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Hays Tug & Launch Services, Inc. v. Draw Events, LLC

United States District Court, D. New Jersey

January 25, 2019

HAYS TUG & LAUNCH SERVICES, INC., et al., Plaintiffs,
v.
DRAW EVENTS, LLC, and CRAIG SAMBORSKI, Defendants.

          MARY ELISA REEVES REEVES MCEWING LLP On behalf of Plaintiffs

          JOSIAH A. KNAPP JOSIAH KNAPP LAW PC On behalf of Defendants

          TERESA M. LENTINI FLORIO PERRUCCI STEINHARDT & CAPPELLI On behalf of interested parties Cooper's Ferry Partnership, Inc. and New Jersey Aquarium, LLC d/b/a Adventure Aquarium

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         In this admiralty case, pending before the Court are two motions: Defendants' Motion to Dismiss Plaintiffs' Complaint and Vacate the Writ of Attachment [24] and Defendant Craig Samborski's Motion for Sanctions [38]. For the reasons expressed below, Defendants' motions will be denied.

         BACKGROUND

         Plaintiffs, Hays Tug & Launch Services, Inc. (“Hays Tug”), Pollution Solutions of New Jersey, LLC d/b/a River Services (“River Services”), McAllister Towing of Philadelphia, Inc. (“McAllister Towing”) and General Marine & Industrial Services, Inc. (“GMIS”), provided services during the 2015 Tall Ship Challenge (“Tall Ship event”), which was organized and managed by Defendant Draw Events, LLC (“Draw Events”). Draw Events was under contract with the event hosts, Interested Parties Cooper's Ferry Partnership and the Adventure Aquarium, as well as the Delaware River Waterfront Corporation (“DRWC”) and the Independence Seaport Museum.

         Draw Events subcontracted with: Hays Tug to provide a barge and towing services; McAllister Towing to provide towing services to move vessels within the Delaware River; River Services to provide a barge, towing, repair services and supplies required to maintain the barges and assist in the emergency recovery, transportation and repair of “Big Mama Duck, ” a large floating rubber duck that deflated in the water during the event; and GMIS to provide a crane and labor to transport, recover and repair “Big Mama Duck.” Plaintiffs claim that they have not been paid for their services by Draw Events despite repeated demands.

         As a result of a dispute regarding unpaid invoices from the Tall Ship event, on March 9, 2017, Draw Events filed a lawsuit in the Eastern District of Pennsylvania (2:17-cv-1050-MSG), based on diversity jurisdiction against Cooper's Ferry, DRWC, Herschend Family Entertainment Corporation, Adventure Aquarium, and Independence Seaport Museum (“Tall Ship Litigation”). On January 29, 2018, after settlement had been reached in the Tall Ship Litigation but a few days before the paperwork was finalized, Plaintiffs here sought to intervene in the Tall Ship Litigation seeking to assert a claim for their unpaid invoices. On February 7, 2018, Judge Mitchell J. Goldberg, U.S.D.J., denied their motion to intervene determining, in part, that their attempt to intervene was untimely. Judge Goldberg dismissed the action the same day.

         On February 13, 2018, Plaintiffs filed suit in this Court, contending admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, F.R.C.P. 9(h), and Supplemental Admiralty Rule B (“Rule B”). On that same date, this Court granted Plaintiffs' motion to serve process of a maritime garnishment pursuant to Rule B, which provides: “If a defendant is not found within the district when a verified complaint praying for attachment and the affidavit required by Rule B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendant's tangible or intangible personal property - up to the amount sued for - in the hands of garnishees named in the process.” Plaintiffs sought to garnish any settlement funds from the Tall Ship litigation in the hands of Cooper's Ferry and Adventure Aquarium.[1]

         To that end, Plaintiffs served Cooper's Ferry with a writ of maritime attachment and garnishment at 3:39 p.m. on February 13, 2018. Plaintiffs served Adventure Aquarium with a writ of maritime attachment and garnishment at 3:44 p.m. on February 13, 2018.

         At the time the writs were served, the $50, 000 check made out to Draw Events by Cooper's Ferry for the settlement of the Tall Ship Litigation - the “property” of Draw Events that Plaintiffs sought to garnish - was in the New Jersey office of the attorney for the defendants in the Tall Ship Litigation. Cooper's Ferry had prepared the check on February 5, 2018, drawn on its account, on behalf of all the defendants in the Tall Ship Litigation. Counsel for Cooper's Ferry received the check in her office some time before February 9, 2018. At 4:04 p.m. on February 13, 2018, FedEx picked up the package containing the settlement check from the attorney's office destined for Draw Events in Minnesota.

         Plaintiffs argue that the writ of attachment successfully garnished the $50, 000 because (1) it was still in the hands of Cooper's Ferry - the garnishee - by way of its attorney, when it was served, and (2) the funds did not transfer from Cooper's Ferry's possession until Draw Events deposited it several days later and the checked subsequently cleared.

         In contrast, Draw Events and the garnishees Cooper's Ferry and Adventure Aquarium argue that the writs of attachment did not successfully garnish the $50, 000 because it was not in the garnishees' possession when they were served with the writs. Rather, it had been out of Cooper's Ferry's control since February 5, 2018 when it was sent to its attorney for transmittal to Draw Events.[2]

         Draw Events further argues that without a valid writ of attachment to its property, Plaintiffs would be required to establish personal jurisdiction. Draw Events also argues that the funds Plaintiffs have endeavored to attach, as well as their underlying dispute, are basic contract disputes and not maritime in nature, and therefore with no valid claim sounding in admiralty, the Rule B writs of attachment were unavailable to Plaintiffs in the first place.

         In addition to the other bases for dismissal of Plaintiffs' complaint, Defendant Craig Samborski, the sole member of Draw Events, seeks his dismissal on an individual basis because Draw Events, and not Samborski individually, entered into the relevant contracts with the parties. He has also filed a motion for sanctions for being named a defendant individually.

         Plaintiffs have opposed Defendants' motions on all bases.

         DISCUSSION

         A. Standard for Jurisdiction

         Plaintiffs assert that this Court may exercise subject matter jurisdiction over the action based on admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, F.R.C.P. 9(h), and Supplemental Admiralty Rule B.

         B. Analysis

         “A Rule B attachment is a quasi in rem proceeding which permits the assertion of jurisdiction over a defendant's property located within the district even though the court has no in personam jurisdiction over the defendant.” Kabushiki Kaisha v. Kraiem, 2015 WL 5770504, at *3 (D.N.J. 2015) (citing Western Bulk Carriers, Pty. Ltd. v. P.S. Internat'l, Ltd., 762 F.Supp. 1302, 1305 (S.D. Ohio 1991); Transamerica Leasing Inc. v. Frota Oceanica E. Amazonica, S.A., 1997 WL 834554, *2 (S.D. Ala. 1997)).

         Four prerequisites must be met by a plaintiff to secure a writ of attachment: (1) the plaintiff has an in personam claim against the defendant; (2) the defendant cannot be found within the district where the action is commenced; (3) property belonging to the defendant is present within the district; and (4) there is no statutory or general ...


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