Seward Property, LLC v. Arctic Wolf Marine, Inc. et al
Filing
196
ORDER granting in part and denying in part 188 Motion for Attorney Fees; denying 189 Motion to Amend/Correct; denying 190 Motion to Enforce Judgment. Seward Property shall recover from Defendants Tomingas, Arctic Wolf Marine and Schul tz, jointly and severally, the following amounts: $57,731.50 in attorney's fees; prejudgment interest in the amount of $1,170.42 and postjudgment interest; $17,700 in additional vessel storage and blocking fees. See order for additional details. Signed by Judge Sharon L. Gleason on 12/5/2022. (ANM, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SEWARD PROPERTY, LLC, an
Alaska Limited Liability Company,
Plaintiff,
v.
ARCTIC WOLF MARINE, INC. et al.,
Defendants.
Case No. 3:18-cv-00078-SLG
ORDER RE ALL PENDING MOTIONS
This order addresses three pending motions filed by Plaintiff Seward
Property, LLC (“Seward Property”): (1) Motion for Reasonable Attorney Fees,
Costs, and Prejudgment Interest at Docket 188; (2) Motion to Correct or Amend
Judgment at Docket 189; and (3) Motion Pursuant to Fed. R. Civ. P. 70 for Holding
Defendants in Contempt for Failure to Perform a Specific Act at Docket 190. Selfrepresented Defendant Henry Tomingas filed a response in the form of an
Objection to All Plaintiff’s Motions of August 1st 2022 at Docket 191. Defendants
Arctic Wolf Marine, Inc. (“Arctic Wolf Marine”), and Del Schultz did not file
responses to these motions. Oral argument was not requested and was not
necessary to the Court’s determination.
BACKGROUND
The factual allegations and procedural history of this case are set forth in
detail in the Court’s Order at Docket 107 and Decision and Order at Docket 186.
The Court assumes familiarity here. As relevant here, the Court entered a partial
final judgment in favor of Seward Property on April 27, 2021, ordering Arctic Wolf
Marine and Mr. Schultz, jointly and severally, to pay $52,000 in vessel storage fees
accrued through January 2021 as a result of their breach of the parties’ Vessel
Storage Agreement and breach of the implied covenant of good faith and fair
dealing.1 The Court also ordered Arctic Wolf Marine and Mr. Schultz to cause the
R/V Bering Explorer, as well as any associated equipment, to be removed from
Seward Property’s ship storage yard on or before July 21, 2021.2 The vessel was
not removed by that date.3 Remaining for resolution was whether Mr. Tomingas
was liable for the debts of Arctic Wolf Marine.4 Following a two-day bench trial in
late 2021, the Court pierced the corporate veil in an order filed on July 18, 2022
and held Mr. Tomingas liable for the debts of Arctic Wolf Marine to Seward
Property.5
The Court amended its April 27, 2021 judgment to allow Seward
1
Dockets 124, 125; see also Docket 110-1 at 16.
2
Docket 125.
3
Docket 186 at 11, ¶ 9.
4
Docket 186 at 2, ¶ 4.
5
Docket 186 at 11, ¶ 7.
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Property to recover the $52,000 judgment from Mr. Tomingas, jointly and severally
with the other two Defendants.6 Although the Court found that Seward Property
could seek to enforce against Mr. Tomingas the provision of the earlier judgment
ordering the removal of the vessel from its property, the Court did not amend that
provision of the judgment.7
On August 1, 2022, Seward Property filed the instant motions, requesting:
(1) an award of $115,463 in attorney’s fees, $3,996.43 in costs, $8,152.60 in
prejudgment interest, postjudgment interest at the rate set by 28 U.S.C. § 1961,
and $17,700 in additional storage fees for the period from January 2021 through
August 2022; (2) a correction or amendment to the July 18, 2022 amended
judgment to include Mr. Tomingas as jointly and severally responsible for the
requirement to remove the R/V Bering Explorer from Seward Property’s property;
(3) an order holding all Defendants in contempt for failing to remove the vessel
from Seward Property’s property by July 21, 2021; and (4) as a sanction for
Defendants’ alleged contempt, conversion of Defendants’ duty to remove the
vessel into an additional award of $658,507.65 to reflect Seward Property’s
estimated cost of removing the vessel, as well as associated prejudgment interest
6
Docket 187.
7
Docket 186 at 11-12, ¶ 9; Docket 187.
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and attorney’s fees.8 The Court interprets Mr. Tomingas’ responsive filing as
expressing his opposition to all of these requests, although his filing focuses
primarily on the language of the Court’s July 18, 2022 amended judgment and
attempts to dispute facts the Court found through trial and in its prior decisions.9
DISCUSSION
Seward Property seeks attorney’s fees pursuant to Fed. R. Civ. P. 54(d)(2),
Local Civil Rule 54.2, and the parties’ Vessel Storage Agreement; costs pursuant
to Fed. R. Civ. P. 54(d) and Local Civil Rule 54.1; prejudgment interest pursuant to
Local Civil Rule 58.1(c) and the parties’ Vessel Storage Agreement; postjudgment
interest pursuant to 28 U.S.C. § 1961; and additional storage fees pursuant to the
parties’ Vessel Storage Agreement.10
Seward Property seeks a corrected or
amended judgment pursuant to Fed. R. Civ. P. 60(a) or 59(e).11 Lastly, Seward
Property seeks a contempt holding and conversion of the Court’s order of specific
performance into monetary damages, citing Fed. R. Civ. P. 70.12
addresses each of these requests in turn.
8
Dockets 188-190.
9
See generally Docket 191.
10
Docket 188.
11
Docket 189.
12
Docket 190.
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The Court
I.
Motion for Attorney’s Fees, Costs, Interest, and Additional Storage
Fees
A. Attorney’s Fees
Acknowledging the general presumption in federal maritime law that parties
are not entitled to attorney’s fees, Seward Property asserts that the parties
negotiated for the award of attorney’s fees through their Vessel Storage
Agreement.13 The Court agrees with Seward Property that the parties’ contract
permits it to recover its reasonable attorney’s fees.14
The parties executed a valid contract through the Vessel Storage
Agreement, the existence and enforceability of which the Court has already
recognized.15 The Vessel Storage Agreement clearly provides that attorney’s fees
and other legal costs are available to Seward Property. Section 7.1 of the contract
requires Arctic Wolf Marine to “indemnify, defend and hold harmless Seward
Property from and against all Losses resulting from: (a) Owner's breach of any
Docket 188 at 4 (noting the general presumption and attorney’s fees provision in the parties’
Vessel Storage Agreement); Flores v. Am. Seafoods Co., 335 F.3d 904, 910 (9th Cir. 2003)
(“Federal maritime law makes no provision for attorneys’ fees.”).
13
See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257 (1975) (citations
omitted) (“Other recent cases have also reaffirmed the general rule that, absent statute or
enforceable contract, litigants pay their own attorneys’ fees.”), superseded by statute, Civil
Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641; see also M/V Am. Queen v. San
Diego Marine Constr. Corp., 708 F.2d 1483, 1492-93 (9th Cir. 1983) (recognizing that an award
of attorney’s fees is permissible in a maritime case involving a contract containing an express
provision for such an award).
14
Docket 171-2 (Vessel Storage Agreement); Docket 107 at 9-10 (Order Re Motion for
Summary Judgment and Motion to Dismiss).
15
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covenant of warranty in this Agreement . . .”16 Section 1.5 defines “Losses” as “all
losses, costs, claims, demands, damages or liabilities of any kind, including
without limitation attorneys' fees and associated legal expenses, whether
incurred before, during or after any trial or appeal and whether or not taxable as
costs.”17 Based on this language, the Court concludes that the parties’ agreement
allows for the recovery of attorney’s fees since: (1) Defendants breached the
contract by failing to pay for the storage services, (which the Court has already
determined); and (2) in attempting to recover from that breach, Seward Property
suffered a “Loss” in the form of incurring attorney's fees and other legal expenses.
In evaluating a litigant’s fee request, a district court may determine whether
a proposed award is reasonable, even where the authorizing contract does not
provide expressly for “reasonable” attorney’s fees.18 Careful scrutiny is warranted
in this case given the large amount of attorney’s fees requested, which is more
than twice the $52,000 judgment awarded to Seward Property.19 “The most useful
16
Docket 171-2 at 6, § 7.1.
17
Docket 171-2 at 2, § 1.5 (emphasis added).
See United States v. Mountain States Const. Co., 588 F.2d 259, 263 (9th Cir. 1978) (citing 11
Samuel Williston, A Treatise on the Law of Contracts § 1418 at 656-59 (3d ed. 1968) (upholding
a district court’s decision not to enforce a contractual provision allowing attorney’s fees); see
also Cable Marine, Inc. v. M/V Trust Me II, 632 F.2d 1344, 1345 (5th Cir. 1980) (citations
omitted) (“[A] court in its sound discretion may decline to award attorney's fees authorized by a
contractual provision when it believes that such an award would be inequitable and
unreasonable.”).
18
See Vargas v. Howell, 949 F.3d 1188, 1196 (9th Cir. 2020) (noting that the relationship
between the attorney’s fees sought and the amount recovered in a case “is a legitimate
19
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starting point for determining the amount of a reasonable fee is the number of
hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.”20 In calculating this “lodestar” amount and determining the need for any
adjustments thereto, Ninth Circuit district courts consider the factors articulated in
Kerr v. Screen Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).21 A court may
begin this inquiry by looking to the hours claimed by the prevailing party’s attorney,
but it may reduce those hours if documentation is inadequate; the case was
overstaffed and hours are duplicated; or the hours expended are excessive or
otherwise unnecessary.22 Courts need not embark on a line-by-line evaluation of
a party’s legal invoices; instead, they have authority to make an across-the-board
consideration in evaluating the reasonableness of the work performed . . .”).
20
Hensley v. Eckerhart, 461 U.S. 433 (1983).
Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (“After making [the lodestar]
computation, the district court then assesses whether it is necessary to adjust the presumptively
reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the
initial lodestar calculation.”), amended on denial of reh’g, 108 F.3d 981 (9th Cir. 1997). The Kerr
factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other
employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether
the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8)
the amount involved and the results obtained, (9) the experience, reputation, and ability of the
attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional
relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70 (citing
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-20 (5th Cir. 1974), abrogated by
Blanchard v. Bergeron, 489 U.S. 87 (1989)).
21
Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), amended by 808 F.2d
1373 (9th Cir. 1987).
22
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percentage cut in the hours claimed to “trim[] the fat.”23 In doing so, a district court
must provide a “concise but clear explanation” of its reasons for the fee award.”24
Turning to Seward Property’s requested award, as an initial matter the Court
notes that Seward Property’s counsel failed to comply fully with Local Civil Rule
54.2. This rule requires, among other things, a declaration or affidavit that includes
“the total number of hours worked and billing rate for each lawyer and
paraprofessional.”25 Although Seward Property provided itemized billing records,
the records and its counsel’s declaration fail to include the total number of hours
billed.26 The records also fail to identify which timekeeper is associated with each
time entry, a common practice many law firms follow to ensure they convey clearly
the time spent and associated hourly rates on matters involving multiple
timekeepers.27 These omissions render calculation of the lodestar more difficult,
but the Court nonetheless will use Seward Property’s requested amount as a
starting point from which to evaluate the reasonableness of its request.28
23
Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992) (citations omitted).
Hensley, 461 U.S. at 437; accord Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir.
2013) (citation omitted); Gates, 987 F.2d at 1402.
24
25
L. Civ. R. 54.2(c)(1), (2).
See generally Docket 188-3. Although some invoices display the “Total Billable Hours” billed
during a given time period, many of the invoices do not contain this figure, and counsel for
Seward Property failed in its declaration to identify the total number of hours billed throughout
the entire representation. See, e.g., Docket 188-3 at 7.
26
27
See generally Docket 188-3.
28
See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1111 (9th Cir. 2014) (citations and
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From there, the Court looks to the prevailing hourly rate for maritime work
performed by Anchorage-based attorneys of comparable skill, experience, and
reputation.29 Seward Property’s law firm charged between $100 and $350 per hour
in this case.30 Despite submitting its own counsel’s declaration asserting that these
hourly rates are reasonable, Seward Property generally has failed to meet its
burden of producing satisfactory evidence of the prevailing market rate for a
maritime lawyer in the District of Alaska.31 An affidavit submitted only by the
attorney representing the party seeking fees fails to “conclusively establish the
prevailing market rate.”32 In the Court’s experience, however, these hourly rates
are within the range sought and awarded in other Alaska cases decided over the
last decade. Still, the higher end of the hourly rates applied ($350) may push the
internal quotations omitted) (“By and large, the [district] court should defer to the winning
lawyer's professional judgment as to how much time was required to spend on the case.”).
See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (ruling that a district
court erred by failing to identify the prevailing hourly rate in the relevant community for similar
services by lawyers of reasonably comparable skill, experience, and reputation).
29
30
See generally Docket 188-3.
See Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) (“[T]he burden is on the fee applicant to
produce satisfactory evidence—in addition to the attorney’s own affidavits—that the
requested rates are in line with those prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.”) (emphasis added); Hamby v.
Walker, No. 3:14-cv-00089-TMB, 2015 WL 1712634, at *4-7 (D. Alaska Apr. 15, 2015) (citing
Camacho, 523 F.3d at 980) (applying Blum to find that a lower rate than that requested by a
party was reasonable).
31
32
Camacho, 523 F.3d at 980.
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limits of what is reasonable for an attorney with experience comparable to that of
Seward Property’s lead counsel, Mr. Hurst.33
Using the relevant Kerr factors as a guide, the Court must consider whether
Seward Property’s counsel billed a reasonable number of hours in this case and,
if not, whether a reduction is warranted for hours that are “excessive, redundant,
or otherwise unnecessary.”34 Here, the number of hours spent working on the
matter appears excessive. The corporation never appeared; Mr. Schultz initially
appeared at the outset of the case but did not oppose Seward Property’s summary
judgment motion. This case involved a relatively straightforward set of facts. The
allegations centered on Defendants’ readily ascertainable failure to pay for the
storage of a vessel.35 Similarly, the legal issues were not complex as the commonlaw claims on which Seward Property prevailed should not have required extensive
research or creative lawyering. Granted, the case did involve a two-day bench trial
(albeit on a straightforward veil-piercing issue with facts in Seward Property’s
See Blakeslee v. Shaw Env't & Infrastructure, Inc., No. 3:09-cv-00214-SLG, 2013 WL
11309603, at *2 (D. Alaska Oct. 28, 2013) (finding that hourly rates between $200 to $350 were
reasonable for Anchorage-based attorneys); May v. F/V LORENA MARIE, Off. No. 939683, No.
3:09-cv-00114-SLG, 2012 WL 395286, at *3 (D. Alaska Feb. 7, 2012) (finding that an hourly rate
of $250 for an experienced maritime attorney based in Anchorage was reasonable). That Mr.
Hurst reduced his own rate to $250 per hour beginning in August 2019 lends credence to the
Court’s view that the higher end of the requested rates may be too high. Docket 188 at 6.
33
McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2008) (internal quotations and
citation omitted).
34
35
See Docket 107 at 2-8 (Order Re Motion for Summary Judgment and Motion to Dismiss).
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favor) and the challenges presented by a self-represented litigant.36 And Seward
Property’s counsel had to spend time discovering information about a relatively
unknown corporation and seemingly difficult-to-parse relationships between the
various parties associated therewith.37 But overall, the Court finds that Seward
Property’s counsel did not represent Seward Property as efficiently and effectively
as would be expected of an attorney billing $250 to $350 per hour.38
By way of example, counsel for Seward Property spent numerous hours in
late 2018 and early 2019 drafting a motion to dismiss and associated motions to
strike, despite having apparently concluded that a motion for summary judgment
should be filed instead.39 In denying all these motions, Judge Holland stated:
The court does not understand why counsel for plaintiff would devote
his time and his client’s money to filing a seven-page motion to strike
which is larded up with twenty-four pages of copies of records of no
particular relevance to Schultz’s untimely response to a motion that
had already been decided. Plaintiff’s reply to an unopposed motion is
equally wasteful.40
36
Docket 107 at 7.
See, e.g., Dockets 159-4, 159-5, 159-6, 159-7 (trial exhibits containing corporate filings of and
information related to Arctic Wolf Marine); Docket 160-7 (email correspondence between the
parties).
37
Kerr, 526 F.2d at 70; see also Chalmers, 796 F.2d at 1214 (holding that counsel’s time was
excessive in light of his familiarity with the issues, experience as a practitioner, and the nature of
the case’s legal issues).
38
See Docket 188-3 at 16. (time accounting entry in November 2018 stating, “Conclusion: its
[sic] likely that a 12(c) motion would be successful [sic] and instead think we should file a
summary judgment motion”).
39
40
Docket 49 at 9.
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As another example, it appears from Seward Property’s legal invoices that
its counsel spent over 30 hours researching potential causes of action and drafting
and later amending a complaint in a case involving a simple breach of contract and
a piercing of the corporate veil.41 This amount of time, especially when billed at
$350 per hour, borders on excessive for a straightforward lawsuit.
In light of the foregoing and in consideration of the relevant Kerr factors, the
Court finds that an “across-the-board percentage cut . . . in the final lodestar figure”
is warranted to reach a reasonable award of attorney’s fees.42 This downward
adjustment is warranted so as to award fees only for the time and labor the Court
believes this matter should have taken, considering the lack of novelty in the legal
questions involved, the skill necessary for counsel for Seward Property to have
succeeded in bringing this case, the preclusion of other employment opportunities
counsel for Seward Property may have faced by accepting this case, the fact that
the corporation was defaulted sua sponte by the Court and Mr. Schultz stopped
contesting the action in 2019, the apparent non-existence of pressing time
constraints, and the lack of any indicia of “undesirability” associated with this
41
Docket 188-3 at 1-8.
42
Gates, 987 F.2d at 1399.
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case.43 Accordingly, the Court will apply a 50-percent reduction in the requested
fees.44
B. Costs
Seward Property’s request for costs falls within the Court’s discretion, but
the general rule is to grant costs to the prevailing party.45
Seward Property
submitted with its filing the Bill of Cost Form AO 133 listing its expenses pursuant
to Local Civil Rule 54.1(b).46 The Court finds that Seward Property is entitled to
recover its costs, and this issue is referred to the Clerk of Court. Seward Property
shall provide the Clerk of Court with its invoices supporting the costs incurred. In
particular, some of the costs incurred for postage appear excessive.47
C. Prejudgment Interest
The Ninth Circuit has observed that, “in admiralty cases, prejudgment
interest must be granted unless peculiar circumstances justify its denial.”48 The
43
Kerr, 526 F.2d at 70.
See, e.g., Giovannoni v. Bidna & Keys, 255 F. App’x 124, 125-26 (9th Cir. 2007) (upholding an
across-the-board 50-percent reduction in the requested fee amount); Robins v. Matson
Terminals, Inc., 283 F. App’x 535 (9th Cir. 2008) (same).
44
See Fed. R. Civ. P. 54(d)(1) (“Unless a federal statute, these rules, or a court order provides
otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.”);
Subscription Television, Inc. v. S. Cal. Theatre Owners Ass’n, 576 F.2d 230, 234 (9th Cir. 1978)
(noting the general rule of awarding costs to prevailing parties).
45
46
Docket 188-2.
47
See, e.g., Docket 188-3 at 11, 21.
Haney v. Blake, 794 F. App’x 582, 584 (9th Cir. 2019) (citing Dillingham Shipyard v.
Associated Insulation Co., 649 F.2d 1322, 1328 (9th Cir. 1981)); W. Pac. Fisheries, Inc. v. SS
48
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Court finds that no peculiar circumstances exist here, and so an award of
prejudgment interest is proper.49 The law accords the Court some discretion in
determining the proper prejudgment interest rate.50 But the Ninth Circuit has
expressed a “strong policy” in favor of applying the rate set forth in 28 U.S.C. §
1961(a), the weekly average one-year constant maturity Treasury yield, for
prejudgment interest.51 In many cases, courts apply the Treasury bill rate because
it tends to reasonably compensate prevailing parties rather than penalize parties
that do not prevail.52
Seward Property requests that the Court use as the prejudgment interest
rate the 10.5% per annum interest rate provided in the Vessel Storage Agreement
President Grant, 730 F.2d 1280, 1289 (9th Cir. 1984) (citations omitted) (“It is well-established
that compensatory damages in maritime cases normally include pre-judgment interest.”).
See Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 797-98 (9th Cir. 1980) (citations
omitted) (providing examples of “peculiar circumstances,” such as unwarranted delay by
counsel, less than actual loss and no proof of deprivation of use, a negotiated stipulated
damages provision that excludes prejudgment interest, claims or defenses asserted in bad faith,
and uncertainty regarding claims or damages).
49
50
W. Pac. Fisheries, 730 F.2d at 1288-89.
Blanton v. Anzalone, 813 F.2d 1574, 1576 (9th Cir. 1987) (remanding with an instruction to
use 28 U.S.C. § 1961 to set the prejudgment interest rate); see also Price v. Stevedoring Servs.,
697 F.3d 820, 836 (9th Cir. 2012) (“[O]ur precedents support the reasonableness of [the § 1961]
rate.”); Columbia Brick Works, Inc. v. Royal Ins. Co., 768 F.2d 1066, 1071 (9th Cir. 1985) (citing
W. Pac. Fisheries, 730 F.2d at 1289) (“We have determined that the measure of interest rates
prescribed for postjudgment interest in 28 U.S.C. § 1961 (a) is also appropriate for fixing the
rate for prejudgment interest unless the equities of a particular case demand a different rate.”).
51
See Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 988 (9th Cir. 2001) (citing W. Pac.,
Fisheries, 730 F.2d at 1288) (“Prejudgment interest is an element of compensation, not a
penalty.”).
52
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for late payments, contending that “the Parties clearly bargained for the
appropriate interest rate in the event of past due payments.”53 A district court may
find, “on substantial evidence, that the equities of [a] particular case require a
different rate” than the Treasury bill rate.54 A contractual rate applicable to invoices
may offer such evidence, but a court is not constrained to applying a contractual
rate.55
Seward Property points to no authority that would mandate application of
the contractual rate in this instance. Additionally, the Court finds that the large
difference between the contractual rate and the Treasury bill rate would risk
transforming a compensatory award into a punishment.56 There is no indication
that Defendants engaged in bad faith or that any other special circumstances exist
that warrant deviating from the prejudgment interest rate courts typically apply.
53
Docket 188 at 9.
Blankenship v. Liberty Life Assurance Co., 486 F.3d 620, 628 (9th Cir. 2007) (citations and
quotations omitted).
54
Compare Offshore Marine Contractors, Inc. v. Palm Energy Offshore, L.L.C., 779 F.3d 345,
351 (5th Cir. 2015) (ruling that a district court did not abuse its discretion in applying the interest
rate specified in the parties' invoices as the prejudgment interest rate), with TMF Tr. Ltd. v. M/T
Megacore Philomena, No. 2:17-cv-09010-AGR, 2018 WL 3830612 (C.D. Cal. July 11, 2018)
(applying the interest rate specified at 28 U.S.C. § 1961(a) despite the existence of invoices and
a maritime lien).
55
See W. Pac. Fisheries, 730 F.2d at 1288 (citations omitted) (warning that a district court’s
“discretion must be exercised with a view to the fact that pre-judgment interest is an element of
compensation, not a penalty.”).
56
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Accordingly, the Court will apply the Treasury bill rate as the prejudgment interest
rate.
In light of the above, Seward Property is awarded prejudgment interest
on the $52,000 judgment previously awarded, in the amount of $1,170.42,
calculated for the 545 days from January 19, 2021 to the date of the amended
judgment, July 18, 2022, using the 2021 year-end Treasury bill rate of 0.37% for
the interest accruing in 2021 and the Treasury bill rate from the calendar week
before July 18, 2022 of 3.11% for the interest accruing in 2022.57 This approach
is consistent with that used by other courts in this Circuit for calculating
prejudgment interest accruing over a multi-year period.58
D. Postjudgment Interest
Congress enacted 28 U.S.C. § 1961 to require the award of postjudgment
interest in federal court litigation.59 As for the interest rate, “[n]ormally, the interest
rate prescribed for post-judgment interest in 28 U.S.C. § 1961 is applied unless
See Docket 188 at 9 (requesting prejudgment interest for the 545 days between January 19,
2021 and July 18, 2022).
57
See, e.g., Erler v. Erler, No. 12-cv-02793 CRB (NC), 2018 WL 4773414, at *3 (N.D. Cal. Apr.
11, 2018), adopted, No. 12-CV-02793-CRB, 2018 WL 3421911 (N.D. Cal. July 16, 2018).
58
28 U.S.C. § 1961(a) (“Interest shall be allowed on any money judgment in a civil case
recovered in a district court.”); see also City of Milwaukee v. Cement Div., Nat’l Gypsum Co.,
515 U.S. 189, 194 (1995) (recognizing same); Air Separation v. Underwriters at Lloyd’s of
London, 45 F.3d 288, 290 (9th Cir. 1994) (citing 28 U.S.C. § 1961; Perkins v. Standard Oil Co.,
487 F.2d 672, 674 (9th Cir. 1973)) (“. . . [P]ostjudgment interest on a district court judgment is
mandatory.”).
59
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the equities of the case demand a different rate.”60 The Court sees no reason to
depart from the statutory rate in this case and grants Seward Property’s request
for postjudgment interest at the Treasury bill rate.
E. Additional Storage Fees
Seward Property requests additional storage fees to account for the R/V
Bering Explorer’s remaining on its property notwithstanding the Court ordering its
removal by July 21, 2021.61 Seward Property requests these additional fees from
January 19, 2021, the date of its motion for entry of final judgment seeking to
recover the then-past-due storage fees, through the filing of the instant motion on
August 1, 2022.62 Mr. Tomingas does not dispute that the vessel has remained on
Seward Property’s property. Instead, he contends that “Plaintiff continues to block
access to the vessel plus created a huge restoration cost by stripping and
damaging the vessel during the seven years of litigation . . .”63
Mr. Tomingas has repeatedly made clear his view that the vessel is still
salvageable. But after considering the evidence presented at the bench trial, this
Prosser v. F/V CRYSTAL VIKING, No. C89-850Z, 1993 WL 668292, at *1 (W.D. Wash. May
13, 1993) (citing W. Pac. Fisheries, 730 F.2d at 1280).
60
61
Docket 188 at 10.
Docket 188; see also Docket 110 (Motion for Entry of Partial Final Judgment Under Fed. R.
Civ. P. 54(b)).
62
63
Docket 191 at 3.
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Court concluded otherwise.64 Given this finding, the Vessel Storage Agreement
makes clear that Seward Property may demolish and remove the vessel from its
property. Specifically, the agreement provides that in the event of default by the
vessel owner, Seward Property has the right to suspend the vessel owner’s access
to the storage yard; it has the right to “remove all personal property,” including the
vessel, from its storage yard; and it has the right to recover the damages it sustains
by reason of the default, including “all reasonable costs incurred by Seward
Property in removing personal property” from its storage yard.65
The Court finds that Seward Property is entitled to the additional storage
fees from January 2021 through August 2022. But the vessel has been at Seward
Property’s property since October 2015, and payment of the storage fees has been
in arrears since that time despite some modest payments made in 2016 and
2017.66 Given the long-term default, Seward Property may recover its storage fees
through August 2022 but should now expeditiously exercise its right to demolish
the vessel and seek recovery of its reasonable costs to do so from Defendants. 67
64
Docket 186 at 8, ¶ 24.
65
Docket 1-1 at 8, ¶¶ 9.2, 9.3.
66
Docket 110-1 at 16.
See Docket 1-1 at 8, ¶¶ 9.1, 9.2, 9.3 (“Upon the termination or suspension of Owner’s right to
use Seward Property’s Storage Yard or its facilities as provided in this Article 9, Seward
Property may, at its option, remove all personal property and all work in progress of Owner from
Seward Property’s Storage Yard or its facilities . . .”).
67
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II.
Motion to Correct or Amend Judgment
Seward Property requests that the Court correct or amend its July 18,
2022 judgment pursuant to Fed. R. Civ. P. 60(a) or 59(e) to specify that Mr.
Tomingas (along with the other Defendants) must cause the removal of the R/V
Bering Explorer and associated equipment from its property.68 Seward Property
suggests that the Court’s decision not to revise that portion of its judgment was a
mistake, oversight, or clerical error because the Court ruled that Seward Property
“may seek to enforce [the removal] provision of the judgment against Henry
Tomingas as well.”69
The Court’s decision not to amend the relevant portion of the judgment
was not due to a mistake, oversight, or clerical error. The Court intentionally let
that portion of its amended order stand as originally written because the date by
which Defendants were ordered to remove the vessel—July 21, 2021—had long
passed by the date of the Court’s amended order (July 18, 2022). It would have
been futile to order Mr. Tomingas to perform an action by a date that had already
passed. Additionally, the Court finds that none of the grounds that generally
warrant relief pursuant to Fed. R. Civ. P. 59(e) applies.70 Similarly, because there
68
Docket 189 at 1.
69
Docket 189 at 3 (quoting Docket 186 at 11-12, ¶ 9).
See Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v.
Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam) (identifying four
grounds for relief pursuant to Rule 59(e): (1) to correct manifest errors of law or fact upon which
70
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was no clerical error or mistake, relief pursuant to Fed. R. Civ. P. 60(a) is
unwarranted.71
III.
Motion for Contempt and Sanctions
A. Contempt
A court may hold a disobedient party in contempt.72 District courts have
the inherent power to do so, provided a party disobeyed a “specific and definite
court order by failure to take all reasonable steps within the party’s power to
comply.”73 The party requesting to hold another in contempt must prove by “clear
and convincing evidence” that contempt is warranted.74
Mr. Tomingas is not in contempt as the order requiring the vessel’s
removal by July 2021 did not apply to him. Arctic Wolf Marine was involuntarily
dissolved in 2019 and hence could not have complied with the 2021 removal
the judgment rests; (2) to present newly discovered or previously unavailable evidence; (3) to
prevent manifest injustice; or (4) to reflect an intervening change in controlling law.).
See Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294, 1299 (9th Cir. 2014) (quoting Blanton v.
Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987)) (noting that a correction pursuant to Rule
60(a) is warranted when a court makes a “blunder[] in execution”).
71
Fed. R. Civ. P. 70(e); Shillitani v. United States, 384 U.S. 364, 370 (1966) (citations omitted)
(“There can be no question that courts have inherent power to enforce compliance with their
lawful orders through civil contempt.”).
72
73
In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993).
Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982) (citations
omitted).
74
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order.75 And Seward Property has failed to show by clear and convincing evidence
that Mr. Schultz was aware of the removal order and failed to take any reasonable
steps to comply with it.
B. Sanctions
Sanctions are unwarranted as Seward Property has not demonstrated
that any Defendant is in contempt. And given the fact that Defendants have been
unable to effectuate the vessel’s removal, for whatever reason, the Court is
disinclined to again order its removal by Defendants. And, as this Court previously
found, the vessel is not salvageable—its demolition is the only viable option to
remove it from Seward Property’s property.76 Therefore, as provided for in the
Vessel Storage Agreement, Seward Property may demolish and remove the vessel
and seek to recover from Defendants the reasonable costs it incurred to do so.77
The Court notes that at the bench trial, Seward Property presented evidence that
the cost for the vessel’s demolition and removal would be $465,271.40. This
amount seems quite high, even if some residual petroleum-based contamination
exists on the property. The Court is confident that if Seward Property undertakes
the vessel’s demolition and removal, it could complete this task for considerably
75
Docket 186 at 8, ¶ 23.
76
See Docket 186 at 8, ¶ 24.
77
Docket 1-1 at 8, ¶¶ 9.1, 9.2, 9.3.
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less expense, then seek reimbursement from Defendants for the amount it actually
paid.
The Court will not award Seward Property damages for the vessel’s
demolition and removal before any actual costs are incurred.78
Accordingly, Seward Property may commence its own demolition and
removal of the vessel and associated equipment and submit a new request for the
recovery of its reasonable costs from Defendants.
CONCLUSION
For the reasons described above, and as set forth herein, Seward Property’s
Motion for Reasonable Attorney Fees, Costs, and Prejudgment Interest at Docket
188 is GRANTED in part and DENIED in part. Seward Property’s Motion to Correct
or Amend Judgment at Docket 189 is DENIED.
Seward Property’s Motion
Pursuant to Fed. R. Civ. P. 70 for Holding Defendants in Contempt for Failure to
Perform a Specific Act is DENIED.
IT IS HEREBY ORDERED that Seward Property shall recover from
Defendants Hendry Tomingas, Arctic Wolf Marine, and Del Schultz, jointly and
severally, the following amounts: (1) $57,731.50 in attorney’s fees; (2) prejudgment
interest on the previously entered $52,000 damages award, in the amount of
$1,170.42 and postjudgment interest at the interest rate set by 28 U.S.C. § 1961;
Cf. ASARCO LLC v. Atl. Richfield Co., 975 F.3d 859, 866 (9th Cir. 2020) (declining to award
response costs not yet incurred in the clean-up of contamination pursuant to federal
environmental law).
78
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and (3) $17,700 in additional vessel storage and blocking fees.79
Costs are
referred to the Clerk of Court for determination. The Clerk of Court shall enter an
amended judgment accordingly.
DATED this 5th day of December, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
No additional storage or blocking fees will be awarded after August 2022 as Seward Property
should have reasonably sought to demolish and remove the vessel and equipment long before
August 2022.
79
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