Kanaway Seafoods, Inc., et al. vs. Pacific Predator, AK Registration No. AK3565AN, et al.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KANAWAY SEAFOODS, INC., and
LIBERTY PACKING, LLC,
Plaintiffs,
v.
PACIFIC PREDATOR, and BRYAN
HOWEY and DANA HOWEY, and
ALASKA WILD EXPORTS, LLC,
Defendants.
Case No. 3:22-cv-00027-JMK-KFR
FINDINGS AND RECOMMENDATIONS
The Court recommends that Plaintiff’s Motion for Replevin at Docket 22 be
denied. Replevin is an action for recovery of property wrongfully seized or detained
by another party. In this case, Plaintiff seeks possession from Defendants of a fishing
vessel, the Pacific Predator, that was utilized as collateral for a loan Plaintiff alleges
Defendants have breached. 	Because Defendants do not at presently possess the
Pacific Predator because of its seizure by the United States Marshals as part of this
case, the property cannot be taken from Defendants and replevin cannot be ordered.
I. 	Statement of Facts1
On April 17, 2019, Defendants Bryan and Dana Howey (hereinafter collectively
“Defendants”) entered into a loan agreement with Liberty Packing, LLC, (hereinafter
“Liberty”).2 As part of the contract, Liberty agreed to loan $800,000 to Defendants
so that they could pay off an existing debt to another lender.3 	Defendants secured
the Liberty loan with their fishing vessel, the Pacific Predator, an Alaskan registered
1 This Statement of Facts is limited to those facts necessary to decide the motion before the
Court.
2 Doc. 1-1; Doc. 35 at 4.
3 Doc. 1-1 at 1.
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58-foot 	seiner 	used 	by 	Defendants 	to 	commercially 	fish 	Alaskan 	waters; 	the
equipment 	and 	appurtenances on the vessel; 	and 	fishing rights 	possessed 	by
Defendants.4
In exchange, Defendants agreed to enter into a fishing agreement with Liberty
to deliver and sell seafood products to Liberty for a fixed period.5 Defendants also
agreed to make payments on the Liberty loan in 15 equal installments due yearly on
September 30, with 25% of the gross proceeds from the delivery of seafood to
Liberty deducted from the amount due.6 	Defendants also agreed to register the
Pacific Predator in Washington State and to list Liberty as the owner of the vessel.7
Approximately six weeks after signing the Liberty loan, Defendant Bryan
Howey signed a Promissory Note with Kanaway Seafood, Inc., doing business as
Alaska General Seafood (hereinafter “Kanaway” or “AGS”).8 	Under the AGS note,
AGS agreed to loan Defendant Bryan Howey up to approximately $24,000 to be used
for the purchase of “necessaries” – food, fuel and other expenses incurred during the
fishing season - for the Pacific Predator.9 Any money loaned under the AGS note was
to be repaid through fish credits and tender charters, with the full amount due no
later than September 30, 2019.10
Between 2019 and 2021, AGS advance Defendant Bryan Howey and the Pacific
Predator a line of credit of approximately $353,000, with accrued interest on this
line of credit totaling approximately $90,000.11 During those three years, Defendant
Bryan Howey repaid approximately $340,000 through deliveries of fish to AGS.12
In July 2019, Defendant Bryan Howey had mechanical issues with a skiff that
4 Id. at 1, 4; Doc. 35 at 3-4.
5 Doc. 1-1 at 1.
6 Doc. 1-2 at 2.
7 Doc. 1-1 at 6; Doc. 35 at 4.
8 Doc. 1 at 5; Doc. 1-3.
9 Doc. 1 at 5.
10 Doc. 1 at 6; Doc. 1-3 at 1.
11 Doc. 1 at 6; Doc. 64-4 at 6.
12 Doc. 1 at 7; but see Doc 64-4 at 6 (showing credits in the amount of $326,664.13).
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he used as part of his commercial fishing operation.13 As a result of issues associated
with the operation and repair of the skiff, Defendant Bryan Howey was unable to
fully fish the 2019 season. 	Lingering issues with the skiff also affected Defendant
Bryan Howey’s ability to fish during the 2020 and 2021 season.14 Defendants were
unable to repay the amounts owed on the Liberty loan, AGS note, and AGS line of
credit in accordance with the terms and conditions of those agreements.
II. 	Procedural History
a. Complaint and Maritime Arrest of Pacific Predator
On February 23, 2022, Plaintiffs Kanaway/AGS and Liberty (hereinafter
collectively “Plaintiffs”) filed a complaint in rem against the Pacific Predator, and in
personam against Defendants and their business Alaska Wild Exports (“AWE”).15 In
the complaint, Plaintiffs make three claims. 	First, Plaintiffs allege Defendants
defaulted on the Liberty loan, AGS note, and AGS line of credit, by failing to repay
approximately $746,000 owed on the Liberty loan (and secured by the Pacific
Predator), $24,000 owed on the AGS note, and $79,000 owed on the AGS line of
credit; by failing to properly register the Pacific Predator in the State of Washington;
and by failing to identify Liberty on the registration as the owner of the vessel.16
Second, Plaintiffs seek foreclosure of a maritime lien against the Pacific Predator,
alleging the Defendants failed to repay the AGS note and AGS line of credit, which
were advanced to Defendants for the purpose of paying for “necessaries” for the
vessel. Plaintiffs also seek foreclosure of a lien against the Pacific Predator because
of Defendants’ alleged default on the Liberty loan.17 	Finally, Plaintiffs allege
Defendants failed to respect AWE’s corporate form, using it to evade duties owed to
13 Doc. 35 at 7-8; Doc. 36 at 6.
14 Doc. 35 at 8-11; Doc. 36 at 8-13.
15 Doc. 1. On September 7, 2022, Plaintiffs filed an Amended Complaint. Doc. 64. This
amended complaint repeated the claims made previously, adding only an itemized
accounting of the losses alleged by Plaintiffs. Id. at 34-39.
16 Id.at 7-8.
17 Id. at 8-9.
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Plaintiffs.18
On February 28, 2022, Plaintiffs filed a motion seeking the maritime arrest of
the Pacific Predator pursuant to Supplemental Admiralty Rule C(3).19 This rule
requires the Court to issue an arrest warrant for a vessel in order to enforce a
maritime lien upon the filing of a verified complaint that describes the vessel with
sufficient particularity and that states that the vessel is or will be within the
District.20 This Court issued the warrant on March 16, 2022,21 and the United States
Marshals seized the vessel on April 14, 2022.22 	Following its arrest, the Marshal
placed the Pacific Predator in the custody of “Buck Fowler and Alaska Marine
Services,” Plaintiff Liberty’s designated substitute custodian for the vessel.23
Following a hearing pursuant to Supplemental Admiralty Rule E(4)(f), and
briefing by the parties, this Court denied Defendants’ motion to vacate the arrest.24
Pursuant to Supplemental Admiralty Rule E(5)(a), the Court set a special bond of
$148,500 for release of the vessel, an amount sufficient to cover “twice the amount
of plaintiff’s claim, or…the value of the property at due appraisement, whichever is
smaller.”
Bond has not been posted and the Pacific Predator remains in the possession
of the United States Marshal.
b. Motion for Order Authorizing Seizure of Pacific Predator
On May 1, 2022, Plaintiff Liberty filed a motion for replevin.25 In its motion,
Plaintiff 	Liberty 	seeks 	relief 	pursuant 	to 	Fed. 	R. 	Civ. 	P. 	64, 	which 	permits
“seizing…property to secure satisfaction of a potential judgment,” and asks the Court
18 Id. at 10.
19 Doc. 3.
20 Supp. Admiralty Rule C(1)-(3).
21 Doc. 7.
22 Doc. 11.
23 Docs. 4, 8, and 11 (motion for order for custodian, order appointing custodian, and
notice of arrest, respectively).
24 Doc. 52.
25 Doc. 22.
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to issue an order directing seizure of the Pacific Predator. 	Plaintiff Liberty argues
that under Washington State law, replevin is an appropriate remedy “upon a
showing that the plaintiff has the right to possess the property.”26 	Plaintiff Liberty
also claims the right to self-help repossession of the Pacific Predator under the
Uniform Commercial Code (UCC).27
Defendants opposed the motion.28 In their opposition, Defendants argued that
Alaska law applies in this case, and that Plaintiff Liberty’s motion for replevin fails
to meet Alaska’s pleading requirements under Alaska Civil Rule 89.29 	Defendants
also argue that they are not in breach of contract, and that any alleged breach in this
case was the result of Plaintiff Liberty’s failure to act in good faith.30
Plaintiff Liberty replied.31 	In their reply, Plaintiff Liberty argued the merits
of its right to possession of the Pacific Predator by virtue of the terms of the Liberty
loan agreement.32 Plaintiff also stated that Defendants’ arguments in opposition to
the motion were irrelevant as they either implicated a civil rule not at issue in a
replevin action, or asserted a defense against Plaintiff Liberty’s right to possession
that implicated actions taken by Kanaway/AGS, not Liberty.33
The Court held a hearing on the motion for replevin. At the hearing, the Court
challenged Plaintiff Liberty on whether their motion for replevin met either the
Alaska or Washington pleading requirements. In response, Plaintiff Liberty argued
that Washington law applied by virtue of the choice of law provision contained in
the Liberty loan agreement, and that, under either Washington or Alaska law the
verified complaint, as well as other supporting documents filed as part of its motion
26 Id. at 9.
27 Id. at 10
28 Doc. 35.
29 Id. at 16-17 and 20-23
30 Id. at 24-25.
31 Doc. 45.
32 Id. at 2-4, 11.
33 Id. at 12-16
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and other actions in this case provided each of the essential elements necessary for
a replevin action to proceed. 	Defendants argued for application of Alaska law and
stated that the elements of the applicable statute had not been met.
The Court also sought further information from the parties regarding the
evidence necessary to grant the motion. 	Specifically, the Court sought the parties’
position on whether the Alaska and Washington replevin rules required a showing
by Plaintiff that their entire action was meritorious, or simply their pre-judgment
right to possession of the disputed property. 	Plaintiff Liberty argued that the key
question was the right to possession, as opposed to the overall merits of the action.
Defendants argued that the defenses raised by them in their pleading were relevant
to the Court’s analysis of whether Plaintiff 	Liberty had a superior possessory
interest in the Pacific Predator and that because of those defenses the writ of
replevin should not issue.
III. 	Legal Standard and Analysis
a. Replevin under Federal Law
“Replevin 	is 	defined 	as 	an 	action 	brought 	to 	recover 	goods 	unlawfully
taken.”34 Replevin “may be maintained not only for the unlawful taking but for the
unlawful detention of property.”35 	A writ of replevin authorizes “the retaking of
personal property wrongfully taken or detained.”36
Federal Rule of Civil Procedure 64 makes replevin and other prejudgment
remedies available in federal court.37 Rule 64 states, as follows:
(a) At the commencement of and throughout an action, every remedy
is available that, under the law of the state where the court is located,
provides for seizing a person or property to secure satisfaction of the
potential judgment. But a federal statute governs to the extent it
applies.
34 Rollins v. Leibold, 512 P.2d 937 (1973) (citing Clark on Code Pleading 80 (2d ed. 1947)).
35 J.E. Cobbey, A PRACTICAL TREATISE ON THE LAW OF REPLEVIN AS ADMINISTERED BY
THE COURTS OF THE UNITED STATES 7, 34 (2d ed. 1900).
36 Replevin, Black’s Law Dictionary, (3rd Pocket Edition).
37 See Aleut Corp. v. Arctic Slope Regional Corp., 424 F.Supp. 397, 399 (D.Alaska 1976); see
also Murphy v. Foster, 518 F.Supp.2d (D.Me. 2007)
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(b) The remedies available under this rule include the following –
however 	designated 	and 	regardless 	of 	whether 	state 	procedure
requires an independent action: arrest; attachment; garnishment;
replevin; 	sequestration; 	and 	other 	corresponding 	or 	equivalent
remedies.
b. Alaska State Law Governs this Motion.
As a threshold matter, the parties dispute what law governs Plaintiff Liberty's
claims. Plaintiff Liberty claims that Washington law applies while Defendants
asserts that Alaska law applies.38 	Both parties cite to the choice of law provision
contained 	within 	the 	Liberty 	loan 	agreement 	and 	argue 	for 	or 	against 	its
enforcement. 	However, those arguments overlook the unambiguous language
within Rule 64 which states that the law to be applied in an action for replevin is the
law of the “state where the court is located.” 	In this case, given the fact that this
matter has been filed within the District of Alaska, that law is Alaska state law.
Rule 64 codifies “long-settled federal law providing that in all cases in federal
court, whether or not removed from state court, state law is incorporated to
determine the availability of prejudgment remedies for the seizure of person or
property to secure satisfaction of the judgment ultimately entered.”39 Alaska state
law codifies the rules for replevin at Alaska Statute 09.40.260, et seq.40 	The
procedure for replevin under Alaska state law is found at Alaska Civil Rule 88,
Procedure for Claiming Delivery of Personal Property. Under that provision,
[t]he plaintiff shall file a motion with the court requesting the delivery
of personal property, together with an affidavit showing:
(1) A particular description of the property claimed, and if the property
claimed is a portion of divisible property of uniform kind, quality and
value, that such is the case, and the amount thereof which the plaintiff
38 Compare Doc. 22 at 8 with Doc. 35 at 14.
39 Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70
of Alameda Co., 415 U.S. 423, 436 n.10 (1974); United States v. Van Cauwenberghe, 934
F.2d 1048, 1063-64 n.13 (9th Cir. 1991); see also 11A Wright, Miller & Kane, Federal
Practice and Procedure, Civil 2d § 2932 (1995 ed.) (“[S]tate law ordinarily determines
when and how a provisional remedy [such as attachment] is obtained....”).
40 See Aleut Corp., 424 F.Supp. at 399.
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claims; and
(2) That the plaintiff is the owner of the property or lawfully entitled
to its possession, and the facts and circumstances relating thereto; and
(3) The value of the property claimed; and if more than one article is
claimed, the current value of each article; and
(4) That the property is in the possession of the defendant, and the
facts and circumstances relating to such possession according to the
plaintiff's best knowledge or belief; and
(5) That the prejudgment seizure is not sought and the action is not
prosecuted to hinder, delay or defraud any other creditor of the
defendant; and
(6) That the plaintiff has no information or belief that the defendant
has filed any proceeding under the National Bankruptcy Act or has
made a general assignment for the benefit of creditors, or, if any such
proceeding has been terminated, that the claim of the plaintiff was not
discharged in such proceeding.41
Under 	Alaska 	law, 	the 	plaintiff 	bears 	the 	burden 	of 	“establish[ing] 	by 	a
preponderance of the evidence the probable validity of the plaintiff's claim to the
property and the absence of any reasonable probability that a successful defense can
be asserted by the defendant.”42
c. 	Plaintiff Cannot Make the Necessary Showing for Replevin under
Alaska Law.
Plaintiff Liberty did not file a motion and supporting affidavit as required
under Rule 88. The Court finds this alone could be a basis upon which to recommend
denial of Plaintiff Liberty’s motion as Rule 88 states that Plaintiff Liberty “shall file”
a conforming motion and affidavit.43 	However, even if the Court were to liberally
construe Plaintiff Liberty’s verified complaint and exhibits, along with its other
relevant filings on this issue as sufficient to meet Rule 88’s dictates in form, it would
still fall short in substance.
41 Alaska Civil Rule 88(b).
42 Alaska Civil Rule 88(d).
43 Alaska Civil Rule 88(b); see Kalman v. Omni World Financial Corp., 651 So.2d 1249 (Fla.
Dist. Ct. App. 2 1995) (finding “numerous questions” with the claim for replevin, including
that the petition was supported by an unverified complaint in violation of statute)
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Plaintiff 	Liberty’s 	verified 	complaint 	and 	motion 	for 	replevin 	contain
sufficient detail for the Court to conclude that they have met Rule 88’s requirement
to describe the Pacific Predator and its value, and to relate facts and circumstances
about Plaintiff Liberty’s claim to lawful possession of the vessel.44 Where Plaintiff
Liberty falls short is any showing that the “property is in the possession of the
defendant[.]”45 	Indeed, Plaintiff Liberty cannot make this showing as the Pacific
Predator, by virtue of the maritime arrest sought at the outset of this case, is
currently in the custody of Mr. Fowler and Alaska Marine Services, Plaintiff Liberty’s
designated substitute custodian for the vessel, and has been since April 18, 2022.46
This fact was known to Plaintiff Liberty at the time it filed its motion for replevin on
May 1, 2022.47
Given the fact that the Pacific Predator is not currently in Defendants’
possession, Plaintiff Liberty’s motion effectively seeks an order from this Court that
would order delivery by the Pacific Predator’s approved custodian to Plaintiff
Liberty, or that would come into effect only upon the posting of a bond under
Supplemental Admiralty Rule E(5)(a) and the subsequent release of the Pacific
Predator by the custodian to Defendants pursuant to that bond. 	The Court is
unaware of, and the parties do not cite to any authorities that grant the Court the
authority to order replevin from a third party in lawful possession of property, or to
issue a preemptive writ of replevin upon recovery of that property by a defendant
from that third party. Indeed, the Court does not believe such authority exists.
The very nature of replevin - “the retaking of personal property wrongfully
44 See Alaska Civil Rule 88(b)(1)-(3).
45 Id. at (4).
46 Doc. 11. The Court’s findings and recommendation would be no different even if it were
to apply Washington law as requested by Plaintiff. Washington law requires that Plaintiff
file an affidavit or declaration showing “[t]hat the property is wrongfully detained by
[D]efendant.” Revised Code of Washington (RCW) 7.64.020. As Defendant does not
currently possess the Pacific Predator by virtue of its arrest, the necessary showing to
proceed on a replevin action under Washington law cannot be made.
47 Dkt. 22.
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taken or detained by the defendant” - precludes such orders.48 Rule 88, in addition
to requiring an affidavit from the plaintiff showing that the property is “in the
possession of the defendant,”49 also requires a plaintiff to “endorse in writing upon
the motion attached to the affidavit a request that the property claimed be taken by
a peace officer from the defendant and be delivered to the plaintiff.” (Emphasis
added). 	Moreover, Alaska law regulating the recovery of personal property speaks
to plaintiffs and defendants, and addresses third parties only in the context of
delivery to a third party after seizure from the defendant.50
Other jurisdictions have interpreted the replevin rules similarly. In Testerion,
Inc. v. Skoog, the district court denied a motion for a writ of replevin for computer
equipment the plaintiff claimed was in the possession of defendants.51 	Part of the
reason for the court’s denial of the motion was the fact that the actual equipment,
had been delivered to “the record owner, the lessee, and the operator of the
machine,” who were not parties to the dispute.52 	Similarly, in Howell v. U.S.
Marshal, the court upheld the dismissal with prejudice of a motion for a writ of
replevin filed by a convicted bank robber seeking to recover money seized from safe
deposit box that was used as evidence in Appellant’s conviction and was then in the
possession of the United States Marshal.53 The Court held that there was no basis for
replevin because the property “was in the custody of the law.”
Furthermore, Alaska law and procedure directs a “peace officer” to take
possession of the replevied property from a defendant and deliver it to a plaintiff
48 Replevin, Black’s Law Dictionary, (3rd Pocket Edition) (emphasis added); see also Bank
of America, N.A. v. Won Sam Yi, 294 F.Supp.3d 62, 71 (W.D.N.Y. 2018) (permitting replevin
under New York law “[w]here a defendant refuses ‘ to surrender possession of the
collateral subject to the security agreement voluntarily’”) (emphasis added); J.E.
Cobbey, supra at 35 (concluding that the defendant in an act of replevin must have
committed “an actual taking” or “actual detention” for replevin to apply.)
49 Alaska Civil Rule 88(b)(4).
50 See AS 09.40.310 (addressing third party claims to property seized through replevin).
51 602 F.Supp.578 (D.Minn. 1984),
52 Id. at 581.
53 241 F.2d 119 (3rd Cir. 1957)
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when replevin is ordered.54 	In this case, Plaintiff Liberty’s writ of replevin would
direct the United States Marshals, the federal equivalent of an Alaska “peace officer,”
to take possession of the Pacific Predator from themselves. 	Such a result is clearly
illogical.
The Court recognizes that its order may only delay a decision on the merits of
Plaintiff Liberty’s motion and whether or not Plaintiff Liberty is entitled to court-
ordered possession of the Pacific Predator during the pendency of this action. 	The
current posture of the case may result in Plaintiff Liberty refiling a motion for
replevin that meets the requirements of Rule 88 should Defendants post a bond
pursuant to this Court’s order at Docket 52 and regain possession of the Pacific
Predator from Mr. Fowler and Alaska Marine Services. 	Such a result would force
both parties to relitigate this issue, to the financial detriment of their clients and at
a not insignificant cost to the time and resources of the attorneys and the Court.
This outcome also perhaps runs counter to Fed. R. Civ. P. 1’s directive that the Rules
“should be construed, administered, and employed by the court and the parties to
secure 	the 	just, 	speedy, 	and 	inexpensive 	determination 	of 	every 	action 	and
proceeding.”
Nonetheless, the Court recommends denial of Plaintiff’s motion. 	Because
replevin 	involves 	the 	seizure 	of 	property 	before 	final 	judgment, 	Due 	Process
concerns are implicated.55 	And while “the nature and form” of the statutory
prerequisites “are open to many potential variations,” they cannot be ignored given
the power Plaintiff is asking the Court to employ in this case.56 Compliance with the
substantive requirements of the relevant statute and rule are a necessary component
that must be met prior to the ordering of a “harsh remedy [that] causes the
54 AS 09.40.270 and Alaska Civil Rule 88(c)(3). Similarly, Washington law directs the
sheriff to “put the plaintiff in possession of the property.” RCW 7.64.035.
55 See Fuentes v. Shevin, 407 U.S. 67, 93 (1972) (striking down two Florida writs or
replevin statutes for violating Due Process requirements of the 14th Amendment).
56 Id. at 94, 96
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defendant to lose control of his property before the plaintiff’s claim is adjudicated.”57
Those requirement have not been met in this case.
IV. 	Conclusion
The Court recommends that Plaintiff Liberty’s motion be DENIED. 	Under
Alaska law, recovery of personal property in replevin can only be initiated upon a
showing by the plaintiff of certain conditions, including that a defendant is in
possession of the property the plaintiff wishes to recover. 	That showing has not
been made. Accordingly, Plaintiff Liberty’s motion must be denied.
DATED this 23rd of September 2022, at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge. 	A district court judge may accept, reject, or modify,
in whole or in part, the magistrate judge’s order.
A party may file written objections to the magistrate judge’s order within 14
fourteen days. 	Objections and responses are limited to five (5) pages in length and
should not merely reargue positions previously presented. 	Rather, objections and
responses should specifically identify the findings or recommendations objected to,
the basis of the objection, and any legal authority in support. 	Reports and
recommendations are not appealable orders. Any notice of appeal pursuant to Fed.
R. App. P. 4(a)(1) should not be filed until entry of the district court’s judgment.
57 Hamilton Beach Brands, Inc. v. Metric and Inch Tools, Inc., 614 F.Supp.2d 1056 (C.D.Cal.
2009) (quoting Martin v. Aboyan, 148 Cal.App.3d 826, 831 (1983)).
Case 3:22-cv-00027-SLG-KFR Document 65 Filed 09/23/22 Page 12 of 12