Brannon Finney v. Bryan R. Howey, and his marital community

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANNON FINNEY,
Plaintiff-Appellee,
v.
BRYAN R. HOWEY, and his marital
community,
Defendant-Appellant.
No. 23-35026
D.C. No.
3:20-cv-00289-SLG-KFR
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding
Submitted October 19, 2023**
Portland, Oregon
Before: GILMAN,*** KOH, and SUNG, Circuit Judges.
Bryan R. Howey (“Appellant”) appeals the district court’s decision denying
his Motion to Vacate for Lack of Jurisdiction under Federal Rule of Civil
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
OCT 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Procedure (“Rule”) 60(b)(4), which claimed that the default judgment entered
against him was void for lack of subject matter jurisdiction. Because the contract at
issue in this case (the “Seine Permit Contract”) was maritime in nature, the district
court had admiralty jurisdiction under 28 U.S.C. § 1333, and we affirm.
1. The district court had admiralty jurisdiction because the Seine Permit
Contract was a maritime contract. “[A] contractual claim gives rise to Section 1333
admiralty jurisdiction when the underlying contract is ‘maritime in nature.’”
ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 967 (9th Cir. 2010)
(quoting Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23 (2004)). Contracts are
maritime in nature if they relate to “commerce . . . on navigable waters,” La
Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1026 (9th Cir. 2001) (quoting
Aqua-Marine Constructors, Inc. v. Banks, 110 F.3d 663, 670-71 (9th Cir. 1997)),
or involve the procurement of “[c]ommercial privileges” related to maritime
commerce, see Ex parte Easton, 95 U.S. 68, 73 (1877). The Seine Permit Contract
gave Appellant the right to fish for salmon in Alaskan and federal waters and to
sell his catch for profit. Moreover, the Seine Permit Contract involved the
procurement of a necessary commercial privilege, a fishing permit, because
Appellant needed the permit to conduct commercial fishing operations in Alaska.
Because fishing is an economic activity that takes place at sea, the Seine Permit
Contract advances maritime commerce and is therefore maritime in nature.

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2. Because the Seine Permit Contract is clearly maritime in nature, we need
not resolve the parties’ dispute about who bore the burden of proof as to the
existence of subject matter jurisdiction. Even assuming, as Appellant suggests, that
the burden shifted to Appellee upon Appellant filing the Rule 60(b)(4) motion,
Appellee has met that burden. As explained above, the Seine Permit Contract,
which Appellee incorporated by reference in her complaint, is sufficient proof of
admiralty jurisdiction. See Exp. Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1468 (9th
Cir. 1995) (“[I]n deciding whether the district court appropriately determined that
it lacked subject matter jurisdiction [under Fed. R. Civ. P. 60(b)(4)], we accept the
facts alleged in the complaint as true.”). Because the complaint and incorporated
contract show that the dispute sounds in admiralty, the Rule 60(b)(4) motion was
properly denied no matter which party had the burden.
AFFIRMED.

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