United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR INTERLOCUTORY VESSEL SALE AND AUTHORIZATION TO CREDIT BID (ECF No. 16)
CYNTHIA BASHANT, District Judge.
On May 14, 2014, Plaintiff California Yacht Marina - Chula Vista, LLC ("Plaintiff") commenced this action in admiralty against Defendant S/V Opily, a 40-foot 1975 Kienner sailing vessel, bearing California CF No. CF6116KW, and all of her engines, tackle, accessories, equipment, furnishings and appurtenances, in rem ("Defendant Vessel"), by filing a verified complaint for vessel arrest, interlocutory sale, and for money damages for trespass, breach of maritime contract and quantum meruit. (ECF No. 1)
On May 28, 2014, the Court issued Orders appointing a substitute custodian and authorizing the movement and arrest of the Defendant Vessel. (ECF Nos. 6, 7.) The arrest warrant was thereafter executed on June 20, 2014. (ECF No. 10.) On July 29, 2014, the Clerk entered default against the Defendant Vessel. (ECF No. 14.) Presently before the Court is a motion filed by Plaintiff for interlocutory sale of the Defendant Vessel and for authorization to credit bid at the sale. (ECF No. 16.) No appearance has been made in this action on behalf of the Defendant Vessel and no opposition has been filed to the present motion.
The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS Plaintiff's motion (ECF No. 16).
Plaintiff operates a marina in Chula Vista, California. On or about May 21, 2006, John Mallen, who is believed to be the sole owner of the Defendant Vessel, executed a License Agreement ("Agreement") with Plaintiff. (Compl. at Ex. A.) Pursuant to the Agreement, Plaintiff provided wharfage services for the benefit of the Defendant Vessel commencing on June 1, 2006. ( Id. at ¶ V.) The monthly slip fee is listed as $540, with an additional $100 live aboard fee. ( Id. at ¶¶ VI, IX.)
The Agreement provides that the license continues on a "month to month basis until default under the provisions of th[e] license or until terminated by either party by prior written notice of the intent to terminate given not less than thirty (30) days before the effective days thereof." ( Id. at p. ¶ 3.) The Agreement further states that Plaintiff "shall have all liens provided for in the California Harbors and Navigation Code and such other liens, rights and remedies, including the right to sell the Vessel at public auction, and under California or Federal Law, as each may be applicable." ( Id. at ¶9.)
Over the course of many months, Plaintiff alleges the account for the Defendant Vessel fell progressively further behind, standing in arrears at the time of the filing of the Verified Complaint in an amount of not less than $10, 949.81. (Compl. at ¶ 5.) Plaintiff alleges it tendered monthly invoices demanding payment and otherwise made demands that the account be brought current. ( Id. )
Plaintiff further alleges that on January 27, 2014, its attorney mailed a letter via Certified and First Class U.S. Mail to Mr. Mallen, listed as the registered and legal owner of the Defendant Vessel on the Agreement, demanding payment of the arrearages in full or alternatively an acceptable payment plan. ( Id. at ¶ 6.) The letter also provided notice that "the License Agreement will be terminated in 34 days, that is, on March 4, 2014, " and that if the Defendant Vessel was not removed from Plaintiff's marina by that date she would "be regarded as a trespasser for all purposes." ( Id. ) Plaintiff's letter further notified Mr. Mallen of its position that "as a result of the failure to pay wharfage fees, a maritime necessities' lien encumbers the Defendant Vessel and as a result Plaintiff is entitled to foreclose on [the maritime lien] by obtaining Orders from the U.S. District Court requiring the U.S. Marshal to seize the offending vessel and subsequently sell her at public auction.'" ( Id. ) Neither Plaintiff nor its counsel received a response to the letter. ( Id. )
Plaintiff alleges that in spite of this admonition and the multiple demands that the Defendant Vessel's account be brought current, the account was not brought current and the Defendant Vessel failed and refused to vacate Plaintiff's marina following termination of the Agreement. ( Id. at ¶¶ 8, 12.) Plaintiff has accordingly alleged that, in addition to its maritime lien based on the provision of wharfage services (a "necessaries" lien under 46 U.S.C. sections 31301 et seq )., an additional maritime lien arose and subsists against the Defendant Vessel on account of her trespass at Plaintiff's marina. ( Id. at ¶¶ 11-14.)
As a consequence of the Defendant Vessel's owner's failure to vacate her from Plaintiff's marina following termination of the Agreement and his failure to pay all or any part of the wharfage fee arrearages, Plaintiff filed a Verified Complaint commencing this action on May 14, 2014. On May 28, 2014, the Court issued Orders appointing a substitute custodian and authorizing the movement and arrest of the Defendant Vessel. (ECF Nos. 6, 7.) The arrest warrant was thereafter executed on June 20, 2014. (ECF No. 10.) On July 29, 2014, the Clerk entered default against the Defendant Vessel. (ECF No. 14.) No representative of the Defendant Vessel has appeared or otherwise contacted the Court.
Plaintiff now seeks entry of an Order requiring the United States Marshal to sell the Defendant Vessel as soon as possible at public auction, so the proceeds (if any) can be used to satisfy in whole or part Plaintiff's maritime liens. Plaintiff contends the relief sought is proper because the Defendant Vessel is deteriorating while in custody, because there has been no effort to secure her release, and because the expenses of keeping her are excessive or disproportionate to her value.
A. Interlocutory Sale of ...