United States District Court, M.D. Florida, Jacksonville Division
REPORT & RECOMMENDATION
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
Vie, LLC, sues Captain Curt Fisher for negligence in the
movement of a vessel by navigable water. Doc. 1. Before the
Court is Sea La Vie's amended motion for default
judgment, Doc. 12, and supplemental memorandum of law, Doc.
complaint, Doc. 1, Sea La Vie makes the following
Vie owns the M/Y Last Desperado, a 52-foot 1986 Hatteras
Convertible. Doc. 1 ¶ 2. State Farm Insurance Company
insured Last Desperado. Doc. 1 ¶ 2.
Fisher, a Florida resident, agreed to move Last Desperado by
water from St. Augustine, Florida, to Charleston, South
Carolina. Doc. 1 ¶¶ 3-4. On July 22, 2017, he
boarded Last Desperado and reached the Charleston Harbor.
Doc. 1 ¶ 3. Last Desperado lost power, and he
unsuccessfully tried to restart the engines. Doc. 1 ¶ 3.
He did not anchor Last Desperado, and it drifted into
jetties, partially sank, and sustained damages. Doc. 1 ¶
3. State Farm paid for the damage to Last Desperado and a
portion of the cost of the wreck removal. Doc. 1 ¶ 3.
Sea La Vie paid the rest of the cost of the wreck removal and
a storage fee for Last Desperado. Doc. 1 ¶ 3.
Vie claims Captain Fisher owed Sea La Vie a duty of
reasonable care to ensure Last Desperado “arrived
safely in Charleston and that it did not sink, ” he
breached that duty, and the breach resulted in damages to Sea
La Vie. Doc. 1 ¶¶ 5- 7. Sea La Vie demands those
damages, interest, and costs. Doc. 1 at 2.
Service of Process
Vie filed the complaint on May 14, 2018. Doc. 1. Sea La Vie
filed no proof of service, and Captain Fisher failed to
appear to defend the case. On September 6, 2018, the Court
directed Sea La Vie to show cause by September 24, 2018, why
the case should not be dismissed without prejudice for
failure to demonstrate service of process under Federal Rule
of Civil Procedure 4(m). Doc. 4. Sea La Vie timely responded,
filing both proof of service of the summons and a response to
the show-cause order. Docs. 5, 6.
proof of service is a “Sheriff's Return of
Service.” Doc. 5-1 at 1. In it, Michael Chitwood, the
Sheriff of Volusia County, Florida, through Richard Ott, a
process server, certifies that he received copies of the
summons and complaint on May 25, 2018, at 1:12 p.m., and
served Captain Fisher with them on May 30, 2018, at 7:15 a.m,
at 189 Gisbon [sic] Way Port Orange, Florida, 32129. Doc. 5-1
at 1. Regarding the manner of service, he states,
“INDIVIDUAL SERVICE: by serving the within named person
a true copy of the writ, with the date and hour of service
endorsed thereon by me and at the same time delivering to the
above named person a copy of the complaint, petition or
initial pleading, if any.” Doc. 5-1 at 1. Next to
“Service by, ” the return lists “Process
Server Ott, Richard 7612.” Doc. 5-1 at 1.
response to the show-cause order, Sea La Vie explained it had
filed the return of service, stated it “will be filing
a Motion for Default and Motion for Final Default Judgment
this week [the week of September 25], ” and asked the
Court to not dismiss the case until after entry of default
judgment against Captain Fisher. Doc. 6. The Court discharged
the order to show cause. Doc. 7.
Motion for Default Judgment
months after the response to the show-cause order, Sea La Vie
had filed no motions for default or default judgment. On
November 30, 2018, the Court directed Sea La Vie to show
cause by December 18, 2018, why the case should not be
dismissed for failure to prosecute and explained that failure
to respond by the deadline would result in dismissal without
further notice. Doc. 8. Sea La Vie timely filed a motion for
default, Doc. 9, a motion for default judgment, Doc. 10, an
amended motion for default judgment, Doc. 12, and a response
to the show-cause order, Doc. 11.
response to that show-cause order, Sea La Vie explained it
had filed the motions for default and default judgment that
day and asked the Court to not dismiss the case until after
entry of final judgment against Captain Fisher. Doc. 11. The
clerk entered default, Doc. 13, and the Court discharged the
second order to show cause, Doc. 14.
amended motion for default judgment, Sea La Vie seeks $95,
941 in damages for wreck removal, demolition, and storage
fees for Last Desperado. Doc. 12 at 1.
Vie attaches a declaration from Heather Chronos. Doc. 12-1.
She states she is the president of Sea La Vie, which owns
Last Desperado. Doc. 12-1. She states Last Desperado was a
“total loss” when it sank. Doc. 12-1. She states
State Farm paid the policy limits for Last Desperado-$157,
000-and the policy limits for wreck removal-$7850. Doc. 12-1.
She states the State of South Carolina required her to remove
the sunken vessel, and she hired Salmons Dredging Corporation
for the removal. Doc. 12-1. Salmons charged her $103, 791:
$81, 416 for the removal and $22, 375 for “disposal of
the vessel plus storage prior to disposal.” Doc. 12-1.
She states that, because State Farm paid $7850 for wreck
removal, Sea La Vie paid the balance-$95, 941 (the amount it
seeks in damages)-to Salmons. Doc. 12-1.
second declaration, Ms. Chronos states Captain Fisher is not
in the military, is semi-retired, and to her “knowledge