Free Order on Motion to Appoint Custodian - District Court of California - California

Case 3:08-cv-00021-JLS-BLM

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Filed 01/07/2008

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1 2 3 4 5 6 7 Plaintiff, 8 v. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. M/Y JUST A NOTION, Official Number 1089525, her engines, tackle, furniture and appurtenances, in rem; PETER BLAIR, in personam; JIM SINGLETON, in personam; and THE YACHT CLUB, LLC., a Nevada Corporation UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA GREGORY A. STRASBURG, Individually and as Trustee of the GREGORY A. STRASBURG REVOCABLE TRUST dated 4/8/2003 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CV21 JLS (BLM)

IN ADMIRALTY

ORDER APPOINTING SUBSTITUTE CUSTODIAN AND FOR AUTHORIZATION FOR MOVEMENT OF DEFENDANT VESSEL

Federal Rules of Civil Procedure Supplemental Rules for Certain Admiralty and Maritime Claims, Rules C and D

Plaintiff GREGORY A. STRASBURG, individually and as Trustee of the GREGORY A. STRASBURG REVOCABLE TRUST dated 4/8/03 (hereinafter referred to as "PLAINTIFF") by and through his attorney of record, James W. Alcantara, Esq. of Alcantara & Associates, APC., having appeared and made the following recitals: 1. On or about January 3, 2008, the Complaint herein was filed praying that the

DEFENDANT VESSEL and her engines, tackle, apparel, furnishings, equipment, accessories, appurtenances, etc., and all other necessaries thereunto appertaining and belonging, be arrested and ordered into the custody of the Substitute Custodian ­ Driscoll's Wharf. 2. It is contemplated the United States Marshal will arrest the DEFENDANT VESSEL

forthwith following PLAINTIFF's application therefore and pursuant to Order of this Court. Custody by the United States Marshal requires the services of one or more keepers, and does not include charges for wharfage and the other services usually associated with safekeeping vessels similar to the DEFENDANT VESSEL. /// -1Case Number: 08cv21

ORDER APPOINTING SUBSTITUTE CUSTODIAN AND FOR AUTHORIZATION FOR MOVEMENT OF DEFENDANT VESSEL

Case 3:08-cv-00021-JLS-BLM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order.

3.

The DEFENDANT VESSEL currently is situated in a slip located at Kona Kai

Marina, 1561 Shelter Island Drive, San Diego, California. Plaintiff has asked that Driscoll's Wharf be appointed Substitute Custodian. Driscoll's Wharf has agreed to assume the

responsibility for safekeeping of the said DEFENDANT VESSEL and has consented to act as her Substitute Custodian until further order of this Court. It will provide, as necessary under the circumstances, the following services for the safekeeping of the DEFENDANT VESSEL, at a cost not to exceed the prevailing rates for substitute custodian services in the Port of San Diego, as described with further particularity in the Declaration of Catherine Driscoll, its Vice President. (a) Assume custody of the vessel from the United States Marshal and keep her

in a secure slip at Driscoll's Wharf, until further order of the Court; (b) As soon as possible after assuming custody of the vessel, photograph and/or

videotape the interior and exterior of the vessel, and prepare a written inventory of equipment and property on the vessel, which is not installed as part of the vessel; (c) mooring; (d) Periodically as deemed prudent under the existing circumstances, but no less Periodically inspect mooring lines/fenders to assure safe and secure

than weekly, at the rate of $50.00 per inspection, inspect the vessel fit watertight integrity, excessive bilge water and fuel lubricant leaks. Where further action beyond those detailed herein is deemed necessary to preserve the vessel, Driscoll's Wharf shall advise counsel, so counsel can seek an appropriate Order from the Court; (e) Provide at the usual and customary rates prevailing in the port additional

services such as cleaning, minor maintenance, inspection of bottom by a diver for the purpose of cleaning and reporting findings regarding underwater hull, metal and zinc conditions, as such services are deemed prudent. (f) Driscoll's Wharf will operate only machinery described in a proper Court

(g) Provide other such services as may be required from time-to-time, by further Order of the Court. -2Case Number: 08cv21

ORDER APPOINTING SUBSTITUTE CUSTODIAN AND FOR AUTHORIZATION FOR MOVEMENT OF DEFENDANT VESSEL

Case 3:08-cv-00021-JLS-BLM

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4.

Driscoll's Wharf, in consideration of the Marshal's consent to the substitution of

custodian, agrees to release the United States and the Marshal from any and all liability and responsibility arising out of the case and custody of the DEFENDANT VESSEL, her engines, boilers, tackle, apparel, furnishings, appurtenances, etc., and all other necessaries thereunto appertaining and belonging, from the time the Marshal transfers possession of said vessel over to said substitute custodian, and further agrees to hold harmless and indemnify the United States and the Marshal from any and all claims whatsoever arising out of the substitute custodian's possession and safekeeping.
THEREFORE IT IS HEREBY ORDERED that the United States Marshal for the Southern District of California be, and is hereby, authorized and directed upon seizure of the DEFENDANT VESSEL, her tackle, apparel, furnishings, appurtenances, etc., and all other necessaries thereunto appertaining and belonging, pursuant to the Warrant for Arrest to surrender the possession thereof to the Substitute Custodian named herein, and that upon such surrender the Marshal shall be discharged from his duties and responsibilities for the safekeeping of said vessel and held harmless from and against any and all claims whatever arising out of said substituted possession and safekeeping. IT IS FURTHER ORDERED that DRISCOLL'S WHARF be, and is hereby appointed, the Substitute Custodian of said vessel, to retain her in its custody for possession and safekeeping, with the authority to move the DEFENDANT VESSEL to any suitable and safe place within its marina, for the aforementioned compensation and in accordance with the Declaration of Catherine Driscoll and the recitals herein contained until further order of this Court. IT IS FURTHER ORDERED that any person claiming an interest in the DEFENDANT VESSEL shall be entitled upon request to a prompt post-seizure hearing at which the PLAINTIFF shall be required to show cause as to why the arrest should not be vacated or any other such relief granted consistent with the Supplemental Rules for Certain Admiralty and Maritime Claims. /// /// /// -3Case Number: 08cv21

ORDER APPOINTING SUBSTITUTE CUSTODIAN AND FOR AUTHORIZATION FOR MOVEMENT OF DEFENDANT VESSEL

Case 3:08-cv-00021-JLS-BLM

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IT IS FURTHER ORDERED that PLAINTIFF's attorney will serve, by mail, a copy of said Order to the last known address of all DEFENDANTS named in the Complaint, except that if any named Defendant is known by PLAINTIFF or his counsel to be represented in connection with PLAINTIFF's claims in this action, PLAINTIFF shall serve this ORDER on such counsel, rather than on his or her client.

DATED: January 7, 2008 HONORABLE JUDGE OF THE UNITED STATES DISTRICT COURT

-4Case Number: 08cv21

ORDER APPOINTING SUBSTITUTE CUSTODIAN AND FOR AUTHORIZATION FOR MOVEMENT OF DEFENDANT VESSEL