United States District Court, D. Rhode Island
ROBERT B. SALTZMAN, Plaintiff,
WHISPER YACHT, LTD.; WHISPER YACHT USA, LLC; CHURCHILL YACHT PARTNERS, LLC; and S/Y WHISPER Official # 71042 its engines, sails, spars, rigging, apparel, contents, bunkers, electronics, tenders and appurtenances, in rem, Defendants.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
Robert B. Saltzman initiated this admiralty action against
Defendants Whisper Yacht, Ltd., and the S/Y Whisper in
rem (the “Whisper Defendants”), as well as
Defendants Whisper Yacht (USA), LLC, and Churchill Yacht
Partners, LLC (the “LLC Defendants”). Plaintiff
submitted a Verified Complaint advancing five causes of
action: Count I, unseaworthiness; Count II, negligence for
failure to provide a reasonably safe place to work; Count
III, maintenance and cure; Count IV, back wages; and Count V,
negligence under general maritime law. ECF No. 1
(“Compl.”). The Whisper Defendants filed a motion
to dismiss Counts I through IV, or, in the alternative, a
motion for summary judgment on those Counts.ECF No. 18. Their
central thesis is that Plaintiff does not qualify for
“seaman” status under the Jones Act, 46 U.S.C.
§ 30104, et seq., and consequently lacks
entitlement to the protections and remedies pursued in Counts
I through IV. Plaintiff responded with a vigorous objection
and cross-motion for sanctions in the form of a summary
judgment finding in his favor. Key to Plaintiff's
objection is his inclusion of a letter from the S/Y Whisper
Captain Simon Davison commenting on the nature of
Plaintiff's employment. In reply, the Whisper Defendants
concede further discovery is necessary on the issues raised
in their motion. The motion was referred to me for report and
recommendation. 28 U.S.C. § 636(b)(1)(B).
February 2017, Plaintiff worked as a crewmember on the S/Y
Whisper. Compl. ¶ 43. During his employment, he suffered
injuries to his arms on September 4, 2017. Id.
¶ 1. While the yacht was in the Newport Shipyard, the
yacht's Captain directed Plaintiff to assist in removing
the head sail. Id. ¶¶ 50-54, 63-64.
Captain Davison activated the furling device of the head
sail, causing it to unfurl so it could be removed.
Id. ¶ 65. Due to wind, the sail did not lower,
and Plaintiff pulled on it to bring it down. Id.
¶ 66. Without notifying Plaintiff, the furling device
was activated again. Id. ¶ 68. Plaintiff's
arms got caught in the sail and twisted around the cable,
resulting in serious injuries to his arms. Id.
¶¶ 69, 71-72.
Whisper Defendants support their motion for summary judgment
with an affidavit from Captain Davison. ECF No. 21-2
(“Davison Aff.”). According to Captain
Davison's affidavit, Plaintiff's employment was
“transitory and sporadic, ” Captain Davison did
not consider Plaintiff part of the vessel's crew and
Plaintiff was never a permanent crewmember. Id.
¶¶ 17-18, 43. However, Plaintiff responded with his
own counter affidavit (“Saltzman Aff.”), which
authenticated a copy of his Voyage Record and a letter
bearing Captain Davison's signature and the S/Y
Whisper's official stamp on the S/Y Whisper's
letterhead. ECF No. 23-1 ¶¶ 19, 48, Pl.'s Ex.
A, Pl.'s Ex. C. The letter, dated April 13, 2017,
“confirm[s] . . . Robert Benjamin Saltzman . . . as
deckhand” on the S/Y Whisper. ECF No. 23-1 ¶¶
19, 48, Pl.'s Ex. A. It states that Plaintiff “is
permanently employed on the vessel ‘Whisper' . . .
and holds this position indefinitely.” Id.
STANDARD OF REVIEW
Fed.R.Civ.P. 56, summary judgment is appropriate if the
pleadings, the discovery, disclosure materials and
declarations show that there is “no genuine issue as to
any material fact and that the movant is entitled to judgment
as a matter of law.” Taylor v. Am. Chemistry
Council, 576 F.3d 16, 24 (1st Cir. 2009); Commercial
Union Ins. Co. v. Pesante, 459 F.3d 34, 37 (1st Cir.
2006) (quoting Fed.R.Civ.P. 56(c)). A fact is material only
if it possesses the capacity to sway the outcome of the
litigation; a dispute is genuine if the evidence about the
fact is such that a reasonable jury could resolve the point
in the favor of the non-moving party. Estrada v. Rhode
Island, 594 F.3d 56, 62 (1st Cir. 2010);
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The
evidence must be in a form that permits the court to conclude
that it will be admissible at trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). In ruling on a
motion for summary judgment, the court must examine the
record evidence “in the light most favorable to, and
drawing all reasonable inferences in favor of, the nonmoving
party.” Feliciano de la Cruz v. El Conquistador
Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000)
(citing Mulero-Rodriguez v. Ponte, Inc., 98 F.3d
670, 672 (1st Cir. 1996)). There are no trial-worthy issues
unless there is competent evidence to enable a finding
favorable to the nonmoving party. Goldman v. First
Nat'l Bank of Bos., 985 F.2d 1113, 1116 (1st Cir.
1993). That is, the nonmoving party cannot rest on its
pleadings, but must “set forth specific facts
demonstrating that there is a genuine issue for trial”
as to the claim that is the subject of the summary judgment
motion. Oliver v. Digital Equip. Corp., 846 F.2d
103, 105 (1st Cir. 1988).
originally brought, the Whisper Defendants' motion for
summary judgment asked the Court to find that the undisputed
facts establish that Plaintiff was not a seaman and therefore
may not prevail on Counts I through IV because they are
claims available only to seamen. “In order for an
employee to be considered a seaman for Jones Act purposes,
three requirements must be met: (i) the watercraft on which
he was working when injured must have been a vessel; (ii) his
duties must have contributed to the vessel's function or
mission; and (iii) his connection to the vessel must have
been substantial both in nature and in duration.”
Stewart v. Dutra Constr. Co., 418 F.3d 32, 35 (1st
Cir. 2005). They are right on the law - it is clear that
Plaintiff must qualify as a seaman under the Jones Act to
pursue Counts I through IV. See Ferrara v. A. & V.
Fishing, Inc., 99 F.3d 449, 453-54 (1st Cir. 1996)
(requiring seaman status for claims of unseaworthiness, Jones
Act negligence and maintenance and cure); Baucom v. Sisco
Stevedoring, LLC, 560 F.Supp.2d 1181, 1201 (S.D. Ala.
2008) (back wages).
having reviewed the facts marshaled by Plaintiff in his
opposition, the Whisper Defendants now concede that there is
a material factual dispute pertaining to Plaintiff's
status and that they should not succeed in their pending
motion for summary judgment. Instead, they acknowledge that
further factual discovery must occur to allow them to prove
what they still contend is true - that Plaintiff was not a
Jones Act seaman. Based on the coalescence of the
parties' positions, and the Court's independent
review of the Saltzman and Davison Affidavits, juxtaposed
with Captain Davison's April 2017 letter, it is crystal
clear that summary judgment should not enter in favor of the
Whisper Defendants on Plaintiff's status as a seaman.
now in agreement that summary judgment should not enter, the
parties diverge on how the Court should dispose of the
pending motion. Wanting a guaranteed second bite at the
apple, the Whisper Defendants urge the Court to permit them
to withdraw the motion or to deny the motion without
prejudice to a subsequent summary judgment motion on the same
issue. Plaintiff requests outright denial of the motion,
requiring the Whisper Defendants to seek Court permission
under DRI LR Cv 56(c) if they wish to file again. Moreover,
Plaintiff's response features a cross-motion for
sanctions (based on evidence of Captain Davison's
conflicting statements) in the form of a summary judgment
ruling that Plaintiff is a Jones Act seaman.
Civ. P. 56 does not place a limit upon the number of summary
judgment motions a party may file, although this Court's
local rules provide that “[n]o party shall file more
than one motion for summary judgment unless the Court
otherwise permits for good cause shown.” DRI LR Cv
56(c). While it appears the First Circuit has not addressed
this issue head-on, “at least six circuits have held
that district courts have discretion to permit successive
motions for summary judgment.” Zurich Am. Ins. Co.
v. Watts Regulator Co., 860 F.Supp.2d 78, 94 n.11 (D.
Mass. 2012) (collecting cases). And the First Circuit has
affirmed a district court's exercise of discretion to
consider a fourth summary judgment motion when it
“reflected material changes in the posture of th[e]
litigation and was grounded on meritorious
contentions.” F.D.I.C. v. Kooyomjian, 220 F.3d
10, 16 (1st Cir. 2000).
of this law and the circumstances surrounding the pending
motion for summary judgement, particularly the factually
robust opposition that Plaintiff has presented, I find that
it would be unfair to permit withdrawal. To the contrary, I
find that the motion should be denied outright and that it is
premature to decide whether or not the Whisper Defendants may
refile for summary judgment later in the case. Having filed
for summary judgment once, the local rules prohibit another
without leave of Court based on good cause. DRI LR Cv 56(c).
Both Zurich American Insurance and
Kooyomjian illustrate that a successive motion
should flow from developments in the record - not from the
misstep of filing the first motion too soon. As the case
progresses and the parties uncover facts unknown now to both
them and the Court, the Whisper Defendants may well be able
to show good cause for another summary judgment motion.
Accordingly, I recommend that the motion be denied without
further comment on the prospect that they should be afforded
an opportunity to make another attempt.
cross-motion for sanctions (ECF No. 23) should also be
denied. He cites Fed.R.Civ.P. 56(h), the Rule authorizing
sanctions when an affidavit or declaration is submitted in
bad faith. Under that Rule, if the Court finds the conduct is
“particularly egregious, ” Fort Hill
Builders, Inc. v. Nat'l Grange Mut. Ins. Co., 866
F.2d 11, 16 (1st Cir. 1989), it may order the offending party
to pay expenses and attorneys' fees incurred or hold the
party in contempt and impose “other appropriate
sanctions.” Fed.R.Civ.P. 56(h). It is a high bar.
See Michael v. Liberty, 566 F.Supp.2d 10, 12 (D. Me.
2008) (no sanctions where not established that affidavit
“was intentionally false or in bad faith”).
Although the contradictions between Captain Davison's
affidavit and his April 2017 letter raise serious questions
about the Captain's veracity, this case is too young and
the record too undeveloped for the ...