Turner Ex Rel. Estate of Turner v. United States ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1953
SUSAN C. TURNER, Individually and as Administratrix of the
Estate of Roger W. Turner, Jr.,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; UNITED STATES COAST GUARD,
Defendants – Appellees,
and
LIBERTY MUTUAL INSURANCE COMPANY, d/b/a Montgomery
Insurance; SIMMONS & HARRIS INSURANCE AGENCY, INC.; THE
NETHERLANDS INSURANCE COMPANY,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:09-cv-00037-BO)
Argued: September 17, 2013 Decided: November 20, 2013
Before MOTZ and DIAZ, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by published opinion. Judge Gibney wrote the opinion,
in which Judge Motz and Judge Diaz joined.
ARGUED: Cynthia Marie Currin, CRISP, PAGE & CURRIN, LLP,
Raleigh, North Carolina, for Appellant. Bruce A. Ross, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: Thomas G. Walker, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina; Stuart F.
Delery, Principal Deputy Assistant Attorney General, Douglas M.
Hottle, Torts Branch, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellees.
2
GIBNEY, District Judge:
This case comes before the Court on an appeal of the
district court’s grant of summary judgment to the defendant, the
United States Coast Guard (“USCG”), in a personal injury and
wrongful death action. The central issue in the case concerns
whether the Coast Guard breached a duty of care in attempting to
rescue Susan Turner and her husband, Roger Turner, Jr. Based on
the record in this case, we conclude that the Coast Guard is not
liable for Ms. Turner’s injuries or Mr. Turner’s death.
In addition, the case presents questions arising from three
subsidiary matters: (1) Ms. Turner demanded sanctions premised
on the USCG’s alleged deliberate spoliation of evidence; (2) she
opposed the district court’s decision to grant the USCG
permission to file an out-of-time motion for summary judgment,
claiming the decision deprived her of due process; and (3) she
challenged the propriety of the USCG’s responses to Turner’s
Freedom of Information Act (“FOIA”) request. The district court
ruled against her on all three issues. We find that the rulings
on the issues of spoliation and the timeliness of the motion
reflect proper exercises of the district court’s discretion and
should not be disturbed. We also affirm the district court’s
ruling that the Coast Guard’s response to Ms. Turner’s FOIA
request satisfied its duty under that Act.
We therefore affirm the judgment of the district court.
3
I.
Susan Turner commenced this action by filing a complaint in
which she – in her individual capacity and as administratrix of
her husband’s estate – brought personal injury and wrongful
death claims against the United States and the USCG under the
Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 30901-30918.
The case arises from a tragic boating incident that
occurred in the coastal waters of North Carolina. On the
afternoon of July 4, 2007, Ms. Turner and her husband, Roger
Turner, Jr. (collectively, the “Turners”), left their home on
the Little River on their private 20-foot long motorboat,
intending to watch holiday fireworks. Before leaving, Roger Jr.
spoke to his father, Roger Sr., telling him that the Turners
would be going to one of three possible locations that evening:
the Pasquotank River, the Perquimans River, or Mann’s Harbor.
After leaving home, the Turners decided to travel to a party at
the home of a friend, located on the Perquimans River.
The Turners left that affair at around 8:30 p.m. By then,
the seas were rough, with waves of three to four feet. The
Turners did not wear life jackets. Attempting to move from bow
to stern, Ms. Turner fell overboard at approximately 9:00 p.m.,
nearly one and a half miles offshore. She cried out to her
husband, who responded, and turned the boat around to come back
for her. Ms. Turner could see the boat but could not see Roger
4
Jr. Soon Ms. Turner lost sight of the boat. At some point
thereafter, Roger Jr. also entered the water. The Turners’ boat
stayed afloat, drifting downriver.
When the Turners did not return home by 9:30 p.m., Roger
Sr. became concerned. After trying without success to reach the
Turners on their cell phones, he called 911 at about 12:25 a.m.
That office relayed Roger Sr.’s information to the North
Carolina Wildlife Resources Commission (“NC Wildlife”) and the
USCG, which returned Roger Sr.’s call at about 1:00 a.m. on July
5. 1 Roger Sr. told the Command Duty Officer that the Turners
were overdue in returning home, and that they might be in one of
three locations his son had given him earlier that afternoon.
He also mentioned that the Turners could be at a fourth
location, a friend’s cabin of unknown address.
Roger Sr. told the duty officer that the Turners were
experienced boaters and strong swimmers. He also told the Coast
1
The log for the Turner case in the CG’s Marine Information
for Safety and Law Enforcement (MISLE) system contains an entry
corresponding with the time of 9:58 p.m. on July 4, 2007,
stating: “Response resource requested.” The resource requested,
“UTL-212051,” was a 21-foot utility boat stationed at the USCG’s
Elizabeth City Air Station. The USCG later explained this entry
was a “placeholder” created by the watch-stander, and unrelated
to any actual call. The watch-stander testified that he chose
this time randomly. The record contains no evidence that the
USCG tried to rescue the Turners as early as 9:58 p.m., or that
the USCG even had any information concerning the Turners at that
time.
5
Guard that the Turners’ vessel had flares, a VHF radio, cell
phones, flotation devices, an anchor, and food and water. Upon
receipt of this information, the USCG decided that, due to the
number of potential locations and the current deployment of
search assets on a confirmed emergency mission (a missing jet
ski), the USCG would not initiate an active search for the
Turners’ overdue boat at that time. Instead, the duty officer
informed Roger Sr. that the USCG would begin making radio calls
and would inquire with local marinas later that morning.
NC Wildlife contacted the USCG in regards to Roger Sr.’s
call. The USCG told NC Wildlife that it would request
assistance from NC Wildlife if necessary, but that due to the
size of the area in which the Turners might be located and the
nature of the call (an overdue boat manned by two experienced
boaters and swimmers), the USCG did not intend to initiate a
search and rescue operation at that time.
At approximately 1:00 a.m., a USCG helicopter that had been
searching for the overdue jet ski left that operation to return
to Elizabeth City to refuel, traveling on a flight path that led
up the Pasquotank River. The USCG ordered that helicopter, as
it traveled up the Pasquotank, to look for the Turners’ boat, an
activity that did not require the helicopter to deviate from its
flight path. The crew did not see the Turners’ boat while en
route to Elizabeth City.
6
Later that morning, the USCG conducted a series of
preliminary and extended communication searches (“PRECOMS” and
“EXCOMS,” respectively). These operations, in effect
information-gathering activities, included call-outs to the
Turners’ boat, an “Urgent Marine Information Broadcast”
requesting other boaters to contact the USCG with any
information, and calls and visits to marinas where the Turners
might have decided to tie up. The USCG concluded their PRECOM
and EXCOM searches at approximately 8:40 a.m. on July 5.
Shortly before 8:00 a.m., the USCG dispatched a 21-foot
utility boat from the Oregon Inlet Coast Guard Station. That
craft launched at approximately 9:15 a.m. and began searching
the area of Mann’s Harbor, one of the four places that Roger Sr.
gave as a possible location of the Turners. Meanwhile, the host
of the party the Turners had attended on July 4, aware of their
failure to return home, began retracing the Turners’ likely
return route up the Perquimans River. He discovered the
Turners’ boat, beached and empty, at approximately 9:00 a.m.
Upon learning of this discovery, the USCG reclassified the
incident from a “possible overdue” to an “overdue distress”
case, and launched an air and sea search for the Turners. From
the morning of July 5 through the evening of July 6, the USCG
deployed twelve manned search and rescue boats and planes, and
searched 173 square nautical miles. The USCG utilized the
7
Turners’ boat’s GPS when performing their search. The USCG
suspended its search activities on July 6 at 7 p.m.
During the night of July 4 and into the morning of July 5,
Ms. Turner tread water for nearly 12 hours, surviving by
clinging to crab pot buoys. She came ashore at about 9:20 a.m.
on July 5. The USCG, despite the extensive search efforts
described above, did not find Roger Jr.; his body washed ashore
two days later. The medical examiner listed Roger Jr.’s cause
of death as drowning but could not identity a precise time of
death.
II.
We review a district court’s decision granting summary
judgment de novo, applying the same legal standards as the
district court and viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party,
here the Turners. T-Mobile Ne. LLC v. City Council of Newport
News, 674 F.3d 380, 384-85 (4th Cir. 2012). Summary judgment is
appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
8
Ms. Turner’s claim arises under admiralty law. 2 In the
arena of tort law, general maritime law mirrors many principles
of traditional negligence law. See McMellon v. United States,
338 F.3d 287, 298 (4th Cir. 2003) (McMellon I), vacated en banc
on other grounds, 387 F.3d 329 (4th Cir. 2004). Ms. Turner
bears the burden of establishing that the USCG owed her and her
late husband an identifiable duty, that the USCG breached that
duty, and that the USCG’s breach of duty proximately caused harm
to the Turners. Id. Ms. Turner’s attempt to establish a prima
facie case falls short on several fronts.
The USCG’s enabling statute, 14 U.S.C. § 88, authorizes the
USCG to undertake rescue efforts, but does not impose any
affirmative duty to commence such rescue operations. See Hurd
v. United States, 34 F. App'x 77, 81 (4th Cir. 2002) (collecting
cases). But, “once the Coast Guard undertakes a rescue
2
Ordinarily, the USCG enjoys sovereign immunity in its
activities. The SIAA provides a limited waiver of sovereign
immunity. See Sagan v. United States, 342 F.3d 493, 497 (6th
Cir. 2003). Even with the waiver of immunity, the USCG cannot
be held liable for injuries arising from the performance of
discretionary functions. See McMellon v. United States, 387
F.3d 329, 338 (4th Cir. 2004) (McMellon II). The parties devote
a considerable portion of their briefs to the issue of sovereign
immunity, but we need not consider this issue because we find
that the USCG did not violate the relevant standard of care in
any action taken or decision made.
9
operation, it must act with reasonable care.” 3 Sagan, 342 F.3d
at 498 (citing Patentas v. United States, 687 F.2d 707 (3d Cir.
1982)). “Its actions are judged according to the so-called
‘Good Samaritan’ doctrine.” Id. “Under this doctrine, a
defendant [becomes] liable for breach of a duty voluntarily
assumed by affirmative conduct, even when that assumption of
duty was gratuitous.” Id. (citing Indian Towing Co. v. United
States, 350 U.S. 61 (1955)); see also, Thames Shipyard & Repair
Co. v. United States, 350 F.3d 247, 261 (1st Cir. 2003); Frank
v. United States, 250 F.2d 178, 180 (3d Cir. 1957).
The Good Samaritan doctrine, however, sets a high bar to
impose liability on a rescuer. The evidence must show that the
rescuer failed to exercise reasonable care in a way that
worsened the position of the victim. See Sagan, 342 F.3d at 498
(citing Myers v. United States, 17 F.3d 890, 903 (6th Cir.
1994)). “There are two ways in which a rescuer can worsen the
position of the subject of the rescue. The first is by
increasing the risk of harm to the person in distress. The
second is to induce reliance, either by the subject or other
3
Because the USCG has no duty to rescue, the law imposes no
standard of care until an attempted rescue commences. The
parties devoted much effort below, and considerable effort in
this Court, arguing over when the USCG’s attempted rescue began.
Because we find that the USCG did not violate the operative
standard of care at any time, we need not address the issue of
when the formal rescue attempt began.
10
potential rescuers, on the rescuer’s efforts.” Hurd, 34 F.
App'x at 84 (internal citations omitted); see also, Restatement
(Second) of Torts §§ 323, 324A, 327. The test is whether “the
risk was increased over what it would have been had the
defendant not engaged in the undertaking at all.” Sagan, 342
F.3d at 498.
The Turners have not shown that the USCG’s actions worsened
their position. Whatever happened to the Turners, the Coast
Guard did not “increase the risk of harm” that confronted the
unfortunate couple. In fact, the USCG did not intervene in
their situation at all until their boat was discovered grounded,
so it could hardly have worsened their position. Indeed, the
thrust of the plaintiff’s case is that the USCG should have done
something to alleviate the Turners’ predicament sooner. As we
noted above, the USCG was under no obligation to do so. Cf.
Hurd, 34 F. App'x at 81.
Nor did the USCG’s actions worsen the Turners’ position by
inducing reliance on the part of either the Turners or a third
party. Obviously, the Turners themselves never spoke with the
Coast Guard, and so could not have relied on representations by
the USCG.
Recognizing this problem, Ms. Turner points to the
discussion between a USCG command duty officer and an official
from NC Wildlife as evidence that the latter relied on the
11
USCG’s rescue efforts and so was dissuaded from commencing its
own rescue effort. The record does not support this claim. The
USCG did not represent to NC Wildlife that it would undertake a
rescue operation. In fact, the duty officer expressly told NC
Wildlife that the USCG was not preparing to launch search and
rescue operations. A NC Wildlife official testified that his
agency also would not have launched a search and rescue
operation at that time, regardless of the USCG’s actions,
because of both the dearth of actionable information and the
prevailing weather conditions.
In short, the USCG neither increased the danger facing the
Turners nor induced reliance on the part of either the Turners
or a third party. Accordingly, Ms. Turner cannot prove the
USCG breached its duty to the Turners, 4 and the district court
properly entered summary judgment on the Turners’ tort claims.
III.
The district court properly denied Ms. Turner’s motion for
sanctions based on spoliation. Spoliation is a rule of
4
An additional problem exists for Ms. Turner as
administratrix of her husband’s estate. The evidence does not
establish when Mr. Turner died. Roger Jr. could well have been
dead before the USCG even had a chance to try to rescue him.
Given this gap in the plaintiff’s evidence, the Coast Guard
could not have been held liable for Roger Jr.’s unfortunate
death.
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evidence, and the decision to impose sanctions for violations is
one “‘administered at the discretion of the trial court’” and
governed by federal law. Hodge v. Wal-Mart Stores, Inc., 360
F.3d 446, 450 (4th Cir. 2004) (quoting Vodusek v. Bayliner
Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995)). When reviewing
a district court’s ruling on a plaintiff’s request for a
spoliation inference, even on a grant of summary judgment, we
have held that the district court’s ruling “must stand unless it
was an abuse of the district court’s ‘broad discretion’ in this
regard.” Id. (citing Cole v. Keller Indus., Inc., 132 F.3d
1044, 1046-47 (4th Cir. 1998)). Ms. Turner, as the party
disputing the district court’s ruling, bears the burden of
establishing spoliation. See id. at 453.
A party seeking sanctions based on the spoliation of
evidence must establish, inter alia, that the alleged spoliator
had a duty to preserve material evidence. This duty arises “not
only during litigation but also extends to that period before
the litigation when a party reasonably should know that the
evidence may be relevant to anticipated litigation.” Silvestri
v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001).
Generally, it is the filing of a lawsuit that triggers the duty
to preserve evidence. Victor Stanley, Inc. v. Creative Pipe,
Inc., 269 F.R.D. 497, 522 (D. Md. 2010). Moreover, spoliation
does not result merely from the “negligent loss or destruction
13
of evidence.” Vodusek, 71 F.3d at 156. Rather, the alleged
destroyer must have known that the evidence was relevant to some
issue in the anticipated case, and thereafter willfully engaged
in conduct resulting in the evidence’s loss or destruction. See
id. Although the conduct must be intentional, the party seeking
sanctions need not prove bad faith. Id.Here, Ms. Turner says the USCG wrongfully destroyed audio
recordings of telephone calls to the Coast Guard by recycling
them and recording over them. The plaintiff, however, did
nothing to trigger a duty to preserve evidence on the part of
the USCG. She did not send the USCG a document preservation
letter, or any other correspondence threatening litigation.
After learning that Roger Jr. had gone overboard the night of
July 4, the USCG specifically reviewed the voice recordings for
that night the very next morning and discovered nothing. The
action of recycling the voice recordings was standard operating
procedure for the USCG. Without a warning of future litigation
or reason to believe that voice recordings devoid of a rescue
call would be relevant in any event, the Coast Guard had no
reason to change its standard routine. Ms. Turner has not
established that the USCG had a duty to preserve the audio
14
recordings, so the district court’s decision not to award
sanctions is clearly correct. 5
IV.
We review a grant of summary judgment in a FOIA claim de
novo. Hunton & Williams v. U.S. Dep’t of Justice, 590 F.3d 272,
276-76 (4th Cir. 2010). In this case, the plaintiff sought
certain documents from the USCG. The Coast Guard produced all
documents responsive to the request, but Ms. Turner argues that
the USCG must have other, additional records responsive to her
request.
A valid FOIA claim requires three components: the agency
must have (1) improperly (2) withheld (3) agency records.
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136, 150 (1980). “[D]istrict courts typically dispose of FOIA
cases on summary judgment before a plaintiff can conduct
discovery.” Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 544
(6th Cir. 2001).
Here, the district court concluded that the USCG conducted
a proper and reasonable search for records in response to the
5
Ms. Turner also attempts to state a tort claim for
spoliation. Spoliation of evidence, standing alone, does not
constitute a basis for a civil action under either federal or
admiralty law. See Silvestri, 271 F.3d at 590.
15
Turner’s FOIA request, and determined that the USCG had provided
the Turners with all such documents in its possession. The USCG
stated it did not withhold any responsive documents, and Ms.
Turner advanced no evidence to refute this contention.
The FOIA imposes limited duties on federal agencies.
“[FOIA] does not obligate agencies to create or retain
documents; it only obligates them to provide access to those
which it in fact has created and retained.” Kissinger, 445 U.S.
at 152. To this end, courts have held that FOIA does not
provide a remedy for “destruction of documents.” See Inman v.
Comm’r, 871 F. Supp. 1275, 1277 (E.D. Cal. 1994) (“The
destruction of documents in the normal course of an agency’s
business is not relevant to whether or not the agency has
complied with a FOIA request.”).
Recognizing the limitations of the FOIA, Ms. Turner argues
that the USCG’s failure to retain voice tapes and emails should
stand as proof that the USCG’s search for such responsive
documents was inadequate. This is illogical and incorrect. The
lack of responsive documents does not signal a failure to
search. The USCG’s diligence in this case is underscored by its
16
candid admission that it had recorded over its tape of phone
calls from the night of the accident. 6
FOIA required that the USCG satisfy its duty of production
by producing the responsive documents in the USCG’s possession
at the time of Ms. Turner’s FOIA request. The USCG did so. The
district court appropriately granted summary judgment to the
USCG on this claim.
V.
Ms. Turner argues the district court deprived her of due
process by permitting the USCG to file its summary judgment
motion more than twelve months after the deadline for filing
dispositive motions. We review a district court’s decisions
pertaining to the management of its own docket under an abuse of
discretion standard. Marryshow v. Flynn, 986 F.2d 689, 693 (4th
Cir. 1993).
6
On appeal, Ms. Turner emphasizes the USCG's failure to
search for a duplicate set of tapes that may have existed at the
USCG's District 5 Command Center in Virginia. The USCG reported
that it found no responsive recordings based on a search for
electronic recordings only at its Atlantic Beach facility in
North Carolina. The latter facility coordinated the USCG's
efforts with respect to the Turners. The FOIA officer did not
search District 5, nor did the Coast Guard initially disclose
the possible existence of a duplicate set of tapes at that
location. Nonetheless, the district court's grant of summary
judgment was proper because the FOIA officer had a reasoned
explanation for not searching the Virginia Command Center, and
FOIA does not require duplicative searches. See Rein v. U.S.
Patent & Trademark Office, 553 F.3d 353, 358 (4th Cir. 2009).
17
The de facto extension of time to file the motion lay
within the sound discretion of the district court, and we see no
reason to disturb the court’s action. The district court gave
Ms. Turner the opportunity to file a brief in opposition to the
USCG’s motion for summary judgment, and Ms. Turner did so. Her
due process rights were not violated. 7
VI.
For the reasons stated above, we affirm the judgment of the
district court.
AFFIRMED
7
Ms. Turner also contends that the district court erred
when it denied a joint motion for a court-hosted settlement
conference. The decision to conduct a settlement conference
pertains, again, to the district court’s management of its own
docket. Ms. Turner cannot show that the district court abused
its discretion in this matter.
18