Gimutao v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIUS GIMUTAO, Case No.: 3:20-cv-1868-BEN-LL 12 Plaintiff, ORDER GRANTING UNOPPOSED 13 v. MOTIONS TO STRIKE AND TRANSFER VENUE 14 UNITED STATES OF AMERICA 15 Defendant. [ECF Nos. 4, 5] 16 17 On September 21, 2020, Plaintiff Julius Gimutao filed a Complaint against 18 Defendant United States of America seeking monetary damages. ECF No. 1. Gimutao 19 alleged four claims for injuries suffered while he was allegedly working onboard SBX-1, 20 a sea-based x-band radar vessel operated by the United States. On November 23, 2020, 21 the United States filed (1) a Motion to Strike Plaintiff’s Jury Demand, ECF No. 4, and (2) 22 a Motion to Transfer Venue to the United States District Court for the District of Hawaii, 23 ECF No. 5. 24 I. DISCUSSION 25 In support of its Motion to Strike, the United States argues that Gimutao has 26 brought suit under the Public Vessels Act (46 U.S.C. §§ 31101, et seq.) and the Suits in 27 Admiralty Act (46 U.S.C. §§ 30901, et seq.), both of which are limited waivers of 28 sovereign immunity by the United States, but neither of which provides the right to a jury 1 trial. See 46 U.S.C. § 30903(b) (providing that “[a] claim against the United States . . . 2 under [the Suits in Admiralty Act] shall be tried without a jury”); United States v. United 3 Cont’l Tuna Corp., 425 U.S. 164, 171 (1976) (noting that suits brought under the Public 4 Vessels Act shall be subject to and proceed in accordance with the provisions of the Suits 5 in Admiralty Act). Gimutao filed a notice of non-opposition to the Motion to Strike. 6 ECF No. 6. The Court agrees that Gimutao is not entitled to a jury trial for his claims. 7 As there is no legal basis for a jury trial demand, the Motion to Strike is GRANTED, and 8 the jury trial demand is stricken from the Complaint. 9 In support of its Motion to Transfer Venue, the United States argues that it “is only 10 subject to suit ‘in the district court of the United States for the district in which the vessel 11 . . . [charged with creating the liability] is found within the United States.’” Mot., ECF 12 No. 5, 5 (quoting 46 U.S.C. § 31104(a)). A public vessel is “found” in the district in 13 which it is physically present when the complaint is filed. See Sherman v. United States, 14 246 F. Supp. 547, 548 (W.D. Mich. 1965). However, if a vessel is not within the 15 territorial waters of the United States, a plaintiff may bring a Public Vessels Act action in 16 the district in which he resides. 46 U.S.C. § 31104. 17 The Complaint in this matter was filed on September 21, 2020. ECF No. 1. The 18 Complaint alleges “[t]he vessel identified as SBX-1 is not currently known to be [] 19 located in the territorial waters of the United States.” ECF Nos. 1, 2. However, the 20 United States has attached to its Motion to Transfer a declaration containing SBX-1’s log 21 book for the day the Complaint was filed, which indicates SBX-1 was moored at Pier F- 22 13 in Pearl Harbor, Hawaii, on September 21, 2020, within the territorial waters of the 23 United States. Young Decl., ECF No. 5-2, Ex. A. The Court finds this log book to be 24 competent evidence of SBX-1’s location for purposes of this motion. See, e.g., Chilean 25 Line Inc. v. Main Ship Repair Corp., 232 F. Supp. 907, 908 (S.D.N.Y. 1964) (using 26 affidavits to establish the locations of two ships for purposes of evaluating proper forum 27 under the Public Vessels Act). Moreover, Gimutao does not oppose transfer. See ECF 28 No. 7. Accordingly, the Motion to Transfer is GRANTED. 1 CONCLUSION 2 The United States’ Motion to Strike is GRANTED. ECF No. 6. This action is 3 || TRANSFERRED to the United States District Court for the District of Hawaii for further 4 || proceedings pursuant to 28 U.S.C. § 1406(a). 5 IT IS SO ORDERED. 6 7 Date: December 22, 2020 g HON. ROGER T. BENITEZ United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28