Broward Marine, Inc., et al v. S/V Zeus, et al

Filing 146

ORDER denying without prejudice to renew 139 Motion to Dismiss. Signed by Magistrate Judge John J. O'Sullivan on 10/19/2009. (mkr)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 05-23105-CIV-HUCK/O'SULLIVAN BROW ARD MARINE, INC., et al., Plaintiffs, v. S/V ZEUS, Defendant.

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BROW ARD MARINE, INC., et al., Supplemental Plaintiffs, v. MARINA FUNDING GROUP, INC., et al., Defendant. ________________________________/ ORDER THIS MATTER is before the Court pursuant to the Supplemental Defendants' Verified Motion to Dismiss Complaint in Proceedings Supplementary and Show Cause Memorandum (DE# 139, 6/3/09). Having reviewed the applicable filings and law, it is ORDERED AND ADJUDGED that the Supplemental Defendants' Verified Motion to Dismiss Complaint in Proceedings Supplementary and Show Cause Memorandum (DE# 139, 6/3/09) is DENIED without prejudice to raise the issues discussed in the motion following the December 17, 2009 evidentiary hearing on the proceedings supplementary.

BACKGROUND On March 28, 2008, plaintiff BMI Investment Group, LLC as successor by assignment to Broward Marine, Inc. and BME Investment Group, LLC as successor by assignment to Broward Marine East, Inc. (collectively, "Plaintiffs"), obtained a final judgment in the amount of $67,302.77 against defendant Double Eagle Yachts, Inc. (hereinafter "Double Eagle"). See Final Judgment Awarding Costs (DE# 117, 3/28/09). The plaintiffs moved for proceedings supplementary to satisfy the outstanding judgment. See Plaintiffs' Motion to Commence Proceedings Supplementary and to Implead Third Parties and Memorandum in support thereof (DE# 126, 12/19/08). On March 19, 2009, the Court issued an Order Commencing Proceedings Supplementary to Execution and Impleading Third Parties (DE# 136, 3/19/09). Pursuant to this Order (DE# 136), the following third parties were impled: Marina Funding Group, Inc., Burrell Industries, Inc., Larry A. Zink, Esq. and Glenn Straub. Id. On June 3, 2009, the third party defendants filed Supplemental Defendants' Verified Motion to Dismiss Complaint in Proceeding Supplementary and Show Cause Memorandum (DE# 139, 6/3/09). On July 7, 2009, the plaintiffs filed their response in opposition. See Plaintiffs' Memorandum of Law in Opposition to Supplemental Defendants' Verified Motion to Dismiss Proceedings Supplementary and Show Cause Memorandum (DE# 143, 7/7/09). No reply was filed. On October 19, 2009, the Court held a hearing on the instant motion. Third party defendants seek to dismiss the instant proceedings supplementary for failure to state a cause of action upon which relief may be granted. See Supplemental Defendants' Verified Motion to Dismiss Complaint in Proceeding 2

Supplementary and Show Cause Memorandum (DE# 139, 6/3/09). For the reasons stated at the October 19, 2009 hearing, the Court finds that the legal arguments are intertwined with the factual allegations such that the factual issues will be resolved at the December 17, 2009 evidentiary hearing on the proceedings supplementary. DONE AND ORDERED, in Chambers, at Miami, Florida this 19th day of October, 2009.

____________________________________ JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE

Copies provided to: United States District Judge Huck All counsel of record

Copies mailed by Chambers to: Larry A. Zink, Esq. 1198 Hillsboro Mile, Suite 244 Hillsboro Beach, FL 33062 Larry A. Zink, Esq. 3711 Whipple Avenue NW Canton, OH 44718

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