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

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

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JAMES W. ALCANTARA - State Bar No.: 152747 Alcantara & Associates, APC 402 West Broadway, Suite 1170 San Diego, California 92101 Telephone: (619) 233-5900 Facsimile: (619) 233-5999 Email: [email protected] Attorneys for Plaintiff Gregory A. Strasburg,

Individually and as Trustee of the Gregory A. Strasburg Revocable Trust dated 4/8/2003

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 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08CV21 JLS (BLM)

IN ADMIRALTY EX PARTE APPLICATION FOR AN ORDER APPOINTING NEW SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT OF DEFENDANT VESSEL; [PROPOSED] ORDER Federal Rules of Civil Procedure Supplemental Rules for Certain Admiralty and Maritime Claims, Rules C and D

13 v. 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

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., hereby applies to this Court and respectfully requests ex parte an Order appointing a new substitute custodian and authorizing movement of Defendant vessel, M/Y JUST A NOTION (hereinafter referred to as "DEFENDANT VESSEL") As set forth herein, good cause exists for such relief as requested. /// -1Case Number: 08CV21 JLS (BLM)

STIPULATION AND ORDER APPOINTING NEW SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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

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/// FACTUAL BACKROUND OF CASE On or about January 3, 2008, the Complaint file 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. The United States Marshal did arrest the DEFENDANT VESSEL on January 9, 2008, and thereafter released DEFENDANT VESSEL to the substitute custodian Driscoll's Wharf pursuant to the Order Appointing Substitute Custodian and for Authorization for Movement of Defendant Vessel filed on January 7, 2008. BASES FOR REQUESTED RELIEF The DEFENDANT VESSEL currently is situated in a slip located at Driscoll's Wharf. After careful consideration, PLAINTIFF has determined it is in the best interest of all parties that the DEFENDANT VESSEL be moved to a marina that provides what is perceived to be better security and better available maintenance facilities. PLAINTIFF will have the DEFENDANT VESSEL moved by a licensed captain who is fully insured and authorized to operate the DEFENDANT VESSEL from Driscoll's Wharf to the new marina located in the same San Diego harbor area. RELIEF REQUESTED PLAINTIFF seeks an Order from this Court approving Nielsen Beaumont Marine, Inc. (hereinafter referred to as "Nielsen Beaumont") to act as the new Substitute Custodian of the DEFENDANT VESSEL. Nielsen Beaumont 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 Don Beaumont, President of Nielsen Beaumont. (a) Assume custody of the vessel from Driscoll's Wharf and keep her in a -2Case Number: 08CV21 JLS (BLM)

STIPULATION AND ORDER APPOINTING NEW SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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

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secure slip at Nielsen Beaumont, 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; (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, supervise a weekly inspection to ensure the vessel's watertight integrity and to check for any excessive bilge water and fuel lubricant leaks. Also, ensure the vessel is washed and kept in the condition she was in at the time of her arrest. Where further action beyond those detailed herein is deemed necessary to preserve the vessel, Nielsen Beaumont 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) Order. (g) Order of the Court. Nielsen Beaumont, in consideration of the Court's consent to the substitution of custodian, agrees to release the United States and the Marshal and Driscoll's Wharf 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 Driscoll's Wharf 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 -3Case Number: 08CV21 JLS (BLM)

Nielsen Beaumont will operate only machinery described in a proper Court

Provide other such services as may be required from time-to-time, by further

STIPULATION AND ORDER APPOINTING NEW SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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

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possession and safekeeping. /// /// CONCLUSION For all the reasons set forth above, PLAINTIFF respectfully requests this ex parte application be granted. PRAYER WHEREFORE, Plaintiff respectfully requests this Court issue an Order: 1. Ordering that Driscoll's Wharf, as substitute custodian of is hereby, authorized and

directed to release DEFENDANT VESSEL, her tackle, apparel, furnishings, appurtenances, etc., and all other necessaries thereunto appertaining and belonging, to the new Substitute Custodian named herein, and that upon such surrender Driscoll's Wharf shall be discharged from its 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. 2. Ordering that NIELSEN BEAUMONT 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 from Driscoll's Wharf to a suitable slip within its marina, for the aforementioned compensation and in accordance with the Declaration of Don Beaumont and the recitals herein contained until further order of this Court.

ALCANTARA & ASSOCIATES, APC

Dated: February 1, 2008

s/ James W. Alcantara James W. Alcantara, Esq. Attorneys for Plaintiff GREGORY STRASBURG

-4Case Number: 08CV21 JLS (BLM)

STIPULATION AND ORDER APPOINTING NEW SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT OF DEFENDANT VESSEL