St Michael Press Publishing Co., Inc. v. One Unknown Wreck Believed to be an Unidentified Military and Salvage Frigate of the Vessel Maravilla

Filing 23

OPINION AND ORDER denying as moot 15 Motion for Default Judgment; granting in part and denying in part 21 Motion to Dismiss. Clerk's Default 18 is vacated. Signed by Judge Kenneth A. Marra on 9/25/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
“IN ADMIRALTY”
CASE NO. 12-81209-CIV-MARRA
ST. MICHAEL PRESS PUBLISHING CO., INC.,
Plaintiff,
vs.
ONE UNKNOWN WRECK BELIEVED TO BE
AN UNIDENTIFIED MILITARY AND SALVAGE
FRIGATE OF THE VESSEL IF MARAVILLA, its
apparel, tackle, appurtenances and cargo
bounded by coordinates, starting at a point
latitude 27 degrees, 00 minutes, 00 seconds,
longitude 80 degrees, 05 minutes, 00 seconds,
going to a point north to longitude 80 degrees,
05 minutes, 00 seconds, latitude 27 degrees,
02 minutes, 00 seconds, then proceed going east
in a straight line to longitude 80 degrees,
01 minutes, 00 seconds, latitude 27 degrees,
02 minutes, 00 seconds, then proceed due south in
a straight line to latitude 27 degrees, 00 minutes,
00 seconds, longitude 80 degrees, 01 minutes,
00 seconds, then proceed west to the starting point.
Defendant.
___________________________________________/
OPINION AND ORDER
This cause is before the Court upon Plaintiff’s Motion for Default Judgment and Final
Judgment (DE 15), and the State of Florida’s Motion for Relief from Default and to Dismiss (DE
21). The motions are briefed and ripe for review. The Court has reviewed the briefs and the
record, and is otherwise fully advised in the premises.
I.

BACKGROUND
On October 31, 2012, Plaintiff St. Michael Publishing Co., Inc., (“Plaintiff”) filed a

verified complaint asking the Court to award it exclusive title to an unidentified shipwreck (“the

res”) located off the coast of Palm Beach County in U.S. territorial waters. (DE 1, ¶¶ 7, 28).
According to the complaint, Plaintiff, a Florida corporation engaged in marina salvage activity,
has extensively surveyed the area where the res is located, and has recovered at least one artifact.
Id. at ¶¶ 2-4. Plaintiff believes the res is a Spanish military frigate wrecked more than 200 years
ago. Id. at 1; Id. ¶ 10. Invoking the Court’s admiralty jurisdiction, Plaintiff asserts a claim under
the law of salvage based on its rescue of the wreck and artifacts, together with a claim for
injunctive relief to prohibit any rival salvors from conducting salvage operations within the area.
Id. ¶¶ 29-38.1
On November 7, 2012 the Court issued a warrant for arrest in rem (DE 10) and appointed
Plaintiff as substitute custodian of the res (DE 9). On December 21, 2012, Plaintiff published
notice of this case in the Palm Beach Daily Business Review. (DE 13-1). Plaintiff subsequently
sent copies of the complaint by certified mail to the State of Florida and counsel for the Kingdom
of Spain. (DE 14). On January 4, 2013 Plaintiff filed the return receipts with the Court (DE 141).
On January 30, 2013, Plaintiff moved for default judgment (DE 15).

On February 26,

2013, at Plaintiff’s request, a clerk’s default was entered (DE 18). On February 27, 2013, the
Court held a hearing on the then-pending matters. On March 25, 2013 Plaintiff filed Notice of
Compliance with this Court’s Request for Information Given in Court on February 27, 2013 (DE
20) regarding service on Florida and counsel for Spain. On May 8, 2013, Florida specially
appeared, requested relief from the default, and moved the Court to dismiss the action. (DE 21).

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The Complaint also asserted a claim for exclusive title under the Law of Finds (DE 1, ¶38), but Plaintiff has since
abandoned this alternative claim (DE 22, ¶ 18).

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II.

DISCUSSION
In this case there is a question as to the existence of the res as described, as well as

competing claims of ownership. According to Florida, the only possible owners of the vessel
are: (1) the Government of Spain as the original owner that claims to not have abandoned the
vessel, or (2) Florida under the Abandoned Shipwreck Act of 1987, 43 U.S.C. §§ 2101-2106, if
the alleged vessel has been abandoned. (DE 21 ¶ 3). In either event, Florida asserts that neither
possible owner has given permission for salvage. Id. Florida specially appeared “to assert its
Eleventh Amendment immunity and move to dismiss this action for failure to state a claim and
for failure to properly serve the State.” (DE 21 at 3).
Plaintiff continues to maintain that the res belongs to Spain and is not abandoned, as
evidenced by its correspondence with Spain. (DE 20-1.) Plaintiff simultaneously maintains that
it is entitled to a salvage award, even though the same correspondence with Spain expressly
refuses any salvage by Plaintiff. Against the backdrop of competing claims and interests, the
Court turns to the pending motions.
A. Florida’s Motion to Vacate Clerk’s Default
The Court “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). The
Court is vested with considerable discretion in deciding whether to vacate a default. Robinson v.
U.S., 724 F.2d 735, 739 (11th Cir. 1984). Moreover, defaults are disfavored based on the strong
policy in favor of determining cases on their merits. Florida Physicians Ins. Co. v. Ehlers, 8 F.3d
780, 783 (11th Cir. 1993). Thus, to obtain relief under Rule 55(c), a movant must only make a
“bare minimum showing” in support of its claim for relief. Jones v. Harrell, 858 F.2d 667, 669
(11th Cir. 1988).
To determine if “good cause” exists, courts consider factors such as whether (1) the
default was culpable or willful, (2) setting aside the default would cause prejudice, (3) the
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defaulting party presents a meritorious defense, and (4) the defaulting party acted promptly to
correct the default. Compania Interamericana Export-Import, S.A. v. Compania Dominicana de
Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). These factors are only guidelines; they are not
“talismanic.” Id.
Here, the circumstances weigh in favor of vacatur. The Court cannot conclude that
Florida willfully or intentionally ignored this action. To the contrary, Florida was entitled to
withhold an answer until it had been served, see Ehorn v. Sunken Vessel Known as the
“ROSINCO”, 294 F.3d 856, 859 (7th Cir. 2002)(“even in an in rem proceeding, personal service
may be essential,” holding that publishing or posting of notice to serve a state in a case involving
claims to a sunken vessel is inadequate to justify entry of a default). Here, Plaintiff has failed to
comply with the appropriate rules for service on the State of Florida.
Rule 4(j) of the Federal Rules of Civil Procedure governs service of process on the State.
The Rule states in pertinent part that service on the State shall be effected by “(A) delivering a
copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of
each in the manner prescribed by the state’s law for serving a summons or like process on such a
defendant.” Fed. R. Civ. P. 4(j).
Plaintiff asserted in its Notice of Compliance (DE 20) that the state of Florida had been
served in accordance with Florida Statute § 48.121, “wherein two copies of the Complaint were
provided by certified mail to the Attorney General of the State.” (DE 20 ¶ 1). That statute
provides,
[w]hen the state has consented to be sued, process against the state shall be served
on the state attorney or an assistant state attorney for the judicial circuit within
which the action is brought and by sending two copies of the process by registered
or certified mail to the Attorney General. The state may serve motions or
pleadings within 40 days after service is made. This section is not intended to
authorize the joinder of the Attorney General or a state attorney as a party in such
suit or prosecution.
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To date, Plaintiff has not complied with this statute because there is no indication in the
record that the state attorney for the appropriate judicial circuit has been served. Therefore,
Plaintiff has not fully complied with the requirements for service on Florida. Hence, Florida’s
time to file an answer has not yet started to run.
Additional factors weigh in favor of vacatur.

Plaintiff has articulated no material

prejudice it would suffer by allowing this case to go forward, and the Court finds no evidence to
suggest any exists. Lastly, Florida has provided “a hint of a suggestion” that its asserted claims
have merit. Brown Bark III, L.P. v. Cofresi Torres, 2010 WL 10363, *4 (S.D. Fla. 2010). The
Court need not decide if this argument will succeed; rather the Court’s review at this juncture is
limited to determining if Florida’s allegations are entirely devoid of merit. Id. Finding they are
not, this factor weighs in favor of vacatur. In view of the foregoing, the Court finds good cause
to vacate the clerk’s default.
B. The State of Florida’s Motion to Dismiss
For the reasons stated above, the court finds that service on the State of Florida was
improper. The Court therefore GRANTS Florida’s Motion to Dismiss (DE 21) in part on the
grounds of improper service and DENIES in part without prejudice the State of Florida’s
remaining arguments.
C. Plaintiff’s Motion for Default Judgment
Because the clerk’s default in this matter shall be set aside, Plaintiff’s motion for default
judgment (DE 15) is DENIED AS MOOT.
III.

CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that the State of Florida’s Motion

to Vacate Clerk’s Default and Dismiss (DE 21) is GRANTED IN PART as to improper service
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and DENIED IN PART without prejudice as to Florida’s remaining claims. Plaintiff must
complete its attempt to serve the State of Florida pursuant to Section 48.121of the Florida
Statutes. Florida may renew its arguments relative to dismissal in another motion after being
properly served. For good cause shown, the Clerk’s Default (DE 18) is VACATED. The State
of Florida’s Motion to Dismiss Plaintiff’s Motion for Default Judgment (DE 15) is accordingly
DENIED AS MOOT.
DONE AND ORDERED in chambers at West Palm Beach, Palm Beach County, Florida
this 25th day of September, 2013.

KENNETH A. MARRA
United States District Judge

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