First Bank v. Exodus

District Court, W.D. Washington·Decided April 8, 2022·No. 3:21-cv-05412·Unknown

Opinion

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 FIRST BANK, CASE NO. 3:21-cv-05412-DGE 11

12 Plaintiff, AMENDED v. ORDER GRANTING PLAINTIFF’S 13 MOTION FOR SUMMARY 14 JUDGMENT EXODUS et al, 15 Defendant. 16

18 This matter comes before the Court on Plaintiff First Bank’s motion for summary 19 judgment. (Dkt. No. 21.) Having considered Plaintiff’s motion, Defendant’s response, Plaintiff’s 20 21 reply, the exhibits and declarations attached thereto, and the remainder of the record, the Court 22 GRANTS Plaintiff’s motion for summary judgment. 23 I. FACTUAL AND PROCEDURAL BACKGROUND 24 On June 1, 2021, Plaintiff filed a complaint in this court alleging that Defendants defaulted 25 on a loan secured against Defendants’ vessel, the Exodus, and their fishing rights. 26

27 1 (Dkt. No. 1.) The Court granted Plaintiff’s motions to arrest the Exodus, appoint a substitute 2 custodian, and move, board, and inspect the vessel. (Dkt. Nos. 2, 3, 7, and 8.) 3 On November 11, 2021, Plaintiff filed the instant motion for summary judgment, arguing 4 that there is no factual dispute that Defendants’ loan is in default or that an unpaid balance 5 remains on the loan. (Dkt. No. 21.) Plaintiff asks the Court to enter judgment against 6 7 Defendants and default judgment against any third parties who may have an interest in 8 Defendants’ assets. (Id.) 9 Defendant objects to Plaintiff’s motion, arguing that: 1) Plaintiff has failed to establish 10 that they are entitled to the late fees included in Defendants’ unpaid balance, and Plaintiff has not 11 explained how it calculated these fees; and 2) the fishing rights (referred to in the parties’ briefs 12 as the “Individual Fishing Quota”) sought by Plaintiff are not “appurtenances” of a vessel that 13 would attach to the vessel itself, and could be used by Defendant on vessels other than the 14 15 Exodus; Defendants state that they have leased their fishing rights to be used by other vessels. 16 (Dkt. No. 25.) Defendant requests additional time, pursuant to Fed. R. Civ. P. 56(f)1, to ascertain 17 how Plaintiff calculated the late fees included in the unpaid balance. (Id.) 18 II. STANDARD OF REVIEW 19 Summary judgment is appropriate where “the movant shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 21 22 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are 23 those which might affect the outcome of the suit under governing law. (Id. at 248.) In ruling on 24 summary judgment, a court does not weigh evidence to determine the truth of the matter, but 25 “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 26

27 1 Defendants clearly seek relief pursuant to Rule 56(d), which was formerly Rule 56(f). 1 547, 549 9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 2 744, 747 (9th Cir. 1992)). 3 On a motion for summary judgment, the court views the evidence and draws inferences 4 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. 5 U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable 6 7 inferences in favor of the non-moving party. See O'Melveny & Meyers, 969 F.2d at 747, rev'd 8 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a "sufficient 9 showing on an essential element of her case with respect to which she has the burden of proof' 10 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11 While it is sufficient for the Plaintiff to establish that there is a genuine dispute 12 concerning a material fact, once the moving party has carried its burden under Federal Rule of 13 Civil Procedure 56, the party opposing the motion "must do more than simply show that there is 14 15 some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 16 475 U.S. 574, 586 (1986). The opposing party cannot rest solely on her pleadings but must 17 produce significant, probative evidence in the form of affidavits, and/or admissible discovery 18 material that would allow a reasonable jury to fmd in her favor. Id. at n.11; Anderson v. Liberty 19 Lobby, Inc., 477 U.S. 242, 249-50 (1986). 20 The nonmoving party "must produce at least some 'significant probative evidence 21 22 tending to support the complaint.' (Id.); see also California Architectural Building Products, 23 Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). ("No longer can it be 24 argued that any disagreement about a material issue of fact precludes the use of summary 25 judgment."). 26 27 1 “If a party fails to properly support an assertion of fact or fails to properly address 2 another party’s assertion of fact as required by Rule 56(c), the court may . . . grant summary 3 judgment if the motion and supporting materials--including the facts considered undisputed-- 4 show that the movant is entitled to it[.]” Fed R. Civ. P. 56(e)(3). 5 III. DISCUSSION 6 A. Whether Defendants’ Fishing Rights Qualify as “Appurtenances”. 7 Defendants argues that their fishing rights are not “appurtenances” of the Exodus and 8 therefore should not be foreclosed upon along with the vessel. (Dkt. No. 25.) 9 A vessel is defined as the “hull and engines, tackle, apparel, and furniture of all kinds.” 10 11 The Augusta, 15 F.2d 727, 727 (E.D. La. 1920) (internal citation omitted). In addition to the 12 vessel, maritime liens also attach to the ship's “usual equipment ... and appurtenances.” The 13 Great Canton, 1924 A.M.C. 1074, 1075 (S.D. N.Y. 1924). 14 Black's Law Dictionary defines the word “appurtenance” as “[s]omething that belongs or 15 is attached to something else; esp[ecially], something that is part of something else that is more 16 important.” (11th ed. 2019). In the maritime context, the key inquiry into whether something is 17 18 an appurtenance is whether the item is “essential to the ship's navigation, operation, or mission.” 19 Gowen, Inc. v. F/V Quality One, 244 F.3d 64, 67-68 (1st Cir. 2001) (citing Gonzalez v. M/V 20 Destiny Panama, 102 F. Supp. 2d 1352, 1354 (S.D. Fla. 2000); United States v. F/V Sylvester F. 21 Whalen, 217 F.Supp. 916, 917 (D. Me. 1963)). 22 Authority from the United States Supreme Court and other circuits suggests that 23 intangible assets such as fishing rights can qualify as appurtenances in the maritime context. 24 United States v. Freights, Etc. of the Mount Shasta, 274 U.S. 466, 470, 47 S.Ct. 666, 71 L.Ed.

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