Free Ex Parte Application - District Court of California - California

Case 3:07—cv—02952—WHA Document 20 Filed 06/14/2007 Page 1 of 3
1 COX, WOOTTON, GRIFFIN,
HANSEN & POULOS LLP
2 Gregory W. Poulos (SBN 131428)
Max L. Kelley (SBN 205943)
3 190 The Embarcadero
San Francisco, CA 94105
4 Telephone No.: 415-438-4600
Facsimile No.: 415—438—4601
5
Attorneys for Plaintiff
6 DEL MAR SEAFOODS, INC.
7
8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
10
11 DEL MAR SEAFOODS, INC. ) Case No.: CV 07-02952 WHA
)
12 Plaintiff, ) IN ADMIRALTY
)
13 vs. ) EX PARTE APPLICATION TO
) APPOINT NEW SUBSTITUTE
14 BARRY COHEN, CHRIS COHEN (aka ) CUSTODIAN AND TO MOVE THE
CHRISTENE COHEN), in persomzm and ) VESSEL TO SUGARDOCK
15 F/V POINT LOMA, Official Number )
515298, a 1968 steel—hul1ed, 126-gross ton, )
16 70.8- foot long fishing vessel, her engines, ) _
- tackle, furniture, apparel, etc., in rem, and )
17 Does 1-10, g
1 8 Defendants. g
19
20 Pursuant to Rule C(3) of the Supplemental Rules for Admiralty of the Federal Rules
2] of Civil Procedure and Rule 9—1(c) of the Admiralty Rules of this Court, Plaintiff, DEL
22 MAR SEAFOODS, INC. ("DEL MAR"),hereby requests ex parte that the Court appoint a
23 new substitute custodian in lieu ofthe present substitute custodian, National Maritime
24 Services, Inc., for the Defendant Vessel F/V POINT LOMA,.
2 5 1. An introduction and factual summary of this matter was included in
grgfigggiiigiiii 26 P1aintiff’ s previously filed Ex Parte Application for an Order for Arrest, as well as
I" LOS LLP
`°¥§i$`i·i§·;§_i§*¥3`?i`° 27 Plaintiff’ s Verified Complaint, also filed previously. Those papers are hereby incorporated
Mmmm 28 into this application by this reference as though fully set forth herein.
` l - l — Case No.: CV 07-02952
. WHA
EX PARTE APPLICATION TO APPOINT NEW SUBSTITUTE CUSTODIAN

Case 3:07—cv—02952—WHA Document 20 Filed 06/14/2007 Page 2 of 3
1 2. The U.S. Marshal arrested the Defendant Vessel F/V POINT LOMA
2 (Official No. 515298) on June 7, 2007 pursuant to a warrant of arrest authorized by Order of
3 this Court and duly issued by the Clerk.
4 3. Once the Vessel was arrested, it was turned over to the Substitute Custodian,
5 National Maritime Services, Inc., pursuant to this Court’s Order.
6 4. The Vessel is currently berthed at the public docks at the Hyde Street Piers in
7 San Francisco, California and is under the custodianship of National Maritime Services, Inc.
8 The Court has already issued an Order allowing National Maritime Services, Inc. to move
9 the Vessel to Svendsen’s Boatyard in Alameda, California. Instead, upon approval of this ex
10 parte application, National Maritime Services, Inc. will move the Vessel to SugarDocl<,
11 LLC, ("SugarDock") where SugarDocl< will take over as the new Substitute Custodian.
I2 5. The proposed new Substitute Custodian, SugarDocl<, has the ability,
13 experience, expertise and the resources within the District to provide all services required
14 for the preservation, storage, and safekeeping of the Vessel during the pendency of this
15 action. See, the Declaration of William Bodle ("Bodle Dec."), tiled herewith.
l6 6. Plaintiff DEL MAR SEAFOODS, INC. has already agreed to release the
17 United States and the U.S. Marshal from any and all liability and responsibility arising out
18 of the care and custody of the Vessel since it has been released to the substitute custodian,
2 19 National Maritime Services, Inc. As shown in the attached affidavit of William Bodle,
2Q owner and operator of SugarDocl<, the proposed new Substitute Custodian, SugarDock
21 agrees to hold harmless and indemnify the United States and the U.S. Marshal’s Service l
22 from any and all claims whatsoever arising out of its negligence in possession and
23 safekeeping of the Vessel.
24 7. Pursuant to Rule 9-1 (a) of the Admiralty Rules of this Court, after a vessel
25 has been arrested and brought into the custody of the United States Marshal, the Court may
26 appoint a substitute custodian in place of the Marshal by order of the Court.
‘”3£L'ir’t;l§¥€&'¥f° 27 8. The proposed new substitute custodian is able and willing to perform
ékmmm 28 custodial services at a rate substantially lower than the current Substitute Custodian (less
mmmmm -2- case No.: cv 07-02952 I
WHA
EX PARTE APPLICATION TO APPOINT NEW SUBSTITUTE CUSTODiAN

Case 3:07—cv—02952—WHA Document 20 Filed 06/14/2007 Page 3 of 3
1 than $100/day at SugarDock compared to over $600/day at Svendsen’s). Bodle Decl.,1| 5.
2 The appointment of SugarDock as the new Substitute Custodian would therefore avoid
3 economic waste to the detriment of Plaintiff, Defendants, the Vessel, and any other creditors
4 who may have a claim against the Vessel.
5 9. Plaintiff further requests that the expenses of the substitute custodian in
6 keeping the vessel in oustodia legis be taxed as costs in this action. Seo, New York Dock
7 Co. v. S.S. Pozmzn, 274 U.S. 117 (1927); Boeing Co. v. M/I/'Spirit ofDiscovory, 654 F.
. 8 Supp. 740, 742 (W.D. Wash. l986); and S.D. Cal Rule. E.1(e)(2) (Marshal’s fees taxable as
9 costs).
10 CONCLUSION
11 Plaintiff DEL MAR SEAFOODS, INC. respectfully requests that the Court issue an
12 Order appointing SugarDock as the new substitute custodian of the Vessel until further
13 order of this Court, and permitting the Vessel to be moved by the current Substitute
14 Custodian, National Maritime Services, Inc., to SugarDoc1< where SugarDock will take over
15 as the new Substitute Custodian.
16 Respectfully submitted, `
17
Dated: June 14, 2007 COX, WOOTTON, GRIFFIN,
18 HANSEN a POULOS, LLP
Attorneys for Plaintiff
19 DEL MAR SEAFOODS, INC.
20
21 _. _
22 By: 5 ·
Max L. Kelley ‘
23
24
25
COX, WOOTTON,
GRIFFIN, HANSEN
&l"OUL()$ LLP
‘°$Iil’“Ei?i3li'jéL*Et1`$il*° 27
FAX-II5-4lH-l6U]
l -3- Case No.: CV 07—02952
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EX PARTE APPLICATION TO APPOINT NEW SUBSTITUTE CUSTODIAN

Case 3:07-cv-02952-WHA

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