Merchant Royal

In the Preliminary Pretrial Conference on June 9th Spain and Odyssey updated the Court on the current status of discovery. For the most part they argued about the timing and sequencing of discovery. Evidently, Judge Pizzo saw a potential problem in the proceedings in that Spain is playing the Sovereign Immunity card.

http://docs.justia.com/cases/federal/district-courts/florida/flmdce/8:2007cv00614/197978/114/

"The Kingdom of Spain contends that the vessel which is the subject of this case is the Spanish Royal Navy Frigate Nuestra Señora de las Mercedes (“Mercedes”), and states its intention to file a dispositive motion asserting that the Mercedes is immune from any claims or arrest in the United States under, inter alia, the Foreign Sovereign Immunities Act."

"The parties have not yet briefed the issue, and the Court has not determined whether immunity under any of these authorities applies. Nonetheless, because Spain’s assertion of sovereign immunity is a challenge to this Court’s jurisdiction, the Court is duty-bound to determine this issue at the earliest possible stage in the case."

"Although it is not yet clear whether FSIA applies in this context, the Court finds that the approach courts take in FSIA cases – ordering discovery “circumspectly and only to verify allegations of specific facts crucial to an immunity determination” – is likewise appropriate here."

"Accordingly, the Court will defer setting discovery deadlines for sixty days to allow Spain to file a dispositive motion asserting sovereign immunity. Odyssey then will have sixty days to respond. If, in framing its response, Odyssey determines discovery is warranted relating to particular issues Spain raises in its motion, Odyssey may make a specific request for leave from the Court to conduct discovery on those issues."

"Although it is not yet clear whether FSIA applies in this context, the Court finds that the approach courts take in FSIA cases – ordering discovery “circumspectly and only to verify allegations of specific facts crucial to an immunity determination” – is likewise appropriate here."

("[S]overeign immunity is an immunity from the burdens of becoming involved in any part of the litigation process, from pretrial wrangling to trial itself. . . . The Court . . . must balance ‘between permitting discovery to substantiate exceptions to statutory foreign sovereign immunity and protecting a sovereign's or sovereign agency's legitimate claim to immunity from discovery.'").

"Accordingly, the Court will defer setting discovery deadlines for sixty days to allow Spain to file a dispositive motion asserting sovereign immunity. Odyssey then will have sixty days to respond. If, in framing its response, Odyssey determines discovery is warranted relating to particular issues Spain raises in its motion, Odyssey may make a specific request for leave from the Court to conduct discovery on those issues."

"Accordingly, it is hereby ORDERED:

1. Counsel for Spain is directed to file a motion asserting immunity on or before August 11, 2008.

2. Counsel for Odyssey is directed to file a response on or before October 10, 2008.

DONE AND ORDERED in Tampa, Florida on June 11, 2008."

It would appear that the Land's End Case [Merchant Royal ??] is moving faster than the Black Swan. The reason is that Spain has a claim on only a PORTION of the cargo that Odyssey HAS YET TO RECOVER. Judge Pizzo has issued the following Court Order:

http://docs.justia.com/cases/federal/district-courts/florida/flmdce/8:2006cv01685/186117/118/

CASE MANAGEMENT AND SCHEDULING ORDER:

This Court has managed this case concomitantly with another in rem action, case number 8:07-cv-614-T-23MAP, as both involve shipwrecks discovered by Odyssey with the Kingdom of Spain as a claimant. In answers to the Court’s interrogatories directed to the parties in both cases, Spain has invoked the Foreign Sovereign Immunities Act. For case number 8:07-cv-614-T-23MAP [Black Swan], Spain asserts the wreck is one of its naval vessels which warrants protection from suit under the Act. In the instant action, which the parties currently suspect concerns an English merchant ship, Spain’s claim of immunity relates only to a portion of cargo that this vessel may have been carrying but which Odyssey has yet to recover. In light of this uncertainty, as discussed at the Rule 16 conference held on June 9, the Court declines to defer discovery as it has in 8:07-cv-614-T-23MAP [Black Swan].

The Court has considered the positions of the parties as set forth in their Case Management Reports and as discussed at the Rule 16 hearing, and hereby enters the following scheduling and case management requirements whose provisions are very precise and shall be strictly adhered to. Accordingly, it is ORDERED:

1. Parties are directed to meet the agreed upon terms and time limits set forth in their Case Management Report, except as noted below:

(a) Deadlines relating to the dispute between Odyssey and Spain:
Rule 26 disclosures August 1, 2008
Odyssey's disclosure of expert testimony August 1, 2008
Odyssey's supplementation under R. 26(e) September 2, 2008
Odyssey's completion of discovery October 23, 2008
Spain's disclosure of expert testimony August 29, 2008
Spain's supplementation under R. 26(e) September 29, 2008
Spain's completion of discovery October 23, 2008
Third party/joinder/dispositive motions November 3, 2008
(b) Deadlines relating to the dispute between Odyssey and Keith Bray:
Rule 26 disclosures August 1, 2008
Mr. Bray's disclosure of expert testimony August 1, 2008
Mr. Bray's supplementation under R. 26(e) September 2, 2008
Mr. Bray's completion of discovery October 23, 2008
Odyssey's disclosure of expert testimony August 29, 2008
Odyssey's supplementation under R. 26(e) September 29, 2008
Odyssey's completion of discovery October 23, 2008
Third party/joinder/dispositive motions November 3, 2008

2. Parties are further directed to meet the pretrial disclosure requirements and deadlines in Fed.R.Civ.P. 26(a)(3) and to adhere timely to all requirements in Local Rule 3.06 concerning Final Pretrial Procedures, as supplemented herein at ¶ 6.

3. Parties shall take heed that motions to amend any pleading or a motion for continuance of any pretrial conference, hearing, or trial filed after issuance of this Case Management and Scheduling Order are disfavored. See Local Rules 3.05(c)(2)(E) and 3.05(c)(3)(D).

4. A Pretrial Conference will be held before Magistrate Judge Mark A. Pizzo in Courtroom 11B, United States Courthouse, 801 North Florida Avenue, Tampa, on December 1, 2008, at 10 a.m.

THE COURT WILL NOT ADDRESS DISCOVERY DISPUTES OF ANY KIND AT TRIAL. ANY DISCOVERY DISPUTE FOR WHICH THE PARTIES SEEK JUDICIAL RESOLUTION MUST BE ADDRESSED AT OR BEFORE THE PRETRIAL CONFERENCE. THE PARTIES MAY AGREE ON ANY MATTER REGARDING DISCOVERY, BUT EACH PARTY ASSUMES THE RISK OF NON-COMPLIANCE BY THE OTHER UNLESS THE ISSUE HAS BEEN ADDRESSED BY THE COURT AT THE PRETRIAL CONFERENCE.

5. This case is set for a non-jury trial in Courtroom 15A, United States Courthouse, 801 N. Florida Avenue, Tampa, during the January 5, 2009, trial term before the Honorable Steven D. Merryday. Cases set before Judge Merryday are subject to being tried by a visiting judge. A separate trial calendar will be forthcoming in December 2008.

6. Not later than five (5) days prior to the date on which the trial term is set to commence, see ¶ 5, the parties shall file with the Clerk of Court the following (and, as to each of the following, provide directly to Chambers, by mail or hand-delivery a "Judge's Courtesy Copy," so marked):

(a) Each side shall file a Trial Brief, with citations of authorities and arguments specifically addressing all disputed issues of law likely to arise at trial; and either (b) or (c) below, as appropriate.

(b) If case is a jury trial, the following:

(1) A concise (one paragraph preferably) joint or stipulated statement of the nature of the action to be used in providing a basic explanation of the case to the jury venire;

(2) A complete set of all written Proposed Jury Instructions (which shall bear a cover sheet with the complete style of the case and appropriate heading designating the submitting party; there shall be no more than one instruction per page and contain, at the end of each such instruction, citation of authorities, if any); they shall be sequentially numbered and party-identified (e.g., Plaintiff's Requested Instruction No. 1);

(3) Proposed Voir Dire (the Court will conduct the voir dire and, in addition to the usual more general questions, will without initiation by counsel ask more particular questions suggested by the nature of the case; counsel should, therefore, be selective in the jury questions submitted to the Court for consideration); and

(4) Proposed Verdict Form.

(c) If case is a non-jury trial, Proposed Findings of Fact and Conclusions of Law (each shall be separately stated in numbered paragraphs; Findings of Fact shall contain a detailed listing of the relevant material facts the party intends to prove, in a simple, narrative form; Conclusions of Law shall contain a full exposition of the legal theories relied upon by counsel).

7. The Pretrial Conference [Dec 1, 2008] shall be attended by counsel who will act as lead trial counsel in the case and who is vested with full authority to make and solicit disclosures and agreements touching all matters pertaining to the trial.

DONE and ORDERED at Tampa, Florida on June 11, 2008.