Tomasic et al v. Ocean Bounty Marine Railway et al
Filing
103
ORDER finding as moot 32 Motion for Attorney Fees; 32 Motion to Dismiss Case as Frivolous; 32 Motion to Dismiss for Lack of Jurisdiction; 32 Motion for Sanctions; granting 34 Motion to Dismiss Case as Frivolous; granting 34 Motion t o Dismiss for Lack of Jurisdiction; 34 Motion for Sanctions; finding as moot 38 Motion to Strike; 38 Motion; 63 Motion for Hearing; 71 Motion for Hearing; 75 Motion for Summary Judgment; 81 Motion; 81 Motion to Vacate; 16 Motion for Summary Judgment. The Clerk is instructed to close the case. Signed by Chief Judge Lisa G. Wood on 3/27/2014. (ca)
3hi the aniteb btatto 3itrid Court
for the boutbern 39i0trict of georgia
runMuitk flibtion
JOHN F. TOMASIC and
KATHERINE A. HOOVER,
Plaintiffs,
vs.
CV 213-26
OCEAN BOUNTY MARINE RAILWAY,
OCEAN BOUNTY SEAFOOD, and
WILLIAM WALLACE, assets and the
property it is built on owned
by the Durant family,
Defendants.
ORDER
Presently before the Court are Defendants' Motions to
Dismiss, Dkt. Nos. 32, 34,1 along with Plaintiffs' Motion for
Summary Judgment, Dkt. No. 16, Defendants' Motion to Strike and
Motion for Judicial Review, Dkt. No. 38, Plaintiffs' Motions for
a Hearing Regarding Summary Judgment, Dkt. Nos. 63, 71,
Plaintiffs' Renewed Motion for Summary Judgment, Dkt. No. 75,
and Defendants' Motion to Reconsider, Dkt. No. 81. Upon due
1 Apparently, Defendants have filed identical motions and responses, with the
difference being that one filing, Dkt. No. 34, includes exhibits of orders
involving the parties. Dkt. Nos. 30; 32; 34; 35. The Court will therefore
refer to only the most comprehensive filing. Dkt. No. 34.
A0 72A
(Rev. 8/82)
1
consideration, Defendants' Motion to Dismiss is GRANTED, thereby
making all other pending motions MOOT.
I. Factual Background
The present action arises from damages to a boat moored to
a dock. John Tomasic and Katherine Hoover are pro se
plaintiffs. Dkt. No. 1, at 1. Their Complaint tells of
colorful events, none of which is admitted by others. The
Complaint asserts an in rem action "against the property of
Ocean Bounty Marine Railway and Ocean Bounty Seafood, ,2 which are
believed to be owned by "the Durant family." Id. The two
businesses sit adjacently in Valona, Georgia on "tidal marsh
land and [an] estuary." Id. Allegedly, the facilities have
been and continue to be "in a serious state of disrepair." See
id. Plaintiffs assert that Hunter Forsyth leases the property
and represents the interests of the Durant family, and that
Forsyth leased the property to Mary Alice Thomas. Id.
Plaintiffs met with Thomas several times and discussed a
verbal agreement with Forsyth "to repair the Marine Railway in
exchange for hauling" Plaintiffs' boat, named "R/V Sunny" ("the
boat"). Id. No dockage fees would be charged. Dkt. No. 6, at
2. On June 21, 2012, Plaintiffs memorialized the agreement in
2
Although the action is brought against these persons' assets, for clarity
and conciseness, the Court will use the term "Defendants" as encompassing the
persons, not the property.
AO 72A
(Rev. 8182)
2
writing, although it is signed by only Plaintiffs. 3 Dkt. No. 1,
at 1-2, Ex. A. Plaintiffs claim that three days before the boat
arrived to Defendants' property from Florida, Thomas said that
the dock would be repaired and that she would make room for the
boat. Dkt. No. 6, at 2.
On July 3, 2012, Plaintiffs claim that William Wallace 4
boarded the boat and moved it next to a derelict shrimp boat—all
while Plaintiffs were in the boat. Dkt. No. 1, at 2. Once
Plaintiffs realized that the boat was moving, they questioned
Wallace, who said "he was going to repair the dock." Id. Later
that day, Wallace "left after placing only two used pilings and
a [jerry-rigged, 30-foot] ramp" to the dock with a "[two] - inch
wide tie down strap." Id. The next evening, the ramp collapsed
as Tomasic attempted to cross the planks, leaving him hanging by
one hand and holding a gas can and a computer in the other. See
id.
The next day, Tomasic complained to Wallace, who blamed
another boat for the ramp's damage. Id. Without asking for
Plaintiffs' permission, Wallace boarded R/V Sunny to untie it
from the derelict shrimp boat and retie it in the boat's
original position. See id. In days, a wind shift pinned the
boat against a misaligned piling installed by Wallace, which
The memorialization also asserts that Defendants breached the agreement.
Dkt. No. 1, at 1-2, Ex. A.
At a motions hearing, the parties clarified that Wallace operates a docking
business.
AO 72A
(Rev. 8/82)
3
I
caused severe damage to the rub rail and undetermined damage to
the boat's bottom. Id. When Tomasic asked Wallace who told him
to move the boat, Wallace identified Forsyth. Id. Forsyth,
Thomas, and Wallace, along with Defendants' attorney, refused to
provide insurance information to Plaintiffs. Id.; Dkt. No. 6,
at 2. At some point, Plaintiffs claim that Tomasic's life was
threatened and that a friend of Thomas, Forrest Sawyer,
threatened to burn the boat, although Sawyer has no official
connection with Wallace or the Ocean Bounty entities. Dkt. No.
6, at 2.
In early October 2012, without asking permission, Wallace
again boarded the boat and tied it to a shrimp boat. Dkt. No.
1, at 2. Wallace did not notify the shrimp boat's owner about
moving the shrimp boat from its leased dock at Ocean Bounty.
Id. No bumpers were placed between Plaintiffs' boat and the
shrimp boat. Id. Then, on October 15, 2012, a rotting dock
collapsed from a high tide, causing severe damage to R/V Sunny.
Id. The shrimp boat's owner called Tomasic to tell him that he
suffered a heart attack trying to climb over the broken dock and
board his boat. Id.
On January 28, 2013, Wallace called Hoover at the hospital,
who was in a weakened condition from having undergone heart
The Complaint says that the phone call occurred on January 28, 2012, but the
Court treats this as a scrivener's error given the timing of the allegation
relative to Plaintiffs' other assertions. Dkt. No. 1, at 2.
AO 72A
(Rev. 8/82)
4
surgery less than a week before. Id. Wallace demanded $4,700,
as allegedly ordered by "Judge Stewart after [the judge] held a
hearing without proper notice to" Plaintiffs. Id. at 3.
Wallace also claimed to have had a sheriff issue an arrest
warrant for Tomasic. Id.
At some point, Tornasic reported Ocean Bounty Seafood's
allegedly unsafe conditions to the Occupational Safety and
Health Administration. 6 Dkt. No. 6, at 2. Plaintiffs allege
that Defendants' attorney, in response, filed a fraudulent
document asserting completion of OSHA's requirements, although
Plaintiffs claim that work to ensure OSHA compliance had not
finished, or even begun. See id. Tomasic responded to this
allegedly fraudulent letter and disputed its accuracy. See id.
Plaintiffs claim that Sawyer, in response, wrote and filed
fraudulent lease charges on Ocean Bounty Marine Railway and
Seafood letterhead for the boat's dock rent and Thomas's
apartment, although the "Marine Railway and apartment were never
used." See id.
II. Procedural Background
On February 19, 2013, Plaintiffs filed suit against "Ocean
Bounty Marine Railway, Ocean Bounty Seafood, and William
6
Plaintiffs also assert that in early January, Tomasic noticed Wallace
illegally filling wetlands, which was allegedly confirmed by the Georgia
Department of Natural Resources. Dkt. No. 1, at 3. The State of Georgia
allowed 30 days to comply with an order for Wallace to reclaim the site. Id.
AO 72A
8182)
(Rev.
Wallace's assets and the property it [sic.] is built on owned by
the Durant family." Dkt. No. 1, at 1. On February 25, 2013,
Plaintiffs filed an amended complaint. Dkt. No. 6. Plaintiffs
seek $105,000 in damages—$78,500 for breach of contract
(including the cost of hauling the boat), $21,500 for damages
(apparently for the injury caused by Wallace's alleged
negligence), and $5,000 in legal costs (although to draft the
Complaint, "Plaintiffs have expended many hours [that are
priceless] doing research"). Plaintiffs also "request that the
Durant family property where Ocean Bounty Seafood and Ocean
Bounty Marine Railway are situated be arrested and held as
collateral" or be available if Defendants fail to post bond, and
for Defendants to haul out and repair Plaintiffs' boat.' Id. at
3.
Since March 2013, the parties have filed several, sometimes
duplicitous, motions for the Court's resolution. Before the
Court are Plaintiffs' Motion for Summary Judgment, Dkt. No. 16,
Defendants' Motions to Dismiss, Dkt. Nos. 32, 34, Defendants'
Motion to Strike and Motion for Judicial Review, Dkt. No. 38,
Plaintiffs' Motions for a Hearing Regarding Summary Judgment,
' On June 22, 2013, Plaintiffs filed an "Addendum to the Damages to Sunny."
Dkt. No. 55, at 1. The addendum described a chain of events since a hearing
before the Magistrate Judge on July 11, 2013. See Id. at 1-4. In
conclusion, the addendum asks the Court to issue a restraining order against
anyone except Plaintiffs and their licensees from accessing the boat and to
order Wallace to pay for towing, storing, and repairing the boat, and the
cost of allegedly stolen items. Id. at 4.
AO 72A
(Rev. 8/82)
6
Dkt. Nos. 63, 71, Plaintiffs' Renewed Motion for Summary
Judgment, Dkt. No. 75, and Defendants' Motion to Reconsider,
Dkt. No. 81. On March 24, 2014, a hearing was held to clarify
events and address Defendants' motion to dismiss. Dkt. No. 98.
III. Discussion
A. Dismissal for Lack of Jurisdiction
Defendants argue that the Court lacks jurisdiction over the
action and therefore should dismiss the case. See Dkt. No. 34,
at 3-4, 16. Specifically, Defendants attack Plaintiffs' only
pleaded basis for jurisdiction—admiralty in rem—as improper
because "Plaintiffs appear to be attempting to use the reverse
of an admiralty in rem action to arrest assets on land for
alleged damage to their vessel." Id. at 3. Defendants are
correct. Plaintiffs' sole basis for subject matter jurisdiction
is improper.
1. Basis for Defendants' Motion
Defendants do not clearly specify under what procedural
rule their motion is brought, or whether the attack is against
personal or subject matter jurisdiction. See id. (arguing that
the Court lacks jurisdiction, without specifying in what form).
Although they cite 28 U.S.C. § 1333, the subject matter
jurisdiction statute for cases in admiralty, the remainder of
Defendants' discussion focuses on whether the action is one
properly brought in rem—typically an issue of personal
AO 72A
(Rev. 8182)
7
jurisdiction. See id. at 3-4. Despite this, in the context of
Defendants' motion, the issue goes to subject matter
jurisdiction.
2. Legal Standard for Subject Matter Jurisdiction
Federal courts have limited subject matter jurisdiction.
Ishler v. Internal Revenue, 237 F. App'x 394, 395 (11th Cir.
2007) (per curiam) (citing Bochese v. Town of Ponce Inlet, 405
F.3d 964, 974 (11th Cir. 2005)). The plaintiff bears the burden
of establishing the court's subject matter jurisdiction. Id.
Under Rule 12 (b) (1), there are two types of motions to
dismiss for lack of subject matter jurisdiction: facial attacks
and factual attacks. Morrison v. Amway Corp., 323 F.3d 920, 924
n.5 (11th Cir. 2003) (citing Lawrence v. Dunbar, 919 F.2d 1525,
1528-29 (11th Cir. 1990) (per curiam)) . "Facial attacks
challenge subject matter jurisdiction based on the allegations
in the complaint, and the district court takes the allegations
as true in deciding whether to grant the motion." Id. The
complaint may be dismissed on a facial attack only "if it is
clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations." Jackson
v. Okaloosa Cnty., 21 F.3d 1531, 1536 n.5 (11th Cir. 1994)
(citation omitted) . "Factual attacks challenge subject matter
AO 72A
(Rev. 8182)
8
jurisdiction in fact, irrespective of the pleadings. "8 Morrison,
323 F.3d at 924 n.5.
3. Jurisdiction Based on Admiralty in Rem
a. Legal Standard
An admiralty action in rem must have a proper substantive
basis, as stipulated by Supplemental Rule C of the Federal Rules
of Civil Procedure ("Rule C"): it may be brought to enforce a
maritime lien or "[w]henever a statute of the United States
provides for a maritime action in rem or a proceeding analogous
thereto." Rule C(l).
"[Wjhether maritime jurisdiction exists is a question
anterior to, although often coincident with, the question of
whether the plaintiff has a maritime lien." 9 Wilkins v.
Commercial Inv. Trust Corp., 153 F.3d 1273, 1276 (11th Cir.
1998) (per curiam). "A maritime lien is 'a special property
right in a ship given to a creditor by law as security for a
debt or claim subsisting from the moment the debt arises.'" In
re Container Applications Int'l, Inc., 233 F.3d 1361, 1362 n.1
(11th Cir. 2000) (brackets omitted) (quoting Galehead, Inc. v.
M/V Anglia, 183 F.3d 1242, 1247 (11th Cir. 1999) (per curiam)).
Maritime liens typically attach only to vessels. See Admiral
° Rather than form their attack as factual, Defendants challenge whether the
alleged facts provide a basis for jurisdiction.
Essentially, this makes in rem jurisdiction available to "only those who
claim ownership or possession." See 12 Charles Alan Wright et al., Federal
Practice and Procedure § 3223 (2d ed. 2013).
AO 72A
(Rev. 8182)
Cruise Servs., Inc. v. M/B St. Tropez, 524 F. Supp. 2d 1378,
1380 (S.D. Fla. 2007); Crimson Yachts v. Betty Lyn II Motor
Yacht, 603 F.3d 864, 872 (11th Cir. 2010); 46 U.S.C.
§ 31342 (a) (1). A vessel "includes every description of
watercraft or other artificial contrivance used, or capable of
being used, as a means of transportation on water." Crimson
Yachts, 603 F.3d at 872 (quoting 1 U.S.C. § 3); see also Lozman
v. City of Riviera Beach, 133 S. Ct. 735, 741 (2013)
(criticizing the Eleventh Circuit's standard for determining
whether a structure is a "vessel" by clarifying that "a
structure does not fall within the scope of this statutory
phrase unless a reasonable observer, looking to the
[structure's] physical characteristics and activities, would
consider it designed to a practical degree for carrying people
or things over water")
b. Application
The property that Plaintiffs attempt to use for providing
in rem jurisdiction' 0 consists of "the Durant family property
10
Had Plaintiffs pleaded admiralty in personam jurisdiction in the
alternative, they may have alleviated the defect in bringing the case in rem.
See United States v. One Lear Jet Aircraft, Serial No. 35A-280, Registration
No. YN-BVO, 836 F.2d 1571, 1575 (11th Cir. 1988) . Yet, they did not.
Instead, they asserted a disarrayed set of facts, supported by a consistent
assertion that in rem jurisdiction underlay the action.
Under impression that Plaintiffs sought exclusively an in rem action,
the Court asked at the motions hearing for Plaintiffs to confirm. The Court
asked, "As far as between in rem and in personam, are you seeking in rem or
in personam?" Plaintiffs responded, "In rem." Their response is consistent
with their Complaint and Amendment Complaint, which carefully confirm the in
AO 72A
(Rev. 8/82)
10
where Ocean Bounty Seafood and Ocean Bounty Marine Railway are
situated," or (as stated in the Complaint's caption) "Ocean
Bounty Marine Railway, Ocean Bounty Seafood, [and] William
Wallace's assets and the property [that Defendants' structures
are] built on owned by the Durant family." Dkt. No. 6, at 1, 4.
This cannot support an admiralty action in rem because no claim
is made against a vessel, the only res to which a maritime lien
could attach. Although the underlying property could be
interpreted to constitute any vessels owned by Defendants, the
Complaint does not allege this with meaningful detail, as
required by Rule C. See Rule C(2) (b) (requiring that a
complaint for an in rem action "describe with reasonable
particularity the property that is the subject of the action");
Fathom Exploration, LLC v. Unidentified Shipwrecked Vessel or
Vessels, 352 F. Supp. 2d 1218, 1222 (S.D. Ala. 2005) (quoting
First Circuit caselaw to give meaning to Rule C's particularity
requirement as requiring "a meaningful level of detail in
describing the property" at issue) . Indeed, the only specific
assertion is against the real property on which the Defendantbusinesses sit. See Dkt. No. 6, at 1, 4. Because the res is
rem nature. Plaintiffs are pro se and deserve leeway, but the Court is not
permitted to completely redraft and reform the jurisdictional basis.
AO 72A
(Rev. 8/82)
I
11
improper, subject matter jurisdiction is not established as
existing through admiralty in rem. 11
4. Diversity as an Alternative Basis for Jurisdiction
During and after the hearing, Plaintiffs claimed that they
properly invoked diversity jurisdiction. Yet, nowhere does the
Complaint, as originally filed or amended, plead diversity
jurisdiction or provide any facts that could support a
speculation of diversity. See Dkt. Nos. 1; 6. Instead,
throughout their pleadings, Plaintiffs have identified only
admiralty in rem as providing jurisdiction. See, e.g., Dkt.
Nos. 1, at 1 (labeling the Complaint as an "IN REM ACTION"
(capitalization in original)); 6, at 1 (same); 6, at 4
(requesting an arrest of "the Durant family property where Ocean
Bounty Seafood and Ocean Bounty Marine Railway are situated," to
be held as collateral)
Plaintiffs' attempts to point to instances in which they
invoked diversity jurisdiction are without merit. For example,
Plaintiffs stated at the motions hearing that the civil cover
sheet specifies that the case is brought in diversity, although
the cover sheet clearly says otherwise. Dkt. No. 1-1. Further,
after the motions hearing, Plaintiffs filed a "Notice of
Diversity of Citizenship." Dkt. No. 101. This filing argues
11 The Court also notes that there has been no attachment of the res at issue.
Before finding in rem liability, there must be attachment subjecting the res
to the Court's jurisdiction. Dow Chem. Co. v. Barge UM-23B, 424 F.2d 307,
311 (5th Cir. 1970)
AO 72A
8182)
(Rev.
12
I
that diversity of citizenship was cited on page two of the
Amended Complaint and that the Court can consider allegations in
a different case. Id.
Plaintiffs' first argument in their Notice of Diversity of
Citizenship is without merit. Apparently, they refer to the
portion of the Amended Complaint that states that Plaintiffs'
vessel was towed from Florida to Georgia. Dkt. No. 6, at 2.
The Court does not construe this, as Plaintiffs suggest, as
"cit [irig] diversity of citizenship," but instead as stating a
factual detail in the course of the Complaint's narrative. Dkt.
No. 101. Pursuant to Rule 8(a) (1), a pleading that states a
claim for relief must contain "a short and plain statement of
the grounds for the court's jurisdiction." In doing so, the
pleading cannot merely conclude that the claim is within
diversity jurisdiction, but instead "must allege the citizenship
of the parties and the amount in controversy." Hammes v. AAMCO
Transmissions, Inc., 33 F.3d 774, 778 (11th dr. 1994). The
Complaint fails to plead anything that can be read as invoking
diversity jurisdiction, and the Court declines to rely on a
single fragmentary allegation of how a boat got from one state
to another. See De Volid v. Bailar, 568 F.2d 1162, 1165 (5th
dir. 1978) (affirming a lower court that did not rely on
fragmentary allegations to invoke jurisdiction over the claim);
Mass v. McDonald's Corp., No. Civ.A.3:04-CV-0483-M, 2004 WL
AO 72A
(Rev. 8/82)
I
13
2624255, at *2 (N.D. Tex. Nov. 12, 2004) (dismissing a pro se
plaintiff's complaint for lack of subject matter jurisdiction
for not identifying the jurisdictional grounds for his claims).
Despite the liberal construction afforded to pro se
pleadings, a court is "not required to 'rewrite an otherwise
deficient pleading in order to sustain an action.'" Rock v. BAE
Sys.., Inc., No. 13-13196, 2014 WL 715606, at *1 (11th Cir. Feb.
26, 2014) (quoting GJR Invs., Inc. v. Cnty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998)). The Court declines to do so
here.
Plaintiffs' second argument in their Notice of Diversity of
Citizenship is also without merit. The Court is aware of no
authority in which it may consider the content of a separate
action's pleadings to invoke jurisdiction. Therefore, diversity
jurisdiction does not serve as a proper alternative basis for
subject matter jurisdiction.' 2
12
Even if the Court was able to find that diversity jurisdiction was properly
pleaded, there would be other deficiencies fatal to Plaintiffs' case,
including deficient service and improperly identifying the defendants.
Although Wallace and the Ocean Bounty entities admitted to receiving a copy
of the complaint and summons through certified mail, there is no evidence
that service was properly made pursuant to Rule 4. Further, rather than name
defendants with legal personhood, the Complaint is brought against the assets
of certain persons, not the persons themselves.
AO 72A
(Rev. 8/82)
14
B. Other Motions
Because the Court lacks subject matter jurisdiction to hear
the case, all other pending motions are MOOT.
Dkt. Nos. 16; 32;
38; 63; 71; 75; 81.
IV. Conclusion
For the aforementioned reasons, Defendants' Motion to
Dismiss is GRANTED.
MOOT.
Dkt. No. 34. All other pending motions are
Dkt. Nos. 16; 32; 38; 63; 71; 75; 81. The Clerk of Court
is instructed to close the case.
SO ORDERED, this 27TH day of March, 2014.
A
GODBEYD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AO 72A
(Rev. 8/82)
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?