IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FUN CHARTERS, INC., )

 )

Plaintiff, )

)

v. ) CIVIL ACTION 14-0263-WS-M

 )

The Vessel SHADY LADY, )

Official No. 681969, her engines, etc., )

in rem, )

 )

Defendant. )

ORDER

This matter comes before the Court on plaintiff’s Motion for Order Authorizing 

Supplemental Process upon Appurtenances Removed from Vessel (doc. 26).

Back on June 12, 2014, the U.S. Marshals Service arrested the Vessel SHADY LADY, 

U.S. Official No. 681969, in Orange Beach, Alabama, pursuant to plaintiff’s claims that the 

Vessel’s owner, Adrenaline Charters, LLC, had defaulted on its indebtedness to plaintiff on a 

note secured by a First Preferred Ship Mortgage. (See doc. 11.) Despite actual notice of these 

proceedings, Adrenaline Charters has neither appeared nor contested plaintiff’s claims at any 

time, whether before or after the Vessel’s arrest. On September 16, 2012, the undersigned 

entered a Decree Ordering Sale of Vessel (doc. 24), directing the Marshal to conduct a sale of the 

Vessel via public auction on the courthouse steps on October 22, 2014. Included within the 

scope of that Decree, and the contemplated sale, were items of tackle and appurtenances that 

may have been removed from the Vessel antecedent to its arrest, including one Pompanette 

fighting chair, four Penn International fishing rods and reels, and spare gaskets, filters and other 

parts for the Vessel’s engines and generator.

Now, two weeks before the scheduled Marshal’s sale, plaintiff, Fun Charters, Inc., 

requests that supplemental process be issued pursuant to Supplemental Rule C(3)(d) to arrest any 

such removed or missing appurtenances. The Motion reflects that Edward Sims, sole member of 

Adrenaline Charters, has informed Fun Charters that the fighting chair and fishing tackle have 

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been sold. Nonetheless, plaintiff expresses its belief that certain missing appurtenances may be 

located in a particular storage unit (# E180) at the U STOR-IT storage facility on Canal Road in 

Orange Beach. Based on these circumstances, Fun Charter moves for issuance of a supplemental 

writ of arrest or other process, directing the U.S. Marshal and plaintiff to access the storage unit, 

with the assistance of a locksmith, “so that Storage Unit may be inspected for the presence of any 

Missing Appurtenances.” (Doc. 26, at 3.) Fun Charters contemplates that the Marshal will

immediately take possession of any such missing appurtenances that may be located therein, 

deliver those items to the substitute custodian, and then lock and re-secure the storage unit.

Plaintiff’s proposal is troubling in myriad respects. For starters, Fun Charters’ factual 

basis for believing missing appurtenances are now located in the storage unit is suspect, at best. 

As to the fighting chair and fishing tackle, plaintiff’s only evidence is that Sims informed 

plaintiff that these items have been sold. If that is true, of course, one would not expect to find 

them in the storage unit today. Plaintiff has not controverted defendant’s representation that 

these items have been sold,1 so there is apparently no factual underpinning for any belief that 

those items remain in the storage unit at this time. 

Furthermore, for whatever reason, plaintiff appears not to have made inquiry to 

Adrenaline Charters as to the present contents of the storage unit. At best, plaintiff’s evidence 

that missing appurtenances might be found at that location consists of an affidavit from Adam 

Newton, a licensed captain who operated the Vessel on charter fishing trips at unspecified dates 

and times. (Newton Aff. (doc. 26, Exh. B), ¶ 1.) Newton avers that, on those unspecified 

occasions, he transported unspecified “tackle, parts and appurtenances of the Vessel to and from 

the Vessel and storage unit E180.” (Id., ¶ 2.) The Newton Affidavit lacks any temporal context; 

therefore, it is impossible to discern whether he last viewed the interior of the storage unit six 

months or six years ago. The Vessel has been arrested continuously since June 12, 2014, so 

Newton’s information must be at least four months old (inasmuch as he could not have captained 

the Vessel during its arrest). Nor does Newton describe what (if any) appurtenances were left 

inside the storage unit when he last visited it. The staleness and vagueness of Newton’s account 

 1 To the contrary, Fun Charters’ understanding is that Sims “is apparently in dire 

financial condition.” (Doc. 26, at 3.) Selling a fighting chair and fishing tackle is precisely the 

sort of conduct one might expect from one who is in dire financial condition.

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provides scant support for the proposition that the storage unit is today holding a treasure trove 

of appurtenances for the Vessel. Yet that is the sole asserted factual basis for Fun Charters’ 

contention that such items may be found at that location.

Exacerbating the Court’s concern is the fact that the subject storage unit is not even 

rented in the name of the Vessel’s owner. Indeed, the operator of the storage facility has 

purportedly advised plaintiff that the renter of that unit is not Adrenaline Charters, but is Edward 

Sims and Sims’ mother. (Fitzsimons Aff. (doc. 26, Exh. A), ¶ 6.) To be sure, Edward Sims is 

the sole member of Adrenaline Charters, but plaintiff identifies no connection between Sims’ 

mother and the LLC that owns the Vessel. Thus, plaintiff is calling for a U.S. Marshal-led 

intrusion into a locked storage shed to pick over the personal property of two non-parties, one of 

whom is not even directly linked to the LLC that is involved in this dispute.2

To make matters worse, Fun Charters is not hunting for any discrete, specifically 

identifiable piece of equipment or accessories to the Vessel. Again, all evidence before the 

Court is that the fighting chair and rods and reels have been sold, such that there is no reason to 

believe those items are presently stored in the storage unit. So what is plaintiff looking for? It is 

hard to tell. Plaintiff generally references “spare gaskets, filters and other parts of the vessel’s 

Cummins model QSM main engines and Cummins model 4B generator and other equipment.” 

(Doc. 26, at 1.) Apparently, plaintiff’s proposal is that this Court allow a Fun Charters 

representative to rummage through the contents of the storage unit under the watchful eye of a 

Deputy Marshal, with Fun Charters left to make the sole determination in its discretion of what 

items within the storage unit might fall within the scope of the term “missing appurtenances”

subject to arrest. The potential for error or abuse looms unacceptably large with such a 

methodology, through which plaintiff could effectively direct the Marshal to seize willy-nilly the 

 2 Additionally, the court file reflects that Edward Sims filed for Chapter 13 

bankruptcy protection on June 10, 2014. (See doc. 9.) Accordingly, if the contemplated raid of 

Sims’ storage unit were to result in seizure of any personal property of Sims (as opposed to 

property of the LLC), plaintiff’s proposed course of action would face obvious difficulties with 

respect to the automatic stay provisions of 11 U.S.C. § 362. Plaintiff offers no insights as to how 

it intends to distinguish between items in Sims’ storage unit that may be his own personal 

property (and, hence, likely untouchable under the automatic stay in bankruptcy) and those that 

belong to Adrenaline Charters (and, hence, subject to the First Preferred Ship Mortgage terms 

and conditions).

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personal property of Sims and his mother within the storage shed as long as plaintiff subjectively 

believes such property might be connected to the Vessel.

All of the foregoing aspects of Fun Charters’ Motion would be highly problematic in the 

best of circumstances. But the kicker here is that Fun Charters is requesting that the search of 

the storage unit be conducted stealthily, on an ex parte basis, without prior notice to Adrenaline 

Charters, to Edward Sims, or to Sims’ mother (the co-lessee of the storage unit). As justification 

for this extraordinary request, Fun Charters cites “exigent circumstances,” consisting of 

“animosity which has been exhibited by Sims towards” representatives of Fun Charters. (Doc. 

26, at 2.) Of course, such an emotional reaction by Sims would be understandable. Rarely does 

a debtor react favorably when a creditor moves against its collateral. It is certainly not 

unexpected that the principal of Adrenaline Charters might show “animosity” towards the entity 

forcing the auction of Adrenaline Charters’ fishing vessel to pay its debts. Yet plaintiff would 

have this Court extrapolate from such vitriol a likelihood that Sims would remove, sell or dispose 

of any missing appurtenances located in the storage unit if given an opportunity to be heard 

before Fun Charters is granted judicial carte blanche to raid his storage unit and take anything it 

deems connected to the Vessel. Such a vast leap is not supported by fact or logic. Plaintiff 

identifies no facts suggesting that Sims might knowingly violate court orders (risking judicial 

sanctions or contempt) restricting him from removing the contents of the storage shed pending an 

inventory search.3 Nor is there any factual basis to support plaintiff’s insinuation that Sims 

 3 Besides, plaintiff’s interest in any missing appurtenances that might be held in the 

storage unit has been a matter of public record in this case dating back to August 20, 2014. (See

doc. 17.) In a filing on that date, Fun Charters specifically identified its intent to seize and sell 

“spare gaskets, filters and other parts for the vessel’s ... engines ... and ... generator and other 

equipment comprising Vessel kept in storage unit E180 at the U STOR-IT” in Orange Beach. 

(Doc. 17, at 2.) For more than eight weeks, this document has been readily accessible to Sims, 

Sims’ mother, Adrenaline Charters, and any other member of the public who might visit the 

Clerk’s Office or log onto the PACER database. Surely, then, Fun Charters’ own conduct has 

long “tipped off” Sims to plaintiff’s desire to seize the contents of storage unit E180, and Sims 

has been operating under no legal impediment to removing and disposing of such items in the 

interim. Even if plaintiff’s fear of inequitable conduct by Sims were well-founded, plaintiff’s 

plea for secrecy at this time would appear tantamount to closing the barn door long after any 

horse that may have resided therein has bolted.

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would lie under oath or misrepresent the truth in court filings if asked whether any missing 

appurtenances were in fact being maintained in the storage unit.4 

The bottom line is this: Fun Charters is requesting an extraordinary form of relief. It 

asks for court authorization to commandeer a Deputy U.S. Marshal and a locksmith, conduct a 

judicially sanctioned break-in of a private storage unit rented to two individuals (one of whom 

has no apparent connection to the Vessel, and the other of whom appears subject to the 

protections of the Bankruptcy Code), rifle through the contents of that storage unit and make 

unilateral determinations of what items might constitute “missing appurtenances” to the Vessel, 

and have the Marshal seize such items and deliver same to the substitute custodian for inclusion 

in the October 22 ship sale, all without advance notice, opportunity to be heard or due process 

for the renters of the storage unit. Other than a generic citation to Supplemental Rule C(3)(d), 

Fun Charters identifies no authority that might support such a drastic remedy. Although plaintiff 

mouths the phrase “exigent circumstances,” it cites nothing other than innuendo to support such 

a determination. And plaintiff does not even offer evidence showing a reasonable suspicion that 

this sweeping incursion into the rights of Sims and his mother will yield anything of value within 

the ambit of its foreclosure rights under the First Preferred Ship Mortgage.

Plaintiff has other remedies. It has not shown that those remedies are not reasonably 

available to it here. Its request that the Court fast-forward to the most extreme and invasive 

remedy on the spectrum is not properly supported in fact or law. For all of these reasons, 

plaintiff’s Motion for Order Authorizing Supplemental Process Upon Appurtenances Removed 

from Vessel (doc. 26) is denied.

5

 4 On this point, plaintiff asserts as follows: “In light of Sims’ apparent removal and 

sale of the fighting chair and billfish rods and reels from the Vessel, Plaintiff is doubtful that an 

order to show cause directed to Sims and his mother under Rule C(5) would be an effective 

means of recovering any Missing Appurtenances due to the likelihood that Sims, who is 

apparently in dire financial condition, will deny knowledge or possession of any Missing 

Appurtenances.” (Doc. 26, at 3.) Plaintiff does not explain why it apparently believes Sims’ sale 

of the chair and fishing tackle amounts to dishonest conduct, or how his personal financial 

difficulties would translate into a propensity to deceive this tribunal about any “spare gaskets, 

filters, and other parts” that might be lying around in a storage unit.

5 As noted supra, plaintiff’s Motion clearly reflects that plaintiff is not requesting 

issuance of a show cause order under Supplemental Rule C(5) because “Plaintiff is doubtful that 

an order to show cause directed to Sims and his mother under Rule C(5) would be an effective 

(Continued)

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DONE and ORDERED this 10th day of October, 2014.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 

means of recovering any Missing Appurtenances.” (Doc. 26, ¶ 8.) Nowhere in the relief 

requested in the Motion does plaintiff identify a Rule C(5) show cause order as an objective of 

its Motion. Yet in the accompanying brief, plaintiff states that it is asking the Court “to enter an 

order directing Adrenaline Charters, LLC, Eddie Sims and Joni O’Shields Sims to show cause 

why they should not deliver the Missing Appurtenances to the U. S. Marshall [sic].” (Doc. 26-3, 

at 4.) Plaintiff does not explain the stark inconsistency between its Motion and its Brief. Under 

the circumstances, the Court construes the emphatic language of the Motion as the clearest 

expression of plaintiff’s intent; therefore, it will not consider whether a Rule C(5) order might be 

appropriate at this time, given plaintiff’s unequivocal statements in the Motion and the 

Fitzsimons Affidavit that such a course of action would be undesirable and/or ineffectual.

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