Dolphin Cove Inn, Inc. v. Vessel Olympic Javelin

Decision Date22 December 2020
Docket NumberCase No. 3:19-cv-1018-J-34JRK
PartiesDOLPHIN COVE INN, INC., Plaintiff, v. THE VESSEL OLYMPIC JAVELIN, her engines, tackle, apparel, furniture and furnishings, equipment, and appurtenances, in rem; and SOUTHERN MARINE SERVICES, INC., FREDERICK GATCHELL, and MARK TARLOWSKI in personam, Defendants.
CourtU.S. District Court — Middle District of Florida
REPORT AND RECOMMENDATION1
I. Status / Background

This cause is before the Court on Plaintiff Dolphin Cove Inn, Inc.'s Motion for Default Judgment Against Defendants the Vessel Olympic Javelin, Southern Marine Services, Inc. and Frederick Gatchell (Doc. No. 28; "First Motion"), filed January 7, 2020, and Plaintiff Dolphin Cove Inn, Inc.'s Motion for Default Judgment Against Defendant Mark Tarlowski (Doc. No. 58; "Second Motion"), filed October 19, 2020.

Plaintiff initiated this action by filing a Verified Complaint (Doc. No. 1; "Complaint") on August 29, 2019. Defendants the Vessel Olympic Javelin ("the Vessel"), Southern Marine Services, Inc. ("Southern Marine"), and Frederick Gatchell were served with copies of the Complaint, the respective summonses (Doc. Nos. 14, 16, 17), and the Notice of Claim of Lien (Doc. No. 2) on September 12, 2019. See Affidavits of Process Server (Doc. No. 19-2). (As explained below, infra p. 4, Defendant Mark Tarlowski was not served until August 24, 2020.)

On October 8, 2019, Plaintiff filed a Request for Clerk's Entry of Default Against Defendants the Vessel, Southern Marine, and Mr. Gatchell (Doc. No. 19; "Motion for Default"). On October 16, 2019, the Court entered an Order (Doc. No. 22) taking the Motion for Default under advisement and directing Plaintiff to file a supplement advising the Court whether "the master or other person having custody" of the Vessel had been properly served. Oct. 16, 2019 Order at 2 (quoting Local Rule 7.03(h), United States District Court, Middle District of Florida ("Local Rule(s)")). Accordingly, on October 25, 2019, Plaintiff filed a Supplemental Request for Clerk's Entry of Default Against Defendants the Vessel, Southern Marine, and Mr. Gatchell (Doc. No. 23; "Supp. Motion for Default" or "Supplemental Motion for Default").

On November 5, 2019, the Court entered an Order (Doc. No. 24) granting the Motion for Default. The Clerk of the Court entered default against the Vessel, Southern Marine, and Mr. Gatchell on November 6, 2019. See Entries of Default (Doc. Nos. 25, 26, 27). Thereafter, the First Motion was filed. Plaintiff certified that a copy of the First Motionwas mailed to the Vessel, Southern Marine, and Mr. Gatchell at their last known addresses. See First Motion at 6.2

On May 4, 2020, the Court entered an Order (Doc. No. 36) directing Plaintiff to file a supplemental memorandum indicating the amount of attorney's fees and costs it seeks in the First Motion and providing supporting information and/or documentation. See May 4, 2020 Order at 4. On May 26, 2020, Plaintiff filed the Supplemental Memorandum Regarding Fees and Costs Against Defendants the Vessel, Southern Marine, and Mr. Gatchell (Doc. No. 37; "Supplemental Memorandum").

Observing that Plaintiff had not effected service of process on Mr. Tarlowski or dismissed its claims against him, the Court entered an Order to Show Cause (Doc. No. 44) on July 6, 2020 directing Plaintiff to show cause why the claims against Mr. Tarlowski should not be dismissed without prejudice for failure to prosecute pursuant to Local Rule 3.10. On July 13, 2020, Plaintiff filed a Response to Order to Show Cause and Ex Parte Application for Order Authorizing Alternate Service of Process on Defendant Tarlowski Pursuant to Federal Rule of Civil Procedure 4(f)(3) and Memorandum of Law (Doc. No. 45; "Motion for Alternate Service"). In the Motion for Alternate Service, Plaintiff requested that the Court allow service of process on Mr. Tarlowski via email because he could not "with reasonable diligence be found and served in any other manner specified in the Federal Rules of Civil Procedure [('Rule(s)')], and [he] is knowingly avoiding service of process." Motion for Alternate Service at 1.

On July 16, 2020, the Court entered an Order (Doc. No. 46) deferring ruling on the First Motion pending resolution of the issue regarding service of process on Mr. Tarlowski because entering default judgment against Southern Marine and Mr. Gatchell (with claims pending against Mr. Tarlowski) might result in inconsistent judgments. See July 16, 2020 Order at 2-3. The undersigned set a videoconference hearing on the Motion for Alternate Service for August 17, 2020. See id. at 3-4. The hearing was held accordingly, see Clerk's Minutes (Doc. No. 47), and on August 21, 2020, the Court entered an Order (Doc. No. 48) granting the Motion for Alternate Service and directing Plaintiff to effect service of process on Mr. Tarlowski via email at ccaptainmark@gmail.com and file proof of service.

On August 25, 2020, Plaintiff filed three proofs of service: 1) an August 24, 2020 email sent to ccaptainmark@gmail.com—attaching the Complaint (Doc. No. 1), the summons (Doc. No. 15), and the August 21, 2020 Order—and two follow-up emails dated September 1, 2020 and September 8, 2020, see Proof of Service (Doc. No. 52); 2) a Verified Return of Service confirming that copies of the Complaint, its exhibits, the summons, and the August 21, 2020 Order were sent via email to ccaptainmark@gmail.com on August 24, 2020, see Proof of Service (Doc. No. 53); and 3) a Verified Return of Service explaining that on July 10, 2020, the process server attempted once again to personally serve Mr. Tarlowski but was unsuccessful, see Proof of Service (Doc. No. 54).

Mr. Tarlowski did not file a response to the Complaint or otherwise appear. Consequently, on October 6, 2020, Plaintiff filed a Request for Clerk's Entry of Default Against Defendant, Mark Tarlowski (Doc. No. 55), which the Court granted, see Order(Doc. No. 56), entered October 8, 2020.3 The Clerk entered default against Mr. Tarlowski on October 9, 2020. See Entry of Default (Doc. No. 57).

Thereafter, the Second Motion was filed on October 19, 2020. Plaintiff certifies that a copy of the Second Motion was sent to Mr. Tarlowski via email. See Second Motion at 10. On the same date, Plaintiff filed an Amended Supplemental Memorandum Regarding Attorney's Fees and Costs Against Defendants the Vessel, Southern Marine, Mr. Gatchell, and Mr. Tarlowski (Doc. No. 59; "Amended Suppl. Mem." or "Amended Supplemental Memorandum"), supplementing both Motions. Plaintiff certifies that a copy of the Amended Supplemental Memorandum was mailed to Mr. Gatchell, Southern Marine, and the Vessel and that it was sent to Mr. Tarlowski via email. See Amended Suppl. Mem. at 12-13.

Despite being served with process and being provided adequate time to respond to the Motions, Defendants have failed to respond or otherwise appear. The Motions, now being ripe for consideration, are deemed unopposed.

After due consideration and for the reasons set out herein, the undersigned finds the First Motion is due to be granted to the extent it seeks a default judgment against Mr. Gatchell and Southern Marine, and it is due to be denied to the extent it seeks a defaultjudgment against the Vessel and a maritime lien. The Second Motion is due to be granted, as set out below. Both Motions are also due to be granted to the extent they seek attorney's fees and costs, except the fees and costs to be awarded are less than those requested in the Amended Supplemental Memorandum, as explained herein.

II. Complaint

Plaintiff brings this action in rem against the Vessel and in personam against Southern Marine, Mr. Gatchell, and Mr. Tarlowski to recover damages incurred as a result of an allision between the Vessel and Plaintiff's floating docks. Factually, the Complaint alleges as follows.

Mr. Gatchell is the president of Southern Marine and a resident of Brevard County, Florida. Complaint at 2 ¶ 5. Mr. Gatchell and Southern Marine own the Vessel. Id. ¶ 6. Mr. Tarlowski was a "pilot hired and supervised by Southern Marine and [Mr.] Gatchell to navigate the Vessel through St. John's County, Florida." Id. ¶ 7. Plaintiff owns "a series of concrete floating docks on the Matanzas River, part of the Intracoastal Waterway, which are navigable waters in St. John's County, Florida." Id. ¶ 8.

On October 6, 2018, the Vessel (piloted by Mr. Tarlowski) departed from Swan Quarter, North Carolina. Id. at 3 ¶ 9. Southern Marine and Mr. Gatchell had "arranged for the delivery" of the Vessel. Id.4 "On October 9, 2018, the Vessel lost steering control while navigating the Matanzas River in St. John's County, Florida." Id. ¶ 10. The Vessel crashed into Plaintiff's "docks—which are fixed objects—causing damage to a concrete piling andsome of the floating docks." Id. ¶ 12. There was no anchor on the Vessel, even though "it is customary to have an anchor aboard a ship during navigation . . . ." Id. ¶ 11.

According to the Complaint, it cost $15,951.00 to repair Plaintiff's concrete piling, and it is estimated it will cost $26,875.00 to repair Plaintiff's floating docks. Id. ¶¶ 13-14. Plaintiff made "multiple attempts to contact Southern Marine and [Mr.] Gatchell regarding payment for the damages caused by the Vessel." Id. ¶ 15. Although Plaintiff demanded payment from Southern Marine and Mr. Gatchell for the damages ($42,826.00 plus interest), no payment has been made. Id. ¶¶ 16-17. Plaintiff asserts that the damages incurred entitle it to a maritime lien against the Vessel. Id. at 4 ¶ 18.

Southern Marine representatives have indicated the Vessel is located "in the waters of Haiti." Id. ¶ 20. Plaintiff alleges that "the Vessel is mobile, Southern Marine intends to bring the Vessel back into Florida during the pendency of this action, and Plaintiff wishes to arrest the Vessel when it returns to the United States." Id.

The Complaint asserts six counts: negligence against the Vessel (Count I); negligence...

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