Platypus Marine, Inc. v. M/Y ALASKAN GRANDEUR, O.N. 1121333

Filing 114

ORDER denying 103 and 104 Motions for Reconsideration. Platypus Marine must dismiss its in rem claims with prejudice or deposit countersecurity in the amount of $224,810.00 within 14 days of the date of this order. A telephonic Trial-Setting Conference is hereby scheduled for December 17, 2024 at 10:45 AM. All parties shall participate telephonically by dialing 571-353-2301 (Call ID 020262828, Pin 487051) approximately five minutes before the scheduled hearing time. Signed by Judge Sharon L. Gleason on 11/27/2024. (JDS, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PLATYPUS MARINE, INC., a
Washington corporation,
Plaintiff,
v.
GLACIER GUIDES, INC., an Alaska
corporation, in personam, et al.,

Case No. 1:22-cv-00006-SLG

Defendants.
ORDER ON MOTIONS FOR RECONSIDERATION
Before the Court at Docket 103 is a Motion for Reconsideration Re: Motion
to Compel Posting of Counter Security filed by Plaintiff Platypus Marine, Inc.
(“Platypus Marine”). Defendants Glacier Guides, Inc., Alaska Legacy, LLC, and
M/Y

ALASKAN

GRANDEUR,

O.N.

1121333

(collectively,

“Defendants”)

responded in opposition at Docket 108. Also before the Court at Docket 104 is
Defendants’ Motion for Reconsideration Re: Order Denying Motion to Amend
Counterclaim. Platypus Marine responded in opposition at Docket 110. For the
reasons set forth below, both motions are DENIED.

BACKGROUND
On July 5, 2022, Platypus Marine filed its Second Amended Complaint
against Defendants. 1 In it, Platypus Marine describes how it entered into a contract
with Alaska Legacy, the owner of the ALASKAN GRANDEUR, for the haul-out and
repair of the vessel. 2 According to Platypus Marine, it repaired the vessel as
agreed, relaunched it, and issued an invoice for the cost of repairs on or about
April 4, 2022. 3 Glacier Guides, the operator of the ALASKAN GRANDEUR, issued
two checks as payment, but subsequently stopped payment on one of the two
checks in the amount of $168,011.18. 4 Platypus Marine then commenced this
action, asserting causes of action for a maritime lien against the vessel, breach of
contract, enforcement of the dishonored check, and arrest of the vessel. 5
Defendants answered on July 21, 2022, asserting a counterclaim for breach of
contract/breach of warranty. 6

1

Docket 18.

2

Docket 18 at 2.

3

Docket 18 at 2.

4

Docket 18 at 3.

5

Docket 1; Docket 18 at 3-5.

6

Docket 23 at 6.

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Previously, on June 10, 2022, the parties filed a Joint Stipulation “requesting
[that] the Court issue an order approving Substitute Security in the amount of USD
$178,091.85.” 7 In a June 14, 2022 order, the Court approved this stipulation,
directing Alaska Legacy, LLC to deposit $178,091.85 with the Court as security
and ordering that the ALASKAN GRANDEUR be released upon said deposit. 8
Defendants subsequently made the agreed-upon deposit. 9
On June 12, 2023, Defendants moved the Court for an order directing
Platypus Marine to deposit a countersecurity. 10 Platypus Marine responded in
opposition on June 23. 11 On July 5, 2023, the Court granted the motion and
ordered Platypus Marine to deposit a countersecurity in the amount of
$224,810.00. 12
After an unsuccessful settlement conference on March 15, 2024, 13
Defendants filed three motions on April 25, 2024, two of which are the subject of
the instant motions to reconsider. First, Defendants moved to compel Platypus
Marine’s deposit of the countersecurity, noting that they had not done so earlier

7

Docket 10 at 1.

8

Docket 13.

9

Docket 15.

10

Docket 43.

11

Docket 46.

12

Docket 51.

13

See Docket 84 at 1.

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because of the active settlement efforts. 14

Platypus Marine responded in

opposition, 15 to which Defendants replied. 16 At Docket 100, the Court granted
Defendants’ Motion to Compel Deposit of Countersecurity. In its order, the Court
noted that in admiralty or maritime proceedings in rem, Federal Rule of Civil
Procedure Supplemental Rule E(7)(a) “mandates deposit of a countersecurity
when, as here, a party who has given security for damages, asserts a
counterclaim, unless there is cause not to do so.” 17 While Platypus Marine had
“indicate[d that] it wishe[d] to proceed solely on its in personam claims against
Glacier Guides, Inc. and Alaska Legacy, LLC,” it had not formally “relinquished” its
in rem claims, and it was therefore required to deposit a countersecurity. 18
On July 8, 2024, Platypus Marine filed a Notice of Dismissal of its claims
against the in rem defendant ALASKAN GRANDEUR without prejudice. 19 That
same day, Platypus Marine moved for reconsideration of the Court’s order at
Docket 100, asserting that its dismissal of the in rem claims eliminated any basis
for requiring the countersecurity. 20 At the Court’s request, 21 Defendants responded
14

Docket 83 at 1-2.

15

Docket 91.

16

Docket 92.

17

Docket 100 at 4.

18

Docket 100 at 4-5.

19

Docket 102.

20

Docket 103.

21

Docket 105.

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in opposition at Docket 108.
The second April 25, 2024 motion relevant again now is Defendants’ motion
for “leave to amend its counterclaim to include a cause of action for breach of the
Washington Consumer Protection Act[.]” 22 Platypus Marine filed an opposition,23
to which Defendants replied. 24

At Docket 99, the Court denied the motion to

amend, finding that Defendants had failed to demonstrate good cause to support
an amendment nearly two years after the deadline for motions to amend had
passed, and months after the parties had certified that the case was ready for
trial. 25
On July 8, 2024, the case was reassigned from former Judge Joshua M.
Kindred to the undersigned judge. 26
On July 11, 2024, Defendants filed a Motion for Reconsideration Re: Order
Denying Motion to Amend Counterclaim. 27 At the Court’s request, 28 Platypus
Marine responded in opposition on July 23. 29

22

Docket 86 at 1-2.

23

Docket 90.

24

Docket 95.

25

Docket 99 at 7.

26

Docket 101.

27

Docket 104.

28

Docket 107.

29

Docket 110.

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LEGAL STANDARD
Local Civil Rule 7.3(h)(1) provides that a court “will ordinarily deny a motion
for reconsideration absent a showing of one of the following: (A) manifest error of
the law or fact; (B) discovery of new material facts not previously available; or (C)
intervening change in the law.”
DISCUSSION
1. Platypus Marine Must Dismiss its Claim with Prejudice or Deposit
Countersecurity.
In its Motion for Reconsideration Re: Motion to Compel Posting of Counter
Security, Platypus Marine asks the Court to reconsider its previous order
compelling Platypus Marine to post countersecurity, asserting that “the sticking
point for the Court was that plaintiff did not dismiss its in rem counterclaim first . . .
. Plaintiff has now done so. This is equivalent to a ‘new material fact’ justifying
reconsideration.” 30 Defendants disagree, contending that Platypus Marine “must
either dismiss its in rem claims with prejudice, or it must post countersecurity[.]” 31
While the Court finds that Platypus Marine’s dismissal of its in rem claims
without prejudice is not a “material” fact to warrant the Court’s reconsideration of
its prior ruling, it clarifies its prior ruling as follows: Platypus Marine must either: (1)

30

Docket 103 at 2 (citation omitted).

31

Docket 108 at 5.

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post countersecurity, or (2) file its in rem dismissal with prejudice, in which event
Defendants will be entitled to the release of their security.
In the event that Platypus Marine does not dismiss the in rem claims with
prejudice, the Court maintains its prior order requiring it to deposit countersecurity.
Federal Rule of Civil Procedure Supplemental Rule E(7)(a) provides that:
When a person who has given security for damages in the original
action asserts a counterclaim that arises from the transaction or
occurrence that is the subject of the original action, a plaintiff for
whose benefit the security has been given must give security for
damages demanded in the counterclaim unless the court, for cause
shown, directs otherwise.
In other words, “a defendant seeking countersecurity must establish . . . (1) that it
has posted security for the original claim; and (2) that its counterclaim arises from
the same transaction or occurrence as the original claim.” 32 Here, Defendants
posted security, 33 and the Court previously found that Defendants’ counterclaim
arises out of the same transaction or occurrence as Platypus Marine’s claim, 34 a
finding that has not been challenged. 35 The Court, having found that Platypus
Marine did not show cause to warrant relief from Supplemental Rule E(7)(a), 36
acted within its discretion when it ordered Platypus Marine to post countersecurity.

Phoenix Bulk Carriers, Ltd. v. Am. Metals Trading, LLP, 742 F. Supp. 2d 486, 489 (S.D.N.Y.
2010).
32

33

Docket 15.

34

Docket 51 at 3.

35

See Docket 91; Docket 103.

36

Docket 100 at 4-5.

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To avoid posting countersecurity, Platypus Marine must dismiss its in rem
claim with prejudice. Otherwise, as Defendants articulate, Platypus Marine is
attempting to “avoid posting countersecurity . . . such that it may once again
reassert its maritime lien claim against the Vessel to collect a judgment if it prevails
upon its in personam claims in the action.” 37 And in fact, Platypus Marine has
indicated that it may do just that. 38 Because “[t]he purpose of Rule E(7) is to place
the parties on an equal basis insofar as security is concerned[,]” 39 Platypus
Marine’s attempt to avoid posting countersecurity while seeking to retain the ability
to later arrest the vessel post-judgment does not comport with the spirit of the
rule. 40 Should Platypus Marine choose this alternative and dismiss its in rem
37

Docket 108 at 3.

Docket 91 at 2 (“[I]f [the Court] determines at trial that Platypus Marine is owed money for a
claim that would provide a maritime lien[,]….Platypus would need to move for an arrest of the
vessel . . . .”).
38

Powers v. F/V GLADYS E, Case No. A90-408 CIV., 1991 WL 198979, at *4 (D. Alaska Mar. 27,
1991) (citing Wash.-S. Navigation Co. v. Balt. & Phila. Steamship Co., 263 U.S. 629, 638-39
(1924)); see also Titan Navigation, Inc. v. Timsco, Inc., 808 F.2d 400, 403 (5th Cir. 1987).
39

The Court notes that while there is caselaw suggesting that it might be impermissible for
Platypus Marine to reassert a lien on the vessel if the in rem claim is dismissed without prejudice,
the question is unsettled enough that the Court will require the dismissal to be with prejudice.
Courts have held that “the effect of release [of a lien in suit] is to transfer the lien from the ship to
the fund represented by the bond or stipulation. The lien against the ship is discharged for all
purposes and the ship cannot again be libeled in rem for the same claim.” Petroleos Mexicanos
Refinacion v. M/T KING A, 554 F.3d 99, 104 (3d Cir. 2009) (quoting Grant Gilmore & Charles L.
Black, Jr., The Law of Admiralty § 9-89, at 799 (2d ed. 1975)); see also S. Or. Prod. Credit Ass’n
v. Oil Screw Sweet Pea, 435 F. Supp. 454, 458 (D. Or. 1977). However, in those cases, the issue
was that the security provided was insufficient to satisfy the judgment. See M/T KING A, 554
F.3d at 104; Oil Screw Sweet Pea, 435 F. Supp. at 457. One district court has applied this
prohibition against reasserting an in rem claim in a situation similar to this one, where the in rem
claim had previously been dismissed without prejudice. See The Cleveland, 98 F. 631, 631-33
(D. Wash. 1899) (after the court dismissed an in rem case without prejudice and a second suit in
rem was brought against the same steamship by the same libelants for the same cause of action,
the court found that it was “obliged to hold that the release of the steamship Cleveland in the
40

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claims with prejudice, Defendants are then entitled to an order releasing their
security, 41 and Platypus Marine will no longer be required to post countersecurity.42
2. Defendants Have Not Provided Reason for the Court to Reconsider its
Previous Order Denying the Motion to Amend.
In their Motion for Reconsideration Re: Order Denying Motion to Amend
Counterclaim, Defendants reiterate their assertions from their earlier Reply on
Motion to Amend Counterclaim; Defendants seek leave to include a claim for
violation of the Washington Consumer Protection Act, asserting that (1) their recent
discovery of two lawsuits against Platypus Marine supports the public interest
element of the Washington claim, which requires “a real and substantial potential
for repetition,” and (2) that any prejudice would be minor compared to the delays
caused by Platypus Marine. 43 Platypus Marine opposes this motion, asserting that
Defendants fail to show good cause for their amendment and noting that

former suit . . . discharged her absolutely from liability to answer the demands of the libelants in
this case, and that the proviso in the order dismissing the former suit that the same was made
without prejudice can have no other effect, as a saving clause, than to prevent the decree of
dismissal from being set up in bar of subsequent suits in personam against the master or owners
of the vessel”).
The parties do not contest that release of the security is appropriate in this situation. See Docket
91 at 2 (“[T]he Court should issue an order releasing the security.”); Docket 108 at 4 (“[Plaintiff]
wants to avoid posting countersecurity by voluntarily releasing Defendants' security through
dismissal . . . .”). Furthermore, because Supplemental Rule E and its security provisions apply to
in rem actions, it follows that an action that is no longer in rem does not require the posting of
security. See F. R. Civ. P. Supp. R. E(1).
41

This is because Defendants will no longer meet the requirement of Supplemental Rule E(7)(a)—
that a defendant seeking countersecurity must establish that it has posted security for the original
claim.

42

Docket 104 at 2-3 (quoting Nw. Prod. Design Grp. v. Homax Prod., Inc., 174 Wash. App. 1002
(2013)); Docket 95 at 5-9.
43

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Defendants “do not cite to [Local Civil Rule] 7.3 nor otherwise explain the basis
that the Court should reconsider its motion.” 44
The Court agrees with Platypus Marine that Defendants fail to show any
reason for the Court to reconsider the previous Order Denying Motion to Amend.
As noted earlier, Local Civil Rule 7.3(h)(1) provides that a court “will ordinarily deny
a motion for reconsideration absent a showing of one of the following: (A) manifest
error of the law or fact; (B) discovery of new material facts not previously available;
or (C) intervening change in the law.” Defendants do not assert any new material
fact or intervening change in law, 45 and the Court does not find any manifest error
of the law or fact in the prior order.
The Court previously analyzed the motion to amend under Federal Rule of
Civil Procedure 16, which governs when the deadline for motions to amend from
the Court’s Scheduling and Planning Order has passed. 46 Under Rule 16, the
Court may modify its scheduling order “for good cause[.]” 47 To evaluate whether
newly discovered evidence is sufficient to demonstrate “good cause,” courts
“inquire whether the moving party knew or should have known the facts and
theories raised by the amendment in the original pleading.” 48 The Court previously

44

Docket 110 at 1, 3-4.

45

See Docket 104.

46

See Docket 99 at 6 (citing Docket 21).

47

Fed. R. Civ. P. 16(b)(4).

48

AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006) (internal

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found that Defendants’ discovery of two lawsuits against Platypus Marine did not
suffice as “good cause” to justify their eleventh-hour amendment. 49 Because the
first lawsuit 50 had been pending since August 15, 2022, 51 “Defendants could have
discovered the suit in public court filings well before they filed their motion to amend
in May 2024. Their failure to do so precludes a finding of ‘good cause’ that would
allow the Court to permit amendment at this late hour.” 52

As to the second

lawsuit, 53 since it was not filed until two weeks after Defendants filed their initial
Motion to Amend Counterclaim, 54 Defendants cannot claim that their decision to
file the motion came as a result of their discovery of that case.

quotation marks and citations omitted).
49

Docket 99 at 7-8.

50

S/Y Paliador, LLC v. Platypus Marine, Inc., 344 F.R.D. 110 (W.D. Wash. 2023).

51

Docket 96-1.

Docket 99 at 8. While Defendants could have discovered the suit in public court filings
regardless, the Court notes that Defendants’ assertion that “during the April of 2023, 30(b)(6)
depositions of Platypus’ owner Judson Linnabary, and Platypus’ president Chris Feffer, both men
untruthfully affirmed that there were no current lawsuits against Platypus” overstates the
deposition testimony. Docket 104 at 3. Judson Linnabary’s Deposition testimony reads: “Q. Okay.
Are you aware, besides those three suits, of any other times that PMI has been involved in a
lawsuit? A. Not really.” Docket 96-3 at 6. Chris Feffer’s Deposition testimony reads: “Q. And to
your knowledge has PMI ever been sued before? A. Yes, I believe so. Q. And can you tell me
about the instances that you know of in which PMI has been sued? A. I wasn't present here during
those, so I wasn't -- I don't have the information on them.” Docket 96-4 at 4.
52

53

Ralston v. Platypus Marine, Inc., Case No. 3:24-cv-05343-GJL (W.D. Wash.).

Compare Docket 96-2 (Ralston Complaint filed May 7, 2024), with Docket 86 (Defendants’
Motion to Amend Counterclaim filed April 25, 2024).
54

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The Court likewise upholds its prior finding that “[t]o allow Defendants to
assert a new claim at this stage would prejudice Platypus Marine’s ability to mount
a defense, further delay this matter, and waste judicial resources.” 55
CONCLUSION
For the foregoing reasons, Platypus Marine’s Motion for Reconsideration
Re: Motion to Compel Posting of Counter Security at Docket 103 is DENIED.
Platypus Marine must dismiss its in rem claims with prejudice or deposit
countersecurity in the amount of $224,810.00 within 14 days of the date of this
order. Should Platypus Marine dismiss its in rem claims with prejudice, the Court
will order the release of Defendants’ security.
Defendants’ Motion for Reconsideration Re: Order Denying Motion to
Amend Counterclaim at Docket 104 is likewise DENIED.
A telephonic Trial-Setting Conference is hereby scheduled for December
17, 2024 at 10:45 A.M. All parties shall participate telephonically by dialing 571353-2301 (Call ID 020262828, Pin 487051) approximately five minutes before the
scheduled hearing time.
DATED this 27th day of November 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

55

Docket 99 at 9.

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