for the district of columbia greenpeace, inc ......2015/07/02 · complaint reveals that the first...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Greenpeace, Inc. * Plaintiff * v. * The Dow Chemical Company, et al, * Defendants * * Case No. 1:10-CV-02037-RMC * * * * * * * * * * * * *

DEFENDANT GEORGE FERRIS’S MOTION FOR SUMMARY JUDGMENT Defendant George Ferris, by and through his attorneys Roy B. Cowdrey, Jr., David R.

Thompson, Brynja M. Booth, and Cowdrey Thompson, A Professional Corporation, and W.

Scott Sonntag, pursuant to Fed. R. Civ. P. 56, hereby moves for summary judgment. In support

thereof, Defendant incorporates by reference his Memorandum of Points and Authorities, which

is incorporated by reference as if fully set forth herein.

WHEREFORE, Defendant George Ferris respectfully requests that this Honorable Court

enter summary judgment in his favor and against the Plaintiff on all counts, and enter such other

and further relief as justice requires.

Respectfully submitted, /s/ __________________________________ Roy B. Cowdrey, Jr. David R. Thompson Brynja M. Booth COWDREY THOMPSON, A Professional Corporation 130 North Washington Street Post Office Box 1747

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Case 1:10-cv-02037-RMC Document 46 Filed 02/18/11 of 11

Easton, Maryland 21601 Telephone: (410) 822-6800 Facsimile: (410) 820-6586 /s/ __________________________________ W. Scott Sonntag Federal Bar No. 296889

Maryland Trade Center III 7501 Greenway Center Drive, Suite 460 Greenbelt, Maryland 20770 (410) 982-1254

REQUEST FOR HEARING Defendant George Ferris respectfully requests a hearing on his Motion for Summary

Judgment.

/s/ __________________________________ Brynja M. Booth

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT GEORGE FERRIS’S MOTION

FOR SUMMARY JUDGMENT Defendant George Ferris, by and through his attorneys Roy B. Cowdrey, Jr., David R.

Thompson, Brynja M. Booth, and Cowdrey Thompson, A Professional Corporation, pursuant to

Fed. R. of Civ. P. 56, and LCvR 7(a) and (h), submits the following Memorandum of Points and

Authorities in Support of his Motion for Summary Judgment:

I. ALLEGATIONS SET FORTH IN COMPLAINT

On November 29, 2010, Plaintiff Greenpeace, Inc. filed a suit against the Defendants, the

Dow Chemical Company (“Dow”), Sasol North America, Inc. (“Sasol”), Ketchum Inc.

(“Ketchum”); Dezenhall Resources, Ltd. (“Dezenhall”); Timothy Ward, Jay Bly, Michael Mika,

and George Ferris, seeking compensatory, statutory and punitive damages under The Rackateer

Influenced and Corrupt Organizations Act (“RICO”), §§ 1961-198. See Complaint filed herein.

The Complaint alleges “that between 1998 and 2000, Defendants conspired to and did

surveil, infiltrate and steal confidential information from Greenpeace with the intention of

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preempting, blunting, or thwarting its environmental campaigns.” (Compl. ¶ 2) Greenpeace

alleges that Mr. Ferris’s employer, Beckett Brown International (“BBI”), which was a private

security firm, through its individual employees (Defendants Ward, Bly, Ferris and Mika)

participated in a conspiracy by engaging in an unlawful scheme to obtain confidential

information. (Compl. ¶ 2, 19) Greenpeace contends that BBI was hired by certain chemical

companies to spy on Greenpeace in an effort to stifle its environmental campaigns against the

corporate defendants. (Compl. ¶ 2)

The Complaint makes generalized, non-specific allegations that “between 1998 and

2000”, BBI employees Ward, Bly, Mika and Ferris “[stole] confidential documents and internal

records from dumpsters and recycling bins located at Greenpeace’s offices” located in

Washington D.C.” (Compl. ¶¶ 2, 25) While the Complaint contains vague references to 1998,

the first specific reference to any actual date concerning Mr. Ferris is July 13, 1998. See Compl.

¶ 26 (“between July 13, 1998 and July 18, 2000, Defendants Ward, Bly, Mika and Ferris, or their

agents, conducted more than 120 documented D-Lines at Greenpeace’s offices”). Along this

continuing vein of vague, generalized allegations, the Complaint goes on to sprinkle occasional

references to Mr. Ferris in various paragraphs that include references to other individual

Defendants:

•Defendants Ward, Bly, Mika and Ferris, and/or their agents employed extensive physical surveillance, infiltration and intrusion to obtain from Greenpeace and on behalf of the conspirators.” (Compl. ¶ 32) • Upon information and belief, Bly, Mika and Ferris, or their agents, engaged in electronic surveillance of Greenpeace, including the wiretapping of phones, and hacking into computers.” (Compl. ¶ 36) (emphasis added). • As a result of Ward, Bly, Mika and Ferris, or their agents, ordering and conducting unlawful D-Lines, physical intrusions and electronic surveillance, Defendants obtained a variety of confidential, internal, Greenpeace documents, including: campaign planning documents, confidential donor letters and records

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of contributions; internal communications, confidential legal memoranda; privileged attorney-client communications; ….(Compl. ¶ 46) •As a result of Ward, Bly, Mika and Ferris, or their agents, ordering and conducting unlawful D-Lines, physical intrusions and electronic surveillance, Defendants obtained a variety of confidential, internal, Greenpeace documents, including: campaign planning documents, confidential donor letters or records of contributions; internal communications,….(Compl. ¶ 49)

While Greenpeace makes these generalized allegations against several of the BBI

employees, Mr. Ferris is not specifically mentioned in the supporting paragraphs. (See eg.

Compl. ¶¶ 33-35, 37-45; 47-48; 50-64; 66-107). Indeed, most paragraphs simply refer to BBI

employees. Id.

As set forth more fully below, Mr. Ferris left BBI on August 21, 1998 – one month after

any specific facts in the Complaint allegedly commenced. He was not employed by BBI during

the time period covered by the Complaint. To the extent that the vague allegations in the

Complaint overlap with Mr. Ferris’s employment, his attached affidavit confirms that he had no

involvement in such matters, nor does he have any personal knowledge of these allegations. For

these reasons, Mr. Ferris respectfully submits that he is entitled to judgment as a matter of law.

II. STATEMENT OF MATERIAL FACTS

Defendant George Ferris was employed by BBI from August 1995 until August 21, 1998.

(Ferris Aff. Ex. A ¶¶ 2-3.) In August, 1998, Mr. Ferris left BBI and began working for the

United States Defense Intelligence Agency (“DIA”), where he has continued to work through the

present. (Ferris Aff. Exh. A, ¶ 2)

During his employment with BBI, Mr. Ferris’s supervisor was Joseph Masonis. (Ferris

Aff. Ex. A, ¶ 9) Mr. Ferris’s primary duties were to conduct physical vulnerability surveys,

which evaluated a client's susceptibility to physical intrusions from both inside and outside the

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client’s organization. (Ferris Aff. Ex. A, ¶ 5) These surveys also included assessing a facility’s

vulnerability to damage from hazardous materials, and Mr. Ferris regularly recommended safer

methods of storage and disposal. (Ferris Aff. Ex. A, ¶ 5) His expertise in conducting these

surveys was earned while working as an Explosive Ordnance Disposal Officer in the US Navy.

(Ferris Aff. Ex. A, ¶ 4) Mr. Ferris’s secondary duties at BBI included executive recruiting, and

a small amount of private investigative work. (Ferris Aff. Ex. A, ¶ 7) During Mr. Ferris’s

employment with BBI, Mr. Ferris did not report to Mr. Ward, nor did he work with Mr. Mika or

Mr. Ward on any matter relating to Greenpeace. (Ferris Aff. Ex. A, ¶ ¶ 8, 9) Mr. Ferris has

never even met Mr. Bly, nor has he ever communicated with him. (Ferris Aff. ¶ 16)

As set forth more fully in the attached affidavit, Mr. Ferris was not employed by BBI

during the time period outlined in the Complaint. Moreover, prior to his leaving BBI’s

employment in August, 1998, Mr. Ferris was not aware of any BBI projects that involved

Greenpeace; he never traveled to Washington D.C. or Louisiana on any matter related to

Greenpeace, he never removed trash from any dumpsters at any Greenpeace office; he never

engaged in any wiretapping, physical intrusion, or surveillance of any kind related to

Greenpeace, nor does he have any personal knowledge of anyone else performing the allegations

set forth in the Complaint. (Ferris Aff. Ex. A, ¶¶ 10, 12-15)

III. STANDARD OF REVIEW

A motion for summary judgment should be granted when there is no genuine issue of

material fact, such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56. Where the record, taken as a whole, could not support a reasonable juror finding for the

non-moving party, there is no genuine issue of material fact for trial. Matsushita v. Zenith, 475

U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289

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(1968)). The burden is initially on the moving party to show there is no genuine issue of

material fact. Id. After the movant meets this burden, the non-moving party must “come

forward with ‘specific facts showing a genuine issue for trial.’” Id. (quoting Fed. R. Civ. P.

56(e)).

In determining whether a genuine issue of material fact exists, a Court may “‘pierce the

pleadings and…assess the proof in order to see whether there is a genuine need for trial.’” Id.

(citing Advisory Committee Note to 1963 Amendment of Fed. R. Civ. P. 56(e)). Mere

allegations are not sufficient to create a genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248-49 (1986) (quoting Cities Servs., 391 U.S. at 288-89). Rather, the

non-moving party must produce sufficient evidence to show that a reasonable jury could find in

its favor. Id. If the evidence is “merely colorable, or is not significantly probative, summary

judgment may be granted” to the moving party. Id. at 249-50 (citations omitted); see also

Laningham v. United States Navy, 813 F.2d 1236, 1241 (U.S.App.DC. 1987) (citing Anderson v.

Liberty Lobby) (in meeting its burden, the “non-movant may not rest upon the mere allegations

or denials in his pleading but must present affirmative evidence showing a genuine issue for

trial”.)

IV. ARGUMENT

A. The Complaint Against Defendant Ferris is Nothing More than Untrue, Unsupported Generalized Allegations.

As noted above, the Complaint alleges that “between 1998 and 2000”, BBI employees

Ward, Bly, Mika and Ferris “[stole] confidential documents and internal records from dumpsters

and recycling bins located at Greenpeace’s offices” located in Washington D.C.” (Compl. ¶¶ 2,

25) While the Complaint makes general references to 1998, a closer examination of the

Complaint reveals that the first specific date mentioned relating to George Ferris is July 13,

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1998. See Compl. ¶ 26 (“between July 13, 1998 and July 18, 2000, Defendants Ward, Bly, Mika

and Ferris, or their agents, conducted more than 120 documented D-Lines at Greenpeace’s

offices”.) All other dates and references occur after July 13, 1998.1

As set forth in Mr. Ferris’s affidavit, Mr. Ferris left BBI’s employment on August 21,

1998 – one month later. (Ferris Aff., Ex. A, ¶ 2) He was not employed by BBI during the time

period covered by the Complaint. To the extent that any portion of the generalized Complaint is

directed at a time period prior to Mr. Ferris’s leaving BBI, Mr. Ferris has submitted an affidavit

stating under oath that during his employment at BBI, he never worked on any projects relating

to Greenpeace, nor was he aware that BBI was performing any work relating to Greenpeace.

(Ferris Aff. Ex. A, ¶ 10) Mr. Ferris never took any documents out of any trash receptacles as

alleged in the Complaint, nor did he participate in any so-called “D-lines” against Greenpeace.

(Ferris Aff. ¶12) Mr. Ferris has never traveled to Greenpeace’s offices in Washington D.C. for

any reason. (Id.) Mr. Ferris never traveled to Louisiana as part of his employment with BBI

(Ferris Aff. Ex. A, ¶ 15) Mr. Ferris was never involved in any physical or electronic surveillance

of any kind against Greenpeace, including any surveillance in Washington D.C. or Lake Charles,

Louisiana, where the so-called allegations occurred. (Ferris Aff. Ex. A, ¶ 13) Moreover, Mr.

Ferris most certainly did not break into any offices, wiretap phones, or hack into computers, nor

is he aware of any other person taking such actions. (Ferris Aff. Ex. A, ¶ 14) Mr. Ferris asserts

that these unsupported allegations are defamatory, frivolous and sanctionable.

The generalized allegations set forth in the Complaint against George Ferris are utter and

complete fabrications. Mr. Ferris did not work for BBI during the time period alleged in the

1 See Compl. ¶¶ 29 (referring to May, 2000); ¶ 33 (referring to November 18, 1998); ¶ 42 (August 5, 1999); ¶ 44 (“beginning in January 1999); ¶ 45 (during 1999); ¶ 48 (February 2, 1999); ¶ 52 (from October 1998 until July 1999); ¶ 54 (August 24, 1998).

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Complaint. Plaintiff has conveniently inserted Mr. Ferris’s name in various places in the

Complaint with other BBI employees and used vague, non-specific time frames, in an attempt to

include him in a lawsuit for which he has no personal knowledge, and at a time when he was not

even employed by BBI. There is no substance to support Plaintiff’s scurrilous allegations. Mr.

Ferris respectfully requests that the Court enter judgment in his favor as a matter of law.

V. CONCLUSION

Defendant Ferris respectfully submits that he is entitled to judgment as a matter of law.

Mr. Ferris did not work for BBI during the time period alleged in the Complaint. To the extent

that any of the vague “facts” are alleged to have occurred prior to his August, 1998 departure

date, Mr. Ferris has provided an affidavit confirming that the unsupported allegations alleged in

the Complaint are completely untrue and wholly without merit.

WHEREFORE, Defendant George Ferris respectfully requests that this Honorable Court

entered judgment as a matter of law in favor of Defendant Ferris; and that he be awarded such

other and further relief as the nature of his cause may require.

Respectfully submitted,

/s/ __________________________________ Roy B. Cowdrey, Jr. David R. Thompson Brynja M. Booth COWDREY THOMPSON, A Professional Corporation 130 North Washington Street Post Office Box 1747 Easton, Maryland 21601 Telephone: (410) 822-6800 Facsimile: (410) 820-6586 /s/ __________________________________ W. Scott Sonntag

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Federal Bar No. 296889 Maryland Trade Center III 7501 Greenway Center Drive, Suite 460 Greenbelt, Maryland 20770 Telephone: (410) 982-1254

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendant, George Ferris’s Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment was filed and served this 18th day of February, 2011, electronically by the U. S. District Court for the District of Columbia Electronic Document Filing System (ECF) and/or mailed, postage prepaid, to the following persons on record. Attorneys for Greenpeace, Inc. Victoria S. Nugent Emmy L. Levens Kit A. Pierson Robert Cacace, Jr. COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C. 1100 New York Avenue, NW Suite 500 Washington, DC 20005-3934 Attorneys for Dow Chemical Company Michael J. Lyle David J. Lender James W. Quinn Jennifer M. Oliver Steven A. Tyrrell Weil, Gotshal & Manges, LLP 1300 I Street, NW Suite 900 Washington, DC 20005

Attorneys for Sasol North America, Inc. John M. Simpson Matthew H. Kirtland Michelle C. Pardo Richard C. Smith Kimberly S. Walker Fulbright & Janworski, LLP 801 Pennsylvania Avenue, NW Washington, DC 20004-2623 Attorneys for Dezenhall Resources, Ltd. Dana E. Hill Thomas A. Clare Kirkland & Ellis, LLP 655 15th Street, NW Washington DC, 20005 Attorneys for Ketchum, Inc. Abid Riaz Qureshi Roger Steven Goldman Latham & Watkins 555 11th Street, NW Suite 1000 Washington DC, 20004-1304


/s/ __________________________________

Brynja M. Booth

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EXHIBIT A

Case 1:10-cv-02037-RMC Document 46-1 Filed 02/18/11 Page 1 of 2

EXHIBIT A




ORDER

Having read and considered Defendant George Ferris’s Motion for Summary Judgment,

and any response thereto submitted on behalf of the Plaintiff, it is, this ______ day of

______________________, 2011,

ORDERED, that Defendant George Ferris’s Motion for Summary Judgment is

GRANTED; and be it further

ORDERED, that judgment is entered in favor of Defendant George Ferris and against

Plaintiff, Greenpeace, Inc. on all counts.

____________________________________ THE HONORABLE Rosemary M. Collyer United States District Court


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