Hornof v. United States
| Docket Number | 2:19-cv-00198-JDL |
| Decision Date | 31 August 2023 |
| Parties | JAROSLAV HORNOF, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
Plaintiffs Jaroslav Hornof, Damir Kordic, and Lukas Zak filed this action against the United States of America, the United States Department of Justice, the United States Coast Guard, and the United States Department of Homeland Security (collectively, the “Government”), and nine federal officers (the “Individual Defendants”).[1] The Individual Defendants moved to dismiss (ECF No. 21) the Plaintiffs' Amended Complaint (ECF No. 3) and the Government filed a Motion to Dismiss, or alternatively, for Summary Judgment (ECF No. 23).[2] The Court granted (ECF No. 61) the Individual Defendants' Motion to Dismiss, and granted in part the Government's motion, allowing the following claims to proceed under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C.A. §§ 2671-80 (West 2023): two false arrest and false imprisonment claims; an intentional infliction of emotional distress claim; and an abuse of process claim arising from the alleged conduct of Special Agent Mark Root. The Plaintiffs also seek declaratory relief on the surviving claims.
The Government moved for summary judgment on July 20, 2022 (ECF No. 158), and the Court heard oral argument on the motion (ECF No. 180) in November 2022. On March 10, 2023, I requested additional briefing from the parties on two issues related to this Court's subject-matter jurisdiction (ECF No. 185).
Before turning to the material facts, I first address several disputes and deficiencies related to the parties' written submissions.
The Plaintiffs submitted, along with their written opposition to the summary judgment motion, the declarations of Attorney Bruce Merrill, see ECF No. 164-7, updated ECF No. 179, and Elaine Akers, see ECF No. 164-3. Merrill's declaration is offered in support of the Plaintiffs' argument that the Government had, at the time of the events giving rise to the Plaintiffs' claims, a policy or practice of negotiating surety agreements in bad faith to intentionally detain foreign crewmembers without their consent. This, the Plaintiffs contend, supports their position that the Government knew-or should have known-that the Plaintiffs did not voluntarily consent to disembarking their vessel and remaining in the United States.
The second declaration is that of Elaine Akers, who, according to her declaration, was previously employed as a full-time employee, and now works part-time, as a paralegal and firm administrator at the offices of the Plaintiffs' attorneys' law firm, Thompson, MacColl & Bass, LLC, P.A. Her declaration serves several apparent purposes. First, it seeks to lay a foundation for various Exhibits. Second, it seeks to show that foreign crewmembers, whose testimony is required in cases involving the International Convention for the Prevention of Pollution from Ships (“MARPOL”) and the Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C.A. §§ 1901-15 (West 2023), generally return for trial or willingly provide deposition testimony without being detained pursuant to material witness arrest warrants. Third, it seeks to demonstrate that foreign crewmembers who are detained as material witnesses experience emotional distress and trauma. Notably, neither Merrill nor Akers has been identified by the Plaintiffs as expert witnesses offering expert opinions.
The Government objects to the Court's consideration of both declarations, arguing that it is prejudiced by the fact that neither Merrill nor Akers was included in the Plaintiffs' pretrial witness disclosure list required by the Court's scheduling order,[3] and that the declarations were neither prepared nor disclosed by the Plaintiffs until after the close of discovery and after the Government moved for summary judgment. The Government also challenges the declarations on substantive grounds, arguing that ECF No. 172 at 1-2. As to Akers's declaration, the Government argues that Akers does not have “first-hand knowledge sufficient to authenticate most, if not all, of the exhibits attached to [her declaration].”[4] ECF No. 172 at 2.
The Plaintiffs have not offered reasons in their responsive filings that justify either the late disclosure of Merrill and Akers as witnesses or the late submission of their declarations. Instead, following the oral argument on summary judgment, the Plaintiffs, without having sought leave of Court, submitted a Supplemental Memorandum (ECF No. 181) regarding the admissibility of Merrill's declaration and its relevance to their theory that the Government has a general practice of negotiating surety agreements in bad faith.
The Plaintiffs' late, unexplained production of the Merrill and Akers declarations does not comply with Fed.R.Civ.P. 26(a)(1)(A)(i), which requires a party to “provide to the other parties . . . the name . . . of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses.” A party is also required to supplement its disclosures promptly “if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” Fed.R.Civ.P. 26(e)(1)(A). If a party fails to make timely disclosures, the “party is not allowed to use that information or witness to supply evidence on a motion.” Fed.R.Civ.P. 37(c)(1). See Santiago-Diaz v. Laboratorio Clinico YDe Referenda Del Este, 456 F.3d 272, 276 (1st Cir. 2006) .
The Plaintiffs did not name Merrill or Akers in their initial pretrial disclosures list, which was due, after various amendments to the scheduling order, no later than December 28, 2020. The declarations were not submitted until August 31, 2022, well after the discovery deadline of January 14, 2022.[5] In addition, the declarations were submitted more than one month after the Government moved for summary judgment, and more than two months after the Government submitted the Stipulated Record on June 28, 2022.
Moreover, the late-filed declarations are deficient. Federal Rule of Civil Procedure 56(c)(4) requires that declarations used to support or oppose a motion for summary judgment “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Courts may disregard inadmissible portions of declarations, keeping in mind that “personal knowledge is the touchstone.” Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001). “[R]equisite personal knowledge must concern facts as opposed to conclusions, assumptions, or surmise,” id. at 316 (citing Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999)), and “[i]t is apodictic that an ‘affidavit . . . made upon information and belief . . . does not comply with Rule 56(e),'” Sheinkopf v. Stone, 927 F.2d 1259, 1271 (1st Cir. 1991) (quoting Automatic Radio Mfg., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1949)). In assessing the record on summary judgment, the Court will “afford no evidentiary weight to ‘conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'” Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Rogan v. City of Bos., 267 F.3d 24, 27 (1st Cir. 2001)).
Merrill's declaration is based largely on his personal experience as an attorney representing crewmembers and vessel owners in MARPOL cases unrelated to this case. For example, he states:
I know the government's practice is to refuse to involve counsel for crewmembers or the crewmembers themselves in the negotiations for agreements on security or for the terms of their detention. The government's practice is to negotiate exclusively with vessel interests for agreements require[ing] the crewmembers to disembark and stay in this country . . . even if the government knows the crewmembers have not authorized anyone but their counsel to discuss arrangements for the crewmembers to stay in this country.[6]
ECF No. 179 at 2, ¶5. Merrill's declaration mentions a specific instance in which he represented clients who were held in custody for six months pursuant to an agreement and asserts his “confiden[ce] that if the crewmembers had not had competent counsel, they would have been held much longer.” ECF No. 179 at 4, ¶ 16. He also claims that he knows of other cases where “foreign crewmembers were held under agreements on security for a year or more, without ever being called as a witness in any proceeding and without ever appearing before any judicial officer.” ECF No. 179 at 4, ¶ 17. He does not offer facts that would establish whether his experience is representative of most or all MARPOL cases, or facts that suggest he has personal knowledge about the government's use of surety agreements beyond the cases in which he was involved.[7]
Merrill's declaration makes only two statements related specifically to this case, both of which appear to be based...
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