Ferguson v. United States
| Decision Date | 25 July 2018 |
| Docket Number | Case No.: 15cv1253 JM (MDD) |
| Parties | MERLE RALPH FERGUSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Southern District of California |
Defendant United States of America ("the United States") moves the court for summary judgment or, in the alternative, partial summary judgment. (Doc. No. 59.) Plaintiff Merle Ralph Ferguson opposes. (Doc. No. 68.) Having carefully considered the matters presented, the court record, and the arguments of counsel, the court grants the United States' motion for summary judgment.
Plaintiff brings this suit against the United States for negligence under the Federal Torts Claims Act ("FTCA").
On August 30, 2012, District Judge Robert J. Jonker of the Western District of Michigan found Plaintiff in civil contempt for failure to produce certain financial records and submit to the opposing (private) party's debtor examination. (Doc. No. 59, Ex. C at 11-16.)1 On December 28, 2012, Judge Jonker issued a civil commitment order/bench warrant ("arrest warrant") and attached orders that clearly indicated Plaintiff's offense was one of civil contempt arising from a private action for breach of contract brought in diversity. (Doc. No. 59, Ex. C at 2-7.) Federal Rule of Civil Procedure 4.1(b) and United States Marshal Service ("USMS") Policy Directive 11.3 expressly preclude execution of an arrest warrant for civil contempt in a diversity action in California or anywhere else outside the state of Michigan (and 100 mile range). The arrest warrant here was issued on form AO 442. (Doc. No. 59, Ex. B.) Form AO 442 is used for criminal arrest warrants. (Doc. No. 59-2 ("Laney Decl.") ¶ 6.) Federal Rule of Criminal Procedure 4(c)(2) and USMS Policy Directive 8.3 allow for nationwide service of criminal arrest warrants.
In January 2013, Deputy U.S. Marshal ("DUSM") Perosky contacted Plaintiff to demand that he voluntarily travel to Michigan and surrender to USMS custody. Plaintiff's counsel asserts that, beginning in January 2013, on various occasions prior to Plaintiff's arrest, Plaintiff's counsel contacted DUSM Perosky and conveyed that federal law unambiguously prohibits service of the civil commitment order upon Plaintiff in California. (Doc. No. 69, Exs. 7-8.) DUSM Perosky declares that, prior to Plaintiff's arrest, he was not aware of any geographic limitation that would prohibit execution of the arrest warrant. (Doc. No. 59-3 ("Perosky Decl.") ¶ 13.) According to DUSM Perosky, Plaintiff's counsel never raised any limitations on the arrest warrant during their multiple conversations. (Perosky Decl. ¶ 17.) On May 21, 2013, DUSMs Perosky and Hetherington requested assistance from USMS, Southern District of California, in locating and arresting Plaintiff.
On September 13, 2013, DUSM Laney and others entered Plaintiff's residence in Encinitas, California, and arrested him. Plaintiff was transported to GEO Corrections Western Region Detention Facility in San Diego, California, where he was detained for approximately fifty days. On September 17, 2013, a detention hearing was held beforeMagistrate Judge William V. Gallo. Assistant United States Attorney ("AUSA") Michael Wheat contested Plaintiff's bail request, and Judge Gallo ordered Plaintiff to be held in custody without bail pending a removal/ID hearing. On October 24, 2013, Plaintiff filed a petition for writ of habeas corpus, challenging his illegal arrest and detention for lack of jurisdiction. On November 1, 2015, Judge Gallo held an unscheduled telephonic hearing and ordered Plaintiff's immediate release from custody.
In his complaint, Plaintiff alleged the following tort claims against the United States under the FTCA: (1) false imprisonment, (2) negligence, (3) assault, (4) battery, and (5) intentional infliction of emotional distress. Plaintiff also alleged Fourth and Fifth Amendment violations against DUSMs Hetherington, Perosky and Laney in their capacity as federal officers within the meaning and scope of Bivens. After motions to dismiss brought by the United States and the individual defendants, only the negligence claim against the United States remains.
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But Federal Rule of Civil Procedure 56 contains "no express or implied requirement . . . that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original).
In response to a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal citations omitted). In other words, the nonmoving party may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045(9th Cir. 1989). The court must examine the evidence in the light most favorable to the nonmoving party, United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), and any doubt as to the existence of an issue of material fact requires denial of the motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The United States objects to Plaintiff's Exhibits 7, 8, and 9. (Doc. No. 70.)
The United States objects to all three documents as lacking authentication because Plaintiff did not submit a declaration or any other means of authenticating Exhibits 7-9. However, Plaintiff subsequently filed a declaration by his counsel ("Wright Declaration") authenticating the exhibits at issue. (Doc. No. 73 ("Wright Decl.").) The United States did not object to the late filing of the Wright Declaration. Robert Wright, Plaintiff's counsel, demonstrates personal knowledge of each contested exhibit's contents as the author of Exhibits 7 and 9 and as the billing recipient of the telephone account statement generated by AT&T in Exhibit 8. Therefore, the court overrules the United States' objections to these exhibits for lack of authentication.
The United States' evidentiary objections "are boilerplate and devoid of any specific argument or analysis as to why any particular exhibit or assertion in a declaration should be excluded," (see Doc. No. 70), which provides a basis for the court to overrule them. United States v. HVI Cat Canyon, Inc., 213 F. Supp. 3d 1249, 1257 (C.D. Cal. 2016); see also Amaretto Ranch Breedables v. Ozimals, Inc., 907 F.Supp.2d 1080, 1081 (N.D. Cal. 2012) () (internal citations omitted). However, assuming the United States had raised proper evidentiary objections, the court overrules the objections to Exhibits 7-8 and sustains the objection to Exhibit 9.
///
///
Exhibit 7 to Plaintiff's opposition consists of a copy of Mr. Wright's call log containing notes about his communications with DUSM Perosky before and after Plaintiff's arrest. (Wright Decl. ¶ 4; Doc. No. 69, Ex. 7.) Plaintiff offers the call log as evidence that his attorney informed DUSM Perosky about the geographical limitation on the arrest warrant multiple times before Plaintiff's arrest. Although the United States objects to the call log as inadmissible hearsay, it fits within the business records exception.
Under this exception, a document is admissible if its proponent shows: (1) that the record was made at or near the time of the event; (2) that the record was made by or from information transmitted by a person with knowledge; (3) that the record was kept in the course of a regularly conducted activity of a business or organization; and (4) that it was a regular practice of that business or organization to make such a record. Fed. R. Evid. 803(6). For a business record to be admissible, the proponent must show two foundational facts: "(1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) the record is kept in the course of regularly conducted business activity." Sea-Land Serv., Inc. v. Lozen Intern., LLC, 285 F.3d 808, 819 (9th Cir. 2002).
Here, Plaintiff has established these foundational facts through the Wright Declaration. Mr. Wright declares that the notes in the call log "were taken contemporaneously by [him] on the dates indicated therein and maintained in the ordinary course of business." (Wright Decl. ¶ 4.) Through his declaration, Mr. Wright has established that he made the record the same day on which the phone calls took place, he had personal knowledge as a party to the phone call, and that he maintains such call logs in the ordinary course of his business at the Law Office of Robert W. Wright. Therefore, the requirements of Federal Rule of Evidence 803(6) are satisfied and the call log is admissible under the business record exception to hearsay.
Accordingly, the court overrules the United States' evidentiary objection to Exhibit 7.
Exhibit 8 contains partially redacted telephone account statements generated by AT&T wireless for Mr. Wrights mobile phone account. (Wright Decl. ¶ 5; Doc. No. 69, Ex. 8.) Plaintiff offers the AT&T phone record as evidence that Mr. Wright called DUSM Perosky on various occasions prior to Plaintiff's arrest. The...
To continue reading
Request your trial