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In re Complaint of Hornblower Fleet, LLC

United States District Court, S.D. California

June 21, 2019

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.



         Presently 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.

         I. Background

         On March 31, 2016, an allision occurred between the vessel M/V Adventure Hornblower and a pier in San Diego, California.

         On 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 Hornblower. (Id.)

         Concurrent 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.

         On 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.)

         All 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.[1][2] (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.)

         On 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.)

         The 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.[3] 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.)

         When 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.)

         While 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).

         On May 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.”).

         On May 24, 2019, Hornblower filed its Motion to Dismiss the 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. 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.[4]

         II. Preski's Motion for Leave to File a Claim

         On May 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.)

         Federal 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 v. ...

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