Lush v. F/V Terri, Civil No. 03-156-P-H (D. Me. 2/10/2004), Civil No. 03-156-P-H.

• Decision Date: 10 February 2004
• Docket Number: Civil No. 03-156-P-H.
• Parties: ERIC LUSH, et al., Plaintiffs, v. F/V TERRI and RUTH, et al., Defendants.
• Court: U.S. District Court — District of Maine

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ERIC LUSH, et al., Plaintiffs, v. F/V TERRI and RUTH, et al., Defendants.

Civil No. 03-156-P-H.

United States District Court, D. Maine.

February 10, 2004.

EDWARD F. BRADLEY, JR., BRADLEY & SAVASUK, PORTLAND, ME, for Plaintiff ERIC LUSH, LINDA STEWART

MICHAEL J. WAXMAN, PORTLAND, ME, for Defendant TERRI AND RUTH F/V, In Rem O.N. 504536, RUTH ANN STABLES INC

RECOMMENDED DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DAVID COHEN, Magistrate Judge.

Defendants F/V Terri and Ruth ("Vessel") and Ruth Ann Stables, Inc. ("Stables, Inc.") (both, "Defendants") move for summary judgment against plaintiff Linda Stewart as to all three counts of the instant verified complaint in admiralty and against plaintiff Eric Lush (together with Stewart, "Plaintiffs") as to Counts II and III. See Defendants' Motion for Partial Summary Judgment ("Defendants' S/J Motion") (Docket No. 31) at 1; Verified Complaint in Admiralty ("Complaint") (Docket No. 1) ¶¶ 7-32. Stewart cross-moves for summary judgment as to Count I. See Memorandum in Support of Plaintiff Stewart's Motion for Summary Judgment ("Plaintiffs' S/J Motion") (Docket No. 33); Complaint ¶¶ 7-9.¹ For the reasons that follow, I recommend that the court deny the Defendants' motion as to Count I and grant it as to Counts II and III and grant Stewart's motion.

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, `genuine' means that `the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.'" Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir. 2000). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

To the extent that parties cross-move for summary judgment, the court must draw all reasonable inferences against granting summary judgment to determine whether there are genuine issues of material fact to be tried. Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429 (1st Cir. 1992). If there are any genuine issues of material fact, both motions must be denied as to the affected issue or issues of law; if not, one party is entitled to judgment as a matter of law. 10A Charles Alan Wright, Arthur R Miller & Mary Kay Kane, Federal Practice and Procedure § 2720, at 336-37 (1998).

II. Factual Context

The parties' statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, reveal the following relevant to this recommended decision:²

Stables, Inc. has owned the Vessel since 1985. Plaintiffs' Statement of Material Facts in Support of Plaintiff Stewart's Motion for Summary Judgment ("Plaintiffs' SMF") (Docket No. 34) ¶ 1-2; Defendants' Opposing Statement of Material Facts ("Defendants' Opposing SMF") (Docket No. 39) ¶¶ 1-2. James Finley is president and financial officer of Stables, Inc. and its sole shareholder. Id. ¶¶ 3-4. He therefore is the human representative of the Defendants. Defendants' Statement of Material Facts ("Defendants' SMF"), attached to Defendants' S/J Motion, ¶ 1; Plaintiffs' Opposing Statement of Material Facts ("Plaintiffs' Opposing SMF") (Docket No. 45) ¶ 1.

In October 2000 the Vessel was berthed at Custom House Wharf in Portland, Maine. Plaintiffs' SMF ¶ 5; Defendants' Opposing SMF ¶ 5. The Vessel did not fish from September 2000 through November 2000. Id. ¶ 6. In October 2000 Finley met with Lush, a fisherman who had previously fished on the Vessel, to discuss its sale. Id. ¶¶ 7-8. As a result of the discussion, Finley agreed to sell the Vessel to Lush. Id. ¶ 9.

Finley arranged to have the Vessel surveyed by Mike Monroe. Id. ¶ 10. The survey was commissioned to determine the value of the Vessel for purposes of the sale. Id. ¶ 11. The Monroe survey valued the Vessel at $90,000 if repairs were completed. Plaintiffs' SMF ¶ 12; Deposition of Michael J. Monroe ("Monroe Dep."), attached to Defendants' Notice of Attachments ("Defendants' Notice") (Docket No. 44), at 48-49.³ The Monroe survey specified repairs needed before the Vessel could be returned to service as a fishing vessel. Plaintiffs' SMF ¶ 13; Defendants' Opposing SMF ¶ 13. Monroe did not attempt to value any fishing licenses or permits associated with the Vessel. Defendants' SMF ¶ 6; Plaintiffs' Opposing SMF ¶ 6.

After receiving the Monroe survey, Finley agreed to sell the Vessel to Lush for $90,000. Plaintiffs' SMF ¶ 15; Defendants' Opposing SMF ¶ 15. Lush agreed to purchase the Vessel for $90,000. Id. ¶ 16. After agreement was reached, Lush paid $5,000 as a down payment on the purchase price. Id. ¶ 17. At the time the purchase agreement was reached, Lush agreed to become the captain of the Vessel until he purchased it. Id. ¶ 18. After the agreement was reached, Lush performed and supervised repairs to the Vessel. Id. ¶ 19. He served as its captain and was responsible for its operation from October 2000 until approximately May 2003. Id. ¶ 20. From the time the agreement was reached until January 2001, when the Vessel was repaired, Lush supervised and performed repairs at the Maine Shipyard & Marine Railway in South Portland ("Shipyard") and at its berth at the Custom House Wharf. Id. ¶ 21. Finley knew Lush was conducting repairs on the Vessel during the period from October 2000 to January 2001. Id. ¶ 24.

The monies that Lush spent on repairing and maintaining the Vessel were obtained through a loan from his girlfriend, Stewart. Defendants' SMF ¶ 8; Plaintiffs' Opposing SMF ¶ 8. The initial repairs to the Vessel performed at the Shipyard cost $12,354.55. Plaintiffs' SMF ¶ 126; Defendants' Opposing SMF ¶ 26. Stewart paid the Shipyard $12,354.55 for repairs performed to the Vessel and use of its railway. Id. ¶ 27.⁴ While the Vessel was being repaired, Lush hired Joe St. Pierre to work on it. Id. ¶ 29. Stewart advanced Lush $7,000 to pay St. Pierre for repair work he performed on the Vessel. Id. ¶ 30. Lush paid St. Pierre $7,000 for the work he performed repairing the Vessel. Id. ¶ 31. While the Vessel was being repaired, work was performed by Bill Hubble under Lush's supervision. Id. ¶ 32. Stewart advanced Lush $3,000 to pay Hubble for work performed repairing the Vessel. Id. ¶ 33. Lush paid Hubble $3,000 for work he performed repairing the Vessel. Id. ¶ 34. While the Vessel was being repaired, work was performed by Jerome Sarofeen under Lush's supervision. Id. ¶ 35. Stewart advanced Lush $1,000 to pay Sarofeen for work he performed repairing the Vessel. Id. ¶ 36. Lush paid Sarofeen $1,000 for work he performed repairing the Vessel. Id. ¶ 37. Stewart paid Sarofeen an additional $500 for repair work at the request of Lush. Id. ¶ 38. While the Vessel was being repaired, work was performed by Jim Furbush under Lush's supervision. Id. ¶ 39. Stewart advanced Lush $2,500 to pay Furbush for work he performed repairing the Vessel. Id. ¶ 40. Lush paid Furbush $2,500 for work he performed repairing the Vessel. Id. ¶ 41. While the Vessel was being repaired, work was performed by Edgar Googins under Lush's supervision. Id. ¶ 42. Stewart advanced Lush $1,500 in cash to pay Googins for repair work he performed on the Vessel. Id. ¶ 43. Lush paid Googins $1,500 for work he performed on the Vessel. Id. ¶ 44.

From October 2000 until repairs were completed to the Vessel under his supervision, Lush purchased equipment and supplies he used in repairing the Vessel. Id. ¶ 45. From October 2000 to January 2001 Lush purchased equipment and supplies from the following vendors in the amounts specified: Rite Aid, $54.64; PRC Industrial, $64.93; VIPAuto Discount, $48.23; Portland Glass, $392.89; Handyman Rental, $375.45; Dulux Paint Centers, $88.43; Grinnel Fire Protection, $74.52; K.L. Jack & Co., $20.31; True Value Hardware, $93.46; Shopper's Hardware, $115.31; W.L. Blake, $68.03; American Steel, $1,334.74; NAPA Auto Parts, $58.17; Hamilton Marine, $978.28; Home Depot, $1,660.95; Maine Hardware, $646.54; Portland Welding Supply, $1,415.20; Hertz Equipment Rental, $963.20; Topsham Rental, $50.00; Harbor Propeller, $390.00; Goldstein Steel, $78.75; Chase Leavitt, $545.38; WalMart, $20.84; Shop and Save, $2.98; Maine Paint Service, $13.10; Advantage Gas & Tools, $696.33; Taylor Made Signs, $100.00; New England Detroit Diesel, $81.33; N.C. Hunt, Inc., $91.13; Marriner Lumber, $9.00; and Sears Auto Center, $171.09. Id. ¶ 46. All the equipment and supplies purchased from vendors listed in the preceding paragraph were used in the...