UTSCH'S MARINA, INC. v. MOTOR VESSEL, "POPS WAY", A 1976 26' PENN YAN, BEARING HULL ID NUMBER PYB26144M75G & REGISTRATION NUMBER NJ4159AK, HER ENGINE, TACKLE, APPAREL & HER APPURTENANCES IN REM et al

Filing 101

ORDER granting 99 Motion for Default Judgment. Judgment shall be entered in favor of Pltf UTSCHS MARINA, INC. and against the defaulting Defts in an amount to be determined. Pltf shall file supplemental papers w/in 30 days providing correct and consistent calculations representing an award of the in custodia legis expenditures, the unsatisfied balance of maritime liens after deducting the value of the winning Marshals sale price or credit bid, service of process costs split proportionately among each vessel owner, and prejudgment interest. Pltf's request for an award of attorney's fees and costs is DENIED. Signed by Judge Renee Marie Bumb on 12/20/2013. (drw)

[Docket No. 99]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

UTSCH’S MARINA, INC.,
Plaintiff,

Civil No. 11-4056 (RMB/JS)
v.

ORDER

MOTOR VESSEL, "POPS WAY", A
1976 26' PENN YAN, BEARING HULL
ID NUMBER PYB26144M75G &
REGISTRATION NUMBER NJ4159AK,
HER ENGINE, TACKLE, APPAREL &
HER APPURTENANCES IN REM, et
al.,
Defendants.

THIS MATTER having come before the Court on the Motion
of Plaintiff, UTSCH’S MARINA, INC., for a Default Judgment
against the defaulting Defendants in this matter; and
THE COURT NOTING that Plaintiff seeks in custodia
legis expenditures, the unsatisfied balance of maritime
liens after deducting the value of the winning Marshals’
sale price or credit bid, service of process costs split
proportionately among each vessel owner, and prejudgment
interest; and
THE COURT FURTHER NOTING that Plaintiff also seeks an
award of attorney’s fees and legal costs of a sum totaling
$65,410.57; and

THE COURT FINDING that Plaintiff has adequately
demonstrated justification for an award of the in custodia
legis expenditures, the unsatisfied balance of maritime
liens after deducting the value of the winning Marshals’
sale price or credit bid, service of process costs split
proportionately among each vessel owner, and prejudgment
interest.

See Utsch's Marina, Inc. v. Motor Vessel, No.

09-5848, 2011 U.S. Dist. LEXIS 4934 (D.N.J. Jan. 18, 2011);
and
THE COURT FURTHER FINDING that the amount to be
awarded against the individual Defendants is unclear as the
calculations vary on pages 2 versus 13-14 of Plaintiff’s
memorandum in support of default judgment and different
amounts are presented in Plaintiff’s proposed Order as to
some Defendants; and
THE COURT FURTHER NOTING that "[a]s a general matter,
attorneys' fees are not available in admiralty cases unless
the court determines in its equitable discretion that one
party has acted in bad faith," Sosebee v. Rath, 893 F.2d
54, 56 (3d Cir. 1990); see Madeja v. Olympic Packers,
L.L.C., 310 F.3d 628, 635 (9th Cir. 2002) ("The equitable
grant of attorney's fees is appropriate in admiralty only
when the ship owner acted arbitrarily, recalcitrantly, or
unreasonably."); Templeman v. Chris Craft Corp., 770 F.2d

245, 250 (1st Cir. 1985) ("Under admiralty law, a court has
inherent power to assess attorneys' fees when a party has
acted in bad faith, vexatiously, wantonly, or for
oppressive reasons." (citation and internal quotation marks
omitted)); and
THE COURT FINDING that although Defendants did not
make proper payments or appear in this case, no evidence
demonstrates the bad faith or vexatiousness necessary to
warrant an award of attorney's fees and costs, expenses
that are generally assumed by each respective party; and
THE COURT FURTHER FINDING that Plaintiff does not
point to any other legal authority that would justify an
award of attorney's fees and costs in this case, and
Plaintiff's request for attorney's fees and legal costs
should be denied. See Utsch's Marina, Inc. v. Motor Vessel,
No. 09-5848, 2011 U.S. Dist. LEXIS 4934 (D.N.J. Jan. 18,
2011)(denying an award of attorneys fees under similar
circumstances);
ACCORDINGLY, IT IS HEREBY on this 20th day of December
2013,
ORDERED that Judgment be entered in favor of the
Plaintiff UTSCH’S MARINA, INC. and against the defaulting
Defendants in an amount to be determined; and it is further
ORDERED that Plaintiff file supplemental papers on the

docket within thirty (30) days of this Order providing
correct and consistent calculations representing
an award of the in custodia legis expenditures, the
unsatisfied balance of maritime liens after deducting the
value of the winning Marshals’ sale price or credit bid,
service of process costs split proportionately among each
vessel owner, and prejudgment interest; and it is further
ORDERED that Plaintiff’s request for an award of
attorney’s fees and costs is DENIED.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge