Southern Drydock, Inc. v. Tomasic et al

Filing 79

ORDER permitting defendants to file counterclaim against plaintiff as substitute custodian by 1/26/2015 (response due 2/17/2015); denying all pending motions. Signed by Judge Timothy J. Corrigan on 12/23/2014.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN ADMIRALTY
SOUTHERN DRYDOCK, INC.,
Plaintiff,
vs.

Case No. 3:14-cv-676-J-32JBT

JOHN F. TOMASIC and KATHERINE
A. HOOVER, in personam, and M/V SUNNY,
her engines, tackle, and appurtenances, etc.,
in rem,
Defendants.

ORDER
On December 16, 2014, pursuant to the Court’s Order, plaintiff Southern Drydock,
Inc., in its role as the substitute custodian of the arrested vessel M/V Sunny, released the
vessel to its owners, defendants John F. Tomasic and Katherine A. Hoover. See Docs. 73
& 76. In its December 10, 2014 Order, the Court advised that upon release of the vessel the
Court intended to dismiss this action and close the file. See Order, Doc. 73. Since then,
however, defendants Hoover and Tomasic have filed numerous papers, the sum of which
gives the Court pause. While the Court takes no position as to whether these defendants
can pursue a separate claim against Southern Drydock for work performed (or not
performed) on the M/V Sunny before the Court appointed it as substitute custodian, the
Court has an interest in the matter as it relates to actions that may have occurred during the
custodianship period (September 30, 2014 at 10:30 a.m. through December 16, 2014 at
noon). See Docs. 51 and 73.

Although defendants filed an answer to plaintiff’s complaint without asserting any
counterclaim, the Court will permit them, if they wish, to file a counterclaim against plaintiff
as substitute custodian for any damage that occurred during the custodianship. See, e.g.,
New River Yachting Center, Inc. v. M/V Little Eagle II, 401 F.Supp. 132 (S.D. Fla. 1975)
(counterclaim in admiralty action by defendant boat owner against plaintiff substitute
custodian); Intermarine, Inc., v. Baker, Case No. 07-61607-CIV, 2008 WL 5516484 (S.D. Fla,
2008) (cross-claim in admiralty action by intervening plaintiff against substitute custodian);
Independent Bank of Texas v. M/V Janice Ruth II, Case No. 3:11-cv-128-TMB-JDR, 2012
WL 3236556 (D. Alaska Aug. 1, 2012) (claim in admiralty action by vessel’s mortgage holder
against substitute custodian).
Defendants may file a counterclaim against plaintiff as substitute custodian no later
than January 26, 2015.1 If defendants file a counterclaim, plaintiff shall respond no later
than February 17, 2015.2 In light of the possibility that litigation will continue, the Court does
not intend to dismiss plaintiff’s claims against defendants at this time. The Court has
reviewed defendants’ various motions, Docs. 26, 50, 53, 54, 58, 65, 74, 75, 77, 78, and finds
they are each due to be denied.

1

Defendants are encouraged to hire a lawyer to represent them in this matter. If they
need more time to retain counsel, they should file a motion in advance of the January 26,
2015 deadline.
2

If the counterclaim implicates the insurance coverage that plaintiff was required to carry
as substitute custodian, plaintiff should ask the insurance company to defend the
counterclaim.
2

DONE AND ORDERED at Jacksonville, Florida this 23rd day of December, 2014.

s.
Copies:
counsel of record
pro se parties

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