Naval Logistic, Inc. v. M/V FAMILY TIME

United States District Court

for the

Southern District of Florida

Naval Logistic, Inc., doing business )

as Middle Point Marina, Plaintiff ) Civil Action No. 23-22379-Civ-

) Scola

v. )

)

M/V Family Time, in rem, and ) In Admiralty

Andrew Vilenchik, in personam, )

Defendants. )

Order on Cross Motions for Summary Judgment

This matter is before the Court on the parties’ cross motions for

summary judgment. The Plaintiff filed a motion for summary judgment (ECF

No. 71) and statement of material facts (ECF No. 72), to which the Defendants

responded (ECF Nos. 80, 82), and the Plaintiff replied (ECF Nos. 85, 86). The

Defendants also filed a motion for summary judgment (ECF No. 73) and

statement of material facts (ECF No. 74), to which the Plaintiff responded (ECF

Nos. 78, 79), and the Defendants replied (ECF No. 87). The Court has reviewed

the briefing, the record, the relevant legal authorities, and is otherwise fully

advised. For the reasons discussed below, the Court grants the Plaintiff’s

motion (ECF No. 71) and denies the Defendants’ motion (ECF No. 73).

1. Background

The Plaintiff, Naval Logistic, Inc., doing business as Middle Point Marina

(“MPM”), filed this action on June 27, 2023 to enforce a maritime lien on the

vessel M/V Family Time, a 34’ Rinker owned by Commercial Holdings Group

Inc. (“CHG”), whose principal and authorized representative is Defendant

Andrew Vilenchik. (See Compl., ECF No. 1.) The Plaintiff has possessed the

vessel since May 22, 2023, when Vilenchik brought it to the marina for repairs.

Upon the vessel’s arrival, Vilenchik executed a Shipyard Agreement (ECF No. 1-

1) with MPM, in which he indicated that he was “Owner” of the vessel. (Defs.’

Stmt. of Mat. Facts ¶¶ 6-9.) According to the Plaintiff, upon inspection, the

vessel’s condition was significantly worse than the Defendant had disclosed

and therefore required additional repairs. (Id. ¶¶ 17-28.) However, once

informed of MPM’s proposal to expand the scope and expense of the repairs,

Vilenchik declined the repairs. The vessel has remained in MPM’s custody ever

since and was sold in a U.S. Marshal sale on March 26, 2024. (ECF No. 61.)

The Plaintiff makes three claims in the complaint: (1) breach of maritime

contract; (2) foreclosure of a maritime lien for necessaries; and (3) claim for

pure salvage award. Both the Plaintiff and the Defendants have moved for

summary judgment. The Court considers their motions in turn.

2. Legal Standard

Summary judgment is proper if following discovery, the pleadings,

depositions, answers to interrogatories, affidavits and admissions on file show

that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the

applicable substantive law, it might affect the outcome of the case.” Hickson

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “An issue of

fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact

to find for the nonmoving party.” Id. at 1260. All the evidence and factual

inferences reasonably drawn from the evidence must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th

Cir. 2004).

Once a party properly makes a summary judgment motion by

demonstrating the absence of a genuine issue of material fact, whether or not

accompanied by affidavits, the nonmoving party must go beyond the pleadings

through the use of affidavits, depositions, answers to interrogatories and

admissions on file, and designate specific facts showing that there is a genuine

issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant’s evidence must be

significantly probative to support the claims. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make

findings of fact. Anderson, 477 U.S. at 249; Morrison v. Amway Corp., 323 F.3d

920, 924 (11th Cir. 2003). Rather, the Court’s role is limited to deciding

whether there is sufficient evidence upon which a reasonable juror could find

for the nonmoving party. Id.

3. Analysis

A. The Plaintiff’s Motion

The Plaintiff, MPM, moves for summary judgment on counts 1 and 2 of

the complaint. (See generally Pl.’s Mot., ECF No. 71.) In count 1, MPM claims

that Vilenchik breached the parties’ maritime contract by failing to timely

remove the Vessel from the marina, resulting in damages for the cost of

storage. (See Pl.’s Mot. at 7.)

“[T]he elements of a breach of a maritime contract, like any other

contract, are: (1) the existence of a valid contract; (2) a material breach; and (3)

damages.” Seaboard Marine Ltd., Inc. v. Trinpak Packaging Co., 411 F. Supp. 3d

1366, 1373 (S.D. Fla. 2019) (Smith, J.). MPM argues that there is no dispute

that Defendant Vilenchik entered into the Shipyard Agreement with MPM,

which provides the following:

Upon notification that all work that has been completed by Middle Point

Marina, arrangement must be made with Middle Point Marina for the

removal of the Vessel from its facility within Forty-Eight (48) hours…[a]ny

outstanding balances and/or unpaid invoices must be paid in full before

the Vessel leaves the Marina…ANY VESSEL NOT REMOVED FROM

MIDDLE POINT MARINA’S FACILITY WITHIN FORTY-EIGHT (48) HOURS

FROM SUCH NOTIFICATION SHALL BE CHAGED FOR STORAGE AT

THE RATE OF $3.50 PER FOOT PER DAY’S [sic] WHICH SHALL ALSO

BE PAID BEFORE THE VESSEL LEAVES THE MARINA. (Shipyard

Agreement, ECF No. 1-1 § 13.)

After Vilenchik refused to approve MPM’s revised estimates of the cost

based on the proposed additional repairs, MPM notified Vilenchik that he

would need to remove the vessel by June 16, 2023. (Pl.’s Stmt. Mat. Facts ¶

18.) Vilenchik never removed the vessel, incurring storage charges agreed to in

the Shipyard Agreement. According to MPM, summary judgment is appropriate

on this claim because the Agreement required Vilenchik to remove the vessel

from MPM’s possession and he failed to do so, incurring the storage costs set

forth in the Agreement. (Pl.’s Mot. at 7.)

Second, MPM argues that the Court should grant summary judgment on

the count for foreclosure of maritime lien for necessaries in the form of dry

dock storage (count 2). (See id. at 8.) MPM requests damages and attorney’s

fees and costs for counts 1 and 2, plus custodia legis expenses incurred by

MPM as substitute custodian. (Id. at 10.)

For a party to establish a claim for a maritime lien in a vessel: (1) the

good or service must qualify as a “necessary;” (2) the good or service must have

been provided to the vessel; (3) on the order of the owner or agent; and (4) the

necessaries must be supplied at a reasonable price. See Barcliff, LLC v. M/V

Deep Blue, IMO No. 9215359, 876 F.3d 1063, 1068 & n.5 (11th Cir. 2017). The

“reasonableness” of the price is measured by whether it is “customary” and “in

accord with prevailing charges for the work done and the materials furnished.”

Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1249 (11th Cir.

2005) (cleaned up). “Accordingly, to satisfy the evidentiary burden on this

element, a plaintiff must present some modicum of evidence which compares

the charges claimed with what other competitors would have charged for

similar work or materials.” Id.

MPM argues that there is no dispute as to a material fact underlying this

claim either because MPM provided the “necessary” of dry dock storage to the

M/V Family Time from May 22, 2023 until its arrest on September 7, 2023.

(Pl.’s Mot. at 8.) Furthermore, MPM claims that it provided the storage at

Vilenchik’s direction and at a reasonable price because MPM charged only

$2.50 per foot per day, which is lower than the amount agreed to by the parties

in the Shipyard Agreement ($3.50 per foot per day). (Id. at 8-9; Pl.’s Stmt. Mat.

Facts ¶ 18.)

Finally, MPM also argues that the Court should award damages, custodia

legis expenses, attorney’s fees and costs, and additional costs incurred from

the arrest and storage of the vessel. (See Pl.’s Mot. at 10-13.)

The Defendants make two arguments against the Plaintiff’s motion for

summary judgment. First, they argue that MPM’s motion must be denied

because “Defendants have filed the Affidavit of Defendant VILENCHIK, in which

he addresses, and disputes, the material allegations of Plaintiff’s Complaint,

and in so doing, creates disputed issues of material fact that require the Court

to deny the Motion” and that a dispute as to material facts exists because

based on Vilenchik’s affidavit, “Plaintiff’s employees were negligent by causing

severe damage to the Defendant VESSEL, or worse, that they intentionally

caused that damage . . . .” (Def.’s Resp., ECF No. 80 at 5.)

This first argument goes entirely unsupported by either legal authority or

relevant citations to the record, let alone “significantly probative” evidence, and

therefore does not rebut the Plaintiff’s argument. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Vilenchik’s affidavit, the only evidence

cited, does not touch on the facts material to the Plaintiff’s claims that it

provided necessaries in the form of storage to the vessel and that Vilenchik

violated the Shipyard Agreement by failing to remove the vessel from MPM. Nor

do the Defendants attempt to argue that there is a genuine dispute over these

facts in their response to MPM’s motion, thereby conceding the argument. See

Jones v. Bank of Am., N.A., 564 Fed. App’x 432, 434 (11th Cir. 2014) (“When a

party fails to respond to an argument or otherwise address a claim, the Court

deems such an argument or claim abandoned.”). The response does not

address the factual allegations regarding Vilenchik’s failure to remove the

vessel from the marina in any form.

Second, the Defendants argue that the Court must deny MPM’s motion

because of its failure to address the Defendants’ affirmative defenses. (Defs.’

Resp. at 6.) The Defendants claim that this failure is fatal to the motion

because the Plaintiff bears the burden to show that affirmative defenses do not

apply at the summary judgment stage. (Id.) According to the Defendants, “none

of the seven affirmative defenses pled by Defendants in their Answer and

Affirmative Defenses . . . were ever challenged by Plaintiff as to their

legal sufficiency.” (Id.)

In support of the proposition that the moving party bears the burden of

establishing the factual or legal insufficiency of the affirmative defenses, the

Defendants cite two cases from the Middle District of Florida, but also cite a

case from this District that reflects the correct rule: “On a plaintiff’s motion for

summary judgment, the defendant bears the initial burden of showing that the

affirmative defense is applicable.” Off. of Thrift Supervision v. Paul, 985 F. Supp.

1465, 1470 (S.D. Fla. 1997) (emphasis added) (citing Blue Cross & Blue Shield

v. Weitz, 913 F.2d 1544, 1552 (11th Cir. 1990)). “Only upon such a showing

does the burden shift to [a] plaintiff regarding that affirmative defense.” Id.

(citing Weitz, 913 F.2d at 1552 n.13). “The reason is that the defendant bears

the burden of proof on his affirmative defenses at trial.” Id. (citing

Thorsteinsson v. M/V Drangur, 891 F.2d 1547, 1550-51 (11th Cir. 1990)).

The Defendants here inaccurately assert that the Plaintiff bears the

burden of rebutting the affirmative defenses and do not attempt to show that

any or all of the affirmative defenses apply to either claim on which the Plaintiff

seeks summary judgment. The Defendants have therefore failed to carry their

initial burden, and the Plaintiff need not provide evidence establishing a

genuine issue of material fact as to the affirmative defenses. Additionally, the

Court notes that the Defendants’ own motion does not raise the affirmative

defenses either, where they would also bear the initial burden of proof to show

that no genuine issue of material fact exists with respect to the affirmative

defenses. Singleton v. Dep’t of Corr., 277 F. App’x 921, 923 (11th Cir. 2008); see

also Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir. 1994) (“Thus, by

moving for summary judgment . . ., defendants thrust before the court for

scrutiny not only the merits of plaintiff’s evidence, but the strength of their own

defense and must establish that there is an absence of any issue for jury

resolution.”). The Court therefore cannot conclude that any of the Defendants’

affirmative defenses preclude summary judgment.

Finally, the Defendants do not address the Plaintiff’s request for

damages, custodia legis expenses, attorney’s fees and costs, and additional

costs incurred from the arrest and storage of the vessel, which are supported

by the record and the uncontested contents of the Shipyard Agreement. The

Court will therefore grant the Plaintiff’s motion, but defers ruling as to the

exact amounts of damages and other fees and costs owed until the conclusion

of the case in order to account for the remaining attorney’s fees and any

damages awarded as a result of trial on count 3.

B. The Defendants’ Motion

The Defendants move for summary judgment on two grounds. (See

generally Defs.’ Mot., ECF No. 73.) First, they argue that Defendant Vilenchik

cannot be personally liable for the Plaintiffs’ alleged damages, and second, that

summary judgment should be granted as a sanction for spoliation of evidence.

As to the first ground, the Defendants argue that “[w]ell-established

Florida law holds that the agent or authorized representative of a corporation

does not thereby become personally liable for the debts or liabilities of that

corporation.” (Defs.’ Mot. at 4.) They claim that there is no dispute over the fact

that MPM knew or should have known that Commercial Holdings Group, not

Vilenchik, owned the Vessel based on the “Certificate of Documentation”

provided at the time the parties entered into the Shipyard Agreement. (Id. at 5.)

Thus, the Defendants claim that MPM cannot recover against Vilenchik

personally, and therefore summary judgment is proper. The Defendants cite

one case in support of this argument (without providing a pinpoint citation)

and “cases cited therein.” (Defs.’ Mot. at 4 (citing Pelican Automotive, Inc. v.

Rutigliano, 729 So. 2d 488 (Fla. 2d Dist. Ct. App. 1999).)

This argument is clearly insufficient for a grant of summary judgment.

“Under Florida law, an agent who makes a contract on behalf of an undisclosed

principal is a party to the contract.” Kinnon v. Arcoub, Gopman & Assocs., Inc.,

490 F.3d 886, 890 (11th Cir. 2007). Even if the Defendants had carried their

initial burden, it is undisputed that Vilenchik signed the Shipyard Agreement,

placing his name on the line marked “Owner.” (ECF No. 1-1 at 1.) Furthermore,

MPM disputes whether Vilenchik ever mentioned the true owner, Commercial

Holdings Group, or gave any indication that another principal existed. (Pl.’s

Resp., ECF No. 79 at 3-6.) Therefore, the Defendants have not established that

there is no genuine dispute as to the facts underlying Vilenchik’s personal

liability for MPM’s claims.

Second, the Defendants move for summary judgment on the ground that

MPM spoliated evidence by failing to produce the full video recordings of MPM’s

premises that the Defendants requested in discovery. (Defs.’ Mot. at 5.)

Spoliation is the “intentional destruction of evidence or the significant and

meaningful alteration of a document or instrument.” Southeastern Mechanical

Services, Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009) (citing

Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308

(11th Cir. 2003)). Spoliation also includes the intentional concealment of

evidence. See Walter v. Carnival Corp., No. 09–20962–CIV, 2010 WL 2927962 at

(S.D. Fla. July 23, 2010) (Hoeveler, J.) (citing St. Cyr v. Flying J Inc., No.

3:06-cv-13-33TEM, 2007 WL 1716365 at *3 (M.D. Fla. June 12, 2007)). “To

establish spoliation, the party seeking sanctions must prove several things;

first, that the missing evidence existed at one time; second, that the alleged

spoliator had a duty to preserve the evidence; and third, that the evidence was

crucial to the movant being able to prove its prima facie case or defense.” Id.

(citing Floeter v. City of Orlando, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9,

2007).

First, it is unclear why the Court should address this alleged issue on

summary judgment rather than on a motion for sanctions. Additionally, the

Defendants acknowledge that they bear the burden of proof of establishing that

spoliation of evidence has taken place, but then fail to cite a single piece of

evidence supporting their claim that MPM has engaged in spoliation. (See Defs.’

Mot. at 5-7.) The Defendants’ “evidence” appears to be limited to Defendant

Vilenchik’s speculation that MPM’s production of “several” videos was

intentionally incomplete. (See id. at 6.) And finally, the Defendants

acknowledge the above-mentioned requirements for a party to establish

spoliation but fail to even address each requirement. The Court therefore need

not consider the Defendants’ argument on spoliation. The Defendants’ motion

for summary judgment lacks merit.

4. Conclusion

For the reasons stated above, the Court grants the Plaintiff's motion

(ECF No. 71) and denies the Defendants’ motion (ECF No. 73). This case shall

remain open, as the grant of summary judgment did not resolve all of the

Plaintiffs claims.

Done and ordered, in Miami, Florida, on August 6, 2024.

Robert N. [S Jr.

United States District Judge