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Abella v. O'Kelley

United States District Court, D. Hawaii

August 22, 2019

ROGER O'KELLY Defendant.



         For the reasons discussed below, the Court GRANTS Plaintiff Ursula S. Abella's Motion for Summary Judgment, ECF No. 24.


         This matter arises under admiralty law. On June 8, 2018, Plaintiff Ursula S. Abella (“Plaintiff”) filed a Complaint against Defendants Roger O'Kelly (“Defendant O'Kelly”), Robert J. Eden (“Defendant Eden”), and Gaen C. Gysel (“Defendant Gysel”). ECF No. 1. The Complaint seeks a declaratory judgment from the Court, pursuant to 46 U.S.C. § 31343(c)(2), stating that none of the defendants have valid maritime liens on the vessel S/V TALISKER, Official Number 1269057 (the “Vessel” or “Talisker”). See Compl.

         Plaintiff and Defendant Gysel reached a settlement and, on August 6, 2018, stipulated to the dismissal of Plaintiff's claim against Defendant Gysel without prejudice. ECF No. 12. On March 21, 2019, Plaintiff voluntarily dismissed her claim against Defendant Eden without prejudice. ECF No. 29.

         Defendant O'Kelly, who is proceeding pro se, is the only remaining defendant in this lawsuit. Defendant O'Kelly filed an Answer to Plaintiff's Complaint on September 18, 2018. ECF No. 17. On October 24, 2018, Plaintiff filed an Amended Complaint (“FAC”), ECF No. 22, which corrects the spelling of Defendant O'Kelly's last name but is otherwise identical to the original Complaint.[1]

         On March 13, 2019, Plaintiff filed a Motion for Summary Judgment (“Motion”) on her claim against Defendant O'Kelly, ECF No. 24, together with a Concise Statement of Facts (“Pl. CSF”). ECF No. 25. On June 16, 2019, Defendant O'Kelly filed a document responding to Plaintiff's Motion (“Response”). ECF No. 31. Defendant O'Kelly does not appear to oppose Plaintiff's Motion. See Response. Plaintiff has not filed a Reply.

         The Court held a hearing on Plaintiff's Motion on August 22, 2019. The Court called the case at 11:00 a.m. and again at 1:30 p.m. At neither time did Defendant O'Kelly or any representative of Defendant O'Kelly appear in Court.


         The following facts are drawn from the FAC and Plaintiff's CSF. Because Defendant O'Kelly has not filed a CSF opposing Plaintiff's CSF, the facts set forth therein are deemed admitted. See Local Rule of Practice for the United States District Court for the District of Hawai`i (“Local Rule”) 56.1(g) (“For purposes of a motion for summary judgment, material facts set forth in the moving party's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party.”).

         On April 4, 2016, Plaintiff and someone named Craig Adams (“Mr. Adams”) purchased the Vessel as co-owners in Freemantle, Australia. FAC ¶ 7. The pair planned to sail the Vessel from Freemantle to Honolulu. FAC ¶ 8. On June 1, 2016, when the Vessel was in Darwin, Australia, Mr. Adams hired Defendant O'Kelly as a crewmember. FAC ¶ 13.

         Defendant O'Kelly served as a crewmember on board the Talisker on its journey from Darwin, Australia to Honolulu, Hawai`i. Pl. CSF ¶ 1; Declaration of Ursula S. Abella (“Abella Decl.”) ¶ 3. Defendant O'Kelly agreed to serve as a crewmember in exchange for being provided all meals while in the service of the Vessel as well as sailing experience and training. Pl. CSF ¶ 2; Abella Decl. ¶ 4. Defendant O'Kelly was provided with all meals while aboard the Talisker and received experience and training. Pl. CSF ¶ 5; Abella Decl. ¶ 5. No. agreement was made for Defendant O'Kelly to be compensated with money and/or airfare in exchange for his services aboard the Vessel. Pl. CSF ¶ 3; Abella Decl. ¶ 6. Plaintiff has no knowledge of a separate agreement between Mr. Adams and Defendant O'Kelly for future employment. Pl. CSF ¶ 7; Abella Decl. ¶ 4.

         On February 13, 2017, Defendant O'Kelly filed a notice of claim of lien against the Vessel with the United States Coast Guard (“USCG”) in the amount of $50, 000. Pl. CSF ¶ 6; Abella Decl. ¶ 8; Exh. B, ECF No. 25-2, at 2. The notice states “Lien for labor from March 1 2016 to November 15 2016; including delivering the boat from Australia to Hawaii[.]” Exh. B at 2. The USCG terminated Defendant O'Kelly's notice of lien on August 9, 2018. Pl. CSF ¶ 7; Abella Decl. ¶ 9; Exh. B at 2. Defendant O'Kelly indicated that he may refile the lien with an attorney. Pl. CSF ¶ 8; Abella Decl. ¶ 10.

         Defendant O'Kelly's Response to Plaintiff's Motion acknowledges that on August 9, 2018, the USCG terminated Defendant O'Kelly's notice of lien on the Talisker. Defendant O'Kelly also states “I have not contacted Abella or her lawyer because this issue is over; and I don't trust them. I don't want to pay court cost for a frivolous law suit [sic].” The foregoing seems to indicate that ...

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