warehoused documents. Based on the representation of defendant's counsel and his client as to the unavailability or personnel files of witnesses specified by plaintiff's counsel, as well as ignorance of the last known addresses of those individuals, defendant will be precluded from calling at trial any fact witnesses formerly employed on the ship in question concerning whom defense counsel has represented that defendant has no locatable records.
Order of United States Magistrate Judge Michael H. Dolinger, dated December 5, 1990.
During the course of briefing his motion to have BSL's answer stricken pursuant to Rule 37(b)(2)(C), Wiradihardja asserted that contrary to BSL's earlier representation to the Court that it was unable to locate and produce personnel files he sought during discovery, such documents were in fact in BSL's possession and were being withheld from him. Wiradihardja contended that, because BSL's counsel refers to the alleged assailant's "unblemished" "record" as well as "his record" in its memorandum of law, BSL necessarily possessed the assailant's personnel file while attempting to conceal this fact from the Court.
BSL's counsel denied these accusations, indicating that "it amounts to complete nonsense to interpret an inadvertent error in English, taken out of the context of the paragraph . . . as a "terrible" concealment of legitimate discovery documents or information . . . ." Defendant's Reply and Opposition Memorandum ("Def. Mem.") (undated, served and filed on July 26, 1991), at 5. BSL counsel went on to indicate that:
defendant firmly stands by all its previous statements contained in all responses to plaintiff's discovery requests, namely that it has no personnel records regarding the assailant whose correct identity has never been revealed by plaintiff, and that it has truthfully responded to plaintiff's discovery requests. Defendant's Memorandum of Law and the Martocci Moving Affidavit made numerous references to information contained in the record of this case and not in the assailant's personnel records which Mr. Martocci has never seen because defendant does not know the identity of the assailant.
Def. Mem., at 3-4. Thus, BSL affirmed its earlier responses to Wiradihardja's discovery requests; namely, that it (i) had no employee which it could identify as Winston Wilson, employed on the S.S. QUEEN at the time of the incident which is the subject of this action, (ii) was unable to locate and produce any pertinent documents sought by Wiradihardja, (iii) is unaware of any witnesses to the incident of June 30, 1988.
On October 16, 1989, Wiradihardja gave sworn deposition testimony which detailed the facts and circumstances surrounding the June 30, 1988 attack on board the S.S. QUEEN. BSL, however, has proffered no evidentiary facts to rebut Wiradihardja's account of the incident.
Moreover, BSL's statement of undisputed material facts, submitted pursuant to Local Civil Rule 3(g), concedes each and every material aspect of Wiradihardja's factual account of the assault.
Accordingly, with respect to liability only, there are no material issues of fact in dispute and Wiradihardja's unseaworthiness claim is one the Court may decide as a matter of law.
Because the Court finds, for the reasons set forth above, see pp. 9-11, supra, that Wiradihardja has adduced sufficient uncontroverted evidence from which a jury may reasonably conclude that Wilson's presence aboard the S.S. QUEEN rendered the vessel unfit for its maritime endeavors, BSL's failure to rebut any of the evidence supporting Wiradihardja's claim mandates summary judgment, as to liability only, in Wiradihardja's favor.
For the reasons set forth above, BSL's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it summary judgment dismissing the complaint, is granted to the extent that plaintiff's claim for relief is premised upon negligence or respondeat superior, and is denied in all other respects. The Court sua sponte grants summary judgment in favor of plaintiff on his unseaworthinesss claim, with respect to liability only. The parties shall file an amended joint pre-trial order with respect to the trial on damages by September 15, 1992, and the trial on the issue of plaintiff's damages shall begin on October 12, 1992, at 9:30 a.m., in Courtroom 2704.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
September, 1, 1992