Abella v. O'Kelley, et al

Filing 37

ORDER GRANTING PLAINTIFF URSULA S. ABELLA'S MOTION FOR SUMMARY JUDGMENT re: 24 - Signed by JUDGE ALAN C. KAY on 8/22/2019. "In light of the foregoing, Plaintiff's Motion for Summary J udgment as to Defendant O'Kelly is hereby GRANTED. The final judgment in this matter shall contain a declaration that Roger O'Kelly does not have a valid maritime lien pursuant to 46 U.S.C. § 31343(c)(2) upon the S/V TALISKER, Official Number 1269057." (footnote omitted) (jo)COURT'S 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
)
)
)
)
)
)
)
)
)
)
)
)

URSULA S. ABELLA
Plaintiff,
v.
ROGER O’KELLY

Defendant.

Civ. No. 18-00217 ACK-RT

ORDER GRANTING PLAINTIFF URSULA S. ABELLA’S MOTION FOR SUMMARY
JUDGMENT
For the reasons discussed below, the Court GRANTS
Plaintiff Ursula S. Abella’s Motion for Summary Judgment, ECF
No. 24.
PROCEDURAL BACKGROUND
This matter arises under admiralty law.

On June 8,

2018, Plaintiff Ursula S. Abella (“Plaintiff”) filed a Complaint
against Defendants Roger O’Kelly (“Defendant O’Kelly”), Robert
J. Eden (“Defendant Eden”), and Gaen C. Gysel (“Defendant
Gysel”).

ECF No. 1.

The Complaint seeks a declaratory judgment

from the Court, pursuant to 46 U.S.C. § 31343(c)(2), stating
that none of the defendants have valid maritime liens on the
vessel S/V TALISKER, Official Number 1269057 (the “Vessel” or
“Talisker”).

See Compl.

- 1 -

Plaintiff and Defendant Gysel reached a settlement
and, on August 6, 2018, stipulated to the dismissal of
Plaintiff’s claim against Defendant Gysel without prejudice.
ECF No. 12.

On March 21, 2019, Plaintiff voluntarily dismissed

her claim against Defendant Eden without prejudice.

ECF No. 29.

Defendant O’Kelly, who is proceeding pro se, is the
only remaining defendant in this lawsuit. Defendant O’Kelly
filed an Answer to Plaintiff’s Complaint on September 18, 2018.
ECF No. 17.

On October 24, 2018, Plaintiff filed an Amended

Complaint (“FAC”), ECF No. 22, which corrects the spelling of
Defendant O’Kelly’s last name but is otherwise identical to the
original Complaint. 1/
On March 13, 2019, Plaintiff filed a Motion for
Summary Judgment (“Motion”) on her claim against Defendant
O’Kelly, ECF No. 24, together with a Concise Statement of Facts
(“Pl. CSF”).

ECF No. 25.

On June 16, 2019, Defendant O’Kelly

filed a document responding to Plaintiff’s Motion (“Response”).
ECF No. 31.

Defendant O’Kelly does not appear to oppose

Plaintiff’s Motion.

See Response.

Plaintiff has not filed a

Reply.
The Court held a hearing on Plaintiff’s Motion on
August 22, 2019.

1/

The Court called the case at 11:00 a.m. and

The original Complaint named “Roger O’Kelley” as a Defendant.

- 2 -

again at 1:30 p.m.

At neither time did Defendant O’Kelly or any

representative of Defendant O’Kelly appear in Court.
FACTUAL BACKGROUND
The following facts are drawn from the FAC and
Plaintiff’s CSF.

Because Defendant O’Kelly has not filed a CSF

opposing Plaintiff’s CSF, the facts set forth therein are deemed
admitted.

See Local Rule of Practice for the United States

District Court for the District of Hawai`i (“Local Rule”)
56.1(g) (“For purposes of a motion for summary judgment,
material facts set forth in the moving party’s concise statement
will be deemed admitted unless controverted by a separate
concise statement of the opposing party.”).
On April 4, 2016, Plaintiff and someone named Craig
Adams (“Mr. Adams”) purchased the Vessel as co-owners in
Freemantle, Australia.

FAC ¶ 7.

The pair planned to sail the

Vessel from Freemantle to Honolulu.

FAC ¶ 8.

On June 1, 2016,

when the Vessel was in Darwin, Australia, Mr. Adams hired
Defendant O’Kelly as a crewmember.

FAC ¶ 13.

Defendant O’Kelly served as a crewmember on board the
Talisker on its journey from Darwin, Australia to Honolulu,
Hawai`i.

Pl. CSF ¶ 1; Declaration of Ursula S. Abella (“Abella

Decl.”) ¶ 3.

Defendant O’Kelly agreed to serve as a crewmember

in exchange for being provided all meals while in the service of
the Vessel as well as sailing experience and training.

- 3 -

Pl. CSF

¶ 2; Abella Decl. ¶ 4.

Defendant O’Kelly was provided with all

meals while aboard the Talisker and received experience and
training.

Pl. CSF ¶ 5; Abella Decl. ¶ 5.

No agreement was made

for Defendant O’Kelly to be compensated with money and/or
airfare in exchange for his services aboard the Vessel.
¶ 3; Abella Decl. ¶ 6.

Pl. CSF

Plaintiff has no knowledge of a separate

agreement between Mr. Adams and Defendant O’Kelly for future
employment.

Pl. CSF ¶ 7; Abella Decl. ¶ 4.

On February 13, 2017, Defendant O’Kelly filed a notice
of claim of lien against the Vessel with the United States Coast
Guard (“USCG”) in the amount of $50,000.
Decl. ¶ 8; Exh. B, ECF No. 25-2, at 2.

Pl. CSF ¶ 6; Abella
The notice states “Lien

for labor from March 1 2016 to November 15 2016; including
delivering the boat from Australia to Hawaii[.]”

Exh. B at 2.

The USCG terminated Defendant O’Kelly’s notice of lien on August
9, 2018.

Pl. CSF ¶ 7; Abella Decl. ¶ 9; Exh. B at 2.

Defendant

O’Kelly indicated that he may refile the lien with an attorney.
Pl. CSF ¶ 8; Abella Decl. ¶ 10.
Defendant O’Kelly’s Response to Plaintiff’s Motion
acknowledges that on August 9, 2018, the USCG terminated
Defendant O’Kelly’s notice of lien on the Talisker.

Defendant

O’Kelly also states “I have not contacted Abella or her lawyer
because this issue is over; and I don’t trust them.

I don’t

want to pay court cost for a frivolous law suit [sic].”

- 4 -

The

foregoing seems to indicate that Defendant O’Kelly has no
intention of refiling his lien on the Talisker and that he does
not oppose Plaintiff’s Motion.
STANDARD
Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Rule 56(a)

mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal., 192
F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).

“[T]he burden on the moving party may be

discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the
nonmoving party’s case.”

Celotex, 477 U.S. at 325.

- 5 -

“When the

moving party has carried its burden under Rule 56[(a)] its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for
trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.

574, 586–87 (1986) (citation and internal quotation marks
omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986) (stating that a party cannot “rest upon the
mere allegations or denials of his pleading” in opposing summary
judgment).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).

When considering the evidence on a

motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.

Matsushita Elec.

Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor” (internal
citation and quotation omitted)).

The court may not, however,

weigh conflicting evidence or assess credibility.

- 6 -

In re

Barboza, 545 F.3d at 707.

Accordingly, if “reasonable minds

could differ as to the import of the evidence,” summary judgment
will be denied.

Anderson, 477 U.S. at 250–51.
DISCUSSION

Plaintiff’s Motion seeks a declaration, pursuant to 46
U.S.C. § 31343(c)(2), that the Talisker is not subject to the
maritime lien asserted in the notice of claim of lien that
Defendant O’Kelly filed with the USCG.

The Federal Maritime

Lien Act, 46 U.S.C. § 31301 et seq., grants district courts
admiralty jurisdiction over civil actions “to declare that a
Vessel is not subject to a lien.”

46 U.S.C. § 31343(c)(2).

See, e.g. Leopard Marine & Trading, Ltd. v. Easy Street Ltd.,
896 F.3d 174, 188–89 (2d Cir. 2018); Laxfoss v. Lang, 2019
A.M.C. 348, 349 (D. Alaska 2019).

“Maritime liens arise for the

unpaid provision of necessaries, breaches of maritime contracts,
unpaid seaman’s wages, unpaid cargo freight, preferred ship
mortgages, as well as in other circumstances.”

Ventura Packers,

Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 919 (9th Cir. 2002).
“A maritime lien for wages is not subject to any filing or
recording requirements.”

U.S. v. ZP Chandon, 889 F.2d 233, 238

(9th Cir. 1989) (citations omitted).
“From the earliest period of maritime commerce the
test in admiralty courts for determining whether there is a
seaman’s wage lien has been:

Has a maritime service been

- 7 -

performed?

If such service has been performed, then whatever

constitutes the compensation for the service, if reducible to
money, may be enforced by a maritime lien against the Vessel
upon which those services were performed.”

Long Island Tankers

Corp. v. S.S. Kaimana, 265 F. Supp. 723, 726 (N.D. Cal 1967)
aff’d sub nom. Cross v. S.S. Kaimana, 401 F.2d 182 (9th Cir
1968) (per curiam).
Defendant O’Kelly’s Response does not offer any
evidence opposing Plaintiff’s Motion.

The Response simply

indicates that on August 9, 2018, the USCG terminated Defendant
O’Kelly’s notice of lien on the Vessel.

See Response.

The

Response also states “I have not contacted Abella or her lawyer
because this issue is over; and I don’t trust them.”

Id.

Although at one time Defendant O’Kelly indicated that he may
attempt to refile his notice of lien with an attorney, Abella
Decl. ¶ 10, Defendant O’Kelly’s Response indicates that he no
longer intends to do so.

As the Court noted, however, a

maritime lien for unpaid wages is not subject to any filing or
recording requirements.

ZP Chandon, 889 F.2d at 238.

In any event, based on the extremely limited evidence
in the record, the Court finds that Defendant O’Kelly does not
have a valid maritime lien on the Vessel for unpaid wages.

The

Abella Declaration establishes that Defendant O’Kelly served as
a crewmember aboard the Vessel from Darwin, Australia to

- 8 -

Honolulu, Hawai`i.

Abella Decl. ¶ 3.

Defendant O’Kelly agreed

to serve as a crewmember in exchange for all meals during the
voyage, sailing experience, and training.

Abella Decl. ¶ 4.

Plaintiff was provided all meals and received sailing experience
and training on the voyage.

Abella Decl. ¶ 5.

The agreement

for Defendant O’Kelly’s crew services did not include monetary
compensation or airfare.

Abella Decl. ¶ 6.

Defendant O’Kelly

does not dispute any of the aforesaid facts in his Response to
Plaintiff’s Motion, and thus these facts are deemed admitted
pursuant to Local Rule 56.1(f).
Accordingly, the Court finds that the agreement
between Plaintiff and Defendant O’Kelly was fully performed.
Defendant O’Kelly provided maritime services by crewing on the
Vessel on its journey from Darwin, Australia to Honolulu,
Hawai`i, and Plaintiff compensated him by providing meals,
sailing experience, and training.

Because the agreement between

Plaintiff and Defendant O’Kelly was fully performed, Defendant
O’Kelly does not have a maritime lien on the Vessel for unpaid
wages.

Moreover, Defendant O’Kelly submitted no authenticated

evidence to the Court.
CONCLUSION
In light of the foregoing, Plaintiff’s Motion for
Summary Judgment as to Defendant O’Kelly is hereby GRANTED.

The

final judgment in this matter shall contain a declaration that

- 9 -

Roger O’Kelly does not have a valid maritime lien pursuant to 46
U.S.C. § 31343(c)(2) upon the S/V TALISKER, Official Number
1269057. 2/

See Laxfoss, 2019 A.M.C. at 352.

IT IS SO ORDERED:
DATED: Honolulu, Hawai`i, August 22, 2019.

________________________________
Alan C. Kay
Sr. United States District Judge

Abella v. O’Kelly, Civ. No. 18-00217 ACK-RT, Order Granting Plaintiff Ursula
S. Abella’s Motion for Summary Judgment.

2/

Plaintiff has also requested attorneys’ fees. Motion at 8.
“The court may award costs and attorneys fees to the prevailing
party, unless the court finds that the position of the other
party was substantially justified or other circumstances make an
award of costs and attorneys fees unjust.” Plaintiff is the
prevailing party. Accordingly, Plaintiff may file a separate
motion for attorneys’ fees, which Defendant O’Kelly shall have
the opportunity to oppose.

- 10 -