Richard Fitzgerald v. The Unidentified Wrecked & Abandoned Vessel, Etc., Harry E. Hauck & Carlos Rivera-Davila, Intervening Richard Fitzgerald v. The Unidentified Wrecked & Abandoned Vessel, Etc., Harry E. Hauck & Carlos Rivera-Davila, Intervening, 866 F.2d 16 (1st Cir. 1989). · Go Syfert
Search
Richard Fitzgerald v. The Unidentified Wrecked & Abandoned Vessel, Etc., Harry E. Hauck & Carlos Rivera-Davila, Intervening Richard Fitzgerald v. The Unidentified Wrecked & Abandoned Vessel, Etc., Harry E. Hauck & Carlos Rivera-Davila, Intervening, 866 F.2d 16 (1st Cir. 1989). Cases Citing This Book View Copy Cite
30 citation events (7 in the last 25 years) across 13 distinct courts.
Strongest positive: Ball v. County of Clark (nvd, 2024-10-28)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) Ball v. County of Clark
D. Nev. · 2024 · confidence medium
Leave to amend is not 13 automatic, however, and “the district court’s discretion to deny leave to amend is particularly broad 14 where plaintiff has previously amended the complaint.” City of Los Angeles v. San Pedro Boat 15 Works, 635 F.3d 440, 454 (9th Cir. 2011) (quoting Ascon Props., Inc. v. Mobile Oil Co., 866 F.2d 16 1149, 1160 (9th Cir. 1989)). 17 Whether to grant leave to amend is a close question in this case.
cited Cited as authority (rule) (PC) Castro v. Waddle
E.D. Cal. · 2021 · confidence medium
Valandingham v. Bojorquez, 866 F.2d 16 1135, 1138 (9th Cir. 1989).
discussed Cited as authority (rule) Ervin v. San Diego, County of
S.D. Cal. · 2019 · confidence medium
“Failure to investigate or intervene when child abuse is suspected 15 can subject a state and its employees to liability.” Woodrum v. Woodward Cty. 866 F.2d 16 1121, 1125 (9th Cir. 1989). 17 In Plaintiff’s second cause of action against the County and DOES 1-10 for 18 deprivation of substantive due process, Plaintiff alleges “the County, acting under color of 19 state law, deprived Plaintiff of substantive due process as afforded him by the Fifth and 20 Fourteenth amendments of the US Constitution, by burdening Plaintiff’s rights, to be 21 informed of, and make decisions about the ca…
discussed Cited as authority (rule) Jackson v. Shanks
10th Cir. · 1998 · confidence medium
In light of the considerable evidence implicating Mr. Jackson in the murder and robbery, we believe the prosecutor’s question did not fundamentally impair “the jury’s ability to judge the evidence fairly.” See id. (quoting Hopkinson v. Shillinger, 866 F.2d 16 1185, 1210 (10th Cir. 1989)).
discussed Cited as authority (rule) Fairport International Exploration, Inc. v. the Shipwrecked Vessel
W.D. Mich. · 1995 · confidence medium
See e.g., Zych v. Wrecked Vessel Believed to be SB “Lady Elgin”, 960 F.2d 665, 670 (7th Cir.), cert. denied, 506 U.S. 985 , 113 S.Ct. 491 , 121 L.Ed.2d 430 (1992); Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, Known as “The Sindia", 895 F.2d 116, 122 (3rd Cir.1990); Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16, 17 (1st Cir.1989).
cited Cited as authority (rule) Coeur d'Alene Tribe of Idaho v. Idaho
9th Cir. · 1994 · confidence medium
Fitzgerald, 866 F.2d at 18.
cited Cited as authority (rule) Coeur D'alene Tribe Of Idaho v. State Of Idaho
9th Cir. · 1994 · confidence medium
Fitzgerald, 866 F.2d at 18. 40 In Mauro, the plaintiff alleged that the defendant state official was depriving the plaintiff of its property without due process of law. 21 F.3d at 672 .
discussed Cited as authority (rule) No. 93-1426
7th Cir. · 1994 · confidence medium
See Zych v. Wrecked Vessel Believed to be the "Lady Elgin", 960 F.2d 665, 670 (7th Cir.) (Eleventh Amendment prevents a federal district court from declaring that a finder of a shipwreck has rights superior to those of a state that claimed an interest in a wreck), cert. denied, --- U.S. ----, 113 S.Ct. 491 , 121 L.Ed.2d 430 (1992); Sindia Expedition v. Wrecked & Abandoned Vessel, 895 F.2d 116, 119 (3d Cir.1990) (same); Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16, 17-19 (1st Cir.1989) (same). 20 Undeterred by the Eleventh Amendment, Zych points to the Supreme Court's de…
discussed Cited as authority (rule) Zych v. Unidentified, Wrecked & Abandoned Vessel
unknown court · 1994 · confidence medium
See Zych v. Wrecked Vessel Believed to be the “Lady Elgin", 960 F.2d 665, 670 (7th Cir.) (Eleventh Amendment prevents a federal district court from declaring that a finder of a shipwreck has rights superior to those of a state that claimed an interest in a wreck), cert. denied, — U.S. -, 113 S.Ct. 491 , 121 L.Ed.2d 430 (1992); Sindia Expedition v. Wrecked & Abandoned Vessel, 895 F.2d 116, 119 (3d Cir.1990) (same); Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16, 17-19 (1st Cir.1989) (same).
cited Cited as authority (rule) Zych v. Wrecked Vessel Believed to be The \Lady Elgin\""
unknown court · 1992 · confidence medium
The first circuit agrees with this position, see The Whidah, 717 F.2d at 8 ; HMS Defiance, 866 F.2d at 18-19.
cited Cited as authority (rule) No. 91-1673
7th Cir. · 1992 · confidence medium
The first circuit agrees with this position, see The Whidah, 717 F.2d at 8 ; HMS Defiance, 866 F.2d at 18-19.
discussed Cited as authority (rule) No. 89-5485
3rd Cir. · 1990 · signal: contra · confidence medium
New Jersey has also represented to the court that it is "willing and able" to negotiate an agreement with any new salvage group should the district court make a different custody award on remand 12 Because it is not at issue in this case and would not affect the result, we do not decide the issue of whether a state seeking to bar an in rem suit on Eleventh Amendment grounds must merely assert a claim or must advance a "colorable" claim to the res Marx v. Government of Guam, 866 F.2d 294, 299 (9th Cir.1989) (state needs to assert "colorable claim"); contra Fitzgerald v. Unidentified Wrecked & A…
discussed Cited as authority (rule) Sindia Expedition, Inc. v. Wrecked & Abandoned Vessel
Cal. · 1990 · signal: contra · confidence medium
Marx v. Government of Guam, 866 F.2d 294, 299 (9th Cir.1989) (state needs to assert "colorable claim"); contra Fitzgerald v. Unidentified Wrecked & Abandoned Vessel, 866 F.2d 16, 18 (1st Cir.1989) (dismissing action because it was directed against the state and not state officials) (“Once it is determined that the in rem action is directed against the Commonwealth itself, ... a federal court need not reach the colorability of the Commonwealth’s claim.”).
discussed Cited as authority (rule) Sindia Expedition, Inc. v. Wrecked & Abandoned Vessel
unknown court · 1989 · confidence medium
See, e.g., Marx v. Government of Guam, 866 F.2d 294 (9th Cir.1989); Fitzgerald v. Unidentified, Wrecked & Abandoned Vessel, 866 F.2d 16, 18 (1st Cir.1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 717 F.2d 6, 8 (1st Cir.1983); Subaqueous Exploration & Archaeology, Ltd. v. Unidentified, Wrecked & Abandoned Vessel, 577 F.Supp. 597, 608 (D.Md.1983).
discussed Cited as authority (rule) Joan F. Lane, D/B/A Lane & Co. v. The First National Bank of Boston
1st Cir. · 1989 · confidence medium
See Ex Parte New York No. 2, 256 U.S. 503, 510-11 , 41 S.Ct. 592, 593 , 65 L.Ed. 1063 (1921); Fitzgerald v. Unidentified, Wrecked and Abandoned Vessel, 866 F.2d 16, 17-18 (1st Cir.1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 7 (1st Cir.1983).
examined Cited "see" Zych v. Unidentified, Wrecked & Abandoned Vessel, Believed to Be the SB \Lady Elgin\"" (3×) also: Cited "see, e.g."
N.D. Ill. · 1990 · signal: see · confidence high
See Cobb Coin II, 549 F.Supp. at 551-52 . 5 Cf. Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, 895 F.2d 116 (3d Cir.1990). 6 More often courts appear to have assumed that actions seeking to determine ownership against "all the world” are, in effect, suits against states because states are included in the concept of “all the world.” See Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir.1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983); Jupiter Wreck, Inc. v. Unidentified, Wrecked …
Retrieving the full opinion text from the archive…
Richard Fitzgerald
v.
The Unidentified Wrecked and Abandoned Vessel, Etc., Harry E. Hauck and Carlos Rivera-Davila, Intervening Richard Fitzgerald v. The Unidentified Wrecked and Abandoned Vessel, Etc., Harry E. Hauck and Carlos Rivera-Davila, Intervening
88-1742.
Court of Appeals for the First Circuit.
Feb 1, 1989.
866 F.2d 16
Cited by 6 opinions  |  Published

866 F.2d 16

1989 A.M.C. 1075

Richard FITZGERALD, et al., Plaintiffs, Appellees,
v.
The UNIDENTIFIED WRECKED AND ABANDONED VESSEL, etc.,
Defendant, Appellee.
Harry E. Hauck and Carlos Rivera-Davila, Intervening
Plaintiffs, Appellants.
Richard FITZGERALD, et al., Plaintiffs, Appellants,
v.
The UNIDENTIFIED WRECKED AND ABANDONED VESSEL, etc.,
Defendant, Appellee.
Harry E. Hauck and Carlos Rivera-Davila, Intervening
Plaintiffs, Appellees.

Nos. 88-1742, 88-1827.

United States Court of Appeals,
First Circuit.

Heard Jan. 12, 1989.
Decided Feb. 1, 1989.

Carlos J. Quilichini with whom Domingo Acevedo Bayron and Francisco R. Moya, Hato Rey, P.R., were on brief, for Richard Fitzgerald, et al.

Jose E. Alfaro Delgado and Calvesbert & Brown, San Juan, P.R., on brief, for Harry E. Hauck and Carlos Rivera-Davila.

Jose R. Garcia Perez, Hato Rey, P.R., Federal Litigation Div., with whom Hon. Rafael Ortiz Carrion, Sol. Gen., and Norma Cotti Cruz, Deputy Sol. Gen., were on brief, for intervenors Commonwealth of Puerto Rico and Puerto Rico Institute of Culture.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and PETTINE,[*] Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

[*~16]1

The HMS DEFIANCE is believed to have foundered off the coast of Puerto Rico in 1652. In 1986-87, two groups of salvors, the Fitzgerald group and the Hauck group, allegedly discovered the wreck of what some believe to be the DEFIANCE several hundred yards off the beach near Rincon, Puerto Rico. The salvors recovered valuable artifacts, including an astrolabe.

2

On December 28, 1987, the Fitzgerald group filed this admiralty action in rem in the United States District Court for the District of Puerto Rico. On February 10, 1988, the Hauck group filed an intervening complaint. Each group claimed exclusive title and possession to the wreck and its artifacts and sought a judicial determination in its favor against all claimants and all the world. The Commonwealth of Puerto Rico and the Commonwealth's Institute of Culture intervened specially and moved the district court to dismiss the in rem action, arguing that the action was barred by the Eleventh Amendment since it would necessarily require adjudication of the Commonwealth's rival claims to the wreck and its artifacts. The district court granted this motion. Both the Fitzgerald group and the Hauck group appeal from this decision.

3

The district court ruled that this case is indistinguishable from Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir.1983).[1] We agree with the district court and affirm its dismissal of the in rem action brought by the original and intervening plaintiffs.

[*~17]4

We think it apparent that the instant proceeding is necessarily directed against the Commonwealth of Puerto Rico. If the in rem action is to accomplish its purpose, which is to determine ownership of the wreck and artifacts, the federal district court must resolve the Commonwealth's claim of ownership, and would do so without the latter's consent. In support of this, we point out the following: 1) The wreck is located within the Commonwealth's territorial waters. 2) The Commonwealth has claimed, and has been litigating in its local courts, so far successfully, the ownership of the wreck and the salvaged items. Thus, well before plaintiffs commenced this action, the Commonwealth's Institute of Culture[2] brought an action against plaintiffs in Puerto Rico Superior Court, claiming ownership of the artifacts recovered from the wreck. At oral argument, the parties informed us that the superior court had entered a final judgment in favor of the Commonwealth (we do not know the specifics of this ruling) and that this ruling is now being appealed to the Supreme Court of Puerto Rico. 3) Plaintiffs' complaint in the instant in rem action requests that "governmental agencies be enjoined from interfering with the Plaintiff's title, exclusive possession and property" and also that "all governments, governmental agencies, states ... claiming an interest in the Defendant vessel be cited to appear [in the district court] to show cause why possession of the Defendant vessel should not be delivered to Plaintiffs as having full title." 4) The Commonwealth (along with the Institute of Culture) has been the only party to respond to the complaints filed by the original and intervening plaintiffs. 5) The proceeding is not directed at state officials in a purely individual role. See Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).

5

Because it is "self-evident that this [in rem action] was directed against the Commonwealth" and the Commonwealth has not consented to federal adjudication of this dispute, the action is barred by the Eleventh Amendment irrespective of the actual merit of the Commonwealth's claim to the salvaged wreck and its treasures. Maritime Underwater Surveys, Inc., 717 F.2d at 8. Once it is determined that the in rem action is directed against the Commonwealth itself and seeks to have a federal court adjudicate the Commonwealth's interest in the disputed property, a federal court "need not reach the colorability of the Commonwealth's claim," id., as plaintiffs ask us to do here. A majority of the justices in Treasure Salvors, Inc., 458 U.S. at 702-03, 102 S.Ct. at 3323-24 (White, J., concurring in part and dissenting in part) (footnotes and citations omitted), agreed on this point:

6

The Court of Appeals [in Treasure Salvors, Inc.] thought that the jurisdictional issue raised by the State merged with a determination on the merits of the validity of the State's claim to the property. The appellate court believed that it had "jurisdiction to decide jurisdiction" and could therefore determine who owned the artifacts in order to ascertain whether the suit was, in fact, an action against the State. By holding that "[t]he court did not have power ... to adjudicate the State's interest in the property without the State's consent," ante, at 682 [102 S.Ct. at 3313], the [plurality in Treasure Salvors, Inc.] properly rejects this novel conception of the Eleventh Amendment. The appellate court's approach to the jurisdictional issue is not consistent with our prior cases; it incorrectly assumes that a federal court may adjudicate a State's right to ownership of specific property within the possession of state officials without the State's consent. The approach is unsatisfactory because ... it "is equivalent to asserting that suits against a state are permitted by the eleventh amendment if the result is that the state loses."

7

We accordingly must agree with the district court that this action is barred by the Eleventh Amendment, and that the case should be dismissed in its entirety under Fed.R.Civ.P. 19(b) because, as explained in the district court's opinion and order, "no adequate remedy can be forged for plaintiff[s] without the Commonwealth's participation in this action." Maritime Underwater Surveys, Inc., 717 F.2d at 8.

[*~18]8

AFFIRMED.

*

Of the District of Rhode Island, sitting by designation

1

We reject plaintiffs' argument that Maritime "appears to be in contravention to" Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982). Maritime is in full accord with Treasure Salvors, as we undertook to explain in Maritime. 717 F.2d at 7-8

2

The Institute of Culture is an "official, corporate and autonomous entity whose purpose is to preserve, promote, enrich and diffuse the cultural values of the Puerto Rican people...." P.R.Laws Ann. tit. 18, Sec. 1195 (1986). We note that the Institute of Culture was represented in this action by the Secretary of Justice of Puerto Rico and that the Institute joined with the Commonwealth in intervening in this action in order to contest the district court's jurisdiction. It is unclear whether the Institute is an arm or alter ego of the Commonwealth. See Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506, 517 (1st Cir.1987) (listing factors to be considered in determining whether entity is an alter ego of the state). Even if it is not, however, plaintiffs' in rem action seeks to adjudicate not only the Institute's interest in the wreck, but also the Commonwealth's interest. See paragraph 3), infra