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July 24, 2003


The opinion of the court was delivered by: Whelan, District Judge



On April 20, 2000 Plaintiff and his four-person crew left the National City Boatyard aboard Plaintiffs 70 foot three-masted sailing vessel, the Ingomar. Plaintiffs destination was San Francisco's Pier 40. Approximately 18 hours into the voyage, the Ingomar's fuel filter clogged. The vessel lost power and became dead in the water.

At 7:50 a.m. a large container ship approached the Ingomar. Captain Michael Kelley, the Ingomar's skipper, tried to contact the approaching vessel. The container ship altered course and bypassed the Ingomar within 100 yards. The container ship's considerable wake, combined with the already choppy seas, created a washing machine effect. The Ingomar pitched violently; Plaintiff was thrown to the deck; the Ingomar masts snapped in half. Ingomar Captain Kelley contacted the Coast Guard, which in turn contacted the APL Korea, a container ship in the area, to stand-by. The Coast Guard met up with the Ingomar and determined a non-emergency situation. Vessel Assist jumped Ingomar's battery, allowing it to motor to port. Vessel Assist also towed the Ingomar's fallen masts.

On December 18, 2000 Plaintiff sued American Ship Management, APL Korea's operator, for negligently passing Ingomar and injuring Plaintiffs person and vessel. See Gagne v. Northland Ins., 00-CV-2274 JM (JFS). On June 20, 2002 United States Magistrate Judge James F. Stiven conducted that case's third settlement conference. Plaintiff settled with American Ship Management and the APL Korea for $50,000. On August 6, 2002 Judge Jeffrey T. Miller dismissed the case with prejudice and closed the case file. This separate action against Defendant Santa Cruz commenced in July 2002 and Defendant now seeks summary judgment thereon.


Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: by presenting evidence that negates an essential element of the nonmoving party's case, or by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). "The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P.56(e)).

When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.


Defendant Santa Cruz argues that judicial estoppel bars Plaintiff's suit. Defendant Santa Cruz also argues that the record as presented does not reveal any genuine issues of material fact remaining for trial. This Court ...

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