Jones Superyacht Miami, Inc. v. Waku (In re Rem)

451 F.Supp.3d 1335

JONES SUPERYACHT MIAMI, INC., Plaintiff,

v.M/Y WAKU, her engines, tackle and other appurtenances in Rem, an aluminum hull of 36.77 meters, Cayman Island Official Number 741370, Defendant.

Case Number: 19-20735-CIV-MORENO

United States District Court, S.D. Florida, Miami Division.

Signed April 3, 2020

Joseph A. DeMaria, Susanne Mary Calabrese, Fox Rothschild LLP, Miami, FL, Alvaro Luis Mejer, Mejer Law, P.A., Coral Gables, FL, for Plaintiff.

Adam B. Cooke, Gunther McIntosh, PLLC, Fort Lauderdale, FL, for Defendant.

OMNIBUS ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION TO EXCLUDE

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court upon Plaintiff's Motion for Partial Summary Judgment on Third Affirmative Defense (D.E. 42) , filed on February 7, 2020 .

THE COURT has considered the motion, the response in opposition, the reply, oral argument presented by counsel during the March 11, 2020 status hearing, and the pertinent portions of the record. It is ADJUDGED that for the reasons below, the motion for partial summary judgment is DENIED .

In addition, Defendant filed a Motion to Exclude Expert Opinion of James McCrory (D.E. 50) on February 28, 2020 . After reviewing the motion, response, reply, and expert report, it is ADJUDGED that, also for the reasons below, the motion is DENIED .

I. BACKGROUND

This case arising in admiralty concerns a boatyard, Jones Superyacht Miami, Inc., suing to enforce a maritime lien on the M/Y Waku, an "aluminum hulled vessel of 36.77 meters" owned by FRS Affair Limited.¹ In its second amended complaint, Plaintiff states that due to providing various necessaries, "such as dockage, electricity, monitoring, maintenance, and ... a member of the M/V Waku crew to routinely inspect" the yacht since September 5, 2017 (the date the original Dockage Agreement was signed), it is currently owed more than $1,079,027.22.

Defendant,² in its answer and affirmative defenses, alleges that almost all of the amounts sought by the Plaintiff are "illegitimate, unreasonable, and excessive." Specifically, in its third affirmative defense, Defendant states that Plaintiff "has violated Florida's Deceptive and Unfair Trade Practices Act ["FDUTPA"] through its charging practices." Defendant does not provide any more detail to those practices in its third affirmative defense. However, subsequent filings in this case make clear that Defendant takes issue with "Environmental Impact Fees."³ Defendant contends that these fees were deceptive since the monies recovered from them were kept for general expenses, and not specifically earmarked to cover certain environmental costs.

Now pending before the Court is Plaintiff's motion for partial summary judgment, seeking to strike the FDUTPA affirmative defense. Also pending is Defendant's motion to exclude certain expert testimony. Below, the Court addresses and denies both motions.

II. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Summary Judgment Standard

"Summary judgment pursuant to [Federal Rule of Civil Procedure] 56 [a] is appropriate when there exists no genuine issue as to any material fact and a decision may be rendered as a matter of law." Howard v. BP Oil Co. , 32 F.3d 520, 524 (11th Cir. 1994). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "For factual issues to be considered genuine, they must have a real basis in the record." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) (quoting Hairston v. Gainesville Sun Publ'g Co. , 9 F.3d 913, 919 (11th Cir. 1993) ). The moving party has the initial burden of showing the absence of a genuine issue as to any material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991).

In assessing whether the moving party has met this burden, the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the non-moving party. Denney v. City of Albany , 247 F.3d 1172, 1181 (11th Cir. 2001). Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to come forward with evidence showing a genuine issue of material fact that precludes summary judgment. Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) ; see also FED. R. CIV. P. 56(e). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992). But if the record, taken as a whole, cannot lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Analysis

Discovery having recently concluded on February 7, 2020, Plaintiff moves for partial summary judgment as to the third affirmative defense based on FDUTPA. Plaintiff makes two arguments: (1) that the defense should be rejected as a matter of law since case law in this circuit plainly holds that maritime law wholly preempts application of FDUTPA, and (2) regardless, even if FDUTPA were to apply, because Plaintiff fully disclosed the Environmental Impact Fees in the Dockage Agreement, Rate Sheet, and Waku Invoices, there was no deception as a matter of law. Defendant rebukes both points, arguing that case law actually supports the opposite conclusion regarding preemption of FDUTPA claims, and that there remains a genuine issue of material fact concerning whether the challenged environmental fees are deceptive in nature.

1. Plaintiff's Reliance on Misener and Its Progeny Is Misplaced

In making its first argument, that Defendant cannot assert a FDUTPA affirmative defense in a maritime case, Plaintiff primarily relies on Misener Marine Construction, Inc. v. Norfolk Dredging Co. , 594 F.3d 832 (11th Cir. 2010). Plaintiff contends that that case stands for the sweeping proposition that general maritime law preempts any claim brought under any state statute providing for prevailing attorney's fees. Since it is well established by Eleventh Circuit precedent that federal maritime law strictly conforms to the American Rule of attorney's fees (where each party bears his or her own fees unless a federal statute or contract provides otherwise),⁴ Plaintiff argues that FDUTPA, a state law which provides for attorney's fees,⁵ is inconsistent with maritime law. Plaintiff points to certain language in Misener for its complete preemption argument, where the Eleventh Circuit seemed to hold, in broad strokes, that because "the [Georgia Prompt Pay Act's] entitlement to attorney's fees is in direct conflict with this principle of substantive maritime law ... the GPPA cannot be incorporated into substantive maritime law." Id.

Plaintiff next argues that a trilogy of cases in this very district supports its broad reading of Misener . The first, Pantropic Power, Inc. v. M/V Jalapeno , No. 15-14369, 2016 WL 7626209 (S.D. Fla. June 27, 2016), written by Magistrate Judge Lynch, and summarily affirmed and adopted by Judge Rosenberg, holds that because of Misener , the FDUTPA claim in that case was "preempted in full, both its attorney fee provision, specifically, and as a claim for relief, generally." Id. at *5. Second, Plaintiff relies on F.W.F., Inc. v. Detroit Diesel Corp. , 494 F. Supp. 2d 1342 (S.D. Fla. 2007), a case which more directly held that Misener fully preempts FDUTPA claims. There, Magistrate Judge Hopkins noted how the plaintiff sought to recover actual damages (in addition to attorney's fees) arising from an alleged violation of FDUTPA. Id. at 1347. However, the magistrate judge, in an opinion summarily affirmed and adopted by Judge Hurley, held unambiguously that, pursuant to Misener , "general federal maritime law preempts a claim for damages under the FDUTPA." Id. at 1352. Plaintiff's third case, GE Seaco Services, Ltd. v. Interline Connection, N.V. , No. 09-23864, 2011 WL 98406 (S.D. Fla. Jan. 12, 2011), does not involve a FDUTPA claim. But, Plaintiff highlights how Magistrate Judge O'Sullivan, in a case where the parties consented to his jurisdiction, relied on a broad reading of Misener to fully strike a claim brought under Florida's civil theft statute because that statute provided for fees. Id. at *5. The magistrate judge concluded that "[b]ecause the plaintiff's civil theft claim is preempted by federal maritime law, permitting the plaintiff to assert this claim would be futile." Id.

After careful review, the Court is not persuaded by Plaintiff's reading of Misener , nor the cases relied on in seeking to strike the FDUTPA defense. A close reading of Misener , and its precise holding, makes this apparent. There, the specific issue on appeal was whether the plaintiff could recover attorney's fees under the GPPA in a case arising under admiralty law. Misener , 594 F.3d at 834. Judge Wilson, writing for the three-judge panel, explained: "This case concerns whether the prevailing party in a dispute arising from a dredging contract is entitled to collect attorney's fees." Id. Thus, the issue on appeal was limited solely to the issue of fees, not the entire validity of the GPPA. While Plaintiff does seem to point to broad language in Misener , language elsewhere in the opinion—its central holding—clarifies its true scope: "We hold that the consistent and continued application of the American Rule to maritime disputes has established the American Rule as a characteristic feature of substantive maritime law.... Therefore, the GPPA's entitlement to attorney's fees is in direct conflict with this principle of substantive maritime law. " Id. at 841 (emphasis added). Based on this reasoning, the Eleventh Circuit would "affirm the order of ...