In Re: Barbour, et al v.

Filing 10

ORDER granting 9 Motion to Dismiss and return of funds; this action is DISMISSED with costs taxed as paid. The Clerk is DIRECTED to disburse to the Barbours' counsel of record the $25,000.00 previously deposited into the Cort's registry. Signed by Magistrate Judge Katherine P. Nelson on 11/17/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
IN RE: GENE BARBOUR and
SHIRLEY BARBOUR, as owners of
the unnamed Vessel HIN#
FRU19904D111.

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CIVIL ACTION NO. 14-00496-N1

ORDER
Gene Barbour and Shirley Barbour (“the Barbours”), as owners of the
unnamed Vessel HIN# FRU19904D111 have filed a Verified Petition for
Exoneration from or Limitation of Liability (Doc. 1) pursuant to the provisions of 46
U.S.C. § 30501, et seq., and Rule F of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions (“Supplemental Rule F”) for all claims
arising from an incident occurring on or about April 23, 2014, in which the Barbours’
vessel collided with another vessel while it was being operated in the State of
Alabama’s Intercoastal Waterway. As required by Supplemental Rule F(4) and in
accordance with the Court’s previous Orders (Docs. 2, 7), the Clerk of Court
published notice setting April 8, 2015, as the deadline for filing claims in this action
This case has been randomly assigned to the undersigned United States Magistrate Judge
for all purposes, including trial. (See Doc. 3). Inasmuch as no party, to date, has returned
to the Clerk of Court a Request for Reassignment to a United States District Judge (see id.
(“The parties have the right to have this action reassigned to a United States District Judge
for trial and disposition. Any party may request reassignment by emailing the attached
Request
for
Reassignment
to
a
United
States
District
Judge
to
[e-mail]. Do not electronically file the document.”)), there
presently exists implicit consent to the undersigned conducting all proceedings in this case.
See Roell v. Withrow, 538 U.S. 580, 123 S. Ct. 1696, 1703, 155 L. Ed. 2d 775 (2003) (“We
think the better rule is to accept implied consent where, as here, the litigant or counsel was
made aware of the need for consent and the right to refuse it, and still voluntarily appeared
to try the case before the Magistrate Judge. Inferring consent in these circumstances thus
checks the risk of gamesmanship by depriving parties of the luxury of waiting for the
outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the
Article III right is substantially honored.”).

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under Supplemental Rule F(5). (See Doc. 8). To date, no such claim has been filed,
nor has any other party appeared in this action.
The Barbours have filed a motion for the Court to dismiss this action (Doc. 9),
representing that their “insurance company has negotiated a settlement with all
known potential claimants, including those claimants’ identities known at the time
of the filing of the action as well as all claimants who made themselves known
pursuant to the [Barbours]’ publication of a notice of the subject action.”

The

Barbours also request return of the $25,000.00 previously deposited by them into the
Court’s registry as security under 46 U.S.C. § 30511(b)(1) and Supplemental Rule
F(1). (See Doc. 4).
Upon consideration, it is ORDERED that the Barbours’ motion to dismiss
and for return of funds (Doc. 9) is GRANTED.

Accordingly, this action is

DISMISSED under Federal Rule of Civil Procedure 41(a)(2), with costs taxed as
paid. In accordance with S.D. Ala. CivLR 67(e), the Clerk of Court is DIRECTED
to disburse to the Barbours’ counsel of record the $25,000.00 previously deposited by
the Barbours into the Court’s registry (see Doc. 4).
DONE and ORDERED this the 17th day of November 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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