Opinion
Case No. 2:14-cv-07210-ODW(AS)
09-25-2015
DIANE GOODWIN, Plaintiff, v. BLAINE E. WOODS; VIRGINIA M. BROWN; AZURE SEAS, in rem, Defendants.
ORDER HOLDING SERVICE IN ABEYANCE AND TO SHOW CAUSE RE: LACK OF PROSECUTION
I. INTRODUCTION
On September 4, 2015, in response to the Court's Order (ECF No. 21), Plaintiff Diane Goodwin requested that the Court hold service on Defendant Azure Seas in abeyance for ninety days. (ECF No. 25.) For the reasons discussed below, the Court GRANTS IN PART Plaintiff's request, and shall hold service in abeyance for thirty days. On or before October 28, 2015, Plaintiff must either move to arrest the vessel, or must show cause, in writing, why this action should not be dismissed for lack of prosecution.
II. BACKGROUND
On July 18, 2012, Plaintiff filed this action in the United States District Court for the Southern District of California. Plaintiff alleges that she was a passenger aboard the vessel Azure Seas when she fell and injured herself. (Compl. ¶ 6.) Plaintiff named the vessel's captain (Blaine Woods) and the vessel's owner (Virginia Brown) as in personam defendants, and named the vessel Azure Seas as an in rem defendant. (Id. ¶¶ 2-5.) On January 17, 2013, Plaintiff voluntarily dismissed her claims against Woods and Brown. (ECF No. 6.) On March 8, 2013, the court held service on the Azure Seas in abeyance. (ECF No. 9.) However, on April 25, 2014, the court declined to continue holding service in abeyance. (ECF No. 11.)
On August 25, 2014, Plaintiff moved to transfer this case to the Central District of California. (ECF No. 13.) Because service of process in in rem maritime actions can be effected only in the judicial district in which the action is pending, Fed. R. Civ. P. E(3)(a), and because the vessel moved from Oceanside, California, to Santa Barbara, California, while the action was pending, Plaintiff argued that it was necessary to transfer this action to the Central District. The court granted Plaintiff's motion, and the matter was transferred to this Court. (ECF No. 14.)
On December 20, 2012, Plaintiff filed a parallel action in state court against the same defendants. (ECF No. 25.) Plaintiff's counsel has since dismissed Woods from that action because they could not locate and serve him. (Id.) Brown passed away in 2014, and an amended complaint naming her heirs was filed in December 2014. (Id.) However, to date, Plaintiff has been unable to serve Brown's heirs. (Id.) Plaintiff represents that she intends to dismiss the state court action if she cannot serve the heirs prior to September 2016. (Id.)
III. DISCUSSION
It appears to the Court that this matter is languishing without any meaningful attempts to bring it to conclusion. Although the courts must hold the "[i]ssuance and delivery of process in rem . . . in abeyance if the plaintiff so requests," Fed. R. Civ. P. E(3)(b), this applies only where (1) the vessel is outside the court's jurisdiction and (2) "it is clear that the vessel will be within the Court's jurisdiction 'shortly.'" Norfolk Shipbuilding & Drydock Corp. v. USNS Truckee, 629 F. Supp. 779, 781 (E.D. Va. 1985); see also Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 515 (4th Cir. 1955). Here, the Azure Seas was apparently "docked for many years" in Oceanside, California, while this matter was venued in the Southern District of California. (ECF No. 13.) The vessel is now docked in Santa Barbara, California. (Id.) There is no reason why service could not have been effected on the vessel by now.
Plaintiff's explanation for not serving the vessel is unpersuasive. Plaintiff argues that she is attempting to prosecute the state court action against the in personam defendants first so as not to interrupt the business operations of the vessel's owners by arresting the vessel. (ECF No. 25.) However, it appears that the state court matter has stalled while Plaintiff attempts to serve Brown's heirs, and Plaintiff provides no evidence that she has been diligent in those attempts. Moreover, it would seem that this is the precise situation where a prejudgment maritime lien on the vessel would provide a plaintiff with critical leverage in pursuing maritime tort claims. See Merchants Nat. Bank of Mobile v. Dredge Gen. G. L. Gillespie, 663 F.2d 1338, 1345 (5th Cir. 1981) (noting that maritime torts give rise to maritime liens); Riffe Petroleum Co. v. Cibro Sales Corp., 601 F.2d 1385, 1389 (10th Cir. 1979) (noting that maritime lien arises "automatically" at the same time the cause of action arises). Plaintiff's counsel should concern themselves with the diligent prosecution of their client's claims rather than with the business interests of the vessel's owners. Plaintiff cannot sit on this case just because it is an in rem action.
In maritime cases, in rem service is effected by arresting the vessel. Fed. R. Civ. P. E(3). --------
IV. CONCLUSION
The Court will hold service in abeyance for thirty days from the date of this Order. However, on or before October 28, 2015, Plaintiff must either move to arrest the vessel, or must show cause, in writing, why this action should not be dismissed for lack of prosecution. No hearing will be held. The Court cautions Plaintiff that, absent an exceptionally compelling reason, the Court will dismiss the action if Plaintiff has not moved to arrest the vessel by that date.
IT IS SO ORDERED.
September 25, 2015
/s/ _________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE