Barnes v. Henry et al
| Chad Barry Barnes |
| Aloha Ocean Excursions LLC, Kris Henry, Sea Hawaii Rafting, LLC and United States Attorney General |
| Dane S. Field |
| United States Attorney for the District of Hawaii |
| 1:2018cv00389 |
| October 11, 2018 |
| US District Court for the District of Hawaii |
| ALAN C KAY |
| RICHARD L PUGLISI |
| Marine |
| 46 U.S.C. § 688 |
| None |
Docket Report
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| Filing 13 EO: On November 2, 2018, Plaintiff Barnes filed his "Notice of Constitutional Challenge," ECF No. #12 , pursuant to the Court's Minute Order dated October 11, 2018. ECF No. #9 . As the Court directed, Plaintiff Barnes appears to have sent copies of his Notice by certified mail to the United States Attorney General and the United States Attorney's Office for the District of Hawai'i. In order obviate the need to mail physical copies of future filings to the United States Attorney General and the United States Attorney's Office, the Court directs the Clerk of Court to add the United States Attorney General and the United States Attorney for the District of Hawai'i as interested parties to this case.IT IS SO ORDERED. (JUDGE ALAN C. KAY) (rls, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) |
| Filing 12 NOTICE by Chad Barry Barnes re #9 Order, Notice of Constitutional Question [Notice of Constitutional Challenge] Chad Barry Barnes. (Attachments: #1 Declaration of Jay Friedheim, #2 Exhibit "1", #3 Exhibit "2", #4 Certificate of Service)(Friedheim, Jay) Docket text entry modified on 11/05/2018 to include deleting extraneous punctuation. (afc). |
| Filing 11 EO: On October 30, 2018, Plaintiff Barnes filed a "Motion for Extension of Time to File Brief," ECF No. #10 , pursuant to the Court's Minute Order dated October 11, 2018. ECF No. #9 . In that Minute Order, the Court extended Plaintiff Barnes's deadline to file a notice explaining the bases for, and authorities that support, his various constitutional challenges from August 24, 2018 to October 31, 2018. Plaintiff Barnes requests an additional five-day extension to file his notice.The Court grants the requested extension. Accordingly, Plaintiff Barnes is directed to file his notice by Monday, November 5, 2018 (1) (1) On October 22, 2018, the Court entered a Minute Order in Barnes v. Sea Hawaii Rafting, LLC et al., Civ. No. 13-00002 ACK-RLP, in which it directed the parties to brief the issue of whether or not the trailer on which the M/V Tehani has been secured is an appurtenance of the vessel. The Court reminds the parties that their briefs are to be filed by noon on Friday, November 2, 2018.IT IS SO ORDERED. (JUDGE ALAN C. KAY) (rls, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) Modified on 10/31/2018 (rls, ). |
| Filing 10 MOTION for Extension of Time to File Constitutional Challenge Brief Jay L Friedheim appearing for Plaintiff Chad Barry Barnes (Attachments: #1 Certificate of Service Certificate of Service)(Friedheim, Jay) |
| Filing 9 EO: On August 3, 2018, the Court filed a Minute Order, ECF No. [ #5 ]/(396) in 1:13-cv-00002-ACK-RLP], directing Plaintiff Barnes to file a notice explaining the bases for, and authorities that support, his constitutional challenges to (1) the "Bankruptcy Reform Act of 1978, as amended, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005"; (2) the Bankruptcy Amendments and Federal Judgeship Act of 1984; and (3) District of Hawaii Admiralty Rule E.11. Plaintiff Barnes was directed that the notice be no more than twenty-five pages and be filed by Friday, August 24, 2018. Plaintiff Barnes was further directed to send copies by certified mail to the United States Attorney General and the United States Attorney's Office for the District of Hawaii.Plaintiff Barnes has not filed the notice as directed. The Court understands that Plaintiff Barnes has several appeals and bankruptcy issues involving this case; and if he does not currently have time to comply with the requirements of these constitutional challenges, he may request the Court to administratively withdraw his constitutional challenges, with the understanding that they may be automatically reinstated when he has sufficient time to proceed with them. On the other hand, if Plaintiff Barnes wishes to proceed with his constitutional challenges at this time, he is directed to file the aforesaid notice (as specified in the Minute Order dated August 3, 2018) by Wednesday, October 31, 2018. The Attorney General would then have sixty days to file a response, after which the Court would set a hearing and briefing schedule.IT IS SO ORDERED. (JUDGE ALAN C. KAY) (rls, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) [ECF 449 in 1: 13-cv-00002-ACK-RLP] (afc) |
| Filing 8 U.S. Postal Service DOMESTIC RETURN RECEIPTS re: Service of ECF nos: [ECF #2 in 1:18-cv-00389-ACK-RLP, ECF (390) in 1:13-cv-00002-ACK-RLP)]AND[ECF #4 in 1:18-cv-00389-ACK-RLP, ECF (394) in 1:13-cv-00002-ACK-RLP)] upon The Honorable Jeff Sessions, Attorney General of the United States. (Attachments: Domestic Return Receipt: Delivery of the August 1, 2018 Minute Order, ECF #2 /(390) - received 8/8/2018, AND: #1 Domestic Return Receipt: Delivery of the August 3, 2018 CERTIFICATION, ECF #4 /(3940 - received 8/14/2018) (afc) [ECF 413 in 1: 13-cv-00002-ACK-RLP] |
| Filing 7 TRANSMITTAL LETTER addressed to U.S. Attorney General Jeff Sessions re: transmission of the CERTIFICATION, [ECF #4 in 1:18-cv-00389-ACK-RLP; ECF (394) in 1:13-cv-00002-ACK-RLP] (afc)[ECF 399 in 1: 13-cv-00002-ACK-RLP] |
| Filing 6 NOTICE by Chad Barry Barnes - CERTIFICATE OF SERVICE re SECOND NOTICE OF CONSTITUTIONAL QUESTION [ECF #3 in 1:18-cv-00389-ACK-RLP, ECF (391) in 1:13-cv-00002-ACK-RLP)] - E-filed by Jay Friedheim, Esq. on behalf of Chad Barry Barnes. (afc)[ECF 398 in 1: 13-cv-00002-ACK-RLP] |
| Filing 5 EO: On August 3, 2018, the Court certified to the United States Attorney General and the United States Attorney's Office for the District of Hawaii that Plaintiff Chad Barry Barnes has drawn into question the constitutionality of: (1) the "Bankruptcy Reform Act of 1978, as amended, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005"; (2) the Bankruptcy Amendments and Federal Judgeship Act of 1984; and (3) District of Hawaii Admiralty Rule E.11.The Court notes that Plaintiff Barnes's constitutional challenges to the above statutes and rule are generalized and vague. The Court finds that the United States Attorney General and the United States Attorney's Office for the District of Hawaii must be provided with more adequate notice of the grounds on which Plaintiff Barnes seeks to challenge these statutes and rule.Accordingly, the Court directs Plaintiff Barnes to file a notice explaining in detail the bases for, and the authorities that support, his constitutional challenges to the above statutes and rule. Plaintiff Barnes should cite the applicable standard for such a challenge, identify specific provisions of the statutes and rule that he challenges as unconstitutional, and provide authority for his position as to each. The Court directs that Plaintiff Barnes's notice be of no more than twenty-five pages and be filed by Friday, August 24, 2018. Upon filing such notice, Plaintiff Barnes is directed to send copies by certified mail to the United States Attorney General and the United States Attorney's Office for the District of Hawaii. Plaintiff Barnes should include his Second Notice of Constitutional Question, ECF No. 391 , as well as this minute order, as exhibits to his notice.IT IS SO ORDERED. (JUDGE ALAN C. KAY)(shm)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) [ECF 396 in 1: 13-cv-00002-ACK-RLP] Court's Certification: ECF (394) in 1:13-cv-00002-ACK-RLP, entered as ECF #4 in 1:18-cv-0389-ACK-RLP] (afc) |
| Filing 4 CERTIFICATION re: #3 ; (ECF (391) in 1:13-cv-00002-ACK-RLP). Signed by JUDGE ALAN C. KAY on 8/3/2018. (afc) COURTS CERTIFICATE OF SERVICE Non-Registered CM/ECF Participants will be served on Monday, August 6, 2018 by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF). The Office of the United States Attorney for the District of Hawaii served this date by interoffice delivery. A separate Certificate of Service will be entered when service is perfected upon the Office of the Attorney General. -----------------------(Attachment added on 8/19/2018 (in CV 13-00002-ACK-RLP): #1 U.S. Postal Service Certified Mail documentation; franked receipt (date: 8/6/2018) re: Mailing to the Honorable Jeff Sessions) (afc) [ECF 394 in 1: 13-cv-00002-ACK-RLP] |
| Filing 3 NOTICE by Chad Barry Barnes: BARNES SECOND NOTICE OF CONSTITUTIONAL QUESTION. (Attachments: # 1 Certificate of Service) - E-filed by Jay Friedheim, Esq. on behalf of Chad Barry Barnes. (afc)[ECF 391 in 1: 13-cv-00002-ACK-RLP] Notice in re: ECF 390 in 1:13-cv-00002-ACK-RLP, entered as ECF #2 in 1:18-cv-0389-ACK-RLP] |
| Filing 2 EO: On July 25, 2018, Plaintiff Barnes filed Chad Barnes Request for Interlocutory Appeal Regarding Requirement to Prepay Marshal's Fees Pursuant to 28 USC Section 1921 ("Request"). ECF No. 373. In Plaintiff Barnes's Request, he asks the Court to grant him leave to file an interlocutory appeal challenging the constitutionality of 28 U.S.C. 1921and specifically its provision requiring prepayment of certain Marshals fees in advance of the arrest of a vesselas written and applied to seamen seeking maintenance and cure. Id. In its May 3, 2018 Order Regarding Prepayment of Marshal's Expenses ("May 3, 2018 Order"), the Court found that 28 U.S.C. 1921(a)(2) plainly requires prepayment of Marshal's fees from "all private litigants, including seamen proceeding pursuant to section 1916 of this title." ECF No. 315 at pp. 2-3. The May 3, 2018 Order concluded that 1921 is clear on its face, and the Court did not address the constitutionality of 1921 as written or applied.Because Plaintiff Barnes now expressly seeks to challenge the constitutionality of 1921, the Court finds it appropriate to consider this issue in the first instance. The Court notes that Federal Rule of Civil Procedure 5.1, entitled "Constitutional Challenge to a StatuteNotice, Certification, and Intervention," requires a party who files a paper questioning the constitutionality of a federal statute to serve a notice of constitutional question on the United States Attorney General, if the United States is not a party. Fed. R. Civ. P. 5.1(a). In addition, under 28 U.S.C. 2403, the Court must "certify to the appropriate attorney general that a statute has been questioned." 28 U.S.C. 2403; see also Fed. R. Civ. P. 5.1(b).Accordingly, the Court directs Plaintiff Barnes to promptly file a notice of constitutional question with the Attorney General of the United States, pursuant to Federal Rule of Civil Procedure 5.1(a)(1)(B). Further, this Court certifies to the Attorney General of the United States that it may rule on the constitutionality of the federal statute at issue in this case, 28 U.S.C. 1921. The attorney general shall have sixty days within which to intervene for presentation of argument on the question of the constitutionality of said statute. After the Attorney General files his response, the Court will set a hearing and determine an appropriate briefing schedule.The Court directs the Clerk of Court to send a copy of this order by certified mail to the Attorney General of the United States.IT IS SO ORDERED. (JUDGE ALAN C. KAY)(bbb)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) -----------------------(Attachment added on 8/19/2018 (in CV 13-00002-ACK-RLP): #1 U.S. Postal Service Certified Mail Receipt of Mailing to the Honorable Jeff Sessions) (afc) [ECF 390 in 1:13-cv-00002-ACK-RLP] |
| Filing 1 REQUEST for INTERLOCUTORY APPEAL regarding Requirement to Prepay Marshals Fees pursuant to 28 U.S.C. Section 1921; Certificate of Service - filed by Jay Friedheim, Esq. on behalf of Chad Barry Barnes. (afc)[ECF 373 in 1:13-cv-00002-ACK-RLP] |
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