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Marine Diesel Specialists, Inc. v. M/Y "20%

United States District Court, M.D. Florida, Fort Myers Division

May 24, 2018

MARINE DIESEL SPECIALISTS, INC., a Florida profit corporation, Plaintiff,
v.
M/Y “20 %, ” a Viking manufactured motorized 64' pleasure yacht, her boats, engines, tackle, equipment apparel, furnishings, freights, appurtenances, and all fixtures and other necessaries there unto appertaining and belonging to the vessel, in rem; and DAVID SIMPSON, an individual in personam, Defendants.

          REPORT AND RECOMMENDATION

          MAC R. MCCOY, UNITED STATES MAGISTRATE JUDGE

         This cause is before the Undersigned following a show cause hearing held before the Undersigned on April 26, 2018, concerning whether the arrest of the M/Y 20% (“the Vessel”) should be vacated. (See Doc. 33; Doc. 34); see also Fed. R. Civ. P. Supp. Admiralty R. E(4)(f); M.D. Fla. R. 7.03(g). Upon the filing a Motion to Show Cause Why Arrest of MV “20%” Should Not Be Vacated on March 6, 2018 and a Memorandum in Opposition filed on March 20, 2018, the Court entered an Order, setting an evidentiary show-cause hearing. (See Doc. 22; Doc. 25; Doc. 26). For the reasons set forth herein, the Undersigned recommends that the Court DENY the Motion to Show Cause Why Arrest of MV 20% Should not Be Vacated (Doc. 22).

         I. Background

         On December 14, 2017, Plaintiff initiated this action by filing a Verified Complaint against the Vessel (Doc. 1) in rem, seeking a maritime lien against the Vessel for providing necessary services to the Vessel, including engine repairs for which the Vessel and its owner allegedly owe an outstanding balance of $13, 907.37. (See generally Doc. 1). Plaintiff attached exhibits to the Verified Complaint, including a Repair Order/Agreement and a Service Report. (Doc. 1-1; Doc. 1-2).[1] Plaintiff also filed a Verification by Peter W. Angel, the president of Plaintiff Marine Diesel Specialists, Inc. (Doc. 2).

         Plaintiff filed a Motion for an Order Directing the Clerk of Court to Issue the Warrant of Arrest In Rem (Doc. 7), a Motion for Appointment of Aquamarina Palm Harbour as Substitute Custodian (Doc. 8), and a Motion for Entry of Break Order (Doc. 12). The Undersigned entered Orders granting the relief requested. (See Doc. 13; Doc. 14; Doc. 15). The Clerk of Court issued a Warrant for Arrest of the Vessel. On February 21, 2018, David Simpson filed a Statement of Interest, indicating that he is the owner of the Vessel and as such has an interest in the outcome of the proceedings. (Doc. 17 at 1). On March 3, 2006, the Vessel filed an Answer and Affirmative Defenses (Doc. 21), and also filed the instant Verified Motion to Show Cause Why Arrest of MV “20%” Should Not Be Vacated (Doc. 22).

         Thereafter, Plaintiff filed a Verified Amended Complaint on March 19, 2018. (Doc. 23). The Amended Complaint added David Simpson, in personam, as a Defendant in this action. (Doc. 23 at 1). In the Amended Complaint, Plaintiff alleges that Defendant David Simpson entered into a written agreement that he or his agent executed, requesting Plaintiff to provide necessary services to the Vessel, including engine repairs. (Doc. 23 at 2 ¶ 6). Plaintiff further alleges that it rendered necessary services to the Vessel in a workmanlike manner at a reasonable cost. (Id. at 2 ¶ 8). Plaintiff claims that Defendants owe a balance of $11, 369.66, and have failed to pay for these services. (Id. at 2 ¶ 9). Plaintiff further claims that based upon the Executed Agreement, David Simpson is obligated to pay the amount due under the Executed Agreement. (Id. at 3 ¶ 10). Plaintiff brings claims for: Foreclosure of Maritime Necessaries Lien Against Defendant Vessel (Count I); Breach of Contract Against Defendant David Simpson (Count II); Unjust Enrichment Against Defendant David Simpson (Count III). (Id. at 3-5). On April 6, 2018, Defendants filed an Answer and Affirmative Defenses to the Amended Complaint. (Doc. 28).

         Additionally, Defendant David Simpson and third-party Chad Shannon filed Affidavits, denying that the signature on the Repair Order/Agreement for Repairs at issue is theirs. (Doc. 29 at 1 ¶ 4; Doc. 32 at 1 ¶ 4).

         II. Evidentiary Hearing

         At the April 26, 2018 evidentiary hearing, Plaintiff presented the testimony of Pete Angel and introduced five (5) exhibits. Defendants introduced four (4) exhibits.

         A. Exhibits

         The parties objected to each other's exhibits as the exhibits were introduced at the hearing. The Court reserved ruling on certain objections concerning the admissibility of many of the exhibits. The Court now makes the following rulings on the objections that were not resolved during the hearing:

Party

Exhibit No.

Description

Ruling on Objection(s)

Admitted

Plaintiff

2

Repair Order/Agreement for Repairs - dated July 6, 2016, July 19, 2016, July 22, 2016, July 25, 2016, August 8, 2016

Overruled

Yes

Plaintiff

2-1

Invoice for Repairs dated September 14, 2016

Overruled

Yes

Plaintiff

4

Repair

Order/Agreement for Repairs dated June 28, 2016

Overruled

Yes[2]

Plaintiff

4-1

Repair

Order/Agreement for Repairs dated April 10, 2017

Sustained

No[3]

Plaintiff

7

Handwritten Note and copy of a Check

Overruled

Yes[4]

Defendants

1 and 2

Verified Complaint

No Objections

Yes

Defendants

5

Affidavit of David Simpson

Sustained

No[5]

Defendants

6

Affidavit of Chad Shannon

Sustained

No

         B. Testimony of Pete Angel

         Plaintiff called Pete Angel as its only witness during the evidentiary hearing. Mr. Angel testified that he is the president and owner of Marine Diesel Specialists, Inc. (“Marine Diesel”). (Tr. at 25).[6] Marine Diesel repairs marine engines in yachts, sells marine engines, and sells parts. (Id.). When lightning struck the Vessel, Chad Shannon contacted Marine Diesel and asked Marine Diesel to look at the Vessel. (Id. at 25-26).

         Mr. Angel testified that Marine Diesel required Mr. Simpson or his agent to sign an agreement prior to working on the Vessel and Mr. Shannon, Mr. Simpson's captain, signed Marine Diesel's work order. (Id. at 26, 39). Mr. Angel identified composite Exhibit 4 as Marine Diesel's standard repair order for work on the Vessel. (Id. at 31). Mr. Angel testified that he created this document, it was his handwriting on the document, and he had knowledge of the terms of the agreement. (Id. at 32-33). The job description as reflected on the document was “sea trial, lightning strike.” (Id. at 33). The original repair orders are carbon copies, one copy is white, and one is yellow. (Id. at 34). Every repair order has the same verbiage on the reverse side of each page regarding warranties and disclosures. (Id.). Mr. Angel did not witness who signed the repair order for the customer here, but one of his employees, Javier Rodriguez, did witness the signature. (Id.). Mr. Angel required Mr. Simpson or his representative to sign the agreement prior to performing work. (Id. at 36). Mr. Angel testified that Marine ...


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