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Abruzese Yacht Sales, LLC v. M/Y Nipper

United States District Court, D. Connecticut

October 30, 2019

ABRUZESE YACHT SALES, LLC, Plaintiff,
v.
M/Y NIPPER (O.N. 1098807), her engines, tackle, equipment, and appurtenances in rem, Defendant.

          Vanessa L. Bryant, United States District Judge

         This matter having come before the Court upon motion of Plaintiff Abruzese Yacht Sales, LLC (“Abruzese”) for an Order Granting Default Judgment in favor of Abruzese and against the Defendant Vessel (Official # 1098807) including its engines, tackle, equipment, and appurtenances, etc., (hereinafter collectively "Vessel") arising out of a Verified Complaint relating to unpaid storage charges, and the Court having considered the papers supporting the motion, and there being no appearances filed in this action and no opposition filed, it is on this 28th day of October, 2019 ORDERED AND ADJUDGED as follows:

1. Default judgment is hereby ordered in favor of Abruzese against the Vessel, in the amount of a sum certain of $109, 387.99. Plaintiff seeks a total of $109, 387.99 for past due invoices for storage and an additional $42, 297.73 for unpaid repairs and maintenance from 2009 through the commencement of this action. [Dkt. 1 (Compl.) ¶¶ 12-15]
However, the exhibits to the verified complaint do not contain any of the invoices or documentation sufficient to show what repairs and maintenance, other than storage costs, were provided to the Vessel but unpaid by the owner. Id. at Ex. A. Tami Abruzese's declaration explains that the $42, 297.73 is the carried over outstanding balance but does not provide itemization. [Dkt. 14 (Abruzese Decl.) ¶¶ 6-7]. The invoices for repairs and maintenance, which are itemized, are prior to 2009 and were paid by the Vessel's owner. Id. ¶ 5.
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)(citations omitted). Abruzese may file documentation supporting their claim for $42, 297.73 for repairs and maintenance for the Vessel within seven days, otherwise, the judgment in the amount of $109, 387.99 shall be final.
2. The Court declines to award attorney fees. “The general rule is that the award of fees and expenses in admiralty actions is discretionary with the district judge upon a finding of bad faith.” Ingersoll Mill. Mach. Co. v. M/V Bodena, 829 F.2d 293, 309 (2d Cir. 1987). Abruzese did not allege bad faith, nor did Abruzese allege a contractual basis for attorney fees. Additionally, attorney fees do not constitute a “necessary” because they are not reasonably related to the Vessel's business and were incurred by the Plaintiff. See Constructive Hands, Inc. v. Baker, 446 F.Supp.2d 88, 98 (N.D.N.Y. 2006); Sears v. Sailing Vessel "Smithereens", No. ELH-13-3389, 2014 WL 2707633, at *5 (D. Md. June 13, 2014)(same).
3. A maritime lien shall be and hereby is fixed on the Vessel for the amount of the default judgment ($109, 387.99) and the Vessel is hereby condemned for public sale. Such amount may be modified to include $42, 297.73 sought for repairs, should Abruzese provide sufficient documentation necessary for the Court to ascertain the amount of damages with reasonable certainty for repairs and maintenance within seven days.
4. The Vessel shall be sold free and clear of all claims, encumbrances and liens at an auction sale to be held under the auspices of the United States Marshal for the District of Connecticut.
5. The Clerk of the Court shall issue a Writ of Venditioni Exponas to the United States Marshal for public sale of the Vessel to the highest bidder deemed eligible under 46 U.S.C. § 31329, with such sale being subject to confirmation by this Court.
6. The U.S. Marshal is authorized and directed to conduct the public sale of the Vessel to the highest responsible bidder deemed eligible under 46 U.S.C. § 31329, such sale to be subject to the confirmation of this Court.
7. To the extent not previously paid, all of the expenses of the U.S. Marshal in connection with the public sale, including without limitation the costs of publication, shall be paid in advance by Abruzese.
8. Prior to the Vessel's sale, Abruzese shall cause to be published notice of the auction once in the Connecticut Post at least 14 days before the auction. The notice is to be in substantially the following form:

         NOTICE OF U.S. MARSHAL'S SALE OF VESSEL

         By order of the U.S. District Court, District of CT entered on October 28, 2019, 2019, in the case of Abruzese Yacht Sales, LLC v. M/Y Nipper (O.N. 1098807), her engines, tackle, equipment, and appurtenances, in rem, the U.S. Marshal will sell by public auction at Birbarie Marine Sales, Inc. located at 7 Indian Neck Ave. Branford, CT 06405, on, 2019, at .m., the M/Y Nipper, AS IS, WHERE IS. A copy of the sale order may be obtained ...


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