Warhurst v. One Twenty Foot Bertran
ORDER granting in part and denying in part 54 Motion to Supplement; denying 57 Motion to Supplement. Signed by Magistrate Judge Katherine P. Nelson on 11/7/2014. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
EARNEST E. WARHURST, JR.,
ONE TWENTY FOOT BERTRAN, 1969 )
Model Year, bearing Alabama
Registration No. AL8238LM, her
engines, tackle, equipment,
appurtenances, and attached travel
trailer, etc., in rem, and DAVID L.
JONES, in personam,
Civil Action No. 14-00245-N
This action came before the undersigned on November 7, 2014 in response to
the parties’ request for a hearing on defendant’s assertions that a conflict of interest
exists, which necessitates a release of the vessel, or in the alternative, the
appointment of a new substitute custodian. Present at the hearing were Gregory
Buffalow, Esq., counsel for the Plaintiff, and Daniel Sayers, Esq., counsel for the
Defendant. Pending before the Court are Defendant David L. Jones’ Motions to
Supplement (Docs. 54, 57), Plaintiff’s Reply (Doc. 55), and the parties’ Responses to
the undersigned’s Order to Show Cause (Docs. 58, 59).
Defendant Jones’ first Motion to Supplement (Doc. 54) is construed by the
Court as a Motion for Release of the Vessel or, in the alternative, to Appoint a New
Substitute Custodian. The motion is GRANTED only to the extent the motion
requests a hearing before the Court, and is otherwise DENIED.
The expert testimony and report of Joel Perez which was submitted by the
Plaintiff in support of his claim has been previously stricken and such testimony
will not be allowed at the trial of this action. Doc. 39 at 1.
Although there is
evidence of a relationship between plaintiff and the employees of the substitute
custodian, no real showing has been made that the substitute custodian has
violated its fiduciary obligation of safekeeping of the vessel.
See New River
Yachting Center, Inc. v. M/V Little Eagle II, 401 F. Supp. 132 (S.D. Fla. 1975) (the
duty of substitute custodian is to maintain vessel “in a safe and secure manner as to
protect it from injury to end that . . . its value to the parties will not have been
impaired by unnecessary deterioration or damage from which the custodian could
be responsible.”). Accordingly, to the extent the motion seeks release of the vessel,
or in the alternative the appointment of a new custodian, the motion is DENIED.
Defendant Jones’ second Motion to Supplement (Doc. 57), which contains
further information concerning the substitute custodian and requests specific orders
to show cause directed at the Plaintiff, is DENIED for the reasons previously set
DONE and ORDERED this the 7th day of November 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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