Opinion
Civil Action No. 00-893, Section "N"
June 27, 2000
ORDER AND REASONS
Before the Court are (1) Defendants Thermalchem Environmental Corporation's and Jack J. DeWald's Motion for a Rule E(4)(f) Hearing; (2) Defendants Thermalchem Environmental Corporation's and Jack J. DeWald's Motion to Vacate Order and Amended Order for interlocutory sale; and (3) Defendant Thermal Environmental Corporation's Motion for a Hearing Pursuant to Supplemental Admiralty Rule E(4)(f) of the Federal Rules of Civil Procedure to Release the Barge RHEA 84 and for Other Relief Pursuant Thereto. Through these motions, Defendants collectively challenge the March 22, 2000 arrest of the Barge RHEA 84 on the grounds that Plaintiff Denet Towing Service, Inc. ("Denet") does not have a valid maritime lien and challenge the Court's orders authorizing interlocutory sale of the Barge RHEA 84 on the grounds that Denet failed to provide sufficient notice of sale.
The Court finds both motions moot because Defendants failed to file a claim within the time authorized by Supplemental Admiralty and Maritime Claims Rule C(6). Pursuant to that rule,
The claimant of property that is the subject of an action in rem shall file a claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. . . .
Rule C(6) (emphasis added).
Here, process was executed on March 22, 2000, when the warrant of arrest was served on Barge RHEA 84. See U.S. v. $38.570 U.S. Currency, 950 F.2d 1108, 1113 (5th Cir. 1992). However, Defendants Thermalchem and DeWald did not file a claim until June 20, 2000, and Defendant Thermal Environmental did not file a claim until June 23, 2000. Defendants have offered no excuse for their delay, nor did they move for an extension of time to file a claim. Defendants, therefore, have no standing to contest either the arrest or the interlocutory sale order, see Gregory Boat Co. v. Vessel Big Beaut, 938 F. Supp. 414 (E.D. Mich. 1996); United States v. Three (3) Parcels Real Property Located in Jefferson Davis County, Miss., 814 F. Supp. 527 (S.D. Miss. 1993), and all three motions are DENIED. Denet is also ORDERED to move for default judgment against Defendants.
Defendants Thermalchem and DeWald did file a "Defense" on April 27, 2000, but this pleading did not constitute a claim, and, in any case, was filed more than ten days after execution of process.
Nevertheless, the Court recognizes that the interlocutory sale proposed by Denet is procedurally deficient. Under Local Admiralty Rule 64.6(A) and Federal Rule of Civil Procedure 6(a), a ship may not be sold on the tenth day following publication, but rather can be sold no earlier than ten days after the earliest day of publication. This period excludes "the day of the act, event, or default from which the designated period of time begins to run, " as well as Saturdays, Sundays and legal holidays. FED. R. Civ. P. 6(a). Although Defendants have no standing to challenge the proposed sale, the Court VACATES the Interlocutory Sale Order and Amended Order. Denet may re-submit a proper motion for interlocutory sale.
r the reasons set forth above,
IS ORDERED that (1) Defendants Thermalchem Environmental Corporation's and Jack J. DeWald's Motion for a Rule E(4)(f) Hearing; (2) Defendants Thermalchem Environmental Corporation's and Jack J. DeWald's Motion to Vacate Order and Amended Order for interlocutory sale; and (3) Defendant Thermal Environmental Corporation's Motion for a Hearing Pursuant to Supplemental Admiralty Rule E(4)(f) of the Federal Rules of Civil Procedure to Release the Barge RHEA 84 and for Other Relief Pursuant Thereto are DENIED as MOOT.
IT IS FURTHER ORDERED that the June 13, 2000 Interlocutory Sale Order, as amended on June 20, 2000 is VACATED.
IT IS FURTHER ORDERED that Denet move for default judgment against Defendants.