Ray Capital Inc et al v. M/V Newlead Castellano et al

Filing 128

ORDER granting in part and denying in part 118 Motion to Intervene; granting in part and denying in part 118 Motion for Reconsideration; denying as moot 121 Motion for Hearing. It is further ordered that Defendant's Counterclaim for wrong ful arrest is DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to enter final judgment in favor of plaintiffs on their claims against Defendants. The Clerk is ORDERED to disburse the funds remaining in the registry of the Court in connection with this case in the manner and amounts described in this Order. The Clerk is directed to terminate all other pending motions, if any, and close this case. Signed by Chief Judge J. Randal Hall on 9/13/17. (loh)

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IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION IN ADMIRALTY RAY CAPITAL INC.; LTD.; OPPENHEIM * CHEYENNE HOLDINGS CAPITAL LTD.; * and LABROY SHIPTRADE * LIMITED, * Plaintiffs, * v. * M/V NEWLEAD CASTELLANO, IMO NO. 9686338, her engines, tackle, equipment, furniture, appurtenances, etc., in rem, 416-093 * * * * and NEWLEAD CASTELLANO LTD., CV * * Defendants. * ORDER "Unless sharks come," he said aloud. "If sharks come, God pity him and me."1 On March favor of 20, 2017, Plaintiffs Order"). (See Plaintiffs' Doc. favor, the Court entered summary judgment against Defendants 116.) Before entering however, the Court (the "Summary Judgment final judgment ordered in Plaintiffs in to "perfect the record with admissible evidence with regards to the balance of their claims against Defendants 1 Ernest Hemingway, The Old Man and the Sea 68 (1952) through [March 20, 2017], costs including an itemization of and expenses each the principal, Plaintiff claims under interest, its instruments" by no later than March 30, 2017. (Id. Court cause, by also March 30, against this ordered 2017, as Defendants show respective at The later no 17.) than to why their counterclaim for wrongful arrest Plaintiffs case to and should closed. (Id. not at be dismissed 18.) On March with 21, prejudice 2017, and Plaintiffs filed a supplemental brief outlining the balance of their claims against Defendants and evidence in support thereof. On March ("DHL") 30, non-party DHL intervene of the in the grant of purports summary to judgment respond to I. A. Plaintiffs the Newlead Plaintiffs Holdings Each Doc. Note is Chartering Limited renews its prior attempts (ii) in seeks favor Court's of reconsideration Plaintiffs; order to show and cause BACKGROUND a Underlying Claims promissory Ltd. (each, a "Note") . 05/25/2016 Decl., 18-4.) hold & (Doc. 118.) Plaintiffs' each (i) present action; directed towards Defendants.2 party Project filed a motion wherein it: to (iii) 2017, (Doc. 117.) 28-2, in note favor executed of the by non respective (PSMF, Doc. 44, SI 1; Tsouvelekakis SI 11; secured by see also a Docs. guarantee 18-1 through and indemnity 2 To date, Defendants themselves have failed to respond to the order to show cause set forth in the Summary Judgment Order. agreement executed subsidiary, of the Defendant respective (PSMF 5 6; Doc. mortgage (the by Newlead Holdings Newlead Castellano Plaintiff 18-5.) Ltd. creditor Each Guaranty, Ltd.'s ("NCL"), (each, in turn, over Defendant M/V Newlead Castellano, "Vessel") executed by NCL in favor Plaintiff creditor (each, a "Mortgage").3 see also Doc. Newlead wholly-owned of a in favor "Guaranty"). was secured by a IMO No. the 9686338 respective (PSMF SI 7; Doc. 18-6; 18-7.) Holdings Ltd. subsequently defaulted on Plaintiff Ray Capital's Note by failing to tender payments due thereunder by the maturity date, NCL's Guaranty. Doc. 18-5, notices of entities SI 59-80, default cure 32; with Answer, to Vessel's Capital their a SI SIS! 53, 25; timely statements to Doc. Ltd. (PSMF 1 8; Doc. 18-7, NCL, Compl. sent these within Tsouvelekakis on SI 23; having and the 05/25/2016 SIS! 53, 56, NCL also breached the terms (a) allowing significant debt Vessel; (b) failing to pay manner; (c) failing to maintain (d) Plaintiffs at 2.) the failing to provide audited where required; 3 Each Mortgage is registered with the Vessel's flag state, Liberia. call 15-1, defaults compare Am. 56.) inter alia: the 11; to Capital respective (PSMF SI against in Ray Holdings Decl. 31, Despite insurance coverage on the Vessel; financial Ray Newlead period. Doc. crew 3.) cure Livanos accumulate SI to of the Mortgages by, to entitled (PSMF SIS! 9-10; Livanos Decl., failed requisite Decl. at which and (e) the Republic of failing to maintain (PSMF 5 13; Vessel in a complete Swimmer 05/25/2016 Decl., Tsouvelekakis 05/25/2016 07/08/2016 Decl., Doc. at 18-6, the Doc. 2-30, Decl. 43-2, 64-93, 15 Doc. M 6-7, 122-53, 28-1, 10-12 (PSMF SISl 15-24.) Holdings Ltd. failure defaults and/or NCL Mortgages, 2016.4 NCL's breaches Plaintiffs the initiated the 1; see also to cure failed Based upon Newlead cure Notes, instant 18-27; their respective Guaranties, and/or action on April 19, (Doc. 1.) B. On under to repair. Tsouvelekakis & Ex. 157-85.) of SIS! 8-9, 37-38; these additional breaches. and state or Shipping about S.A. DHL's Underlying Claims October entered 27, into 2011, a DHL and charter party non-party contract Newlead for use of the non-party shipping vessel M/V Newlead Venetico "Venetico"). (DHL Project & Chartering Holdings Ltd., et al., Case No. Action"), the Doc. Venetico Group Co., 1, to Ltd. SI 13.) On December 8, non-party (the 4:16-CV-123 Zheijiang "Sub-Charterer") Limited (S.D. Ga.) 2011, a (the Newlead (the "DHL DHL sub-chartered Materials for v. DHL's Industry Fuel shipment of cargo 4 Plaintiffs subsequently amended their complaint such that they now assert the following claims against Defendants:. (1) a foreclosure claim pursuant to Ray Capital's promissory note and the Maritime Lien Act and the Ship Mortgage Act, 46 U.S.C. § 31301, et seg. ("Act"); (2) a foreclosure claim pursuant to Plaintiffs' preferred mortgages and the Act; (3) a foreclosure claim pursuant to Plaintiff Ray Capital's payment of seamen's wages; and (4) a breach of contract claim pursuant to Plaintiffs' preferred mortgages. (See Doc. 18.) from Australia to China. (Id. the Sub-Charter's cargo the Venetico detained Authority Loading was due to onto various eventually 1 15.) the by Venetico the alleged resumed on Shortly after loading of or on January Australian March about March subsequently 5, 2012. initiated Sub-Charterer alleged (Id.) DHL arbitration that it incurred the delayed delivery of its cargo. Action, Action Doc. 1-3.) against Newlead Shipping On NCL May and S.A., 3, 2012, Newlead the M Kong, 18-19; DHL Bulkers and wherein the the losses from see also DHL the Holdings S.A., 16.) in China on instituted Newlead St Sub-Charterer significant 2016, non-parties Plaintiffs' Hong (Id. 25, Inc., and Newlead Venetico Ltd.5 C. in and Safety (Id. Venetico commenced her voyage to the discharge port or 2012, Maritime deficiencies. about 4, Grand DHL Ltd., Venetico (DHL Action, Doc. 1.) Arrest and Attachment & Interlocutory Sale of Vessel Upon the filing of Plaintiffs' 19, 2016 in this case, the Court verified complaint on April entered orders directing the 5 DHL's complaint in the DHL Action alleges: (1) a contingent breach of contract claim against Newlead Shipping S.A., Newlead Bulkers S.A., and Grand Venetico Inc.; and (2) an alter ego claim against Newlead Holdings Ltd. for its alleged control of Newlead Shipping S.A., Newlead Bulkers S.A., Grand Venetico Inc., Newlead Venetico Ltd., and NCL. (DHL Action, Doc. 1, 11 2169.) DHL states that its breach of contract claim "is based on an indemnity claim for an arbitration award which may be issued against DHL in Hong Kong arbitration. Thereafter, and/or Grand Venetico Inc. DHL will pursue recovery against Newlead Shipping in London. [DHL] brings [the DHL Action] solely to obtain quasi in rem jurisdiction over [the defendants in the DHL Action] and security for its claims." (Id. 1 71.) issuance of a maritime Rules attachment and garnishment (Docs. Motion to which 1, Vacate Plaintiff's NCL wrongful also 8, an Vessel, but Vessel; and sought arrest. entered the for the maritime arrest - denied the 15.) Court July 2016, of also Plaintiffs' May and 3, resulting On July from 14, Rule Plaintiffs' denied 2016, attachment Plaintiffs' vacatur related to 15, arrest vacating for Admiralty or Maritime On damages (Doc. order 10.) and process for of the Vessel pursuant to B & C of the Supplemental Rules Claims. in warrant filed an filed the this C Vessel the Court of the attachment request for (Doc. a allegedly arrest B arrest of the Vessel.6 Plaintiffs of 2016, Rule NCL's NCL of damages On Motion Emergency 47.) for Reconsideration seeking to reinstate their arrest of the Vessel, while Defendants Reconsideration subsequently seeking the Vacate in its entirety. Court vacated addressing the that arrest grant (Docs. part of filed 49, its of a its 59.) Order Cross-Motion original On August 4, dated July for Motion 2016, 14, to the 2016 of the Vessel and reinstated Plaintiffs' 6 In vacating Plaintiff's arrest of the Vessel, the Court concluded that despite having demonstrated a valid prima facie admiralty claim with regard to its action to foreclose on the Mortgages and therefore their entitlement to attach the Vessel pursuant to Rule B - Plaintiffs had not demonstrated that they held a maritime lien that would entitle them to arrest the Vessel pursuant to Rule C(l)(a). (Doc. 47, at 3-7.) In denying NCL's request for damages related to the arrest of the Vessel, the Court held that, inter alia, NCL had "not shown that wanton (Id. disregard for Plaintiffs acted in bad faith, Defendants' rights" at 7-8.) 6 in seeking with malice, arrest under or with Rule C initial arrest of the Vessel.7 subsequently sold to ("Strategic") via proceeds (i.e., non-party interlocutory being confirmed by this the (Doc. Court Vessel's 64.) The Strategic admiralty on August substitute Shipping, sale, 16, with 48, 65, 66, 68, 70, that 2016 and the res) (the being deposited in the registry of this Court.8'9 see also Docs. Vessel was Inc. sale sales "Proceeds") (Docs. 73, 75; 79.) 7 In reinstating Plaintiffs' arrest of the Vessel, the Court noted that while Plaintiffs still had not demonstrated that they held a maritime lien on the Vessel, they had shown that they held preferred mortgages on the Vessel and a breach of at least one of those mortgages and thus were entitled to arrest the Vessel pursuant to Rule C(l)(b) in connection with 46 U.S.C. § 31325(b)(1). (Doc. 64, at 2-5.) Based on the foregoing and the admiralty claim created by 46 U.S.C. § 31325(b)(2)(A), the Court also denied Defendants' Cross-Motion for Reconsideration. (Id. at 6-7.) 8 More specifically, on May 26, 2016, Plaintiffs filed a motion seeking, inter alia, the interlocutory sale of the Vessel, which the Court granted on August 8, 2016. (Doc. 28; Doc. 48, as subsequently amended in part by the Court's Order dated August 4, 2016, Doc. 65 (as amended, the "Order for Sale").) As set forth in the Order for Sale, the interlocutory sale of the Vessel was warranted because of: (1) the great expense being incurred to keep the Vessel seaworthy (thereby deteriorating its value as collateral for Plaintiffs and other creditors); and (2) the limited tools available to the Vessel's crew to prevent corrosion and other physical deterioration. (Doc. 48.) See Fed. R. Civ. P., Supp. Adm. R. E(9)(a). Notice of the sale of the Vessel was duly published by the United States Marshal for the Southern District of Georgia, Savannah Division 70-1.) (the "Marshal") On August 8, 2016, pursuant to Local Admiralty Rule 4. (Doc. the sale of the Vessel was duly conducted in accordance with the Order for Sale by the Marshal at the premises of the entrance to the United States District Court, Savannah, Georgia. (Doc. 66.) At the sale, Strategic presented a bid of $7,400,000.00 (plus the current market price of any fuel or gas oil of its delivery to the successful and was the highest bidder capable August 8, 2016, Strategic presented for payment of the remainder of its remaining on board the Vessel at the time bidder) (collectively, the "Sale Price") of performing at the auction. (Id.) On $1,000,000.00 to the Marshal as security bid. On August 11, 2016, Strategic made a wire transfer to the Clerk of Court in the amount of $6,400,000.00 to be applied towards its bid upon the successful confirmation of the August 8, 2016. The Court confirmed the sale of the Vessel to August 16, 2016 (the "Confirmation Order"). (Doc. 75.) As set Confirmation Order, any claims in the Vessel existing on the sale held on Strategic on forth in the date of the Confirmation Order - including those claims held by Plaintiffs and other lienors - were terminated and the Vessel was sold to Strategic "free and clear of all liens and encumbrances," but any claims terminated thereby "would attach in the same amount and in accordance with their priorities to the proceeds of the sale as provided in 46 U.S.C. § 31326(b) . . . ." (Id. D. DHL's Attachment, Upon Action of October 25, 2016, for to 14, 2016, of verified Court maritime Rule however, the and Settlement in the DHL Action DHL's the pursuant attachment Vessel complaint entered orders attachment B. (DHL the DHL moved DHL directing the Doc. to Action. the garnishment Action, Plaintiffs in and in 2.) . vacate (DHL of On DHL's Action, Doc. Upon concluding that DHL had failed to demonstrate a prima facie admiralty granted claim Plaintiffs' garnishment Proceeds) of on December 5, vacating the 2016, Bill Vessel DHL Sale for required and in vacated and its 2016. moved under the B, DHL's res Action, Court and (i.e., Doc. reconsideration DHL Action, the attachment substitute (DHL for Rule of the 24.) On Order this which the Court (DHL Action, Docs. 27, 42.) On August 19, of 18, attachment recently denied.10 at 7-8.) as motion November its a of process Vessel 16.) filing on May issuance the the Vacatur, 2016, the the Marshal executed and delivered to Strategic Vessel. (Doc. 79.) The Vessel was delivered to Strategic on August 21, 2016. (Swimmer 09/27/2016 Decl., Doc. 86-1, 1 8.) 9 During the pendency of this action, Plaintiffs have filed several motions seeking the authorization of certain in custodia legis expenses incurred by Plaintiffs during the Vessel's arrest from April 19, 2016 through August 21, 2016, in the total amount of $704,690.91. (Docs. 28, 69, 86.) The Court has granted each of these motions, for a total amount of authorized in custodia legis expenses incurred by Plaintiffs to date of $704,690.91. (Docs. 48, 81, 97.) Plaintiffs have also filed several motions requesting the disbursement of funds from the Proceeds to satisfy these in custodia legis expenses, which the Court has granted. (Docs. 77, 81, 101, 108.) Notably, while the Court did not authorize DHL to incur any in custodia legis expenses in connection with the arrest/attachment of the Vessel, and ordered that DHL be reimbursed from the Court exercised its discretion the Proceeds for the advanced for the post-arrest care of the Vessel, namely $84,462.20. Action, Doc. funds DHL (See DHL 38.) 10 In its motion for reconsideration of the Order vacating its attachment of the Vessel, DHL states that it and the Sub-Charterer entered into a "confidential settlement agreement" on December 1, 2016 whereby, inter alia, 8 On February 22, 2017, DHL filed Final Judgment" in the DHL Action, entered into a DHL in the obligated "Motion for to DHL DHL Action, in whereby, the amount inter of alia, NCL: defenses, ownership interest in the Proceeds see also Settlement Agreement, & 2(C); Power in Motion its Decl., Doc. for Entry executed a "Consent styled a as represented (DHL DHL by is Action, U.S. Doc. Doc. 33, 27, the at 3-4; due at Doc. 1-2, Final is see 33 at and to 3-5.) Doc. 27-1, has (c) DHL (up that to to (DHL Action, that which has incurred by DHL admitted Sub-Charterer in the DHL Action, 2.) fact also (b) 118-1 at 4-14, Judgment the who 2; SI Judgment" to counsel DHL Action, obligated to of at Entry of Stipulation Action, Judgment, for 118-1 Doc. is and counterclaims DHL in the present action and the DHL Action).11 33; (the (a) $2,371,491.15; the amount of $2,371,491.15 plus any costs and fees Doc. 2017 with NCL with regards to the claims made with respect to the claims against i t by Plaintiffs; its of wherein i t states that i t has assigned to DHL all of NCL's rights, assigned Entry settlement agreement dated February 17, "Settlement Agreement") by a also it "has [NCL] this SISI 2 stated and not NCL been is not Court." Consent for Finally, DHL requested amount of II 14(c) Entry $250,000.00. & 24.) the Court upheld the vacatur of DHL's attachment because - of (DHL Nonetheless, as originally set forth in the Court's Order vacating DHL's attachment - DHL's claims in the DHL Action were unripe at the time it sought attachment of the Vessel. (See Doc. 11 42, at 4-10.) Notably, DHL failed to file a copy of the Settlement Agreement in connection with its Motion for Entry of Final Judgment. Approximately one month later, however, DHL filed a copy of the Settlement Agreement in connection with its present motion for reconsideration of the Summary Judgment Order. (See DHL Action, Doc. 33; see also Settlement Agreement.) that "Final amount of Judgment be entered in $2,371,491.15 against form Judgment" which DHL "Proposed Final the attached as Judgment") . denied Judgment or DHL's Consent for Entry Action, Doc. of to enshrine the Judgment in a its Doc. at 33-1.) (the 2; see The Court Proposed Settlement the Final motion 33, the judicial in proposed to Doc. enter ... the exhibit DHL Action, request otherwise of (DHL Action, also Proposed Final Judgment, recently an [NCL] Final Agreement decree. (See and DHL 43.) E. DHL's Attempts to Consolidate & Intervene On the July 28, Vessel, DHL 2016, shortly before the interlocutory sale of filed a motion with the instant action. 2016, the Court denied to consolidate (DHL Action, DHL's Doc. motion to the 11.) DHL Action On August 25, consolidate on the grounds that the two actions did not present common questions of law or 2016, fact. DHL Federal 4, filed Rule 2016, (DHL Action, the of a motion Civil Court to Doc. at intervene Procedure denied 13, 3-4.) in this 24(a). (Doc. DHL's motion to On case September 8, pursuant to 80.) On intervene October on the grounds that DHL had failed to demonstrate a sufficient interest relating to the property or transaction which is the subject of this action. (Doc. 94.) On October 11, 2016, DHL filed its Notice of Interlocutory Appeal and a motion to stay this action 10 pending the November 2, Eleventh 2016, Circuit Motion to the resolution Stay Decision November 18, the that United entered an Pending Appeal on the 2016, pending appeal. Circuit issued October 5, case [this to of this (Doc. its 2016 Stay Court] On July judgment.14 8, (Doc. an 109.) On July vacating DHL's intervention sees The Eleventh reconsideration pending appeal. Appeals DHL's for Pending 107.) On motion to 2017, the "Emergency (Doc. DHL's On the Court's stay Eleventh Order dated and "remand[ed] fit in light the of the Motion for Summary Judgment Plaintiffs 43.) Circuit 99.) (Doc. 126, at 3; Doc. 127.) filed On July their motion 21, Defendants to conduct factual discovery, 12 6, this it 98, Interim Order denied to proceed as 2016, of denying and for also Plaintiffs' Court Order Court current status of the case."13 F. States (Docs. Application."12 mandate denying appeal. also denied of the Eleventh Circuit's (See Doc. 110.) 2016, so for as summary to allow Defendants were granted DHL's subsequent Order denying motion the motion for for stay 13 (See Doc. 126, at 3 ("In short, a lot has happened since the district court entered the order that is district court to take now before us. We think the best another look at its denial of course DHL's is for the motion to intervene in view of all that has happened since it ruled on that motion. Because the same district court judge is hearing both cases, he is in a good position to determine which of the motions pending before him [DHL Action] they and the current case - should be decided. So in both the should be decided in which order and how we vacate the order denying DHL's motion to intervene and remand the case to the district court to proceed as i t sees fit in light of the current status of the case. In doing so, we imply no view on how the motion to intervene should be decided.").) 14 On July 11, 2016, the Clerk of this Court sent a notice to Defendants advising them of the summary judgment motion and the summary judgment rules, their right to file affidavits or other materials in opposition, and the consequences of default. (Doc. 45.) 11 until October summary 2016 judgment. Defendants' record 14, withdraw (Doc. counsel after to filed having on August respond 55, at their provided 30, to Plaintiffs' 2. ) On motion to 2016. (Doc. with 83.) On the Court granted counsel for Defendants' its Order, counsels' the Court withdrawal, specifically they would therefore unable to proceed.15 September withdraw Defendants (Doc. as 16, counsel of intent to their October that left 95.) for 2016, 5, 2016, motion to withdraw; noted be motion upon in their unrepresented and To allow Defendants sufficient time to secure new counsel and respond to Plaintiffs' motion for November 4, judgment.16 have (b) summary judgment, 2016 to (Id. at 2.) new counsel respond respond to enter or the Court granted Defendants until to Plaintiffs' motion for summary Nonetheless, Defendants failed to: a notice otherwise of appearance defend against in this case; Plaintiffs' (a) or motion for summary judgment. On merits evidence Summary March of 20, 2017, Plaintiffs' submitted Judgment in Order after a motion support thorough for summary thereof, granting consideration summary the judgment Court judgment of the and the entered the in favor of 15 See Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (a corporation may not proceed pro se or by a representative or agent of the corporation). 16 In its Order - a copy of which was mailed to NCL's Vice President of Claims and Risk Management, Mr. Spyros Theodoropoulos - the Court explicitly noted that Defendants' "[f]ailure to timely respond to Plaintiffs' motion for summary judgment may result in Plaintiffs' motion for summary judgment being deemed unopposed." (Doc. 95, at 2.) 12 Plaintiffs on all conclusion of the Plaintiffs to "perfect balance 2017. of their (Id. entry of denying at of their Summary 17.) Judgment the claims claims. record against . . damages for Plaintiffs' concerns regarding counterclaim for wrongful cause as to with prejudice; the In Court with the ordered regards the March through to 20, why: and (b) viability of and therefore claim should this case closed. 2017, of the arrest of the Vessel - it had the such arrest ordered them to not be dismissed (Id. at 18.) briefing and evidence demonstrating the balance of their claims Defendants Defendants, as however, cause. Plaintiffs Defendants' supplemental show 21, and the Orders alleged wrongful arrest" (a) Plaintiffs their against March . 116.) The Court also noted that - in light of the summary judgment in favor of "serious On Order, Defendants" Vessel and reinstating Plaintiffs' show (Doc. directed failed to Rather, on March by filed the Court. respond to 30, 2017, the DHL, (Doc. Court's 117.) order purporting the "assignee of the defenses and counterclaims of to to be [NCL] in this action" filed a motion wherein it: (i) renews its prior attempts to seeks intervene grant of Defendants; in this summary and action; judgment (iii) (ii) in purports to favor of Plaintiffs respond to to show cause directed towards Defendants. 13 reconsideration of against the Court's (Doc. 118.) the order II. A. As more fully dated October matter of "should DHL's 4, (Renewed) explained 2016, right DHL be Defendants, Plaintiffs' over of money DHL, from claims against Notably, Vessel and 80, 6-7; M that DHL English the to Rule now-vacated sought to intervene by arguing 24(a)(2) on Order their claims as a that, against therefore which DHL (Doc. there can 94, will be recover at 6-7; on less its (or no) unrelated see also Doc. 80, 11 this argument relied on DHL's attachment of the its substitute res (i.e., see also DHL Action, does law Court's liens on the Proceeds will have priority [NCL]." 6-7.) in successful and available Motion to Intervene originally pursuant Plaintiffs those DISCUSSION not - hold which a Doc. maritime governs the the 38, lien charter Proceeds). at on 11 n.5 the (See (concluding Vessel party Doc. because agreement upon which the DHL Action relies - does not grant a maritime lien for breach of charter party); attachment, however, reconsideration Docs. 24, Here, pursuant similar of Doc. 116, at 16 n.14 (same)). DHL's was subsequently vacated and its motion for that vacatur has been denied. (DHL Action, 42.) DHL's original to Rule 24 (a) and renewed motions are due to be for intervention denied for to that originally expressed by the Court vacated Order dated October 4, 2016 14 (see doc. 94, reasoning in its nowat 4-9; see also doc. 126, at 3); because DHL - - is not a party to the Notes, not have a that it and/or has a transaction Chiles the is interest the Thornburgh, v. which 865 F.2d that: (1) his has of failed to to present 1213 (11th to intervene property Cir. is those action. of right under Rule application in demonstrate the the 1197, own claims its interest relating subject party seeking to intervene as show DHL for or Mortgages and does independent Vessel, sufficient least Guaranties, legally-protectable instruments at See 1989) 24(a)(2) timely; or ("A must (2) he has an interest relating to the property or transaction which is the subject of the action; disposition of the action, impair his interest the is suit." Rehab. ability to as (3) he is so situated a practical matter, protect that interest; that may impede or and (4) his represented inadequately by the existing parties to (citations Servs., omitted)); State of Fla., Worlds v. 929 F.2d 591, ("In determining sufficiency of interest, Dep't 594 this of Health (11th Cir. circuit & 1991) requires that the intervenor must be at least a real party in interest in the transaction interest legally has Cir. v. also citations, Sandy Lake 2005) ("[A] is been protectable quotations, Co. which the subject described interest in of as the the a proceeding. direct, Properties, Inc., substantial, proceedings." and footnotes omitted)); 425 F.3d Mt. 1308, This (internal Hawley Ins. 1311 (11th legally protectable interest is something more 15 than an economic omitted) ) . interest." Moreover, November 18, 2016, may had in have as any the (internal quotations noted by the independent Vessel and/or Court right the in or and its citations Order interest Proceeds dated that resulting DHL from its attachment is no longer in existence based on the vacatur of that attachment. In its that it (See Doc. 109, renewed motion to intervene, must be allowed to intervene position as the assignee of . . [and] at 6-7; renewed more of however, at 4.) [NCL's] also motion the it to Settlement intervene Defendants' is more Rule "[o]n based SI to 25(c) on interests rather pursuant to Rule interest is transferred, 24(a).17 See the a transferee to be in than the action the original party."); 17 Plaintiffs argue that in DHL's renewed attempt of one or lawsuit, motion to substitute to intervene may see also Virgo v. DHL's motion a the . Because present Fed. R. Civ. substituted DHL's 118, transfer P. be against the original party unless the court, the of (See Doc. 2(B).) properly considered a pursuant basis [Proceeds]." Agreement is the DHL now argues defenses and counterclaims ownership interest in the see however, 25(c) ("If an continued by on motion, action or or orders joined with Riviera Beach Assocs., to intervene is improper because, inter alia, NCL's alleged assignment of its "rights, defenses, and counterclaims" in the present action to DHL is void because the Notes, Guaranties, and Mortgages allegedly prohibit assignment without the respective instrument-holder's consent. (Doc. 122, at 17-21.) In response, DHL argues that the defenses and counterclaim allegedly assigned to it by NCL "are not contractual claims, but are claims which arise out of tort." (Doc. 125, at 8.) For the purposes of this Order, the Court has assumed - without deciding - that the aforementioned assignments are effective. 16 Ltd. , 30 F.3d authorizes a 1350, 1358 substitution (11th of Cir. parties 1994) after ("Rule a 25(c) transfer of interest has occurred/') . "Rule 25 not is a procedural rule of substantively Telecomm Tech. 1999 WL the at Grain "[a] Rather, Servs. 696011, Covington alter a Inc. *3 party's v. Siemens Rolm Commc'ns Inc., (N.D. Co. , 638 Ga. F.2d party" continuance of and the rights July 6, 1357, substituted party steps original convenience only and does the action as proceeding against the substitute party. F.2d under 513, 516 Rule 25(c) trial court." 2488302, at at 1357). (5th Cir. is *7 (S.D. "The 1971). committed FDIC v. "The to Court Aug. may 13, in 2009) its substituted for the original party, joined as an additional party." Here, intervene, the Court Rule 25(c), DHL that does not to a Lending, new Brennan, of a LLC, order 437 motion of the 2009 WL 30 F.3d that the that the transferee be that the transferee be that DHL's renewed motion to a motion to substitute pursuant to should be granted. notes a Id. concludes when considered as or of (citing Virgo, original party continue the action alone, re 1981)). discretion discretion In position opposed sound 1, considered is disposition the Cir. same Ransom v. Bristol Home Mortg. Fla. the No. (citing (5th substitution original liabilities." 1999) 1361 into or In doing so, however, allege 17 that it has the Court received a full assignment of NCL's Agreement 1 2(C) in and in (" . . . [NCL] ownership of the Amount (emphasis added)).) the Proceeds. (See Settlement irrevocably assigns its interest up [Proceeds] [i.e., Settlement added as interest to $2,371,491.15] Accordingly, an additional defendant, the the plus Court amount DHL['s orders of the c]osts." that DHL be with the express understanding that DHL's rights and obligations upon being added to this case are derived from those assigned to indeed, shoes' as noted by DHL itself, of the assignor." B. In grant its of pursuant DHL's motion, summary to Rule DHL 59(e) manifest injustice. 125, at 6.) reconsideration to based Plaintiffs seeks reconsideration the 'excusable neglect' pursuant of the summary judgment motion." of the against Court's Defendants on newly-discovered evidence (See Doc. 118 at 7-8.) DHL 'steps into the for Reconsideration seeks judgment by NCL and nothing more; "DHL as assignee (Doc. Motion it [NCL] to for Rule and In the alternative, 60(b)(1) failure to "based on timely oppose (Id. at 8 n.4.) A party may seek to alter or amend a judgment in a civil case within twenty-eight days after the entry of the judgment. Fed. R. Civ. P. 59(e). Because reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly, a movant must set forth facts or law of a strongly 18 convincing nature decision. Bostic July 31, to v. 2012). relitigate induce the 2012 Astrue, A Rule old matters, court WL 59(e) to reverse 3113942, motion raise argument its prior at (S.D. Ga. not may *1 be used "to or present evidence that could have been raised prior to the entry of judgment," as only grounds discovered v. King, for evidence 500 omitted). granting or F.3d Nor is Rule manifest 1335, Rule a errors 1343 59(e) see also 108 F. Bostic, Gold Supp. Cross 3d has for thought DHL v. or Cir. newly- fact." 2007) appeal, to ask — at *1 Arthur (quotations (citations Children's (S.D. through citations, App'x 976 (11th Cir. Here, 1379 an law are for refuting the court's prior 3113942, Inc. reconsideration already quotations, not motion "a vehicle for rehashing arguments WL EMS, 1376, reconsideration is motion 2012 of (11th already rejected by the court or decision." 59(e) "the Ga. 2015) and thus the Hosp. Court rightly or of ("[A] it is to omitted); Alabama, motion improper on a rethink wrongly." and alterations omitted)), for what it (internal aff' d, 648 F. 2016). has failed to demonstrate newly-discovered evidence or manifest errors of law or fact that would justify a finding that Judgment Order. the Court for amend or alter DHL asserts that "new facts DHL as assignee of its motion should [NCL's] defenses reconsideration. Summary . . . obtained by and counterclaims" support (Doc. 19 its 118, at 8-22.) Yet none of the facts proffered by DHL are newly-discovered; have been their available responsive and/or could have been motion for such, Defendants pleadings Defendants As to DHL or through timely presented summary judgment. time otherwise 118-1 filed to mechanisms opposition Docs. they available discovery in (See the they to and Plaintiffs' through 118-7.) these facts are not a proper basis for reconsideration 59(e) motion cannot raise argument or prior to entry omitted)); 772, were civil of the Summary Judgment Order. Rule since rather, the be present of See Arthur, used to relitigate evidence that judgment." 500 F.3d at 1343 could have (citations see also Osaigbovo v. Bank of Am. 774 (11th Cir. 2016) ("Osaigbovo and his affidavit, but matters, been raised and Corp., alterations 671 F. App'x attached postjudgment motion copies of bank statements, correspondence, old ("A to his several pieces of those documents did not constitute newly-discovered evidence because they were available to him when v. J&J he Snack filed his Foods ("Distributors complaint."); Corp., relies on ICEE 445 F.3d 841, facts that were easily discovered before summary judgment. Distributors, 848 (5th plainly Cir. Inc. 2006) available or . . . The events in question did not occur after summary judgment; and no reason is offered that knowledge of these events was beyond Distributors' reach then. before The District 20 Court therefore did not abuse its discretion by refusing to consider Distributors' newly proffered evidence."). Similarly, to prevent 'default' manifest of demonstrate justice Supp. DHL's argument that "reconsideration is required [NCL]" a 3d at is "clear demand 1380. and summary judgment, - but reconsideration. be (11th used not 1998) raise Gold v. Wall, 135 DHL where Cross effective has EMS, failed to interests of Inc., the is Defendants not Lockard v. ("Motions a F. 108 Equifax, for arguments F.3d 1438, in opposition to proper Inc., basis 163 reconsideration which could been made before the judgment was issued." Stone th[e] DHL simply raises arguments that were raised by - legal by because error See which See Cir. to obvious Rather, to caused unavailing correction." available 1267 injustice 1442 and for F.3d 1259, should should not have (citations omitted)); (11th Cir. 1998) ("The purpose of a Rule 59(e) motion is not to raise an argument that was previously Co. v. Cir. out Glenn 1985) errors available, Estess but not & Assocs., pressed."); Inc., 763 Am. Home F.2d 1237, Assur. 1239 (11th ("There is a significant difference between pointing in a court's decision on grounds that have already been urged before the court and raising altogether new arguments on a motion affords a omitted)). to amend; litigant if 'two Importantly, accepted, bites contrary 21 at to the the latter apple.'" DHL's essentially (citations insinuations that this Court simply Defendants as entered summary judgment by default a penalty for their failure to respond, reached the merits of Plaintiffs' against the Court motion and entered judgment in favor thereof based on the evidence introduced in support of the motion and the thereto.18 facts admitted by Defendants' (See Doc. 116.) failure to respond That DHL is bound by the operation of law is not a manifest injustice.19 Nor is it a manifest 18 See United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004) ("[T]he district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion. The district court need not sua sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensure that the motion itself is supported by evidentiary materials. At the least, the district court must review all of the evidentiary materials submitted in support of the motion for summary judgment." (citations omitted))/ cf. Trustees of Cent. Pension Fund of Intf1 Union of Operating Engineers & Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1040 (11th Cir. 2004) ("It is apparent that the district court did not examine the merits of this case, but instead granted summary judgment by default merely because it believed [the defendant] had filed no response. Because summary judgment cannot be granted as a sanction for merely failing to file a response to a motion for summary judgment, we vacate the judgment of the district court with respect to Count II." (footnote omitted)). 19 See LR 7.5, SDGa. ("Failure to respond within the applicable time period shall indicate that there is no opposition to a motion."); LR 56.1, SDGa. ("All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by a statement served by the opposing party."); Fed. R. Civ. P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made of the motion only), admissions, interrogatory . . ."); Fed. R. Civ. P. 56(c)(3) ("The court materials, but it may consider other materials P. 56(e) ("If a party fails to properly support for purposes answers, or other materials . need consider only the cited in the record."); Fed. R. Civ. an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: ... (2) consider the fact undisputed for purposes of the motion; [or] (3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it . . . ."); see also Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632-33 (11th Cir. 1988) (upholding district court's grant of summary judgment and denial of motion for reconsideration where nonmoving party failed to file opposition to motion for summary judgment and failed to "specifically direct the district court's attention to any 22 injustice that in-interest; left, not motion it DHL where for is bound by the missteps steps DHL into wishes reconsideration NCL's they shoes had pursuant of where been. to its predecessor- they have Accordingly, Rule 59(e) is due been DHL's to be denied. DHL also should be granted ^excusable summary to for that, in pursuant neglect' of Defendants' summary who [Rule] (Doc. 118, "reconsideration 60(b) (1) failure to at to 8 based n.4.) respond to the oppose timely on the In an attempt Plaintiffs' motion submitted the declaration of non Ltd.'s alleges alternative, for DHL has Holdings Despotopoulou, to failure judgment, Newlead the [NCL] judgment motion." explain party argues Chief that Financial NCL's failure Officer, to Eleni respond to [rebuttal] evidentiary material" that allegedly existed in the record at the time of grant of summary judgment); Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) ("[A] party contesting summary judgment has a responsibility . . . to highlight which factual averments are in conflict as well as what record evidence there is to confirm the dispute. . . . [J]ust as a district court is not required to scour the record looking for factual disputes, it is not required to scour the party's various submissions to piece together appropriate arguments. A court need not make the lawyer's case." (internal quotations and citations omitted)); Waldridqe v. Am. Hoechst Corp., 24 F.3d 918, 920-22 (7th Cir. 1994) ("[B]ecause summary judgment is not a paper trial, the district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. The parties, in turn, bear a concomitant burden to identify the evidence that will facilitate this assessment. [D]istrict courts are not obliged in our adversary system to scour the record looking for factual disputes and may adopt local rules reasonably designed to streamline the resolution of summary judgment motions. We have repeatedly upheld the strict enforcement of these rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's Dunkel, version 927 F.2d 955, of the 956 facts." (citations (7th Cir. 1991) for truffles buried in briefs."). 23 omitted)); United States v. ("Judges are not like pigs, hunting Plaintiffs' motion leadership and 118-2, Doc. was lack SI 60 caused by cash flow. of ("Despite changes in (See Defendants' Newlead Holding's Despotopoulou active Decl., participation this action up to the improper withdrawal of its counsel, change in leadership Zolotas resigned as was not issues cash Castellano's Castellano as CEO flow income was Newlead Holdings during that due to time (Mr. CEO of Newlead Holdings in October 2016, reinstated with at until the resulting earning unable to end from asset of the - December seizure the immediately retain Vessel, new and 2016) , of in and Newlead Newlead counsel or respond to the Plaintiffs' motion for summary judgment.").) Rule such 60(b) terms party's provides as legal are just, in relevant the representative court from part: may a (1) surprise, or excusable neglect . . . ." "[F]or purposes of Rule 60(b), to encompass filing situations deadline is (citing Pioneer attributable Inv. Servs. a mistake, to negligence." 71 F.3d 848, 850 Co. P'ship, 507 U.S. 380, 394 (1993)). v. to order, a or 60(b)(1). is understood comply with a Cheney (11th Cir. Brunswick or inadvertence, Fed. R. Civ. P. failure and upon party judgment, 'excusable neglect' in which the Anchor Glass Container Corp., relieve final proceeding for the following reasons: "On motion v. 1996) Assocs. Ltd. "[W]hether a party's neglect of a deadline may be excused is an equitable decision turning on all relevant circumstances surrounding the party's omission 24 . . . includ[ing] length of the danger of prejudice to the opposing party, the proceedings, delay and potential the reason for the delay, within the reasonable movant acted alterations its in control good omitted) of faith." the Id. impact judicial including whether it was movant, whether the quotations and and (internal (citing Pioneer on the Inv. Servs. Co., 507 U.S. at 395). Here, the demonstrate respond to Court Defendants' Plaintiffs' filed their motion Doc. 43.) notice excusable motion for On July 11, 2016, of the thereto. (Doc. to motion DHL has for On to neglect in failing summary judgment. July 8, to to timely Plaintiffs 2016. (See Defendants were provided explicit summary July 21, judgment, Plaintiffs' 2016, the deadlines the Court extended the motion from August 1 to October 14, 2016. further extended the failed and the consequences of failing to respond 45.) respond that for summary judgment on associated therewith, window concludes (Doc. for 55, summary at 2. ) judgment The Court window to respond to November 4, 2016 and again reminded Defendants that "[fJailure to timely respond to Plaintiffs' motion for summary judgment may Plaintiffs' motion . . . being deemed unopposed."20 20 This extension Defendants' was granted counsel to withdraw. On Drugs & Cosmetics Corp., sua sponte in See J.D. Pharm. 893 F.2d 1201, 1209 connection Distributors, (11th Cir. result in (Doc. 95, at with allowing Inc. v. Save- 1990) ("It is generally recognized that a trial court has wide discretion to control its docket, and that decisions of the trial court as to matters such as the 25 2.) Nonetheless, for summary the Court delayed ruling on Plaintiffs' judgment extended deadline. two-hundred anything prior and in to for (See Doc. fifty days opposition its another 116.) to to four do months Indeed, so, summary judgment accordingly, - let not to the alone reason evidence timely receive for in the deadlines thereof), or the alleged irrelevant Holdings because motion.21 - of the of - it was failing leadership was NCL at - obligated been no that and Defendants motion to not to motion (or argument for the respond to summary thereto. Ltd. non-party respond did extensions Newlead Holdings and file circumstances has associated therewith in that there thereof to and/or DHL's favor. Plaintiffs' consequences changes Ltd. support notice judgment, The the delay, twice- despite having over failed length of delay do not weigh in Defendants' As this Defendants Plaintiffs' adjudication; past motion are Newlead Plaintiffs' Further, as to the bald assertion of "issues with cash amount of time a litigant should be given to obtain counsel are reviewable only under an abuse of discretion standard."). 21 Notably, Action, in support of its Motion for Entry of Final Judgment in the DHL DHL asserted that Mr. Zolotas never resigned from his position as president and director of NCL. (See DHL Action, Doc. 39, at 6-7 ("Indeed, despite Mr. Zolotas' resignation from Newlead Holdings [Ltd.] in October [2016], he remains the President and Director of [NCL]. Attached hereto as Exhibit 1 is [a] true and correct copy of Apostilled corporate minutes from the Republic of Liberia confirming that Michail Zolotas acts as the President and Director of [NCL] since 2013. Attached as Exhibit 2 is a true and correct copy of a Certificate of Good Standing for [NCL] dated March 16, 2017. The Non-Party movants have not filed any documentation which evidences a resignation or other change of authority at [NCL].").) Indeed, DHL has submitted the declaration of Mr. Michail Zolotas himself, who states that: (1) he has "been and remain [s] the President and Director of [NCL] since its formation in July 2014;" and (2) that "Mrs. Anna Zolota was appointed as the CEO, President, Chairman of the Board and Class I Director" of Newlead 26 flow resulting from the seizure of situation of mistake, carelessness, or [the Vessel]," this inadvertence, faultless omission, surprise, but rather is not a indifference, a choice as to where to prioritize the expenditure of allegedly limited funds. See Fed. R. Civ. 388 ("The simple, Ato to of undone carelessness.' The Servs. ^neglect' a matter, leave or, or word Dictionary 791 Ackermann be v. an end to is 507 U.S. *to little the point unattended therefore give to at for especially encompasses more commonly, both omissions (quoting Webster's Ninth New Collegiate (1983)) United Co., closer to faultless omissions to act and, caused by carelessness." must Pioneer Inv. meaning respect' purposes, through 60(b)(1); ordinary attention or our P. (alterations States, 340 litigation U.S. omitted)); 193, someday, 198 and see (1950) free, also ("There calculated, deliberate choices are not to be relieved from."). As to Defendants' alleged lack of circumstances outside of where to cash flow and failure to of their inadvertence, culpability for its inaction, their own making as control; indifference, prioritize the again, or retain new counsel are opposed to this was carelessness, expenditure of Defendants' not but funds. a circumstance a situation of a choice as to it is Indeed, Holdings Ltd. during his absence from that company from October 19 through December 2016. 23, (Zolotas Decl., Doc. 118-6, II 1-4.) Mr. Zolotas provides no insight as to why NCL took no action to retain counsel or otherwise defend against Plaintiffs' motion for summary judgment. (See id., generally.) 27 Defendants' failure that them landed for their 83.) in prior Finally, good there deadline their instant lawsuit been no for to do summary Defendants neglect; the to can Plaintiffs' again therefore, delayed so. In sum, judgment and is failure that that grounds 1, to 40, was left DHL as their was a simply deliberate upon an with not a choice Defendants examination of the firm judgment motion; have factors priority opposed the of in this that action nonappearance and to into motion for the excusable record as their purported assignee - participation not case despite having high conviction made comply with the relevant as 41, respond was Defendants in this taking all the Docs. summary only note obligations i t is clear that responding to Plaintiffs' indeed, Court (See was retain new counsel or otherwise Court consideration, and showing had new counsel enter an appearance ample time financial withdrawal. has respond the pay to whether Defendants' to rather, the counsels' any attempts to timely into as faith, to a Defendants whole, - and have unnecessarily and exhibited a significant history unresponsiveness. Accordingly, the Court exercises its calm discretion and denies DHL's alternative Rule 60(b)(1) motion.22 22 While not argued by DHL, Rule 60(b)(6) because it DHL would not be entitled to relief pursuant to has failed to demonstrate extraordinary or compelling as to require relief. Fresh Produce N.A., Inc., 741 F.3d 1349, 1355 circumstances so See Aldana v. Del Monte (11th Cir. 2014) ("Rule 60(b)(6) provides a catch-all, authorizing a court to grant relief from a judgment for 'any other reason that justifies relief . . . . [but motions under that Rule] must demonstrate that extraordinary to warrant relief . . . 28 the [a] circumstances are sufficiently justification so compelling that C. Defendants' Counterclaim for Wrongful Arrest & DHL's Response to the Order to Show Cause In the Summary Judgment Order, to show against this cause in favor dated DHL, then that: Court 2016 (doc. assignee directive grant assert of as an summary that, once on each their denied the Vessel in and (iii) the of 64, at of NCL's judgment Court the Vessel 2-5). to in (Doc. relevant attack favor vacates against its Court its 116, the of Plaintiffs decision had Order at basis for Order interests, of its in and been damages of arrest had claims 7-8); at arrest prejudice judgment previously invitation the of wrongful with summary arrest 47, (doc. dismissed (i) had initial 2016 purported this Court's the 4, be Plaintiffs Plaintiffs' August as taken 14, counterclaim for not alleged wrongful July reinstated given of (ii) Plaintiffs' why their should closed Defendants; dated to Plaintiffs case entered as the Court ordered Defendants on 18.) has the and the grant of summary judgment and relieves DHL of the facts admitted by Defendants' failure to respond to Plaintiffs' motion for the district court was required to vacate its order." (internal quotations, citations, and alterations omitted); see also Doe v. Drummond Co., 782 F.3d 576, 612 (11th Cir. 2015) ("To warrant relief under Rule 60(b)(6), not only must Plaintiffs show 'sufficiently extraordinary' circumstances, 'that absent such relief, an extreme and unexpected hardship will (quoting Galbert v. 2013)))/ United W. Caribbean Airways, States v. Alpine Land 715 F.3d 1290, & Reservoir Co., 1294-95 984 F.2d but also result.'" (11th Cir. 1047, (9th Cir. 1993) ("Although the timeliness of a Rule 60(b)(6) motion on the facts of each case, relief may not be had where the party reconsideration has ignored normal legal recourses. . . . Rule relief normally will not be granted unless the moving party is able 1049 depends seeking 60(b)(6) to show both injury and that circumstances beyond its control prevented timely action to protect its interests."). 29 summary judgment, fact as Doc. 125, of the to there would exist a genuine issue of material Defendants' 9-10.) Court's counterclaim. This, however, directive; clear in the Summary show, in light of the Doc. 118, at 22-25; the purpose or intent was not the rather, Judgment (See Court's Order - aforementioned was command - for rulings motion, Defendants Accordingly, arrest of because the have Vessel was done basis for arrest is were failed facts summary judgment untenable F.2d principle of faith." to 411 Panama (11th maritime provided 297 failed upon have establish Defendants' v. to which been that law he (5th Cir. Energy 1988) Plaintiffs' and the that one who is wrongful Furness Assocs., an suffers Withy Inc., established a wrongful from the party who obtained the prove that such party Frontera Fruit Co. 1937) of any other for See ("It so. arrest the Sys. do sustained counterclaim World Cir. (citations omitted)); 293, claims premised attachment may recover damages attachment, have and due to be dismissed. Inc., 410, DHL in bad faith or otherwise demonstrate liability, (Chartering), and Plaintiffs' Vessel Defendants/DHL F.2d the to how their counterclaim for wrongful arrest could survive dismissal. 854 Defendants and admitted by their failure to oppose Plaintiffs' as made ("The gravamen acted in v. Dowling, of the right bad 91 to recover damages for wrongful seizure or detention of vessels is the bad faith, malice, or gross 30 negligence of the offending party. . . . [T]he advice of competent counsel, and acted upon action for Corp. v. (5th Cir. there in good malicious Raider 2015) ("To be and 2) [sic] negligence on the quotations, no bona a In judgment Plaintiffs' its in Summary favor a fide of see claim of of the bad also 792 wrongful footnotes, C(l)(b); complete defense L.L.C., for showing part P.Supp. Adm. R. D. alone Logistics, recover citations, R. Civ. (1) is prosecution."); Marine must vessel faith honestly sought a Comar F.3d arrest maritime faith, offending 574-75 a vessel, lien malice, on or party." § the gross (internal and alterations omitted)); 46 U.S.C. an Marine, 564, of to Fed. 31325(b)(1). Supplemental Briefing & Amounts Due Judgment of Order, Plaintiffs, after the entering Court directed summary them to perfect the record with admissible evidence with regards to the balance of their claims against Defendants that Order (i.e., March 20, 2017).23 23 In the Summary Judgment Order, the through the date of Plaintiffs have done so.24 Court concluded that "Defendants' default on the terms of the respective Mortgages entitles Plaintiffs to foreclose on the Vessel up to the maximum of the amount secured thereby pursuant to 46 U.S.C. § 31325." (Doc. 116, at 14.) The amount secured by Ray's Mortgage is $1,861,412.00 plus interest, expenses and costs. (Doc. 186, at 2-30, 14.) The amount secured by Cheyenne's Mortgage is $1,009,315.00 plus interest, expenses and costs. (IcL at 157-85, 14.) The amount secured by Oppenheim's Mortgage is $2,547,900.00 plus interest, expenses and costs. (Id. at 64-93, 1 4.) The amount secured by Labroy's Mortgage is $1,215,000.00 plus interest, expenses and costs. (Id. at 122-53, 14.). 24 In their supplemental briefing and evidence submitted in support thereof, Plaintiffs demonstrate that they are respectively owed, through March 20, 2017: (a) as to Ray Capital, $1,086,658.00 in unpaid principal and $721,523.00 in accrued interest; (b) as to Cheyenne Holdings, $1,000,000.00 in unpaid principal and $252,055.00 in accrued interest; 31 (c) as to Oppenheim (See have Docs. 117 challenged submitted in forth & 117-1.) in properly Oppenheim judgment it, Capital, against foreclose on $1,252,055.00, Judgment Order Plaintiffs Ray and Labroy Proceeds $3,156,794.00, the foregoing and Defendants and in or are the the for the based Capital, Shiptrade - - III. Upon Accordingly, Defendants the neither calculations thereof. Summary before date, Plaintiffs' support the To on reasons the therefore of and $1,534,229.00, IT intervention is DENIED pursuant to to IS FURTHER (doc. 118) the due ORDERED extent Rule 24 (a) , that DHL's that motion to respectively. that IT it is is a renewed PART, IN DENIED motion GRANTED to for the for reconsideration IS HEREBY (doc. DHL's motion for substitution pursuant to Rule 25(c).25 ORDERED final $1,808,181.00, consideration, GRANTED but to CONCLUSION and is evidence entitled ORDERED that DHL's original motion for intervention DENIED. set Holdings, entitled amounts DHL evidence Cheyenne are nor 80) motion IN is for PART; it intervention extent it is a IT IS FURTHER (doc. 118) is Capital, $2,499,956.00 in unpaid principal and $656,838.00 in accrued interest; and (d) as to Labroy Shiptrade, $1,215,000.00 in unpaid principal and $319,229.00 in accrued interest. (See Doc. 117-1.) 25 The Clerk is DIRECTED to add DHL as an additional substitution is made with the express understanding that defendant. DHL's rights This and obligations upon being added to this case are derived from those rights and obligations purportedly assigned to it by NCL and nothing more. 32 DENIED.26 for IT IS Wrongful PREJUDICE. favor Arrest The of FURTHER ORDERED (see Clerk Plaintiffs follows: (1) in doc. is on that 31, at DIRECTED their favor Defendants' 12-15) to claims of enter is DISMISSED WITH final against Plaintiff Counterclaim judgment Defendants Ray Capital in as Inc., $1,808,181.00; (2) in favor of Plaintiff Cheyenne Holdings Ltd., $1,252,055.00; (3) in favor of Plaintiff Oppenheim Capital Ltd., $3,156,794.00; and Limited, (4) in $1,534,229.00.27 favor of Plaintiff Labroy Shiptrade The Clerk is ORDERED to disburse the funds remaining in registry of the Court in connection with this case in the Plaintiffs' provided manner and escrow directly separate cover.28 amounts account, to the described the Clerk details by above to of which Plaintiffs' counsel shall counsel for be under The Clerk is further DIRECTED to TERMINATE all other pending motions, if any, and CLOSE this case. 26 DHL has also filed a "Motion for Hearing and to Extend 45 Day Stay Pending Determination on Pending Motions." (Doc. 121.) Because the Court concludes that there is no need for oral argument in this matter and has resolved all pending motions before it with relation to the present action and the DHL Action, DHL's motion (doc. 121) is DENIED AS MOOT. See LR 7.2, SDGa. ("Motions shall generally be determined upon the motion and supporting documents filed as prescribed herein."). 27 Any deficiency in funds to be collected from the funds held in the Court's registry in relation to this matter must be borne first by Labroy (followed, if necessary, by Oppenheim, then Cheyenne, and finally Ray). (See Doc. 116, at 17 n. 15.) 28 While the Court indicated in its Summary Judgment Order that it intended to temporarily stay the execution of judgment in this matter for forty-five days from the date of its entry so as to allow DHL to seek an order from the Eleventh Circuit pending appeal further staying execution in connection with DHL's then- (see doc. 116, at 17-18), that appeal has concluded and all other motions, filings, and other issues in this action have been resolved. Accordingly, the Court no longer intends to - and therefore will not order the Clerk - to stay execution of the forthcoming final judgment other than as 33 ORDER ENTERED at Augusta, Georgia, this September, j3^ day of 2017. J / RANBAprHALE, CtflE/F JUDGE UNITED/STATES SOUTHERN required by the automatic fourteen (14) imposed by Rule 62(a). 34 DISTRICT DISTRICT OF COURT GEORGIA day stay of execution of judgment

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