Barnes v. Sea Hawaii Rafting, LLC et al

Filing 743

ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR WRIT OF EXECUTION, RE ECF 738 - Signed by JUDGE ALAN C. KAY on 8/27/2020.For the reasons stated above, the Court DENIES Plaintiff Barnes's Motion for Writ of Execution. The Motion is denied without prejudice and any future motion seeking authorization for issuance of a writ of execution must rectify the shortcomings identified in this Order.COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)(jni)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
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CHAD BARRY BARNES,
Plaintiff,
v.
SEA HAWAI`I RAFTING, LLC;
et al.
Defendants.

Civ. No. 13-00002 ACK-WRP

ORDER DENYING PLAINTIFF’S EX PARTE MOTION FOR WRIT OF EXECUTION
For the reasons set forth below, the Court DENIES
Plaintiff Chad Barry Barnes’s Motion for Order Authorizing
Issuance of Writ of Execution, ECF No. 738.

Pursuant to Local

Rule 7.1(c), the Court finds this matter suitable for
disposition without a hearing.

BACKGROUND
On October 5, 2018, this Court issued Amended Findings
of Fact and Conclusions of Law entitling Plaintiff Barnes to
recover jointly and severally against Defendant Sea Hawaii
Rafting, LLC (“Defendant SHR”) and Defendant M/V Tehani for the
amount of $279,406.12.

ECF No. 446.

entered by the Clerk the next day.

The Amended Judgment was
ECF No. 447.

Plaintiff

Barnes appealed the order and judgment to the Ninth Circuit on

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November 2, 2018.

ECF No. 461.

That appeal remains pending and

no party has sought a stay of enforcement of the judgment.
Both before and since the judgment was issued, this
case has faced numerous delays stemming from, inter alia, two
bankruptcies, several pending appeals, and other procedural
complications.

Plaintiff Barnes has long been seeking to

enforce his judgment against Defendant SHR, when certain
property was subject to a bankruptcy stay and discharge and
other property—namely, the commercial-use permit previously
attached to the vessel Tehani—was transferred to a different
LLC.
On August 12, 2020, Plaintiff Barnes filed a Motion
seeking a court order (1) authorizing issuance of a “writ of
execution and levy against all real and intangible property” of
Defendant SHR, (2) authorizing the U.S. Marshal to conduct an
execution sale by “public auction or other method,” and (3)
setting a hearing date to confirm the execution sale.
2.

Mot. at

The Motion states:
We are asking Judge Kay to exercise that
discretion and help formulate a remedy that
leads to a practical and tangible result.
Barnes’ goal continues to be to obtain the
permit in the condition it was before Henry
converted it, that is the permit should be in
the name of SHR with the M/V Tehani listed as
the vessel named on the permit. Barnes also
wants all of the tangible property of SHR, be
it computers, typewriters, desks, gears of any
kind, along with the intangible assets such as
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the goodwill of the company, the website and
the Commercial Use Permit.
Motion at 3; see also Decl. of Jay Friedheim, ECF No. 738-1.
Defendants never filed any opposition to the Motion for Writ of
Execution.

STANDARD
Federal Rule of Civil Procedure (“Rule”) 69 governs
the enforcement of a judgment.

According to that Rule, writs of

execution are issued consistent with state law:

“A money

judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution . . . must accord
with the procedure of the state where the court is located, but
a federal statute governs to the extent it applies.”

Fed. R.

Civ. P. 69(a)(1); see also Engquist v. Or. Dep’t of Agric., 478
F.3d 985, 1001 (9th Cir. 2007) (explaining that Rule 69(a)
“permits judgment creditors to use any execution method
consistent with the practice and procedure of the state in which
the district court sits” (citing Cigna Prop. & Cas. Ins. Co. v.
Polaris Pictures Corp., 159 F.3d 412, 421 (9th Cir. 1998))).
Under federal and Hawaii law, money judgments are
enforced by a writ of execution:
Every district judge at the request of the
party recovering any civil judgment in the
judge’s court, unless the judgment is duly
appealed from, shall issue the judge's
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execution against the property of the party
recovered against, which execution may be in
the form established by the usage and practice
of the issuing court and may be directed to
any police officer of the judicial circuit in
which the district court is situated; provided
the defendant or any of the defendants is a
resident of the circuit.
Haw. Rev. Stat § 651-32; see also Fed. R. Civ. P. 69(a)(1).

A

writ of execution on the property of a debtor-defendant must
comply with the statutory requirements of Hawaii Revised
Statutes §§ 651-34, 651-36, 651-37.

There is no specific

requirement in Hawaii that the writ itself precisely identify
the property to be levied on.

See Ditto v. McCurdy, 102 Haw.

518, 524, 78 P.3d 331, 337 (2003).

Pursuant to § 651-34, the

writ of execution must be made returnable within sixty days.

DISCUSSION
The Court begins by noting that the pending appeal of
the judgment in the Ninth Circuit is not itself a reason to
decline to issue the writ of execution.

See TSA Intern. Ltd. v.

Shimizu Corp., 92 Haw. 243, 265, 990 P.2d 713, 735 (1999).

A

writ of execution can be denied because of an appeal only if
there is a stay issued on the judgment.

See Haw. R. Civ. P.

62(d) (“When an appeal is taken the appellant by giving a
supersedeas bond may obtain a stay.”); see also Berry v. Haw.
Express Serv., Inc., No. CV 03-00385 DAE-LEK, 2008 WL 11348380,

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at *2–3 (D. Haw. May 6, 2008).

Here, there is no stay on

enforcement of the judgment, so the Court cannot decline to
issue the writ merely because of the pending appeal.1/
There are other problems with Plaintiff Barnes’s
Motion, however, which prevent the Court from granting the
Motion in its current form.

For example, although it is not

clear from the wording of the Motion specifically what Plaintiff
Barnes is seeking, the Court cautions that a writ of execution
cannot be issued against the vessel Tehani.
is subject to a priority maritime lien.

First, the vessel

And second, the vessel

is currently under arrest and in the custody of the U.S.
Marshal.2/

It is “well settled” in Hawaii that property in legal

custody is not subject to “attachment, garnishment, levy of
execution, lien of creditors’ bill or other process.”

Bank of

Haw. v. Benchwick, 249 F. Supp. 74, 79–80 (D. Haw. 1966).

Next,

no matter how Plaintiff Barnes words his request, the Court
cannot issue a writ of execution on property that indisputably
is not owned by debtor-Defendant SHR.

The Motion for Writ of

Execution seems to appeal to this Court’s discretion in an
apparent attempt to obtain a writ to execute on the commercial-

The Court notes, however, that Plaintiff’s counsel Jay Friedheim in
his sworn declaration to this Court misrepresents the fact that the judgment
is indeed on appeal. See Friedheim Decl. ¶ 5 (“The Judgement has not been
appealed and is and remains in full force and effect against Defendant
SHR.”).
2/
A stay is in place as to the interlocutory sale or posting of a bond
to have the vessel released. See ECF No. 739.
1/

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use permit.

That is despite the fact that Plaintiff Barnes

admits that the permit is not in SHR’s name.

See Mot. at 3

(“Barnes’ goal continues to be to obtain the permit in the
condition it was before Henry converted it, that is the permit
should be in the name of SHR with the M/V Tehani listed as the
vessel named on the permit.” (emphasis added)).

Because

Defendant SHR does not own the permit, the Court declines to
authorize a writ of execution against that property.3/
Finally, the Court declines to authorize a writ of
execution at this time because the Motion contains other
technical problems.
writ.

For one, it does not include the proposed

If Plaintiff Barnes re-files a motion seeking a writ, he

must file with it a proposed form of writ that, if granted,
would then be provided to Marshal for execution.

The writ must

comply with the statutory requirements noted above and, contrary
to Plaintiff Barnes’s request that the writ be returnable
indefinitely, the writ of execution must be returnable within
sixty days pursuant to the statute.

Haw. Rev. Stat. § 651-34.

The refiled motion should also include a proposed order for this
Court’s signature authorizing issuance of the writ of execution.

3/
Not to mention, the Court has been imposing other relief to address
the wrongful transfer of the commercial-use permit, such as by assessing
significant sanctions and enhanced sanctions on Defendant Henry and Defendant
AOE to compensate Plaintiff Barnes for the resulting loss. See ECF Nos. 608
& 657.

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In addition, Plaintiff Barnes’s Motion appears to be
somewhat vague.

He has not indicated the location for any of

the assets he references.

Even if Plaintiff Barnes is

ultimately entitled to a writ of execution to enforce the
judgment against Defendant SHR through its tangible and
intangible property—assuming any exists outside the bankruptcy
estate—he cannot place the onus on the Court or the Marshal to
locate and identify the personal property Defendant SHR owns.
When Plaintiff Barnes re-files his motion and includes the
proposed writ, it should comply with the form and contents that
are statutorily required under.

See Ditto, 102 Haw. At 524, 78

P.3d at 337 (discussing the “express statutory requirements
under part II of the HRS chapter 651 as to the form and content
of a writ of execution”); see also Berry, 2008 WL 11348380, at
*3 (advising the judgment creditor to provide more details about
the location of the property to be subject to execution).
With that in mind, the Court finds that Plaintiff
Barnes’s writ must be “far more specific with respect to the
Plaintiff’s property that it seeks to have the writ of execution
pertain to” than the instant Motion.
at *3.

Berry, 2008 WL 11348380,

Plaintiff Barnes must “explain the location of such

property, such that the writ can actually be executed.”

Id.

addition, as stated above, Plaintiff Barnes must provide a
proposed writ and order authorizing the issuance of the writ,
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In

prepared for this Court’s signature.

The Court reiterates that

Plaintiff Barnes is not entitled to enforce his judgment through
a writ of execution on the vessel Tehani because of (1) the
superior maritime lien and (2) the fact that the vessel is in
the custody of the U.S. Marshal, nor can he obtain a writ of
execution against property not owned by debtor-Defendant SHR
(i.e., the commercial-use permit).

CONCLUSION
For the reasons stated above, the Court DENIES
Plaintiff Barnes’s Motion for Writ of Execution.

The Motion is

denied without prejudice and any future motion seeking
authorization for issuance of a writ of execution must rectify
the shortcomings identified in this Order.

IT IS SO ORDERED.
DATED:

Honolulu, Hawai`i, August 27, 2020.

________________________________
Alan C. Kay
Sr. United States District Judge

Barnes v. Sea Hawaii Rafting, LLC, Kris Henry, M/V Tehani, et al., Civ. No.
13-00002 ACK-RLP, Order Denying Plaintiff’s Motion for Writ of Execution

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