Seward Prop., LLC v. Arctic Wolf Marine, Inc.
| Decision Date | 23 December 2020 |
| Docket Number | No. 3:18-cv-0078-HRH,3:18-cv-0078-HRH |
| Parties | SEWARD PROPERTY, LLC, Plaintiff, v. ARCTIC WOLF MARINE, INC., et al., Defendants. |
| Court | U.S. District Court — District of Alaska |
Motion for Summary Judgment;
Plaintiff moves for partial summary judgment.1 This motion is opposed by defendant Henry Tomingas,2 and Tomingas moves for dismissal.3 The motion to dismiss is opposedby plaintiff.4 Oral argument was not requested and is not deemed necessary on either of the two pending motions.
Plaintiff is Seward Property, LLC. Plaintiff "owns shoreside land in Seward, Alaska and provides vessel owners with a place to drydock their vessels."5
Defendants are Arctic Wolf Marine, Inc., Henry Tomingas, and Del Schultz. As of December 31, 2012, Tomingas owned 100% of Arctic Wolf.6 On March 25, 2016, Arctic Wolf was involuntarily dissolved only to be reinstated on September 14, 2016.7 As of December 31, 2016, according to State of Alaska corporation records, Schultz owned 100% of Arctic Wolf and Tomingas was the President and Treasurer of the corporation.8 After another round of involuntary dissolution and reinstatement in 2017, Arctic Wolf was again involuntarily dissolved on October 31, 2019.
In late 2014-early 2015, Tomingas and Schultz spoke about the possibility of Schultz purchasing the BERING EXPLORER from Tomingas.9 Schultz has testified that he was interested in buying the vessel in order to develop an offshore gold mining project.10 Schultz testified that he and Tomingas discussed exchanging some land that Schultz owned in Arizona for the vessel but that the land was never transferred because "everything fell apart" when the potential investor in the project died.11
In March 2015, Tomingas mentioned to Schultz that he had an Alaska corporation (Arctic Wolf) that Schultz might be interested in using for Schultz's venture.12 Schultz testified that the corporation "was just going to be a vehicle to make this whole project go together."13 Schultz testified that Tomingas never actually transferred his stock ownership in Arctic Wolf to him.14 Schultz further testified that he was not aware that the State of Alaska corporation documents show him as owning 100% of the shares in Arctic Wolf in2016.15 Tomingas, however, testified that in 2015, he sent Schultz "a quitclaim deed for whatever my interest was in Arctic Wolf Marine."16
In March 2015, Tomingas advised Schultz that he was going to send Schultz two bills of sale for the BERING EXPLORER, one being a U.S. Coast Guard document and the other, a "simple bill of sale[.]"17 Neither of these bills of sale has been made part of the record in this case. However, the record does contain a U.S. Coast Guard bill of sale dated October 2, 2017, in which Tomingas purported to sell the BERING EXPLORER to Del Schultz d/b/a President, Arctic Wolf Marine, Inc.18 This bill of sale was terminated on 2/27/201819 because "no action ha[d] been taken to complete the documentation/deletion of this vessel. . . ."20 Tomingas noted on the letter he received from the Coast Guard regarding the termination of the bill of sale that he spoke to Schultz about this issue and that "Del did not want vessel documented[.]"21
Tomingas contends that the BERING EXPLORER was hauled out and blocked in November of 2015. Mark Nelson, plaintiff's owner and manager, avers that the vessel was not delivered to plaintiff's property until sometime in March 2016.22 Tomingas contends that the haul out was done by Will Allen and that Allen was plaintiff's manager. However, Nelson avers that 23
Tomingas contends that the haul out was "botched."24 There is evidence in the record, in the form of an email from Allen to Schultz, in which Allen admits that "[t]here was a foul up from the beginning on the timing of the haul out[,]" but Allen contends that any rumors "about damaged frames" as result of the haul out were "simply untrue."25 Tomingas also contends that the BERING EXPLORER has been improperly blocked, thereby damaging the vessel further.
On or about March 10, 2016, plaintiff and Arctic Wolf entered into a Vessel Storage Agreement for the storage of the BERING EXPLORER.26 The Agreement defined the"Owner" as "the individual or entity that owns or operates the Vessel(s) specified in this document, which is being stored or repaired at Seward Property."27 The Agreement stated that Arctic Wolf was the "Owner" of the BERING EXPLORER, the vessel to be stored by plaintiff.28 The Agreement listed Schultz as the owner of Arctic Wolf.29 Tomingas signed the Agreement on behalf of Arctic Wolf and listed his title as "manager."30 Per the terms of the Agreement, "the Owner" of the BERING EXPLORER was to pay plaintiff $700 per month "for storing the vessel beginning October 23, 2015[;]" "$200.00 per month for storing additional equipment located on the property, i.e. Excavator, screening plant, fire truck generator, etc.[;]" and "$1,500 annually for blocking the vessel."31 Schultz testified that he never instructed Tomingas to sign the Storage Agreement.32 Tomingas testified that he signed the Agreement "not as a[n] individual, but for . . . Del and for his operations."33
Plaintiff contends that Arctic Wolf stopped paying the storage fees for the vessel and the equipment on December 1, 2017.
Plaintiff commenced this action on March 19, 2018. Both Schultz and Tomingas filed answers to plaintiff's complaint in which they stated their intent to appear pro per.34 Arctic Wolf did not answer plaintiff's complaint.
On June 29, 2018, plaintiff filed an amended complaint.35 In its amended complaint, plaintiff asserts breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, intentional and negligent misrepresentation, and indemnification claims. Tomingas answered the amended complaint and has asserted a counterclaim for intentional interference with contract against plaintiff and cross-claims of breach of contract and indemnity against Shultz.36 Tomingas was represented by counsel when his amended answer was filed, but his counsel has since withdrawn and Tomingas is again proceeding pro per. Neither Schultz nor Arctic Wolf answered plaintiff's amended complaint.
A default against Arctic Wolf was entered on March 14, 2019.37 But, a default judgment has not yet been entered against Arctic Wolf.
Plaintiff now moves for summary judgment on its breach of contract and breach of the implied covenant of good faith and fair dealing claims and on Tomingas' counterclaim for intentional interference with contract. Tomingas has filed a motion to dismiss in response, which the court has treated as a cross-motion for partial summary judgment, even though it was filed after the dispositive motion deadline in this case.
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255. "'[T]he court's ultimate inquiry is to determine whether the 'specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.'" Arandell Corp. v. Centerpoint Energy Services, Inc., 900 F.3d 623, 628-29 (9th Cir. 2018) (quoting T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987)). "When[,]" as here, the "parties submit cross-motions for summaryjudgment, [e]ach motion must be considered on its own merits." Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citation omitted).
breach of contract claim
"In order to assert a claim for breach of contract, a plaintiff must generally allege: (1) existence of a contract; (2) breach; (3) causation; and (4) damages." Nicdao v. Chase Home Finance, 839 F. Supp. 2d 1051, 1068 (D. Alaska 2012). Plaintiff argues that each of these elements are undisputed in this case.
As to the first element, there is no dispute that the Vessel Storage Agreement was a valid contract between plaintiff and the corporation, Arctic Wolf Marine. Tomingas has "admitt[ed] that Arctic Wolf Marine[] entered into the Storage Agreement with Seward and did so in its ordinary course of business."38 Schultz failed to respond to plaintiff's Second Request for Admission No. 1, which asked Schultz to "[a]dmit that on or about March 6th, 2016, YOU entered into a STORAGE AGREEMENT with SEWARD for the storage of the VESSEL[.]"39 For purposes of the Requests for Admissions, "YOU" was defined as "defendant Del Schultz in his individual capacity and in his capacity as an officer, director,shareholder, manager or agent of Arctic Wolf Marine, Inc."40 "'It is undisputed that failure to answer or object to a proper request for admission is itself an admission[.]'" A. Farber & Partners, Inc. v. Garber, 237 F.R.D. 250, 254 (C.D. Cal. 2006) (quoting Asea, Inc. v. S. Pacific Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1982)). Thus, Schultz has admitted that the Vessel Storage Agreement was a valid contract.
As to the second element, whether there has been a breach, there is no dispute Arctic Wolf stopped...
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