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Moore v. M/V Sunny USA

United States District Court, S.D. Florida

December 26, 2019

EDWARD M. MOORE, Plaintiff,
v.
M/V SUNNY USA a/k/a EMPIRE DISCOVERY, a 73-foot motor yacht USCG No. 1042503, HIN No. ISNMUL06B994 her engines, tackle, boats, gear, appurtenances etc., in rem, Defendant.

          Brann, Judge

          OMNIBUS ORDER

          ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on (1) the Plaintiff-Moore's Motion for Summary Judgment (“MSJ”) [ECF No. 106], and (2) Moore's Motion to Strike the Claimant-Dong's Second Response to the MSJ (along with Dong's separately-filed Notice/Appendix) [ECF No. 112].[1] In ruling on these two motions, the Court must also address Dong's Objections to United States Magistrate Judge Dave Lee Brannon's Report and Recommendation (“R&R”) with respect to two unrelated, but outstanding, motions [ECF No. 104].[2]

         The Honorable Beth Bloom transferred this case to the Undersigned on April 11, 2019- three weeks after the U.S. Marshal's Service sold the vessel at issue here [ECF No. 90].

         THE FACTS

         Moore brought this in rem action against the M/V Sunny USA a/k/a “Empire Discovery” (hereinafter, “vessel”). See Complaint [ECF No. 1]. Moore's Complaint seeks to enforce a maritime lien against the vessel on the ground that Dong failed to pay for the vessel's dockage and maintenance-as well as environmental and property damage that proximately resulted from Dong's negligent supervision of the vessel. See generally id.

         The case proceeded as follows: On August 31, 2018, Moore filed his two-count Complaint against the vessel and moved the Court for a warrant to arrest it. See [ECF Nos. 1 & 3]. The Complaint includes one count for “Foreclosure of Maritime Lien/Breach of Contract” and another for the Defendant's allegedly negligent failure, before Hurricane Irma, to secure and moor the vessel properly. See generally Complaint. Moore's Complaint specifically alleges that, in 2013, the parties entered into a dockage lease contract. Id. ¶¶ 9-10 But, the Complaint continues, by no later than September of 2018, Dong both stopped paying for the vessel's dockage fees and generally neglected the vessel's maintenance-as a result of which the vessel caused some damage to Moore's dock and the surrounding environment. Id. This latter damage, the Complaint says, prompted the United States Coast Guard to intervene and, to Moore's chagrin, to require Moore to “monitor” and maintain the vessel. Compl. Id. ¶¶ 13-14. Ultimately, the Complaint avers, Dong's failure to pay the required dockage fees-together with his corresponding negligence-forced Moore to lose some $20, 090.00. Id. ¶ 17.[3]

         On September 5, 2018, the Court issued a warrant and appointed Starboard Yacht Group LLC as the vessel's substitute custodian [ECF Nos. 6 & 12]. On October 12, 2018, pursuant to the Court's instructions, a United States Marshal arrested the vessel [ECF No. 15].

         On October 15, 2018, Moore filed a Notice of Action and Arrest of Vessel, by which he provided notice of the vessel's arrest to a service list that included both of Dong's last known addresses [ECF No. 13]. On October 18, 2018, Moore filed a Second Notice of Action and Arrest of Vessel, which also included addresses for the vessel's last known owner-Empire Discovery, Inc. [ECF No. 14]. Moore published both Notices in the Daily Business Review on October 26, 2018 [ECF No. 17].

         On November 2, 2018, Dong, appearing pro se, moved to dismiss Moore's Complaint on the ground that it constituted, in his words, an “extortion scheme.” See generally Motion to Dismiss [ECF No. 18]. While Dong's motion was pending, Moore moved the Court to authorize an interlocutory sale of the vessel. [ECF No. 30]. On February 15, 2019, the Court denied Dong's Motion to Dismiss-concluding that he lacked standing to challenge the sale because he had never filed a “verified statement of right or interest” in the vessel under the time constraints imposed by Supplemental Admiralty Rule C(6)(a)(i)(A). [ECF No. 41 at 3-4].[4]

         On February 21, 2019, just days after denying Dong's Motion to Dismiss, the Court granted, in part, Moore's Motion for Interlocutory Sale, see [ECF No. 42], and directed the United States Marshal, by March 22, 2019, to sell the vessel at a public auction to the highest bidder.[5] See Id. The Palm Beach Daily Business Review published notice of the public auction on both March 7, 2019 and March 14, 2019 [ECF No. 94-1 at 2].

         On March 7, 2019, prior to the sale, Dong filed a supplemental statement of interest [ECF No. 53]-which he followed with (1) a motion to stay the interlocutory sale of the vessel and (2) a motion for release of the vessel upon the setting of a bond. See generally [ECF Nos. 58 & 59].

         On March 14, 2019, in an Omnibus Order (“Omnibus Order”) [ECF No. 73], Judge Bloom addressed several outstanding motions, including Dong's Motion to Reconsider the denial of his Motion to Dismiss [ECF No. 68]. To prevent the “manifest injustice” that might result from Dong's failure to comply with Supplemental Admiralty Rule C(6)(a)(i)(A), Judge Bloom revisited Dong's Motion to Dismiss and, this time, construed it as a timely verified statement of interest-a construction that now afforded Dong the necessary standing to challenge the sale. See [ECF No. 73 at 5]. The Omnibus Order thus: (1) reinstated, but again denied, Dong's Motion to Dismiss; (2) granted Dong's motion to set bond for the release of the vessel and ordered Dong to deposit $60, 000, as security for the vessel, in the Court's Registry by March 22, 2019; and (3) denied Dong's motion to stay the interlocutory sale-advising all parties that, “[u]pon the posting of the bond and verification filed with this Court by March 22, 2019, the United States Marshal will be directed to CANCEL the sale of the Vessel that the Court previously ordered, ECF No. [42].” Id. at 5-10. In other words, although Judge Bloom's Omnibus Order required that, if Dong managed to post the requisite bond by March 22, 2019, the sale should be cancelled, it did not otherwise set aside her prior order, in which she had unambiguously directed the “United States Marshal” to “sell, to the highest bidder at public auction[, ] the M/V Sunny USA, her engines, tackle, boats, appurtenances etc., on or before March 22, 2019.” See February 21, 2019 Interlocutory Sale Order [ECF No. 42 at 4]. Indeed, the Omnibus Order specifically denied Dong's request to stay the vessel's sale.[6]

         The March 22nd deadline came and went without Dong posting the required bond. Nor, notably, did Dong move for an extension of time within which to post that bond. As a result, on March 22, 2019, the United States Marshal's Service held a public auction, at which it sold the vessel for $1, 000 to “Inshan Drydocking Services, Inc.”[7] See generally [ECF Nos. 83 & 100]. Inshan then apparently sold the vessel, at the same price, to Moore. Id.

         On April 1, 2019, Moore filed a Request for Confirmation of Sale by the Clerk of Court, in which he indicated that, pursuant to Local Admiralty Rule E(17)(g)(i), [8] no objections to the sale of the vessel had been filed with the Clerk by the March 29, 2019 deadline [ECF No. 84]. In response, the Clerk entered a Confirmation of Sale the very next day [ECF No. 85].

         On April 8, 2019, after neither posting the required bond nor objecting to the sale of the vessel, Dong filed a “Response” in opposition to Moore's already-confirmed Request for Confirmation of Sale [ECF No. 86].[9] In that “Response, ” Dong erroneously contended that Judge Bloom's March 14, 2019 Omnibus Order had “canceled” the sale of the vessel-this, despite the fact that Dong did not timely post the requisite $60, 000 bond.

         On April 18, 2019, nearly four weeks after the March 22nd sale, the Clerk of Court received from Dong a $60, 000 check as bond for the vessel's release [ECF No. 93]. The letter accompanying the check is bizarrely dated “April, 2 2019 [sic]”-which, in either event, is eleven days past the Court's deadline for Dong to post a bond and two days past Dong's deadline to object to the sale. See Omnibus Order [ECF No. 73].

         Having finally obtained the vessel, Moore now moves for summary judgment on his interest in the after-cost proceeds from the sale of the res, which he estimates at $600. [ECF No. 106 ¶ 12]. In opposing Moore's Motion for Summary Judgment, Dong filed two responses-the second of which contains an appendix that is referenced in, but is not docketed with, the first. See [ECF Nos. 108, 110 & 111]. Moore then timely moved to strike Dong's Second Response to the MSJ [ECF No. 112].

         THE LAW

         Before the Court, then, are (1) Dong's Objections to the Magistrate Judge's R&R [ECF No. 104]; (2) Moore's Motion for Summary Judgment [ECF No. 106]; and (3) Moore's Motion to Strike Dong's Second Response to the MSJ (and the separately-filed Notice/Appendix) [ECF No. 112]. In adjudicating these three motions, the Court must apply the following standards of review.

         Dong objects to the R&R's findings and recommendations. The two motions the Court referred to Magistrate Judge Brannon-Dong's Motion to Implement Mailbox Rule [ECF No. 88] and Moore's Motion to Strike [ECF No. 94]-are non-dispositive insofar as neither motion could properly dispose of any of the claims in the case. As such, Magistrate Judge Brannon was authorized to enter an order deciding both motions-subject only to the requirement that the Court “consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.” See Fed. R. Civ. P. Rule 72(a).[10] And “[c]lear error is a highly deferential standard of review.” Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005).

         The legal framework that applies to Moore's Motion for Summary Judgment is well-settled. Put simply, summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). In determining whether to grant summary judgment, the Court must consider “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). An issue of fact is “material” if it might affect the outcome of the case under the governing law. Id. at 248. A dispute about a material fact is “genuine” if the evidence could lead a reasonable factfinder to rule for the non-moving party. Id.

         At summary judgment, the moving party has the burden of proving the absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving party. See, e.g., Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to come forward with evidence that a genuine issue of material fact precludes summary judgment. See Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002); Fed.R.Civ.P. 56(e).

         “If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992). Notably, assessments of credibility-no less than the weighing of evidence-are fact questions not susceptible of disposition at summary judgment. Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). The Court must analyze the record as a whole-and not just the evidence the parties have singled out for consideration. See Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1570 (11th Cir. 1987). If there are any genuine issues of material fact, the Court must deny summary judgment and proceed to ...


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