979 F.Supp. 138 (N.D.N.Y. 1997), 96-CV-522, Dluhos v. Floating and Abandoned Vessel Known as New York

Docket Nº:96-CV-522 (DRH).
Citation:979 F.Supp. 138
Party Name:Emre E. DLUHOS, Plaintiff, v. The FLOATING AND ABANDONED VESSEL, KNOWN AS "NEW YORK" Ex Official Number 127168, Now in the Erie Canal System located at Waterford, New York near Troy/Albany, New York, Abandoned in excess of four years in the Erie Canal System, Defendants.
Case Date:September 26, 1997
Court:United States District Courts, 2nd Circuit, Northern District of New York
 
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Page 138

979 F.Supp. 138 (N.D.N.Y. 1997)

Emre E. DLUHOS, Plaintiff,

v.

The FLOATING AND ABANDONED VESSEL, KNOWN AS "NEW YORK" Ex Official Number 127168, Now in the Erie Canal System located at Waterford, New York near Troy/Albany, New York, Abandoned in excess of four years in the Erie Canal System, Defendants.

No. 96-CV-522 (DRH).

United States District Court, N.D. New York.

Sept. 26, 1997

Emre E. Dluhos, Belleville, NJ, pro se.

Dennis C. Vacco, Atty. Gen. for State of N.Y., Albany, NY, for State of N.Y., Senta B. Siuda, Asst. Atty. Gen., of counsel.

Richard Anderson, Acting Chairman Friends of Catawissa, New York City, pro se.

MEMORANDUM-DECISION AND ORDER

HOMER, United States Magistrate Judge.

Presently pending are the motions of claimant State of New York ("the State") to dismiss this action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) (Docket No 65) and of plaintiff Emre E. Dluhos ("Dluhos") to declare the State's status in this action (Docket No. 56), impose sanctions against claimant Friends of the Catawissa for discovery violations (Docket No. 62), and file a third amended complaint (Docket No. 67). For the reasons which

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follow, the State's motion to dismiss is granted and Dluhos' motions are denied.

I. Background

The vessel "New York" ("the vessel") was launched in 1896 under the name, the "Catawissa." First Amended Compl. (Docket No. 13), ¶ 3. As it passed through the Erie Canal over four years ago, the vessel began to leak oil into the canal and was tied off at a location within the canal near Waterford, New York. 1 The vessel was then abandoned by its owner. The oil leakage was cleared by the State, which operates the canal. The vessel has remained at the same general location within the canal since that time. Following the vessel's abandonment, Dluhos claimed it by, among other things, boarding the vessel and posting notices on board of his claimed ownership.

Dluhos filed his original complaint in this action on March 29, 1996. The complaint named the vessel and the State as defendants and asserted jurisdiction both in admiralty and, if that failed, diversity. Docket No. 1. The State answered. Docket No. 4. At a hearing on motions on July 18, 1996, the State's answer was deemed a claim for purposes of admiralty jurisdiction and Dluhos was directed to publish notice of the action in accordance with Rule C(4), Supplemental Rules for Certain Admiralty and Maritime Claims ("Supplemental Rules"). Docket No. 12. Dluhos filed an amended complaint, and then a second amended complaint, both asserting jurisdiction solely in admiralty. Docket Nos. 13 & 38. The National Maritime Historical Society ("Historical Society"), a not-for-profit corporation, filed a claim seeking to preserve the vessel for its historical value. Docket Nos. 14 & 28. 2

There followed a series of motions and proceedings in which Dluhos sought to effect the arrest of the vessel and to be appointed its custodian pending resolution of this action in accordance with Supplemental Rules D and E. Issuance of the warrant of arrest and appointment of Dluhos as custodian were denied pending the posting of a $5,000 bond by Dluhos. Docket Nos. 29, 35, 45 & 54. Dluhos was unable to post bond, the State advised it intended to file a dispositive motion, and all further proceedings were stayed pending resolution of that motion. Docket No. 64.

II. Discussion

A. The State's Motion to Dismiss and Dluhos' Motion to File a Third Amended Complaint

The State has moved to dismiss the second amended complaint on the ground that because the vessel has not been arrested, this Court lacks subject matter jurisdiction. Dluhos has opposed the motion and has...

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