United States District Court, D. Maine
For SEA HUNTERS LP, Plaintiff: MARSHALL J. TINKLE, LEAD ATTORNEY, HIRSHON LAW GROUP, PC, PORTLAND, ME.
For MISSION RECOVERY LLC, Intervenor Plaintiff: KENNETH I. DENOS, LEAD ATTORNEY, LAW OFFICE OF KENNETH I., DENOS, PC, DRAPER, UT; SETH S. HOLBROOK, HOLBROOK & MURPHY, BOSTON, MA.
For SECRETARY OF STATE FOR TRANSPORT OF THE UNITED KINGDOM, Claimant: TIMOTHY P. SHUSTA, LEAD ATTORNEY, PHELPS DUNBAR LLP, TAMPA, FL; MICHAEL KAPLAN, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP, PORTLAND, ME.
For SEA HUNTERS LP, Custodian: MARSHALL J. TINKLE, HIRSHON LAW GROUP, PC, PORTLAND, ME.
MEMORANDUM DECISION AND ORDER ON MOTION TO STRIKE AND RECOMMENDED DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR PRELIMINARY INJUNCTION
John H. Rich III, United States Magistrate Judge.
In this admiralty action arising from efforts to salvage the wreck and cargo of The S.S. Port Nicholson (" Port Nicholson"), a merchant ship sunk by German torpedoes in June 1942, plaintiff Sea Hunters, LP (" Sea Hunters") and intervening plaintiff Mission Recovery, LLC (" Mission Recovery") cross-move for summary judgment on Mission Recovery's intervening complaint, in which it seeks to replace Sea Hunters as salvor-in-possession of the wreck. See Plaintiff's Motion for Summary Judgment on Intervening Complaint (" Plaintiff's S/J Motion") (ECF No. 245); Mission Recovery LLC's Motion for Summary Judgment (" Intervenor's S/J Motion") (ECF No. 244); Intervening Complaint (Verified) (" Intervening Complaint") (ECF No. 162). Mission Recovery also requests oral argument on its motion for summary judgment, see Intervenor's S/J Motion at 19, and moves for a preliminary injunction barring Sea Hunters from conducting ongoing salvage activities pending the court's resolution of the cross-motions for summary judgment, see Mission Recovery LLC's Motion for a Stay and Preliminary Injunction (ECF No. 246).
The Secretary of State for Transport of the United Kingdom (" UK DfT"), who claims ownership of the vessel and her cargo, see ECF No. 53, has filed responses to each of the cross-motions, arguing, inter alia, that they should be denied on the basis that they are procedurally improper, see UK DfT Response to Plaintiff's Motion for Summary Judgment on the Intervening Complaint (" UK DfT Response/Plaintiff") (ECF No. 266) at 2-7; UK DfT Response to Mission Recovery Motion for Summary Judgment on the Intervening Complaint (" UK DfT Response/Intervenor") (ECF No. 262) at 4-16. Sea Hunters moves to strike the UK DfT's filings related to its motion for summary judgment. See Plaintiff's Motion To Strike (" Motion To Strike") (ECF No. 280).
I deny Mission Recovery's request for oral argument because the parties' extensive papers offer a sufficient basis on which to decide the cross-motions without additional delay, grant the Motion To Strike in part, with respect to those portions of the UK DfT's opposing brief that bear on the merits of the cross-motions for summary judgment, as well as statements of opposing and additional facts and record materials filed in support thereof, and otherwise deny it, and, for the reasons that follow, recommend that the court deny the cross-motions for summary judgment and deem the motion for a preliminary injunction moot.
I. Threshold Issues
A. Motion To Strike
Sea Hunters moves to strike the UK DfT's brief and statements of material facts filed in response to its motion for summary judgment, together with supporting documents, on the basis that, although the UK DfT expressed an intention at the parties' Local Rule 56(h) conference to oppose Sea Hunters' motion only on jurisdictional/legal grounds, he filed a brief that primarily joins issue on the merits, is at best a distraction from the issues that have been properly raised, and leaves the court with little of true substance. See Motion To Strike at 1-2.
Much of the UK DfT's responsive brief, and the entirety of his opposing and additional statements of material facts and supporting materials, bear on the merits of the cross-motions for summary judgment. See UK DfT Response/Plaintiff at 9-18; UK DfT Response to Plaintiff's Statement of Material Facts in Support of Its Motion for Summary Judgment on the Intervening Complaint (" UK DfT's Opposing SMF/Plaintiff") (ECF No. 266-1), attached thereto; UK DfT Statement of Material Facts in Support of Its Opposition to Plaintiff's Motion for Summary Judgment on the Intervening Complaint (" UK DfT's Additional SMF/Plaintiff") (ECF No. 266-2), attached to UK DfT Response/Plaintiff; Exhibits filed at ECF Nos. 268-75. While the UK DfT did disclose his intention to file memoranda, opposing statements of material facts, and record materials bearing on the cross-motions for summary judgment, he expressed an intention at the Local Rule 56(h) conference to argue procedural/legal issues and did not make clear that he meant to address the merits of those motions, including the existence of factual disputes. See UK DfT Response to Pre-Filing Memo of Mission Recovery, LLC (ECF No. 227); UK DfT Response to Pre-Filing Memo of Plaintiff (ECF No. 228); Report of Pre-Filing Conference Under Local Rule 56(h) (ECF No. 240) at 4-6.
To permit a party unilaterally to exceed the scope of contemplated summary judgment practice obviously undercuts the utility of a Local Rule 56(h) conference. Even assuming that there might be circumstances in which the court might be inclined to overlook such a transgression, I decline to do so here. As Sea Hunters observes, see Motion To Strike at 3-4, the dispute sought to be resolved on summary judgment is between itself and Mission Recovery. Indeed, the UK DfT says that he takes no position on the merits. See, e.g., UK DfT Response in Opposition to Sea Hunters' Motion To Strike [DE 280] (ECF No. 285) at 7 n.4. The UK DfT's brief and statements of material facts needlessly complicate the resolution of the cross-motions while adding little of value.
That said, I decline to strike the portion of the UK DfT's opposing brief bearing on the procedural/legal points that he contemplated raising, the substance of which runs from page 1 through the paragraph on page 9 ending, " . . . cannot be decided in the context of a motion for summary judgment." UK DfT Response/Plaintiff at 1-9. It is essential that the court determine whether it has jurisdiction to hear the cross-motions and whether they properly are brought pursuant to Federal Rule of Civil Procedure 56, and the UK DfT's brief assists in that analysis.
For these reasons, I grant the Motion To Strike in part, with respect to (i) the UK DfT's Opposing SMF/Plaintiff, (ii) the UK DfT's Additional SMF/Plaintiff, (iii) the exhibits filed at ECF Nos. 268-75, (iv) that portion of the UK DfT Response/Plaintiff commencing at the bottom of page 9 with the paragraph, " To the extent Sea Hunters' motion is regarded . .., " through the end of the of the full paragraph on page 18, ending with, " unforeseen circumstances will be proposed[, ]" and (iv) that portion of the UK DfT Response/Plaintiff containing item (4) on page 19. The Motion To Strike is otherwise denied.
B. Appropriateness of Cross-Motions on the Intervening Complaint
The UK DfT contends that the court should deny the cross-motions for summary judgment or, alternatively, treat them as motions for reconsideration of its prior order(s) on the ground that they are procedurally inappropriate. See UK DfT Response/Plaintiff at 2-9, 18-19; UK DfT Response/Intervenor at 2-17. He contends that the court lacks subject matter jurisdiction over the claims made by Mission Recovery in the Intervening Complaint because:
1. Mission Recovery has neither caused the arrest of the Port Nicholson in rem nor salvaged any property from the Port Nicholson and brought it into this district. See UK DfT Response/Intervenor at 5-6.
2. Mission Recovery has not served the Port Nicholson with process in rem or served any other party with process in personam, as a result of which there are no actual opposing parties and no actual cause of action upon which the court can enter judgment. See id . at 2.
3. Sea Hunters is not a party to the Intervening Complaint for the additional reason that the complaint is structured as a suit in rem against the Port Nicholson to foreclose on a maritime lien and advances no claim in personam against Sea Hunters. See UK DfT Response/Plaintiff at 5.
In a similar vein, he reasons that the Intervening Complaint cannot be the subject of motions for summary judgment pursuant to Federal Rule of Civil Procedure 56, there being no " party" that can move for summary judgment and no " claim or defense" as to which summary judgment can be sought. See UK DfT Response/Intervenor at 7; UK DfT Response/Plaintiff at 5; Fed.R.Civ.P. 56(a) (" A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought.").
Nonetheless, I am satisfied that the court has jurisdiction over the subject matter presented on the cross-motions for summary judgment and that the parties have properly proceeded pursuant to Rule 56.
First, as both Mission Recovery and Sea Hunters point out, see Motion To Strike at 7-8; Mission Recovery LLC's Reply to Sea Hunters' Opposition and the Response of the UK DfT to Mission Recovery's Motion for Summary Judgment (" Intervenor's S/J Reply") (ECF No. 277) at 7, they are parties to this case. As Mission Recovery recognizes in the caption of its Intervening Complaint, Sea Hunters is the plaintiff, see Intervening Complaint at 1, and Mission Recovery became a party upon being permitted to intervene, see Order on Motion To Intervene (ECF No. 161) at 11. The Intervening Complaint is not a stand-alone complaint but, rather, part of the fabric of this case. Both Sea Hunters and the UK DfT, who are represented by counsel, were served that complaint through ECF. See Block v. Toyota Motor Corp., 5 F.Supp.3d 1047, 1063 n.8 (D. Minn. 2014) (noting that defendants were served complaint-in-intervention through court's electronic filing system).
Second, Mission Recovery requests, inter alia, relief in the form of an order " that Sea Hunters no longer possesses an exclusive franchise to salvage the PORT NICHOLSON, and to award salvor in possession status to [Mission Recovery] for the reasons provided herein." Intervening Complaint ¶ 28. The cross-motions effectively seek summary judgment as to this request. See Plaintiff's S/J Motion at 2; Intervenor's S/J Motion at 1-2. By virtue of its already-established jurisdiction over the Port Nicholson, the court has jurisdiction over this claim. See, e.g., Cobb Coin Co. v. Unidentified Wrecked & Abandoned Sailing Vessel, 525 F.Supp. 186, 197 (S.D. Fla. 1981) (" [O]nce a salvor who discovers and brings up an artifact from an identifiable wreck site initiates suit by taking that object into federal court, the court acquires jurisdiction not only to adjudicate the disposition of the article already within its territorial jurisdiction, but maritime jurisdiction (based on in personam principles) to adjudicate disputes between competing salvors[.]").  For the same reasons, Sea Hunters and Mission Recovery properly seek summary judgment as to this claim pursuant to Rule 56. See Fed.R.Civ.P. 56(a).
The cross-motions for summary judgment, therefore, are proper.
II. Applicable Legal Standards
A. Federal Rule of Civil Procedure 56
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." Id.; Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). " A dispute is genuine if 'the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Johnson v. University of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). " A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must " produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis omitted)); Fed.R.Civ.P. 56(c). " As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
" This framework is not altered by the presence of cross-motions for summary judgment." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). " [T]he court must mull each motion separately, drawing inferences against each movant in turn." Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996) (" Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se . Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. As always, we resolve all factual disputes and any competing, rational inferences in the light most favorable to the [nonmovant].") (citations omitted).
B. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id . The nonmoving party must then submit a responsive " separate, short, and concise" statement of material facts in which it must " admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id . The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id . The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must " admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id .
Local Rule 56 directs that " [f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(f). In addition, " [t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has " no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) (" If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]").
III. Plaintiff's S/J Motion
A. Factual Background
The parties' statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Mission Recovery as the nonmovant, reveal the following.
In April 2011, Daniel E. Stochel purchased five " units" in Deep Sea Hunters, LP (" Deep Sea") for $200, 000. Plaintiff's Statement of Material Facts in Support of Its Motion for Summary Judgment (" Plaintiff's SMF") (ECF No. 245-1), attached to Plaintiff's S/J Motion, ¶ 1; Mission Recovery, LLC's Statement of Material Facts in Dispute of Sea Hunters' Motion for Summary Judgment (" Intervenor's Opposing SMF") (ECF No. 259) ¶ 1. Stochel correctly understood Deep Sea to be the " secondary offering" for investment in Sea Hunters' salvage project for the Port Nicholson after Sea Hunters became fully subscribed. Plaintiff's SMF ¶ 2; Video Conference Deposition of Daniel E. Stochel (" Stochel Dep."), Exh. A (ECF No. ...