United States District Court, D. Hawaii
ORDER DENYING DEFENDANT DAVID E. THOMAS' MOTION
TO DISMISS, ECF NO. 20
Michael Seabright, Chief United States District Judge
the court is Defendant David E. Thomas'
(“Thomas”) Motion to Dismiss Plaintiff Irving
Ogner's (“Ogner”) First Amended Verified
Complaint (“FAC”), ECF No. 10, for lack of
subject-matter jurisdiction. ECF No. 20. For the reasons
discussed below, the court finds that it has admiralty
jurisdiction over this action and therefore DENIES the Motion
alleged in the FAC, Ogner, Thomas, and Johnny Antoon
(“Antoon”) entered into an oral agreement (the
“Agreement”) in 2007 to form a partnership to
acquire, maintain, and use the M/V Kilohana, O.N. 1208577, a
United States Coast Guard documented vessel (the
“Vessel”). FAC ¶ 7. Pursuant to the
Agreement, the partners would each own a one-third interest
in the Vessel and be responsible for one-third of the
expenses for maintaining, insuring, and mooring the Vessel.
Id. The Vessel was initially moored in Florida where
Antoon resided. Id. Antoon withdrew from the
partnership in 2010, id., and on May 7, 2010, title
to the Vessel was recorded in the name of “Irving Ogner
and David E. Thomas, JTRS.” FAC Ex. “A” at
3, ECF No. 10-2. The parties now dispute their percentage
ownership interest in the Vessel. FAC ¶ 11.
Thomas borrowed approximately $200, 000, using the Vessel as
collateral, to prepare and ship the Vessel to Hawaii.
Id. ¶ 9. The parties further dispute whether
Thomas or the partnership is responsible for the costs of
shipping and maintaining the Vessel in Hawaii. To convince
Ogner to allow the Vessel to be shipped to Hawaii, Thomas
agreed to be solely responsible for shipping costs and all
future costs of maintaining, insuring, and mooring the
Vessel, which he would and did use as a residence in Hawaii.
Id. ¶ 10. Thomas now contends that costs for
shipping and maintenance are the responsibility of the
partnership and that he is owed approximately $145, 715.46.
Id. The current market value of the Vessel is
estimated to be $208, 000. Id. ¶ 14.
parties' disagreement over the management, use, and
buyout or sale of the Vessel is irreconcilable. Id.
¶ 12. Thus, Ogner filed the instant action for partition
pursuant to Rule D of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions, for sale of the
Vessel, and for an accounting. Id. ¶¶
15-19. Ogner seeks the sale of the Vessel, an award of sale
proceeds in proportion to his ownership interest,
reimbursement from sale proceeds for costs incurred with the
Vessel's arrest and custody, an injunction requiring
Thomas to disclose the partnership's financial records,
and distribution of partnership assets pursuant to the
Agreement. Id. ¶¶ E-H.
filed a Verified Complaint against the Vessel, in
rem, and Thomas, in personam, on July 21, 2017,
ECF No. 1, and the FAC on August 1, 2017, ECF No. 10. On
August 2, 2017, the court issued a Warrant for Maritime
Arrest of the Vessel, ECF No. 15, and an Order Appointing
Substitute Custodian, ECF No. 16. The Warrant was served and
the Vessel taken into custody on August 9, 2017. ECF No. 17.
On August 23, 2017, Thomas filed a Verified Statement of
Interest for the in rem Defendant Vessel. ECF No.
19. On August 30, 2017, Thomas filed the instant Motion to
Dismiss for lack of subject-matter jurisdiction. ECF No. 20.
Ogner filed an Opposition on November 8, 2017, ECF No. 31, to
which Thomas did not file a Reply. The Motion was heard on
November 29, 2017.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) authorizes a court to
dismiss claims over which it lacks subject-matter
jurisdiction. The court may determine jurisdiction under Rule
12(b)(1) so long as “the jurisdictional issue is [not]
inextricable from the merits of a case.” Kingman
Reef Atoll Invs., L.L.C. v. United States, 541 F.3d
1189, 1195 (9th Cir. 2008). The moving party “should
prevail [on a Rule 12(b)(1) motion to dismiss] only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Casumpang v. Int'l Longshoremen's
& Warehousemen's Union, Local 142, 269 F.3d
1042, 1060-61 (9th Cir. 2001) (citation and quotation marks
omitted); Tosco Corp. v. Cmtys. for a Better
Env't, 236 F.3d 495, 499 (9th Cir. 2001),
abrogated on other grounds by Hertz Corp. v. Friend,
559 U.S. 77 (2010).
12(b)(1) challenge may be either facial or factual. Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). In a facial attack, the court may dismiss a complaint
when the allegations of and documents attached to the
complaint are insufficient to invoke subject-matter
jurisdiction. See Savage v. Glendale Union High Sch.
Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir.
2003). When the jurisdictional challenge is facial,
all allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party.
Fed'n of African Am. Contractors v. City of
Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). This
presumption of truthfulness does not extend to legal
conclusions, “even if cast in the form of factual
allegations.” Lacano Invs., LLC v. Balash, 765
F.3d 1068, 1071 (9th Cir. 2014) (quotation and citation
factual attack, the challenger “disputes the truth of
the allegations that, by themselves, would otherwise invoke
federal jurisdiction.” Safe Air for Everyone,
373 F.3d at 1039. When determining a factual attack, the
court “relies on affidavits or any other evidence
properly before [it] to contest the truth of the
complaint's allegations.” Courthouse News Serv.
v. Planet, 750 F.3d 776, 780 (9th Cir. 2014) (internal
quotation marks, brackets, and citation omitted). “Once
the moving party has converted the motion to dismiss into a
factual motion by presenting affidavits or other evidence
properly brought before the court, the party opposing the