Nunez et al v. F/V Vengeance et al

Filing 7

ORDER by Judge Lucy H. Koh granting 2 Ex Parte Application (lhklc2, COURT STAFF) (Filed on 9/30/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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JOSEPH NUNEZ and EDWARD NUNEZ,

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Plaintiffs,
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v.
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F/V VENGEANCE; BENNIE FERRANTE; and )
DOES 1-100, Inclusive,
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Defendants.
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Case No.: 11-CV-04842-LHK

ORDER ISSUING WARRANT FOR THE
ARREST OF THE F/V VENGEANCE

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Joseph and Edward Nunez come to Court seeking Vengeance. On September 30, 2011,
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Plaintiffs Joseph and Edward Nunez’s (Plaintiffs) filed a verified complaint seeking an arrest
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warrant for the fishing vessel Vengence. On November 17, 2008, Plaintiffs loaned Benedict A.
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Ferrante $60,000 in exchange for a promise to repay and a mortgage executed on Ferrante’s fishing
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vessel Vengeance and its Transferrable Market Squid Light Boat Permit (TMSLBP). See Compl.
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at 2; see also Joseph Nunez Decl. ¶ 2, Ex. A (the mortgage note). The Plaintiffs further allege that
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on January 1, 2011, Ferrante defaulted on the loan, and that they foreclosed the mortgage on
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January 18, 2011. Plaintiffs delivered the Coast Guard documentation of the foreclosure to
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Ferrante on January 21, 2011. Joseph Nunez Decl. ¶¶ 5, 7. Plaintiffs allege that Ferrante is aware
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of the foreclosure because he sent a protest letter disputing it in March 2011. On September 28,
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2011, Ferrante moved Vengeance to a boat slip in Monterey Harbor, Monterey, CA with the stated
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intention of “making some repairs” and then “heading south.” See Compl. ¶¶ 2-3.
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Case No.: 11-CV-04842-LHK
ORDER ISSUING WARRANT FOR THE ARREST OF THE F/V VENGEANCE

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Under Federal Rule of Civil Procedure, Supplemental Rule for Certain Admiralty and
Maritime Claims C an action in rem may be brought to enforce any maritime lien such as a

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mortgage. See Fed. R. Civ. Proc., Suppl. R. C(1). Such a complaint must be verified, describe

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with reasonable particularity the property that is the subject of the action, and state that the

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property is within the district or will be within the district while the action is pending.1 See id.

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C(2). Before issuing an arrest warrant, the Court must review the complaint and any supporting

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papers and if the conditions for an in rem action appear to exist, the court must issue an order

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directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject

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of the action. Id. C(3)(a)(i). The Advisory Committee Note on the Amendments to Rules, 105

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United States District Court
For the Northern District of California

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F.R.D. 179, 233 (1985), contemplates “a simple order with conclusory findings” determining

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whether the plaintiff has made a prima facie showing that the action in rem is warranted.

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Plaintiffs have adequately alleged the conditions for an in rem action with regard to the

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boat, and have provided the mortgage agreement, a verified complaint, and Joseph Nunez’s sworn

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declaration that the F/V Vengeance was properly foreclosed upon. Moreover, Plaintiffs have stated

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that the F/V Vengence is currently within this district in a boat slip in Monterey Harbor. Plaintiffs

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further allege that the TMSLPB is an appurtenance of the Vengeance. The Court agrees, in accord

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with Gowen, Inc. v. F/V Quality One, 244 F.3d 64 (1st Cir. 2001).

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Thus, the Court hereby GRANTS Plaintiffs’ Ex Parte Application for an Order Issuing

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Warrant for the Arrest of the F/V Vengeance, and ISSUES A WARRANT for the ARREST of the

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F/V Vengeance, Official Number 570025.

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IT IS SO ORDERED.

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Dated: September 30, 2011

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_________________________________
LUCY H. KOH
United States District Judge

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No advance notice to the boat owner is required to issue this arrest warrant. See Polar Shipping, Ltd. v. Oriental
Shipping Corp., 680 F.2d 627, 637-38 (9th Cir. 1982).

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Case No.: 11-CV-04842-LHK
ORDER ISSUING WARRANT FOR THE ARREST OF THE F/V VENGEANCE