Beech et al v. Fishing Vessel FV WISHBONE

Filing 82

ORDER denying 78 Motion to Alter Judgment, denying 77 Motion for Taxation of Costs; granting 76 Motion for Release of Bond Obligation. The Vessel Release Bond posted on June 3, 2014 (Skippers Landing as principal, FCCI Insurance Company as surety) is hereby discharged. Signed by Chief Judge William H. Steele on 7/21/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADAM BEECH, et al.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
FV WISHBONE, her tackle, furniture,
apparel, equipment, and appurtenances,
etc., in rem,
Defendant.

CIVIL ACTION 14-0241-WS-B

ORDER
This closed matter comes before the Court on a flurry of post-judgment motions,
including Skipper’s Landing, Inc.’s Motion for Discharge of Vessel Release Bond (doc. 76),
Skipper’s Landing, Inc.’s Motion to Tax Costs (doc. 77) and Plaintiffs’ Motion to Alter or
Amend Judgment (doc. 78). All parties have had a full and fair opportunity to be heard on each
of these Motions.
I.

Motion to Alter or Amend Judgment.
On June 15, 2015, the undersigned entered an Order (doc. 74) granting summary

judgment in favor of defendant and dismissing plaintiffs’ maritime lien claims against the in rem
defendant, the F/V WISHBONE. The June 15 Order concluded that plaintiffs’ claims were
properly dismissed “for the separate, independent reasons that (i) plaintiffs were not strangers to
the Vessel and therefore were not eligible to hold maritime lien claims against it, and (ii) even if
plaintiffs were valid lienholders, their liens were barred by laches because plaintiffs failed to
exercise reasonable diligence in preserving those liens, to the detriment of a bona fide purchaser
without notice.” (Doc. 74, at 22.)
Plaintiffs, Adam Beech, Tenley Warhurst and Kris Leith, have filed a Motion to Alter or
Amend Judgment (doc. 78), in which they assert that “[t]he court erred in its determination
concerning stranger to the vessel – joint venture status.” (Doc. 80, at 1.) This Motion is due to
be denied for at least three distinct reasons.

First, movants neither identify nor conform their filing to the legal standard governing
motions to reconsider. Presumably, plaintiffs’ Motion is brought pursuant to Rule 59(e),
Fed.R.Civ.P. As a matter of well-settled law, “[t]he only grounds for granting a Rule 59 motion
are newly-discovered evidence or manifest errors of law or fact.” United States v. Marion, 562
F.3d 1330, 1335 (11th Cir. 2009) (citation and internal marks omitted); see also Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007) (similar). Authority is legion for the proposition that
motions to reconsider “may not be used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (citation omitted).1 Rule
59(e) does not afford an unsuccessful litigant “two bites at the apple.” American Home Assur.
Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th Cir. 1985). Nor are such
motions properly filed “as a kneejerk reaction by a dissatisfied federal court loser.” Lee v.
Thomas, 2012 WL 3137901, *2 (S.D. Ala. Aug. 1, 2012).2 “They are neither appeal substitutes
nor a ‘dry run’ to test arguments in anticipation of a forthcoming appeal.” Id.
1

See also Smith v. Ocwen Financial, 2012 WL 3758378, *2 (11th Cir. Aug. 30,
2012) (“A motion for reconsideration cannot be used to relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the entry of judgment.”) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (similar); Kight v. IPD Printing &
Distributing, Inc., 2011 WL 2015055, *1 (11th Cir. May 24, 2011) (motion for reconsideration
properly denied where movant “merely attempted to relitigate old matters and presented
evidence that could have been raised prior to the entry of judgment”); Morton v. Astrue, 2010
WL 2130613, *3 (11th Cir. May 27, 2010) (“In his motion to alter or amend judgment, …
Morton merely attempted to reargue factual issues previously decided by the district court. The
district court therefore did not abuse its discretion in denying the motion.”); Dyas v. City of
Fairhope, 2009 WL 5062367, *3 (S.D. Ala. Dec. 23, 2009) (“Motions to reconsider … do not
exist to permit losing parties to prop up arguments previously made or to inject new ones, nor to
provide evidence or authority previously omitted. They do not, in short, serve to relieve a party
of the consequences of its original, limited presentation.”).
2

See also Hughes v. Stryker Sales Corp., 2010 WL 2608957, *2 (S.D. Ala. June
28, 2010) (rejecting notion that motions to reconsider “are appropriate whenever the losing party
thinks the District Court got it wrong,” but finding that they are “an extraordinary remedy” that
must be “employed sparingly”) (citations omitted); Garrett v. Stanton, 2010 WL 320492, *3
(S.D. Ala. Jan. 18, 2010) (“Far too often, litigants operate under the flawed assumption that any
adverse ruling on a dispositive motion confers upon them license … to relitigate issues that have
already been decided, to champion new arguments that could have been made before, and
otherwise to attempt a ‘do-over’ to erase a disappointing outcome. This is improper.”).

-2-

The “stranger to the vessel” argument was the centerpiece of Skipper’s Landing’s Motion
for Summary Judgment. Notwithstanding the prominent treatment of this theory in the Rule 56
Motion, plaintiffs elected not to address it in their response brief. The Court specifically noted
this omission – and its potentially severe consequences – in the June 15 Order. (Doc. 74, at 11
n.11.) Having been given a reasonable opportunity to raise any arguments and issues they
wished concerning the “stranger to the vessel” doctrine during summary judgment briefing, and
having chosen to remain silent, plaintiffs cannot now employ Rule 59(e) to obtain a second bite
at the apple merely because they have changed their minds. Stated differently, the arguments
that plaintiffs now make concerning the “stranger to the vessel” doctrine were available during
summary judgment briefing, yet plaintiffs chose not to present them. Plaintiffs must bear the
consequences of that decision. A Rule 59(e) Motion is not a “do-over” procedure authorizing
movants to present arguments that (armed with the benefit of hindsight) they now wish they had
raised previously, but did not. Simply put, had Beech, Warhurst and Leith wished to contest
application of the “stranger to the vessel” principle to their circumstances, they could and should
have done so before summary judgment was entered. It is too late to do so now.
Second, even if plaintiffs had properly presented their “stranger to the vessel” argument
at this time, their Rule 59(e) Motion would still fail because it hinges on an incorrect reading of
applicable substantive law. According to plaintiffs, “[a] showing of control, which was not
made, is the key to a determination of joint venture status to demonstrate a claimant was not a
stranger to the vessel.” (Doc. 80, at 1-2.) Thus, plaintiffs posit, they could not have been
classified as joint venturers with respect to the M/V WISHBONE unless they had “the right to
determine when it was used for charter fishing, rates and charges, whom to hire, or similar
details.” (Id. at 1.) This is not an accurate statement of circuit precedent. Indeed, the Sasportes
case, on which plaintiffs purport to rely, explains that “these elements cannot be applied
mechanically. No one aspect of the relationship is decisive.” Sasportes v. M/V Sol de
Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978) (emphasis added). More recently, the
Eleventh Circuit has emphasized that “[t]he factors listed by the Sasportes court are not a
checklist. They are only signposts, likely indicia, but not prerequisites.” Fulcher’s Point Pride
Seafood, Inc. v. M/V Theodora Maria, 935 F.2d 208, 211 (11th Cir. 1991). The Fulcher’s Point
court elaborated that “we look to the whole relationship to determine whether or not the facts
support the conclusion that a joint venture existed.” Id. So unambiguous is the Eleventh

-3-

Circuit’s stance on the subject that Fulcher’s Point even reiterated that “the factors that indicate
the existence of a joint venture do not have to be met point for point.” Id. at 213. In their Rule
59(e) Motion, plaintiffs would isolate one factor (the right of control) in a vacuum to the
exclusion of all others, in derogation of these binding authorities. The June 15 Order properly
considered all of the Sasportes factors collectively and examined the whole relationship between
each plaintiff and the M/V WISHBONE, just as the Eleventh Circuit has instructed. As such, the
Court cannot agree with plaintiff’s assertion that the June 15 Order erred in its application of the
“stranger to the vessel” doctrine, much less that any such error might warrant relief within the
narrow confines of Rule 59(e).
Third, even if plaintiffs could properly package their “stranger to the vessel” arguments
for the first time in a Rule 59(e) Motion, and even if such arguments did not misapply binding
precedent, their Motion would not succeed. The June 15 Order granted summary judgment for
two independent reasons, to-wit: (i) plaintiffs were not strangers to the vessel, and (ii) their
claims were barred by laches. Even if their Rule 59(e) Motion were to succeed in challenging
the first of those grounds, plaintiffs would not be entitled to relief because their Motion does not
address the second. In other words, the result of the June 15 Order (i.e., entry of summary
judgment in favor of the in rem defendant and dismissal of plaintiffs’ claims in their entirety)
would remain unchanged, even if plaintiffs could properly raise “stranger to the vessel”
arguments now (which they cannot) and even if those arguments had merit (which they do not).
For all of these reasons, Plaintiffs’ Motion to Alter or Amend Judgment (doc. 78) is
DENIED.
II.

Motion to Tax Costs.
In a separate Motion, Skipper’s Landing requests that this Court tax as costs the sums it

spent on the Vessel Release Bond in this case. At the inception of this litigation, plaintiffs
obtained an Order (doc. 2) and Warrant (doc. 3) for arrest of the F/V WISHBONE, and the U.S.
Marshals Service served the Vessel on the afternoon of May 30, 2014. (Doc. 11.) The next day,
Skipper’s Landing appeared in this action and filed an Emergency Motion for Release of Vessel
(doc. 7), predicated on the fact that the F/V WISHBONE is a charter fishing boat that had been
reserved by various parties for the nine-day red snapper fishing season to commence on June 1,
2014. Plaintiffs repeatedly opposed the Vessel’s release. (Docs. 8, 13.) On June 3, 2014, the
parties filed a Joint Motion to Release Vessel (doc. 14), conditioned on Skipper’s Landing

-4-

posting bond in the amount of $108,000, which Skipper’s Landing achieved via a surety, FCCI
Insurance Company. (Doc. 15.) In order to obtain and maintain the Bond, Skipper’s Landing
paid a premium of $1,080 in October 2014, and a renewal premium of $1,080 on June 1, 2015.
(See Doc. 77-1.)
In its Motion to Tax Costs, Skipper’s Landing requests that the $2,160 in bond premiums
be taxed as costs against plaintiffs. No other costs are referenced or sought in the Motion.
Significantly, movant does not base this Motion on the general cost-taxing statute found at 28
U.S.C. § 1920; rather, it invokes 28 U.S.C. § 1919, which provides as follows: “Whenever any
action or suit is dismissed in any district court … for want of jurisdiction, such court may order
the payment of just costs.” Id. Skipper’s Landing reasons that the June 15 Order found that
plaintiffs did not hold valid maritime liens against the F/V WISHBONE, equates that finding
with a determination that jurisdiction was lacking, and posits that the bond premiums are “just
costs” under these circumstances.
As an initial matter, Skipper’s Landing has not made a persuasive showing that § 1919 is
even applicable here. By its terms, § 1919 comes into play only when a district court dismisses
an action “for want of jurisdiction.” The June 15 Order made no finding that this Court lacked
subject matter jurisdiction to hear or decide plaintiffs’ claims on the merits; to the contrary, it
expressly adjudicated the merits and decided the validity of those claims. Moreover, this ruling
was not made pursuant to a Rule 12(b)(1) motion or any jurisdictional concerns raised sua
sponte. As pleaded, plaintiffs’ claims for enforcement of maritime liens lay within the heartland
of federal admiralty jurisdiction.3 The Court’s determination on summary judgment was that
plaintiffs’ claims for enforcement of maritime liens were meritless, not that a lack of federal
3

See, e.g., Crimson Yachts v. Betty Lyn II Motor Yacht, 603 F.3d 864, 868 (11th
Cir. 2010) (“An in rem admiralty proceeding requires as its basis a maritime lien. … An in rem
suit against a vessel is … distinctively an admiralty proceeding, and is hence within the exclusive
province of the federal courts.”) (citations omitted); E.S. Binnings, Inc. v. M/V Saudi Riyadh, 815
F.2d 660, 662 n.2 (11th Cir. 1987) (“Enforcement of a maritime lien through an in rem
proceeding against a vessel such as the action involved in the present case can be maintained
only within the district court’s admiralty jurisdiction.”), abrogated on other grounds by Exxon
Corp. v. Central Gulf Lines, Inc., 500 U.S. 603, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991);
Craddock v. M/Y The Golden Rule, --- F. Supp.3d ----, 2015 WL 2412354, *4 (S.D. Fla. May 20,
2015) (“enforcement of a maritime lien is the exclusive jurisdiction of federal courts sitting in
admiralty”).

-5-

subject matter jurisdiction necessitated dismissal of this action antecedent to reaching the merits.
It is thus far from clear that Skipper’s Landing may properly invoke § 1919 in this procedural
posture.4
Besides, Skipper’s Landing’s efforts to use § 1919 to bypass the outer limits of the cost
statute found at 28 U.S.C. § 1920 (under which the Bond premiums plainly would not be
taxable) are in conflict with the purpose and spirit of § 1919. “Section 1919 traces its roots to an
1875 congressional act that altered the common law rule that a court lacking jurisdiction had no
power to award fees or costs.” Otay Land Co. v. United Enterprises Ltd., 672 F.3d 1152, 1156
(9th Cir. 2012).5 In other words, § 1919 was designed to provide a mechanism for defendants to
obtain an award of costs after lawsuits brought against them were dismissed for want of
jurisdiction, because no such mechanism would otherwise exist. Skipper’s Landing has not
4

In so observing, the undersigned is cognizant of the intertwined nature of the
jurisdictional and merits issues presented. As the Eleventh Circuit has recognized, “[w]hether
maritime jurisdiction exists is a question anterior to, although often coincident with, the question
of whether the plaintiff has a maritime lien.” Crimson Yachts, 603 F.3d at 867 n.1 (citation
omitted). If there is no maritime lien, then there is no in rem jurisdiction. See id. at 868
(“Federal district courts obtain in rem jurisdiction over a vessel when a maritime lien attaches to
it.”). Thus, the determination in the June 15 Order that plaintiffs were not strangers to the vessel
and therefore could not hold maritime liens against the F/V WISHBONE necessarily implicated
jurisdictional issues. Stated differently, the June 15 Order was both a merits ruling (i.e., a
determination that plaintiffs had no meritorious claims) and – implicitly – a jurisdictional ruling
(i.e., a determination that no maritime liens actually attached to the WISHBONE because
plaintiffs held no valid maritime liens, such that no in rem jurisdiction existed). But Skipper’s
Landing has identified neither authorities nor reasoning for the proposition that § 1919 was
intended to apply to this sort of intertwined merits/jurisdiction disposition, as opposed a
threshold Rule 12(b)(1) dismissal (antecedent to reaching the merits) on the grounds that federal
subject matter jurisdiction was lacking. The Court will not construe § 1919 in such an expansive
manner absent a showing that either (i) that is what Congress intended, or (ii) that is what other
district courts have done. Skipper’s Landing has shown neither.
5

See also Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 387, 4 S.Ct. 510,
28 L.Ed. 462 (1884) (“These provisions were manifestly designed to avoid the application of the
general rule, which, in cases where the suit failed for want of jurisdiction, denied the authority of
the court to award judgment against the losing party, even for costs.”); Ericsson GE Mobile
Communications, Inc. v. Motorola Communications & Electronics, Inc., 179 F.R.D. 328, 334
(N.D. Ala. 1998) (“this Court’s authority to even consider the awarding of costs in cases
dismissed for want of jurisdiction is rooted in Section 1919 for the common law forbade any
such award by courts”) (citations omitted).

-6-

argued (and could not reasonably argue) that the Clerk of Court could not tax costs in this case
pursuant to § 1920 or Rule 54(d)(1), Fed.R.Civ.P. To the contrary, Skipper’s Landing could
have submitted a bill of costs under those provisions. It’s just that Skipper’s Landing chafes
against the categorical limits inherent in § 1920, which unquestionably would not allow taxation
of bond premiums as costs.6 On that basis, Skipper’s Landing seeks to achieve an end run
around those limits and expand its remedy by invoking § 1919. Movant cites no authority, and
the Court has found none, supporting the proposition that § 1919 was intended to provide – or
has ever been construed as providing – a second, supplemental, broader means of cost taxation
for a party that would be entitled to recover costs as a prevailing party under § 1920 and Rule
54(d). By overreaching to circumvent the clear limits of § 1920, Skipper’s Landing is not
utilizing § 1919 in a just and equitable manner. For that reason, the Court exercises its discretion
under that statute to decline to award costs. See Otay Land, 672 F.3d at 1157 (application of §
1919 requires analysis of “whether an award of costs is just and equitable”).
Examination of other relevant factors warrants the same conclusion. For example, courts
applying § 1919 have considered the strength of the plaintiff’s jurisdictional claim and the
reasonableness of the plaintiff’s litigation conduct.7 Without question, plaintiffs in this cause
had a plausible basis for asserting the existence of federal jurisdiction, to-wit: their contention
that their provision of supplies and services to the F/V WISHBONE gave rise to a maritime lien,
enforcement of which supported admiralty jurisdiction. Moreover, the Court has no evidence
before it, and no reason to believe, that plaintiffs behaved in a vexatious or frivolous manner at

6

Movant acknowledges as much by conceding that “bond premiums are not among
the listed items in Standing Order No. 13 …. Nor does a bond premium fall within the list of
taxale costs set forth in Title 28, U.S.C. § 1920.” (Doc. 77, at 2.)
7

See, e.g., Otay Land, 672 F.3d at 1158 (in § 1919 analysis, “[w]e agree that the
strength of the plaintiff’s jurisdictional claim is a legitimate consideration”); Hygienics Direct
Co. v. Medline Industries, Inc., 33 Fed.Appx. 621, 625-26 (3rd Cir. Apr. 8, 2002) (finding no
abuse of discretion where “the District Court determined that costs should not be awarded to the
defendants because Hygienics had plausible grounds for asserting the existence of federal
jurisdiction and Hygienics did not act in a vexatious or frivolous manner”) (internal quotation
marks omitted).

-7-

any time following the inception of this lawsuit.8 Also significant in the Court’s assessment of
the equities is Skipper’s Landing’s counsel’s candid admission that he “was unable to find any
case precedent in which the premium for a bond posted for the release of a vessel was taxed for
costs.” (Doc. 81, at 3.)9 This fact reinforces the point that Skipper’s Landing is requesting an
extraordinary form of relief by pushing for taxation of costs falling substantially outside the
traditional, conventional categories authorized by law, without demonstrating how it would be
unfair or inequitable for Skipper’s Landing to bear the costs of its own bond premiums, just like
every other vessel owner does in every other ship seizure case where the plaintiff’s maritime lien
claims are ultimately rejected.
An award of costs under § 1919 is never mandatory, but is instead left to the district
court’s discretion. See, e.g., Religious Technology Center v. Liebreich, 98 Fed.Appx. 979, 98687 (5th Cir. May 10, 2004) (“There is nothing in § 1919, however, that requires such an award:
Orders under this statute are purely permissive.”) (footnote omitted). For all of the foregoing
reasons, the Court exercises its discretion not to tax costs against plaintiffs for the sums spent by
Skipper’s Landing on the vessel release bond.
III.

Motion for Discharge of Vessel Release Bond.
Finally, Skipper’s Landing moves for discharge of the vessel release bond. Pursuant to

Supplemental Rule E(5)(a), Skipper’s Landing posted a Vessel Release Bond (doc. 15) on June
3, 2014, in the amount of $108,000, or twice the value of plaintiffs’ claims asserted herein. More
8

The Court recognizes that Skipper’s Landing imputes nefarious motivation to the
timing of plaintiffs’ filing of their Complaint and ensuing arrest of the F/V WISHBONE, which
occurred just two days before commencement of the nine-day red snapper fishing season. (See
doc. 77, at 2; doc. 63, at 4.) By the time Skipper’s Landing was able to make arrangements for
posting a bond and releasing the vessel, three days of that snapper season had been lost, with
resulting charter cancellations. Undoubtedly, the timing of the vessel’s seizure was both
unfortunate and detrimental to Skipper’s Landing’s business; however, no evidence been
presented to suggest that plaintiffs acted intentionally or spitefully in this regard, or that the
chronology was anything more than a regrettable coincidence.
9

Contrary authorities exist, albeit decided in the context of § 1920 rather than §
1919. See generally Oldendorff Carriers GmbH & Co. KG v. Grand China Shipping (Hong
Kong) Co. Ltd., 2013 WL 5424956, *2 (S.D. Tex. Sept. 26, 2013) (“The great weight of
authority establishes that because bond premiums are not listed in the statute, they are
unrecoverable as costs.”).

-8-

than a month has elapsed since the filing of the Motion for Discharge of Vessel Release Bond
(doc. 76) on June 17, 2015, with no objection or opposition articulated by plaintiffs.
Accordingly, for cause shown, the Vessel Release Bond is hereby discharged. Skipper’s
Landing, Inc. is discharged as principal, and FCCI Insurance Company is discharged as surety.
IV.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Plaintiffs’ Motion to Alter or Amend Judgment (doc. 78) is denied;

2.

Skipper’s Landing’s Motion to Tax Costs (doc. 77) is denied; and

3.

Skipper’s Landing’s Motion for Discharge of Vessel Release Bond (doc. 76) is
granted, and the Vessel Release Bond posted on June 3, 2014 (Skipper’s Landing
as principal, FCCI Insurance Company as surety) is hereby discharged.

DONE and ORDERED this 21st day of July, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

-9-