Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel

Filing 242

MOTION for leave to file reply to Spain's response to Odyssey's and certain claimants' objections to the 6.3.09 Report & Recommendation by Odyssey Marine Exploration, Inc.. (Morello, Gianluca)

Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY ODYSSEY MARINE EXPLORATION, INC., Plaintiff, v. THE UNIDENTIFIED, SHIPWRECKED VESSEL, if any, its apparel, tackle, appurtenances and cargo located within a five mile radius of the center point coordinates provided to the Court under seal, Defendant; in rem and THE KINGDOM OF SPAIN et al., Claimants. / PLAINTIFF ODYSSEY MARINE EXPLORATION, INC.'S MOTION (ON BEHALF OF ITSELF AND CERTAIN CLAIMANTS) FOR LEAVE TO FILE REPLY TO SPAIN'S RESPONSE TO ODYSSEY'S OBJECTIONS TO THE JUNE 3, 2009 REPORT & RECOMMENDATION (DOC. 236) On June 3, 2009, Magistrate Judge Mark A. Pizzo issued a Report and Recommendation (the "R&R") (Doc. 209) on claimant Kingdom of Spain's motion to dismiss or for summary judgment ("Spain's Motion") (Doc. 131). Odyssey Marine Case No: 8:07-cv-614-T-23MAP

Exploration, Inc. ("Odyssey") subsequently filed its objections to the R&R ("Odyssey's Objections") (Doc. 230), and on August 31, 2009, Spain filed a consolidated response to

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Odyssey's Objections and the objections of "individual claimants"

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("Spain's Response")

(Doc. 236). Odyssey, on behalf of itself and all individual claimants, respectfully requests leave to file reply briefs to Spain's Response within 30 days after an order on this request. Odyssey's reply would address certain discrete arguments made in Spain's Response Specifically, Odyssey seeks leave to reply to Spain's Response to address two discrete issues: (1) Spain's contention that the standard of review applicable to a

determination of subject matter jurisdiction in this case, in which the facts necessary to decide jurisdiction are intertwined with the merits of Odyssey's claims, somehow changes because the jurisdictional challenge is under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq.; and (2) Spain's argument that purported "warships" and their cargo ­ unlike other government-owned vessels ­ enjoy sovereign immunity regardless (a) of the nature of their voyage (which here involved commercial transport of private parties' property in exchange for payment of freight charges) or (b) that none of the recovered cargo was in or near any vessel structure, or indeed that no vessel or cohesive remnants of a vessel's hull were uncovered at the site. Significant interests of Odyssey, and of the individual claimants, will be affected by the outcome of Spain's Motion, and Odyssey believes its briefing on these two limited issues will assist the Court with resolving that motion. WHEREFORE, Odyssey, on its and the individual claimants' behalf, respectfully requests leave to file replies to Spain's Response (Doc. 236) within 30 days of an order granting this request.

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"Individual claimants" refers to all claimants in this case except Spain and Peru.

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LOCAL RULE 3.01(g) CERTIFICATION Odyssey has conferred with counsel for Spain, and Spain objects to the relief requested in this motion. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 10, 2009, I electronically filed this document with the Clerk of the Court by using the CM/ECF system and mailed a true and correct copy to non-CM/ECF participant Joseph A. Rodriguez, pro se, 4611 South University Drive, Davie, FL 33328-3817. Respectfully Submitted, s/ Gianluca Morello Carl R. Nelson, FBN 0280186 [e-mail] Gianluca Morello, FBN 034997 [e-mail] FOWLER WHITE BOGGS P.A. 501 E. Kennedy Blvd., Suite 1700 Tampa, FL 33602 Phone: [phone] Fax No: [phone] Melinda J. MacConnel, FBN 871151 [e-mail] Odyssey Marine Exploration, Inc. 5215 West Laurel Street Tampa, FL 33607 Phone: [phone], ext. 2240 Fax No.: [phone] Attorneys for Plaintiff Odyssey Marine Exploration, Inc.

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