Opinion
2:21-cv-01748-DCN-MGB
09-14-2021
Seabreeze Marina LLC, Plaintiff, v. Justin VanBogart, in personam, M/Y Mascota, M/Y Last Toy, M/Y Pirate's Life and M/Y Little Bull, their engines, bowspirits, anchors, cables, chains, rigging, tackle, apparel, sails, furniture and all accessories hereunto appertaining and belonging to her, in rem, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, United States Magistrate Judge
Plaintiff Seabreeze Marina LLC (“Plaintiff” or “Marina”), filed this in rem action, invoking the district court's admiralty jurisdiction under 28 U.S.C. § 1333. Plaintiff seeks to enforce its maritime liens against Defendants M/Y Mascota, M/Y Last Toy, M/Y Pirate's Life, and M/Y Little Bull (collectively, “Defendant Vessels”), in rem, and to recover additional damages against Defendant Justin VanBogart (“VanBogart”). Defendant VanBogart is appearing in this action pro se. Currently before the Court is VanBogart's Motion to Dismiss wherein he also asks the Court “to halt all auctions, sales or removal of vessels” and to allow VanBogart “to access and remove personal belongings not housed in any arrested vessels.” (Dkt. No. 26.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends the Court deny the Motion.
Plaintiff refers to the Defendant Vessels both as “M/Y” and “M/V.” For consistency, the undersigned uses “M/Y” herein.
The undersigned was referred this case as the Magistrate Judge on August 17, 2021. (Dkt. No. 29.)
BACKGROUND
Plaintiff operates a marina named Seabreeze Marina in Charleston, South Carolina. According to Plaintiff, since February of 2020, Defendant VanBogart has been paying the Marina dockage for the Defendant Vessels. (Dkt. No. 1 at 2.) However, Bongart “stopped making payments to the Marina after his March 2021 dockage payment to the [M]arina.” (Id. at 3.) Plaintiff alleges VanBogart also failed to pay the Marina dockage during the months of April 2020 and May 2020. “The total owed to the Marina for dockage through June 30, 2021 is $28,556.00, plus prejudgment interest.” (Id.) Plaintiff alleges the Defendant Vessels “are not properly insured and the Marina is not named as an additional insured on any insurance policies” insuring these Vessels. (Id.) “During 2020, another vessel, believed to have been owned by defendant Justin VanBogart, sunk at the Marina and was removed from the [M]arina by defendant Justin VanBogart.” (Id.)
The Complaint alleges a claim for the enforcement of Plaintiff's maritime liens against Defendant Vessels and a quantum meruit claim against VanBogart. Plaintiff alleges he has maritime liens against Defendant Vessels “for the sums due for the services and necessaries provided to said Vessels, including, but not limited to, providing dockage, power, water and Wifi.” (Id. at 3.) Plaintiff seeks to have Defendant Vessels “arrested and sold” in order to enforce its maritime liens. (Id. at 4.)
In its quantum meruit claim, Plaintiff alleges it provided a valuable service to VanBogart, including storage of Defendant Vessels, and that VanBogart accepted and benefitted from these services. (Id.) Plaintiff alleges VanBogart knew Plaintiff expected payment from him for these services and that VanBogart owes Plaintiff money for these services. (Id.) This case is governed under The Commercial Instruments and Maritime Lien Act, 46 U.S.C.A § 1333(1).
On August 11, 2021, VanBogart filed a Motion to Dismiss wherein he also asks the Court “to halt all auctions, sales or removal of vessels” and to allow VanBogart “to access and remove personal belongings not housed in any arrested vessels.” (Dkt. No. 26.) On August 20, Plaintiff filed a Motion to confirm the interlocutory sale of Defendant Vessels. (Dkt. No. 32.) On August 23, 2021, Plaintiff filed a response in opposition to the Motion to Dismiss. (Dkt. No. 33.) VanBogart did not file a reply. On August 23, 2021, the Court granted Plaintiff's Motion to confirm the interlocutory sale of Defendant Vessels and permitted Plaintiff “to remove all stickers and other indicia of arrest that may be affixed to said Vessels.” (Dkt. No. 34.)
STANDARDS OF REVIEW
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). The court “may also consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)). However, if the Court considers matters outside the pleadings, the Court must treat the motion as a motion for summary judgment under Rule 56. Fed.R.Civ.P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Grp., Inc., 916 F.Supp.2d 620, 622-23 (D. Md. 2013).
DISCUSSION
In his Motion, VanBogart argues that he is not a properly named defendant and should be dismissed on this basis. (Dkt. No. 26 at 1.) He also asks the Court “to halt all auctions, sales or removal of vessels” and to allow VanBogart “to access and remove personal belongings not housed in any arrested vessels.” (Id. at 3-4.) The undersigned considers VanBogart's requests in turn.
A. Motion to Dismiss
As noted above, VanBogart argues that he is not a properly named defendant. (Dkt. No. 26 at 1.) He asserts that the Defendant Vessels “are owned and operated by Two Bullz, LLC dba Chuck Ventures . . . strictly for commercial purposes.” (Id.) According to VanBogart, Chuck Ventures was the “leasee” of Plaintiff from 2015 to the present date and he “never personally guaranteed said lease” and he is not “personally listed on said lease agreement.” (Id.) VanBogart contends that “[a]ny dispute should be filed between leasing parties (Seabreeze Marina and Chuck Ventures) as agreed to in the lease agreement.” (Id.) In support, VanBogart has included an alleged screenshot of an “estoppel agreement” showing that Chuck Ventures is listed “as the leasee”. (Id. at 2.) VanBogart also contends that lease payments were not made starting in April 2021 because Plaintiff “violated their lease by disallowing parking, shutting off utilities, wifi, and multiple other privileges specifically outlined in the lease agreement.” (Id. at 3.) VanBogart asserts that the lease payments were not made in March 2020 and April 2020 because “the United States Government forced [the] shut-down of non-essential commercial activity and travel restrictions due to Covid-19.” (Id.)
Plaintiff disputes VanBogart's version of events and asserts that, by relying on an alleged screenshot of the estoppel agreement, Plaintiff is turning his motion into one for summary judgment. (Dkt. No. 33 at 5.) Plaintiff further contends there is no material dispute as to who owns the Defendant Vessels because records from the U.S. Coast Guard National Vessel Documentation Center and the South Carolina Department of Natural Resources show VanBogart is the owner of M/Y Little Bull and M/Y Last Toy. (Id. at 5-6; Dkt. No. 33-3; Dkt. No. 33-4.) Plaintiff asserts discovery is needed to confirm VanBogart's ownership of the remaining Defendant Vessels. (Dkt. No. 33 at 6.)
Plaintiff has also attached an affidavit from Michael Shuler, a member of the Marina, to argue that the Marina “is of the opinion that Justin VanBogart and Chuck Ventures were liable to it for the dockage.” (Id.; Dkt. No. 33-1.) In his affidavit, Shuler explains that the “prior owner of the marina entered into an agreement with Chuck Ventures entitled Seabreeze Marina/Town Creek Marina Commercial Slip Rental Agreement. (Dkt. No. 33-1.) This agreement is signed by VanBogart as the “tenant.” (Dkt. No. 33-2.) Shuler avers that when the marina was sold in 2019, Shuler, “on behalf of the new marina owner” informed VanBogart that “the slip rental agreement was not going to be renewed after the new owner purchased the marina and [Defendant Vessels] had to be removed from the marina at the expiration of the slip rental agreement.” (Dkt. No. 33-1 at 2.) Shuler avers that “Seabreeze Marina LLC commenced operating the marina for the new marina owner” after the sale of the marina. (Id.) Shuler avers that the slip rental agreement expired by its own terms as of October 31, 2020. (Id.)
Upon careful review, the undersigned finds that the exhibits presented by Plaintiff as well as the alleged screenshot of the estoppel agreement provided by VanBogart are not integral to the Complaint and, therefore, should not be considered in this Rule 12(b)(6) motion. Philips, 572 F.3d at 180. To find otherwise would convert VanBogart's motion into one for summary judgment, which is not appropriate at this early stage in the proceedings, where discovery is clearly needed. Syncrude Canada Ltd., 916 F.Supp.2d at 622-23. VanBogart has not presented any legal argument, separate from his reliance on the alleged estoppel agreement, to indicate that he is not a proper defendant in this action. Accordingly, the undersigned recommends VanBogart's Motion to Dismiss be denied without prejudice.
B. Remaining Requests
In his Motion, VanBogart also asks the Court to allow VanBogart “to access and remove personal belongings not housed in any arrested vessels” and “to halt all auctions, sales or removal of vessels.” (Dkt. No. 26 at 3-4.) In response, Plaintiff states it “is willing to permit Justin VanBogart to remove personal items that do not belong to the Vessels arrested by the U.S. Marshall during a mutually agreeable time.” (Dkt. No. 33 at 7 n.1.) Accordingly, the undersigned recommends VanBogart's request be granted in this respect.
As for VanBogart's request to halt all auctions, sales or removal of vessels, Plaintiff points to Judge Norton's July 28, 2021 Order wherein he authorized the interlocutory sale of Defendant Vessels. (Dkt. No. 25; Dkt. No. 33 at 9.) The record shows that the Vessels were sold by the U.S. Marshals Service on August 13, 2021, and Judge Norton confirmed the interlocutory sale of Defendant Vessels on August 23, 2021. (Dkt. No. 32-4; Dkt. No. 34; Dkt. No. 36.) Accordingly, the undersigned recommends that Plaintiffs request to halt any sales is moot.
CONCLUSION
Based on the foregoing, it is RECOMMENDED that the VanBogart's Motion to Dismiss (Dkt. No. 26) be DENIED. The undersigned further recommends that VanBogart's request to access and remove personal belongings not housed in any arrested vessels be granted, given Plaintiffs agreement to this request. Finally, the undersigned recommends that VanBogart's request to halt all auctions, sales or removal of vessels is moot.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).