Lawsuit Against OC, Coast Guard Allowed To Proceed

OCEAN
CITY – Frustrated with the alleged inactivity of the lawyer he retained in the
case, the owner of a commercial scallop boat got the green light last week to
proceed with a civil suit against Ocean City and the Coast Guard on his own
just before a deadline to dismiss the case.

In the
early morning hours of Sept. 11, 2006, the “Mighty Duck,” a 42-foot commercial
scallop boat operating out the West Ocean City commercial harbor, ran around in
storm-tossed seas just off the coast. It was left at the mercy of the seas,
which were churning with high winds and rough surf, before it eventually
slammed into the Wicomico Street Pier, causing considerable damage to the
historic structure.

The
“Mighty Duck,” wedged under the pier and lashed by high waves, was eventually
dismantled and hauled away in pieces after efforts to salvage the vessel
failed. Almost three years to the day, in September 2009, the vessel’s owner,
Douglas Kelly, of Selbyville, filed suit in U.S. District Court, alleging
negligence on the part of the town of Ocean City and the Coast Guard for the
ultimate demise of the vessel seeking $250,000 in damages from each of the
defendants in the case.

However,
months went by with little or no activity in the case as Kelly attempted to
spur the attorney he retained to represent him in the suit, David Honick, of
Salisbury, to serve the requisite subpoenas and file the necessary paperwork.
Earlier this month, U.S. District Court Judge Catherine Blake imposed a
deadline of June 17 for Kelly to “show cause why his case should not be
dismissed without prejudice.”

Last
Tuesday, two days before the judge’s imposed deadline, Kelly successfully
petitioned the court to allow him to proceed with the case on his own or retain
another attorney to pick up the ball. Kelly explained to the judge repeated
efforts to have Honick file the appropriate documents and serve the necessary
subpoenas on the defendants were fruitless and alluded to the possible health
issues of his attorney.

“Mr.
Honick promised me he would take care of the matter as soon as possible and
notify the court that he would continue to serve as my counsel,” Kelly told the
judge in a letter. “Since I had already paid Mr. Honick to perform these
services, I waited as long as I could to allow him the opportunity to fulfill
his obligations and to give him the benefit of the doubt. After our
conversation, I repeatedly called and stopped by his office seeking
confirmation that he had performed the services as he promised he would do.
Unfortunately, yet again, he did not.”

Frustrated
with the alleged lack of response from his attorney, Kelly appealed to the
judge to allow him to proceed with the case on his own, or in the alternative,
get an extension of the deadline to allow him to seek a new attorney.

“I
recently stopped trying to contact Mr. Honick because of the additional stress
he has added to an already emotional and financially burdening case for my
family and me,” Kelly wrote. “My livelihood depends on this case and I
respectfully request your authority to exercise my right to self-representation
and to serve the summonses to the defendants in accordance with the law and to
proceed in a timely fashion.”

Having
received the letter prior to her own imposed deadline of June 17, the judge
this week issued an order allowing Kelly to proceed without the counsel of
record and instead, represent himself in the case or retain a new attorney.

“The
plaintiff’s request shall be granted,” the order reads. “Counsel shall be
stricken from the docket. The plaintiff remains obligated to effect service on
the defendants.”

In the
order, Judge Blake issued a few caveats to Kelly about proceeding on his own.
First of all, the summonses issued in September 2009 have expired and he must
submit new summonses to the town of Ocean City and the Coast Guard in a timely
fashion. In addition, because Kelly lives in Delaware, he has a duty to keep on
file with the clerk and address within the Fourth District where notices may be
sent. The judge also granted Kelly an additional period of time to complete the
aforementioned chores.

Most of
the allegations in Kelly’s 10-page complaint revolve around the actions, or
inactions, of the defendants in the hours after the vessel first ran aground.
According to the complaint, the Coast Guard responded to the grounded vessel
and subjected the captain to a breathalyzer test, which yielded no presence of
alcohol. However, with the captain no longer aboard, the vessel continued to founder
in the heavy surf and ultimately slammed into the pier.

In
terms of Ocean City’s involvement, the Ocean City Police Department was
notified of the grounding and responded to the scene to work in conjunction
with the Coast Guard from the land on the salvage effort.

According
to the complaint, OCPD officers assured the Coast Guard they would “keep an eye
on the vessel as they patrolled the Boardwalk in the early morning hours,” but
the Coast Guard did not return until 10 a.m. the next day, by which time the
fate of the “Mighty Duck” had been sealed.

 

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