United States v. Robinson

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT D. ROBINSON, Defendant.

No. 1:18-cv-0015-HRH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

December 10, 2020

ORDER

Motion for Entry of Judgment

Plaintiff United States of America moves for entry of judgment.¹ Defendant Robert D. Robinson has not responded to the motion. Oral argument was not requested and is not deemed necessary.

Background

This case arises out of the sinking of the M/V CHALLENGER "in the Gastineau Channel, Juneau, Alaska on or about September 12, 2015."² Plaintiff alleges that defendantwas the owner and operator of the CHALLENGER.³ "The CHALLENGER discharged oil into the Gastineau Channel, which is a navigable water of the United States. In addition, . . . the vessel posed a continuing and substantial threat of discharge of oil."⁴ "[T]he United States Coast Guard Sector Juneau responded to the call that the CHALLENGER had sunk" and "[r]esponders deployed a hard boom to contain the oil sheen, and marked the Vessel as a navigation hazard."⁵ The Coast Guard Federal On Scene Coordinator ("FOSC") "established a Unified Command comprised of both Federal, State, and local stakeholders to deal with the sinking of the Challenger."⁶ On January 14, 2016, the Coast Guard approved the FOSC's request "to raise and destroy the CHALLENGER."⁷

"From approximately January 26 until March 10, 2016, responders worked to raise, dewater, refloat, tow, and cut into pieces the Vessel for disposal."⁸ Plaintiff alleges that this "operation was extensive and required the use of a crane barge, an 18-ton crane, 2 landingcraft, a skiff, divers, generators, and a 20-foot heated container."⁹ Plaintiff alleges that "[a]sbestos abatement testing revealed 20% asbestos on piping and in insulation and 65% asbestos found in the fibers in exhaust lagging."¹⁰ Plaintiff further alleges that "[t]he vessel's paint also contained significant quantities of lead[.]"¹¹ Plaintiff alleges that "[e]ach of the foregoing materials comprise hazardous substances within the meaning of CERCLA."¹² In addition, "[a] total of approximately 2,038 gallons of oily water mixtures were removed from the Vessel."¹³ The Coast Guard incurred costs of $2,541,197.98 "to remove and remediate the oil pollution and substantial threat of oil pollution from the CHALLENGER[.]"¹⁴

"The NPFC paid these costs from the" Oil Spill Liability Trust Fund ("OSLTF") "and sent a Notice of Potential Liability ('NOPL') to [d]efendant Robinson informing him that the CHALLENGER was identified as a source of a pollution incident."¹⁵ "On September 11, 2017, the NPFC sent a bill to [d]efendant Robinson for $2,541,197.98."¹⁶ The bill informedRobinson that as the owner and/or operator of the CHALLENGER, he was responsible for "the costs incurred responding to this pollution incident[.]"¹⁷ "To date, [d]efendant Robinson has failed to pay any portion of the invoice."¹⁸

Plaintiff commenced this action on November 8, 2018. In the first, second, and third causes of action, plaintiff asserts claims pursuant to the Oil Pollution Act of 1990 ("OPA"),¹⁹ alleging that Robinson is liable for the costs incurred in responding to the discharge of oil that occurred as a result of the sinking of the CHALLENGER. In the fourth and fifth causes of action, plaintiff asserts CERCLA claims,²⁰ alleging that Robinson is liable for all response costs and remediation costs incurred in connection with the sinking of the CHALLENGER. In the sixth cause of action, plaintiff asserts a claim pursuant to the Federal Debt Collection Procedures Act, alleging that Robinson has violated the Act because "instead of discharging debts owed to the United States," he has "transferred, sold, spun off, and assigned assets soas to prejudice and cause irreparable harm to the United States."²¹ In the seventh cause of action, plaintiff asserts a claim based on 31 U.S.C. § 3713, the Federal Priority Statute.

On February 4, 2019, defendant, proceeding pro per, answered plaintiff's complaint. In his answer, Robinson denied that he was the owner or operator of the CHALLENGER.²² He also denied that he managed, demise chartered, or controlled the CHALLENGER.²³

On March 1, 2019, a scheduling and planning order was entered.²⁴ The scheduling and planning order called for initial disclosures to be made by March 29, 2019; preliminary witness lists to be exchanged by April 15, 2019; final witness lists to be served by December 15, 2019; fact discovery to close on January 30, 2020; and expert discovery to close on March 30, 2020.²⁵

On January 24, 2020, plaintiff moved "to modify the Scheduling Order by extending the fact discovery deadline due to defendant Robinson's lack of participation in the discovery process, as well as his complete failure to adhere to several [c]ourt initiated deadlines. . . ."²⁶ Plaintiff contended that defendant had not served his initial disclosures or his final witnesslist.²⁷ Plaintiff also contended that defendant had not responded to its interrogatories and requests for production that had first been served on August 2, 2019, and then resent on November 8, 2019.²⁸ Plaintiff further contended that at defendant's January 15, 2020 deposition, he was only able to answer limited questions "related to his [recent] injury, inability to testify, and receipt of previously served discovery."²⁹ More specifically, Robinson testified that he had fallen off a roof on August 7, 2019, and that he had surgery, which led to additional complications, and that he was on heavy-duty pain medication, which caused difficulties with concentration and focus.³⁰ Defendant also testified that there had been a delay in his receiving filings that plaintiff was sending him because the address being used was "not really" his address, but rather the address of a house that he was painting at the time he filed his answer.³¹ But, defendant did testify that he had received plaintiff's discovery requests on August 7, 2019.³²

On February 13, 2020, the court granted plaintiff's motion to modify the scheduling order.³³ The court ordered defendant to serve his initial disclosures by March 16, 2020; to serve responses to plaintiff's discovery requests by March 16, 2020; and to file a witness list by March 16, 2020.³⁴ The court advised defendant that "[f]ailure . . . to fully comply with this order could result in the entry of an order for sanctions, which might include a judgment in plaintiff's favor."³⁵ Deadlines for fact discovery, expert discovery, and dispositive motions were also extended.³⁶ All discovery was to close by August 17, 2020, and dispositive motions were to be filed no later than September 17, 2020.³⁷

On September 22, 2020, the court entered a certification of readiness for trial order as "[i]t appear[ed] that the pretrial calendar for this case has been completed. . . ."³⁸ In response, plaintiff notified the court that it intended "to file a dispositive motion asking the [c]ourt for entry of judgment" in its favor.³⁹

On October 8, 2020, plaintiff filed the instant motion for entry of judgment.⁴⁰ On October 14, 2020, the court provided notice to defendant that he was "not at liberty to ignore" plaintiff's motion for entry of judgment and that "[a] response is required."⁴¹ The court gave defendant until October 26, 2020 to file a response.⁴² Defendant did not file a response by October 26, 2020.

On November 9, 2020, the court ordered plaintiff to re-serve defendant with the instant motion as the court was concerned that both it and plaintiff had been serving defendant at an incorrect address.⁴³ The court gave defendant fourteen days from the date of re-service to respond to the motion and again advised defendant that he was "not at liberty to ignore the [m]otion" and that "[a] response to the motion is required."⁴⁴ Plaintiff promptly re-served the motion on November 9, 2020.⁴⁵ To date, no response from defendant has been filed.

Pursuant to Rule 37, Federal Rules of Civil Procedure, plaintiff now moves for entry of judgment because defendant has failed to comply with the court's February 13, 2020order. Vickey Quinn, counsel for plaintiff, avers that as of October 8, 2020, "defendant has not served Initial Disclosures in this case[,] has not served responses to interrogatories[,] has not served responses to requests for admissions[, and] has not served responses to requests for production. . . ."⁴⁶ Quinn further avers that "[d]efendant has not contacted counsel for the United States for any reason since the" court issued its February 13, 2020 order.⁴⁷

Discussion

"Rule 37 governs discovery disputes and sanctions stemming therefrom." Clasberry v. Albertson's LLC, Case No. 2:14-cv-00774-JAD-NJK, 2015 WL 9093692, at *2 (D. Nev. Dec. 16, 2015). "The [c]ourt has 'great latitude' in fashioning sanctions pursuant to Rule 37." Id. (quoting Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985)).

Plaintiff requests that the court enter judgment against defendant as a sanction for his failure to comply with the court's order requiring him to serve his initial disclosures and final witness list and to respond to plaintiff's discovery requests by March 16, 2020. "A terminating sanction, whether default judgment against a defendant or dismissal of a plaintiff's action, is very severe." Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). "Only 'willfulness, bad faith, and fault' justify terminating sanctions." Id. (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)). "'[D]isobedient conduct not shown to be outside the control of the litigant' isall that is required to demonstrate willfulness, bad faith, or fault." Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993) (quoting Fjelstad v. Amer. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985)).

It was within defendant's control to participate in the discovery process. As plaintiff acknowledges, during some of the relevant time, the COVID-19 pandemic was ongoing, but that alone...