Fathom Exploration, LLC v. The Unidentified Shipwrecked Vessel or Vessels

Filing 195

Order lifting the stay imposed in 141 Order as to the shipwreck that Fathom identified as AMSTEL. Discovery cutoff 10/3/2011. Any party wishing to be heard on the issues of the identity of the vessel that Fathom is calling the AMSTEL must file a memorandum of law by 12/2/2011 as further set out. Any party wishing to respond to any other party's evidentiary submission and brief may file a response by 12/16/2011. With respect to all other wreck sites within the admiralty arrest area in this case, the stay remains in place. Signed by Chief Judge William H. Steele on 7/1/2011. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FATHOM EXPLORATION, L.L.C.,
Plaintiff,
v.
THE UNIDENTIFIED SHIPWRECKED
VESSEL OR VESSELS, etc., in rem,
Defendants.

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CIVIL ACTION 04-0685-WS-M

ORDER
This stayed matter comes before the Court on the parties’ Joint Status Report (doc. 194).
The Status Report reflects that all parties jointly propose the following course of action: (i) that
the stay is due to be lifted as to the vessel identified by Fathom as the AMSTEL, but should
remain in place as to the other three shipwreck sites in the admiralty arrest area pending tentative
identification of same; (ii) as to the purported AMSTEL site, triable issues concerning vessel
identity and abandonment may be resolved by this Court on written evidentiary submissions and
briefs (rather than a formal hearing or trial) after a short discovery period; and (iii) ancillary
issues of class certification, descent and distribution should be deferred unless and until such
time as a judicial determination is made that the vessel is the ROBERT H. DIXEY.
After careful review of the Joint Status Report as well as other portions of the court file
deemed relevant, the undersigned finds that the parties’ proposed plan is an efficient, reasonable
and prudent way of moving forward on the AMSTEL portion of the case, as to which a stay is no
longer necessary. Accordingly, it is ordered as follows:
1.

The stay imposed on December 14, 2005 (see doc. 141) is hereby lifted as to the
shipwreck that Fathom has identified as the AMSTEL.

2.

As to that wreck, the parties may engage in the full panoply of discovery
procedures, in accordance with Rule 26 of the Federal Rules of Civil Procedure,
with discovery to be confined to the specific issues of vessel identity and
abandonment, as designated by the parties in their Joint Status Report.

3.

All discovery on these specific discovery issues must be completed on or before
October 3, 2011. Requests for extension will be viewed with great disfavor and
will not be considered except upon a showing (1) that extraordinary
circumstances require it and (2) that the parties have diligently pursued
discovery.1

4.

Any party wishing to be heard on the issues of the identity of the vessel that
Fathom is calling the AMSTEL and/or whether said vessel has been abandoned
within the meaning of The Abandoned Shipwreck Act must file a memorandum
of law, with supporting exhibits, setting forth its position on or before December
2, 2011. Any party wishing to respond to any other party’s evidentiary
submission and brief may file a response on or before December 16, 2011. If an
evidentiary hearing or oral argument is warranted, the Court will set the matter for
hearing shortly thereafter. Otherwise, these issues will be taken under submission
upon the close of briefing.2

1

With respect to discovery, the Court recognizes that this Order is substantially
less comprehensive than the Rule 16(b) Scheduling Orders that typically issue from this District
Court. Likewise, the parties have not been required to submit a Rule 26(f) report at this time.
The Court has opted for this less rigorous approach, based on the unusual circumstances of this
case and the perception that the parties should be able to work together reasonably and in good
faith to complete the limited discovery that is likely to be necessary to address the narrowly
circumscribed triable issues presented, without resort to the sorts of judicially imposed
directives, ground rules, and parameters ordinarily imposed. That said, if at any time during the
discovery process any party believes that entry of a more extensive Rule 16(b) Scheduling Order
might be beneficial, that party should promptly file a notice to that effect. At that time, the
matter may be set for a scheduling or discovery conference before the Magistrate Judge.
2

In prescribing these briefing deadlines, the Court emphasizes that this procedure
is distinct from a Rule 56 summary judgment inquiry. Indeed, the Joint Status Report reflects the
parties’ belief that “there will be competing inferences which would make summary judgment
improper,” but that they nonetheless are asking the Court to endeavor “to decide any and all fact
issues and resolve any competing inferences based on the available record.” (Doc. 194, at 3.) In
other words, the parties are proposing that this Court act as finder of fact on the questions of
vessel identity and abandonment based on a written record and briefs. The Court will do so on
the express understanding that all parties have acquiesced to this protocol. Of course, should
review of the parties’ materials reveal a need for credibility determinations, or should the
undersigned otherwise determine that live witnesses and evidentiary presentations are necessary
to resolve (or would facilitate the resolution of) any triable issues, this matter will be set for
hearing.
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5.

Issues concerning class certification of the heirs of the last owners of the
ROBERT H. DIXEY, and descent and distribution among such persons, are held in
abeyance unless and until such time as a judicial determination is made that the
subject wreck is, in fact, the DIXEY.

6.

With respect to all other wreck sites within the admiralty arrest area in this case,
as to which Fathom has notified the Court that even tentative identification
remains impossible at this time, the stay remains in place. As to those wrecks,
Fathom remains governed by the status report obligations delineated by the
Court’s previous orders.

DONE and ORDERED this 1st day of July, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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