KPI Bridge Oil, Inc. v. Wilmington Trust Company, et al

Filing 21

ORDER granting ECF No. 3 Motion for Issuance of Process. Signed by Judge Miranda M. Du on 1/12/2017. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:17-cv-00007-MMD-VPC Document 3 Filed 12/13/16 Page 1 of 5

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Michael R. Mushkin (Nevada State Bar #: 2421)
Michael R. Mushkin & Associates, P.C.
4475 South Pecos Road
Las Vegas, NV 89121
PH: [phone]
FX: [phone]
Email: [e-mail]
Attorney for Plaintiff
KPI Bridge Oil, Inc.

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KPI BRIDGE OIL, INC.,

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IN ADMIRALTY
Plaintiff,

CASE NO.:

v.
WILMINGTON TRUST COMPANY; TERAS
CARGO TRANSPORT (AMERICA) LLC;
TERAS BREAKBULK OCEAN NAVIGATION
ENTERPRISES LLC; TRUENORTH
TRANSPORT LLC,

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EX PARTE MOTION FOR
ISSUANCE OF PROCESS OF
MARITIME ATTACHMENTAND
GARNISHMENT AND FOR
EXPEDITED CONSIDERATION

Defendants.

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COMES NOW Plaintiff, KPI BRIDGE OIL, INC., and files its Ex Parte Motion for

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Issuance of Process of Maritime Attachment and Garnishment and for Expedited

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Consideration of this motion pursuant to Rule B of the Supplemental Rules for Certain

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Admiralty and Maritime Claims of the Federal Rules of Civil Procedure (hereinafter

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"Admiralty Rules"), and respectfully states as follows:

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1.

Supplemental Admiralty Rules B and E permit a Court to issue an order of

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maritime attachment if the plaintiff satisfies the filing and service requirements of Rules B and

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E, and can show that: “(1) Plaintiff has a valid prima facie admiralty claim against the

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defendant; (2) defendant cannot be found within the district; (3) property of the defendant can

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be found within the district; and (4) there is no statutory or maritime law bar to the attachment”

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Chalos & Co Ref: 2422.005

Case 3:17-cv-00007-MMD-VPC Document 3 Filed 12/13/16 Page 2 of 5

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Equatorial Marine Fuel Management Services Pte Ltd. v. MISC Berhad, 591 F.3d 1208, 1210

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(9th Cir. 2010) (citing Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 445

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(2d Cir. 2006); Fed. R. Civ. P., Supp. R. B).

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2.

Plaintiff filed a Verified Complaint pursuant to Rule 9(h) of the Federal Rules

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of Civil Procedure and Rule B of the Admiralty Rules setting forth Plaintiff’s claim for

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damages in the amount of USD 210,918.26, together with interest, costs and attorney fees. The

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allegations of Plaintiff’s Verified Complaint are incorporated herein by reference.

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3.

Defendants

WILMINGTON

TRUST

COMPANY,

TERAS

CARGO

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TRANSPORT (AMERICA) LLC, TRUENORTH TRANSPORT LLC, and TERAS

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BREAKBULK OCEAN NAVIGATION ENTERPRISES LLC (collectively “Defendants”)

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cannot be found within the District of Nevada for the purposes of Rule B of the Admiralty

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Rules. This is demonstrated by Plaintiff’s Verified Complaint and the Declaration of Attorney

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Briton P. Sparkman (Exhibit 9 to the Verified Complaint), filed pursuant to Rule B of the

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Admiralty Rules and which states, in pertinent part, that Plaintiff is informed and believes:

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that Defendants cannot be found within the District of Nevada; that to Plaintiff’s knowledge,

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none of the officers of Defendants are now within the District of Nevada; that Defendants do

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not maintain offices or telephone listings in the District of Nevada; that Defendants are not

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incorporated or registered to do business in the State of Nevada; and, that Defendants do not

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have registered agents for the receipt of service of process in the State of Nevada.

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4.

Plaintiff is informed and believes Defendants do now, or will during the

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pendency of this action, have tangible and intangible personal property within the District of

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Nevada, and more specifically funds deposited by Defendants in bank account(s) to pay

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operation costs during the period in which Argent Marine Management, Inc. is the operator of

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the vessel, belonging to Defendants or nominees thereof, and said funds are now or will be

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during the pendency of this action in the District and under the jurisdiction of this Court, and

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the funds are property amenable to attachment and garnishment pursuant to Admiralty Rule B.

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Chalos & Co Ref: 2422.005

Case 3:17-cv-00007-MMD-VPC Document 3 Filed 12/13/16 Page 3 of 5

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Moreover, Plaintiff is informed and believes Argent Marine Management,

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Inc., manages and holds any bank accounts and associated funds on behalf of the Defendants

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and it is likely that the said company has in its possession and/or control tangible or

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intangible property of Defendants.

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Furthermore, there is no statutory or maritime bar to the attachment

application.
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The instant Rule B maritime attachment action was commenced in order

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secure the appearance of the Defendants and to obtain security in the amount of USD

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283,678.37 (see Verified Complaint ¶ 42). See Verified Complaint, ¶¶ 8-35, 41-42; see also

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Swift & Co. Packers v. Compania Colombiana del Caribe, S.A., 339 U.S. 684, 693, 70 S. Ct.

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861, 94 L. Ed. 1206 (1950)).

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Additionally, Plaintiff respectfully moves this Court for expedited

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consideration of this Motion. As set forth in Plaintiffs Verified Complaint (Doc. 1), Plaintiff

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seeks to attach tangible and intangible property of the Defendants, including credits, debts,

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accounts, payments, etc. presently held by garnishees. These items are easily transitory. Due

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to the specific nature of this Rule B attachment, without a prompt issuance of Plaintiff’s

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Process of Maritime Attachment and Garnishment, the property Plaintiff seeks to attach

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could, and likely will, be removed from the jurisdiction before the Court considers and acts

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on Plaintiff’s application. The Federal Courts have an interest in preserving the efficacy of

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maritime attachment orders, because without it, “defendants, their ships, and their funds

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easily could evade the enforcement of substantive rights of admiralty law.” See Yayasan

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Sabah Dua Shipping SDN BHB v. Scandinavian Liquid Carriers, Ltd., 335 F. Supp. 2d 441,

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445 (S.D.N.Y. 2004). Accordingly, any delay may very well deprive Plaintiff of the element

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surprise, allowing Defendants to transfer their property out of the district and beyond the

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reach of this Court.

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Chalos & Co Ref: 2422.005

Case 3:17-cv-00007-MMD-VPC Document 3 Filed 12/13/16 Page 4 of 5

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WHEREFORE, Plaintiff, KPI BRIDGE OIL, INC. respectfully requests that this

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Court expedite consideration of Plaintiff’s Motion for the Issuance of Process of Maritime

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Attachment and Garnishment and enter an Order authorizing the issuance of Process of

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Maritime Attachment and Garnishment directing the United States Marshal for District of

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Nevada to attach any funds related to the vessel the M/V NORFOLK, IMO 9418975 and to

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garnish any tangible or intangible personal property in the possession, custody, or control of

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garnishees, specifically, Argent Marine Management, Inc., 2889 Adler Avenue, Suite 300,

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Incline Village, Nevada 89451, belonging to Defendants, and to grant Plaintiff such other and

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further relief as may be just, equitable and proper.

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Respectfully submitted,

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Dated: December 12, 2016
Las Vegas, NV

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Michael R. Mushkin & Associates, P.C.
By:

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Attorney for Plaintiff
KPI Bridge Oil, Inc.

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/s/ Michael R. Mushkin
Nevada State Bar number: 2421
4475 South Pecos Road
Las Vegas, NV 89121
PH: [phone]
FX: [phone]
Email: [e-mail]

OF COUNSEL
Briton P. Sparkman
(Pro hac vice application forthcoming)
CHALOS & CO, P.C.
7210 Tickner Street
Houston, TX 77055
PH: [phone]
FX: [phone]
IT IS SO ORDERED.

Attorneys for Plaintiff
KPI Bridge Oil, Inc.
January 12, 2017
Dated: _________________

______________________
U.S. District Judge

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Chalos & Co Ref: 2422.005