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Sea La Vie, LLC v. Fisher

United States District Court, M.D. Florida, Jacksonville Division

July 26, 2019

Sea La Vie, LLC, Plaintiff,
v.
Captain Curt W. Fisher, Defendant.

          REPORT & RECOMMENDATION

          PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.

         Sea La 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. 16.

         I. Background

         A. Complaint

         In the complaint, Doc. 1, Sea La Vie makes the following allegations.

         Sea La 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.

         Captain 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.

         Sea La 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.

         B. Service of Process

         Sea La 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).[1] 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.

         The 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.

         In 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.

         II. Motion for Default Judgment

         Two 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.[2]

         In 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.

         In the 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.

         Sea La 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.

         In a second declaration, Ms. Chronos states Captain Fisher is not in the military, is semi-retired, and to her “knowledge ...


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