United States District Court, S.D. Florida
EDWARD M. MOORE, Plaintiff,
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.
ALTMAN, UNITED STATES DISTRICT JUDGE
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]. 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.
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.
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
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. ¶
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].
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].
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].
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. 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].
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].
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. .” 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
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.” See
generally [ECF Nos. 83 & 100]. Inshan then
apparently sold the vessel, at the same price, to Moore.
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),  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].
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.
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
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].
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 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.
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). 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.
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.
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).
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 ...