Bruce Oakley, Inc. and Johnston's Port 33, Inc., owners of the M/V Legacy, for exoneration from or limitation of liability

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6:19-cv-00184-RAW-JAR Document 86 Filed in ED/OK 0n 07/16/20 Page1of3

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

IN THE MATTER OF THE COMPLAINT )
OF BRUCE OAKLEY, INC. and )
JOHNSTON’S PORT 33 INC., OWNERS ) Case No. CIV-19-184-SLP
OF THE M/V LEGACY, FOR )
EXONERATION FROM OR LIMITATION _ )

)

OF LIABILITY

IN THE MATTER OF SOUTHERN TOWING )
COMPANY, LLC, IN A CAUSE OF )
EXONERATION FROM OR LIMITATION _ ) Case No, CIV-19-396-SLP
OF LIABILITY )

IN THE MATTER OF THE COMPLAINT )
OF MARQUETTE TRANSPORTATION )
COMPANY, LLC AND LMR FREIGHT, )
LLC AS OWNERS PRO HAC VICE OF THE ) Case No. CIV-19-400-SLP
MTC-7256 AND THE LTD-11140, FOR )
EXONERATION FROM OR LIMITATION __)
OF LIABILITY )
ORDER

Before the Court are the: (1) Unopposed Motion for Default Judgment [Doc. No.
83]; and (2) Amended Motion for Default Judgment [Doc. No. 84] of Marquette
Transportation Company, LLC (Marquette) and LMR Freight, LLC (LMR Freight). The
record reflects that on November 22, 2019, Marquette and LMR Freight filed a Complaint

for Exoneration from and/or Limitation of Liability. Pursuant to Rule F(4), Supplemental

Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (Supplemental

6:19-cv-00184-RAW-JAR Document 86 Filed in ED/OK 0n 07/16/20 Page 2 of 3

Rules), Marquette and LMR Freight published notice of their commencement of this
limitation proceeding in the Muskogee Phoenix once a week for four consecutive weeks.
The Notice, published on January 15, 22, 29, 2020 and February 5, 2020 apprised potential
claimants that they were obligated to file a claim on or before February 23, 2020, or their
claim would be defaulted. Proof of publication of the notice as required by Supplemental
Rule F(4) was filed with the Court on March 25, 2020.

The following parties have filed a claim and/or answer: Bruce Oakley, Inc.;
Johnston’s Port 33, Inc.; Consolidated Grain and Barge Co.; CGB Enterprises, Inc.; the
United States of America; and Southern Towing Company, LLC (collectively, Claimants).
No other party has filed a claim and/or answer or sought an extension of time within which
to do so.

Marquette and LMR Freight now request the Court to enter default judgment barring
all persons or entities, other than Claimants, from making a claim against them in
connection with the subject matter of their Complaint and/or contesting their right to
exoneration from and/or limitation of liability in connection with these proceedings.

Rule F(5) of the Supplemental Rules directs as follows:

(5) Claims and Answer. Claims shall be filed and served on or before the

date specified in the notice provided for in subdivision (4) of this rule... .

If a claimant desires to contest either the right to exoneration from or the

right to limitation of liability the claimant shall file and serve an answer to

the complaint unless the claim has included an answer.

Marquette and LMR Freight fulfilled their obligation to publish notice of the limitation

proceeding as required by Supplemental Rule F(4). The Notice expressly stated the

deadline for filing a claim and/or answer was February 23, 2020, and that failure to file a

2

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timely claim would result in default of that claim. Moreover, any potential claimant has
had nearly four additional months to file a claim and/or answer prior to Marquette and
LMR Freight moving for entry of default judgment.

Notwithstanding the factual record as set forth, Marquette and LMR Freight have
not previously moved for the entry of default. See Fed. R. Civ. P. 55(a).!_ Thus, their
request for entry of a default judgment is premature. See Fed. R. Civ. P. 55(b); see also
Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (“[E]ntry of default
under Rule 55(a) must precede grant of a default judgment under Rule 55(b).”); Flohrs v.
Eli Lilly & Co., No. 12-2439-SAC, 2012 WL 5266116, at *1 (D. Kan. Oct. 23, 2012)
(unpublished op.) (addressing the “two sequential steps” of Rule 55 and finding the
plaintiff's motion for default judgment premature where he had not first requested an entry
of default from the clerk). Accordingly, the Court directs Marquette and LMR Freight to
move for entry of default and denies their motions for default judgment without prejudice
to refiling upon obtaining the clerk’s entry of default.

IT IS SO ORDERED this 16" day of July, 2020.

DxZ bop

SCOTT L. PALK
UNITED STATES DISTRICT JUDGE

' The Federal Rules of Civil Procedure apply to admiralty proceedings. See Rule A(2) of the
Supplemental Rules.