In the Matter of the Petition of Fire Island Ferries, Inc. v. Voubouris et al

Filing 160

ORDER denying 159 Motion to Dismiss for Lack of Jurisdiction: Claimant Diaz's motion to dismiss is denied. A telephone conference will be held in this matter on December 13, 2019 at 2:30 P.M. to discuss the bench trial. Petitioner should init iate the call and counsel for both sides shall be on the line before calling Chambers at [phone]. In the event counsel is unavailable at the scheduled time, s/he shall consult with opposing counsel and provide two alternate dates and/or times by letter filed on ECF no later than December 11, 2019. See attached Memorandum & Order for details. Ordered by Judge Denis R. Hurley on 12/6/2019. (Hoon, Megha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of the Petition of Fire Island
Ferries, Inc. as Owner of the Courier for the
Exoneration from and Limitation of Liability
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MEMORANDUM & ORDER
11-cv-3475 (DRH)(ARL)

APPEARANCES:
For Petitioner Fire Island Ferries, Inc.:
Nicoletti Hornig & Sweeney
Wall Street Plaza
88 Pine Street
7th Floor
New York, New York 10005-1801
By:
Guerric S.D.L. Russell, Esq.
For Claimant Kevin Diaz:
Dougherty, Ryan, Giuffra, Zambito & Hession
250 Park Avenue
Seventh Floor
New York, New York 10177
By:
John Joseph Hession, Esq.
HURLEY, Senior District Judge:
Presently before the Court is Claimant Kevin Diaz’s (“Diaz”) motion to dissolve the stay
and prior restraining order of this Court, dated July 21, 2011 (DE 5), prohibiting Diaz from filing
any other proceedings, to allow him to pursue an action in state court. Petitioner Fire Island
Ferries, Inc. (“Petitioner”) has filed a response in opposition to Diaz’s contention that this Court
should allow the case to proceed in state court. For the reasons discussed below, the Court denies
Diaz’s motion and will proceed with a bench trial to determine damages in this matter.
BACKGROUND
Petitioner brought this action on July 19, 2011, pursuant to 46 U.S.C. § 30501 et seq., and
Rule F of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
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Actions, seeking exoneration from and limitation of liability related to a ferry accident that
occurred on July 10, 2011. (Compl. [DE 1] ¶¶1, 6–9.) The Court held a bench trial on the issue
of limitation of liability in March 2017 and issued its Findings of Fact and Conclusions of Law
on February 5, 2018. (DE 138.) After considering Claimants and Petitioner’s pretrial memoranda
concerning the contested issue of whether the trial on damages should proceed before a jury, on
January 7, 2019, the Court declined Claimants’ request to hold a jury trial. (DE 148.)
Nonetheless, Claimants elected to proceed in federal court, without a jury trial, instead of
moving forward in state court, explaining that “[i]n the interest of judicial economy, and
considering the passage of time since the limitation proceeding has commenced in July of 2011,
the Claimants in the case at bar have elected to proceed with the federal court proceeding.” (DE
150, 2-3.) Even after all remaining Claimants settled their claims against the Petitioner, Claimant
Diaz affirmed his desire to proceed in federal court without a jury. (DE 152 (“[T]he claim by Mr.
Kevin Diaz should still be scheduled for a Non-Jury Trial.”))
Thus, the Court scheduled the damages trial to begin on May 16, 2019. Just three days
before, on May 13, 2019, Diaz filed a letter with the Court requesting a pre-motion conference
for a motion to dissolve the stay and allow him to pursue his claim in New York State Court
before a jury. (DE 156.) The Court adjourned the damages trial and, after hearing from both
parties, allowed Diaz to make his requested motion. During the pre-motion conference, the Court
directed Diaz to provide case law specifically addressing the unique procedural posture of the
case, viz., Diaz requesting to proceed with a jury trial in state court after twice electing to
proceed in federal court. (DE 159-6, 10:7-10.)

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DISCUSSION
The question before this Court is not, as Diaz attempts to frame the issue, whether Diaz
has a right to proceed in state court. It is undisputed that Diaz had a right to continue with these
proceedings in state court following this Court’s denial of limitation of liability, see In re Pet. of
Atlantis Fishing Fleet Corp., 2004 WL 3704912, at *3 (E.D.N.Y. Mar. 22, 2004) (collecting
cases), and the Court afforded Diaz the opportunity to exercise that right. The question, instead,
is whether Diaz has the unfettered right to reverse his previous election to proceed in this Court,
on the eve of trial, frustrating his opponent’s trial preparation efforts and disrupting this Court’s
schedule. I conclude the answer to that question is “no” and, at the very least, the current
application is addressed to the Court’s discretion. See DE 159-1; see also Lewis v. Lewis & Clark
Marine, Inc., 531 U.S. 438, 454 (2001) (“The district courts have jurisdiction over actions arising
under the Limitation Act, and they have discretion to stay or dismiss Limitation Act proceedings
to allow a suitor to pursue his claims in state court.”).
At a pre-motion conference on June 25, 2019, the Court asked Diaz’s counsel to provide
case law specifically tailored to this procedural juncture rather than boilerplate cases.
Nonetheless, the Court received boilerplate cases not specifically addressing the question at
hand. Petitioner says it has also looked for specific cases and cannot find any on point. In light of
the dearth of relevant case law, we are left with the cases Diaz cites to for the proposition that
where there is a sole claimant, the district court should remand a Limitation of Liability case to
state court. See e.g., In re Muer, 146 F.3d 410, 417 (6th Cir. 1998) (citing Langnes v. Green, 282
U.S. 531 (1931); Ex parte Green, 286 U.S. 437 (1932)). Having reviewed those cases and
agreeing with the overall proposition for which they stand, the Court is unable to identify
anything, and indeed Diaz has failed to point to anything, that suggests, given the particular facts

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of this case, that this Court must allow Diaz to proceed in state court, despite his previous waiver
of that option and concomitant elections to continue in federal court.
It is particularly noteworthy given the main thrust of Diaz’s argument that, even after the
other claimants settled and Diaz was the only remaining claimant, he again elected to continue in
this Court. Diaz has not cited to any case law showing that he has the right to change his mind at
the eleventh hour. Diaz is not the only participant in this case—his adversary lost at least $7,000
in expert fees due to this last-minute, unexplained change of heart, and of lesser consequence,
this Court lost the time it had set aside to hear this dispute. Given the attendant circumstances,
the Court finds it would serve the interests of judicial economy and fairness to retain this case,
consistent with Diaz’s earlier unequivocal elections.
CONCLUSION
For the foregoing reasons, Diaz’s motion to dissolve the stay and prior restraining order
of this Court is denied.
A telephone conference will be held in this matter on December 13, 2019 at 2:30 P.M. to
discuss the bench trial. Petitioner should initiate the call and counsel for both sides shall be on
the line before calling Chambers at [phone]. In the event counsel is unavailable at the
scheduled time, s/he shall consult with opposing counsel and provide two alternate dates and/or
times by letter filed on ECF no later than December 11, 2019.
SO ORDERED.
Dated: Central Islip, New York
December 6, 2019
/s/ Denis R. Hurley
Denis R. Hurley
Unites States District Judge

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