Matter of Fish N Dive LLC
| Decision Date | 06 November 2020 |
| Docket Number | CIV. NO. 19-00604 LEK-WRP |
| Citation | 499 F.Supp.3d 775 |
| Parties | In the MATTER OF FISH N DIVE LLC, Hono Group LLC, Honu Watersports LLC, and Matthew J. Zimmerman as owners of the single decked passenger vessel Dive Barge, Official Number 1278007, for exoneration from and/or limitation of liability, Plaintiffs-in-Limitation. |
| Court | U.S. District Court — District of Hawaii |
Marker E. Lovell, Jr., Gibson Robb & Lindh LLP, San Francisco, CA, for Plaintiffs-in-Limitation.
ORDER GRANTING IN PART AND DENYING IN PART THE TSOGT CLAIMANTS’ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT FOR FAILURE BY PLAINTIFFS-IN LIMITATION TO FILE ACTION WITHIN SIX MONTHS OF RECEIVING NOTICE OF A CLAIM
On July 23, 2020, Claimants-in-Limitation James A. Liotta, as Personal Representative of the Estate of T.T., deceased; Tsogt Natsagdorj, individually and as next friend of K.T., a minor; and Enkhsuvd Batbold ("Tsogt Claimants") filed their Motion to Dismiss or for Summary Judgment for Failure by Plaintiffs-in Limitation to File Action Within Six Months of Receiving Notice of a Claim ("Motion"). [Dkt. no. 101.] Plaintiffs-in-Limitation Fish N Dive LLC, Honu Group LLC, Honu Watersports LLC, and Matthew J. Zimmerman ("Zimmerman" and all collectively "Limitation Plaintiffs") filed their memorandum in opposition on August 7, 2020, and PADI Worldwide Corporation and PADI Americas, Inc., who identify themselves as "Interested Parties" ("PADI Entities"), filed a joinder in the memorandum in opposition on August 21, 2020. [Dkt. nos. 104, 110.] The Tsogt Claimants filed their reply on August 14, 2020. [Dkt. no. 106.] This matter came on for hearing on August 28, 2020.
On September 25, 2020, an entering order was issued informing the parties of the Court's rulings on the Motion. [Dkt. no. 113.] This Order supersedes that entering order. The Tsogt Claimants’ Motion is hereby granted in part and denied in part for the reasons set forth below. The Motion is denied as to the request to dismiss the action for lack of subject matter jurisdiction, and the Motion is granted as to the request for summary judgment on the ground that this action is untimely.
The Limitation Plaintiffs initiated this action on November 5, 2019. [Complaint for Exoneration from or Limitation of Liability ("Complaint") (dkt. no. 1).] The Limitation Plaintiffs filed their First Amended Complaint for Exoneration from or Limitation of Liability ("First Amended Complaint") on January 17, 2020.1 [Dkt. no. 45.] The Limitation Plaintiffs state they are the "owners and/or owners pro hac vice of the single decked passenger vessel DIVE BARGE, Official Number 1278007, (‘VESSEL’)," and they seek "exoneration from and/or limitation of liability, civil and maritime, brought pursuant to 46 U.S.C. § 30501, et seq. ," which is part of the Limitation of Liability Act of 1851 ("Limitation Act" or "the Act"). [First Amended Complaint at pg. 1 (emphases in original).] They allege "the estimated fair market value of the VESSEL and her appurtenances at the termination of the voyage at issue upon return to the dock ... did not exceed Forty Thousand US Dollars ($40,000)." [Id. at ¶ 16 (emphasis in original).]
The instant case arises from a January 5, 2019 incident in which T.T., who was thirteen years old, drowned during the Discover Scuba Diving ("DSD") Experience, which was provided by the Limitation Plaintiffs, doing business as Island Divers Hawaii ("IDH"). At all relevant times, Zimmerman was the sole member and manager of Honu Group LLC, and Honu Group LLC was the sole member and manager of both Defendant Fish N Dive LLC and Defendant Honu Watersports LLC. ( ) On the date in question, the Vessel was used both to take the DSD Experience group to the dive site and as a dive platform.
A liability action arising from T.T.’s death is pending in the State of Hawai'i First Circuit Court ("Underlying Action"). See Limitation Plaintiffs’ CSOF, Decl. of Marker E. Lovell, Jr. ("Lovell Decl."), Exh. B (Complaint in James A. Liotta, as Personal Representative of the Estate of T.T., deceased, et al. v. PADI Americas, Inc., et al., Civil No. 19-1-1488-09, 11th Div. ("Underlying Complaint"), filed 9/19/19). The Limitation Plaintiffs are among the defendants in the Underlying Action.
The DSD Experience group consisted of four novice divers, including T.T., and an instructor, Tyler Brown ("Brown").3 [Tsogt Claimants’ CSOF at ¶ 8.] The group participated in an open water dive. The PADI Discover Scuba Diving Program Instructor Guide ("DSD Instructor Guide") states a four-to-one participant-to-instructor ratio is permitted in a DSD open water dive. [Id., Exh. B (DSD Instructor Guide) at TYLERBROWN133.] Participants can be as young as ten years old, and the DSD program can be used for people with no prior scuba diving experience. [Id., Exh. A (Zimmerman Depo.) at 111-12.]
The DSD Instructor Guide includes the following among the "PROGRAM STANDARDS" for "Supervision":
[Id., Exh. B (DSD Instructor Guide) at TYLERBROWN132, TYLERBROWN134.] Brown admitted in his hand-written statement for the police that he lost sight of two of the four divers during the DSD dive that T.T. was part of. [Id., Exh. F (excerpts of Production of Documents from the Honolulu Police Department ("HPD"), received on 4/9/20, pursuant to subpoena duces tecum ("HPD Incident Report")) at 57.]
The Tsogt Claimants argue the IDH Handbook shows that the Limitation Plaintiffs knew a breach of the safety rules in the DSD Instructor Guide would likely result in a lawsuit. [Tsogt Claimants’ CSOF at ¶ 7 (some citations omitted) (citing Livingston Decl., Exh. C (IDH Handbook) at FND0033-0039).] The Safety section of the IDH Handbook states:
To ensure the safety of employees and guests, the Dive Center has an emergency plan of action. You must know where this emergency plans are [sic] located and educate yourself on the actions you must take in case of emergency. You can help prevent and reduce accidents and injuries through comprehensive safety awareness and immediate reporting and correction of hazardous conditions. Immediately report any injury or accident to senior staff members as well as owner. In the case of an accident severe enough that it might result in legal action, do not give statements to police or USCG without seeking the benefits of legal counsel.
[Livingston Decl., Exh. C (IDH Handbook) at FND0038 (emphasis added).]
On the day of the incident, after receiving at least two telephone calls from someone aboard the Vessel about a missing diver, Zimmerman went to the IDH shop from his home. Zimmerman met multiple HPD officers at the shop. [Id., Exh. A (Zimmerman Depo.) at 118-21.] Zimmerman also acknowledged that he called his attorney on the date of the incident,4 but he stated he called his attorney after one of the police officers threatened to arrest him for interfering with the investigation. The officer alleged Zimmerman was interfering with the investigation because Zimmerman objected to the officers’ refusal to provide copies of witness statements. [Id. at 125-26.]
On January 7, 2019, Loretta Sheehan, Esq., on behalf of the Davis Levin Livingston law firm, sent a letter to IDH, also known as Honu Watersports LLC, directed to Zimmerman's attention, regarding "Preservation of Evidence" ("Preservation of Evidence Letter"). [Livingston Decl., Exh. K.] The letter stated, in pertinent part:
[Livingston Decl., Exh. G (Preservation of Evidence Letter).] Neither the Limitation Plaintiffs nor their counsel received any further written communications from the Tsogt Claimants’ counsel after the Preservation of Evidence Letter. [Lovell Decl. at ¶ 4.]
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