Conklin v. Specialist, L.L.C. et al
Filing
36
OPINION & ORDER re: (29 in 7:16-cv-02515-KMK) LETTER MOTION to Compel disposition of towing vessel "Specialist" addressed to Judge Kenneth M. Karas from Andrew V. Buchsbaum, Esq. dated July 18, 2016, filed by Leslie Conklin , (50 in 7:16-cv-04643-KMK) LETTER MOTION to Compel disposition of towing vessel "Specialist" addressed to Judge Kenneth M. Karas from Andrew V. Buchsbaum, Esq. dated July 18, 2016, filed by Leslie Conklin. The Court grants Petitioners' Motion to shift the cost of preservation of the Specialist to Respondent. The Clerk of Court is respectfully requested to terminate the pending Motion. ((Dkt. No. 23); (Dkt No. 50) 16-CV-4643 Dkt.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 11/22/16) (yv)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION & ORDER
IN THE MATTER OF THE COMPLAINT OF
SPECIALIST LLC and Owner and Owner Pro Hac
Vice of an 84 foot towing vessel named
"SPECIALIST", and an 84 foot towing vessel
named "REALIST", for Exoneration from or
Limitation of Liability,
Case No. 16-CV-5010 (KMK)
Petitioners.
LESLIE CONKLIN,
Plaintiff,
Case No. 16-CV-2515 (KMK)
-v-
SPECIALIST, L.L.C., et al.,
Defendants.
DONNA AMON,
Plaintiff,
Case No. 16-CV-3353 (KMK)
-v-
SPECIALIST, L.L.C., et al.,
Defendants.
YIRDA GUERRERO HERNANDEZ,
Plaintiff,
Case No. 16-CV-3579 (KMK)
-v-
SPECIALIST, L.L.C., et al.,
Defendants.
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IN THE MATIER OF THE COMPLAINT OF
WEEKS MARINE, INC., AS OWNER OF THE
MN TREVOR, A 69' STEEL TOWING VESSEL,
OFFICIAL NO. 597716, FOR EXONERATION
FROM AND LIMITATION OF LIABILITY,
Case No. 16-CV-4643 (KMK)
Petitioner.
IN THE MA TIER OF THE COMPLAINT OF
TAPPAN ZEE CONSTRUCTORS, LLC, as
OWNER PRO HAC VICE OF THE BARGE N181,
and TRAYLOR BROS., INC. as OWNER OF THE
BARGE N181 FOR EXONERATION FROM OR
LIMITATION OF LIABILITY,
Case No. 16-CV-7001 (KMK)
Plaintiffs-Petitioners.
Appearances:
James E. Mercante, Esq.
Lawrence B. Brennan, Esq.
Kristin E. Poling, Esq.
Rubin, Fiorella & Friedman LLP
New York, NY
Attorneys for Petitioners Specialist LLC and New York Marine Towing, Inc. ·
Ryan J. Lawlor, Esq.
Law Offices ofMichael S. Lamonsoff, PLLC
New York, NY
Attorney for Plaintif!Yirda Guerrero Hernandez
Andrew V. Buchsbaum, Esq.
Friedman, James & Buchsbaum LLP
New York, NY
Attorney for PlaintiffLeslie Conklin
Casey M. O'Brien, Esq.
Hill Rivkins, LLP
New York, NY
Attorney for Claimant Donna Amon
Ronald Betancourt, Esq.
Jeanne-Marie D. Van Hemmen, Esq.
Betancourt, Van Hemmen, Greco & Kenyon LLC
Red Bank, NJ
Attorneys for Petitioner Weeks Marine, Inc.
Joseph J. Perrone, Esq.
Giuliano McDonnell & Perrone, LLP
Parsippany, NJ
Attorney for Claimant Tappan Zee Constructors, LLC
KENNETH M. KARAS, District Judge:
On June 28, 2016, Petitioners Specialist LLC and New York Marine Towing, Inc.
("NYMT," and collectively "Petitioners"), filed a Complaint for exoneration from or limitation
of liability pursuant to 46 U .S.C. § 30505 et seq. ("Limitation of Liability Act") in connection
with the sinking of the towing vessel "Specialist." (See Compl. (Dkt. No. 6).) 1 Before the Court
is Petitioners' Motion to dispose of the Specialist or, alternatively, to shift the cost of storage and
retention of the tug boat to Respondent Weeks Marine, Inc. ("Weeks Marine" or "Respondent").
(See Mem. ofLaw on BehalfofPet'rs Specialist L.L.C. and New York Marine Towing, Inc., in
Support of Mot. To Dispose of the Wreck of Tug Specialist or Shift the Cost of Preserving the
Wreck to Weeks Marine, Inc. ("Pet'rs' Mem.") (Dkt. No. 23).)2 For the reasons stated herein,
the Petitioners' Motion is granted.
I. BACKGROUND
A. Factual Background
This Action arises from the sinking ofthe Specialist during the towage of barge "Weeks
533" from Albany, New York to Jersey City, New Jersey. (See Compl.
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7.) The Specialist,
1
Unless otherwise noted, all docket numbers refer to Case No. 16-CV-5010.
2
The terms "tugboat" and "towing vessel" are used interchangeably throughout this
Opinion.
3
along with the tugging vessels the "Realist" and the "Trevor," was part of a flotilla contracted to
tow the Weeks 533. (See Letter from Ronald Betancourt to the Court (June 24, 2016) ("Resp't's
Letter") 2 (Dkt. No. 32) 16-CV-4643 Dkt.; Letter Mot. from Claimant Conklin to the Court (July
lS, 20I6) ("Conklin Letter") 2 (Dkt. No. 50) I6-CV-4643 Dkt.) On the morning of March 12,
20I6, during the flotilla's passage down the Hudson River, the Specialist collided with Barge
NISI and sank offthe coast of Tarrytown, New York. 3 The collision resulted in the deaths of
three crewmembers, Timothy Conklin ("Conklin"), Harry Hernandez ("Hernandez"), and Paul
Amon ("Amon," and collectively with Conklin and Hernandez, the "Decedents"). (See Compl.
~ S; Conklin Letter 2f
On or about March 24, 20 I6, the Specialist was removed from the Hudson River and
transported to the facilities ofDonJon Marine Co. ("DonJon Marine") in Port Newark, New
Jersey where it is currently being held. (See Conklin Letter 2.) The cost of the removal and
transportation ofthe Specialist was $477,000, (see id.), and the vessel is being stored at the
expense of$I9,500 per month. NYMT, the vessel's operator, bore the cost ofretrieval and
incurs the monthly storage fee. (See Pet'rs' Mem. 3, 7; Conklin Letter 2.)
Shortly after the retrieval of the Specialist from the Hudson River, Respondent learned
that following an inspection by the Parties, NYMT intended to dispose of the vessel. (See
Resp't's Letter 2.) In a March 2S, 20I6letter to NYMT's counsel, Respondent requested that
3
Barge NIS1 was involved in the New NY Bridge construction project to replace the
Tappan Zee Bridge. An action in connection with the damage caused to Barge NISI was filed in
the Southern District ofNew York on SeptemberS, 20I6. (See Compl. (Dkt. No. 1) 16-CV7001 Dkt.).
4
Wrongful death actions have been filed in the Southern District ofNew York on behalf
of each Decedent. (See Compl. (Dkt. No.1) 16-CV-2515 Dkt.; Compl. (Dkt. No.1) 16-CV3353 Dkt.; Compl. (Dkt. No. I) I6-CV-3579 Dkt.)
4
"the Specialist be preserved until [Respondent] is afforded a meaningful opportunity to inspect
the Specialist by its experts." (Id)
On March 30, 2016, representatives from each ofthe Parties to all lawsuits related to the
March 12 incident, including attorneys and experts, attended an inspection of the Specialist at
DonJon Marine. (See id at 2; Conklin Letter 3.) Petitioners Specialist LLC and NYMT, the
respective owner and operator ofthe Specialist, now move the Court to allow the disposal of the
Specialist or alternatively, shift the cost of preservation to Respondent. Respondent opposes, on
the grounds that NYMT has a duty to preserve the Specialist, pending sufficient discovery to
identify whether further inspections or testing of the vessel is necessary. (See Resp't's Letter 23.)
B. Procedural History
Due to the complexity of the litigation at hand and the multiple related cases stemming
from the sinking of the Specialist, the Court limits the recounting of the procedural history to
only that relevant to the instant Motion. In total, there are six related actions pending before this
Court: (1) In re Weeks Marine, Inc., No. 16-CV-4643 (limitation action filed by Weeks
Marine)5 ; (2) Conklin v. Specialist, L.L. C., et al., No. 16-CV-2515 (wrongful death action on
behalfofConklin); (3)Amon v. Specialist, L.L.C., eta/., No. 16-CV-3353 (wrongful death action
on behalf of Amon); (4) Hernandez v. Specialist, L.L.C., eta/., No. 16-CV-3579 (wrongful death
action on behalf of Hernandez); (5) In re Specialist LLC, No. 16-CV -5010 (limitation action filed
5
Weeks Marine initially filed its limitation action in the District ofNew Jersey on March
15, 2016. (See Compl. (Dkt. No.1) 16-CV-4643 Dkt.) Pursuant to a June 14, 2016 Order from
Judge Kevin McNulty, the case was transferred to the Southern District of New York. (See
Order (Dkt. No. 29) 16-CV-4643 Dkt.)
5
by Specialist LLC and NYMT); (6) In re Tappan Zee Constructors, LLC, No. 16-CV-7001
(limitation action filed by Tappen Zee Constructors).
On July 25, 2016, Petitioners filed the instant Motion for an order permitting the disposal
of the Specialist or, alternatively, to shift the cost ofthe vessel's preservation to Respondent.
(See Pet'rs' Mem. 2.) On August 29, 2016, Respondent Weeks Marine filed a response in
opposition to the Motion, (see Mem. of Law in Opp. to the Mots. To Destroy the Specialist or
Shift the Cost of Preservation ("Resp't's Mem.") (Dkt. No. 35)), and on September 9, 2016,
Petitioners filed a reply. (See Mem. of Law in Further Support of the Mots. To Dispose of the
Tug Specialist or Shift the Cost of Storage and Retention ("Pet'rs' Reply") (Dkt. No. 36).) On
September 12,2016, Claimant Donna Amon filed a memorandum in support of Petitioners'
Motion. (See Reply Mem. of Law in Support of Mot. To Permit Disposal of Tug Specialist
("Amon Mem.") (Dkt. No. 37).) 6
II. DISCUSSION
A. Preservation ofthe Specialist
A party has an obligation to preserve evidence when the party "has notice that the
evidence is relevant to litigation-most commonly when suit has already been filed, providing
the party responsible for the destruction with express notice, but also on occasion in other
circumstances, as for example when a party should have known that the evidence may be
relevant to future litigation." Kronisch v. United States, 150 F .3d 112, 126 (2d Cir. 1998); see
also Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (same). "[A]nyone who
anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that
6
Also pending before the Court is a motion to increase the limitation fund posted by
Respondent, ((Dkt. No. 39) 16-CV-4643 Dkt.), which the Court will address in a separate
Opinion.
6
might be useful to an adversary." Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D.
212, 217 (S.D.N.Y. 2003). 7 Furthermore, "the prompt identification and preservation of
evidence-physical, documentary, and testamentary-after a major casualty is vital." N.Y.
Marine & Gen. Ins. Co. v. Lafarge North Am., Inc., 599 F.3d 102, 122 (2d Cir. 2010) (internal
quotations marks omitted). Important evidence "could be lost or compromised if not garnered
quickly and preserved carefully." Id.
In the past, courts faced with motions to preserve certain discovery items have applied a
balancing test which considers the following three factors: "1) the level of concern the court has
for the continuing existence and maintenance of the integrity of the evidence in question in the
absence of an order directing preservation of the evidence; 2) any irreparable harm likely to
result to the party seeking the preservation of evidence absent an order directing preservation;
and 3) the capability of an individual, entity, or party to maintain the evidence sought to be
preserved, not only as to the evidence's original form, condition, or contents, but also the
physical, spatial[,] and financial burdens created by ordering evidence preservation." Treppe! v.
Biovail Corp., 233 F.R.D. 363, 370 (S.D.N.Y. 2006) (quoting Capricorn Power Co. v. Siemens
Westinghouse Power Corp., 220 F.R.D. 429,433-34 (W.D. Pa. 2004)). 8 The Court addresses
each factor in tum.
7
Zubulake IV was the fourth of five pretrial decisions issued in Zubulake v. UBS
Warburg LLC. The decisions are commonly referred to as Zubulake I, Zubulake II, Zubulake III,
Zubulake IV, and Zubulake V.
8
In Treppe!, the court acknowledged the existence of a "more streamlined test" for
analyzing a preservation order, but concluded that the distinction between the two tests was
immaterial. 233 F.R.D. at 370-71.
7
B. Application
1. Continuing Existence and Integrity of the Evidence
In considering the first factor, the continuing existence and maintenance of the integrity
of the evidence, the Court assesses the presence or absence of a significant threat to the
Specialist. Pending a decision on the instant Motion, the Court does not doubt the Specialist will
continue to be preserved in its present state at DonJon Marine. Moreover, there is no concern
that the evidence will be damaged or altered; as Respondent noted at a conference before the
Court on June 28, 2016, the vessel "is secured aboard a barge [at] ... a very well-known,
established marine player in New York." (Tr. ofJune 28, 2016 Conf. ("Con f. Tr.") 21 :3-5.)
Absent this Court's order on Petitioners' right to dispose of the vessel, there is no threat to the
integrity of the Specialist. Accordingly, the first factor is neutral, or at most, weighs slightly in
favor of Respondent.
2. Degree oflrreparable Harm
In determining the degree of irreparable harm to the party seeking to preserve the
evidence, the Court considers Respondent's argument that it "will be irrevocably prejudiced if
the Specialist is allowed to be scrapped before Weeks [Marine] has an opportunity to
meaningfully inspect it." (Resp't's Letter 3.) Respondent, along with all Parties in all the related
actions, was afforded an opportunity to inspect the Specialist shortly after it was recovered from
the Hudson River. (See id. at 2; Pet'rs' Mem. 2.) While Respondent attended the survey of the
vessel, Respondent did not have an expert present because it "does not presently know what to
inspect ... or even which expert(s) to retain." (Resp't's Letter 3.) Although Petitioners contend
"it is difficult to speculate to the relative benefits of further inspection," (Pet'rs' Mem. 8), it is
this very difficulty that Respondent raises as its reason for the preservation. In fact, Respondent
claims that "[t]he relevant questions cannot presently be determined and the answers thereto
8
cannot be considered until ... [Respondent] has the requisite discovery to understand the nature
ofthe claims against [it]." (Resp't's Letter 3.)
Petitioners have a duty to preserve "unique, relevant evidence that might be useful to an
adversary." Zubulake IV, 220 F.R.D. at 217 (emphasis added). Furthermore, Federal Rule of
Civil Procedure 26(b) instructs that parties "may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense ... considering," among other factors,
"whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R.
Civ. P. 26(b) (emphasis added). "Although not unlimited, relevance, for purposes of discovery,
is an extremely broad concept," Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004), and "the
court should and ordinarily does interpret 'relevant' very broadly to mean matter that is relevant
to anything that is or may become an issue in the litigation," see Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340,351 n.12 (1978) (emphasis added) (some internal quotation marks
omitted). The Court agrees with Respondent that without knowledge of its potential claims or
defenses, it is difficult to assess what "may become an issue" in this Action and others before the
Court, id. (internal quotation marks omitted), and the likely benefit of any future discovery
related to the Specialist. For this reason, the Court finds the second factor weighs in favor of
Respondent.
3. Ability to Maintain the Evidence
Finally, the Court considers Petitioners' ability to maintain the evidence and the
"physical, spatial[,] and financial burdens" preservation entails. Treppe/, 233 F.R.D. at 370
(internal quotation marks omitted). "[T]he presumption is that the party possessing information
must bear the expense of preserving it for litigation," id. at 373, unless doing so imposes an
"undue burden," Oppenheimer Fund, Inc., 437 U.S. at 348 (internal quotation marks omitted).
9
NYMT currently spends $19,500 a month preserving the Specialist, an amount that Petitioners
claim "could detrimentally impact the opportunity to settle or satisfy judgments." (Pet'rs' Mem.
3.) Respondent claims that the financial burden of preservation is de minimis compared to the
amount at stake in the litigation, (see Resp't's Mem. 7), yet the Parties are unable to determine
how long Petitioners will accrue these costs. Respondent informed the Court in June 2016 that it
may need three to six additional months to inspect the wreckage, (see Conf. Tr. 20: 19-20), but
Respondent calculates costs over a two-year period in its opposition to Petitioners' Motion, (see
Resp't's Mem. 7-8). More than eight months have passed since the sinking of the Specialist and
Respondent has not indicated that it has had the meaningful inspection opportunity it seeks or
obtained a greater sense of its future discovery needs. Therefore, the Court notes the uncertain
extent of the financial burdens to preserve the evidence and finds that the third factor weighs in
favor of Petitioners.
While no single factor under the balancing test is determinative, see Treppe/, 233 F .R.D.
at 371, the Court finds that Respondent has demonstrated sufficient justification to preserve the
Specialist. However, the Court also recognizes the indeterminate financial burdens associated
with preservation. Both Petitioners and Respondent apply the seven factors outlined in Zubulake
v. UBS Warburg LLC (Zubulake I), 217 F.R.D. 309 (S.D.N.Y. 2003) to the present Motion. (See
Pet'rs' Mem. 4-9; Resp't's Mem. 6-10). Zubulake I considered cost-shifting for the production
of electronic data, 217 F .R.D. at 317-24, and it is not clear to the Court that the situation at hand
is analogous. However, assuming that Zubulake I is applicable and provides helpful guidance
here, the Court finds that, on the whole, the factors weigh in favor of shifting the cost of
preservation. The lack of outstanding discovery requests, past and ongoing inspection
opportunities, the resources available to the Parties, the ability and incentive to control the costs
10
of preservation, and the failure to identify specific benefits of preservation, all favor shifting the
cost of preserving the Specialist to Respondent. See Zubulake I, 217 F .R.D. at 322 (identifying
seven factors to consider in determining whether cost-shifting is appropriate). While the cost of
preservation might appear insignificant when compared to the total amount in controversy
stemming from the sinking of the vessel, the Court recognizes the potentially detrimental effect
that erosion of funds may have on Petitioners' ability to litigate and settle these cases.
Accordingly, the Court finds that the equities compel that Respondent undertake storage
of the Specialist at its own facility or pay for the preservation of the vessel at its current
location.9 The Court agrees with Petitioners that Respondent-the only party requesting the
continued preservation of the vessel-is in the best position to assess its needs in relation to the
Specialist's preservation. By preserving the vessel, but shifting the costs of preservation,
Respondent will be encouraged to expeditiously determine its needs in relation to the vessel, but
will not be foreclosed from an important source of information.
9
Petitioners assert that an attempt to transfer the Specialist to another storage facility
could result in further damage to the vessel, environmental harm, and substantial costs. (See
Pet'rs' Mem. 8-9.) The Court takes note of these risks, but concludes that Respondent can
consider such factors in its decision to continue to preserve the Specialist at DonJon Marine or its
own facility.
11
III. CONCLUSION
For the foregoing reasons, the Court grants Petitioners' Motion to shift the cost of
preservation ofthe Specialist to Respondent. The Clerk of Court is respectfully requested to
terminate the pending Motion. ((Dkt. No. 23); (Dkt No. 50) 16-CV-4643 Dkt.)
SO ORDERED.
Dated:
November d.;(, 2016
White Plains, New York
RAS
'DISTRICT JUDGE
12
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