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Monterey Bay Boatworks Company, A California Limited Partnership v. Michael Formico

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA AN JOSE DIVISION


September 19, 2011

MONTEREY BAY BOATWORKS COMPANY, A CALIFORNIA LIMITED PARTNERSHIP,
PLAINTIFF,
v.
MICHAEL FORMICO, AND M/V WILD WAVE (OFFICIAL NUMBER 550855) AND HER ENGINES,
BOILER, TACKLE, APPAREL, FURNISHINGS, AND APPURTENANCES, ETC., IN REM,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER ISSUING WARRANT FOR THE ARREST OF THE M/V WILD WAVE

On August 30, 2012, Plaintiff Monterey Bay Boatworks Co. ("Plaintiff") filed a verified 19 complaint ("Complaint") seeking the arrest of the vessel M/V WILD WAVE (Official Number 20 550855) and her engines, boilers, tackle, apparel, furnishings, appurtenances, etc.... ECF No. 1. 21 Plaintiff's also filed an application for a warrant to execute the arrest. ECF No. 5. As set forth in 22 Plaintiff's Complaint, in July 2011, Plaintiff entered into an agreement with Defendant Michael 23 Formico ("Formico") for services to be rendered to the M/V WILD WAVE at the Plaintiff's 24 Monterey Bay Boatyard. See Complaint, Ex. A ("Services Agreement"). Since the Services 25 Agreement was executed, Formico has accumulated over $50,000 in fees for parts, labor, and 26 storage ("lay days"). Declaration of Michael Maiorana in Support of the Application for Issuance 27 of Warrant of Arrest of Vessel, ECF No. 5-2 ("Maiorana Decl."), ¶¶ 2-4; Compl., Ex. B (Monterey 28 Bay Boatworks Co. Balance Sheet). As of August 28, 2012, Plaintiff has only made one payment of $3,000. Maiorana Decl., ¶ 4. Plaintiff's current outstanding balance is $53,924.12. Plaintiff 2 alleges that, if the Court does not issue a warrant for the arrest of the M/V WILD WAVE and its 3 appurtenances, "Plaintiff may lose the opportunity to regain possession [of the M/V WILD 4 WAVE] due to the inherent mobility of the vessel." Declaration of Cory A. Bernberg in Support of 5 the Application for Issuance of Warrant of Arrest of Vessel, ECF No. 5-1, ¶ 4. 6 Civ. Proc., Suppl. R. C(1). 46 U.S.C.A. § 31342 provides that a "person providing necessaries to a 9 vessel on the order of the owner or a person authorized by the owner. has a maritime lien on the 10 vessel." " '[N]ecessaries' includes repairs, supplies, towage, and the use of a dry dock or marine railway." 46 U.S.C.A. § 31301.

A complaint filed pursuant to Federal Rule of Civil Procedure, Supplemental Rule for Certain Admiralty and Maritime Claims C must be verified, describe with reasonable particularity 14 the property that is the subject of the action, and state that the property is within the district or will 15 be within the district while the action is pending. SeeFed. R. Civ. Proc., Suppl. R. C(2). Before 16 issuing an arrest warrant, the court must review the complaint and any supporting papers, and if the 17 conditions for an in rem action appear to exist, the court must issue an order directing the clerk to 18 issue a warrant for the arrest of the vessel or other property that is the subject of the action. Fed. R. 19 F.R.D. 179, 233 (1985), contemplates "a simple order with conclusory findings" determining 21 whether the plaintiff has made a prima facie showing that the action in rem is warranted.

Under Federal Rule of Civil Procedure, Supplemental Rule for Certain Admiralty and Maritime Claims C, an action in rem may be brought to enforce any maritime lien. See Fed. R. Civ. Proc., Suppl. R. C(3)(a)(i). The Advisory Committee Note on the Amendments to Rules, 105 20 Plaintiffs have adequately alleged the conditions for an in rem action with regard to the M/V WILD WAVE and her engines, boilers, tackle, apparel, furnishings, appurtenances, etc..., and 24 have provided: (1) a verified complaint; (2) the sworn declaration of Michael Maiorana attesting 25 that Formico owes Plaintiff $53,924.12 for necessaries including storage, parts, and labor provided 26 to the M/V WILD WAVE (Maiorana Decl., ¶¶ 2-4); and (3) documentation detailing Formico's 27 debt (Compl., Exs. A, B). Moreover, Plaintiffs have stated that the M/V WILD WAVE is currently 28 within this district in a boat slip at the Monterey Boatyard.

Thus, the Court hereby GRANTS Plaintiffs' Ex Parte Application for an Order Issuing Warrant for the Arrest of the M/V WILD WAVE, and ISSUES A WARRANT for the ARREST of 3 the M/V WILD WAVE (Official Number 550855). 4

IT IS SO ORDERED.

20110919

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