Xcoal Energy & Resources v. Acciaierie D'Italia S.P.A.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
XCOAL ENERGY & RESOURCES 	)
)
Plaintiff, 	)
)
vs. 	) 	CIV. ACT. NO. 1:23-cv-361-TFM-C
)
ACCIAIERIE D’ITALIA S.P.A, 	)
)
Defendants. 	)
)
PANGAEA LOGISTICS SOLUTIONS
(BVI), LTD.,
)
)
)
Intervenor. 	)
)
JAVELIN GLOBAL COMMODITIES
(UK) LTD. AND ACCLAIERIE
D’ITALIA, S.P.A.,
)
)
)
)
Defendants. 	)
MEMORANDUM OPINION AND ORDER
On October 10, 2023, the Magistrate Judge issued a Report and Recommendation which
recommended as follows: the Emergency Motion to Vacate Maritime Arrest and Attachment (Doc.
16) and the Emergency Motion to Vacate Maritime Arrest and Attachment and Memorandum in
Support filed by Acciaierie D’Italia S.P.A. (“ADI”) (Doc. 44) be granted and the Writ of Foreign
Attachment as to the property aboard the M/V BULK DESTINY (IMO No. 9781994) be vacated,
each party reserving all rights. Subsequently, all parties filed a flurry of motions and Plaintiff even
filed an attempt at a voluntary dismissal to close the case. Regardless of all these issues, the parties
did ultimately agree to request the vacate the Writ of Foreign Attachment and Arrest. On October
12, 2023, the Court entered an agreed upon order from the parties which vacated the writ and
released the vessel from seizure. See Doc. 63.
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On April 3, 2024, the Court issued a short order summarizing the procedural twists and
turns that occurred subsequent to the Report and Recommendation along with its preliminary
rulings. See Doc. 84. The Court further instructed the parties to file a joint status report which
indicates the parties’ views on what motions had been mooted, what issues remain for resolutions,
and the possible consolidation of the two related cases (1:23-cv-361 and 1:23-cv-444). Id.
The parties filed their joint status report on April 30, 2024. See Doc. 88. The Court has
reviewed the joint status report and now issues this more detailed opinion on the matter. The Court
first starts with the jurisdictional question presented by XCoal’s attempt to dismiss in its Motion
to Vacate Attachment (Doc. 55, filed 10/11/23).
On October 10, 2024, the Magistrate Judge entered his Report and Recommendation (R&R)
which was adverse to XCoal. Seemingly recognizing that should the undersigned adopt the R&R
that it may have significant financial implications, one day later, XCoal filed its motion to vacate
attachedment (Doc. 55) in an attempt to avoid a ruling on the R&R. 	The motion generically
references Rule 41 of the Federal Rules of Civil Procedure and request the Court enter an order
vacating its prior attachment of the cargo aboard the M/V Bulk Destiny, vacate the warrant of arrest
and writ of foreign attachment, and instruct the U.S. Marshals to release the vessel and cargo.
Further, XCoal states, “[t]o the extent other issues remain before the Court, Plaintiff respectfully
requests that they be dealt with subsequent to the release of the attachment of the cargo and after
the sailing of the subject vessl so as to prevent any further delay.” Id. Later, XCoal attempted to
reframe its motion as a Rule 41(a)(1)(A)(i) motion to dismiss in which it voluntarily dismissed its
action in a self-effectuating document over which the Court no longer had jurisdiction over the
merits-based claims. See Doc. 69.
Intervenor Javelin Global Commodities (UK) Ltd (“Javelin”) objected to the motion and
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filed its response indicating the the motion to vacate attachment portion is moot and said the
attempt to voluntarily dismiss under Rule 41(a)(1) was procedurally improper. Javelin then said
it should instead be considered under Rule 41(a)(2) as a motion to dismiss that must be approved
by the Court. 	Doc. 68. 	Defendant Acciaerie D’Italia SPA (“ADI”) filed a similar objection as
Javelin and also noted the substantial harm caused by XCoal’s actions and the attempt by XCoal
to evade the consequences of an improper Rule B Attachment. Doc. 70
The Court agrees that the original motion cannot be considered as a self-effectuating
voluntary dismissal under Rule 41(a)(1)(A)(i) for several reasons. 	First and most importantly,
because for a voluntary dismissal to be self-effectuating, it must be clearly invoked. As evidenced
by the original document, the Court finds that XCoal did not do so for several reasons: (1) XCoal
framed as a motion and not a notice; (2) XCoal only generically references Rule 41 and does not
indicate any attempt to make it a self-effectuating dismissal; and (3) even notes that there may be
other issues remaining before the Court for resolution. 	Even the proposed order is styled as an
order vacating maritime attachment, makes no reference to the case being dismissed or closed, and
indicates any remaining matters would be taken up after the release of the cargo.
A Rule 41(a)(1) voluntary dismissal would be self-effectuating and would leave no issues
before the Court for resolution. 	That would not be the case here. 	The Supplemental Rules for
Admiralty or Maritime claims and Asset Forfeiture Actions state “[t]he Federal Rules of Civil
Procedure also apply to the foregoing proceedings except to the extent they are inconsistent with
these Supplemental Rules.” Supplemental Rule A(2). To the extent XCoal utilized the Maritime
and Admiralty Supplemental Rules to initiate this process, it cannot use these rules to its advantage
to seize items and then merely abandon them once it is no longer to their advantage through a
different process. Finally, the Court finds that the document could not be self-effectuating because
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it ultimately required actions from the Court – the vacating of the seizure and arrest orders and a
further order directing the U.S. Marshals for the release of the boat and cargo. Therefore, the Court
finds that the document was not one brought under Rule 41(a)(1) despite the later protestations.
Therefore, the Court looks to the motion as one brought under Rule 41(a)(2). 	For the
multitude of reasons articulated by Javelin and ADI, the Court agrees that it would not be proper
to grant a motion to dismiss under Rule 41(a)(2). The Court repeatedly warned XCoal in its intial
status conferences that if the seizure was improperly done and if the Court erred making that
finding that there might be significant financial consequences.1 The Court agrees that XCoal
appears to be trying to avoid those possible consequences by dodging the findings and conclusions
recommending in the the R&R. 	The Court finds that would be an injustice here and therefore
XCoal’s motion (Doc. 55) is DENIED both in substance as an attempt to dismiss the case and as
moot because of the Court’s order vacating the seizure issued on October 12, 2023.
That now leads us to the pending R&R and the issues lingering beyond the vacated Rule B
Attachment. The Court has reviewed the R&R, the objections (Doc. 64), and the responses to the
objections (Docs. 65, 66). The Court finds that the R&R is well-reasoned and supported by the
record. Further, the Court finds nothing in the objections that lead the Court to reach a different
conclusion than the Magistrate Judge. Rather, the arguments appear to be those same ones that the
Magistrate Judge considered and rejected. The responses to objections are well taken and for those
1 Due to its schedule at the time, the Court referred the matter to the Magistrate Judge as this came
up in the middle of a statewide redistricting case for which the undersigned had a special setting.
While both cases were time sensitive, the Court could not relieve itself of the redistricting
obligations and was part of a panel. Therefore, the Magistrate Judge could address this case in a
more timely manner through a R&R with a shortened objections period. Ultimately, the agreed
order vacating maritime attachment and arrest removed the emergency issues in this case and the
subsequent procedural maneuvers led to an extended consideration of the R&R and its related
issues.
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same reasons, the Court finds that XCoal’s objections are OVERRULED.
Therefore, after due and proper consideration of the issues raised, and a de novo
determination of those portions of the recommendation to which objection is made, the
recommendation of the Magistrate Judge (Doc. 51) is ADOPTED as the opinion of this Court
with the modification that as noted by the Court and the parties, the seizure has already been
vacated by agreement on October 12, 2023 (Doc. 63).
Accordingly, it is ORDERED as follows:
(1) That the Emergency Motions to Vacate Maritime Arrest and Attachment filed on
September 26, 2023. (Docs. 16, 44) are both GRANTED.
(a) 	However, as previously noted, the Writ of Foreign Attachment as to the
property aboard the M/V BULK DESTINY (IMO No. 9781994) and the Warrant of Arrest of the
M/V BULK DESTINY were already VACATED subsequent to the issuance of the R&R and that
portion is moot. Therefore, no further action is required as to the vacation and that issue is now
moot.
(b) 	It also appears that the Motion for Security for Costs under Supplemental
Rule E(2)(b) (Doc. 43, filed 9/29/23) is also moot, though the parties did not address the motion
in their joint status report. Having reviewed the motion again, the Court DENIES the motion (Doc.
43) as moot. If the parties disagree, they shall file a motion regarding the issue no later than May
31, 2024.
(2) 	As discussed in the R&R, the Court has made no official determination regarding
the issue of wrongful attachment and the issue is reserved for further proceedings.
(3) 	XCoal’s motion to vacate attachment (Doc. 55) is DENIED as discussed in this
opinion.
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The Court will issue a separate order after its consideration of the opposed Motion for
Leave to File its Complaint in Intervention (Doc. 61, filed 10/12/24) filed by Javelin. The motion
is fully briefed and ripe for review. See Docs. 50, 61, 75, 79.
DONE and ORDERED this 23rd day of May, 2024.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
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