In re United States
| Decision Date | 28 September 2020 |
| Docket Number | Case No. 4:18-cv-00065-DN-PK |
| Citation | 491 F.Supp.3d 1036 |
| Parties | IN RE: the Complaint and the Petition of the UNITED STATES of America in a Cause for Exoneration from or Limitation of Liability with Respect to National Park Service and Public Vessels Buoy Tender No. 450, No. 257, No. 2510, No. 256, No. 2511 and No. 290 re: The Grounding of a 21’ Speedboat in or near Bullfrog Bay on Lake Powell, Utah, on July 24, 2016 |
| Court | U.S. District Court — District of Utah |
John K. Mangum, US Attorney's Office, Salt Lake City, UT, Eric Jay Kaufman-Cohen, Pro Hac Vice, Frank J. Anders, Pro Hac Vice, R. Michael Underhill, Pro Hac Vice, US Department of Justice, San Francisco, CA, for USA.
John R. Lund, Katherine E. Venti, Alan S. Mouritsen, Parsons Behle & Latimer, Salt Lake City, UT, Terence S. Cox, Pro Hac Vice, Cox Wootton Lerner Griffin & Hansen LLP, San Francisco, CA, for Aramark Sports & Entertainment Services.
Alicia Celeste Funkhouser, Pro Hac Vice, Burt Rosenblatt, Pro Hac Vice, Ely Bettini Ulman Rosenblatt & Ozer, Phoenix, AZ, Andrew G. Deiss, Deiss Law PC, Salt Lake City, UT, for Tara Gagliardi.
J. Tyrrell Taber, Pro Hac Vice, Burg Simpson Eldredge Hersh & Jardine PC, Austin K. Kurtz, Pro Hac Vice, Aiken Schenk Ricciardi PC, Phoenix, AZ, Timothy B. Smith, Jones Waldo Holbrook & McDonough, Salt Lake City, UT, William L. Banning, Pro Hac Vice, Rebecca Rojas, Pro Hac Vice, Banning LLP, Rancho Santa Fe, CA, for Paul Theut.
Christopher Alan Abel, Pro Hac Vice, Jeanne Elizabeth Noonan, Pro Hac Vice, Justin G. Guthrie, Pro Hac Vice, Willcox & Savage PC, Norfolk, VA, Evan S. Goldstein, Christi A. Woods, Pro Hac Vice, Herman Goldstein & Woods PC, Phoenix, AZ, Lara A. Swensen, James Dodge Russell & Stephens PC, Salt Lake City, UT, for Estate of Jeffrey Alan Darland.
Kimberly K. Page, Pro Hac Vice, J. Gary Linder, Pro Hac Vice, Jones Skelton & Hochuli PLC, Phoenix, AZ, S. Spencer Brown, Strong & Hanni, Salt Lake City, UT, for AWS Boats.
Adam M. Pace, Andrew M. Morse, Snow Christensen & Martineau, Salt Lake City, UT, Bradley R. Hansmann, Pro Hac Vice, Daniel P. Hunkins, Brown & James PC, St. Louis, MO, for Cobalt Boats.
Elisabeth M. McOmber, Snell & Wilmer LLP, Salt Lake City, UT, Patrick X. Fowler, Pro Hac Vice, Alexix G. Terriquez, Pro Hac Vice, Snell and Wilmer LLP, Phoenix, AZ, for Brunswick Corporation.
David Nuffer, United States District Judge Claimants D.D. and G.D., by and through Paul Theut, Guardian ad Litem ("Theut"), and Claimant Tara Gagliardi ("Gagliardi") seek to transfer venue for this case to the District of Arizona.1 Limitation Plaintiff United States of America ("United States") and Claimant Aramark Sports and Entertainment Services, LLC ("Aramark") oppose the case's transfer.2 Because transfer is inconsistent with the applicable venue provision of the Public Vessels Act ("PVA"), and because a transfer to the District of Arizona is not in the interest of justice for the convenience of the parties and witnesses, Theut and Gagliardi's Motion to Transfer Venue3 is DENIED.
ORDER...––––
Transfer of venue is inconsistent with the applicable PVA venue provision
Determination of Theut and Gagliardi's Motion to Transfer Venue implicates the Limitation of Liability Act ("LOLA"),4 the Suits in Admiralty Act ("SIAA"),5 and the PVA.6 LOLA governs actions for exoneration from and limitation of liability. It establishes that the owner of a vessel may initiate an action seeking exoneration from or limitation of liability on claims arising from, among other things, "any loss, damage, or injury by collision ... done, occasioned, or incurred, without the privity or knowledge of the owner."7 LOLA does not contain provisions regarding venue or the transfer of venue. Rather, Rule F of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, which sets forth the procedural rules for LOLA actions,8 includes the general rules for venue and the transfer of venue for LOLA actions.9
Under Rule F(9), "[f]or the convenience of parties and witnesses, in the interest of justice, the court may transfer [a LOLA] action to any district[.]"10 However, the United States initiated this LOLA action.11 In creating the waivers of sovereign immunity for admiralty claims against the United States, "Congress has seen fit to establish some limitations as to where the [g]overnment is subject to suit."12 The statutory authorizations for the United States to seek exoneration from or limitation of liability as a public vessel owner are found in the SIAA13 and PVA.14 And the claims asserted by Theut and Gagliardi against the United States are brought under the SIAA and PVA.15 Therefore, the availability of a transfer for this case must be determined in light of the venue provisions of the SIAA and PVA.
The SIAA waives sovereign immunity for in personam claims where "(1) a vessel is owned by the United States or operated on its behalf, and (2) there is a remedy cognizable in admiralty for the injury."16 The SIAA's venue provision authorizes an action to be brought in the district court in which "(1) any plaintiff resides or has its principal place of business; or (2) the vessel or cargo is found."17 And like Rule F(9), the SIAA permits the transfer of venue "to any other district court of the United States."18
The PVA, on the other hand, is narrower in scope than the SIAA. The PVA waives sovereign immunity for in personam claims in admiralty for "(1) damages caused by a public vessel of the United States; or (2) compensation for towage and salvage services, including contract salvage, rendered to a public vessel of the United States."19 The applicable PVA venue provision authorizes an action to be brought only "in the district court ... for the district in which the vessel or cargo is found within the United States."20 And there is no provision in the PVA for a transfer of venue.
The PVA incorporates all consistent provisions of the SIAA.21 But were inconsistencies exist, the provisions of the PVA will apply.22 It is recognized that although containing differing language, the venue provisions of the SIAA and PVA are consistent.23 But that is not the issue in this case. Rather, the issue is whether the SIAA's provision for the transfer of venue is consistent with the applicable PVA venue provision.
Under the PVA, when the vessel or cargo is found in the United States, venue is limited to the district in which the vessel or cargo is found.24 Because venue is proper in only one district,25 the PVA contains no provision for a transfer of venue. And it would be inconsistent with the PVA's plain language to permit venue to be transferred to another district. Therefore, the SIAA's (and Rule F(9)'s) venue transfer provision is inconsistent with the PVA.
Because the public vessels which are the subject of this case were found in Utah when the United States initiated the case,26 the District of Utah is the only proper venue for this case under the PVA.27 A transfer of the case's venue to the District of Arizona would be improper under and inconsistent with the PVA.
Transfer of venue to the District of Arizona is not in the interest of justice for the convenience of the parties and witnesses
Even if the case's transfer were consistent with the PVA, a transfer of venue for this case to the District of Arizona is not in the interest of justice for the convenience of the parties and witnesses.28 The relevant factors for determining whether a transfer is appropriate under Rule F(9) are the same as the factors under 28 U.S. C. § 1404(a).29 These include:
(1) the convenience of the parties; (2) the convenience of material witnesses; (3) the availability of process to compel the presence of witnesses; (4) the cost of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and (8) the interests of justice in general.30
The convenience of the parties does not favor transfer
Theut and Gagliardi assert that the minor children, D.D. and G.D., are disabled and have suffered significant mental and emotional distress.31 They argue that the District of Arizona is a more convenient venue because the minor children reside in Arizona and travel to Utah for trial will create physical hardship and force D.D. and G.D. to leave their counseling and schools, which may aggravate their distress.32 Theut and Gagliardi also argue that the District of Arizona is more convenient for Gagliardi because she suffers from bipolar mental disorder, and travel to Utah for trial may cause her significant stress and suffering.33
The potential for aggravating the mental and emotional conditions of the minor children and Gagliardi is an important consideration in determining a convenient venue. However, the interests and convenience of the other parties must also be considered. "When the government is a party, its convenience is the concern of venue provisions in legislative enactments."34 And the applicable PVA venue provision establishes Congressional recognition that the convenient venue for the United...
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