Glover v. Hryniewich et al

Filing 189

OPINION & ORDER: The Court CONSOLIDATES the cases for all further proceedings. Furthermore, the Court RULES as follows on the remaining motions: (1) GRANTS Hryniewich's Motion for Summary Judgment; (2) DENIES the City's Motion for Summa ry Judgment; (3) DENIES Hryniewich's Motion for Res Judicata as MOOT; (4) RESERVES RULING on SBTs Motion for Summary Judgment; (5) RESERVES RULING on SBTs Motion to Exclude; (6) GRANTS SBTs Motion to Withdraw as Attorney; (7) GRANTS SBTs Motion to Amend / Correct Scheduling Oder to Extend Deadline for De Bene Esse Depositions; (8) RESERVES RULING on Willard's Rule 14 and 19 Motions; (9) GRANTS the City's Motion to Stay. The Case is hereby STAYED until further order of the Court. Signed by District Judge Henry C. Morgan, Jr on 2/7/20. (afar)

FILED
IN THE UNITED STATES DISTRICT COURT

FEB -7 2020

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CLERK. U.S. DISTRICT COUHF
NORFOLK. VA

DAVID I. GLOVER,
Plaintiff,
Civil Action No. 2:17cvl09

V.

RICHARD J, HRYNIEWICH
and

THE CITY OF NORFOLK,VIRGINIA
Defendants.

TIMOTHY B. PRIDEMORE,
Plaintiff,
Civil Action No. 2:17cvll0

V.

RICHARD J. HRYNIEWICH
and

THE CITY OF NORFOLK,VIRGINIA
Defendants.

OPINION & ORDER

This matter is before the Court on several outstanding motions in Glover v. Hrvniewich et

^(2:17cvl09)and Pridemore v. Hrvniewich et al.("2:17cvl lOT According to the Court's records,
the following motions are ripe for decision:

• Motion for Summary Judgment by Richard J. Hryniewich ("Hryniewich"), Doc. 90
(2:17cvl09), Doc. 78 (2:17cvll0);
• Motion for Res Judicata by Hryniewich, Doc. 147(2:17cvl09), Doc. 135 (2:17cvll0);

• Motion for Summary Judgment by the City ofNorfolk ("City"), Doc. 152(2:17cvl09),
Doc. 140(2:17cvll0);

• Motion for Summary Judgment by SAFE Boats International, LLC ("SBI"), Doc. 99
(2:17cvl09), Doc. 87 (2:17cvll0);

• Motion to Exclude Third-Party Plaintiffs' Expert by SBI, Doc. 92 (2:17cvl09), Doc.
80(2:17cvn0);

• Motion to Withdraw as Attorney by SBI,Doc. 151 (2;17cvl09), Doc. 139(2:17cvll0);
• Motion to Amend / Correct Scheduling Order to Extend Deadline for De Bene Esse
Depositions by SBI, Doc. 160 (2:17cvl09), Doc. 148 (2:17cvl 10);

• Motion for Leave to File its Fourth-Party Complaint ("Rule 14 Motion") by Willard
Marine Inc. ("Willard"), Doc. 67(2:17cvl09), Doc. 61 (2;17cvll0);
• Motion to Add a Necessary Party("Rule 19 Motion")by Willard, Doc.69(2:17cvl09),
Doc. 64(2:17cvll0);
• Motion to Stay by the City, Doc. 167(2:17cvl09), Doc. 154 (2:17cvll0).
For the reasons stated herein, the Court CONSOLIDATES the cases for all further proceedings.

Furthermore,the Court RULES as follows on the remaining motions:(1)GRANTS Hryniewich's
Motion for Summary Judgment; (2) DENIES the City's Motion for Summary Judgment; (3)
DENIES Hryniewich's Motion for Res Judicata as MOOT;(4)RESERVES RULING on SBTs

Motion for Summary Judgment; (5) RESERVES RULING on SBTs Motion to Exclude; (6)
GRANTS SBTs Motion to Withdraw as Attorney; (7) GRANTS SBTs Motion to Amend /

Correct Scheduling Oder to Extend Deadline for De Bene Esse Depositions; (8) RESERVES
RULING on Willard's Rule 14 and 19 Motions;(9) GRANTS the City's Motion to Stay. The
Case is hereby STAYED until further order of the Court.
1. PROCEDURAL HISTORY

On March 21,2016, Plaintiffs ("Glover and Pridemore") each filed a complaint against the
City of Norfolk ("City") and Hryniewich (collectively, "City Defendants") in Norfolk Circuit

Court("State Actions"). Doc. 6, Ex. 1.' City Defendants responded with Pleas in Bar in the State
Actions and Plaintiffs filed Motions to Strike Defendants' Pleas in Bar. Id at 2. On December

16, 2016, the Norfolk Circuit Court denied Plaintiffs' Motions to Strike. Doc. 7 at 3.

On February 23, 2017, Plaintiffs filed the instant Complaints in this Court ("Federal
Actions"). They allege negligence and gross negligence on the part of the City and Hryniewich
individually. Doc. 1.

On March 6, 2017, the Court ORDERED that the Federal Actions be consolidated for

discovery purposes only. Doc. 4 at 1. On April 21, 2017, Defendants filed a Motion to Dismiss
or Stay Pursuant to Rule 12(b)(1)("Motion to Dismiss"). Doc. 5. On August 4, 2017, the Court

GRANTED the Motion to Dismiss in part, and stayed the Federal Actions pending a Norfolk
Circuit Court ruling on whether sovereign immunity was available to City Defendants in the State
Actions. Doc. 11.

By letter opinion dated August 18, 2017, the Norfolk Circuit Court found that the City was
engaged in a governmental function at the time of the alleged negligent incident. Therefore, the
court held that the City was entitled to sovereign immunity under Virginia law.

Doc. 12, Ex.

A at 1. The Norfolk Circuit Court further held that Hryniewich was entitled to sovereign immunity

for Plaintiffs' simple negligence claims, but not for their gross negligence claims. Id Given the
Norfolk Circuit Court's finding of sovereign immunity, this Court found that abstention was
inappropriate and denied Defendants' Motion to Dismiss. Doc. 13.

On October 31, 2017, Hryniewich and the City filed Third-Party Complaints against
Willard. S^ Doc. 26 (Hryniewich's Complaint); Doc. 28 (City's Complaint). The Complaints
allege that the contract between the City and Willard ("Contract") "required Willard to obtain

' Because filings in case numbers 2:17cvl09 and 2:17cvl 10 are in all material respects identical, this Order and
Opinion will cite to documents in case number 2:17cv 109.

workers' compensation, commercial general liability, and umbrella/excess liability insurance
naming the City as an additional insured." Doc. 28 at 4. "The Contract required this insurance to
cover the City and its Sea Trial representatives for all aspects of the Contract work," and "would
have provided for the City's defense, and for the defense of Officer Hryniewich, and covered any
liability incurred by the City (directly or on behalf of Officer Hryniewich) in the instant suits and
the State Actions up to $2,000,000." Id. The City alleges that, "upon information and belief,"
Willard failed to secure excess or umbrella liability insurance and thus materially breached the
Contract. Id. Hryniewich also alleges Breach of Contract to Procure Insurance, and states that
"[a]s the City's Sea Trial representative, [he] was an intended third-party beneficiary of the
Contract's Insurance Requirements clause." Doc. 26 at 4. City Defendants request indemnity for
"any judgment, verdict, or settlement" in the state and federal suits relating to this matter, and
"attorneys' fees and costs incurred" in defending the state and federal suits. Id at 5; Doc. 28 at 5.
The same day, City Defendants filed Third-Party Complaints against SAFE Boats
International, LLC("SBI"). Doc. 27(Hryniewich's Complaint); Doc. 29(City's Complaint). The
City purchased a 27-foot aluminum hull vessel ("MARINE 5" or "Vessel") from SBI in 2007.

Doc. 29 ^ 5. City Defendants allege that SBI:(1) failed to include a copy of the boat operator's
handbook with the purchase,Id.$ 11;(2)sold MARINE 5 in "an unreasonably dangerous condition
by failing to provide engine power limitations that would allow the vessel to execute turns that are
an ordinary party of her mission," id ^ 36; and (3)failed to exercise reasonable care to ensure City
Defendants were aware of the risk that MARINE 5 would capsize during a high-speed turn, id %
37. Accordingly, City Defendants assert claims against SBI for: general maritime products
liability (Count I); strict products liability (Count 11); breach of express warranty (Count 111);
breach of implied warranty of merchantability (Count IV); and breach of implied fitness for a

particular purpose(Count V). See generally id. City Defendants seek indemnity for any liability
they may incur for the accident.

On March 22,2018, Defendants filed a Notice informing the Court that two (2)issues had

been certified for interlocutory appeal to the Supreme Court of Virginia in the State Actions:(1)
the Norfolk Circuit Court's grant of sovereign immunity for the City in a general maritime law
case, and (2) that court's denial of qualified immunity to Hryniewich. Doc. 56. Shortly after the
Court denied Defendants' Motions for Judgment on the Pleadings. Doc. 60. In that order, the Court
held that the City was not entitled to sovereign immunity. Id

On July 20,2018, Willard filed:(1)a Motion for Leave to File Its Fourth-Party Complaint,
Doc. 67;(2)an alternative Motion to Add Necessary Party, Doc. 69; and (3) a Motion to Stay the

case with respect to Willard, Doc. 65. The Court GRANTED Willard's Motion to Stay and
RESERVED RULING on the remaining motions on October 5, 2018. Doc. 108. For orderly
disposition of the case, the Court further STAYED the case against SBI. Doc. 107.

Defendant Hryniewich filed a Motion for Summary Judgment on September 11, 2018.
Doc. 90. Third-Party Defendant SBI filed a Motion for Summary Judgment on September 28,
2018. Doc. 99. On September 21, 2018, SBI filed a Motion to Exclude Third-Party Plaintiffs'
Expert. Doc. 92. The motion became ripe on August 12, 2019. On October 29, 2018, this Court
ORDERED that the case be continued pending the resolution of the interlocutory appeal to the
Virginia Supreme Court regarding, inter alia, sovereign immunity. Doc. 115.
Plaintiffs filed the Motion to Set Trial on July 18, 2019. See Doc. 119. The Court at a
hearing on September 19, 2019, DENIED the Motion to Set Trial and STAYED the Case pending

a ruling from the Norfolk Circuit Court on whether Hryniewich was entitled to qualified immunity
for gross negligence. S^ Doc. 143. On November 4, 2019, the parties filed a Joint Status Report

informing this Court that the Norfolk Circuit Court determined that Hryniewich is entitled to
federal qualified immunity. See Doc. 144-1 at 13. Additionally, Norfolk Circuit Court stated that
the plainly incompetent doctrine or the state-created danger doctrine did not serve to overcome

Officer Hryniewich's immunity. Id. Because of the Norfolk Circuit Court's ruling, Hryniewich
has filed a Motion to Dismiss for Res Judicata on November 15, 2019. Doc. 147. The Court held

a hearing on November 21,2019 where the Court GRANTED summary judgment to Hryniewhich
and took the other motions under advisement. After this hearing, the City filed its Motion for

Summary Judgment. Doc. 152. Additionally, SBI has filed its Motion to Amend / Correct the

Scheduling Order to Extend Deadline for De Bene Esse Depositions. Doc. 160. The Court held a
hearing on January 15,2020 and heard argument on both the City's Motion for Summary Judgment
and SBI's Motion to Amend / Correct the Scheduling Order.
II.

CASE CONSOLIDATION

Pursuant to Federal Rule of Civil Procedure 42, a court may consolidate two actions ifthey

"involve a common question of law or fact." Fed. R. Civ. P. 42. On March 6, 2017, the Court
ordered that the Federal Actions be consolidated for discovery purposes only. Doc. 4 at 1. Since
that time, the briefing in both cases has been virtually identical, and no reason to maintain the cases
separately has emerged. Given the factual and legal overlap between the cases, and for the sake
ofjudicial economy, The Court hereby CONSOLIDATES cases 2:17cvl09 and 2:17cvl 10 under
2:17cvl09 for all further proceedings, including trial.

III.

HRYNIEWICH AND CITY'S MOTIONS FOR SUMMARY JUDGMENT

A. Undisputed Facts^
On January 21,2014, the City issued a purchase order to Willard "for the modification
and repair of the City's 27 foot aluminum hull SAFE Boat vessel." Doc. 1 ("Compl")^ 6;

Doc. 18 ("City's Answer")^ 6. On February 6, 2014, the City issued an additional purchase
order to Willard to replace the engines and hydraulic steering system of the Vessel. Doc. 91
at 2-7("DSOF")^ 2; Doc. 96 at 2. The Contract consisted of Willard's bid and two purchase
orders the City issued to Willard, Purchase Order Nos. PC 000021464 and PC 000021545

("Purchase Orders"). Compl.

2, 6-9; Answer

2, 6-9;^Doc. 153-1. The Purchase Order

recites that the work was funded by the "2011 Port Security Grant Program". Doc. 153-1. The
City's purchases of the Vessel and others like it were funded through a port security grant
provided through the U.S. Department of Homeland Security, as part of changes to port
security policy following the terrorist attacks of September 11, 2001. Felix Dep. 12:11-20,
Doc. 153-3; Huffman Dep.(Jan. 16, 2018) [hereinafter, "Huffman Dep. H"] 66:4-9, 241:23242:16, Doc. 153-4; The upgrades to the Vessel's engines under the Contract were funded
through a port security grant provided through the U.S. Department of Homeland Security.
Huffman Dep. (May 25, 2017) [hereinafter, "Huffman Dep. I"] 69:20-70:4, Doc. 153-5;
Huffman Dep. II at 95:24-99:22, 101:7-17, 102:19-103:2, 103:24-104:12, 112:8-16, 225:1020; Poch Dep. 19:4-15, 143:23-144:14, Doc. 153-6.
The Norfolk Harbor Patrol works with the U.S. Coast Guard and Navy to help provide

security to state and federal assets in the waters around Norfolk. Hryniewich Dep.(Apr. 18,
2017)[hereinafter, "Hryniewich Dep. I"] 12:2-15 (in response to question about the purpose

^ These are the undisputed facts the Court will adopt for purposes of deciding both Officer Hryniewich and the
City's Motions for Summary Judgment.
7

ofthe Harbor Patrol,testifying, inter alia, that "[a] lot increasingly over the years what we have

been asked to do by the federal government is to provide security components with the [C]oast
[GJuard, escorts of high value assets, Navy carriers, Navy submarines, cruise ships, liquid
natural gas, liquid propane ships.")» 102:24-104:4 (describing Harbor Patrol's operations with

and under the command of Coast Guard); Huffman Dep. I at 25:14-26:2(exercises with Navy),
43:9-20(same), Doc. 153-7; Huffman Dep. II at 146:15-22(the Vessel was used to help protect
aircraft carriers); Pratt Dep. 66:4-25 (City's vessels augmented Navy by escorting its vessels),
67:19-68:4 (training with Navy), Doc. 153-8; Squyres Dep. 39:6-13 (City's vessels supported
Coast Guard missions). Doc. 153-9; Hryniewich Dep. (Jan. 15, 2018) [hereinafter,

"Hryniewich Dep. 11"] at 147:2-149:7 (describing Harbor Patrol's role in regional maritime

security operations under Coast Guard command), 154:1-156:1 (same),^ 177:4-14
(participation in search and rescue operations under Coast Guard command), 205:22-206:12
(Harbor Patrol is required by Coast Guard to check on "critical areas" daily), 207:14-23

(members of Harbor Patrol are oncall twenty-four hours to respond to Coast Guard requests),

Doc. 153-10; Pagan Dep.(Apr. 18, 2017)[hereinafter, "Pagan Dep. I"] 21:17-22:5 (escorting
Navy vessels). Doc. 153-11. The City chose to upgrade the Vessel's engines specifically to
enhance its performance in its vessel escort mission, in which it was responsible for operating
under the command of Coast Guard officers while protecting U.S. Navy vessels, cruise ships,

and other high value targets from potential terrorist attacks. Poch Dep. 23:12-25:17, 26:1627:9, 170:7172:25; see also Hryniewich Dep. I 29:19-30:16(in addition to practicing turns like
the one he was executing at the time of the Accident, Officer Hryniewich executed similar
turns "[ojut of necessity probably ... ten times during high-value vessel escorts ....[wjhile

^ Officer Hryniewich's testimony is transcribed, at 155:24, as referring to the "post USS call world"—this actually is
a reference to the small boat explosive attack on the USS Cole.

actively escorting usually with the coast guard [sic] or another law enforcement or military
unit")-

Willard delivered the Vessel for a sea trial ("Sea Trial") on March 21, 2014. DSOF f

7. Five(5)individuals were present for the Sea Trial: Officer Hryniewich, Plaintiffs, and two
additional City employees, Sergeant Edwin Pagan (Hryniewich's immediate supervisor) and
Lieutenant Timothy Evans. DSOF ^ 5. At all relevant times, Hryniewich was employed by

the City of Norfolk as a police officer. DSOF ^ 1. During the Sea Trial, he acted on behalf of
the City, was in uniform, and was on duty. Id. T[ 4. Plaintiffs were both employed by Willard.
Doc. 96 at 4-7("PSOF")^ 1. Prior to the Sea Trial, City representatives informed Willard that

Hryniewich would be the individual operating MARINE 5 during the Sea Trial. Id. ^ 2.
Accordingly, during the Sea Trial Officer Hryniewich selected the maneuvers,chose the course
and speed ofthe Vessel in each test maneuver, and was responsible for evaluating the handling
of the Vessel. DS0FT[9.

For the first runs of the Sea Trial, Hryniewich was in the operator's seat at the Vessel's
helm on the starboard side of the cabin, Lt. Evans was next to him in the port front seat, Glover

was directly behind Lt. Evans on the port bench seat, and Pridemore was standing just outside the
cabin's rear door on the Vessel's aft deck. DSOF ^ 7. Hryniewich conducted a full throttle, high
speed straight run shortly after performing slower-speed turns. PSOF ^ 14. According to

Plaintiffs, this was outside of the acceptable "break-in procedures" for new engines. PSOF 115.^
Pridemore advised Hryniewich that he was breaking protocol. PSOF H 16.
As the Sea Trial continued, Hryniewich identified what he perceived to be steering issues
with the Vessel and expressed those concerns to others aboard the Vessel. DSOF ^ 10. He

■* Hryniewich argues that this fact is irrelevant. However, the Court does not yet have sufficient information about
the cause of the accident to determine its relevance.

described the steering as "very tight" and more difficult than usual to pull out of a turn when the

Vessel "had some speed on." DSOF^ 11; PSOF|17. Healsoexpressedconcems that the Vessel's
handling was different from his usual experience, and he was not sure if the Harbor Patrol's one

female officer would have sufficient arm strength to operate the Vessel effectively. Id
Hryniewich and Sgt. Pagan discussed Hryniewich's observations in the presence and hearing of
Glover. DSOF112. According to Glover, Hryniewich told him the steering felt"different" during
the Sea Trial, and "hard to pull out of [a] turn." Glover Dep. 61:7-62:20, Doc. 91-3. Glover
responded that the boat would feel different because Willard had increased the horsepower of the
engines and repaired the steering system. Id

The only turns conducted by Defendant Hryniewich prior to identifying the issues with the
steering system were slow speed turns while not having the boat on plane. PSOF H 18. Defendant
Hryniewich did not check the engines or steering system after identifying the steering issues.
PSOF ^ 19. Sgt. Pagan suggested that Hryniewich test the Vessel's steering with a series of high
speed turns. DSOF ^ 14. Two SBI employees testified that vessels like MARINE 5 are capable
of taking a turn at full throttle under certain circumstances. Lohse Dep. 72:1-4 ("I wouldn't say
that we made the hardest turn we could ... but inevitably we did hard turns because the boats do
it and that's thrilling."), Doc. 91-8; id 111:25-112:15("[W]hen you're initiating [a J-tum], you're
always at full throttle. . . It's never taught that way. . . It's what you're comfortable with at the
time."); Peterson Dep. 94:19-21 (stating that high-speed turns could be done or entered at or near
full throttle "at certain times"), Doc. 91-9. At the time of the Sea Trial, Hryniewich was not aware
of any prior capsize incidents involving SAFE Boat vessels. DSOF ^ 23. Hryniewich told Glover

he planned to attempt a high-speed turn, and Glover did not object. DSOF ^ 15. Prior to turning

10

the Vessel, Hryniewich asked Pridemore to come inside the boat due to "safety concerns."^ DSOF
^ 17; Hryniewich Dep. 59:18-60:6, Doc 91-1; Pridemore Dep. 39:7-20; 48:8-50:20, Doc. 91-4. He
explained that this was because the MARINE 5 "turns very hard." DSOF ^ 18. Officer Hryniewich
then warned the others aboard to "hold on", and then attempted a turn to starboard, at which time
the Vessel capsized. DSOF ^ 19; PSOF

20, 24.

Plaintiffs were injured when the Vessel capsized. | Answer ^ 12.
Comp. 12; City's

They were treated in local hospitals and suffered pain as a result of their injuries. Id Plaintiffs
contend that the Accident was a result of Officer Hryniewich's negligent operation of the

Vessel during the Sea Trial. Compl.

11,14,16-17. Plaintiffs contend that the City, as Officer

Hryniewich's employer, is vicariously liable to them for Officer Hryniewich's alleged

negligence. Id. at^^ 13-14, 17.^
B.

Hryniewich's Motion Legal Standard and Analysis

Defendant Hryniewich moves for summary judgment, asserting qualified immunity for
Plaintiffs' claims.

Doc. 91. The parties dispute the appropriate standard for such immunity

under maritime law and whether Hryniewich's conduct would meet the relevant standard.
Hryniewich argues that he is entitled to summary judgment because:(1) Plaintiffs have failed to
allege a constitutional or statutory violation, as required by the qualified immunity standard of42
U.S.C. § 1983 ("Section 1983"), and (2) even if that requirement is waived, Plaintiffs have not
shown that Hryniewich was "plainly incompetent," a standard previously endorsed by this Court.

^ The parties dispute whether Pridemore advised against the turn and requested to be let off the Vessel at this time.
PSOF ^ 22; Doc. 85 at 5 n.4. Hryniewich insists he did not hear such a statement. Hryniewich Dep. 64:3-66:24,

67:9-69:2. The other City Employees do not recall such a statement. Doc. 70 at Ex. 2, 52:10-53:4 (Sgt. Pagan); id.
at Ex. 10, 48:3-9 (Lt. Evans).

^ Officer Hryniewich is immune to Plaintiffs' claims against him. See Section III. B of this Order; This finding has
been held in the State Actions as well.^Pridemore v. Hryniewich. Case No. CL16-3261, Ltr. Op.(Norfolk Cir.
Ct. Oct. 9, 2019), Doc. 144-1: Pridemore. Final Order (Norfolk Cir. Ct. Oct. 25, 2019), Doc. 144-2.
11

14

Summary judgment under Rule 56 is appropriate only when the court, viewing the record
as a whole and in the light most favorable to the nonmoving party, determines that no genuine
issue of material fact exists and that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; see, e.g.. Celotex Corp. v. Catrett. 477 U.S. 317, 322-24(1986); Anderson v.
Liberty Lobby. Inc.. 477 U.S. 242,248-50(1986); Groves v. Comm'n Workers of Am.. 815 F.3d

177, 180 (4th Cir. 2016). Once a party has properly filed evidence supporting the motion for
summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings but
must instead set forth specific facts illustrating genuine issues for trial. Celotex. 477 U.S. at 322-

24. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment. . . against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
A mere scintilla of evidence is insufficient to withstand a motion for summary judgment.

Rather, the evidence must be such that the factfinder reasonably could find for the nonmoving

party. See Anderson. 477 U.S. at 252. Although the court must draw all justifiable inferences in
favor of the nonmoving party, in order to successfully defeat a motion for summary judgment, a
nonmoving party cannot rely on "mere beliefor conjecture,or the allegations and denials contained
in his pleadings." Dovle v. Sentry Ins.. 877 F. Supp. 1002, 1005(E.D. Va. 1995) Cciting Celotex.
477 U.S. at 324).

Qualified immunity is a common law doctrine that "strikes a balance between two key

societal interests: 'the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.'" Safar v. Tingle. 859 F.3d 241, 245 (4th Cir. 2017)(quoting

12

Pearson v. Callahan,555 U.S. 223, 231 (2009)). For the violation of federal rights by government

officials, courts generally evaluate qualified immunity under the framework established by Section
1983. Under that provision, qualified immunity "shields federal and state officials from [civil]
money damages" unless a plaintiff establishes "(1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the challenged
conduct" Ashcroft v. al-Kidd. 563 U.S. 731 (2011)(citing Harlow v. Fitzgerald, 457 U.S. 800,

818(1982)). For immunity to attach, a government official must have been acting within the scope
of his employment and performing a discretionary function during the alleged conduct. See
Anderson v. Creighton. 483 U.S. 635,638-39(1987); In re Allen. 119 F.3d 1129(4th Cir. 1997).

The qualified immunity doctrine "gives government officials breathing room to make reasonable

but mistaken judgments, and protects all but the plainly incompetent or those who knowingly
violate the law." Messerschmidt v. Millender. 565 U.S. 535, 546(2012)(quotations omitted).

i. Plaintiffs Need Not Allege a Constitutional or Statutory Violation

The parties first contest whether Plaintiffs must show that they have suffered a
constitutional or statutory violation, as is typically required to defeat sovereign immunity under
the Section 1983 framework. This Court has previously held that pleading a constitutional
violation is ill-suited to the maritime tort context. See Doc. 60 at 14.

First, the conventional test for qualified immunity under Section 1983 fails to address the
positive federal rights afforded by maritime tort law. Section 1983 generally does not impose
liability when government officials violate duties ofcare arising from tort law. Baker v. McCollan.
443 U.S. 137, 146 (1979). This is because it is intended to vindicate federal rights, and as a

"general rule," there are only "three bodies of federal positive law - the Constitution; federal
statutes, rules, and regulations; and treaties." Gamble v. United States. 139 S. Ct. 1960, 1985

13

(2019). However, admiralty law is an exception to this rule, serving as one of the few arenas in
which federal common law governs. Id at 1984. Federal maritime law provides substantive rights
and remedies for maritime torts, including negligence. State of Md. Dep't of Nat. Res, v. Kellum.
51 F.3d 1220(4th Cir. 1995). It appears that Section 1983 has not yet been adapted to this address

this unique body of federal positive law, where a plaintiff"may clearly allege injury but find it
difficult to attach that injury to the violation of a particular constitutional right or statute." Doc.
60 at 14.

Second, the federalism concerns protected by Section 1983 do not apply in the admiralty

context. Courts require a clear constitutional or statutory violation to overcome qualified
immunity under Section 1983, in part to preserve a balance of power "whereby state governments

retain authority over conventional tort remedies." Safar. 859 F.3d at 251. Indeed,the Constitution
is a "blunt[] instrument" by which to formulate tort duties that govern everyday life. Id. However,

maritime torts present a distinctly federal issue. "When a federal court decides a maritime case, it
acts as a federal 'common law court,' much as state courts do in state common-law cases." Air &

Liquid Svs. Corp. v. DeVries. 139 S. Ct. 986, 992-93(2019)("citing Exxon Shipping Co. v. Baker,
554 U.S.471,489(2008)). This is because federal courts have an interest in ensuring "aU operators
of vessels on navigable waters are subject to uniform rules of conduct." Foremost Ins. Co. v.
Richardson. 457 U.S. 668,675(1982)(emphasis in original). Therefore, while traditionally, "the
definition of legal duties under the law of tort is best left for the state courts to resolve," Safar. 859
F.3d at 251,tort duties imposed by maritime law are the province of federal courts. See Edmonds
V. Compagnie Generate Transatlantique. 443 U.S. 256,259(1979)("Admiralty law is judge-made
law to a great extent"!: Romero v. International Terminal Operating Co.. 358 U.S. 354, 360361 (finding a constitutional grant "empowered the federal courts .. . to continue the development

14

of[maritime] law"). Accordingly, the need to restrict a plaintiffs cause of action to constitutional
or statutory violations is unnecessary in an admiralty case, where federal courts are equipped to
address statutory and tort claims alike.

Admittedly, the few courts that have addressed qualified immunity in the context of
maritime torts, including this Court, have done so under the traditional Section 1983 framework.
See Rabenstine v. Nat'l Ass'n of State Boating Law Adm'rs. Inc.. No. 4:14CV78, 2015 WL

3470191, at *1 (E.D. Va. June 1, 2015)(granting summary judgment on a maritime tort claim for
a plaintiffs failure to allege a constitutional or statutory violation); Harrell v. U.S., 875 F.2d 828
(11th Cir. 1989) (making conclusory statement that the "same considerations" apply to
constitutional torts and non-constitutional maritime torts); Hoefling v. Citv of Miami. 876 F. Supp.

2d 1321,1331 (S.D. Fla. Cir. 2012)(applying Harrelll: Sol v. Citv of Miami. 776 F. Supp. 2d 1375

(S.D. Fla. 2011)(same); but see Yacht Sales Intern.. Inc. v. Citv of Va. Beach. 977 F. Supp. 408,
412 (E.D. Va. 1997) (assessing qualified immunity based on the discretionary-ministerial
framework used for federal officials who commit state law torts). However, it appears that the

appropriate standard for qualified immunity in maritime torts was not directly at issue in those
cases. Moreover, at least one of those courts acknowledged the shortcoming of a conventional

approach. M,776 F. Supp. 2d at 1381 n.5(observing the 1983 framework "is not perfectly suited
to address non-constitutional maritime tort cases, but it will have to do."). Here, Plaintiffs have

presented persuasive reasons for adopting a different standard for qualified immunity in maritime
tort cases.

a.

The Discretionary-Ministerial Test Should Apply

Because the Section 1983 framework is unsuited to maritime torts, the Court must

determine the appropriate standard for qualified immunity. This Court previously suggested that

15

Hryniewich would not be entitled to qualified immunity if he was "plainly incompetent." Doc.60
at 14. Indeed, the Supreme Court has applied the "plain incompetence" standard on several
occasions in the context of constitutional violations. See, e.g.. Messerschmidt. 565 U.S. at 546;

Stanton v. Sims. 571 U.S. 3(2013). However, the Court is persuaded that a "plain incompetence"

standard, in the absence of a constitutional violation requirement, would effectively eviscerate the
qualified immunity defense.

The "touchstone" ofthe "plain incompetence" analysis is "objective legal reasonableness."
Anderson. 483 at 640. Therefore, a qualified immunity defendant must typically establish that his
conduct was reasonable considering available information and clearly established law. Id. at 641.
However, a failure to act reasonably is inherent in the tort of negligence. See Black's Law
Dictionary (11th ed. 2019)(defining "negligence" as "the failure to exercise the standard of care

that a reasonably prudent person would have exercised in a similar situation."). Therefore, a "plain

incompetence" standard for qualified immunity, absent the need for a clearly-established
constitutional or statutory violation, would be indistinguishable from simple negligence. Such a
test would not afford the heightened protection intended by the doctrine.

For the reasons mentioned above, the Court will adopt the common law approach to
governmental immunity. Courts have granted qualified immunity to government officials who
commit state torts while performing a discretionary function. See, e.g.. Barr v. Matteo. 360 U.S.

564, 569-73 (1959)(plurality opinion); Westfall v. Erwin. 484 U.S. 292, 295 (19881: see Yacht
Sales.977 F. Supp. at 412(applying the discretionary function test to a federal maritime tort claim).
However,"discretionary function" immunity is only afforded to "the extent that the public benefits
obtained by granting immunity outweigh its costs." Mangold v. Analvtic Servs.. Inc.. 77 F.3d
1442,1447(4thCir. 1996). For example, in Westfall v. Erwin. the Supreme Court recognized that

16

"official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim
is denied compensation simply because he had the misfortune to be injured by a federal official."
484 U.S. at 295. It therefore advised:

In deciding whether particular governmental functions properly fall within the
scope of absolute official immunity, . . . courts should be careful to . . . consider
whether the contribution to effective government in particular contexts outweighs
the potential harm to individual citizens.

Id.. 484 U.S. at 299-300. The same considerations are implicated when state officials commit
federal maritime torts.

The parties do not dispute that Hryniewich was performing a discretionary function in his

official capacity at the time of the alleged tort. Pursuant to the principles established in Westfall.

whether Hryniewich is entitled to qualified immunity will thus depend on whether the harm caused
by such immunity outweighs its promotion of the "effective administration of. . . government."
Bovle V. United Techs. Corp.. 487 U.S. 500, 523-24 (1988). Here, the negligent operation of

marine vessels does not appear to promote such purposes. Nevertheless, public harm resulting
from a decision to grant qualified immunity is likely minimal, given the "general principle" that
sovereign immunity does not bar a suit against a municipal corporation in admiralty.

N. Ins.

Co. of New York v. Chatham Ctv.. Ga.. 547 U.S. 189, 193-94 (2006). On balance, the Court

FINDS that qualified immunity is appropriate where, as here, a city employee commits a maritime

tort while performing a discretionary function in the scope of his employment. Accordingly, the
Court GRANTS Hryniewich's Motion for Summary Judgment.

17

C. City's Motion Legal Standard and Analysis^
The City on summary judgment contends its motion should be granted for two reasons.
Doc. 153 at 1. First, the City avers that it cannot be vicarious liability for the actions of Officer
Hryniewich because he is entitled to federal qualified immunity. See id at 1. Second, the City

argues that it is entitled to sovereign immunity in the "limited context" of performing port security
operations. See id. at 2.

i. Qualified Immunity and Vicarious Liability
Here,the City requests a ruling that under the general maritime law the City cannot be held
vicarious liable for acts in which its agent is entitled to qualified immunity. The Supreme Court

has highlighted that "the general maritime law is an amalgram of traditional common-law rules,

modifications of those rules, and newly created rules" drawn from state and federal principles.
East River S.S. Corp. v. Transamerical Delaval. Inc.. 476 U.S. 858, 864-65 (1986). The common

law doctrine of respondeat superior has been consistently incorporated into the general maritime
law. Workman v. New York Citv. 179 U.S. 552, 565 (1900)(noting that "under the general

maritime law, where the relation of master and servant exists, an owner of an offending vessel
committing a maritime tort is responsible, under the rule of respondeat superior, is elementary.");
In re MN MSC Flaminia. 2015 AMC 2233 (S.D. N.Y. 2015); Washington v. Fieldwood

Energy. LLC. 2017 AMC 2031 (E.D. La. 2017)(analyzing that the "borrowed servant doctrine"
may apply to make an employer liable for the negligence of a borrowed employee). On the
narrower issue presented here, there is no well-established principle of maritime law regarding the
effect of an employee's qualified immunity on an employer's vicarious liability. With no clear
guidance from the general maritime law, courts will often supplement state law.

' Section III.B for the legal standard governing summary judgment.
See
18

Yamaha

Motor Corp.. U.S.A. v. Calhoun. 516 U.S. 199, 207(1996)(noting the proposition that state law

may be used to supplement federal maritime law so long as state law is "compatible with
substantive maritime policies"); Elevating Boats. Inc. v. Gulf Coast Marine. Inc.. 766 F.2d 195,
198 (5th Cir. 1985).
The case of Schubert v. August Schubert Wagon Co. 164 N.E. 42(N.Y. 1928), was one of

the seminal cases that discussed the effect ofimmunity on vicarious liability. See Sundance Cruises
Corc). v. Am. Bureau of Shipping. 799 F. Supp. 363, 390(S.D.N.Y. 1992)(noting that Schubert is
"one of the seminal cases establishing U.S. law in this area."). Chief Judge Cardozo writing in the
context of interspousal immunity highlighted that "[a] trespass, negligent or willful, upon the
person of a wife, does not cease to be an unlawful act, though the law exempts the husband from
liability for the damage. Others may not hide behind the skirts of his immunity." Id. at 391 (quoting
Schubert). The rule was stated in the Restatement of the Law of Agency and is now incorporated

in the Restatement (Second) of Agency § 217, which articulates that a "principal has no defense
because of the fact that: . . . (ii) the agent had an immunity from civil liability as to the act."
Restatement(Second)of Agency § 217(Am. Law Inst. 1958);^Sundance Cruises Corp..799 F.
Supp. at 391. The citations to the Restatement continually highlight the proposition that "where
the agent has an immunity from civil liability dependent on his or her peculiar status (as for
example a family relationship to the injured party, official immunity ofsome sort or other, infancy,
incompetence, etc.) subsection (b) applies and the principal cannot avail itself of its agent's
defense." Sundance Cruises Corp..799 F. Supp. at 391;^Babcock v. State. 809 P.2d 143, 156
(Wash. 1991)(en banc)(collecting cases that hold that "immunities of governmental officials do
not shield the governments which employ them from tort liability, even when liability is predicated
upon respondeat superior."). Therefore, under these common principles, the Court FINDS that

19

"municipalities are not shielded by the immunities of their agents." Babcock. 809 P.2d at 156

(citing Owen v. Independence. 445 U.S. 622(1980)).^
Here, Hryniewich was found to be entitled to federal qualified immunity. A granting of
qualified immunity is legally distinct from an adjudication on the merits that the agent was
negligent.

Mitchell v. Forsvth. 472 U.S. 511, 528 (1985). ("Similarly, it follows from the

recognition that qualified immunity is in part an entitlement not to be forced to litigate the
consequences of official conduct that a claim of immunity is conceptually distinct from the merits

of the plaintiffs claim that his rights have been violated.") (emphasis added). Accordingly,
qualified immunity serves as an immunity from having to litigate and therefore is not a finding
that the agent ofthe government was not negligent. See Ashcroft v. Iqbal. 556 U.S.662,672(2009)
(citing Mitchell. 472 U.S. at 526);^ Grav-Hopkins v. Prince George's County. 309 F.3d 224,

229 (4th Cir. 2002). The City asserts that Virginia law serves as persuasive authority that "the
exoneration of the agent also exonerates the principal." Id at 153 at 7. The cases cited by
Defendant expounded that "where master and servant are sued together in tort, and the master's

liability, if any, is solely dependent on the servant's conduct, a verdict for the servant necessarily
exonerates the master." Roughton Pontiac Corp. v. Alston. 372 S.E.2d 147, 149 (Va. 1988).

® Owen highlights that:
the official, whose liability is at issue. At the heart of this justification for a qualified immunity for the
individual official is the concern that the threat of personal monetary liability will introduce an
unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the
governing official's decisiveness and distorting his judgment on matters of public policy. The inhibiting
effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed.

First, as an empirical matter, it is questionable whether the hazard of municipal loss will deter a public
officer from the conscientious exercise of his duties; city officials routinely make decisions that either

require a large expenditure of municipal funds or involve a substantial risk of depleting the public fisc.
More important, though, is the realization that consideration of the municipality's liability for constitutional
violations is quite properly the concern of its elected or appointed officials. Indeed, a decisionmaker would
be derelict in his duties if, at some point, he did not consider whether his decision comports with
constitutional mandates and did not weigh the risk that a violation might result in an award of damages
from the public treasury.
Owen V. Independence. 445 U.S. 622,655-56(1980)(citations omitted).
20

However, Virginia law has never held that this principle applies "to claims against an employer
when the employee was dismissed with prejudice on a plea in bar or other procedural matter."
Huges V. Doe.639 S.E.2d 302, 304(Va. 2007). In the case of Hughes v. Doe,the Supreme Court

of Virginia ruled that a dismissal with prejudice based on a plea in bar "was not an affirmative
finding of non-negligence; it merely terminated Hughes' [Plaintiff] ability to hold Lucas
[Employee] liable for any alleged negligence." Hughes.639 S.E.2d at 304. The Court held that the
dismissal "precluded Hughes from pursuing her claim against Pratt [Employer] for Lucas'
negligence on a theory ofrespondeat superior."Id. Therefore, under Virginia law "a dismissal with
prejudice based on a plea in bar extinguishes the viability of the claim against the dismissed party,
it does not do so based on the merits of the claim." Id As previously noted, qualified immunity is
an affirmative defense similar to the dismissal in the case of Hughes and not an adjudication on

the merits. Accordingly, the City cannot avoid respondeat superior liability where its agent is
entitled qualified immunity.
a. Sovereign Immunity

The City contends that it is entitled to immunity, irrespective of Officer Hryniewhich
immunity. The Court has previously denied the City's Motion for Judgment on the Pleadings on
the grounds that the City is not entitled to sovereign immunity. There, the City argued that it was
entitled to sovereign immunity despite the general rule that "[t]he bar of the Eleventh Amendment
to suit in federal courts extends to States and state officials in appropriate circumstances ... but

does not extend to counties and similar municipal corporations." Doc.60 at 8.(quoting Mt. Healthv
Citv Sch. Dist. Bd. of Educ. v. Dovle. 429 U.S. 274, 280(1977)). In that Order, the Court further
reasoned that the United States Supreme Court's decision in Workman v. New York. 179 U.S. 552
(1900), which held "that the City of New York could not claim sovereign immunity as to the

21

negligence of its fire department," precludes a finding for the City of Norfolk. Id The Court
highlighted that there is simply "no way for the City to get around the Workman holding, nor the
Supreme Court's later decision upholding Workman." Id (citing Northern Ins. Co. v. Chatham
Ctv.. 547 U.S. 189, 196 (2006)("Workman dealt only with the substantive law of admiralty

precisely because the Workman Court held that admiralty courts have jurisdiction over municipal
corporations."); Workman. 179 U.S. at 565 ("[A]s a general rule, municipal corporations, like
individuals, may be sued; in other words ... they are amenable to Judicial process for the purposes
of compelling performance of their obligations.")). The reasoning behind the Court's previous
order is still persuasive on summary judgment. The Supreme Court's decision in Northern

Insurance stands firmly on the principle that "this Court's recognition of preratification sovereignty
as the source of immunity from suit is that only States and arms of the State possess immunity
from suits authorized by federal law." Northern Ins. Co. v. Chatham Ctv..547 U.S. 189,193(2006)

(citing Mt. Healthy Citv Sch. Dist. Bd. of Educ.. 429 U.S. at 280). ^ Therefore, under the facts
presented here, the Supreme Court from 1900 to 2006 has consistently "applied the general
principle that sovereign immunity does not bar a suit against a city to an admiralty suit." Northern
Ins. Co.. 547 U.S. at 193 (citing Workman. 179 U.S. at 570). To maneuver around Workman,the
City argues that the situation here is factually distinct because the City of Norfolk Harbor Patrol
was operating as an arm of the state at the time of the capsize.
As an exception to the general rule, the City may be entitled to immunity under the
Eleventh Amendment if determined to be "an arm of the state." Ristow v. South Carolina Ports

Auth., 58 F.3d 1051, 1052 (4th Cir. 1995)(citing Mt. Healthv Citv Sch. Dist. Bd. of Educ.. 429
U.S. at 280);^Lake Country Estates. Inc. v. Tahoe Regional Planning Agencv. 440 U.S. 391,

' its previous order on the City's Motion for Judgment on the Pleadings, the Court held that the City is not an arm
In
of the state. See Doc. 60 at 10.
22

401 (1979) (highlighting that the Supreme Court "has consistently refused to construe the

[Eleventh] Amendment to afford protection to political subdivisions such as counties and

municipalities, even though such entities exercise a 'slice of state power."") When determining
arm of state status, there are six useful factors for the Court to consider. The Court should weigh:
(1) the characterization of the entity by the language of its creating statutes;(2) the origin
ofthe entity's funding;(3) whether the state is financially responsible for the liabilities and
obligations incurred by the entity;(4)the source ofthe power to appoint the entity's officers
or members; (5) whether the function performed by the entity is traditionally state or
municipal; and (6) whether the entity's actions are subject to a veto by the state.

Ristow. 58 F.3d at 1052 (citing Lake Country Estates. Inc.. 440 U.S. at 401). Despite the six
factors, the Court has highlighted "that one factor dominates the inquiry - whether the state treasury
is 'obligated' for 'the losses and debts' of the entity under scrutiny." Ristow. 58 F.3d at 1052

(quoting Hess v. Port Authority Trans-Hudson. 513 U.S. 30, 49 (1994)). This is because the
"'impetus' for the Eleventh Amendment is 'the prevention of federal court judgments that must be
paid out of a state's treasury.'" Ristow. 58 F.3d at 1052 (quoting Hess. 513 U.S. at 49, 51
(highlighting if the state treasury is not impacted by the losses and debts of the enterprise "then
the Eleventh Amendment's core concern is not implicated.").

In weighing the factors, the Court has previously noted the City's admission that "any
judgment entered against the City here would not be paid by the Commonwealth ...." Doc. 60 at

10. Therefore, the most important factor in the inquiry does not weight in favor ofthe City. Despite
this finding, the City claims "that the terrorist attacks of September 11, 2001, caused federal and
state authorities to make the policy judgment that municipal police forces like the City's should be

enlisted to support state and federal maritime security operations directly." Doc. 153 at 18. In
addition, it avers that the purchase of the Vessel and the upgrades to it, which is the subject of the
case, were funded through a federal grant program established by "United States Department of

23

Homeland Security pursuant to 46 U.S.C. § 70107" and that the Commonwealth of Virginia
contributes funds to "every marine patrol unit in the Tidewater region." Id (citing Va. Code §

28.2-108 (2016)). However, this Court has already found that the "[t]he fact that the repairs to and
sea trial of the vessel in question were funded through a federal grant does not threaten or implicate

state sovereignty in any way." Doc. 60 at 9. This is also true with the Commonwealth of Virginia.
Accordingly, the Court previous conclusions in its Judgment on the Pleadings Order, support a
finding that, on summary judgment,the City is not an arm ofthe state and is not entitled to Eleventh
Amendment sovereign immunity.

As previously noted, the City attempts to persuade the Court that the situation and rationale
behind the Workman case, decided nearly 120 years ago, have drastically altered that the Supreme
Court's decision should be abandoned or distinguished. Doc. 153 at 2. The City avers a compelling

argument that the City is entitled to immunity because it should be treated the same as its state and
federal counterparts in performance of the task of port security. Id at 13 (noting that "[t]he Coast
Guard and DGIF [Virginia Department of Game and Inland Fisheries] also would be in similar
positions under the maritime law, as well: both agencies would be immune from maritime tort

claims, except to the extent that the legislature of their respective sovereign has expressly chosen
to waive that immunity. Even though it is engaged in the exact same activity,for the same purpose,
and using the same federal funds" as the City of Norfolk). The Court understands the City
contentions that "it makes no sense for maritime law to bear more harshly on the City in its

performance of a national security role, than on the Navy, Coast Guard, or state agencies doing
the same thing." Id at 15. Additionally, the City argues that "Workman should be abandoned not
only because it no longer fits the fundamentally altered circumstances obtaining on the waterfront,

but also because it failed in its central purpose." Id The Supreme Court in Workman declined to

24

follow New York law because it would result in a lack ofclear uniformity in the rules ofsovereign

immunity as applied to maritime law. Workman. 179 U.S. at 558 (noting that if the Court was to
follow New York law than immunity would be "one thing in one state and one in another; one

thing in one port ofthe United States....").'° The City argues the Workman rationale is no longer
supportable because courts have inconsistently applied immunity to state port authorities. See Doc.

153 at 16 (collecting cases where the courts have come to differing conclusions regarding the
application of Eleventh Amendment immunity to port authorities). Therefore, the City contends
that because Workman has not achieved its primary purpose - it should be abandoned.
Even if the City's arguments are determined to have merit, it is not the duty of a trial court

to abandon binding Supreme Court precedent in favor of the City's rationale. S^ Hutto v. Davis.
454 U.S. 370, 375 (1982)(noting a precedent of [the Supreme Court] must be followed by the
lower federal courts no matter how misguided the judges of those courts may think it to be.) The
maritime rule, articulated in Workman and Northern Insurance, that municipalities are not entitled

to sovereign immunity is applicable to the facts before the Court. Accordingly, the Court DENIES
the City's Motion for Summary Judgment.

The Supreme Court's rational of a uniform maritime law is based on the fact that

the power to change state laws or state decisions rests with the state authorities by which such laws are
enacted or decisions rendered, it would come to pass that the maritime law affording relief for wrongs done,

instead of being general and ever abiding, would be purely local ~ would be one thing to-day and another
thing to-morrow. That the confusion to result would amount to the abrogation of a uniform maritime law is
at once patent. And the principle by which the maritime law would be thus in part practically destroyed would
besides apply to other subjects specially confided by the Constitution to the Federal government. Thus, if the
local law may control the maritime law, it must also govern in the decision of cases arising under the patent,
copyright and commerce clauses of the Constitution. It would result that a municipal corporation, in the
exercise of administrative powers which the state law determines to be governmental, could with impunity
violate the patent and copyright laws of the United States or the regulations enacted by Congress under the
commerce clause ofthe Constitution, such as those concerning the enrollment and licensing of vessels.
Workman. 179 U.S. at 558.

25

IV. HRVNIEWICH MOTION FOR RES JUDICATA

As noted in the previous section, the Court GRANTS Hryniewich's Motion for Summary
Judgment on the grounds that Office Hryniewich is entitled to federal qualified immunity. Doc.
90. Therefore, this favorable ruling for Hryniewich on the issue of federal qualified immunity now

renders Hryniewich's Motion for Res Judicata moot. Accordingly, the Court DENIES
Hryniewich's Motion for Res Judicata as MOOT.
V. SBI'S MOTIONS

SAFE Boats International, LLC ("SBI") has four outstanding motions:
• Motion for Summary Judgment, Doc. 99;

• Motion to Exclude Third-Party Plaintiffs' Expert, Doc. 92;
• Motion to Withdraw as Attorney, Doc. 151;
• Motion to Amend / Correct Scheduling Order to Extend Deadline for De Bene Esse
Depositions, Doc. 160.

First, James L. Johnsen, an attorney representing SBI at the law firm at Crenshaw, Ware &
Martin P.L.C, has left the firm effective November 28, 2019. The Court FINDS that SBI is still

represented by Crenshaw, Ware & Martin and no party will be prejudiced by Mr. Johnsen's
withdrawal. Accordingly, the Court GRANTS the Motion to Withdraw as Attorney as to Mr.
Johnsen. Second, at the hearing on January 15, 2020, the Court heard argument on the Motion to
Amend / Correct Scheduling Order to Extend Deadline for De Bene Esse Depositions. For good
cause shown, the Court GRANTED the Motion at that time. SBI is permitted to take the de bene
esse deposition of Mr. West in a manner and at a time to be agreed upon by the parties. Third, in

the interest of judicial economy, because City Defendants request contribution and/or indemnity
against SBI for their potential liability to Plaintiffs, it is premature to resolve SBI's Motion for
Summary Judgment and Motion to Exclude before interlocutory appeal on immunity. At this time,

26

the Court RESERVES RULING on both SBPs Motion to Exclude and Motion for Summary
Judgment. Doc. 92, 99.
VI.

WILLARD'S MOTIONS

In short, because City Defendants request contribution and/or indemnity against Willard

for their potential liability to Plaintiffs, it is inappropriate to decide Willard's motions before
resolution ofthe underlying facts giving rise to liability. See, e.g.. Builders Mut. Ins. Co. v. Futura
Grp.. L.L.C.. 779 F. Supp. 2d 529, 534(E.D. Va. 2011)("If there is .. . the need for a subsequent
determination of the narrower question of whether there is a duty to indemnify, it will likely be
necessary for this Court to await the outcome of the state court suit before making the duty to

indemnify determination."). After the underlying tort claim is resolved at trial, City Defendants
may proceed against Willard.
Therefore, the Court RESERVES RULING on Willard's Rule 14 Motion for leave and

Willard's Rule 19 Motion to add a fourth-party defendant, Starr Indemnity and Liability Company

("Starr")." Joining Starr before the Court establishes liability in the underlying tort claim would
violate Virginia policy on insurer liability. S^ Va. Code § 8.01-5 ("Nothing in this section shall
be construed to permit the joinder of any insurance company on account of the issuance to any
party to a cause of any policy or contract of liability insurance, or on account of the issuance by
any such company of any policy or contract of liability insurance for the benefit of or that will

inure to the benefit of any party to any cause."); see also United Services Auto. Ass'n v.
Nationwide Mut. Ins. Co.. 241 S.E.2d 784, 788 (Va. 1978)("[l]n Virginia, an injured person must
reduce his claim to judgment before bringing an action against the tort-feasor's liability insurer.").

" Willard has filed a Motion for Leave to File a Fourth Party Complaint, Doc. 67, and, in the alternative, a Motion
to Add a Necessary Party, Doc. 69.
27

Accordingly, the Court may consider adding Starr to the instant case after the interlocutory appeal
has been resolved.
VII. CITY'S MOTION TO STAY

The City moves to stay the case pending its appeal on immunity. The City avers two

separate theories for a stay. First, the City argues that the case must be stayed because the filing of
the City's interlocutory appeal will deprive the court ofsubject matter jurisdiction to proceed with
trial. Doc. 168 at 3. Second, the City contends that even if this Court determines that it has
jurisdiction to proceed with trial, it "should impose a discretionary stay because of all the factors
for evaluating a discretionary stay weight in favor" of granting one. Id. at 6.
A. Mandatory Stay of Proceedings Pending Immunity Appeal

In Mitchell v. Forsvth. 472 U.S. 511 (1985), the Supreme Court of the United States held
that "orders denying individual officials' claims of absolute and qualified immunity are among
those that fall within" the collateral order doctrine outlined in Cohen v. Beneficial Industrial Loan

Corp.. 337 U.S. 541 (1949). The Court identified that "absent immediate appeal, the central
benefits of qualified immunity — avoiding the costs and general consequences of subjecting public
officials to the risks of discovery and trial - would be forfeited . . .

Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy. Inc.. 506 U.S. 139, 143-44 (1993)(citing Forsvth. 472 U.S. at

526). Thus, qualified immunity is an "immunity from suit rather than a mere defense to liability;
and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."

Id at 144 (quoting Forsvth. 472 U.S. at 526);^Grav-Hopkins v. Prince George's County, 309
F.3d 224, 229 (4th Cir. 2002)(noting that "qualified immunity is an immunity from having to
litigate, as contrasted with an immunity from liability"). The party asserting immunity is pleading
their right "not to endure the cost and travail of trial...." Apostol v. Gallion, 870 F.2d 1335, 1338

28

(7th Cir. 1989). Therefore, allowing trial to proceed while interlocutory appeal is pending
essentially "destroys rights created by the immunity." Id
Here,"the City sought summary judgment on the basis of sovereign immunity." Doc. 168
at 2. The successor to Forsvth. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf& Eddy. Inc.. has

extended the Forsvth holding to the context of sovereign immunity. There, the Court held "that
States and state entities that claim to be 'arms of the State' may take advantage of the collateral

order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity."
Puerto Rico Aqueduct & Sewer Auth.. 506 U.S. at 147. The Court affirmed that "the value to the
States of their Eleventh Amendment immunity, like the benefit conferred by qualified immunity
to individual officials, is for the most part lost as litigation proceeds past motion practice." Id at
145; see Madison v. Virginia. 474 F.3d 118, 129 n. 2 (4th Cir. 2006)(highlighting the principle

from Puerto Rico Aqueduct & Sewer Auth that immunity is "effectively lost ifa case is erroneously
permitted to go to trial"). Since,"trial is inextricably tied to the question of immunity ... it makes
no sense for trial to go forward while the court of appeals cogitates on whether there should be
one." Eckert Int'l v. Government of Sovereign Democratic Republic of Fiii. 834 F. Supp 167, 174

n.l2(E.D. Va. 19931: see Apostol. 870 F.2d at 1338.'^
The City's main argument for a stay is that "the filing of the interlocutory appeal will
immediately vest jurisdiction over these questions in the Fourth Circuit.. . ." Doc. 168 at 5. The
Supreme Court in Griggs held that "a federal district court and a federal court of appeals should
not attempt to assert jurisdiction over a case simultaneously." Griggs v. Provident Consumer

The Supreme Court has "identified just four categories of appeals in which the values at stake created a right not
to be tried: claims to(1)absolute immunity, Nixon v. Fitzgerald. 457 U.S. 731,742, 102 S.Ct. 2690, 73 L.Ed.2d 349
(1982);(2)qualified immunity. Mitchell v. Forsvth. 472 U.S. 51 1,530, 105 S.Ct. 2806, 86 L.Ed.2d411 (1985);(3)
Eleventh Amendment sovereign immunity, Puerto Rico Aqueduct and Sewer Auth. v. Metcalf& Eddv. Inc.. 506
U.S. 139, 144—145, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); and (4) the protections of the Double Jeopardy Clause,
Abnev v. United States. 431 U.S. 651,660,97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)." South Carolina State Bd. Of
Dentistry v. Federal Trade Commission. 455 F.3d 436, 444 (4th Cir. 2006).
29

Discount Co.. 459 U.S. 56, 58 (1982); United States v. DeFries. 129 F.3d 1293, 1302(D.C. Cir.

1997)(including the application of Griggs to interlocutory appeals). Griggs held that "the notice
of appeal 'divests the district court of its control over those aspects of the case involved in the
appeal.'" Apostol, 870 F.2d at 1338 (quoting Griggs 459 U.S. at 58). Since immunity is a defense

not to stand trial, proceeding to trial is clearly an aspect of the case implicated in appellate review.
As a result, "courts have concluded that at least as to those claims for which qualified immunity

has been claimed, the district court may not proceed to trial while the interlocutory appeal is

pending." Carrington v. Duke Univ.. No. 1:08CV119, 2011 U.S. Dist. LEXIS 156404, *8

(M.D.N.C. June 9, 2011).'^ An appeal denying sovereign immunity, like qualified immunity,
therefore "divests the district court of jurisdiction (that is, authority) to require the appealing
defendants to appear for trial." Apostol, 870 F.2d at 1338.
Plaintiffs contest that "there simply is no immunity for the Defendant, a municipality, and
this has been the established law for 120 years." Doc. 180 at 8. The Court notes that the Supreme
Court's clear decisions in Workman and Northern Insurance that the City is not entitled to

sovereign immunity. However, the general principle that immunity is a defense from trial
encourages that the appellate court should have the opportunity to determine if the City's changed

Sovereign immunity and qualified immunity both implicate the right not to stand trial. Here is a collection of
cases supporting the rationale that a court should not continue to trial while an interlocutory appeal on qualified
immunity is pending. See Apostol v. Gallion. 870 F.2d 1335, 1338 (7th Cir. 1989)(noting that in an interlocutory

appeal on qualified immunity grounds, "[wjhether there shall be a trial is precisely the 'aspect[] ofthe case involved
in the appeal,'" and such an appeal "divests the district court ofjurisdiction (that is, authority) to require the
appealing defendants to appear for trial"); Stewart v. Donees. 915 F.2d 572. 574 tlOth Cir. 1990)(holding that "the
defendant's interlocutory appeal ... based on qualified immunity divested the district court ofjurisdiction to conduct
a trial"); Walker v. Citv of Orem. 451 F.3d 1139(10th Cir. 2006)(holding that during an interlocutory appeal of a
motion to dismiss on qualified immunity grounds, the district court was divested ofjurisdiction to proceed even as to
summary judgment determinations); see also Mitchell v. Forsvth. 472 U.S. 51 1, 526, 105 S. Ct. 2806, 2815, 86 L.

Ed. 2d 411 (1985)(noting that where a qualified immunity defense is raised, defendants have an "entitlement not to
stand trial or face the other burdens of litigation, conditioned on the resolution ofthe essentially legal question
whether the conduct of which the plaintiff complains violated clearly established law"); Grav-Hopkins v. Prince
George's Countv. 309 F.3d 224, 229 (4th Cir. 2002)(noting that "qualified immunity is an immunity from having to
litigate, as contrasted with an immunity from liability"); Cloaninger v. McDevitt. 555 F.3d 324, 330(4th Cir. 2009).
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circumstances merit a departure from the Workman holding.^'' The proposition that a "sovereign
immunity defense is 'both a defense to liability and a limited entitlement not to stand trial or face

the other burdens of litigation'" support that this case should not proceed while an interlocutory
appeal on immunity is pending. White v. Chapman. No. 1:14CV848, 2015 WL 13021744, at *2
(E.D. Va. Apr. 29, 2015)(quoting Ashcroft v. Iqbal. 556 U.S. 622, 672 (2009)). Therefore, the
Court FINDS that it lacks jurisdiction to proceed to trial during the pendency of the City's

interlocutory appeal.'^ See White. No. 1:14CV848, 2015 WL 13021744, at *2 (ruling two weeks
before trial that the "entire case is stayed so that [Defendant] may make an interlocutory appeal to

the Fourth Circuit on the question of whether he is entitled to sovereign immunity"). Due to this
holding, the Court need not consider the City's alternative argument for a discretionary stay.
Accordingly, the Court GRANTS the City's Motion for a Stay.
VIII. CONCLUSION

For the reasons stated herein, the Court CONSOLIDATES the cases for all further

proceedings. Furthermore, the Court RULES as follows on the remaining motions:(1)GRANTS
Hryniewich's Motion for Summary Judgment; (2) DENIES the City's Motion for Summary
Judgment; (3) DENIES Hryniewich's Motion for Res Judicata as MOOT;(4) RESERVES
RULING on SBTs Motion for Summary Judgment;(5)RESERVES RULING on SBTs Motion
to Exclude;(6) GRANTS SBTs Motion to Withdraw as Attorney;(7)GRANTS SBTs Motion to
Amend / Correct Scheduling Oder to Extend Deadline for De Bene Esse Depositions; (8)

Here, the facts tied to an immunity determination are undisputed. Therefore, the question on appeal is one of
application of Workman and Northern Insurance to the presented facts.^A1 Shimari v. CACI Intern.. Inc.. 679
F.3d 205, 221-22(4th Cir. 2012)(noting that the Court of Appeals may consider and rule on "an interlocutory
appeal of a denial of immunity ... of... an ostensibly fact-bound issue that may be resolved as a matter of law

(such as whether facts that are undisputed or viewed in a particular light are material to the immunity calculus)..
■").

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RESERVES RULING on Willard's Rule 14 and 19 Motions;(9) GRANTS the City's Motion to

Stay. The Case is hereby STAYED until further order of the Court.
The Clerk is REQUESTED to deliver a copy of this Order to all counsel of record.
It is so ORDERED.

,,
/sf

Henry Coke Morgan, Jr.
Senior United Slates District Judge

HENRY COKE MORGAN,JR.
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

February ^ ,2020

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