07-0548-cv(L)
Williamson v. Recovery Limited Partnership
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________________________
August Term 2007
(Argued: May 15, 2008 Decided: August 22, 2008)
Docket Nos. 07-0548-cv(L), 07-0746-cv(XAP)
_______________________________
MICHAEL WILLIAMSON, ESTATE OF DON C. CRAFT, KIRK O’DONNELL, JOHN
LETTOW, TIMOTHY MCGINNIS, FRED NEWTON, WILLIAM WATSON, CHRIS
HANCOCK, DALE SCHOENEMAN, AND INTERNATIONAL DEEP SEA SURVEY, INC.,
Plaintiffs-Appellees-Cross-Appellants,
v.
RECOVERY LIMITED PARTNERSHIP, COLUMBUS EXPLORATION, LLC, COLUMBUS-
AMERICA DISCOVERY GROUP, INC., OMNI ENGINEERING, INC., OMNI
ENGINEERING OF OHIO, INC., ECONOMIC ZONE RESOURCE ASSOCIATES,
ECONOMIC ZONE RESOURCE ASSOCIATES, LTD., EZRA, INC., EZRA OF OHIO, INC.,
ECON ENGINEERING ASSOCIATES, INC., DOE E., INC., THOMAS G. THOMPSON,
GILMAN D. KIRK, JAMES F. TURNER, MICHAEL J. FORD, AND W. ARTHUR
CULLMAN,
Defendants-Appellants-Cross-Appellees.
____________________________________
Before: CARDAMONE, MINER, and POOLER, Circuit Judges.
__________________________________
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William M. Mattes, Dinsmore & Shohl, LLP, Columbus, OH, and William
G. Ballaine, Landman Corsi Ballaine & Ford, P.C., New York, NY, for
Defendants-Appellants-Cross-Appellees Thompson, Kirk, Turner, Ford
and Cullman.
Richard T. Robol and Melanie L. Frankel, Robol Law Office, LPA,
Columbus, OH, for Defendants-Appellants-Cross-Appellees Recovery
Limited Partnership, Columbus Exploration, LLC, Columbus-America
Discovery Group, Inc., Columbus Exploration Limited Partnership, Omni
Engineering, Inc., Omni Engineering of Ohio, Inc., Economic Zone
Resource Associates, Economic Zone Resource Associates, Ltd., EZRA,
Inc., EZRA of Ohio, Inc., ECON Engineering Associates, Inc., DOE.E,
Inc.
James T. Shirley, Jr. and Michael J. Frevola, Holland & Knight, LLP, New
York, NY, for Plaintiffs-Appellees-Cross-Appellants
_________________________________
POOLER, Circuit Judge:
On March 31, 2006, Plaintiffs filed a civil action in the Court of Common Pleas for
Franklin County, Ohio, arising out of the same set of facts and circumstances as in this case. On
April 24, 2006, Defendants removed the suit to the United States District Court for the Southern
District of Ohio on the ground that the dispute was over a maritime contract and thus was
governed by federal law. On July 28, 2006, Plaintiffs filed this civil action in the Southern
District of New York (Swain, J.), alleging that each Plaintiff had a maritime claim against the
Defendants. On the same day, Plaintiffs obtained an ex parte attachment order, invoking
Supplemental Admiralty Rule B (“Rule B”). FED . R. CIV . P., ADM . SUPP . RULE B. On October
18, 2006, the Defendants moved to vacate the attachment. On January 16, 2007, the district court
below issued its decision, which 1) vacated the attachment as to the individual Defendants other
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than Thomas G. Thompson, and 2) denied vacatur as to Defendants Economic Zone Resources
Associates, Inc. (“EZRA”), Recovery Limited Partnership (“RLP”), and Columbus Exploration,
LLC (“CXLLC”), but vacated the attachments as to the remaining Defendants, and 3) denied the
individual Defendants’ requests for an award of compensation, costs, and fees for the wrongful
attachment. Defendants appeal the district court’s decision, arguing that the district court erred
in finding: (1) that the contracts between Plaintiffs and Defendants are maritime contracts, (2)
that the notice requirements of Rule B were met, (3) that equitable factors did not weigh in favor
of vacating the maritime attachments, and (4) that a Rule 11 hearing was not required. Plaintiffs
cross-appeal the district court’s decision to vacate the maritime attachments against all
Defendants, except Thomas G. Thompson, EZRA, RLP, and CXLLC. Because we agree with all
of the district court’s determinations, we AFFIRM the judgment of the district court.
BACKGROUND
I. Procedural Background
On March 31, 2006, Plaintiffs filed a civil action in the Court of Common Pleas for
Franklin County, Ohio, over the alleged nonpayment of contracts entered into between Plaintiffs
and Defendants in connection with the search for the shipwreck S.S. Central America in the
1980s. Plaintiffs are individuals who contracted to participate in the S.S. Central America search
and recovery efforts and a company that supplied side scan sonar equipment to one of the
Defendant corporations. Defendants are individuals who were, or allegedly were, parties to
certain contracts or are, or were, directors or officers of one of the Defendant corporations, and
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several corporations that were allegedly responsible for, and involved in, the search and recovery
operation, and the alleged successors and alter-egos of those companies. On April 24, 2006,
Defendants removed the suit to the United States District Court for the Southern District of Ohio
on the ground that the dispute was over a maritime contract and thus was governed by federal
law. On July 28, 2006, Plaintiffs filed this civil action in the Southern District of New York
(Swain, J.), alleging that each Plaintiff had a maritime claim against the Defendants. Plaintiffs
immediately obtained an ex parte order for the issuance of a writ of attachment pursuant to Rule
B of the Supplemental Rules for Certain Admiralty and Maritime Claims (“Supplemental
Rules”). FED . R. CIV . P., ADM . SUPP . RULE B. On October 18, 2006, the Defendants moved,
through an order to show cause, to vacate the writ and the attachment achieved under the writ, to
dismiss the complaint, and for attorneys’ fees and costs incurred in connection with the
application. The district court, pursuant to Rule E of the Supplemental Rules, heard arguments
on the matter and received pre-and post-hearing briefs and evidentiary submissions. FED . R. CIV .
P., ADM . SUPP . RULE E(4)(f). On January 16, 2007, the district court issued its decision, which
(1) vacated the attachment as to the individual Defendants other than Thomas G. Thompson, and
(2) denied vacatur as to Defendants EZRA, RLP, and CXLLC, but vacated the attachments as to
the remaining corporate Defendants, and (3) denied the Defendants board members’ request for
an award of compensation, costs, and fees for the wrongful attachment. Defendants timely filed
their notice of appeal, and Plaintiffs cross-appealed the district court’s decision to vacate certain
attachments.
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II. Facts
Plaintiffs assisted Defendant Thompson, at various times between 1986 and 1988, in the
location and recovery of the S.S. Central America, a United States Mail steamship that sank off
the coast of South Carolina in 1857. As part of the compensation offered to Plaintiffs for their
assistance on the project, Plaintiffs and Thompson entered into non-disclosure and non-compete
agreements that gave Plaintiffs rights to a fraction of a percentage of the total recovery of the
shipwreck -- i.e., the gross value of gold, silver, and valuable artifacts recovered from the
shipwreck. The individual Plaintiffs were members of Defendant Thompson’s “team” that first
imaged the S.S. Central America in 1986, confirmed that the wreck was in fact the S.S. Central
America in 1988, and recovered the gold, silver, and other artifacts from the ship. Additionally,
Plaintiffs allege that one of the Plaintiffs, International Deep Sea Survey, Inc. (“IDSS”), leased a
side sonar to one of the Defendants, Recovery Limited Partnership (“RLP”), in 1986. As part of
the agreement between IDSS and RLP, IDSS also agreed to be compensated, in part, based on the
percentage of the net recovery of the operation.
In May 1987, the United States District Court for the Eastern District of Virginia ordered
the arrest of the ship, took constructive possession of the ship and everything on it, and entered
an order requiring any person asserting an interest in the S.S. Central America to file a claim
before the 1992 cut-off date. At present, all of the litigation concerning the S.S. Central
America in the Eastern District of Virginia has been completed; Defendants have obtained their
portion of the treasure and have sold it. Throughout this process, Defendants wrote letters to
Plaintiffs assuring them that Plaintiffs would receive their share of the total recovery after
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Defendants completed the process of selling the treasure. However, as time passed, Plaintiffs
realized that the sale of the treasure had, in fact, been completed, and that nonetheless
Defendants still had not compensated Plaintiffs. The lawsuit in the Court of Common Pleas in
Ohio followed.
Despite the fact that gold and valuables were certainly recovered from the S.S. Central
America, it is undisputed that Defendants have never provided Plaintiffs with any percentage of
the total recovery. Plaintiffs allege that Defendants have therefore violated the contracts between
Plaintiffs and Defendants and that Plaintiffs are owed a portion of the total recovery.
Defendants, on the other hand, argue that, while gold and valuables were certainly found on the
ship, the recovery efforts did not actually provide a return to the initial investors, much less a
profit, and that Defendants therefore have not violated their contract with Plaintiffs.
Furthermore, Defendants argue that Plaintiffs erred in failing to bring their claims before the
Eastern District of Virginia and that the Plaintiffs are bound by the prior orders and decrees of
the district court in Virginia.
DISCUSSION
Defendants’ appeal raises numerous issues. First, Defendants argue that the contracts
between Defendants and Plaintiffs are not maritime contracts, and therefore (1) federal
jurisdiction does not apply, and (2) prejudgement attachment is not proper in New York, given
that the primary proceeding is pending in Ohio. Second, assuming the contracts are maritime
contracts, Defendants argue that the Plaintiffs failed to comply with the requirements of notice
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and personal service for Rule B attachments. Third, again assuming the contracts are maritime
contracts, Defendants argue that the ex parte maritime attachments of certain Defendants’ assets
were improper in view of the equitable circumstances of the case. Fourth, Defendants argue that
the district court erred in refusing to hold a hearing, pursuant to Rule 11 of the Federal Rules of
Civil Procedure, to determine whether Plaintiffs should be sanctioned for filing the ex parte
attachment order. Fifth, on cross-appeal, Plaintiffs argue that the district court erred in vacating
the attachments against all Defendants except Thompson, EZRA, RLP and CXLLC.
We review a district court’s decision to vacate a maritime attachment for abuse of
discretion; however, we review de novo any legal determinations on which this discretion rests.
Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 439 (2d Cir. 2006).
I. The Contracts are Maritime Contracts
Maritime attachment is a prejudgement mechanism used by parties in admiralty cases to
secure jurisdiction over an absent party and to obtain security for potential judgment where the
absent party’s assets are transitory. Id. at 436. Maritime attachment is a unique aspect of
admiralty jurisprudence that has deep historic and constitutional roots. Id. at 437-38.
Maritime attachments arose because it is frequently, but not always, more difficult to find
property of parties to a maritime dispute than of parties to a traditional civil action.
Maritime parties are peripatetic, and their assets are often transitory. Thus, the traditional
policy underlying maritime attachment has been to permit the attachments of assets
wherever they can be found and not to require the plaintiff to scour the globe to find a
proper forum for suit or property of the defendant sufficient to satisfy a judgment.
Id. at 443 (citations omitted). However, because prejudgement attachment is such a severe
remedy, it is important to first determine whether a contract is, in fact, a maritime contract
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warranting maritime attachment. We review de novo the district court’s conclusion that the
contracts at issue are maritime contracts. Id. at 439.
Because the case law regarding the distinction between maritime and non-maritime
contracts was somewhat confused, the Supreme Court clarified, in Norfolk Southern Railway
Company v. James N. Kirby Pty, Ltd., 543 U.S. 14 (2004), the appropriate approach for making
such a determination.
To ascertain whether a contract is a maritime one, we cannot look to whether a ship or
other vessel was involved in the dispute, as we would in a putative maritime tort case.
Nor can we simply look to the place of the contract's formation or performance. Instead,
the answer depends upon . . . the nature and character of the contract, and the true
criterion is whether it has reference to maritime service or maritime transactions.
Norfolk S. Ry. Co., 543 U.S. at 23-24 (internal quotation marks and citations omitted). In accord
with the Supreme Court’s ruling in this case, we recently amended our jurisprudence on maritime
contracts, recognizing that the proper inquiry is “whether the principal objective of a contract is
maritime commerce, rather than . . . whether the non-maritime components are properly
characterized as more than ‘incidental’ or ‘merely incidental’ to the contract.” Folksamerica
Reinsurance Co. v. Clean Water of N.Y., Inc., 413 F.3d 307, 315 (2d Cir. 2005) (internal
quotation marks and citation omitted).
Here, the contracts reference maritime service or maritime transactions. The contracts
concern: non-compete agreements, whereby the hired workers promised not to work on the
waters off the shore of the Carolinas in exchange for a portion of the proceeds from a potential
recovery effort of a shipwreck in the ocean; non-disclosure agreements, whereby the hired
workers promised not to discuss the work they were doing on a ship in the Atlantic Ocean; and
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the lease of equipment for use in the search for the S.S. Central America in the Atlantic Ocean.
While the Defendants may be correct in stating that these are just standard non-compete, non-
disclosure, and lease contract agreements, they are incorrect in arguing that the contracts are
therefore not maritime contracts. As the Supreme Court explained, a conceptual analysis is
appropriate. See Norfolk S. Ry. Co., 543 U.S. at 22-25. We must “focus[] our inquiry on
whether the principal objective of a contract is maritime commerce,” id. at 25, and we must look
to the “nature and character of the contract,” id. at 24. Here, the nature and character of these
non-compete and non-disclosure agreements, as well as the agreement to provide technical
equipment in exchange for a percentage of the recovery, are clearly “salty.” Id. at 22. As the
district court correctly found, the contracts at issue here “were by their terms entered into in
connection with maritime commercial venture and are therefore maritime in nature; thus, the
Court has jurisdiction of the claims brought thereunder pursuant to 28 U.S.C. § 1333.”
Williamson v. Recovery Ltd. P’ship, 2007 U.S. Dist. LEXIS 4438, at *6 (S.D.N.Y. Jan. 16,
2007).
Defendants also argue that the choice-of-law provision in the contracts, selecting Ohio
law, governs the contracts such that they cannot be analyzed under maritime law.1 Defendants
misapprehend the state of the law. As the Supreme Court explained, the first step of the analysis
is determining whether something is a maritime contract; then, once a contract has been deemed
a maritime contract, the next step is determining whether a specific state’s laws should be used to
1
It is worth noting, as Plaintiffs-Appellees point out, that this argument seems particularly
disingenuous, because it was Defendants, themselves, who initially removed this case from the
Ohio Court of Common Pleas to federal district court on the ground that it involved a maritime
contract and thus should be tried in federal court.
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supplement any area of contract law for which federal common law does not provide. See
Norfolk S. Ry. Co., 543 U.S. at 27 (emphasis added). The fact that a choice-of-laws provision
exists in a contract does not, by itself, remove the contract from the scope of maritime law. We
therefore affirm the district court’s determination that the contracts at issue here are maritime
contracts and that the dispute is properly in federal court.
II. The Plaintiffs met the notice and service requirements necessary for a Rule B
Attachment
Defendants next argue that even if the contracts are maritime contracts, and prejudgement
attachment in New York is theoretically appropriate, the Plaintiffs here failed to meet the
requirements for notice and service necessary under Rule B. We review de novo the district
court’s conclusion that the Plaintiffs complied with the requirements of Rule B. See Aqua Stoli,
460 F.3d at 439.
Because admiralty and maritime proceedings are such a unique aspect of United States
law, the Supreme Court has been responsible for promulgating uniform rules to govern such
proceedings. Id. at 438. Since these rules were first established in 1844, they have been revised
and amended numerous times. Id. The process by which a party may attach another party’s
assets is currently governed by Rule B. “If a defendant is not found within the district . . . a
verified complaint may contain a prayer for process to attach the defendant’s tangible or
intangible personal property -- up to the amount sued for -- in the hands of garnishees named in
the process.” FED . R. CIV . P., ADM . SUPP . RULE B(1)(a). Then, “[t]he court must review the
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complaint and affidavit and, if the conditions of this Rule B appear to exist, enter an order so
stating and authorizing process of attachment and garnishment. The clerk may issue
supplemental process enforcing the court’s order upon application without further court order.”
Rule B(1)(b). “The order of attachment may be requested and granted ex parte, though notice of
the attachment to the defendant via appropriate service is required.” Aqua Stoli, 460 F.3d at 438
(internal citations omitted).
Defendants argue that the order and writs of attachment should be vacated because
Plaintiffs failed to give them prompt notice of the attachment as required by Rule B. However,
as Plaintiffs explain in their brief, they made the Defendants aware of all the attachments as soon
as they became aware of them. The district court further found that “the record demonstrates that
notice of the actual attachment achieved pursuant to the writ has been given promptly upon
Plaintiffs becoming aware of the attachment of particular assets. This is sufficient compliance
with the notice requirement of Supplemental Rule B.” Williamson, 2007 U.S. Dist. LEXIS 4438,
at *7. Because we agree with the district court that Plaintiffs provided prompt notice to the
Defendants, and therefore met the requirements of Rule B, we affirm the decision of the district
court.
III. The Attachments here are not subject to vacatur for equitable reasons under Aqua
Stoli Shipping
Defendants argue that, assuming the contract is a maritime contract and that service and
notice were proper, the attachments should be vacated for equitable reasons. We review a district
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court’s decision whether to vacate a maritime attachment order for abuse of discretion. Aqua
Stoli, 460 F.3d at 439.
After the requirements of Rule B have been met, and attachment has occurred, defendants
have the opportunity under Rule E(4)(f) to contest the attachment of their property before the
district court. FED . R. CIV . P., ADM . SUPP . RULE E(4)(f); Aqua Stoli, 460 F.3d at 438. Despite
our general policy of allowing maritime attachments, we have nonetheless found that, even when
a plaintiff meets the procedural requirements for obtaining a maritime attachment, the district
court may nonetheless vacate such an attachment for equitable reasons. “Rule E(4)(f) is designed
to satisfy the constitutional requirement of due process by guaranteeing to [the property owner] a
prompt post-seizure hearing at which [the property owner] can attack the complaint, the arrest,
the security demanded, or any other alleged deficiency in the proceedings.” FED . R. CIV . P.,
ADM . SUPP . R. E(4)(f), Advisory Committee’s Note to 1985 Amendment. We have elaborated
on the appropriate inquiry under Rule E(4)(f), explaining that an attachment should issue only if
a plaintiff establishes four factors: (1) that the plaintiff has a valid prima facie admiralty claim
against the defendant; (2) that the defendant cannot be found within the district; (3) that the
defendant’s property may be found within the district; and (4) that there is no statutory or
maritime law bar to the attachment. Aqua Stoli, 460 F.3d at 445. We have stated that even if a
plaintiff satisfies the requirements of Rules B and E, vacatur is still appropriate in “other limited
circumstances.” Id. For example, an attachment may be vacated if the defendant demonstrates
“at the Rule E hearing that 1) the defendant is subject to suit in a convenient adjacent
jurisdiction; 2) the plaintiff could obtain in personam jurisdiction over the defendant in the
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district where the plaintiff is located; or 3) the plaintiff has already obtained sufficient security
for the potential judgment, by attachment or otherwise.” Id.
Plaintiffs met the requirements of Rules B and E as to Defendants Thompson, EZRA,
RLP, and CXLLC. Furthermore, contrary to Defendants’ assertions, Aqua Stoli does not
support an argument that the district court abused its discretion in refusing to vacate these
attachments on the additional grounds discussed in Aqua Stoli. These Defendants are not located
in New York and thus are not subject to suit in a convenient adjacent jurisdiction. Moreover,
Defendants have not demonstrated that they are subject to personal jurisdiction in the districts
where the Plaintiffs are located and Plaintiffs have not yet obtained sufficient security for
potential judgment. Furthermore, contrary to Defendants’ assertions, a district court errs “when
it relie[s] on a needs test and a hardship balancing” in evaluating whether a maritime attachment
was equitable. Id. at 447. We therefore find that the district did not abuse its discretion in
refusing to vacate the attachment for equitable reasons.
IV. Defendants argument that a Rule 11 sanctions hearing was required is meritless
Rule 11(c) of the Federal Rules of Civil Procedures allows the court to sanction a party, if
the court determines that the party has violated Rule 11(b) by making false, misleading,
improper, or frivolous representations to the court. FED . R. CIV . P. 11. Under this rule, a district
court may sanction a party sua sponte or in response to a motion for sanctions. FED . R. CIV . P.
11(c). “A motion for sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b).” FED . R. CIV . P. 11(c)(2).
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Because Defendants failed to make a separate motion for sanctions under Rule 11, and therefore
failed to comply with the procedural requirements of the rule, the district court denied the
Defendants’ request for attorneys’ fees, costs, and damages. Williamson, 2007 U.S. Dist. LEXIS
4438, at *13. On appeal, Defendants-Appellants acknowledge that they failed to meet the
procedural requirements for a Rule 11 hearing. Nonetheless, Defendants argue that their failure
to meet the procedural requirements should be ignored, because “this case presents unusual
circumstances” and that “a separate Rule 11 motion would have been impractical and merely
duplicative.” They, however, cite no law to support such an argument, and we find no legal basis
to support their argument. We therefore affirm the district court’s decision that a Rule 11 hearing
was not required, because the Defendants failed to meet the procedural requirements of Rule
11(c).
V. The District Court did not abuse its discretion in deciding to vacate the marine
attachment order as to certain Defendants
We review a district court’s decision to vacate an attachment order for abuse of
discretion. Aqua Stoli, 460 F.3d at 439. Here, the district court vacated the attachments as to
certain Defendants, finding that Plaintiffs failed to make out a prima facie case as required under
Rule B. The district court explained: “Plaintiffs’ allegations regarding the liability of the other
corporate entities are supported merely by generalized assertions in the attorney-verified
complaint in this action, unsworn court filings in related actions, and documentation showing
common business addresses and management. On this record, Plaintiffs’ showing is insufficient
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to make out the requisite prima facie admiralty claim based on the [non-disclosure agreements]
against Defendants other than Thompson and . . . RLP, EZRA, and CXLLC.” Williamson, 2007
U.S. Dist. LEXIS 4438, at *9-*10. Plaintiffs argue that the district court, in determining whether
to vacate the attachment, engaged in an impermissible fact-intensive inquiry by looking beyond
the requirements of Rule B. See Aqua Stoli, 460 F.3d at 447 (stating that a fact intensive
“inquiry is improper because Rule B specifies the sum total of what must be shown for a valid
maritime attachment”).
Superficial compliance with Rule B, while necessary, is not sufficient in determining
whether maritime attachment is appropriate Where a defendant contests an attachment of its
property under Rule E(4)(f), plaintiffs must demonstrate at the Rule E hearing why the
attachment should not be vacated. FED . R. CIV . P., ADM . SUPP . RULE E(4)(f). While Rule E(4)(f)
does not explain under what circumstances the district court may vacate the judgment, and we
have not yet had occasion to determine the full scope of a district court’s vacatur power, Aqua
Stoli, 460 F.3d at 445, the district court may certainly vacate the judgment if it determines, after
hearing from both parties, that the requirements of Rule B have not actually been met. Id.
Contrary to Plaintiffs’ assertions, that is exactly what the district court did here. The district
court did not engage in additional fact finding in the Rule E hearing, after determining that the
requirements of Rule B and E had been met. Rather, the district court found that Plaintiffs failed
to make out the prima facie case required under Rule B for certain Defendants. This is an
entirely appropriate basis on which to vacate an attachment. See id.
The district court held that Plaintiffs failed to make out the requisite prima facie admiralty
15
claim against Defendants other than Thompson, RLP, EZRA and CXLLC. As to the other
individual Defendants, the district court found that one statement made by Thompson in 1999 --
that he had the authority to speak for investors and partners, but not identifying the individuals to
whom he referred -- “is insufficient to constitute the requisite Aqua Stoli showing of a prima
facie admiralty claim against the defendants other than Thompson.” Williamson, 2007 U.S. Dist.
LEXIS 4438, at *9. The district court was also not persuaded by the Plaintiffs’ additional
evidence, a verified complaint by the Plaintiffs to this same effect, particularly because the
individual Defendants also proffered affidavits in support of their vacatur application specifically
denying any contractual relationship with the Plaintiffs and denying that Thompson was
authorized to bind them. Id. We agree with the district court that this evidence is not sufficient
to meet the requirements for a prima facie admiralty claim under Rule B. We therefore find that
the district court did not abuse its discretion in vacating the attachments as to all individual
Defendants other than Thompson.
Plaintiffs argued that other corporate entities, beyond RLP, EZRA, and CXLLC, were
also liable to Plaintiffs under a theory of “piercing the corporate veil.” See Kirno Hill Corp. v.
Holt, 618 F.2d 982, 985 (2d Cir. 1980) (stating that the concept of “piercing a corporate veil”
applies in the context of maritime law). “The prerequisites for piercing a corporate veil are as
clear in federal maritime law as in shoreside law: [The individual] must have used [the corporate
entity] to perpetrate a fraud or have so dominated and disregarded [the corporate entity]’s
corporate form that [the corporate entity] primarily transacted [the individual]’s personal
business rather than its own corporate business.” Id. To determine whether an individual so
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dominated and disregarded a corporate entity’s corporate form, a court may consider several
factors, including: “(1) the intermingling of corporate and personal funds, (2) undercapitalization
of the corporation, and (3) failure to maintain separate books and records or other formal legal
requirements for the corporation.” William Wrigley Jr. Co. v. Waters, 890 F.2d 594, 600 (2d
Cir. 1989) (citations omitted). There is no set rule as to how many of these factors must be
present to warrant piercing the corporate veil and courts have considered additional factors as
well. Id. at 600-01. Instead of a firm rule, the general principle guiding courts in determining
whether to pierce the corporate veil “has been that liability is imposed when doing so would
achieve an equitable result.” Id. at 601.
The district court vacated the attachments as to these remaining corporate Defendants
because it found that, again, the Plaintiffs failed to make out the requisite prima facie admiralty
claims as to these Defendants. Williamson, 2007 U.S. Dist. LEXIS 4438, at *10. Specifically,
the district court stated that “[p]laintiffs’ allegations regarding the liability of the other corporate
entities are supported merely by generalized assertions in the attorney-verified complaint in this
action, unsworn court filings in related actions, and documentation showing common business
addresses and management.” Id. at *9. We agree with the district court and find that it did not
abuse its discretion in vacating the attachments against these remaining corporate Defendants,
based upon the evidence before it. As the district court noted, this decision does not mean that
Plaintiffs’ allegations, if proven, are insufficient to prove mismanagement, breach of duty to
investors, and misuse of corporate entities as to these other corporate Defendants; rather, it
means that the evidence provided to the district court is “insufficient at this stage to demonstrate
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that Plaintiffs have the requisite prima facie admiralty claim against any defendants other than
Thompson, EZRA, RLP and CXLLC.” Id. at *12-*13.
Finally, the district court also dismissed an attachment insofar as it was based, in part, on
a penalty wage claim asserted by the Estate of deceased Plaintiff Craft, pursuant to 46 U.S.C. §
10504, against Defendant Kirk. Id. at *11. Again, the district court found that the only evidence
provided by Plaintiffs to support this theory -- a hearsay statement in a published book -- was not
sufficient to make out a prima facie admiralty claim. We again agree with the district court and
find that it did not abuse its discretion in vacating such an attachment on this evidence.
Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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