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United States v. Mare Island Sales

September 16, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARE ISLAND SALES, LLC, AND MIKE MANUEL, DEFENDANTS.



FINDINGS & RECOMMENDATIONS

This case was referred to the undersigned pursuant to Local Rule 72-302(c)(19). See 28 U.S.C. § 636(b)(1). Having considered plaintiff's motion for entry of default judgment, the court issues the following findings and recommends that the motion be granted.

I. BACKGROUND

This case is proceeding on the complaint filed November 5, 2007. Plaintiff, the United States, seeks recovery of amounts expended by the United States Coast Guard, National Pollution Funds Center ("NPFC"), in connection with two incidents involving vessels, the M/V Quapaw and the M/V Moctobi, owned and operated by defendants. Defendants Mike Manuel and Mare Island Sales, LLC (and/or its alter egos) owned, operated and controlled both vessels during the relevant periods alleged in the complaint. See Complaint ("Compl."), ¶¶ 8-27. Each is the "responsible party" for the vessels within the meaning of that term used in the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701, et seq. ("OPA"). Compl., ¶¶ 18, 26.

Plaintiff alleges that on October 13, 2004, personnel from the United States Coast Guard Marine Safety Office ("MSO") investigated a report that the M/V Quapaw was in danger of sinking in the Port of Richmond Harbor with oil on board. Compl., ¶ 32. During the inspection, they observed the vessel listing to the starboard side and taking on water, and determined that water on board the vessel had been mixed with oil and other hazardous materials. Id. Plaintiff alleges that, on the same day, defendants told the MSO that they would prevent the vessel from sinking and discharging oil into the San Francisco Bay, and would start pumping water from the vessel within forty-eight hours. Compl., ¶ 33.

On October 15, 2004, the United States Coast Guard Federal On Scene Coordinator ("FOSC") determined that the vessel presented an immediate and substantial threat of discharge of oil and hazardous substances, and issued an administrative order pursuant to the Federal Water Pollution Control Act and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601, et seq. That order directed defendant Mare Island Sales to remove the threat of pollution or prevent the vessel from sinking by October 22, 2004. Mare Island Sales did not comply with the order and chose instead to appeal it. Compl., ¶ 35. Following Mare Island Sales' unsuccessful appeal of that order, FOSC issued a second administrative order requiring it to submit a plan for the abatement and permanent removal of the pollution threat. Mare Island Sales failed to comply with that order, and MSO retained a third-party contractor to remove approximately 47,000 gallons of oil, oily waste and hazardous substances from the M/V Quapaw. Compl., at ¶¶ 36-37.

Plaintiff alleges a second, similar incident involving defendants' vessel, the M/V Moctobi. On June 23, 2006, the MSO observed the vessel taking on water and noted that its bilges were filled with oily water. Compl., ¶ 43. On June 26, 2006, the FOSC determined that the vessel presented an immediate and substantial threat of discharging oil and hazardous substances, and ordered Mare Island Sales to begin containment measures by noon the next day.

Id. Mare Island Sales did not respond, and MSO retained a third party contractor to pump the oil from the M/V Moctobi. Id., ¶¶ 43-45. Approximately 100,000 gallons of oily water and 4,900 gallons of diesel, oil, and hazardous substances were removed from the vessel. Id., ¶ 46.

Plaintiff initiated this action on November 5, 2007, alleging claims against defendants under OPA, CERCLA, the Federal Water Pollution Control Act, and the Federal Debt Collection Procedures Act. Plaintiff also asserts a seventh cause of action alleging the priority of its claims against defendants pursuant to 31 U.S.C. § 3713. As specified in its motion for entry of default judgment, plaintiff alleges that defendants are liable under the OPA and the Federal Water Pollution Control Act for all costs and damages incurred by plaintiff in removing the oil discharged from the M/V Quapaw and the M/V Moctobi.

Defendants were served with the summons and complaint by substitute service on December 11, 2007. See Declaration of Eric Kaufman-Cohen in Support of Request for Entry of Defaults Against Defendants ("Kaufman Decl."), ¶¶ 10-12; Exh. E thereto. Defendants failed to file an answer or otherwise respond to the complaint. The Clerk entered default against each defendant on January 22, 2008.

Plaintiff now moves for entry of default judgment pursuant to Fed. R. Civ. P. 55(b)(2).*fn1

Plaintiff seeks entry of judgment against defendants for a sum certain in the amount of $225,745.73--"the exact amount incurred by the NPFC in averting the immediate and substantial threat of discharge of oil and other hazardous substances into the navigable waters of the San Francisco Bay from two vessels owned and operated by defendants." Memo. of Points and Authorities in Support of Motion for Entry of Default Judgment, 5:13-16. This amount is set forth in affidavits supporting the motion. See In Admiralty Statement of Amount Due (docket nos. 20, 21). Plaintiff does not seek interest on that amount, nor does it seek attorneys' fees or costs related to this litigation.

III. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk is required to enter default when the fact of default is established by affidavit or otherwise. Fed. R. Civ. P. 55(a). In this case, default was established by plaintiff and entered by the Clerk on January 22, 2008. Now before the court is plaintiff's application ...


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