United States District Court, S.D. California
In the matter of the Complaint of HORNBLOWER FLEET, LLC owner, and HORNBLOWER YACHTS, LLC dba HORNBLOWER CRUISES AND EVENTS, owner pro hac vice for exoneration of, or limitation of, liability, Plaintiffs,
and Related Claims.
ORDER ON: (1) MOTION FOR LEAVE TO FILE A CLAIM IN THE
LIMITATION OF LIABILITY; (2) MOTION TO DISMISS FOR LACK FOR
LACK OF PROSECUTION PUTATIVE CLAIMS OF MR. OYER; AND (3)
MOTION TO STAY LIMITATION ACTION AND LIFT INJUNCTION AND STAY
ON OTHER PROCEEDINGS
JEFFERY T. MILLER, UNITED STATES DISTRICT JUDGE
before the court is claimant Susan Pendergast's Motion to
Stay the Limitation of Liability Action and Lift the
Injunction and Stay of Other Proceedings, (Doc. No. 244),
claimant Lauren Preski's Motion Requesting Leave of Court
to File a Claim in the Limitation of Liability, (Doc. No.
260), and Hornblower's Motion to Dismiss for Lack of
Prosecution the Putative Claims of Darrell Oyer, Colleen
Findlay, Conner Findlay, and Ian Findlay, (Doc. No. 262). A
hearing on the motions was held on June 13, 2019.
March 31, 2016, an allision occurred between the vessel
M/V Adventure Hornblower and a pier in San Diego,
September 30, 2016, Plaintiffs Hornblower Fleet, LLC, and
Hornblower Yachts, LLC dba Hornblower Cruises and Events
(collectively “Hornblower”) filed this Limitation
of Liability Act (“LOLA”) complaint. (Doc. No.
1). Hornblower filed the complaint claiming any alleged
losses, damages and injuries sustained as a result of the
voyage of the Adventure was not the result of any
negligence on Hornblower's part, or the result of any
unseaworthiness of the vessel, and that any such negligence
or unseaworthiness was without the knowledge or privity of
with the complaint, Plaintiffs filed an Application for
Issuance of Monition and Injunction of Any Further Action or
Claim, (Doc. No. 2) and an Ad Interim Stipulation of
Value, (Doc. No. 3). The stipulation informs the value of the
vessel and its appurtenances does not exceed $4, 270, 549.20.
Id. at 1.
December 13, 2016, upon application, the court entered an
order directing Issuance of Monition and Injunction and
approving the Ad Interim Stipulation for Value.
(Doc. No. 7.) In accordance with the order, a notice issued
informing people to file any respective claims arising from
the voyage of the M/V Adventure Hornblower on March
31, 2016 with the Clerk of Court for the U.S. District Court,
Southern District of California on or before January 23,
2017. (Doc. No. 8.) Plaintiffs provided publication notice,
as well as direct mail service to potential claimants. (Doc.
No. 47.) The notice was published in San Diego on December
20, 2016, December 27, 2016, January 3, 2017 and January 10,
2017. (Doc. No. 47.)
told 12 people filed claims in response to the LOLA action
before the court entered default as to all persons not
appearing in this action on April 13, 2017. (Doc. No. 52.) After being
granted leave to do so, Dana McCoy, filed an Answer and Claim
on July 21, 2017. (Doc. Nos. 102, 103, 103-1, 103-2.)
October 23, 2017, Hornblower was required to post an
appropriate bond with the Clerk of Court in the amount of $4,
270, 549.20 interest at six percent per annum from the date
of commencement of this action. (Doc. No. 129.)
LOLA action progressed over the next year and a half and at a
hearing on March 11, 2019, the court set a trial date of
April 29, 2019. (Doc. No. 229.) The court was proceeding to
trial based on the parties' representation that the only
remaining claimants left in the LOLA action were Ana Helvie,
Kyle Helvie and Pendergast. On April 22, 2019, one week
before the trial was set to begin, the Helvies and Hornblower
reached a settlement. When claimant Pendergast discovered the
Helvies' settlement she filed her motion to stay the LOLA
action, vacate the trial date and lift the stay injunction
and stay in other proceedings on the basis that only a single
claimant, Pendergast, remained. (Doc. No. 244.) The trial
date was vacated at a status hearing held on April 25, 2019.
(Doc. No. 245.)
the court received Pendergast's motion it reviewed the
docket and found that there were no entries reflecting the
dismissal of Claimants Dennis Fitzpatrick, Tolita Harrison,
Alexandria Harrison, Morgan Harrison, Elyse Matthias nor Dana
McCoy's claims against Hornblower. The court also became
aware that no action had been taken regarding the Notice of
Complaint for Exoneration from, or Limitation of, Liability
filed by Darrell J. Oyer on behalf of himself, his wife
Colleen B. Findlay and his two grandchildren (collectively
the “Oyer Group”). Following its discovery, the
court issued a Request for Additional Briefing, (Doc. No.
246), which resulted in a flurry of joint dismissals being
requested by all but the Oyer Group, (Doc. Nos, 248, 249,
250, 254). Orders of dismissals were duly granted by the
court. (Doc. Nos., 251, 252, 253, 255.)
the LOLA action proceeded in this court, on March 29, 2019,
Preski filed a lawsuit against Hornblower in San Diego
Superior Court. (Doc. No. 260-3.) Subsequently, on May 15,
2019, Preski filed a Motion Requesting Leave to File A Late
Claim. (Doc. No. 206).
24, 2019, Pendergast, Preski, Oyer and Colleen Findlay filed
a Joint Stipulation in Support of Pendergast's Motion to
Stay Limitation of Liability Act and Lift the Injunction and
Stay of Other Proceedings (the “Newton
Stipulation”). (Doc. No. 261.) Mr. Oyer and Ms. Findlay
also joined the stipulation on behalf of their minor
grandchildren but are unable enter a stipulation on their
behalf. See Johns v. County of San Diego, 114 F.3d
874, 976 (9th Cir. 1997) (the right of minors to competent
counsel is so compelling that the Ninth Circuit has joined
other circuits in holding that a “guardian or parent
cannot bring a lawsuit on behalf of a minor in federal court
without retaining a lawyer.”).
24, 2019, Hornblower filed its Motion to Dismiss the claims
of Darrell Oyer, Colleen Findlay, Conner Findlay and Ian
Findlay. (Doc. No. 262.)
hearing on the motions was held on June 13, 2019. Mr.
Tribolet and Mr. Wootton appeared on behalf Hornblower, Mr.
Pendergast and Mr. Clowney appeared on behalf of Pendergast,
with Ms. Albence appearing on behalf of Preski. Mr. Oyer was
afforded the opportunity to appear telephonically. During the
hearing the court provided Mr. Oyer with an update regarding
the status of this litigation and advised him of the need to
seek legal representation so that the Oyer Group's
continued participation in this matter could be determined as
soon as possible.
Preski's Motion for Leave to File a Claim
15, 2019, Preski filed her Motion Requesting Leave of Court
to File a Claim in the Limitation of Liability, (Doc. No.
260), and Hornblower duly filed its opposition. (Doc. No.
271.) Hornblower opposes Preski joining this litigation,
noting the barebones nature of the application, the lack of
facts presented and asserts that allowing her to join at this
late stage would require the re-opening of discovery and
further delay trial. (See generally Doc. No. 271.)
Rules of Civil Procedure Supplemental Admiralty and Maritime
Claims Rule F sets forth the procedure for bringing a
limitation action. Pursuant to the rule, “the court
shall issue a notice to all persons asserting claims with
respect to which the complaint seeks limitation, admonishing
them to file their respective claims with the clerk of the
court and to serve on the attorneys for the plaintiff a copy
thereof on or before a date to be named in the notice.”
Fed.R.Civ.P. Supp. Adm. R. F(4). The rule also provides that
“[f]or cause shown, the court may enlarge the time
within which claims may be filed.” Fed.R.Civ.P. F(4).
Thus, the “granting or withholding of permission to
file claims after the expiration of the monition period is
discretionary with the trial court.” Golden Gate
Bridge, Highway & Transp. v. Golden Gate Bridge, Highway
& Transp. Dist., Case No 13-cv-05875-JST, 2014 WL
6706827, at *2 (N.D. Cal. Nov. 24, 2014) (quoting Meyer