Ocean Apex T&B LLC et al v. Unknown Claimant(s)

Filing 22

ORDER: 1. Claimant Mark DeSousa's Motion to Transfer Venue #20 is GRANTED. 2. This action is TRANSFERRED to the United States District Court for the District of Massachusetts, Eastern Division, for all further proceedings, in accordance with Rule F(9) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. 3. The Clerk is hereby directed to transfer this action immediately to the United States District Court for the District of Massachusetts, Eastern Division, and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 7/13/2021. (GLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN RE: THE MATTER OF OCEAN
APEX T&B LLC and POLING &
CUTLER MARINE
TRANSPORTATION, LLC AS
OWNERS AND OPERATRS
AND/OR OWNERS PRO HAC VICE
OF THE TUG COPPER MOUNTAIN
PRAYING FOR EXONERATION
FROM OR LIMITATION OF
LIABILITY,
Petitioners.
Case No: 8:21-cv-120-CEH-TGW
___________________________________/

ORDER
This matter comes before the Court upon Claimant Mark DeSousa’s Motion to
Transfer Venue (Doc. 20). Ocean Apex T&B LLC and Poling & Cutler Marine
Transportation, LLC, as owners and operators and/or owners pro hac vice of the Tug
COPPER MOUNTAIN, do not oppose the Motion to Transfer Venue (Doc. 21). The
Court will grant the Motion to Transfer Venue.
DISCUSSION
DeSousa moves to transfer this action to the United States District Court for the
District of Massachusetts. Doc. 20 at 1–2, 9–10. In support of his request, DeSousa,
who allegedly sustained injuries while aboard the subject vessel, highlights that he
resides in Massachusetts. Id. at 1–2. He states that he has received extensive treatment

from doctors and physical therapists in Massachusetts, too. Id. at 2. DeSousa grounds
his request in Supplemental Rule F(9) and 28 U.S.C. § 1404(a). Id. at 4–5, 9–10.
Under the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions, no later than six months after receipt of a claim in writing, a vessel
owner may file a complaint in the appropriate district court, as provided in Rule F(9),
for limitation of liability under a statute. Supplemental R. F(1). In turn, Rule F(9)
addresses proper venue for limitation of liability actions, as well as transfer of those
actions. Supplemental R. F(9). Relevant here, Rule F(9) provides that, “[f]or the
convenience of the parties and witnesses, in the interest of justice,” a court may transfer
an action to any district. Supplemental R. F(9). Similarly, under the federal change-ofvenue statute, “[f]or the convenience of parties and witnesses, in the interest of justice,
a district court may transfer any civil action to any other district or division where it
might have been brought or to any district or division to which all parties have
consented.” 28 U.S.C. § 1404(a).
Supplemental Rule F(9) governs motions to transfer venue in admiralty actions,
not § 1404(a). The Conn. Indem. Co. v. Palivoda, No. 8:04-cv-1044-SCB-MSS, 2004 WL
3661069, at *5 (M.D. Fla. Aug. 24, 2004) (quoting In re Complaint of Norfolk Dredging
Co., 240 F. Supp. 2d 532, 534 (E.D. Va. 2002)). Nonetheless, the guiding factors for
determining the propriety of transfer under Rule F(9) are the same factors as those
developed by § 1404(a). Id. Section 1404 factors include:
(1) the convenience of the witnesses; (2) the location of relevant
documents and the relative ease of access to sources of proof; (3)
the convenience of the parties; (4) the locus of operative facts; (5)
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the availability of process to compel the attendance of unwilling
witnesses; (6) the relative means of the parties; (7) a forum's
familiarity with the governing law; (8) the weight accorded a
plaintiff's choice of forum; and (9) trial efficiency and the
interests of justice, based on the totality of the circumstances.

Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). A district court
enjoys wide discretion in determining whether to transfer an action. Matter of Luhr
Bros., Inc., No. 8:18-cv-2365-JSM-TGW, 2019 WL 3781640, at *5 (M.D. Fla. July 25,
2019).
Reiterating that he lives in Massachusetts and that he has received extensive
treatment from his physicians in Massachusetts, DeSousa argues that the convenience
of witnesses weighs in favor of transfer. Doc. 20 at 5–6. According to DeSousa,
appearing at a trial in Florida would also pose a significant hardship on him and would
inconvenience his treating physicians. Id. at 6. He also contends that the continuation
of this action in Florida will deprive him of the ability to subpoena Massachusettsbased witnesses later in the litigation. Id. at 7. And he argues that transferring this
action to the District of Massachusetts will not pose any difficulty to Ocean Apex or
Poling & Cutler Marine because neither entity is based in Florida. Id. at 7–8. Finally,
although he concedes that the subject vessel was docked in Florida, he represents that
the subject vessel is based in St. Louis, Missouri and currently located in New Orleans,
Louisiana. Id. at 8–9. Ocean Apex and Poling & Cutler Marine do not oppose

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DeSousa’s request for the Court to transfer this action to the District of Massachusetts. 1
Doc. 21 at 1–2.
Upon consideration of the guiding factors, DeSousa’s representations, and the
lack of opposition, the Court will transfer this action to the District of Massachusetts.
The Motion to Transfer Venue fails to request transfer to a specific division of the
District of Massachusetts. The District of Massachusetts’s Local Rules indicate that
the District of Massachusetts constitutes one judicial district comprising three
divisions: the Eastern Division, the Central Division, and the Western Division. D.
Mass. Local R. 40.1(c). DeSousa’s Claim and Demand for Trial by Jury indicates that
he resides in New Bedford, Massachusetts. Doc. 19 ¶3. New Bedford is located in
Bristol County, Massachusetts, which falls within the boundaries of the Eastern
Division. D. Mass. Local R. 40.1(c)(1). Thus, the Court will transfer this action to the
Eastern Division of the District of Massachusetts.
Accordingly, it is hereby ORDERED:
1. Claimant Mark DeSousa’s Motion to Transfer Venue (Doc. 20) is
GRANTED.
2. This action is TRANSFERRED to the United States District Court for the
District of Massachusetts, Eastern Division, for all further proceedings, in

Rule F(9) provides that “if venue is wrongly laid the court shall dismiss or, if it be in the
interest of justice, transfer the action to any district in which it could have been brought.”
Supplemental R. F(9). No party contends that Ocean Apex and Poling & Cutler Marine
selected a wrong venue in filing the action in the Middle District of Florida.
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accordance with Rule F(9) of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions.
3. The Clerk is hereby directed to transfer this action immediately to the United
States District Court for the District of Massachusetts, Eastern Division, and
CLOSE this case.
DONE AND ORDERED in Tampa, Florida on July 13, 2021.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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