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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 United States District Court For the Northern District of California 10 11 12 13 14 JOSEPH NUNEZ and EDWARD NUNEZ, ) ) Plaintiffs, ) ) v. ) ) F/V VENGEANCE; BENNIE FERRANTE; and ) DOES 1-100, Inclusive, ) ) Defendants. ) ) ) ) Case No.: 11-CV-04842-LHK ORDER ISSUING WARRANT FOR THE ARREST OF THE F/V VENGEANCE 15 Joseph and Edward Nunez come to Court seeking Vengeance. On September 30, 2011, 16 Plaintiffs Joseph and Edward Nunez’s (Plaintiffs) filed a verified complaint seeking an arrest 17 warrant for the fishing vessel Vengence. On November 17, 2008, Plaintiffs loaned Benedict A. 18 Ferrante $60,000 in exchange for a promise to repay and a mortgage executed on Ferrante’s fishing 19 vessel Vengeance and its Transferrable Market Squid Light Boat Permit (TMSLBP). See Compl. 20 at 2; see also Joseph Nunez Decl. ¶ 2, Ex. A (the mortgage note). The Plaintiffs further allege that 21 on January 1, 2011, Ferrante defaulted on the loan, and that they foreclosed the mortgage on 22 January 18, 2011. Plaintiffs delivered the Coast Guard documentation of the foreclosure to 23 Ferrante on January 21, 2011. Joseph Nunez Decl. ¶¶ 5, 7. Plaintiffs allege that Ferrante is aware 24 of the foreclosure because he sent a protest letter disputing it in March 2011. On September 28, 25 2011, Ferrante moved Vengeance to a boat slip in Monterey Harbor, Monterey, CA with the stated 26 intention of “making some repairs” and then “heading south.” See Compl. ¶¶ 2-3. 27 28 1 Case No.: 11-CV-04842-LHK ORDER ISSUING WARRANT FOR THE ARREST OF THE F/V VENGEANCE 1 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 3 mortgage. See Fed. R. Civ. Proc., Suppl. R. C(1). Such a complaint must be verified, describe 4 with reasonable particularity the property that is the subject of the action, and state that the 5 property is within the district or will be within the district while the action is pending.1 See id. 6 C(2). Before issuing an arrest warrant, the Court must review the complaint and any supporting 7 papers and if the conditions for an in rem action appear to exist, the court must issue an order 8 directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject 9 of the action. Id. C(3)(a)(i). The Advisory Committee Note on the Amendments to Rules, 105 10 United States District Court For the Northern District of California 2 F.R.D. 179, 233 (1985), contemplates “a simple order with conclusory findings” determining 11 whether the plaintiff has made a prima facie showing that the action in rem is warranted. 12 Plaintiffs have adequately alleged the conditions for an in rem action with regard to the 13 boat, and have provided the mortgage agreement, a verified complaint, and Joseph Nunez’s sworn 14 declaration that the F/V Vengeance was properly foreclosed upon. Moreover, Plaintiffs have stated 15 that the F/V Vengence is currently within this district in a boat slip in Monterey Harbor. Plaintiffs 16 further allege that the TMSLPB is an appurtenance of the Vengeance. The Court agrees, in accord 17 with Gowen, Inc. v. F/V Quality One, 244 F.3d 64 (1st Cir. 2001). 18 Thus, the Court hereby GRANTS Plaintiffs’ Ex Parte Application for an Order Issuing 19 Warrant for the Arrest of the F/V Vengeance, and ISSUES A WARRANT for the ARREST of the 20 F/V Vengeance, Official Number 570025. 21 IT IS SO ORDERED. 22 Dated: September 30, 2011 23 _________________________________ LUCY H. KOH United States District Judge 24 25 26 27 28 1 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). 2 Case No.: 11-CV-04842-LHK ORDER ISSUING WARRANT FOR THE ARREST OF THE F/V VENGEANCE

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