In Re In the matter of the Complaint of Harry Funk and Laura Glaves-Funk

S.D. California

In Re In the matter of the Complaint of Harry Funk and Laura Glaves-Funk

DecidedAugust 6, 2021

Docket3:21-cv-01046

StatusUnknown

This text of In Re In the matter of the Complaint of Harry Funk and Laura Glaves-Funk (In Re In the matter of the Complaint of Harry Funk and Laura Glaves-Funk) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re In the matter of the Complaint of Harry Funk and Laura Glaves-Funk, (S.D. Cal. 2021).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE: THE COMPLAINT OF FUNK Case No. 21-cv-1046-MMA (RBB) AND GLAVES-FUNK FOR 12 EXONERATION FROM, OR ORDER GRANTING CLAIMANT 13 LIMITATION OF, LIABILITY, GEICO MARINE INSURANCE COMPANY’S MOTION FOR LEAVE 14 TO FILE LATE ANSWER AND 15 CLAIM

16 [Doc. No. 19] 17 18 19 Claimant Geico Marine Insurance Company (“Geico”) moves “for Leave to File its 20 Answer and Counterclaim out of time” pursuant to Federal Rule of Civil Procedure 6(b). 21 See Doc. No. 19 at 1–2.1 Plaintiffs-in-Limitation Harry Funk and Laura Glaves-Funk 22 (collectively, “Plaintiffs-in-Limitation”) have not filed an opposition brief or notice of 23 non-opposition, see CivLR 7.1.e.2, 7.1.f.3, but Geico represents that Plaintiffs-in- 24 Limitation do not oppose the motion, see Noma Decl., Doc. No. 19 ¶ 7. The Court finds 25 the matter suitable for determination on the papers and without oral argument pursuant to 26

27 1 All citations to electronically filed documents refer to the pagination assigned by the CM/ECF system. 28 1 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. For the reasons set 2 forth below, the Court GRANTS Geico’s motion. 3 I. BACKGROUND 4 Plaintiffs-in-Limitation, owners of the motor vessel “Sea Tiger,” a 1973 50’ 5 Tollycraft bearing Official No. 1074456, and her engines, tackle, appurtenances, etc. 6 (“Vessel”) filed a Complaint on June 2, 2021. See Doc. No. 1. Plaintiffs-in-Limitation 7 seek exoneration from, or limitation of, liability under the Limitation of Liability Act, 8 46 U.S.C. §§ 30501–30512, for all claims arising out of, resulting from, or in any way 9 connected with a fire on the Vessel on March 15, 2021 in Oceanside Harbor in 10 Oceanside, California. See id. ¶¶ 1, 6. On June 14, 2021, the Court granted Plaintiffs-in- 11 Limitation’s ex parte application for (1) an order approving stipulation for value and 12 costs and letter of undertaking, (2) an order directing monition to issue and restraining all 13 suits, and (3) an order directing execution of monition and publication of notice. See 14 Doc. No. 6. As relevant to the instant motion, the Court ordered any potential claimants 15 to file claims on or before July 14, 2021. See Doc. No. 6 at 2. 16 On July 22, 2021, Geico filed an “Answer in Admiralty to Complaint for 17 Exoneration from, or Limitation of, Liability” and “Claim in Limitation.” See Doc. No. 18 17; Doc. No. 17-1. On July 29, 2021, Geico filed the instant motion “for Leave to File its 19 Answer and Counterclaim out of time” pursuant to Federal Rule of Civil Procedure 6(b). 20 See Doc. No. 19 at 2. Attached to its motion, Geico attached two documents: (1) an 21 “Answer in Admiralty to Complaint for Exoneration from, or Limitation of, Liability,” 22 which appears identical to the one Geico previously filed, and (2) a “Claim in 23 Limitation,” which is similar in most respects to the one Geico previously filed—but the 24 attached exhibit does not include, for example, a demand for jury trial. See Exh. B, Doc. 25 No. 19 at 16–22, 23–29. 26 II. LEGAL STANDARD 27 As noted above, a court may grant an extension after time has expired “if the party 28 failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In the admiralty 1 and maritime context for limitation actions, Supplemental Rule F permits a court to 2 “enlarge the time within which claims may be filed.” Fed. R. Civ. P. Supp. R. F(4). The 3 district court has discretion to give leave to file late claims after the monition period. See 4 Meyer v. New England Fish Co. of Oregon, 136 F.2d 315, 316 (9th Cir. 1943) 5 (“Ordinarily, the granting or withholding of permission to file claims after the expiration 6 of the monition period is discretionary with the trial court.”); see also Matter of 7 Hornblower Fleet, LLC, No. 16-cv-2468-JM (LL), 2019 WL 2569551, at *3 (S.D. Cal. 8 June 21, 2019) (quoting Golden Gate Bridge, Highway & Transportation v. Golden Gate 9 Bridge, Highway & Transportation Dist., Nos. 13–cv–05875–JST and 13-cv-02862-JST, 10 2014 WL 6706827, at *2 (N.D. Cal. Nov. 24, 2014)) (same). As elaborated by the Fifth 11 Circuit: 12 13 Admiralty is administered with equitable liberality and a simultaneous freedom from restraints or frustrations occasioned by technicalities or formal 14 imperfections. Consequently, we readily accept the guiding principle . . .that 15 “so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant 16 permission to file late claims . . . ” upon a showing of the reasons therefor. 17 18 Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 362 (5th Cir. 1963) 19 (citation omitted) (quoting 3 Benedict, Admiralty § 518, p. 542 (Knauth ed. 1940)) (first 20 citing Bombace v. Am. Bauxite Co., 39 F.2d 867, 869 (5th Cir. 1930); and then citing 21 Petition of New Jersey Barging Corp., 168 F. Supp. 925, 928 (S.D.N.Y. 1958)); see also 22 Matter of Hornblower Fleet, LLC, 2019 WL 2569551, at *3 (applying the same standard 23 adopted by the Fifth Circuit in Texas Gulf Sulphur Co.). 24 However, “relief from a tardy claim is not a matter of right. It depends on an 25 equitable showing.” Golnoy Barge Co. v. M/T SHINOUSSA, 980 F.2d 349, 351 (5th Cir. 26 1993) (quoting Texas Gulf Sulphur Co, 313 F.2d at 363). In ruling on a motion to file a 27 late claim, a district court should consider the following factors: “(1) whether the 28 proceeding is pending and undetermined, (2) whether granting the motion will adversely 1 affect the rights of the parties, and (3) the claimant’s reasons for filing late.” Matter of 2 Deng, Nos. C 13-02659 WHA and C 13–05071 WHA, 2014 WL 1347380, at *8 (N.D. 3 Cal. Apr. 3, 2014) (quoting Golnoy Barge Co., 980 F.2d at 351). 4 III. DISCUSSION 5 Because the July 22 filing was made after the July 14 deadline, Geico needed to 6 show cause. See Fed. R. Civ. P. 6(b)(1)(B (“When an act may or must be done within a 7 specified time, the court may, for good cause, extend the time . . . on motion made after 8 the time has expired if the party failed to act because of excusable neglect.”)); Fed. R. 9 Civ. P. Supp. R. F(4) (“For cause shown, the court may enlarge the time within which 10 claims may be filed.”); Matter of Hornblower Fleet, LLC, 2019 WL 2569551, at *4 11 (quoting Texas Gulf Sulphur Co, 313 F.2d at 363) (“[R]elief from a tardy claim is not a 12 matter of right. It depends on an equitable showing.”). Given that Geico’s late July 22 13 filing fails to provide any information to establish good cause or excusable neglect, the 14 Court sua sponte STRIKES Geico’s July 22 Answer and Claim (Doc. No. 17) in their 15 entirety. 16 Turning to the instant motion, the Court examines Geico’s request under the three 17 factors discussed above. See Matter of Deng, 2014 WL 1347380, at *8 (quoting Golnoy 18 Barge Co., 980 F.2d at 351).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IN RE: THE COMPLAINT OF FUNK Case No. 21-cv-1046-MMA (RBB) AND GLAVES-FUNK FOR 12 EXONERATION FROM, OR ORDER GRANTING CLAIMANT 13 LIMITATION OF, LIABILITY, GEICO MARINE INSURANCE COMPANY’S MOTION FOR LEAVE 14 TO FILE LATE ANSWER AND 15 CLAIM

16 [Doc. No. 19] 17 18 19 Claimant Geico Marine Insurance Company (“Geico”) moves “for Leave to File its 20 Answer and Counterclaim out of time” pursuant to Federal Rule of Civil Procedure 6(b). 21 See Doc. No. 19 at 1–2.1 Plaintiffs-in-Limitation Harry Funk and Laura Glaves-Funk 22 (collectively, “Plaintiffs-in-Limitation”) have not filed an opposition brief or notice of 23 non-opposition, see CivLR 7.1.e.2, 7.1.f.3, but Geico represents that Plaintiffs-in- 24 Limitation do not oppose the motion, see Noma Decl., Doc. No. 19 ¶ 7. The Court finds 25 the matter suitable for determination on the papers and without oral argument pursuant to 26

27 1 All citations to electronically filed documents refer to the pagination assigned by the CM/ECF system. 28 1 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. For the reasons set 2 forth below, the Court GRANTS Geico’s motion. 3 I. BACKGROUND 4 Plaintiffs-in-Limitation, owners of the motor vessel “Sea Tiger,” a 1973 50’ 5 Tollycraft bearing Official No. 1074456, and her engines, tackle, appurtenances, etc. 6 (“Vessel”) filed a Complaint on June 2, 2021. See Doc. No. 1. Plaintiffs-in-Limitation 7 seek exoneration from, or limitation of, liability under the Limitation of Liability Act, 8 46 U.S.C. §§ 30501–30512, for all claims arising out of, resulting from, or in any way 9 connected with a fire on the Vessel on March 15, 2021 in Oceanside Harbor in 10 Oceanside, California. See id. ¶¶ 1, 6. On June 14, 2021, the Court granted Plaintiffs-in- 11 Limitation’s ex parte application for (1) an order approving stipulation for value and 12 costs and letter of undertaking, (2) an order directing monition to issue and restraining all 13 suits, and (3) an order directing execution of monition and publication of notice. See 14 Doc. No. 6. As relevant to the instant motion, the Court ordered any potential claimants 15 to file claims on or before July 14, 2021. See Doc. No. 6 at 2. 16 On July 22, 2021, Geico filed an “Answer in Admiralty to Complaint for 17 Exoneration from, or Limitation of, Liability” and “Claim in Limitation.” See Doc. No. 18 17; Doc. No. 17-1. On July 29, 2021, Geico filed the instant motion “for Leave to File its 19 Answer and Counterclaim out of time” pursuant to Federal Rule of Civil Procedure 6(b). 20 See Doc. No. 19 at 2. Attached to its motion, Geico attached two documents: (1) an 21 “Answer in Admiralty to Complaint for Exoneration from, or Limitation of, Liability,” 22 which appears identical to the one Geico previously filed, and (2) a “Claim in 23 Limitation,” which is similar in most respects to the one Geico previously filed—but the 24 attached exhibit does not include, for example, a demand for jury trial. See Exh. B, Doc. 25 No. 19 at 16–22, 23–29. 26 II. LEGAL STANDARD 27 As noted above, a court may grant an extension after time has expired “if the party 28 failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In the admiralty 1 and maritime context for limitation actions, Supplemental Rule F permits a court to 2 “enlarge the time within which claims may be filed.” Fed. R. Civ. P. Supp. R. F(4). The 3 district court has discretion to give leave to file late claims after the monition period. See 4 Meyer v. New England Fish Co. of Oregon, 136 F.2d 315, 316 (9th Cir. 1943) 5 (“Ordinarily, the granting or withholding of permission to file claims after the expiration 6 of the monition period is discretionary with the trial court.”); see also Matter of 7 Hornblower Fleet, LLC, No. 16-cv-2468-JM (LL), 2019 WL 2569551, at *3 (S.D. Cal. 8 June 21, 2019) (quoting Golden Gate Bridge, Highway & Transportation v. Golden Gate 9 Bridge, Highway & Transportation Dist., Nos. 13–cv–05875–JST and 13-cv-02862-JST, 10 2014 WL 6706827, at *2 (N.D. Cal. Nov. 24, 2014)) (same). As elaborated by the Fifth 11 Circuit: 12 13 Admiralty is administered with equitable liberality and a simultaneous freedom from restraints or frustrations occasioned by technicalities or formal 14 imperfections. Consequently, we readily accept the guiding principle . . .that 15 “so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant 16 permission to file late claims . . . ” upon a showing of the reasons therefor. 17 18 Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 362 (5th Cir. 1963) 19 (citation omitted) (quoting 3 Benedict, Admiralty § 518, p. 542 (Knauth ed. 1940)) (first 20 citing Bombace v. Am. Bauxite Co., 39 F.2d 867, 869 (5th Cir. 1930); and then citing 21 Petition of New Jersey Barging Corp., 168 F. Supp. 925, 928 (S.D.N.Y. 1958)); see also 22 Matter of Hornblower Fleet, LLC, 2019 WL 2569551, at *3 (applying the same standard 23 adopted by the Fifth Circuit in Texas Gulf Sulphur Co.). 24 However, “relief from a tardy claim is not a matter of right. It depends on an 25 equitable showing.” Golnoy Barge Co. v. M/T SHINOUSSA, 980 F.2d 349, 351 (5th Cir. 26 1993) (quoting Texas Gulf Sulphur Co, 313 F.2d at 363). In ruling on a motion to file a 27 late claim, a district court should consider the following factors: “(1) whether the 28 proceeding is pending and undetermined, (2) whether granting the motion will adversely 1 affect the rights of the parties, and (3) the claimant’s reasons for filing late.” Matter of 2 Deng, Nos. C 13-02659 WHA and C 13–05071 WHA, 2014 WL 1347380, at *8 (N.D. 3 Cal. Apr. 3, 2014) (quoting Golnoy Barge Co., 980 F.2d at 351). 4 III. DISCUSSION 5 Because the July 22 filing was made after the July 14 deadline, Geico needed to 6 show cause. See Fed. R. Civ. P. 6(b)(1)(B (“When an act may or must be done within a 7 specified time, the court may, for good cause, extend the time . . . on motion made after 8 the time has expired if the party failed to act because of excusable neglect.”)); Fed. R. 9 Civ. P. Supp. R. F(4) (“For cause shown, the court may enlarge the time within which 10 claims may be filed.”); Matter of Hornblower Fleet, LLC, 2019 WL 2569551, at *4 11 (quoting Texas Gulf Sulphur Co, 313 F.2d at 363) (“[R]elief from a tardy claim is not a 12 matter of right. It depends on an equitable showing.”). Given that Geico’s late July 22 13 filing fails to provide any information to establish good cause or excusable neglect, the 14 Court sua sponte STRIKES Geico’s July 22 Answer and Claim (Doc. No. 17) in their 15 entirety. 16 Turning to the instant motion, the Court examines Geico’s request under the three 17 factors discussed above. See Matter of Deng, 2014 WL 1347380, at *8 (quoting Golnoy 18 Barge Co., 980 F.2d at 351). As to the first factor, the action is still in its early stages, 19 and any delay associated with the late filing would be minimal. The deadline to file 20 claims was July 14, see Doc. No. 6 at 2, and Geico filed this motion on July 29, see Doc. 21 No. 19. The Early Neutral Evaluation Conference and the Case Management 22 Conference, both set for August 24, 2021, have not taken place. See Doc. No. 15 at 1. 23 As to the second factor, granting the motion will not adversely affect the parties’ rights. 24 Again, the action is in its early stages and discovery has not yet begun. See Noma Decl., 25 Doc. No. 19 ¶¶ 8–9. And importantly, Plaintiffs-in-Limitation do not oppose the motion. 26 See Noma Decl., Doc. No. 19 ¶ 7. As to the third factor, the Court finds that Geico’s 27 reasons for the late filing are sufficient. See Noma Decl., Doc. No. 19 ¶¶ 4–6. Overall, 28 1 || the Court finds that the three factors weigh in Geico’s favor. Accordingly, the Court 2 || GRANTS Geico’s motion for leave to file its late answer and claim. 3 IV. CONCLUSION 4 For the foregoing reasons, the Court (1) sua sponte STRIKES Geico’s July 22 5 || Answer and Claim (Doc. No. 17) in their entirety and (2) GRANTS Geico’s motion for 6 || leave to file a late answer and claim. The Court ORDERS Geico to file an answer and 7 claim on or before August 13, 2021. The Court VACATES the August 30, 2021 hearing 8 |/on this matter. 9 IT IS SO ORDERED. 10 11 || Dated: August 5, 2021 12 Mikhak Ta - / hiltr 13 Hon. Michael M. Anello 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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