Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peoples Bank v. P/C Ambassador of Lake

United States District Court, W.D. Washington, Seattle

April 20, 2017

PEOPLES BANK, et al., Plaintiffs,
v.
P/C AMBASSADOR OF THE LAKE, et al., Defendant.

          ORDER

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is Plaintiff Peoples Bank's motion for an order of interlocutory sale of the P/C Ambassador of the Lake pursuant to Federal Rule of Civil Procedure, Supplemental Rule E(9)(a). (Mot. (Dkt. # 78).) Defendant Salvatore Ragusa opposes People's Bank's motion (Ragusa Resp. (Dkt. # 82)), and Plaintiff-in-Intervention Seattle Mobile Marine, LLC (“SMM”) opposes the motion in part (SMM Resp. (Dkt. # 83)). The court has considered the parties' submissions, the relevant portions of the record, and the applicable law. Considering itself fully advised, [1] the court GRANTS Peoples Bank's motion as described below.

         II. BACKGROUND

         On September 2, 2016, the court ordered the clerk to issue a vessel arrest warrant for the Ambassador of the Lake, Mr. Ragusa's vessel, based on Peoples Bank's foreclosure on a marine mortgage. (Arrest Order (Dkt. # 8); see also Peoples Bank Compl. (Dkt. # 1).) SMM subsequently intervened in the case based on its verified statement of interest. (10/25/16 Order (Dkt. # 40); see also SMM Compl. (Dkt. # 39).) Mr. Ragusa subsequently moved to release his vessel from custody, and the court denied that motion but set a bond of $234, 000.00. (11/18/16 Order (Dkt. # 60).) Pursuant to the parties' stipulated motion, the court also ordered a change in the arrest arrangements of the Ambassador of the Lake in order to most effectively preserve its condition. (11/29/16 Order (Dkt. # 66).)

         Mr. Ragusa failed to pay the bond, and the vehicle therefore remains arrested. (See Dkt.; Ragusa Decl. (Dkt. # 82-2) ¶¶ 7-8; Loosmore Decl. (Dkt. # 81) ¶¶ 3, 6.) In addition, despite representing in settlement discussions that he would obtain a loan in order to settle this action and secure release of the Ambassador of the Lake, Mr. Ragusa has failed to do so. (Loosmore Decl. ¶¶ 4-5.) The custodian for the Ambassador of the Lake attests that the six months of idle time since the vessel's arrest has “resulted in some decay or deterioration, ” which he opines further idle time will exacerbate. (Osborn Decl. (Dkt. # 79) ¶ 6.) Because the value of Peoples Bank's collateral declines every day, Peoples Bank moves for an interlocutory sale of the Ambassador of the Lake. (See generally Mot.)

         III. ANALYSIS

         The parties have asked for various forms of relief from the court. Peoples Bank seeks an order authorizing the United States Marshal to conduct an interlocutory sale of the Ambassador of the Lake (id. at 1-5); a declaration that Peoples Bank's claim is superior to all other claimants (id. at 5-6); and authorization to submit a credit bid of up to $149, 753.12 at the interlocutory sale (id. at 6-7). In the event the court grants Peoples Bank's motion, SMM asks the court to set a minimum bid amount at the interlocutory sale of $227, 371.39 or “some round figure close thereto.” (SMM Resp. at 5.) Finally, Mr. Ragusa requests leave to remove certain objects from the vessel. (Ragusa Resp. at 4-5.) The court addresses each request in turn.

         A. Interlocutory Sale

         The Federal Rules of Civil Procedure provide for an interlocutory sale in an in rem action where: “(A) the attached or arrested property is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action; (B) the expense of keeping the property is excessive or disproportionate; or (C) there is an unreasonable delay in securing release of the property.” Fed. R. Civ. P., Supp. R. E(9)(a)(i). Supplemental Rule E(9)(a)(i) is phrased in the disjunctive, meaning the presence of any one of the three conditions suffices to warrant an interlocutory sale. See id.

         Here, each of the conditions listed in Supplemental Rule E(9)(a)(i) is met. The seven-and-a-half months that the Ambassador of the Lake has remained idle render its machinery and equipment liable to deterioration and decay. (See Osborn Decl. ¶ 6); Fed. R. Civ. P., Supp. R. E(9)(a)(i)(A). Mr. Ragusa argues without citation to authority that Peoples Bank has provided insufficient evidence of actual deterioration or decay (Ragusa Resp. at 2-3), but Mr. Ragusa overstates the legal standard that Peoples Bank must meet, see Cal. Yacht Marina-Chula Vista, LLC v. S/V Opily, No. 10-cv-01215-BAS(BGS), 2015 WL 1197540, at *3 (S.D. Cal. Mar. 16, 2015) (“While the Court has not been presented with any evidence the Defendant Vessel has in fact deteriorated, the Court finds that the Defendant Vessel is liable to deterioration or injury if it remains arrested during the pendency of this action.”). The opinion of the vessel's custodian, who is experienced with such matters, suffices to demonstrate that the vessel is “liable to . . . deterioration [or] decay.” Fed. R. Civ. P., Supp. R. E(9)(a)(i)(A); (see Osborn Decl. ¶ 6.)

         In addition, the $46, 447.95 in custody charges as of March 21, 2017, are disproportionate to the market value of the Ambassador of the Lake. (See Olson Decl. (Dkt. # 80) ¶¶ 3-4); Fed. R. Civ. P., Supp. R. E(9)(a)(i)(B). Mr. Ragusa resists this conclusion on the ground that the value of the Ambassador of the Lake is $240, 000.00, not $190, 000.00 as Peoples Bank suggests. (See Ragusa Resp. at 3 (citing Ragusa Decl. ¶ 3, Ex. A (“1/12/15 Valuation”)).) As support, Mr. Ragusa relies a January 12, 2015, valuation that predates the deterioration and decay that has likely occurred since the arrest here. (1/12/15 Valuation at 1.) Moreover, even assuming the value remains at $240, 000.00, the growing custody charges are excessive and disproportionate to the value of the vessel. See Fed. R. Civ. P., Supp. R. E(9)(a)(i)(B); see Seatrade Grp. N.V. v. 6, 785.5 Tons of Cement, No. Civ.A. H-05-2771, 2005 WL 3878026, at *5 (S.D. Tex. Dec. 7, 2005) (“As time passes, the expense of storing the property consumes more and more of the cargo's value and becomes excessive in relation to the value of the cargo.”).

         Finally, Mr. Ragusa has caused unreasonable delay in securing the release of the vessel by repeatedly failing to deliver on his promises to pay Peoples Bank or post bond. (See 11/18/16 Order at 2 (granting Mr. Ragusa's request to set a bond for release of the boat and setting a deadline for payment of November 23, 2016); Loosmore Decl. ¶¶ 3 (indicating that to date, Mr. Ragusa has not paid the bond), 4-5 (representing that the parties reached a settlement agreement on December 9, 2016, but Mr. Ragusa failed to pay the agreed amount), 6 (indicating that after December 2016, Mr. Ragusa has taken no steps to post a bond or pay the settlement amount); Vaughn Decl. (Dkt. # 82-1) ¶¶ 4-6 (predicting incorrectly that within a “few days” of March 28, 2017, Mr. Ragusa would secure private financing)); Fed. R. Civ. P., Supp. R. E(9)(a)(i)(C). Mr. Ragusa argues without citation to legal authority that he should be afforded additional time to secure a loan and post a bond. (Ragusa Resp. at 3.) The court disagrees. Seven months constitutes sufficient time for Mr. Ragusa to have secured a bond, were he capable of doing so. See Bank of Rio Vista v. Vessel Captain Pete, No. C 04-2736CW, 2004 WL 2330704, at *2 (N.D. Cal. Oct. 14, 2004) (collecting cases in support of the proposition that defendants are typically given at least four months to bond a vessel); see also Ferrous Fin. Servs. Co. v. O/S Arctic Producer, 567 F.Supp. 400 (W.D. Wash. 1983) (concluding that a four-month arrest without any effort to have the vessel released constitutes unreasonable delay). Mr. Ragusa makes no showing that he has progressed toward securing the requisite funds, and the court concludes that the delay has been unreasonable. See Fed. R. Civ. P., Supp. R. E(9)(a)(i)(C).

         The court concludes that under any of the disjunctive prongs of Supplemental Rule E(9)(a)(i), an order authorizing an injunctive sale is warranted. Accordingly, the court grants Peoples Bank's motion to that effect and directs the Marshal to cause the Ambassador of the Lake to be condemned and sold at public auction, pursuant to the rules of the United States District Court for the Western District of Washington.[2] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.