King v. O/S NORDIC MAIDEN, Admiralty No. C84-96B.
Decision Date | 22 June 1984 |
Docket Number | Admiralty No. C84-96B. |
Parties | Richard S. KING, Plaintiff, v. O/S NORDIC MAIDEN, Official No. 579440, her engines, sails, tackle and equipment; Dale L. Kenyon, Belinda K. Rust and P.J. Clarke, Defendants. |
Court | U.S. District Court — Western District of Washington |
Murray J. Anderson of Anderson & Anderson, Tacoma, Wash., for plaintiff.
Michael L. Jacob, Seattle, Wash., for defendants.
The day before the first payment became due, however, Kenyon, Clarke, and Rust deposited the full amount of the payment into the registry of the King County Superior Court for the State of Washington. They simultaneously instituted an action in that court against, among others, plaintiff King herein for the reformation of the contract of sale of the NORDIC MAIDEN and for damages, alleging breach of contract, negligence, breach of warranty, and misrepresentation. The action was assigned Cause No. 84-2-00833-1 and is still pending. The sum deposited remains in the registry of the state court.
On January 27, 1984, King instituted this action in admiralty to foreclose a preferred ship mortgage he allegedly owns on the defendant vessel. He claims that Kenyon, Clarke, and Rust are in default under the terms of the promissory note and mortgage, and seeks judgment in rem and in personam. King does not dispute that defendants made the deposit of the funds into the registry of the King County Superior Court prior to the due date set forth in the note.
Defendants herein now move the court for summary judgment dismissing King's complaint. Their motion was initially for dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). However, in support of their motion, defendants submitted evidentiary matter in the form of exhibits and affidavits, requiring the court to treat their motion, if at all, as one for summary judgment under Fed.R.Civ.P. 56. The court accordingly notified the parties and rescheduled the consideration of the motion to allow them to submit further briefing.
When a party moves for summary judgment, if there is no genuine issue as to any material fact, the court may render judgment as a matter of law. Fed.R.Civ.P. 56(c). The facts pertinent to this motion are simple and are not in dispute. By the terms of the note, payment was due King from defendants on January 21, 1984. The sum due was not offered to King, but was instead deposited in the registry of the King County Superior Court on January 20, 1984 and presumably will abide judgment on the contractual dispute there pending. Finding no genuine issue as to these facts, the court may render appropriate judgment.
It must first be impressed upon the defendants herein, however, that the merits of the state court action are immaterial to the...
To continue reading
Request your trial-
Howard v. Patenaude & Felix APC
...yield to the statutory garnishment procedure, which prescribes the exclusive method of payment during garnishment proceedings. The facts of King help demonstrate this is so. In King, purchasers contracted to make incremental payments on a boat. Id. at 47. Before the first payment was due, h......
-
Schmerer v. Darcy
...otherwise. They made only one--on September 10, 1993. The others were proposals or propositions to offer money. King v. O/S Nordic Maiden, 587 F.Supp. 46, 48 (W.D.Wash.1984) (debtor must evidence a willingness, accompanied by the ability and attempt to pay); Catterson v. Ireland, 60 Wash. 2......
-
Khalid v. Citrix Sys.
...60 Wash. 208, 213, 110 P. 1002 (1910), or a willingness, accompanied by the ability and the attempt, to pay. King v. O/S Nordic Maiden, 587 F.Supp. 46, 48 (W.D. Wash. 1984). Tender must be unconditional to "stop the running of interest." Grant v. Auvil, 39 Wn.2d 722, 728, 238 P.2d 393 (1951......
-
McLaughlin v. Nicholas, No. 57243-1-I (Wash. App. 4/30/2007)
...These arguments also fail. Tender is a willingness to pay, accompanied by the ability and an attempt to pay. King v. O/S Nordic Maiden, 587 F. Supp. 46, 48 (W.D. Wash. 1984). McLaughlin deposited $22,000 in escrow on November 4, 2002, which was 11 days before the arbitrator's deadline. The ......