Jones v. Secord

• Decision Date: 06 July 2012
• Docket Number: No. 11–1576.,11–1576.
• Citation: 82 Fed.R.Serv.3d 1277,684 F.3d 1
• Parties: Gail JONES, in her Capacity as Executrix of the Estate of Gary Jones, Plaintiff, Appellant, v. Lawrence SECORD, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

684 F.3d 1

82 Fed.R.Serv.3d 1277

Gail JONES, in her Capacity as Executrix of the Estate of Gary Jones, Plaintiff, Appellant,

v.Lawrence SECORD, Defendant, Appellee.

No. 11–1576.

United States Court of Appeals,First Circuit.

Heard June 5, 2012.

Decided July 6, 2012.

Roberto Tepichin, with whom Michael R. Perry, Ryan E. Ferch and Murphy & King, were on brief, for appellant.

Anthony M. Campo, with whom Mark W. Shaughnessy, Andrew B. Ranks and Boyle, Shaughnessy & Campo, P.C., were on brief, for appellee.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

SELYA, Circuit Judge.

This case arises out of the tragic death of the plaintiff's decedent, Gary Jones, who was shot and killed by a man wielding a stolen handgun. In her federal court complaint, the plaintiff claimed that the gun owner's negligent storage of the weapon and his failure timely to report its theft proximately caused the decedent's death. The district court rejected these claims and granted summary judgment in favor of the gun owner. Jones v. Secord, No. 10–146, 2011 WL 1557883 (D.N.H. Apr. 26, 2011). The plaintiff appeals. We affirm.

I. BACKGROUND

We summarize the relevant facts in the light most favorable to the party opposing summary judgment (here, the plaintiff). See Foote v. Town of Bedford, 642 F.3d 80, 81 (1st Cir.2011).

For the last thirty years, the defendant, Lawrence Secord, has owned a hunting camp in Wentworth Location, New Hampshire. The camp is used as a base for hunting and fishing, and the defendant has routinely made it available to family members.

The camp includes a cabin that is thirty-eight feet long by sixteen feet wide. The cabin is normally locked when unoccupied—but a key is hidden on the property and family members know of its whereabouts.

The defendant kept a revolver hidden under the base of a water-heater platform inside the cabin. The record is empty as to whether family members were aware of this hiding place, but the ammunition for the handgun was stored in plain sight.

Until he was seventeen years old, the defendant's grandson, Michael Woodbury, was among the family members who regularly visited the camp. He would go there to hunt and fish with his grandfather and his father. These visits ceased abruptly around June of 1994, when Woodbury offended his grandfather by cancelling a planned fishing trip. From that time forward, Woodbury was not welcome at the camp and, for aught that appears, did not go there.

Soon after his banishment, Woodbury committed a series of felonies (including bank robbery and breaking and entering) that resulted in his incarceration. By May of 2007, he was out of prison and had been helping his father build a house in Sebago, Maine. At that point, he had not spoken to the defendant for approximately ten years. He nonetheless showed up that month unannounced at the defendant's principal residence in Scarborough, Maine. The defendant received him coldly, and Woodbury departed minutes after his arrival. That was the last that the defendant saw Woodbury until after the plaintiff's decedent was murdered.

Toward the end of June in 2007, the defendant's son, who had recently visited the hunting camp, told the defendant that he had accidentally left a mousetrap outside of the cabin. On June 28, the defendant asked a friend, Sarah Barton, to go to the camp, and she went there that night. Nobody was around, but sheets were draped over the windows and a radio was playing. According to Barton, she peered through a window, spied what she thought was the wayward mousetrap, and departed.¹

Barton did not immediately report what she had seen to the defendant because she assumed that the defendant's son had left the camp hurriedly and she did not want to cause trouble. She returned to the camp the next day. This time she entered the cabin through a door that was locked but not properly shut, turned off the radio, and retreated. The interior of the cabin appeared to be clean and in good order.

At a family gathering in Scarborough on July 1, 2007, Barton told the defendant about the sheets on the windows of the cabin. The defendant called his son's girlfriend, who disavowed any knowledge of the situation. The defendant and Barton were entertaining out-of-town guests and did not go to the camp until July 3.

When they arrived, they found that the cabin had been trashed, a rear window had been broken, and an unknown intruder had strewn garbage and debris throughout the cabin. They cleaned up the mess and left without calling the authorities.

After arriving home, the defendant learned that his estranged grandson, Woodbury, had been accused of murdering three people during a robbery on July 2. It subsequently became clear that Woodbury had been the intruder who broke into the cabin, that he had found and taken the hidden revolver, and that he had used the revolver to commit the murders.

In due course, the plaintiff, in her capacity as the executrix of the estate of Gary Jones (one of the murder victims), brought suit against the defendant in the United States District Court for the District of New Hampshire. She invoked diversity jurisdiction based upon the defendant's Maine citizenship, her decedent's Massachusetts citizenship, and an amount in controversy exceeding $75,000. See28 U.S.C. §§ 1332(a), 1332(c)(2); see also Quincy V, LLC v. Herman, 652 F.3d 116, 120 (1st Cir.2011) (explaining that for diversity purposes, the citizenship of a decedent is imputed to his personal representative).

In her complaint, the plaintiff alleged that the defendant was negligent in failing both adequately to secure the revolver and promptly to report its theft. After a ten-month period of pretrial discovery, the district court granted summary judgment in favor of the defendant. See Jones, 2011 WL 1557883, at *1–2. The court concluded that no liability attached for a failure to secure the revolver because no legally cognizable duty was owed; under New Hampshire law, “individuals ordinarily are not subjected to liability for the criminal acts of third parties.” Id. at *1. The court rejected the plaintiff's failure-to-report claim on the basis of what the court characterized as an undisputed factual record. See id. at *1 & n. 2. This timely appeal followed.

II. ANALYSIS

A trial court's entry of summary judgment engenders de novo appellate review. See Harrington v. Aggregate Indus.–Ne. Region, Inc., 668 F.3d 25, 30 (1st Cir.2012). The court of appeals, like the trial court, must take the facts in the light most congenial to the nonmoving party, resolve any evidentiary conflicts in that party's favor, and draw all reasonable inferences to her behoof. Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 396 (1st Cir.2012). The court of appeals is not limited to the district court's rationale, but may affirm on any independent ground made manifest by the record. González–Droz v. González–Colón, 660 F.3d 1, 9 (1st Cir.2011).

Before us, the plaintiff advances both procedural and substantive arguments. We group the arguments under those headings and address them sequentially.

A. Procedural Arguments.

To place the plaintiff's procedural arguments into perspective, we rehearse the travel of the case. The plaintiff sued on April 19, 2010, the defendant answered the complaint, and the district court entered a scheduling order on June 22, 2010. SeeFed.R.Civ.P. 16(b). This order set a deadline of April 1, 2011, for both the completion of discovery and the filing of any remaining dispositive motions.

On March 1, 2011, the defendant moved for summary judgment. Three days later, the United States District Court for the District of Massachusetts, acting at the behest of the plaintiff, directed a subpoena to a non-party, Hanover Insurance Group. SeeFed.R.Civ.P. 45(a)(2)(C). This subpoena required Hanover to produce certain statements made by the defendant to it. In particular, the subpoena sought statements indicating when the defendant became aware of the theft of the handgun. In support, plaintiff's counsel represented that a Hanover claims adjuster had previously informed him that the defendant learned of the theft on June 30, 2007.

Both the defendant and Hanover asked the New Hampshire federal district court to quash the subpoena. The plaintiff responded on March 31, 2011, arguing that the court below lacked authority to quash the subpoena because a different district court had issued it. The plaintiff filed her opposition to the summary judgment motion that same day.

On April 22, 2011, the district court referred the discovery dispute to a magistrate judge. See28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Four days later, the court, without entertaining oral argument, granted the pending motion for summary judgment. Jones, 2011 WL 1557883, at *1–2. At that juncture, the magistrate judge had taken no action on the discovery dispute, and the subpoenaed documents had not been produced.

1. The Unadjudicated Discovery Dispute. The plaintiff's chief procedural argument posits that the district court abused its discretion when it decided the summary judgment motion while the discovery dispute was outstanding. This argument, however, overlooks the provisions of Federal Rule of Civil Procedure 56(d).²

Rule 56(d) provides in pertinent part that if a party opposing summary judgment shows “that, for specified reasons, it cannot present facts essential to justify its opposition,” the court may grant appropriate relief. In short, Rule 56(d) affords a safety net for parties that need more time to gather facts essential to resist a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (explaining that “[a]ny potential problem with [a] premature [motion for summary judgment] can be adequately dealt with under [this rule]”); Rivera–Torres v. Rey–Hernández, 502 F.3d 7, 10 (1st Cir.2007) (similar). This safeguard, when properly invoked, serves as a way of ensuring that judges will not “swing[ ]...