United States of America v. Alecio Shipping Inc. et al

Filing 101

CONSENT JUDGMENT in favor of United States of America against Fam Marine Services, Inc., Konstantinos Papageorgiou. ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 8/31/2017. (ndrS, COURT STAFF) (Filed on 8/31/2017)

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1 2 3 4 5 6 7 8 9 10 CHAD A. READLER Acting Assistant Attorney General R. MICHAEL UNDERHILL Attorney in Charge West Coast Office, Torts Branch, Civil Division U.S. Department of Justice VICKEY L. QUINN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice 450 Golden Gate Avenue, Room 7-5395 P.O. Box 36028, San Francisco, CA 94102 Telephone: (415) 436-6645 Facsimile: (415) 436-6632 E-mail: vickey.l.quinn@usdoj.gov 11 12 Attorneys for the United States of America 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA, ) ) Plaintiff, ) vs. ) ) ALECIO SHIPPING INC.; FAM ) MARINE SERVICES, INC.; SHOTON ) MARITIME, LTD; SERAFIM ) SOFIANTIS, an individual; ) KONSTANTINOS PAPAGEORGIOU, an ) individual; and UNKNOWN ) DEFENDANTS 1-10 ) ) Defendants. ) ) Case No.: 15-cv-00098-HSG IN ADMIRALTY CONSENT JUDGMENT 26 27 28 Consent Judgment 1 Case No.: 3:15-cv-00098-HSG I. 1 2 3 4 PARTIES This Consent Judgment is made and entered into by and among the following parties (hereinafter referred to collectively as “the Settling Parties” and individually as “Party”): A. Plaintiff United States of America on behalf of: the Department of Homeland 5 Security, United States Coast Guard (“USCG”), National Pollution Funds Center (“NPFC”), and 6 7 8 9 the Oil Spill Liability Trust Fund (“OSLTF”); B. Defendants FAM Marine Services, Inc., and Konstantinos Papageorgiou (“Settling Defendants”). 10 II. INTRODUCTION 11 A. On January 8, 2015, the United States filed a Verified Complaint under provisions 12 13 of, inter alia, the Oil Pollution Act (“OPA”), 33 U.S.C. §§ 2701 et seq., against defendants 14 Alecio Shipping Inc. (“Alecio”); FAM Marine Services, Inc. (“FAM”), Shoton Maritime, 15 Ltd (“Shoton”), Serafim Sofiantis (“Sofiantis”), and Konstantinos Papageorgiou 16 17 18 19 (“Papageorgiou”). B. On February 27, 2015, Defendants FAM and Papageorgiou filed an Answer (Docket No. 20) to the Verified Complaint. 20 C. On February 21, 2017, Default Judgments pursuant to Rule 55(b)(1) of the 21 22 Federal Rules of Civil Procedure were entered against Defendants Alecio and Shoton 23 (Docket No. 90). 24 D. Based on the representations of the Settling Parties, Defendant Sofiantis is 25 26 believed to be in Greece and, in any event, the United States has been unable to serve the 27 Summons and Verified Complaint upon Sofiantis. 28 Consent Judgment 2 Case No.: 3:15-cv-00098-HSG 1 E. Settling Parties United States, FAM, and Papageorgiou, by and through their 2 respective undersigned counsel, entered into a settlement agreement that has been approved by 3 all Settling Parties and the respective principals having full and final settlement authority. 4 F. The Settling Parties agree, and the Court, by entering this Consent Judgment 5 finds, that the Settling Parties’ settlement and this Consent Judgment effectuating the settlement 6 7 has been negotiated by the Settling Parties in good faith, and that it is fair and reasonable. 8 NOW THEREFORE, WITH THE UNDERSIGNED CONSENTS OF THE 9 SETTLING PARTIES, IT IS HEREBY ADJUDGED, ORDERED AND DECREED AS 10 FOLLOWS: 11 III. 12 13 14 15 1. JURISDICTION AND VENUE This Court has jurisdiction over the subject matter of this action pursuant to, inter alia, 28 U.S.C. §§ 1331 and 1345, and OPA, 33 U.S.C. § 2717(b). Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and 33 U.S.C. § 2717(b). The Court has personal jurisdiction 16 over the Settling Defendants, who do not contest the Court’s jurisdiction and do not contest the 17 18 propriety of venue in this judicial district. IV. 19 20 21 2. APPLICABILITY The obligations of this Consent Judgment apply to and are binding upon the Settling Parties, and each of them, and upon the Settling Defendants’ successors, assigns, or 22 other entities or persons otherwise bound by law. 23 V. 24 25 26 3. SETTLEMENT Judgment shall be, and the same is, entered in favor of the United States and against Settling Defendants FAM Marine Services, Inc., and Konstantinos 27 28 Papageorgiou, jointly and severally, in the principal amount of $225,000 (Two Hundred Consent Judgment 3 Case No.: 3:15-cv-00098-HSG 1 2 3 Twenty-Five Thousand Dollars, and Zero Cents), plus simple interest of 2.5 % per annum on any unpaid portion of the foregoing principal amount of $225,000, said principal amount to be paid as follows: 4 (a) 5 6 An up front initial payment of $15,000 (the “Initial Payment”) to paid to the United States within 90 days of the Court’s execution of this Consent Judgment; 7 (b) In addition to the foregoing Initial Payment, Semi-Annual Payments (2 8 payments per year) shall be made to the United States as follows: 9 (i) 11 Years 1-4 = $12,500 each payment (Total = $100,000 for Years 1- (ii) Years 5-7 = $21,479 each payment (Total = $130,495 Years for 5- (iii) 10 The Semi-Annual Payments (the Semi-Annual Payment Dates) shall 4); 12 13 14 7); 15 16 be due each year on January 15th and July 15th. The first Semi17 18 Annual Payment shall commence on the earliest Semi-Annual date 19 following 90 days after the payment of the Initial Payment of 20 $15,000; 21 22 4. No pre-payment penalties apply. 23 5. The foregoing monetary obligation of $225,000, plus accrued interest, is a 24 joint and non-severable debt and obligation of Settling Defendants FAM and 25 26 Papageorgiou to the United States. Thus, in the event of default and/or non-payment of 27 any portion of the debt by one of the Settling Defendants, the other Settling Defendant 28 shall not be relieved from paying the full sum remaining to be paid from the original Consent Judgment 4 Case No.: 3:15-cv-00098-HSG 1 2 3 amount of principal and interest, less amounts previously paid down as of the date of default or non-payment. 6. All payments shall be made in U.S. Dollars ($) and shall be made payable 4 5 to “United States Dept. of Justice” and shall be identified by reference to “U.S. v. 6 Alecio Shipping, FAM Marine, Papageorgiou, et al., DJ No. 62-1102”, and sent to the 7 following: 8 If sent by regular, certified, or registered mail: 9 10 11 12 13 14 15 16 17 18 19 20 Attn: Attorney in Charge Vickey L. Quinn, Trial Attorney West Coast Office Torts Branch, Civil Division (Admiralty) U.S. Department of Justice P.O. Box 36028 450 Golden Gate Avenue San Francisco, California 94102-3463 If sent by overnight mail, e.g., FedEx, UPS: Attn: Attorney in Charge Vickey L. Quinn, Trial Attorney West Coast Office Torts Branch, Civil Division (Admiralty) U.S. Department of Justice 7th Floor, Room 7-5395 450 Golden Gate Avenue San Francisco, California 94102-3463 7. With respect the payments set forth in Section V, sub-paragraphs (a) and 21 (b) above, the Settling Defendants shall have a 30 (thirty) day grace period on each such 22 23 24 payment. 8. In the event that the Settling Defendants, or either of them, fail to make full 25 amount of payment of the Initial Payment ($15,000) or any Semi-Annual Payment 26 27 thereafter in accordance with the schedules and grace periods set out above (any such 28 non-payment(s) to constitute a “Default”), then the full amount of the $225,000 and Consent Judgment 5 Case No.: 3:15-cv-00098-HSG 1 2 3 accrued interest awarded by this Consent Judgment shall immediately be accelerated, due, owing, and payable to the United States without further notice or demand, plus interest continuing to accrue, plus costs, plus the United States’ attorneys’ fees, less any 4 5 amounts paid up to the time of the missed payment date/Default. 9. 6 7 If the Settling Defendants fully and completely comply with all terms and final payment provisions specified in this Consent Judgment, then, notwithstanding any 8 other provision in this Consent Judgment regarding the total Consent Judgment entered in 9 10 the amount of $225,000, the United States shall, upon request, file a Satisfaction and 11 Discharge of this Consent Judgment herein as against the Settling Defendants. 12 VI. ADDITIONAL MONETARY CONDITIONS TO BE ENFORCED UPON THE 13 HAPPENING OF CERTAIN CONTINGENCIES 14 15 16 17 10. If the real estate owned at 2910 Ocean Mist Court, Seabrook, Texas, is sold over the course of the settlement period, Settling Defendant Papageorgiou shall pay the United States 50% of any net sales proceeds. Net sales proceeds are defined as gross sales proceeds less any 18 outstanding mortgages, less sales commissions, less any other sales related expenses. No 19 20 mortgages, liens, or encumbrances of any kind may be placed upon said property without prior 21 written notice to, and the written approval of, the United States. In determining whether to grant 22 approval to such a proposed mortgage, lien, or encumbrance on the said property, the United 23 States will give particular consideration to such request(s) in the event that Defendant 24 25 Papageorgiou warrants to the United States' satisfaction that the purpose of requested 26 encumbrance is to be used as security for necessary maintenance and repairs to the said property 27 and/or for loans of funds to be used to pay for necessary medical services and related health care 28 expenses for Settling Defendant Papageorgiou, his wife (Marilyn Papageorgiou), his daughter Consent Judgment 6 Case No.: 3:15-cv-00098-HSG 1 (Angela Marie Papageorgiou), or his mother-in-law (Mary Ann Hendron). By signing this 2 agreement, Settling Defendant Papageorgiou expressly warrants that there are currently no liens, 3 mortgages, or other encumbrances on said property. 4 11. Except as provided in paragraph 10 above, if either or both Settling Defendants 5 place liens, encumbrances, or mortgages on the aforesaid real property without the express 6 7 8 9 10 written consent of the United States, such action(s) shall be a condition of Default and entitle the United States to take the actions described above in Section V in the event of Defaults. 12. The foregoing payment in paragraph 10 above shall be in addition to any and all sums set forth in Section V above, i.e., they shall be in addition to the foregoing $225,000 11 principal obligation set forth in Section V. 12 VII. 13 14 15 13. ADDITIONAL CONDITIONS If real estate owned at 6601 Springer St., Houston, Texas, is sold over the course of the settlement period, Settling Defendant FAM agrees to pay the United States 50% of any net 16 sales proceeds, said proceeds to be used to pay down any remaining principal and accrued 17 18 interest then remaining due and owing on the original $225,000 obligation set forth in Section V 19 above. Net sales proceeds are defined as gross sales proceeds less any outstanding mortgages, 20 less sales commissions, less any other sales related expenses. No mortgages, liens, or 21 encumbrances of any kind may be placed upon said property without prior written notice to, 22 23 and the written approval of, the United States, approval for which will not be unreasonably 24 withheld by the United States (i.e. as examples only, said encumbrance(s) requested as 25 security for necessary maintenance and repairs to the said property and/or for loans of funds 26 to be used to pay for necessary medical services and related health care expenses for Settling 27 28 Consent Judgment 7 Case No.: 3:15-cv-00098-HSG 1 2 3 Defendant Papageorgiou, his wife Marilyn Papageorgiou, his daughter Angela Marie Papageorgiou, or his mother-in-law, Mary Ann Hendron.) 14. If Settling Defendant Papageorgiou receives any payments from Settling 4 Defendfant FAM on the shareholder loan during the settlement period, Settling Defendant 5 6 Papageorgiou agrees to pay the United States 25% of any and all such payments, said 7 proceeds to be used to pay down any remaining principal and accrued interest then remaining 8 due and owing on the original $225,000 obligation set forth in Section V above. 9 VIII. SECURITY AND DEFAULT 10 11 15. As part of the settlement and this Consent Judgment, the United States shall 12 take a first priority mortgage lien on the property at 2910 Ocean Mist Court, Seabrook, 13 Texas, said mortgage to secure the full amount of principal and interest on the obligation of 14 $225,000 set forth in Section V above. 15 16 16. Except as specifically stated in paragraph 17 below, in the event of Default on 17 any payment obligation under this settlement agreement, the United States shall have the 18 right to foreclose and sell said property and apply the proceeds of sale to any and all such 19 sums then remaining due and owing by Settling Defendants FAM and Papageorgiou. 20 21 17. If, however, a Default on any payment obligation under the settlement and this 22 Consent Judgment is occasioned by the involuntary incapacitation of Settling Defendant 23 Papageorgiou resulting in his inability to make such payments, then the right of the United 24 States to foreclose and sell said property and apply the proceeds of sale to any and all such 25 26 sums then remaining due and owing by Settling Defendants FAM and Papageorgiou as 27 provided in paragraph 16 above, shall be suspended and held in abeyance until the passing(s) 28 Consent Judgment 8 Case No.: 3:15-cv-00098-HSG 1 2 of Marilyn Papageorgiou, Mary Ann Hendron, and Defendant Papageorgiou, who otherwise shall have a life estate in the residence at 2910 Ocean Mist Court, Seabrook, Texas. 3 4 IX. ACCEPTANCE OF RESPONSIBILITY OF RESPONSIBLE PARTIES 5 UNDER OPA 6 7 8 9 18. Pursuant to the requirements of Section 1017(f)(2) of OPA, 33 U.S.C. § 2717(f)(2), the Settling Defendants acknowledge and stipulate, for purposes of giving effect to this Consent Judgment and to satisfy the requirements of § 1017(f)(2) of OPA, 33 USC § 10 2717(f)(2), that they are Responsible Parties within the meaning of OPA. 11 X. 12 13 14 15 19. NOTICES Unless otherwise specified herein, whenever modifications, submissions, or communications are required by this Consent Judgment, they shall be made in writing and addressed as follows: 16 To the United States: 17 18 19 20 21 22 23 24 Re: DOJ Number 62-1102 Attn: R. Michael Underhill (mike.underhill@usdoj.gov) Attorney in Charge Vickey Quinn (vickey.l.quinn@usdoj.gov Trial Attorney West Coast Office and Pacific Rim Office Torts Branch, Civil Division United States Department of Justice 7th Floor Federal Building, Room 7-5395 P.O. Box 36028 450 Golden Gate Avenue San Francisco, California 94102-3463 Tel: 415-436-6630 Fax: 415-436-6632 25 26 27 28 And to: Re: FPN No. A12002 National Pollution funds Center Attn: Director, National Pollution Funds Center LaCresha Johnson Consent Judgment 9 Case No.: 3:15-cv-00098-HSG 1 2 4200 Wilson Blvd., Ste. 1000 Arlington, VA 22203-1804 1-800-280-7118 3 4 To Settling Defendants FAM and Papageorgiou: 5 6 7 8 9 Joseph A. Walsh II (Joe.Walsh@Clydeco.us) Clyde & Co. 301 East Ocean Boulevard, Suite 1550 Long Beach, CA, 90802 Tel: 562-317-3300 Fax: 562-317-3399 10 20. Any Settling Party may, by written notice to other Settling Parties, change its 11 12 13 14 designated notice recipient or notice address provided above. 21. Notices submitted pursuant to this Section shall be deemed submitted upon mailing, unless otherwise provided in this Consent Judgment or by mutual agreement of the 15 Settling Parties in writing. 16 XI. EFFECTIVE DATE 17 18 19 22. The Effective Date of this Consent Judgment shall be the date of the Entry of this Consent Judgment by the Court. 20 XII. RETENTION OF JURISDICTION 21 23. The Court shall retain jurisdiction over this case until termination of this Consent 22 23 24 Judgment, for the purpose of effectuating or enforcing compliance with the terms of this Consent Judgment. 25 26 XIII. MODIFICATION 24. The terms of this Consent Judgment may be modified only by a subsequent 27 written agreement signed by all Settling Parties. Where the modification constitutes a material 28 Consent Judgment 10 Case No.: 3:15-cv-00098-HSG 1 2 change to any term of this Consent Judgment, it shall be effective only upon approval by the Court. 3 4 5 XIV. SIGNATORIES/SERVICE 6 7 25. Each undersigned representative of the Settling Defendants, together with the 8 attorneys for the United States, certifies that he or she is fully authorized to enter into the terms 9 and conditions of this Consent Judgment and to execute and legally bind the respective Settling 10 Party he or she represents to the terms of this Consent Judgment. 11 XV. INTEGRATION 12 13 26. With the exception of the limited class of documents specified in paragraph 27 14 below, this Consent Judgment constitutes the final, complete, and exclusive agreement and 15 understanding among the Settling Parties with respect to the settlement embodied in the Consent 16 Judgment, and this Consent Judgment supersedes all prior agreements and understandings, 17 18 whether oral or written, concerning the settlement embodied therein. No other document, nor 19 any representation, inducement, agreement, understanding, or promise (other than documents 20 specified in paragraph 27 below), constitutes any part of this Consent Judgment or the settlement 21 it represents, nor shall it be used in construing the terms of this Consent Judgment. 22 27. As set forth in Section VIII, paragraph 15 above, as part of the settlement and 23 24 this Consent Judgment the United States shall take a first priority mortgage lien on the 25 property at 2910 Ocean Mist Court, Seabrook, Texas, said mortgage to secure the full amount 26 of principal and interest on the obligation of $225,000 set forth in Section V above. In order to 27 give effect to the United States’ rights thereunder, the Settling Parties shall draft, exchange, 28 Consent Judgment 11 Case No.: 3:15-cv-00098-HSG 1 2 execute and file, as appropriate the necess a e, sary docume ents to give full force a effect t the e and to United States’ rights under said Section VIII, paragraph 15. S 3 4 5 XVI. FIN NAL JUDGM MENT 6 28. 7 The Court hereby determines that there is no just rea C y s ason for dela of entry o this ay of 8 Judgmen and, upon approval an Entry of this Consen Judgmen by the Co nt n nd f nt nt ourt, this Co onsent 9 Judgmen shall const nt titute a final judgment of the Court in accorda l o t, ance with Ru 54 and 58 of ules 10 the Feder Rules of Civil Proced ral dure. 11 IT IS SO ADJUDGED. T 12 13 A Dated: August 31, 2017 14 15 __________ __________ ___________ ____ UNITED ST TATES DIS STRICT JUD DGE 16 17 18 // 19 // 20 21 // 22 // 23 // 24 // 25 // 26 27 // 28 // Consent Ju udgment 12 1 Case No.: 3:15-cv-0 00098-HSG 1 // 2 // 3 4 5 // // 6 7 THE UNDERSIGNED SETTLING PARTIES enter into this Consent Judgment in 8 the matter of UNITED STATES OF AMERICA v. FAM MARINE SERVICES, INC.; 9 KONSTANTINOS PAPAGEORGIOU, et. al: 10 11 FOR THE UNITED STATES OF AMERICA: 12 13 Date: August 23, 2017. 14 15 16 CHAD A. READLER Acting Assistant Attorney General R. MICHAEL UNDERHILL Attorney in Charge West Coast Office, Torts Branch, Civil Division U.S. Department of Justice 17 /s/ Vickey L. Quinn VICKEY L. QUINN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice 18 19 20 21 Attorneys for Plaintiff United States of America 22 23 FOR FAM MARINE SERVICES, INC., AND KONSTANTINOS PAPAGEORGIOU: 24 25 Date: August 23, 2017. 26 CLYDE & CO. /s/ Joseph A. Walsh II Joseph A. Walsh II Ellen McGlynn Conte Cicala 27 28 Consent Judgment 13 Case No.: 3:15-cv-00098-HSG 1 Attorneys for Settling Defendants FAM MARINE SERVICES, INC., and KONSTANTINOS PAPAGEORGIOU 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consent Judgment 14 Case No.: 3:15-cv-00098-HSG

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