Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2122
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Venetian Harbor, Inc., et al., *
*
Defendant - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Waterway Investments, L.L.C., *
* [UNPUBLISHED]
Defendant - Appellee. *
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Submitted: January 11, 2005
Filed: March 10, 2005
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Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and MURPHY,
Circuit Judges.
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PER CURIAM.
This litigation began in a Missouri state court when First State Bank of St.
Charles, a secured creditor of the Venetian Harbor marina, petitioned to recover
insurance policy proceeds payable on account of windstorm damage to Venetian
Harbor’s floating docks on the Mississippi River. The United States, a named
defendant, removed the case to federal court, asserting a claim to the policy proceeds
by reason of tax liens filed against Venetian Harbor. Lloyds of London, the insurer,
filed an interpleader motion and paid the policy proceeds into court. The Bank and
Waterway Investments, L.L.C., a competing secured creditor, filed motions for
summary judgment. The United States filed a response in which it “concedes that it

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1The HONORABLE CATHERINE D. PERRY, United States District Judge
for the Eastern District of Missouri.
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does not have priority to the interpled funds.” The district court 1 then issued a
Memorandum and Order concluding that the docks were fixtures attached to real
property and that Waterway Investments is therefore entitled to the insurance
proceeds. The court further concluded that the owners of Venetian Harbor “have no
right to recover.”
The owners of Venetian Harbor appeal, arguing only an issue they apparently
did not raise in the district court. Once the United States disclaimed an interest in the
insurance proceeds, they argue, the district court lost subject matter jurisdiction and
was therefore required to remand the case to state court. This contention is without
merit. The United States never relinquished its claim against the insurance proceeds.
It simply conceded that the priority of its claim as federal tax lienholder was inferior
to the priority of the claims by two other Venetian Harbor secured creditors, the Bank
and Waterway Investments. Thus, the district court had jurisdiction, both when the
case was removed and when the court issued its final Memorandum and Order.
The judgment of the district court is affirmed.
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