SEAPORT INLET MARINA, LLC v. CONNELL et al

Filing 62

ORDER AND JUDGMENT. Plaintiff's 61 Motion for Default Judgment seeking enforcement of the exculpatory provision in its agreement with Defendant Bailey and a declaration of non-liability to Defendant Bailey for damages sustained by his boat as a result of a fire at Plaintiff's marina is granted. Signed by Judge Freda L. Wolfson on 10/3/2018. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
SEAPORT INLET MARINA, LLC,
:
:
Plaintiff,
:
Civil Action No. 17-1908(FLW)(LHG)
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v.
:
:
ORDER AND JUDGMENT
PETER CONNELL, TOM SMITH, WILLIAM :
MAYFIELD, ROBERT MARSIGLIA, JOHN :
KOZAK, WILLIAM WALLUS, ERIC
:
FITZPATRICK, DAVID CABALLERO,
:
ANATOLY KOVYARENKO, PATRICK
:
DONNELLY, RON ELEUTERI, WILLIAM :
BAILEY, PAUL ROWAN, HARRY MIZAHI, :
ROBERT MERCIER, RUSSEL PASCALE,
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and LARRY FISHMAN,
:
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Defendants.
:
_______________________________________:
THIS MATTER having been opened to the Court by Kevin J. O’Donnell, Esq., counsel
for Plaintiff Seaport Inlet Marina, LLC (“Plaintiff”) on a Motion for Default Judgment against
Defendant William Bailey (“Defendant Bailey”), pursuant to Fed. R. Civ. P. 55(b)(2); it
appearing that the Complaint in this matter was filed on March 22, 2017, seeking (1)
enforcement of the terms of certain contracts entered into by Seaport and the Defendants1, and
(2) a declaration of non-liability to the Defendants for damages sustained by Defendants’ boats

The term “Defendants” as used herein refers to Defendants Peter Connell (“Connell”), Tom
Smith (“Smith”), William Mayfield (“Mayfield”), Robert Marsiglia (“Marsiglia”), John Kozak
(“Kozak”), William Wallus (“Wallus”), Eric Fitzpatrick (“Fitzpatrick”), David Caballero
(“Cabellero”), Anatoly Kovyarenko (“Kovyarenko”), Patrick Donnelly (“Donnelly”), Ron
Eleuteri (“Eleuteri”), William Bailey (“Bailey”), Paul Rowan (“Rowan”), Harry Mizahi
(“Mizahi”), Robert Mercier (“Mercier”), Russel Pascale (“Pascale”), and Larry Fishman
(“Fishman”) collectively.
1

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as a result of a fire at Plaintiff’s marina; it appearing that Defendant Bailey failed to answer or
otherwise respond to the Complaint; it appearing that default was entered against Defendant
Bailey by the Clerk of the Court on March 9, 2018, for Defendant Bailey’s failure to plead,
answer, or otherwise defend in this action; it appearing that, on March 20, 2018, Plaintiff moved
for default judgment; Defendant Bailey, having been duly served, has failed to oppose or
otherwise respond to the motion; the Court, having reviewed Plaintiff’s submissions in
connection with its motion, makes the following findings:
(1)

In order to obtain a default judgment, pursuant to Federal Rule of Civil
Procedure 55(b), a plaintiff must first secure an entry of default from the clerk
of the court under Rule 55(a). Allaham v. Naddaf, 635 F. App'x 32, 36 (3d Cir.
2015). Once the clerk default has entered default, the non-defaulting party may
move for default judgment pursuant to Rule 55(b)(2), “depending on whether
the claim is for a sum certain.” Id. The Third Circuit has explained that while
the entry of default judgment “is largely within a district court's discretion,
three factors control this determination: ‘(1) prejudice to the plaintiff if default
is denied, (2) whether the defendant appears to have a litigable defense, and (3)
whether defendant’s delay is due to culpable conduct.’” Id. (quoting
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000)). In considering
a motion for a default judgment, courts “accept as true the well-pleaded factual
allegations of the complaint, but the court need not accept the moving party's
legal conclusions or allegations relating to the amount of damages.” Polidoro
v. Saluti, 675 F. App'x 189, 190 (3d Cir. 2017).

(2)

Plaintiff alleges that Defendants, including Defendant Bailey, stored their

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respective boats at Plaintiff's marina pursuant to the terms and conditions set
forth in several agreements and/or work orders. Compl. at ¶ 55. Defendant
Bailey was the record owner of a 2016, 22-foot Rabalo with a hull identification
number of ROBW02650616. Id. at ¶ 31.
(3)

These agreements and/or work orders entered into by and between Defendants
and Plaintiff each contained the following exculpatory clause:
All facilities are offered with the understanding that the
management assumes no liability and that the owner will
carry hull and liability insurance. In consideration of the
making of this contract, it is hereby stipulated and agreed
that the Marina permits the Owner to berth or moor his
boat on Marina property and equipment only on the
condition that the Marina provides no security and
inspection service and assumes no responsibility
whatsoever for the safety of the boat, boats or equipment
referred to herein directly or indirectly in contract, tort or
otherwise. Furthermore, the Marina will not be liable for
any loss or damage for any cause whatsoever, including
but not limited to fire, theft, malicious mischief or action
of the elements which may arise to said boat, boats or its
or their equipment, or to any property of the owner or his
guests, including but not limited to cars parked in the
Marina or for any consequences thereof. Under the
foregoing, it is understood the marina reserves the right
to assume control and charge any boat, boats or their
equipment for the protection of life and property in
abnormal conditions or during catastrophes.
Id. at ¶ 65

(4)

On February 14, 2017, a fire occurred while one of Plaintiff's employees was
performing shrink-wrapping work on Defendant Connell’s boat. Id. at ¶ 84.
Defendant Connell’s boat caught fire and the fire spread to the other
Defendants’ boats, including Defendant Bailey’s, causing varying degrees of
damage, up to and including total loss of value. Id. at ¶¶ 85–86.

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(5)

Plaintiff brought suit against Defendants to enforce the exculpatory clause and
sought a declaration of non-liability, alleging that the exculpatory clause is
“clear and unambiguous” and “is fully enforceable under the general maritime
law of the United States.” Id. at ¶¶ 68-69. Indeed, “[b]oth admiralty law and
New Jersey law recognize that exculpatory contracts, in certain circumstances,
are valid and enforceable.” Olmo v. Atl. City Parasail, LLC, No. 13–4923, 2016
WL 1704365, *8 (D.N.J. Apr. 28, 2016).

(6)

Taking these allegations as true, the Court finds that, for the purposes of this
motion, the exculpatory provision is fully enforceable against Defendant
Bailey. As Defendant Bailey has not defended the allegations, the Court will
assume that the terms of the exculpatory provision apply to the storage of his
boat in Plaintiff’s marina, and that the provision is not unconscionable with
respect to him.2 Plaintiff is, therefore, entitled to a declaration of non-liability

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Defendant Eleuteri previously moved to dismiss the Complaint partly on the grounds that the
exculpatory provision is 1) unconscionable, and 2) unenforceable as a matter of law because the
provision only applied to “berthing and mooring” rather than winter storage. Seaport Inlet
Marina, LLC v. Connell, No. 17-1908, 2017 WL 3981128, at *3 (D.N.J. Sept. 11, 2017). The
Court denied this motion, holding that these arguments based on the interpretation or
unconscionability of the contracts’ exculpatory clauses were premature at the motion to dismiss
stage. Id. at *7 (citing E.H. Yachts, LLC v. B&D Boatworks, Inc., No. 06–164, 2006 WL
3068560, *4 n.3 (D.N.J. Oct. 27, 2006) (finding that interpretation of contract provisions was
inappropriate in a motion to dismiss). The interpretation of a contractual provision and whether it
is unconscionable as to a particular defendant are factual issues, however, and because
Defendant Bailey has not asserted these defenses, the Court will assume that they do not apply to
him. As such, the present Order relates only to Defendant Bailey and has no preclusive effect on
Plaintiff’s claims against the other Defendants. See Universal Athletic Sales Co. v. American
Gym, 480 F. Supp. 408, 414 (W.D. Pa. 1979) (holding that “this finding and the default judgment
is not binding on the other defendants”).

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for any claims from Defendant Bailey arising out the damage to his boat during
the February 14, 2017 fire at Plaintiff’s marina.
Accordingly, the Court having reviewed Plaintiff’s submissions in connection with the motion,
pursuant to Fed. R. Civ. P. 78, for the reasons set forth herein, and for good cause shown,
IT IS on this 3rd day of October, 2018,
ORDERED that Plaintiff’s Motion for Default Judgment (Dkt. # 61) seeking enforcement
of the exculpatory provision in its agreement with Defendant Bailey and a declaration of
non-liability to Defendant Bailey for damages sustained by his boat as a result of a fire at
Plaintiff’s marina is GRANTED.
/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge

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