United States v. Egan Marine Corp.
| Decision Date | 09 August 2011 |
| Docket Number | Case No. 08 C 3160. |
| Parties | UNITED STATES of America, Plaintiff, v. EGAN MARINE CORPORATION, in personam, Motor Vessel Lisa E, in rem, Tank Barge EMC–423, in rem, Defendants.Egan Marine Corporation, Defendant/Third–Party Plaintiff, v. Exxon Mobil Corporation and ExxonMobil Oil Corporation, Third–Party Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION TEXT STARTS HERE
Stephen R. Campbell, Robert Emmett Kelly, U.S. Department of Justice, Washington, DC, AUSA, Eric S. Pruitt, United States Attorney's Office (NDIL), Chicago, IL, for Plaintiff.
Christopher Alan Abel, David Harlan Sump, Troutman Sanders LLP, Norfolk, VA, Christopher Howard White, Troutman
Sanders LLP, John P. O'Malley, Thomas William Mulcahy, Schuyler Roche & Crisham, P.C., Edward B. Ruff, III, Michael Patrick Turiello, Mimi Y. Kim, Natalia M. Delgado, Pretzel & Stouffer, Chtd., Kevin Brian Duckworth, Greensfelder Hemker &Gale PC, Chicago, IL, David Ralph Anderson, Attorney At Law, Lemont, IL, Clark W. Hedger, David J. Simmons, Kevin Brian Duckworth, Ryan J. Gavin, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Defendant/Third–Party Plaintiff.
Before the Court are four motions, two of which are dispositive: (1) Defendant/Third Party Plaintiff Egan Marine Corporation's (hereinafter, “EMC”) Motion to Dismiss; (2) EMC's Motion to Strike Plaintiff United States of America's (hereinafter, the “Government”) Expert Witnesses; (3) Third–Party Defendants Exxon Mobil Corporation and ExxonMobil Oil Corporation's (hereinafter, “Exxon”) Motion for Summary Judgment; and (4) EMC's Motion to Strike Portions of Exxon's Statement of Material Facts.
In 1996, Exxon and Clark Oil Trading Company (“Clark Oil”) entered into a contact under which Exxon sold Clarified Slurry Oil (“CSO”) to Clark Oil. EMC, which is based in Lemont, Illinois, transported CSO from Exxon's refinery in Joliet, Illinois, to Clark Oil. On January 18, 2005, EMC's tanker barge EMC–423 arrived at the Joliet refinery to accept a load of CSO for delivery to Clark Oil. Although Exxon intended to load the EMC–423 with CSO from Storage Tank 516, the cold winter weather caused the valve on this tank to malfunction. This forced Exxon to transfer the CSO from Tank 516 to Tank 515. A dispute exists between Exxon and EMC whether the characteristics of the CSO changed during this transfer. EMC argues that the CSO loaded onto the EMC–423 became contaminated with more than 10,000 gallons of gasoline, while Exxon contends that the cargo fell within the variances allowed in the CSO refining process. Under the Exxon–Clark Oil contract, SGS, an independent inspector, tested the quality and quantity of the CSO loaded onto the EMC–423.
After Exxon finished loading approximately 14,000 barrels of CSO on board the EMC–423 from Tank 515, it released the barge from its dock at 6:15 a.m. on January 19, 2005. Later that day, as the barge moved up the Chicago Sanitary Ship Canal propelled by the Lisa E motor vessel, its cargo of CSO exploded, which caused the barge to sink. Alexander Oliva (“Oliva”), a crew member on the Lisa E working on the EMC–423, died in the explosion. Thousands of gallons of CSO spilled into the canal in Chicago near the Cicero Avenue bridge, and the accident temporarily closed and impeded the canal. The Government alleges that Oliva improperly used a propane rosebud torch to thaw a broken pump on the EMC–423. The use of this torch, along with an allegedly improperly opened ball valve on barge's standpipe, caused vapors emanating from the CSO to ignite and explode. EMC denies that the use of a rosebud torch caused the explosion. Rather, it contends that the contaminated CSO Exxon loaded onto the barge caused the explosion.
The Government filed a five-count Complaint on June 2, 2008, followed by an Amended Complaint on July 24, 2008, in which it claims that EMC is the party responsible for the explosion and subsequent spill. Counts 1–3, brought under the Oil Pollution Act (the “OPA”), 33 U.S.C. § 2701 et seq., seek damages of more than $1.5 million for the costs to clean up the spill, disbursements for claims of third parties, and additional civil damages of up to $25,000 for each day of the spill cleanup. Count 4 seeks damages under the Rivers and Harbors Act, 33 U.S.C. §§ 403, 407, and Count 5 claims a violation of general maritime law.
The Government filed an indictment against EMC and the captain and pilot of the Lisa E and EMC–423, Dennis Michael Egan, in a parallel criminal prosecution on January 13, 2010. The criminal case is before Judge James B. Zagel. On September 10, 2008, EMC filed a three-count Third Party Complaint against Exxon for contribution, indemnity, and a maritime claim pursuant to Federal Rule of Civil Procedure 14(c), claiming that Exxon's negligence in loading contaminated CSO on the EMC–423 was the sole or partial cause of the explosion and spill. Upon the Government's request, the Court dismissed Count 5 of the Amended Complaint on March 30, 2009, 2009 WL 855964.
Now, EMC claims that the Government has deliberately violated discovery rules during this litigation in such a manner that deprives it of a fair trial, and moves to dismiss the remaining counts in the Amended Complaint pursuant to Federal Rule of Civil Procedure 37(b)(2). EMC also moves to strike three of the Government's experts because it alleges that in preparing their expert reports they improperly relied on the United States Coast Guard's Marine Casualty Incident Report (the “MCIR”) for the explosion on the EMC–423 and subsequent oil spill. In addition, Exxon moves for summary judgment on all counts of EMC's Third Party Complaint. In defending itself against Exxon's Motion, EMC moves to strike numerous paragraphs in Exxon's Rule 56.1 Statement of Material Facts. The parties have fully briefed all these motions.
EMC moves to dismiss the Amended Complaint based on the Government's alleged discovery misconduct. Among the allegations that EMC makes, it claims that the Government (1) seized documents that EMC prepared for its defense in this case when it executed a search warrant on EMC's Lemont offices, and has failed to return important documents to EMC; (2) altered key physical evidence without EMC's knowledge and failed to provide adequate custody logs for physical evidence; (3) instructed two of its witnesses not to answer numerous questions at their depositions; (4) failed to turn over newly found discovery in a timely manner; (5) failed to turn over all discoverable documents that it had in its possession, which EMC learned about at depositions; (6) failed to disclose the extent of its contacts with Exxon; and (7) failed to disclose documents it had obtained and produced in the related criminal prosecution. EMC argues that the cumulative effect of the Government's violations warrants the extreme sanction of dismissal with prejudice of the Amended Complaint.
Under Federal Rule of Civil Procedure 37(b)(2), the Court may sanction a party for failing “to obey an order to provide or permit discovery.” FED. R. CIV. P. 37(b)(2)(A). While the Court possesses the inherent authority to sua sponte sanction a party, some form of court order—be it a written or an oral directive—is generally required for the Court to invoke Rule 37(b)(2). See, e.g., Halas v. Consumer Servs., Inc., 16 F.3d 161, 164 (7th Cir.1994). Dismissal pursuant to Rule 37(b)(2) is harsh, and should be used on a limited basis. See Ladien v. Astrachan, 128 F.3d 1051, 1057 (7th Cir.1997). Such dismissal is proper “where the offending party has displayed willfulness, bad faith, or fault, and it is a proportionate and otherwise appropriate sanction.” Shaw–Reed v. Children's Outing Ass'n, No. 98–2202, 1999 WL 38588, at *2 (7th Cir. Jan. 27, 1999).
While EMC alleges a litany of discovery violations by the Government, not one of these allegations stem from the Government's failure to obey a court order. Fact discovery closed on November 26, 2010. ECF No. 138, Feb. 22, 2010. EMC did not file this Motion to Dismiss until December 15, 2010. It appears that EMC knew about many of the alleged discovery violations before discovery closed. For example, the first alleged infraction occurred on April 10, 2009, when federal agents from the United States Coast Guard and the Environmental Protection Agency executed a search warrant at EMC's offices as part of the criminal proceedings. EMC alleges that the agents seized material that related to its trial preparation in this case. Despite having concerns about this seizure, EMC never filed a motion to compel.
Likewise, EMC cites abuses by the Government during depositions of Government witnesses. EMC points to the depositions of Robert Reggio (“Reggio”) and Eric Hann (“Hann”), which took place in September 2010, as examples of the Government's attorney improperly instructing its witnesses not to answer questions. It appears, however, that at the Reggio and Hann depositions EMC's counsel did not object to the Government attorney's instructions to the witnesses. Further, EMC did not file a motion to compel answers to the questions objected to during these depositions. EMC also argues that it learned of missing documents during the depositions of Reggio, Hann, and other Government witnesses. Again, it never filed a motion to compel production of these documents—some of which the Government appears to have produced. Regardless, EMC does not establish the necessary bad faith or willfulness, or that it was severely prejudiced, for these alleged discovery abuses to warrant dismissal.
The Court need not address separately every discovery abuse EMC alleges. While EMC argues that the Government engaged in deliberate obstruction, its failure to raise this issue during discovery dooms its motion. EMC...
To continue reading
Request your trial
-
Settoon Towing, L.L.C. v. Marquette Transp. Co. (In re Settoon Towing, L.L.C.)
...court decisions. The first involved a catastrophic oil spill in the Chicago Sanitary Ship Canal. See United States v. Egan Marine Corp ., 808 F.Supp.2d 1065, 1071 (N.D. Ill. 2011). The Responsible Party sought contribution against a third party whose alleged negligence in loading oil on its......
-
Coroles v. State
...6308 ), courts have rejected attempts to exclude an expert who has reviewed inadmissible casualty reports. United States v. Egan Marine Corp., 808 F.Supp.2d 1065, 1074 (N.D.Ill.2011) (“[A]n expert report that simply cites or references an [inadmissible casualty report] is not necessarily in......
-
Egan Marine Corp. v. ExxonMobil Oil Corp.
...for the explosion and the subsequent oil spill and seeking damages under federal maritime law. U.S. v. Egan Marine Corporation, 808 F.Supp. 2d 1065, 1071-72 (N.D.Ill. 2011). Egan filed a third-party complaint against Exxon for contribution, indemnity, and liability, claiming that Exxon's ne......
-
Diamond Offshore Co. v. Survival Sys. Int'l, Inc.
...providing for investigation of marine casualties bars the use of the reports in legal proceedings. See United States v. Egan Marine Corp., 808 F. Supp. 2d 1065, 1076-77 (N.D. Ill. 2011) (striking summary judgment evidence that relied on an MCIR because using the MCIR as evidence violates 46......