United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned under Local Rule
302(c)(3). Before the court is plaintiff Cap One, Inc.'s
request for an order authorizing the issuance of a warrant
for the arrest of defendant MV Sierra Rose, Official Number:
1177228, her engines, tackle, apparel, furniture, equipment,
and appurtenances, in rem (“the Vessel”), which
Vessel is the subject of the instant admiralty action for the
foreclosure of a preferred maritime mortgage, and
plaintiff's separate motion to adopt a substitute
Notice of Request for Review in Accordance with Supplemental
Rule C (ECF No. 2)
requests the court to review the verified complaint and enter
an order directing the Clerk of Court to issue a warrant for
the arrest of the Vessel, which “is located alongside
dock at Tahoe Keys Marina, Slip No. A104, 2435 Venice Dr. E,
South Lake Tahoe, California within the Admiralty
jurisdiction of this Court. (ECF No. 2 at 1.)
action in rem may be brought . . . [t]o enforce any maritime
lien.” Fed.R.Civ.P. Supp. Adm. Rule C(1)(a). To
commence an action in rem against a vessel, the plaintiff
must file a verified complaint that describes the vessel
“with reasonable particularity” and states that
the vessel “is within the district or will be within
the district while the action is pending.” Fed.R.Civ.P.
Supp. Adm. & Mar. Cl. R. C(2); see also Madeja v.
Olympic Packers, LLC, 310 F.3d 628, 637 (9th Cir. 2002).
If the plaintiff meets these conditions, the district court
must take the boat into custody-unless the plaintiff requests
otherwise-by issuing an arrest warrant to be served by the
marshal. See Fed.R.Civ.P. Supp. Adm. & Mar. Cl.
R. C(3)(a)-(b), E(3)(b). The arrest warrant should issue
“upon a prima facie showing that the plaintiff has an
action in rem against the defendant . . . and that the
property is within the district.” Fed.R.Civ.P. Supp.
Adm. Rule C, Advisory Committee Notes to 1985 Amendment.
court has reviewed the verified complaint and related
documents filed in accordance with the requirements of Rule
C(3) of the Supplemental Rules for Admiralty and Maritime
Claims. The verified complaint describes the Vessel with
particularity and establishes that it is currently located
within the Eastern District of California at Tahoe Keys
Marina, Slip No. A104, 2435 Venice Dr. E, South Lake Tahoe,
California. It appears that plaintiff has made a prima facie
showing that an action in rem exists to support the issuance
of an arrest warrant for the MV Sierra Rose. Because
plaintiff has made a prima facie showing that the conditions
for a maritime in rem action exists, the requested vessel
arrest warrant must issue.
Motion to Adopt a Substitute Custodian (ECF No. 3)
plaintiff requests the court to enter an order appointing
Resource Management & Development, Inc. as substitute
custodian of the vessel MV Sierra Rose, Official Number
1177228. (ECF No. 3.) Resource Management & Development
has consented to assume responsibility of safekeeping the
Vessel and to act as her custodian under further order of
this court. (Id. at ¶ 4.)
interest of allowing the Vessel and equipment to remain in
the hands of a competent person and to save unnecessary
expenses, the court grants plaintiff's request to appoint
the following substitute custodian of the Vessel:
Resource Management & Development, Inc.
P.O. Box 70458
Reno, NV 89570
(“Substitute Custodian”). Substitute Custodian
will charge a rate consistent with its normal rates for the
custodial care of vessels as represented in Exhibit A
attached to the motion to appoint a substitute custodian.
(See ECF No. 3-1 at 2.)
and Resource Management & Development in consideration of
the Marshal's consent to the substitution of custody of
the Vessel, have agreed to release the United States and the
U.S. Marshal from any and all liability and responsibility
arising out of the care and custody of the Vessel, from the
time the Marshal transfers custody of the Vessel over to the
Substitute Custodian, and Plaintiff and Resource Management
& Development further agree to hold harmless and
indemnify the United States and the U.S. Marshal from any and
all claims whatsoever arising out of Substitute
Custodian's possession and ...