United States District Court, D. New Hampshire
Donna Esty, individually and as Administratrix of the Estate of Hagen Esty-Lennon
Town of Haverhill, et al.
G. McGrath, Esq. Charles P. Bauer, Esq. John A. Curran, Esq.
Matthew Vernon Burrows, Esq. Brian J.S. Cullen, Esq.
K. Johnstone United States Magistrate Judge
Esty brings this action individually and on behalf of the
estate of her son, Hagen Esty-Lennon, who was shot and killed
by two Haverhill police officers in July 2015. She alleges
violations of federal and state law by the Town of Haverhill
and the two officers. The defendants jointly move for summary
judgment (doc. no. 18), and Esty objects (doc. no. 23). There
are also four non-dispositive motions pending before the
court related to the timeliness of Esty's expert
disclosure and whether the court may properly consider
materials attached to or referenced in Esty's objection
to the motion for summary judgment. See doc. nos. 20, 21, 28,
discussed below, the court is not persuaded by Esty's
arguments with respect to the non-dispositive motions. The
court ultimately need not resolve those motions, however,
because even if the challenged materials were properly before
the court, the defendants would still be entitled to summary
judgment on Esty's federal claims. The court accordingly
grants the defendants' motion as to those claims. In an
abundance of caution, the court declines supplemental
jurisdiction over Esty's state-law claims and remands
them to state court. The court denies all other motions as
court starts by summarizing the travel of this case, as it
has some bearing on both the non-dispositive motions and the
motion for summary judgment. Esty initially brought this
action in state court, alleging that the Haverhill Police
Department, the Grafton County Sheriff's Department, the
two officers involved in the shooting, and a third Haverhill
officer violated state and federal law. See doc. no. 1-2. The
defendants removed the action to this court based on the
federal claims (doc. no. 1), and the parties consented to the
jurisdiction of the undersigned magistrate
removed, Esty moved to non-suit the Grafton County
Sheriff's Department (doc. no. 3) and to substitute the
Town of Haverhill for the Haverhill Police Department (doc.
no. 11). She then amended her complaint, dropping the third
Haverhill officer as a defendant. See doc. no. 14. In its
current form, Esty's action comprises nine counts - three
federal and six state - brought against some combination of
the Town and the two officers involved in the shooting. See
court held a preliminary pretrial conference on March 27,
2017. See March 27, 2017 Minute Entry. Attorney James Laura
represented Esty at that conference. See Id.
Following the conference, the court issued a scheduling
order. See doc. no. 12. Consistent with the discussion at the
conference, the court set a July 5, 2017 deadline for Esty to
disclose experts and provide expert reports to the
defendants. See Id. at 1. This deadline was four
days after the deadline proposed by the parties in their
joint discovery plan. See doc. no. 10 at 4 (proposing July 1,
2017). The court set an October 2, 2017 deadline for the
defendants to make corresponding disclosures. See doc. no. 12
at 1. The court further set a November 15, 2017
summary-judgment deadline and a January 16, 2018 discovery
deadline, consistent with the parties' proposals in their
discovery plan. See Id. at 1; doc. no. 10 at 3, 5.
October 6, 2017, the defendants jointly moved for summary
judgment. Doc. no. 18. A little more than two weeks later,
Esty moved to extend the deadlines for the parties to
exchange expert reports. Doc. no. 20. Esty indicated in her
motion that she had forwarded the defendants a copy of her
expert reports on that same date. Id. ¶ 6. The
defendants objected to Esty's motion to extend (doc. no.
22) and jointly moved to exclude Esty's experts (doc. no.
21). Esty did not object to the motion to exclude.
November 6, 2017, Esty filed an objection to the motion for
summary judgment. See doc. no. 23. She attached eight
exhibits to her objection. See doc. nos. 23-2 through 23-9.
The defendants jointly moved to strike several of those
exhibits, as well as references in Esty's objection to
evidence not before the court, contending that they were not
admissible, as required by Rule 56, or were otherwise not
relevant. See doc. no. 28. Esty objected to the motion to
strike. Doc. no. 30
November 9, 2017, the defendants filed a statement on the
status of discovery, as required by the scheduling order. See
doc. no. 26. In that statement, the defendants represented
that they did not believe a discovery-status conference was
necessary. Id. ¶ 9. Esty assented to the
defendants' statement later the same day without raising
any concerns about the status of discovery or of the case in
general. See doc. no. 27.
court heard oral argument on all of the pending motions on
December 6 and 7, 2017. Attorney Peter McGrath represented
Esty at that hearing. Following the hearing, Esty sought
leave to addend her objection to the motion for summary
judgment to attach an affidavit in support of one of her
expert reports. See doc. no. 33. The defendants objected to
that motion. See doc. no. 34.
court turns first to the non-dispositive motions. These
motions present two distinct issues: (1) whether Esty's
late disclosure of her experts was justified or excusable;
and (2) whether Esty has properly supported the materials
attached to or referenced in her objection to the motion for
summary judgment. The court addresses each issue in turn.
first two non-dispositive motions - Esty's motion to
extend and the defendants' motion to exclude - both
address Esty's attempt to disclose experts
three-and-a-half months after her deadline to do so expired.
Though different standards apply to each motion, with the
motion to extend requiring a showing of “good
cause” under Rule 16(b)(4) and the motion to exclude
analyzed under Rule 37(c)(1)'s “substantially
justified or harmless” standard, Esty bears the burden
under either. See Somascan, Inc. v. Philips Med. Sys.
Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013) (Rule
16(b)(4)); Wilson v. Bradlees of New England, Inc.,
250 F.3d 10, 21 (1st Cir. 2001) (Rule 37(c)(1)).
raises several arguments in support of her late disclosure.
First, she suggests that she could not disclose her experts
by July 5, 2017, because certain written discovery was
outstanding at that time and additional non-party depositions
still needed to be scheduled. Next, she argues that an
extension would not prejudice either side, as the defendants
also failed to disclose an expert and her proposal extends
their deadline as well. Third, Esty contends that the
defendants should have been aware that she would seek to
disclose an expert because she mentioned experts in her
demand letter. Next, Esty contended at the hearing that she
needed an expert to prove her case. Esty's counsel also
acknowledged for the first time at the hearing that he missed
the July 5, 2017 deadline due to “confusion” at
his office, which he attributed both to his secretary and
Attorney Laura, and suggested that if the court were inclined
to sanction him, awarding the defendants attorney's fees
would be more appropriate than precluding the experts
response, the defendants contend that Esty has provided no
justification for her failure to timely disclose her experts.
The defendants note that they did not receive discovery
requests from Esty until August 2017, which they argue
undermines any claim that her failure to disclose experts by
the July 5, 2017 deadline was due to outstanding discovery.
They next argue that the demand letter does not constitute a
proper expert disclosure under Rule 26, and therefore does
not excuse the late disclosure. The defendants also reject
Esty's contention that they will not be prejudiced by her
late disclosure, noting that they decided against disclosing
their own expert and elected to file their motion for summary
judgment relying on the fact Esty had not disclosed an
expert. Finally, the defendants dispute any suggestion that
excluding Esty's expert would result in the dismissal of
her action, contending that her expert report is irrelevant
to the court's summary judgment analysis.
court ultimately need not resolve whether Esty has met her
burden under Rule 16(b)(4) or 37(c)(1), as the defendants
would be entitled to summary judgment on the federal claims
even if Esty had properly disclosed her experts. The court
nevertheless emphasizes that it does not find Esty's
arguments to be particularly persuasive, especially given
that she assented to the defendants' November 9, 2017
statement on the status of discovery without raising any of
the issues that she now argues caused the late expert
disclosure. See doc. nos. 26, 27.
other two non-dispositive motions relate to materials
attached to or referenced in Esty's objection to the
motion for summary judgment. The defendants move to strike
several of those exhibits and references, arguing that they
are not admissible, as required by Rule 56(c), or are
otherwise irrelevant to the issues raised in the motion for
summary judgment. Esty counters that the defendants'
motion is premature, as discovery had not closed at the time
it was filed. To this end, Esty suggests, but does not
request, that the court defer ruling on the motion under Rule
56(e) to allow her additional time to present her exhibits in
admissible form.Esty further suggests in her objection, and
reiterated at the hearing, that she does not need to submit
affidavits in order to comply with Rule 56. Alternatively,
Esty takes the position that the court still must deny the
defendants' motion for summary judgment even if it
granted their motion to strike.
well-established that “evidence that is inadmissible at
trial, such as inadmissible hearsay, may not be considered on
summary judgment.” Noviello v. City of Boston,
398 F.3d 76, 84 (1st Cir. 2005) (brackets and citations
omitted). Rule 56(c) accordingly allows a party to
“object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible
in evidence.” Fed.R.Civ.P. 56(c)(2). Furthermore, when
an affidavit or declaration is used to support a fact, it
“must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Id. 56(c)(4).
defendants' motion to strike is well-taken. Many of the
documents attached to Esty's objection or otherwise
referenced therein do not appear to be admissible in
evidence. Moreover, Esty supports those documents solely
through her counsel's affidavit, which does not (and very
likely could not) demonstrate personal knowledge of the facts
in question, let alone that counsel is competent to testify
to those facts at trial. The court once again does not need
to resolve the defendants' motion, however, as the
defendants are entitled to summary judgment on the federal
claims even if the court considers the materials attached to
or referenced Esty's motion for summary judgment. For
this reason, the court likewise need not reach the merits of
Esty's motion for leave to file an addendum.
MOTION FOR SUMMARY JUDGMENT
Standard of Review
judgment is appropriate where the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “If a nonmovant bears the ultimate
burden of proof on a given issue, she must present
‘definite, competent evidence' sufficient to
establish the elements of her claim in order to survive a
motion for summary judgment.” Pina v.
Children's Place, 740 F.3d 785, 795-96 (1st Cir.
2014) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991)). The court must “draw all
reasonable inferences from the record in the light most
favorable to the nonmoving party, disregarding any
‘conclusory allegations, improbable inferences, or
unsupported speculation.'” McGrath v.
Tavares, 757 F.3d 20, 25 (1st Cir. 2014) (quoting
Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.
material facts appear to be largely undisputed. On July 6, 2015,
Haverhill Police Officers Ryan Jarvis and Greg Collins were
on duty at the Haverhill Police Department station when they
were informed over the radio of a motor vehicle accident in
Bath, New Hampshire. Doc. no. 18-2 ¶ 1; doc. no. 18-9
¶ 1. The officers learned that the scene was unsecured
and that an individual had been involved in the accident and
might be armed with a knife. Doc. no. 18-2 ¶ 1; doc. no.
18-9 ¶ 1. The officers left the station in separate
marked cruisers. Doc. no. 18-2 ¶ 2; doc. no. 18-9 ¶
2. Each officer activated his emergency lights and siren.
Doc. no. 18-9 ¶ 2; doc. no. 18-2 ¶ 2. Officer
Collins also activated his body camera while en route. Doc.
no. 18-9 ¶ 2; see also doc. no. 18-10 (conventionally
filed). Officer Jarvis learned over his cruiser radio that
there was an individual walking away from the accident with a
potential stab wound in his chest. Doc. no. 18-2 ¶ 2.
Collins arrived on the scene just ahead of Officer Jarvis.
Doc. no. 18-9 ¶ 3; doc. no. 18-2 ¶ 3. Officer
Jarvis activated his body camera as he exited his cruiser.
Doc. no. 18-2 ¶ 4; doc. no. 18-3 (conventionally filed).
The defendants submitted footage from both officers' body
cameras as attachments to their motion for summary judgment.
See doc. nos. 18-3; 18-10. While the parties dispute how
these videos should be interpreted, they agree that the
videos accurately depict the events immediately following the
officers' arrival at the scene. The following facts are
accordingly drawn from the video recordings unless otherwise
noted. Cf. Scott v. Harris, 550 U.S. 372, 380-81
(2007) (noting that when a party's version of events is
“blatantly contradicted” by a videotape, the
court “should not rel[y] on such visible fiction,
” but rather “view the facts in the light
depicted by the videotape”).
arrived at the scene, Officer Collins pulled into the right
breakdown lane and exited his vehicle. As he did so, a dark
SUV approached in the breakdown lane on the other side of the
road, and the driver - a Town of Bath firefighter who had
responded to the accident (doc. no. 18-4 at 11; doc. no.
18-12 at 6) - raised his hand out the window and waved in
Officer Collins's general direction. Officer Jarvis
parked behind Officer Collins and exited his cruiser. As
Officer Jarvis walked toward Officer Collins's cruiser,
the dark SUV pulled into the center of the road, and the
firefighter exited the SUV looking in Officer Jarvis's
direction. Officer Jarvis briefly raised his hand in an
apparent gesture toward the firefighter.
Collins approached a man, later identified as Esty-Lennon,
standing in the right breakdown lane. Esty-Lennon had a dark
stain on his shirt and was carrying a short knife in his
right hand. Officer Collins gestured at Esty-Lennon and asked
him to approach. Esty-Lennon walked toward Officer Collins,
who asked to see his hands. Esty-Lennon continued walking
toward Officer Collins. Officer Collins pointed at
Esty-Lennon and directed him to keep his ...