Keefe Kaplan Maritime, Inc v. the vessel "CYGNET"
Filing
35
ORDER by Judge Kandis A. Westmore granting Plaintiff's 22 Motion for Default Judgment. (kawlc1, COURT STAFF) (Filed on 1/24/2018)
< the possibility of a
dispute concerning material facts[,](6) whether the default was due
to excusable neglect, and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring a decision on the merits.
21
Eitel v. McCool, 782 F. 2d 1470, 1471-72 (9th Cir. 1986) (citation omitted).
18
19
22
Upon entry of default, all factual allegations within the complaint are accepted as true,
23
except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826
24
F.2d 915, 917-18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief “must
25
not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P.
26
54(c).
27
///
28
///
3
III.
1
2
A.
DISCUSSION
Magistrate Judge Jurisdiction to Enter Default Judgment
As an initial matter, the Court must address whether the undersigned magistrate judge may
3
4
enter judgment in light of the fact that Mr. Moore has not appeared nor consented to magistrate
5
jurisdiction pursuant to 28 U.S.C. § 636(c). Section 636(c) confers magistrate judges the authority
6
to enter judgment in a civil action “upon consent of the parties.” Generally, the consent of all of
7
the parties, including unserved defendants, is required for a valid judgment to be entered. Williams
8
v. King, 875 F.3d 500, 504 (9th Cir. 2017).
Here, however, the action is in rem against the Vessel. In in rem forfeiture proceedings, the
9
Ninth Circuit has held that a putative claimant’s failure to comply with the applicable filing
11
United States District Court
Northern District of California
10
requirements precludes standing as a party to the action, such that the property owner’s consent to
12
magistrate judge jurisdiction is not a prerequisite to the entry of default judgment against his
13
interest in the subject property. United States v. Real Property, 135 F.3d 1312, 1316-17 (9th Cir.
14
1998). In Williams, the Ninth Circuit affirmed this narrow exception, such that the undersigned is
15
vested with jurisdiction to enter judgment against the Vessel even absent the consent of the
16
property owner. See 875 F.3d at 504.
Accordingly, since the undersigned has obtained consent from the only party to the
17
18
19
action—Plaintiff— the Court may enter default judgment.
B.
Jurisdiction and Service of Process
20
In considering whether to enter default judgment, a district court must first determine
21
whether it has jurisdiction over the subject matter and the parties to the case. In re Tuli, 172 F.3d
22
707, 712 (9th Cir. 1999) (“When the entry of judgment is sought against a party who has failed to
23
plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over
24
both the subject matter and the parties.”)
25
i.
Subject Matter Jurisdiction
26
This Court has jurisdiction over this action under 28 U.S.C. §1333, which vests district
27
courts with original jurisdiction over “any civil case of admiralty or maritime jurisdiction.” (28
28
U.S.C. §1333). An in rem action may be brought to enforce any maritime lien, or whenever a
4
1
statute of the United States provides for a maritime action to be brought in rem (Fed. R. Civ. P.
2
Supp. C (1)). Here, Plaintiff seeks to enforce a maritime lien under the Federal Maritime Lien Act
3
(“FMLA”), 46 U.S.C. § 31342. Accordingly, the Court has subject matter jurisdiction over this
4
action. See Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 918-23 (9th Cir. 2002)
5
(holding that the Maritime Lien Act provides a statutory basis for the exercise of a district court’s
6
admiralty jurisdiction).
7
ii.
8
9
Personal Jurisdiction
Federal courts have a three prong test to determine whether specific, personal jurisdiction
may be exercised over a nonresident defendant: (1) the defendant purposefully directed its
activities toward residents of the state or purposefully avails himself of the privileges of
11
United States District Court
Northern District of California
10
conducting activities in the forum; (2) the cause of action arises out of the defendant’s contacts
12
with the state; and (3) the exercise of jurisdiction is reasonable. Harris Rutsky & Co. Ins. Servs. v.
13
Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003).
14
a. Purposeful Availment
15
“A showing that a defendant purposefully availed himself of the privilege of doing
16
business in a forum state typically consists of evidence of the defendant's actions in the forum,
17
such as executing or performing a contract there.” Schwarzenegger v. Fred Martin Motor Co., 374
18
F.3d 797, 802 (9th Cir. 2004). Such actions are considered to be a purposeful availment of the
19
privilege of conducting activities within the State, therefore invoking the benefits and protections
20
of its laws. Id. As a “quid pro quo” for these “benefits and protections,” a defendant must
21
“submit to the burdens of litigation in that forum.” Id. Factors evaluated include: prior
22
negotiations and contemplated future consequences, the terms of the contract, and the parties'
23
actual course of dealing. Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001).
24
Owner Herbert A. Moore is located in Victoria, British Columbia, Canada. (Kaplan Decl.,
25
Ex. 1.) The Service Agreement, dated July 14, 2014, included storage and repairs to take place in
26
Richmond, California. (Kaplan Decl., Ex. 2.) In furtherance of this agreement, Moore tendered
27
partial payment and left the Vessel in a berth at KKMI. (Compl. ¶ 7.) Therefore, the course of the
28
5
1
dealings by the parties in confirms that Moore availed himself of the privilege of doing business in
2
California.
3
b. The Cause of Action Arises Out of Defendant’s Contacts with the Forum
State
4
5
This element is established if Plaintiff would not have been injured “but for” the
6
nonresident defendant’s forum-related activities. See Ballard v. Savage, 65 F.3d 1495, 1500 (9th
7
Cir. 1995). Here, the Vessel’s continued berthing is a breach of contract. Therefore, “but for”
8
Moore’s conduct, Plaintiff would not have suffered harm in the form of unpaid berthing payments,
9
plus interest. Thus, Plaintiff satisfies the second prong of specific jurisdiction.
c. Reasonableness
10
United States District Court
Northern District of California
11
The Ninth Circuit looks to seven factors to determine reasonableness: “(1) the extent of the
12
defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendant of
13
defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4)
14
the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the
15
controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective
16
relief; and (7) the existence of an alternative forum.” Panavision Int'l, L.P. v. Toeppen, 141 F.3d
17
1316, 1323 (9th Cir. 1998). A balancing test is employed, and no one factor is dispositive. Id. at
18
1323.
19
1. Purposeful Interjection
20
Distinct from purposeful availment, the Court must consider the degree to which a
21
defendant interjected itself to the privileges and forum of California. See id. The berthing of the
22
Vessel in California for repair and storage is sufficient to satisfy this prong.
23
24
2. Burden on Defendant
“The unique burdens placed upon one who must defend in a foreign system should have
25
significant weight in assessing the reasonableness of stretching the long arms of personal
26
jurisdiction over national borders.” Asahi Metal Ind. v. Superior Court, 480 U.S. 102, 114 (1987).
27
However, “modern advances in communications and transportation have significantly reduced the
28
burden of litigating in another country.” Sinatra v. National Enquirer, 854 F.2d 1191, 1199 (9th
6
1
Cir. 1988). Moore decided to berth the Vessel in Richmond, California, and signed a contract
2
agreeing to same. Nevertheless, he has chosen not to defend or engage in this action.
3
3. Extent of Conflict with the Sovereignty of the Defendant’s State
4
Conflict with the sovereignty of a defendant’s state requires “an examination of the
5
competing sovereign interests in regulating [the defendant’s] behavior.” Dole Food Co., 303 F.3d
6
at 1115. Since sovereignty concerns inevitably arise whenever a United States court exercises
7
jurisdiction over a foreign national, this factor is “by no means controlling.” Ballard, 65 F.3d at
8
1501. Otherwise, “it would always prevent suit against a foreign national in a United States
9
court.” Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1333 (9th Cir. 1984). Sovereignty concerns
weigh more heavily when the defendants have no United States-based relationships.” Core–Vent
11
United States District Court
Northern District of California
10
Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1489 (9th Cir. 1993) (citing Sinatra, 854 F.2d at 1191).
12
13
14
15
There does not appear to be a conflict between United States and Canadian law. At the
very least, this factor is neutral.
4. California’s Interest in Adjudicating the Dispute
“California maintains a strong interest in providing an effective means of redress for its
16
residents [who are] tortiously injured.” Sinatra, 854 F.2d at 1200. Plaintiff conducts business in
17
California, such that California courts possess an interest in adjudicating disputes involving
18
resident corporate entities.
19
20
5. The Most Efficient Judicial Resolution of the Controversy
Efficiency in the jurisdictional context is focused on the location of the evidence and
21
witnesses. Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 129 (9th Cir. 1995). The
22
Vessel and most of the documents are located in the Northern District. This factor, however, is
23
“no longer weighed heavily given the modern advances in communication and transportation.”
24
Panavision, 141 F.3d at 1323.
25
26
6. Importance of the Forum to the Plaintiff’s Interest in Convenient and
Effective Relief
27
Courts have previously noted that this factor is not of paramount importance. See, e.g.,
28
Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1116 (9th Cir. 2002). Notwithstanding, Plaintiff
7
1
would benefit from litigating from California, as its operations are located here and the Vessel is
2
located in the district. Thus, while given little weight, this factor weighs in favor of
3
reasonableness.
7. Existence of an Alternative Forum
4
5
The only alternative forum in this case would be British Columbia, Canada, which, given
6
that it is a foreign jurisdiction, does not present Plaintiff an equal opportunity to litigate its claim.
7
8
9
10
United States District Court
Northern District of California
11
12
13
In light of the foregoing factors, the exercise of jurisdiction over Defendant Vessel is
reasonable, and the Court may exercise personal jurisdiction over Defendant.
iii.
Venue
Venue is proper, because the Court has jurisdiction over the parties, and the Vessel is
located in the district. (Compl. ¶ 4.)
iv.
Service of Process
In its motion, Plaintiff contends that it has complied with the service requirements set forth
14
in Federal Rule of Civil Procedure Supplemental Rule C(3)(b)(i). This rule provides that, “If the
15
property that is the subject of the action is a vessel or tangible property on board a vessel, the
16
warrant and any supplemental process must be delivered to the marshal for service.” Fed. R. Civ.
17
P. Suppl. R. C(3)(b)(i). Plaintiff submits that the U.S. Marshal’s Process Receipt and Return
18
shows that the Vessel’s custodian was served when the Vessel was arrested on July 21, 2017.
19
(Dkt. Nos. 13 & 19).
20
Next, Plaintiff asserts that it complied with the notice requirements set forth in Admiralty
21
Local Rule 4-2(a) when it published notice in The Daily Journal. (Dkt. No. 14.) This rule
22
provides:
(a)
Publication. The public notice specified by Fed. R. Civ. P. Supp. C(4) shall be
published once in a newspaper named in Civil L.R. 77-4, and plaintiff’s attorney shall file
a copy of the notice as it was published with the clerk.
The notice shall contain:
(1)
The court, title, and number of the action;
(2)
The date of the arrest;
(3)
The identity of the property arrested;
(4)
The name, address, and telephone number of the attorney for plaintiff;
(5)
A statement that any person who asserts a right of possession of any
ownership interest in the property pursuant to Fed. R. Civ. P. Supp. (C)(6) must file a
23
24
25
26
27
28
8
6
verified statement of right or interest within 14 days of the execution of process or within
the period specified by court order;
(6)
A statement that any person required to file a verified statement of right or
interest must also file and serve an answer to the complaint within 21 days after filing the
statement of interest or right, and that otherwise, default may be entered and condemnation
ordered;
(7)
A statement that applications for intervention under Fed. R. Civ. P. 24 by
persons claiming maritime liens or other interests against the property shall be filed within
the time fixed by the court; and
(8)
The name, address, and telephone number of the marshal.
7
The undersigned finds that the Proof of Publication (Dkt. No. 14) conforms to Admiralty
8
Local Rule 4-2(a)’s requirements. Based upon the foregoing, the Court finds that personal service
9
upon the Vessel “Cygnet” was properly effected.
1
2
3
4
5
Pursuant to Admiralty Local Rule 6-2(b), after the entry of default, a default judgment may
11
United States District Court
Northern District of California
10
be entered pursuant to Federal Rule of Civil Procedure 55(b). The Court may enter default
12
judgment upon a showing that: (1) notice has been given as required by Admir. L.R. 6-1(a)(2) and
13
(b)(2); (2) the time to answer has expired; and (3) no one has filed a verified statement of right of
14
possession or ownership interest in the property. Admir. L.R. 6-2(b)(1)-(3).
15
Admiralty Local Rule 6-1, in turn, provides in relevant part:
16
21
(a) Notice Required. A party seeking a default judgment in an
action in rem must show that due notice of the action and arrest of
the property has been given:
…
(2)
In actions not subject to Fed. R. Civ. P. Supp. G:
(i) By publication as required in Fed. R. Civ. P. Supp. C(4);
(ii) By service upon the master or other person having
custody of the property; and
(iii) By service under Fed. R. Civ. P. 5(b) upon every other
person who has not appeared in the action and is known to have an
interest in the property (Admir. L.R. 6-1(a)(2)).
22
First, Plaintiff has properly given notice in compliance with Admiralty Local Rule 6-
17
18
19
20
23
1(a)(2)(i) by the publication of the Notice of Action and Arrest. (Dkt. No. 14.) The Notice
24
expressly stated, in relevant part:
25
26
27
28
Any person who asserts a right to possession of any ownership
interest in the foregoing vessel pursuant to Fed. R. Civ. P. Supp.
C(6) must file a verified statement of right or interest within 14 days
of the execution of process or within the period specified by court
order. Any person required to file a verified statement of right or
interest must also file and serve an answer to the complaint within
21 days after filing the statement of interest or right, and that
9
otherwise, default may be entered and condemnation ordered.
Applications for intervention under Fed. R. Civ. P. 24 by persons
claiming maritime liens or other interest against the vessel shall be
filed within the time fixed by the court.
1
2
3
Id.
Plaintiff complied with Admiralty Local Rule 6-1(a)(2)(ii) by service upon Defendant
4
5
Vessel and the Substitute Custodian by the U.S. Marshal. (Dkt. No. 19.)
Plaintiff has also given notice as required under Admiralty Local Rule 6-1(a)(2)(iii) by
6
7
service under Federal Rule of Civil Procedure 5(b) upon every other person who has not appeared
8
in the action and is known to have an interest in the property. (Dkt. No. 24.) Here, that person is
9
Herbert A. Moore. (See Kaplan Decl., Ex. 1; Decl. of Richard J. Alexander, “Alexander Decl.,”
10
Dkt. No. 24 ¶¶ 2-3.)
Further, Admiralty Local Rule 6-1(b)(2)(i) provides that notice must be given in the case
United States District Court
Northern District of California
11
12
of a vessel documented under the laws of the United States, by the plaintiff attempting to notify all
13
persons in the United States Coast Guard Certificate of Ownership. Plaintiff complied with this
14
requirement by giving the notice as required by Admiralty Local Rule 6-1(b)(2)(i) for this
15
documented vessel upon Herbert A. Moore who has a recorded interest in the vessel (in addition to
16
title), as well as by serving Moore with the summons and complaint at his last known address,
17
pursuant to Rule 5(b)(2)(C). (Alexander Decl. ¶¶ 2-3).
Lastly, Plaintiff contends that no one has filed a verified statement of right of possession or
18
19
ownership interest in the Vessel. Id.
20
Thus, Plaintiff has satisfied each of the requirements set forth in Admiralty Local Rule 6-
21
2(b) and has complied with the notice requirements of Admiralty Local Rule 6-1(a)(2). Further,
22
no interested party has filed a timely verified statement asserting an interest in the Vessel.
23
Accordingly, service was proper.
24
25
26
27
28
C.
Application to the Case at Bar
Since the Court has jurisdiction in this matter, this Court must turn to the Eitel factors to
determine whether the entering of a default judgment is appropriate in this matter.
i.
Possibility of Prejudice to Plaintiff
Under the first factor, the Court must determine whether Plaintiff will be prejudiced if the
10
1
Court denies its motion for default judgment. Eitel, 782 F.2d at 1471-72. As set forth in the
2
complaint, pursuant to the Service Agreement, Plaintiff provided necessaries to the Vessel, and
3
despite its demand for payment, Plaintiff has been unable to recover the outstanding amounts
4
owed for berthing and late fees (Compl. ¶¶ 5-11.) Thus, if the Court were to deny Plaintiff’s
5
motion, Plaintiff would be unable to recover the outstanding amounts and further delay in
6
securing a judgment would only increase the chances that Plaintiff will be unable to recover such
7
amounts. Accordingly, this factor weighs in favor of default judgment. See United States v. Mare
8
Island Sales, LLC, 2008 WL 4279406, at *2(E.D. Cal. Sept. 16, 2008).
9
10
ii.
Merits of Plaintiff’s Substantive Claim and the Sufficiency of the Complaint
The second and third Eitel factors focus on the merits of Plaintiff’s substantive claims and
United States District Court
Northern District of California
11
the sufficiency of the Complaint. Eitel, 782 F.2d at 1471-72. In order for these factors to weigh in
12
Plaintiff’s favor, Plaintiff must assert claims upon which it may recover. See PepsiCo, Inc. v. Cal.
13
Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002). As indicated above, Plaintiff asserts and
14
seeks to foreclose a maritime lien against the Vessel under 46 U.S.C. § 31342 based on unpaid
15
fees for berthing that Plaintiff provided pursuant to the Service Agreement and the subsequent late
16
charges.
21
46 U.S.C. § 31342 provides:
(a) Except as provided in subsection (b) of this section, a person providing
necessaries to a vessel on the order of the owner or a person authorized by the owner-(1)
has a maritime lien on the vessel;
(2)
may bring a civil action in rem to enforce the lien; and
(3)
is not required to allege or prove in the action that credit was given
to the vessel.
(b) This section does not apply to a public vessel. 46 U.S.C. § 31342.
22
In order to establish a maritime lien for necessaries, a supplier must show: (1) that the
17
18
19
20
23
goods or services were provided to the vessel; (2) that the goods or services were “necessaries”;
24
(3) that the charges are reasonable in amount; and (4) that they were ordered by someone with the
25
appropriate authority. Belcher Co. of Ala. v. M/V Martha Mariner, 724 F.2d 1161, 1164 (5th Cir.
26
1984); see also Int’l Seafoods of Alaska, Inc. v. Park Ventures, Inc., 829 F.2d 751, 753 (9th Cir.
27
1987); Farwest Steel Corp v. Barge Sea Span 241, 769 F.2d 620, 623 (9th Cir. 1985). Plaintiff
28
has made a sufficient showing as to each of these factors. Section 31301(4) states that
11
1
“‘necessaries’ includes repairs, supplies, towage, and the use of a dry dock or marine railway[.]”
2
46 U.S.C. § 31301(4). “The list is not exhaustive, and in fact, modern admiralty jurisprudence
3
interprets ‘necessaries’ broadly, as anything that facilitates or enables a vessel to perform its
4
mission or occupation.” Ventura Packers, 305 F.3d at 923. “The term ‘necessaries’ includes most
5
goods or services that are useful to the vessel to keep her out of danger.” Id. Here, the Court finds
6
that Plaintiff has made an adequate showing establishing the existence of a maritime lien under 46
7
USC § 31342.
8
First, Plaintiff provided berthing to the Vessel pursuant to the Service Agreement from
July 2014 through July 21, 2017 (Compl. ¶ 5; Kaplan Decl. ¶¶ 1-6.) Between July 1, 2014, and
10
July 21, 2017, the Vessel incurred berthing charges all of which were paid by the Owner except
11
United States District Court
Northern District of California
9
the balance amounting to $8,563.83.00 as of July 21, 2017, the date of arrest of the Vessel, plus
12
late fees in the amount of $108.50, which remain outstanding, for a total of $8,671.83. (Kaplan
13
Decl. ¶¶ 7-9.)
14
Second, berthing services are “necessaries” under 46 USC §31301(4). See Crescent City
15
Harbor District, 2008 WL 5211023, at *3 (finding that wharfage is considered a necessary under
16
maritime law); Canton Port Servs. v. M/V Snow Bird, 690 F. Supp. 2d 405, 408 (D. Md. 2010)
17
(finding that docking services were necessaries under the Federal Maritime Lien Act); Am. E. Dev.
18
Corp. v. Everglades Marina, Inc., 608 F.2d 123, 125 (5th Cir. 1979) (recognizing that “[s]everal
19
courts have imposed maritime liens for docking, wharfage, or storage fees . . ..”).
20
Third, the charges that Plaintiff seeks are reasonable and are of the type that can be
21
expected by a boatyard providing berthing to a vessel over an extended period of years. See
22
Crescent City Harbor Dist., 2008 WL 5211023, at *3.
23
Fourth, Moore procured the services when he executed the Service Agreement. (Kaplan
24
Decl., Ex. 1.) Thus, under 46 U.S.C. § 31341(a)(1), as the owner of the vessel, Moore is
25
statutorily presumed to have authority to procure necessaries for it. Taken together, the Court finds
26
that Plaintiff has sufficiently established the existence of a maritime lien under 46 U.S.C. § 31342.
27
28
iii.
Sum of Money at Stake
The fourth Eitel factor assesses the reasonableness of the potential award if a default
12
1
judgment is entered. In making this assessment, the Court must take into account the amount of
2
money at stake in relation to the seriousness of Defendant’s conduct. Eitel, 782 F.2d at 1471. If
3
the sum of money at issue is reasonably proportionate to the harm caused by Defendant’s actions,
4
properly documented, and contractually justified, then default judgment is warranted. Bd. of Trs.
5
of Cal. Metal Trades v. Pitchometer Propeller, 1997 WL 797922, at *2 (N.D. Cal. Dec. 15,
6
1997). A default judgment is only disfavored when a large amount of money is involved or is
7
unreasonable in light of Defendant’s actions. Truong Giang Corp. v. Twinstar Tea Corp., 2007
8
WL 1545173, at *12 (N.D. Cal. May 29, 2007). In determining if the amount at stake is
9
reasonable, the Court may consider Plaintiff’s declarations, calculations, and other documentation
10
United States District Court
Northern District of California
11
of damages. Id.
Here, Plaintiff seeks judgment against the Vessel in the amount of $8,671.83, which
12
represents the amounts owed for berthing and late fees under the Service Agreement while at
13
KKMI’s boatyard. (Kaplan Decl., ¶ 9.) Plaintiff also seeks authorization to use its “custodius
14
legis” costs (pursuant to a cost bill to be filed post-judgment). (Mot. at 6.) Thus, the sum Plaintiff
15
seeks is directly related to the Vessel’s berthing and the amounts due pursuant to the parties’
16
Service Agreement while the vessel was berthed at KKMI’s boatyard. Thus, this factor weighs in
17
favor of default judgment.
18
19
iv.
Possibility of a Material Factual Dispute
The fifth Eitel factor examines the likelihood of dispute between the parties regarding the
20
material facts surrounding the case. Eitel, 782 F.2d at 1471-72. Upon defaulting, the defendant is
21
“deemed to have admitted all well-pleaded factual allegations” in the complaint. DirecTV, Inc. v.
22
Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007) (citations omitted). Here, Plaintiff seeks to recover
23
berthing charges and late fees pursuant to the Service Agreement, as modified by plaintiff’s email
24
notice to the Vessel’s owner. (Kaplan Decl. ¶ 6.) The amounts directly correlate to those agreed
25
upon in the parties’ Service Agreement, as modified by Plaintiff, and Defendant has provided an
26
itemized breakdown of the payments that remain outstanding. (See Kaplan Decl. ¶¶ 7-9.) Thus,
27
there is little likelihood of a dispute concerning the material facts in support of Plaintiff’s
28
complaint, such that this factor weighs in favor of default judgment.
13
v.
1
Whether Default Was the Result of Excusable Neglect
2
The sixth Eitel factor examines whether any interested party’s failure to respond to
3
Plaintiff’s allegations was the result of excusable neglect. Eitel, 782 F.2d at 1471-72. As set forth
4
above, Plaintiff provided notice by publication pursuant to Admiralty Local Rule 6-1(a)(2).
5
Moore, the owner of the Vessel, is on notice of this action, as demonstrated by his phone calls to
6
Plaintiff’s counsel after receipt of the initial pleadings in this action. (Alexander Decl. ¶ 5.)
7
Nevertheless, despite ample time and opportunity, neither Moore nor any other interested person
8
filed an answer or otherwise challenged the motion for default judgment. There is nothing in the
9
record suggesting that any individual’s failure to appear and litigate this matter is based on
excusable neglect. Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D.
11
United States District Court
Northern District of California
10
Cal. 2001) (default after proper service was not excusable neglect). Thus, this factor weighs in
12
favor of granting default judgment.
vi.
13
The final Eitel factor examines whether the policy of deciding a case based on the merits
14
15
Strong Public Policy Favoring Decisions on the Merits
precludes entry of default judgment. Eitel, 782 F.2d at 1471-72.
Notwithstanding, after an examination of these facts in the aggregate, the undersigned
16
17
finds that Eitel factors one through six outweigh the Federal Rules of Civil Procedure’s preference
18
for a decision on the merits, thereby rendering the entry of default judgment proper.
19
IV.
RELIEF SOUGHT
20
After entry of default, well-pleaded factual allegations in the complaint are taken as true,
21
except as to the amount of damages. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.
22
2002). To recover damages after securing a default judgment, a plaintiff must prove the relief it
23
seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v.
24
Skelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 2005); see Pepsico, Inc., 238 F. Supp. 2d at
25
1175 (citing Televideo Sys., Inc., 826 F.2d at 917-18).
26
A.
Damages
27
Plaintiff seeks judgment against the Vessel in the amount of $8,671.83 to compensate it for
28
unpaid berthing charges and applicable late fees. (Mot. at 6; Kaplan Decl. ¶¶ 7-9.) Plaintiff further
14
1
requests that the Vessel be condemned and ordered sold by the U.S. Marshal, and that such sale be
2
conducted in accordance with general maritime law and local admiralty rules and procedures for
3
the purposes of satisfying the default judgment requested. (Mot. at 6.)
For the reasons set forth above, the Court finds that Plaintiff is entitled to default judgment
4
5
on its maritime lien in the amount of $8,671.83. Accordingly, Plaintiff’s request to foreclose the
6
lien is granted, and the Vessel shall be condemned and sold by the U.S. Marshal at public auction.
7
8
B.
Costs
Plaintiff requests an award of its custodia legis costs and that it be permitted to “credit bid”
up to its judgment amount at any subsequent U.S. Marshal-conducted auction. (Mot. at 6.) At the
10
hearing, Plaintiff explained that such costs include the daily berthing rate of $70.50 from the date
11
United States District Court
Northern District of California
9
of the Vessel’s arrest, any fees imposed by the substitute custodian, insurance charges levied by
12
the U.S. Marshal, publication costs, and court filing fees. With respect to Plaintiff’s request to use
13
its custodia legis costs, the Court finds that Plaintiff is entitled to such costs, provided Plaintiff
14
substantiates the amount claimed. (See Mot. at 6.)
15
As to Plaintiff’s request that it be allowed to credit bid, the local admiralty rules governing
16
payment of bids at public auction sales, provide that, “a plaintiff . . . foreclosing a properly
17
recorded preferred mortgage on, or other valid security interest in the vessel may bid, without
18
payment of cash, certified check or cashier’s check, up to the total amount of the secured
19
indebtedness as established by affidavit filed and served by that party on all other parties no later
20
than 14 days prior to the date of sale.” Admir. L. R. 9-2(b). Provided that Plaintiff complies with
21
the notice requirements set forth in Admiralty Local Rule 9-2, the undersigned grants Plaintiff’s
22
request for an order permitting it to credit bid up to its judgment amount be granted.
23
V.
CONCLUSION
24
For the reasons set forth above, the Court:
25
1.
GRANTS Plaintiff’s Motion for Default Judgment against the Vessel “Cygnet”
26
(U.S. Documentation No. 693436), her engines, rigging, sails, boats, tackle, apparel, and furniture
27
in the amount of $8,671.83, and custodia legis costs (pursuant to a cost bill to be filed post-
28
judgment);
15
1
2.
That Plaintiff shall recover the amount of its judgment from the foreclosure of its
2
maritime lien against the Vessel “Cygnet,” which the Court ORDERS be accomplished through a
3
public sale, to be conducted by the United States Marshal pursuant to Admiralty Local Rule 9-2,
4
and Plaintiff is permitted to credit bid up to its judgment amount at said public sale; and
5
6
7
8
3.
The Court shall retain jurisdiction of this action through the completion of the sale
of the Vessel “Cygnet,” and any related proceedings.
IT IS SO ORDERED.
Dated: January 24, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
