Filed: Oct. 02, 1998
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 97-4309 _ FILED U.S. COURT OF APPEALS D.C. Docket No. 96-10119-CV-JLK ELEVENTH CIRCUIT 10/02/98 THOMAS K. KAHN SEA SERVICES OF THE KEYS, INC., a CLERK Florida Corporation d.b.a. Sea Two Islamorada, Plaintiff-Appellee, versus STATE OF FLORIDA, The Department of Environmental Protection, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (October 2, 1998) Before HATC
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 97-4309 _ FILED U.S. COURT OF APPEALS D.C. Docket No. 96-10119-CV-JLK ELEVENTH CIRCUIT 10/02/98 THOMAS K. KAHN SEA SERVICES OF THE KEYS, INC., a CLERK Florida Corporation d.b.a. Sea Two Islamorada, Plaintiff-Appellee, versus STATE OF FLORIDA, The Department of Environmental Protection, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (October 2, 1998) Before HATCH..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 97-4309
________________________________
FILED
U.S. COURT OF APPEALS
D.C. Docket No. 96-10119-CV-JLK ELEVENTH CIRCUIT
10/02/98
THOMAS K. KAHN
SEA SERVICES OF THE KEYS, INC., a CLERK
Florida Corporation d.b.a. Sea Two Islamorada,
Plaintiff-Appellee,
versus
STATE OF FLORIDA, The Department of
Environmental Protection,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________________________________
(October 2, 1998)
Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit
Judge.
HATCHETT, Chief Judge:
The principal issue in this case is whether Florida may invoke Eleventh Amendment
immunity in an in rem admiralty action when the res is not within the state’s possession.
Answering in the negative as did the district court, we affirm.
FACTS
On October 7, 1996, after receiving radio transmissions from two commercial fishermen
reporting an abandoned boat off Islamorada, Florida, appellee Sea Services of the Keys, Inc.
(Sea Tow) responded and found the boat.1 Because bad weather had caused rough waters in that
area, Sea Tow determined that the boat was in peril of sinking, and decided to tow it to a nearby
marina. Sea Tow then contacted the Florida Marine Patrol about the boat. After the Florida
Marine Patrol discovered that the boat did not have a required hull identification number (see
Fla. Stat. § 328.07 (1997)), the Marine Patrol declared the boat contraband, subjecting it to the
Florida Contraband Forfeiture Act (Act) and seized it.2 See Fla. Stat. §§ 328.07(3)(b)
(permitting seizure of a boat that does not have a hull identification number as contraband
property and subjecting it to forfeiture under the Act); 932.701 - 932.707 (Act).
PROCEDURAL HISTORY
Sea Tow then filed a verified in rem admiralty complaint in the District Court for the
Southern District of Florida, seeking an in rem warrant for arrest of the defendant boat and title
to and/or a marine salvage award against it. The district court issued the warrant for an in rem
1
The fisherman contacted the Florida Marine Patrol and the United States Coast Guard
about this boat. Sea Tow determined that neither agency planned to take immediate action
regarding the boat.
2
Sea Tow rescued a 29 foot “Midnight Express” motor boat and two 200 horsepower
Mercury Offshore outboard motors. The two motors had identification numbers.
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arrest of the boat, but appellant Florida refused to allow the United States Marshals to serve the
arrest warrant. Florida also sent a letter to Sea Tow indicating its plans to initiate forfeiture
proceedings against the defendant boat. The district court granted Sea Tow’s motion for
expedited service, and Florida became substitute custodian. Florida thereafter moved to dismiss
this action for lack of jurisdiction, alleging that the Eleventh Amendment barred suit against the
state. The district court denied Florida’s motion, holding that Sea Tow’s action was not against
Florida, but an action against the defendant boat.
STANDARD OF REVIEW
We review de novo the district court’s denial of Florida’s motion to dismiss based on
Eleventh Amendment immunity. See Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1021
(11th Cir. 1994), aff’d,
517 U.S. 44 (1996).
DISCUSSION
Florida contends that the district court erred in dismissing its action because: (1) the
contraband nature of the defendant boat precludes exercising jurisdiction over it in the district
court; and (2) it took legal possession of the defendant boat before Sea Tow filed this action, and
therefore the Eleventh Amendment precluded an action against Florida because it had a
colorable claim against the boat. We disagree and affirm because: (1) Florida did not have
lawful possession of the boat pursuant to the Act, and therefore could not invoke Eleventh
Amendment immunity; and (2) no liability imposed against the defendant boat would result in
payments from the public funds in Florida’s treasury.
According to the Supreme Court’s decision in California v. Deep Sea Research, Inc., “the
Eleventh Amendment does not bar the jurisdiction of a federal court over an in rem admiralty
3
action where the res is not within the State’s possession.” 118 S. Ct. 1464, 1467 (1998).
Florida’s seizure of the defendant boat pursuant to Florida Statute section 328.07 subjected it to
the Act’s rules on forfeiture. The Act provides that seizure alone does not vest Florida with legal
possession of the boat. Instead, the Act requires Florida to bring a forfeiture action in the state
court, and:
Upon clear and convincing evidence that the contraband was being used in
violation of the Florida Contraband Forfeiture Act, the court shall order the seized
property forfeited to the seizing law enforcement agency. The final order of
forfeiture by the court shall perfect in the law enforcement agency right, title, and
interest in and to such property, subject only to the rights and interests of bona
fide lienholders, and shall relate back to the date of seizure.
Fla. Stat. § 932.704(8); see also United States v. 92 Buena Vista Avenue, 507 U.S. 111, 125-26
(1993) (construing the forfeiture provision of the amendments to the Comprehensive Drug
Abuse and Prevention Act to find that retroactive vesting is not self-executing; instead the
government must win a judgment of forfeiture before title vests). At the time the United States
Marshals executed the in rem arrest warrant on the defendant boat, Florida had not received a
final order of forfeiture in the state court pursuant to the Act. Florida has therefore not perfected
lawful possession of the defendant boat, and the Eleventh Amendment did not bar Sea Tow’s
action in the district court pursuant to Deep Sea Research.
Additionally, Sea Tow’s seeking of title to and/or a marine salvage award against the
defendant boat imposes no liability against public funds in Florida’s treasury. See Edelman v.
Jordan, 415 U.S. 651, 663-64 (1973) (holding that the Eleventh Amendment bars a suit that
seeks a liability that the state must pay from the public funds in its treasury); Jackson v. Georgia
Dept. of Transp.,
16 F.3d 1573, 1577 (11th Cir.) (“The general test in determining whether the
state is the real party in interest . . . is whether the relief sought against the nominal defendant
4
would in fact operate against the state, especially by imposing liability damages that must be
paid out of the public fisc.”), cert. denied, 513 U.S. 929 (1994). Thus, we conclude that the
district court did not err in denying Florida’s motion to dismiss based on Eleventh Amendment
immunity.
AFFIRMED.
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BLACK, Circuit Judge, specially concurring:
I concur in the result.
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