Cap One, Inc. v. MV Sierra Rose ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CAP ONE INC., No. 2:19-cv-01911-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 MV SIERRA ROSE, Official Number 1177228, her engines, tackle, apparel, 15 furniture, equipment, and appurtenances, et al., 16 Defendants. 17 18 This matter was referred to the undersigned under Local Rule 302(c)(3). Before the court 19 is plaintiff Cap One, Inc.’s request for an order authorizing the issuance of a warrant for the arrest 20 of defendant MV Sierra Rose, Official Number: 1177228, her engines, tackle, apparel, furniture, 21 equipment, and appurtenances, in rem (“the Vessel”), which Vessel is the subject of the instant 22 admiralty action for the foreclosure of a preferred maritime mortgage, and plaintiff’s separate 23 motion to adopt a substitute custodian. 24 I. Notice of Request for Review in Accordance with Supplemental Rule C (ECF No. 2) 25 Plaintiff requests the court to review the verified complaint and enter an order directing 26 the Clerk of Court to issue a warrant for the arrest of the Vessel, which “is located alongside dock 27 at Tahoe Keys Marina, Slip No. A104, 2435 Venice Dr. E, South Lake Tahoe, California within 28 the Admiralty jurisdiction of this Court. (ECF No. 2 at 1.) 1 “An action in rem may be brought . . . [t]o enforce any maritime lien.” Fed. R. Civ. P. 2 Supp. Adm. Rule C(1)(a). To commence an action in rem against a vessel, the plaintiff must file 3 a verified complaint that describes the vessel “with reasonable particularity” and states that the 4 vessel “is within the district or will be within the district while the action is pending.” Fed. R. 5 Civ. P. Supp. Adm. & Mar. Cl. R. C(2); see also Madeja v. Olympic Packers, LLC, 310 F.3d 628, 6 637 (9th Cir. 2002). If the plaintiff meets these conditions, the district court must take the boat 7 into custody—unless the plaintiff requests otherwise—by issuing an arrest warrant to be served 8 by the marshal. See Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. C(3)(a)–(b), E(3)(b). The arrest 9 warrant should issue “upon a prima facie showing that the plaintiff has an action in rem against 10 the defendant . . . and that the property is within the district.” Fed. R. Civ. P. Supp. Adm. Rule C, 11 Advisory Committee Notes to 1985 Amendment. 12 The court has reviewed the verified complaint and related documents filed in accordance 13 with the requirements of Rule C(3) of the Supplemental Rules for Admiralty and Maritime 14 Claims. The verified complaint describes the Vessel with particularity and establishes that it is 15 currently located within the Eastern District of California at Tahoe Keys Marina, Slip No. A104, 16 2435 Venice Dr. E, South Lake Tahoe, California. It appears that plaintiff has made a prima facie 17 showing that an action in rem exists to support the issuance of an arrest warrant for the MV Sierra 18 Rose. Because plaintiff has made a prima facie showing that the conditions for a maritime in rem 19 action exists, the requested vessel arrest warrant must issue. 20 II. Motion to Adopt a Substitute Custodian (ECF No. 3) 21 Separately, plaintiff requests the court to enter an order appointing Resource Management 22 & Development, Inc. as substitute custodian of the vessel MV Sierra Rose, Official Number 23 1177228. (ECF No. 3.) Resource Management & Development has consented to assume 24 responsibility of safekeeping the Vessel and to act as her custodian under further order of this 25 court. (Id. at ¶ 4.) 26 In the interest of allowing the Vessel and equipment to remain in the hands of a competent 27 person and to save unnecessary expenses, the court grants plaintiff’s request to appoint the 28 following substitute custodian of the Vessel: 1 Resource Management & Development, Inc. P.O. Box 70458 2 Reno, NV 89570 3 (“Substitute Custodian”). Substitute Custodian will charge a rate consistent with its normal rates 4 for the custodial care of vessels as represented in Exhibit A attached to the motion to appoint a 5 substitute custodian. (See ECF No. 3-1 at 2.) 6 Plaintiff and Resource Management & Development in consideration of the Marshal’s 7 consent to the substitution of custody of the Vessel, have agreed to release the United States and 8 the U.S. Marshal from any and all liability and responsibility arising out of the care and custody 9 of the Vessel, from the time the Marshal transfers custody of the Vessel over to the Substitute 10 Custodian, and Plaintiff and Resource Management & Development further agree to hold 11 harmless and indemnify the United States and the U.S. Marshal from any and all claims 12 whatsoever arising out of Substitute Custodian’s possession and safekeeping of the Vessel. (ECF 13 No. 3 at ¶ 6.) The Substitute Custodian has also represented that it carries adequate liability 14 insurance. (ECF No. 3 at ¶ 5.) 15 III. Conclusion 16 For the reasons discussed above and set forth in the plaintiff’s moving papers, IT IS 17 HEREBY ORDERED that: 18 1. In accordance with Supplemental Rule C(3)(a), the Clerk of Court is authorized to 19 issue a warrant for the arrest of the MV Sierra Rose attached at document 2-2. The Clerk of 20 Court is directed to deliver the warrant, together with this order, to the United States Marshal for 21 execution. 22 2. The United States Marshal, upon receipt of the warrant and appropriate process, shall 23 execute the warrant for arrest against the MV Sierra Rose, her engines, tackle, apparel, furniture, 24 equipment, and appurtenances, by affixing a copy of this order and of the summons and verified 25 complaint, in a conspicuous place aboard the Vessel, and by leaving a copy of the same with the 26 master or other person having possession of said Vessel. 27 3. The United States Marshal is authorized and directed to surrender the possession and 28 custody of the Vessel to Resource Management & Development and that upon such surrender the 1 | Marshal shall be discharged from his duties and responsibilities for the safekeeping of the Vessel 2 | and held harmless for any and all claims arising whatsoever out of said substituted possession and 3 | safekeeping of the MV Sierra Rose. 4 4. Resource Management & Development is appointed the custodian of the Vessel and 5 | shall retain the same in its custody for possession and safekeeping for the compensation outlined 6 | herein until further order of the court. 7 5. All United States Marshal’s costs shall be paid prior to the release of the Vessel. 8 6. The Substitute Custodian must sign a receipt for the vessel and the United States 9 | Marshal must attest to the date and time of release on a certified copy thereof. (See ECF No. 3-2 10 | at6.) 11 7. The MV Sierra Rose is allowed to be moved from the location of arrest and attachment 12 | to the premises of Resource Management & Development, or elsewhere, within this District as 13 | Substitute Custodian deems proper and necessary, in order to accommodate the orderly business 14 | of the Substitute Custodian and safekeeping of the Vessel. However, the Vessel may not be 15 | transported outside of the Eastern District of California and it shall remain here at all times. 16 8. The Substitute Custodian shall defend the United States of America, the United States 17 | Marshal, their agents, servants, employees, and all others for whom they are responsible, against 18 all claims and actions arising out of said substitute custody and, further, shall indemnify and hold 19 | harmless and be responsible to pay and satisfy all claims and judgments that might arise out of 20 | said substitute custody and shall be responsible and indemnify and hold harmless the United 21 States of America, the United States Marshal, their agents, servants, employees, and all others for 22 | whom they are responsible, for all attorneys’ fees, costs, expenses and disbursements incurred in 23 | defending against such claims or actions arising out of said substitute custody. 24 9. Plaintiff’s counsel shall serve the owner of the Vessel with a copy of this order. 25 || Dated: December 11, 2019 bh rdf /f [ { gt 26 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE 28 || 15 capone1911.order