
initiated this action on November 14, 2017 by filing a
Verified Complaint in Rem against the Defendant Vessel
alleging that the Vessel's owner failed to compensate
Plaintiff for certain marine and berthing services which were
necessary to maintain the Defendant Vessel in proper
condition for navigation. (Doc. 1.) According to the Verified
Complaint, the Defendant Vessel, through its agents,
contracted for such services at Plaintiff's facility and
entered into a Service Agreement. (Doc. 1-2.) Article I of
the Service Agreement authorizes Plaintiff to perform
services described in one or more service orders.
(Id. at 1.) Article II of the Service Agreement
provides, in relevant part, an interest rate of one and
one-half percent per month for any invoice not paid within
thirty (30) days after the invoice date. (Id.)
Article III of the Service Agreement provides a berthing fee
for dockage at a rate of $20.00 per foot, per day plus
utilities and sales tax. (Id.) The Service Agreement
also provides a maritime lien and security interest in the
Defendant Vessel for any unpaid sums due to Plaintiff for
services performed by Plaintiff or for use of Plaintiff's
facilities. (Id. at 4.) The agreement further
entitles Plaintiff to attorney's fees and expenses in the
event that Plaintiff employs counsel to collect any service
amounts due under the agreement. (Id.) The agreement
is dated September 8, 2011, and remains in effect until
terminated upon written notice. (Id. at 3.)
rendered invoices to the Owner of the Defendant Vessel for
services performed from September 2017 through November 2017.
(Doc. 1-1.) Plaintiff has not been paid on the invoices to
date. (Doc. 1 at 2.) The total amount due and owing to
Plaintiff at the time the Complaint was filed is $122,
929.05. (Id.) Plaintiff claims a maritime lien
against the Defendant Vessel for the unpaid services
performed and also seeks attorney's fees and costs.
January 31, 2018, upon the Court granting Plaintiff leave to
file, Mr. Allen filed a Verified Seaman's Intervening
Complaint. (Doc. 22.) Mr. Allen claims an interest in the
res for seaman's wages owed to him in the amount
of $243, 750.00. (Id. at 2.) The Court entered an
Order directing the issuance of a warrant of arrest for the
Defendant Vessel. (Doc. 6). The Court also appointed
Plaintiff as Substitute Custodian for the Defendant Vessel.
(Doc. 5.) The warrant was served on the Vessel by the U.S.
Marshal on November 22, 2017. (Doc. 11.)
filed a notice on December 7, 2017 indicating that it had
mailed to the known owner of the Defendant Vessel, via
certified mail, a copy of the Complaint, Order directing the
issuance of a warrant of arrest, and the returns of service
from the U.S. Marshal. (Docs. 12, 14-1.) Plaintiff also filed
proof of publication showing it had published in the
Florida Times-Union a “Notice of Action In Rem
and Arrest of Vessel.” (Doc. 13.)
person or entity has filed a claim as to the Defendant Vessel
or otherwise appeared in this action (other than Intervening
Plaintiff), despite being given adequate time to do so.
See Local Admiralty Rule 7.03(f). Accordingly, on
January 24, 2018, upon motion of Plaintiff, the Clerk entered
default against the Defendant Vessel. (Doc. 15.)
Court now has before it Plaintiff's Motion. Plaintiff
seeks entry of default judgment in favor of Plaintiff and
against the Defendant Vessel in the amount of $321, 155.79,
representing $132, 736.92 for dockage and services provided
to the Vessel through November 22, 2017; $3, 398.39 for
interest; $165, 908.26 in substitute custodian expenses
through January 31, 2018; $2, 500.00 for U.S. Marshal fee;
$15, 560.00 in attorney's fees; and $1, 056.22 for costs.
(Doc. 19 at 2.) In support of the Motion, Plaintiff filed the
affidavit of Eugene Alley, the individual in charge of
Special Projects for Plaintiff. (Doc. 19-2.) Mr. Alley
confirms in the affidavit that Plaintiff has due and owing
$132, 736.92 for dockage and services provided to the Vessel
through November 22, 2017 and interest in the amount of $3,
398.39 through that date. Mr. Alley also confirms that
Plaintiff has incurred $165, 908.26 in substitute custodian
expenses from November 22, 2017 through January 31, 2018, as
well as a $2, 500.00 fee paid to the U.S. Marshal incident to
the arrest of the Vessel.Plaintiff also filed the affidavit of
its attorney, C. Ryan Eslinger, Esq., as well as a
declaration from a local maritime attorney, Howard T. Sutter,
Esq. (Docs. 19-1 & 20-1, respectively.) Mr. Eslinger
confirms in his affidavit that Plaintiff incurred $15, 560.00
in attorney's fees, as well as $1, 056.22 in
virtue of the Defendant Vessel's default, the facts as
alleged in the Verified Complaint against the Defendant
Vessel are admitted as true. See Buchanan v. Bowman,
820 F.2d 359, 361 (11th Cir. 1987) (citing Nishimatsu
Construction Co. v. Houston Nat'l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975)). The undersigned finds that
Plaintiff has complied with the requirements of Rule 55 of
the Federal Rules of Civil Procedure and Local Admiralty
Rules 7.03(h) and 7.03(i). Additionally, Plaintiff has been
incurring substitute custodian expenses since the Vessel was
arrested and Plaintiff became the substitute custodian.
Pursuant to 28 U.S.C. § 1921 and Local Admiralty Rule
7.05(1)(2), Plaintiff as substitute custodian is entitled to
an award of its custodial expenses incurred in connection
with the custody of the Vessel. See 28 U.S.C. §
1921(a)(1)(E); Local Admiralty Rule 7.05(1)(2); see also
Int'l Ship Repair & Marine Servs. v. Caribe Sun
Shipping, No. 8:12-cv-1651-T-33TGW, 2013 WL 24794, at *1
(M.D. Fla. Jan. 2, 2013).
undersigned also finds Plaintiff is indeed entitled to
recover its reasonable attorney's fees and
costs. Plaintiff's claims in this action
arose out of a contractual obligation based on services
rendered pursuant to a Service Agreement between the parties.
(Doc. 1-2.) The Service Agreement contains a provision for
recovery of costs and attorney's fees in the event
Plaintiff employed counsel to help collect on the outstanding
invoices. (Id. at 4.) Accordingly, the
undersigned will proceed to consider the reasonableness of
the attorney's fees and costs.
determine the amount of attorney's fees to be awarded,
the Court follows a three-step process. See Dillard v.
City of Greensboro, 213 F.3d 1347, 1353 (11th Cir.
2000); see also Suncoast Schools Fed. Credit Union v. M/V
Le Papillon, No. 8:09-cv-765-T-17AEP, 2010 WL 882889, at
*1 (M.D. Fla. Mar. 2, 2010) (applying Dillard in an
admiralty case). “First, [the] [C]ourt asks if the
plaintiff has ‘prevailed' in the statutory sense .
. . Second the [C]ourt calculates the ‘lodestar,'
which is the number of hours (tempered by billing judgment)
spent in the legal work on the case, multiplied by a
reasonable market rate in the local area . . . Finally, the
[C]ourt has the opportunity to adjust the lodestar to account
for other considerations that have not yet figured in the
computation, the most important being the relation of the
results obtained to the work done.” Dillard,
213 F.3d at 1353 (citations omitted). “The party who
applies for the attorney's fees is responsible for
submitting satisfactory evidence to establish both that the
requested rate is in accordance with the prevailing market
rate and that the hours are reasonable.” Duckworth
v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996)
(citing Norman v. Hous. Auth. of Montgomery, 836
F.2d 1292, 1299 (11th Cir. 1988)).
Clerk's default has been entered against the Defendant
Vessel and the undersigned has found that all facts
establishing liability have been admitted as true. As such,
Plaintiff is a prevailing party. The undersigned must now
determine the amount of fees using the “lodestar”
Court must next determine whether the hourly rate charged by
Plaintiff's attorney in this matter was reasonable.
“A reasonable hourly rate is the prevailing market rate
in the relevant legal community for similar services by
lawyers of reasonably comparable skills, experience, and
reputation. The applicant bears the burden of producing
satisfactory evidence that the requested rate is in line with
prevailing market rates.” Norman, 836 F.2d at
1299 (internal citations omitted). To meet its ...