Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 1 of 30 1 2 3 4 5 6 7 8 9 10 BENJAMIN C. MIZER Principal Deputy Assistant Attorney General R. MICHAEL UNDERHILL Attorney in Charge CA State Bar No. 104986 FRANK J. ANDERS Trial Attorney CA State Bar No. 227208 U.S. Department of Justice Civil Division, Torts Branch, West Coast Office 450 Golden Gate Avenue, Room 75395, P.O. Box 36028, San Francisco, California 94102-3463 Telephone: (415) 436-6630; (415) 436-6644 Facsimile: (415) 436-6632 E-mail: mike.underhill@usdoj.gov, franklin.j.anders@usdoj.gov Attorneys for United States of America 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 UNITED STATES OF AMERICA, ) ) Plaintiff, ) vs. ) ) DANIEL SHERER, PATRICK ) ANDERSON, A&S FISHERIES, INC., and ) DOE DEFENDANTS I – V, ) ) Defendants. ) ____________________________________ ) Case No.: 5:16-cv-01479-PSG VERIFIED FIRST AMENDED COMPLAINT OF THE UNITED STATES: CONVERSION OF UNITED STATES OWNED PROPERTY; TRESPASS TO CHATTELS; AND INJUNCTIVE RELIEF FOR RETURN OF UNITED STATES OWNED PROPERTY 20 21 Plaintiff, the United States of America, pursuant to Rule 15(a)(1) of the Federal Rules of 22 23 24 Civil Procedure, files this First Amended Complaint, and alleges upon information and belief as follows: JURISDICTION AND VENUE 25 26 27 1. The United States is authorized to bring this suit and the Court has jurisdiction pursuant to, inter alia, 28 U.S.C. § 1345. 28 AMENDED VERIFIED COMPLAINT 1 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 2 of 30 2. 1 Venue is properly in this Court pursuant to, inter alia, 28 U.S.C. § 1391. 2 DEFENDANTS 3 3. Defendant Daniel Sherer is a California resident and was within this District and 4 5 6 within the jurisdiction of this Court at times relevant to this action concerning, inter alia, the tortious conversion of property and trespass to chattels owned by the United States. 7 8 4. Defendant Patrick Anderson is a California resident and was within this District and within the jurisdiction of this Court at times relevant to this action concerning, inter alia, the 9 10 tortious conversion of property and trespass to chattels owned by the United States. 5. 11 12 13 Defendant A&S Fisheries, Inc., is, on information and belief, a California corporation doing business in California and was doing business within this District and within the jurisdiction of this Court at times relevant to this action concerning, inter alia, the tortious 14 conversion of property and trespass to chattels owned by the United States. 15 6. 16 17 and belief, an entity owned by Defendants Patrick Anderson and/or Daniel Sherer. 18 19 At all times relevant hereto, Defendant A&S Fisheries, Inc., was, on information 7. Defendant DOES I – V, are, on information and belief, persons and/or entities domiciled and/or doing business in California and within this District and within the jurisdiction 20 of this Court at times relevant to this action concerning, inter alia, the tortious conversion of 21 22 property and trespass to chattels owned by the United States. 8. 23 24 25 At all times relevant hereto, Defendants Daniel Sherer, Patrick Anderson, A&S Fisheries, Inc., and DOE Defendants I – V (hereafter collectively “Defendants”) were agents of each other with respect to matters relevant to this action concerning, inter alia, the tortious 26 27 28 conversion of property and trespass to chattels owned by the United States. // AMENDED VERIFIED COMPLAINT 2 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 3 of 30 GENERAL ALLEGATIONS 1 2 3 4 5 9. At all relevant times, the United States owned and owns Scientific Mooring MS1 (hereafter “Scientific Mooring MS1”). 10. Scientific Mooring MS1was operated on behalf of the United States by the U.S. Geological Survey (“USGS”). Scientific Mooring MS1an oceanographic mooring buoy and 6 7 includes, inter alia, instruments, stabilizing frames, flotation devices, and connecting chain, that 8 were attached to an anchor at approximately 300 meters water depth in Monterey submarine 9 Canyon, which lies offshore California in the vicinity of Moss Landing, California. 10 11. The USGS deployed Scientific Mooring MS1 on October 6, 2015, as part of a 11 12 collaborative scientific research study of sediment transport in Monterey Canyon, referred to as 13 the Coordinated Canyon Experiment (CCE). (Exh. A, Fig. 1) Scientific Mooring MS1 was 14 deployed from the Monterey Bay Aquarium Research Institute’s (MBARI) R/V Rachel Carson. 15 Five USGS scientists were onboard for deployment, in addition to the ship’s crew and scientists 16 from MBARI. (Exh. A, Fig. 2). 17 18 12. The over-arching goal of the CCE is to produce a step-change in the 19 understanding of submarine turbidity currents by, for the first time, (i) measuring their two key 20 features (synchronous velocity and concentration profiles) in detail, and (ii) documenting spatial 21 changes in their flow velocity from source-to-sink. Instruments on Scientific Mooring MS1 are 22 specially configured with the other CCE mooring instruments to record data on a common time 23 24 base at high sampling rates. The CCE is designed to provide the first high frequency 25 synchronous measurements of current velocity, sediment concentration, water temperature, and 26 salinity associated with the passage of turbidity currents. 27 28 AMENDED VERIFIED COMPLAINT 3 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 4 of 30 1 13. The CCE is an international collaboration among the National Oceanography 2 Centre at Southampton University (UK), University of Hull (UK), Monterey Bay Aquarium 3 Research Institute (MBARI; Moss Landing, CA), USGS (Santa Cruz, CA), and Ocean 4 University of China to comprehensively instrument Monterey Canyon from approximately 300 5 meters to 2000 meters water depth over 18 months (2015-2017) with an extensive array of 6 7 instrumentation. This collaborative international project provides an opportunity for USGS to 8 access an unprecedented dataset and achieve scientific results that USGS would never be able to 9 acquire alone. The USGS operational contribution to the CCE is the compilation and operational 10 support for two moorings (Scientific Moorings MS1 and MS2), as well as equipment, flotation, 11 12 and operational support for a third mooring (MS3). These moorings were placed at 13 approximately 300 meters, approximately 800 meters, and approximately 500 meters water 14 depth, respectively, in the Canyon. 15 14. Scientific Mooring MS1 was planned and deployed as the shallowest of seven 16 wireline moorings included in the CCE. Scientific Mooring MS1 was intended to provide data, 17 18 including current velocities, temperature, orientation of the mooring, sediment concentration in 19 the currents, and samples of sediment in the currents, from the uppermost position in the Canyon. 20 Instruments on Scientific Mooring MS1 were calibrated to collect data on the same intervals as 21 22 instruments on deeper CCE moorings for a comprehensive, coordinated dataset. Scientific Mooring MS1’s instruments were intended to have collected data throughout the El Niño winter 23 24 25 26 27 months between October 2015 and April 2016. MBARI also deployed instruments on Scientific Mooring MS1 as part of CCE. 15. In December 2015 and January 2016, instruments on Scientific Mooring MS1 measured oceanographic data, including data for at least two sediment gravity flow events that 28 AMENDED VERIFIED COMPLAINT 4 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 5 of 30 1 the CCE was planned to measure. MBARI instruments indicate that events occurred in early 2 December and in mid-January that should at least in part be recorded by the instruments on the 3 Scientific Mooring MS1. 4 16. Scientific Mooring MS1 was intended to remain attached to the seafloor until 5 planned recovery during the first week of April 2016. At that time, a signal would have been 6 7 sent to the acoustic release, and Scientific Mooring MS1 would detach from the anchor and float 8 to the surface, where it would be recovered immediately by skilled and experienced USGS 9 scientists and marine technicians. Within the first week of April 2016, Scientific Mooring MM1 10 was to be recovered, data downloaded, and then re-deployed into the same location in Monterey 11 12 13 14 15 Canyon for nearly continuous data collection into the summer of 2016 during phase two of the CCE. 17. On or about January 15, 2016, during a storm, Scientific Mooring MS1 appears to have detached from its anchor and floated to the surface. 16 18. On January 17, 2016, at 12:25 p.m. PST, the homing beacon on Scientific 17 18 19 20 21 Mooring MS1 sent a message to the USGS office, which indicated that the mooring was in the Moss Landing Harbor, California. (Exh. A, Fig. 3.) 19. On or about January 19, 2016, defendant Daniel Sherer notified the USGC that he had taken possession of Scientific Mooring MS1 and that it was on the vessel “IRISH” in Moss 22 Landing Harbor, California. (Exh. A, Fig. 4.) 23 24 20. On or about January 19, 2016, defendant Daniel Sherer informed the USGS and 25 others that Scientific Mooring MS1 would not be returned unless the United States paid money 26 for its return. 27 28 AMENDED VERIFIED COMPLAINT 5 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 6 of 30 1 2 3 4 5 21. Defendant Patrick Anderson subsequently also informed the USGS that Scientific Mooring MS1 would not be returned unless the United States paid money for its return. 22. On or about January 19, 2016, in or near Moss Landing Harbor, a representative of the United States met in person with Defendant Daniel Sherer and spoke via cell phone with Defendant Patrick Anderson. The United States’ representative requested the immediate return 6 7 8 9 10 of Scientific Mooring MS1. The request was refused and, instead, Defendants demanded payment of money to Defendants. 23. On the morning of January 20, 2016, the beacon on Scientific Mooring MS1 signaled a new location on the west side of Moss Landing Harbor, where there is a 11 12 13 14 15 loading/unloading dock. (Exh. A, Fig. 3.) Subsequently, Scientific Mooring MS1 was taken from Moss Landing Harbor in a white pickup truck. (Exh. A, Fig. 4.) 24. On February 19, 2016, Karen Glasgow, Esq., Assistant Field Solicitor at the U.S. Department of the Interior, mailed a letter to David Sherer, Esq. David Sherer purported to be 16 the father of Defendant Daniel Sherer and the attorney for Defendant Daniel Sherer and 17 18 Defendant A&S Fishing. In the foregoing letter, the United States informed attorney Sherer, 19 inter alia, that the United States owns Scientific Mooring MS1 and, further, demanded the 20 immediate return of Scientific Mooring MS1 to the United States. (Exh. B) 21 22 25. On February 23, 2016, David Sherer, Esq., mailed a letter to Ms. Glasgow, stating that Defendants “are the OWNERS of the equipment…” and offering to “SELL” it to the United 23 24 25 States for $45,000.00. (Exh. C., caps in original letter; the letter erroneously lists its date as March 23, 2016.) 26 27 28 AMENDED VERIFIED COMPLAINT 6 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 7 of 30 26. 1 On or about March 29, 2016, Defendants, by and through David Sherer, who 2 purported to be the attorney for Defendants, caused to be published statements reiterating and 3 admitting the Defendants’ wrongful and continuing tortious actions. (Exh. D.) 4 5 27. As a result of attorney Sherer’s actions as aforesaid, and his participation in Defendants’ wrongful and continuing tortious actions, the crime-fraud exception to any 6 7 purported attorney-client privilege is applicable and hereby invoked. 28. 8 9 Despite the requests of the United States for the immediate return of Scientific Mooring MS1, Defendants have refused. 10 29. The United States expressly reserves the right to amend this Complaint to add 11 12 parties and/or causes of action, as may be necessary. 13 AND AS FOR A FIRST CAUSE OF ACTION 14 CONVERSION 15 30. Plaintiff, United States of America, refers to and incorporates by reference as 16 though fully set forth herein each and every foregoing paragraph of its complaint. 17 31. 18 19 Scientific Mooring MS1. 20 21 At all relevant times hereto, the United States did and currently does own 32. At or about the time that Defendants took possession of Scientific Mooring MS1, Defendants were aware that it was owned by the United States. 22 33. Subsequent to Defendants having taken possession of Scientific Mooring MS1, 23 24 and in addition to Defendants’ prior knowledge of the United States’ ownership, the United 25 States informed Defendants in writing that the United States is the owner of Scientific Mooring 26 MS1. 27 28 AMENDED VERIFIED COMPLAINT 7 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 8 of 30 1 2 3 4 34. The United States, as owner of Scientific Mooring MS1, has demanded that Defendants return Scientific Mooring MS1 to the United States, and Defendants have refused. 35. Defendants are not now, nor have they ever been, owner(s) of Scientific Mooring MS1. In violation of law, and contrary to the United States’ rights of ownership, use, and 5 possession of Scientific Mooring MS1, Defendants have refused to return Scientific Mooring 6 7 MS1 to the United States and, further, Defendants responded to the United States’ statement of 8 ownership and demand for return by asserting that Defendants “are the OWNERS of the 9 equipment and that does not change no matter how many times you [the United States’ 10 representative] are ordered to say otherwise.” (Caps in original, bracketed material added.) 11 12 36. Subsequent to having taken possession and claimed ownership of Scientific 13 Mooring MS1, and as a result of Defendants’ negligence, gross negligence, willful misconduct, 14 and other acts and omissions with respect to its handling, care and preservation, Scientific 15 Mooring MS1, including, but not limited to, its scientific instruments, data, and samples, has 16 been damaged and/or destroyed, thereby causing damages and harm to the United States, as well 17 18 as irreparable harm to the scientific work previously performed by Scientific Mooring MS1, as 19 well as irreparable harm to scientific work that was not and will not be performed due to 20 Defendants’ wrongful acts of possession and claimed ownership. 21 22 37. As a direct and proximate result of Defendants’ wrongful claim of ownership of Scientific Mooring MS1, which is adverse and hostile to the United States’ ownership of 23 24 25 26 27 Scientific Mooring MS1, Defendants are liable for the tort of conversion. 38. As a direct and proximate result of Defendants’ wrongful possession and disposition of Scientific Mooring MS1, which is adverse and hostile to the United States’ right of use and possession of Scientific Mooring MS1, Defendants are liable for the tort of conversion. 28 AMENDED VERIFIED COMPLAINT 8 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 9 of 30 39. 1 As a direct and proximate result of Defendants’ negligence, gross negligence, 2 willful misconduct, and other acts and omissions with respect to the handling, care and 3 preservation of Scientific Mooring MS1, including, but not limited to, the care and preservation 4 of its scientific instruments, data, and samples, Defendants are liable for the tort of conversion. 5 40. As a direct and proximate result of Defendants’ conversion(s) as aforesaid, 6 7 Defendants are liable to the United States for damages to be established at trial, including, but 8 not limited to, damages potentially equaling or exceeding $115,000, in addition to such other 9 damages as may be ascertained once Scientific Mooring MS1 is returned to the United States and 10 evaluated by trained scientists and marine technicians. 11 AND AS FOR A SECOND CAUSE OF ACTION 12 TRESPASS TO CHATTELS 13 41. 14 15 Plaintiff, United States of America, refers to and incorporates by reference as though fully set forth herein each and every foregoing paragraph of its Amended Complaint. 16 42. At all relevant times hereto, the United States did and currently does own 17 18 Scientific Mooring MS1. 19 20 21 43. Defendants intentionally and physically took possession of Scientific Mooring 44. Subsequent to Defendants having intentionally and physically taken possession of MS1. 22 Scientific Mooring MS1, the United States informed Defendants in writing that the United States 23 24 25 26 is the owner of Scientific Mooring MS1. 45. The United States, as owner of Scientific Mooring MS1, has demanded that Defendants return Scientific Mooring MS1 to the United States, and Defendants have refused. 27 28 AMENDED VERIFIED COMPLAINT 9 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 10 of 30 1 46. Defendants are not now, nor have they ever been, owner(s) of Scientific Mooring 2 MS1. In violation of law, and contrary to the United States’ rights of ownership, use, and 3 possession of Scientific Mooring MS1, Defendants have refused to return Scientific Mooring 4 MS1 to the United States and, further, Defendants responded to the United States’ statement of 5 ownership and demand for return by asserting that Defendants “are the OWNERS of the 6 7 8 9 10 equipment and that does not change no matter how many times you [the United States’ representative] are ordered to say otherwise.” (Caps in original, bracketed material added.) 47. Defendants have dispossessed the United States of Scientific Mooring MS1 by intentionally and physically taking and retaining possession of Scientific Mooring MS1. 11 12 48. Subsequent to having intentionally and physically taken possession and claimed 13 ownership of Scientific Mooring MS1, and as a result of Defendants’ negligence, gross 14 negligence, willful misconduct, and other acts and omissions with respect to its handling, care 15 and preservation, Scientific Mooring MS1, including, but not limited to, its scientific 16 instruments, data, and samples, has been damaged and/or destroyed, thereby causing damages 17 18 and harm to the United States, due to Defendants’ wrongful acts of possession and claimed 19 ownership. 20 49. 21 Subsequent to having intentionally and physically taken possession and claimed ownership of Scientific Mooring MS1, Defendants have deprived the United States of its legal 22 right to use Scientific Mooring MS1, which has caused irreparable harm to scientific work that 23 24 25 26 27 was not and will not be performed, thereby causing damages and harm to the United States, due to Defendants’ wrongful acts of possession and claimed ownership. 50. As a direct and proximate result of Defendants’ intentionally and physically taking possession and disposing of Scientific Mooring MS1, which is adverse and hostile to the 28 AMENDED VERIFIED COMPLAINT 10 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 11 of 30 1 2 3 4 United States’ right of use and possession of Scientific Mooring MS1, defendants have caused the aforesaid damages to the United States, and are liable for the tort of trespass to chattels. 51. As a direct and proximate result of Defendants’ trespass to chattels as aforesaid, Defendants are liable to the United States for damages to be established at trial, including, but 5 not limited to, damages potentially equaling or exceeding $115,000, in addition to such other 6 7 8 damages as may be ascertained once Scientific Mooring MS1 is returned to the United States and evaluated by trained scientists and marine technicians. 9 AS AND FOR A THIRD CAUSE OF ACTION 10 INJUNCTIVE RELIEF 11 12 13 14 15 52. Plaintiff, United States of America, refers to and incorporates by reference as though fully set forth herein each and every foregoing paragraph of its Amended Complaint. 53. Despite the demand of the United States for immediate return of Scientific Mooring MS1, Defendants have refused to return it. 16 54. Scientific Mooring MS1 has no inherent value or use by Defendants. In short, it 17 18 19 20 21 is a Scientific Mooring platform that contains instruments used to collect data for scientific experiments and studies by USGS and other international science partners. 55. Conversely, USGS scientists have a critical and immediate need to download data from Scientific Mooring MS1. For example, data recorded with other equipment by MBARI, in 22 collaboration with USGS, indicates that events occurred in early December 2015 and in mid23 24 January 2016 that should have been recorded by Scientific Mooring MS1. Without the latter 25 data, USGS and other marine science partners lack important data relevant to scientific work and 26 studies concerning important underwater events in upper Monterey Canyon. 27 28 AMENDED VERIFIED COMPLAINT 11 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 12 of 30 1 56. Additionally, Scientific Mooring MS1 is a critical component of scientific work to 2 be performed with other international science partners pertaining to work which is scheduled to 3 begin no later than April 2016. 4 57. Additionally, the retrieval of Scientific Mooring MS1 by Defendants, instead of 5 by experienced scientists and marine technicians, has already harmed scientific research. Any 6 7 8 9 10 samples remaining after handling by Defendants may not be useable for scientific research because of improper handling by such untrained persons. 58. Additionally, the delay of returning Scientific Mooring MS1 to the United States for handling by trained personnel has caused lost data from the 2015-2016 El Niño winter, such 11 12 data to have been used for many purposes, including work related to, inter alia, long term 13 oceanographic studies of international importance to the United States, other nations, and the 14 United States’ science partners. 15 59. Additionally, Scientific Mooring MS1 itself and its data have been harmed and 16 damaged. Without proper immediate care and preservation of Scientific Mooring MS1, the 17 18 Mooring itself and any data that potentially may remain and be subject to retrieval by the United 19 States will continue to suffer damage and harm, ranging from partial loss to complete and 20 irreparable loss. 21 22 60. In order to determine the amount of damage already sustained by Scientific Mooring MS1 as a result Defendants’ actions, as well as to prevent future damages and losses 23 24 25 from occurring, it is critically necessary that the United States have immediate possession of Scientific Mooring MS1. 26 27 28 AMENDED VERIFIED COMPLAINT 12 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 13 of 30 1 61. The United States already has suffered irreparable harm and prejudice as a result 2 of Defendants’ actions in actively damaging Scientific Mooring MS1and its data, the dollar 3 amount of such damage to be determined at trial. 4 62. But as a result of Defendants’ actions, the United States will continue to suffer 5 permanent and irreparable harm, i.e., further damage to Scientific Mooring MS1 and its data, 6 7 plus the inability to deploy Scientific Mooring MS1for collaborative scientific work to be 8 performed with other U.S. and international science partners, such work having been scheduled 9 to begin no later than April 2016. The only way to prevent such additional damage it to have it 10 returned to the United States immediately for care, preservation, and handling by experienced 11 12 13 14 15 scientists and marine technicians. 63. As a result of the foregoing, and in order to care for, preserve, and prevent additional irreparable damage to Scientific Mooring MS1and its data, as well as to attempt necessary repairs and take actions for the purpose of attempting to enable re-deployment of 16 Scientific Mooring MS1 for the collaborative scientific work set to begin in the very near future, 17 18 the Defendants should be enjoined from continued retention of Scientific Mooring MS1and, 19 further, an injunction should issue by this Court, ordering the immediate return of Scientific 20 Mooring MS1to the United States. 21 WHEREFORE, the United States of America prays as follows: 22 1. That United States of America be granted judgment against DANIEL SHERER, 23 24 25 26 PATRICK ANDERSON, A&S FISHERIES, INC., and DOES I – V pursuant to the Verified Complaint of the United States herein; 2. That damages be awarded to the United States according to losses proved at trial; 27 28 AMENDED VERIFIED COMPLAINT 13 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 14 of 30 1 3. That the United States be granted immediate injunctive and other appropriate 2 relief, including an Order enjoining Defendants from continued retention of Scientific Mooring 3 MS1and, further, an injunction ordering the immediate return of Scientific Mooring MS1to the 4 United States; and 5 4. Such other relief as the Court deems just and proper. 6 7 Dated this 31st day of March, 2016. Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General 8 9 /s/ R. Michael Underhill R. MICHAEL UNDERHILL Attorney in Charge /s/ Frank J. Anders FRANK J. ANDERS Trial Attorney U.S. Department of Justice, Civil Division, Torts Branch, West Coast Office 450 Golden Gate Avenue, Room 75395 P.O. Box 36028 San Francisco, California 941023463 Telephone: (415) 436-6648 10 11 12 13 14 15 16 17 Attorneys for United States of America 18 19 20 21 22 23 24 25 26 27 28 AMENDED VERIFIED COMPLAINT 14 CASE NO.: 5:16-CV-01479-PSG Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 15 of 30 VERIFICATION 1 2 3 4 R. Michael Underhill says: I am one of the attorneys for plaintiff, United States of America, herein, and make this verification by authority for and on its behalf; I have read the foregoing First Amended 5 Complaint, know the contents thereof, and from information officially furnished to me believe 6 7 8 9 10 the same to be true. I verify under penalty of perjury, in accordance with 28 U.S.C. § 1746, that the foregoing is true and correct. Dated: March 31, 2016. 11 s/ R. Michael Underhill R. MICHAEL UNDERHIL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMENDED VERIFIED COMPLAINT 15 CASE NO.: 5:16-CV-01479-PSG Case Document 10 Filed 03/31/16 Page 16 of 30 EXHIBIT A Case Document 10 Filed 03/31/16 Page 17 of 30 75 BALLS ON STRONGBACK IOrn SPECTRA 65 ADCP IN SPHERE w/ IRIDIUM BEACON 25m SPECTRA l4" BALLS ON STRONGBACK 35 ANDERSON TRAP. OBS 20m SPECTRA '0 ANDERSON TRAP. Aquadopp. CTD. OBS TRANSMISSOMETER. Altimiter RELEASE 6 4 3/8 CHAIN IM SPECTRA 0 ANCHOR M51 Figure 1. Diagram of US. Geological Survey mooring (referred to as M81) in the Coordinated Canyon Experiment. This mooring. as shown. was deployed on October 5. 2015. in Monterey Canyon, offshore central California. Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 18 of 30 Figure 2. Photos from deployment of MM1 from R/V RACHEL CARSON on October 6, 2016. (A) Deployment of syntactic sphere (orange) containing acoustic doppler current profiler (ACDP) instrument. (B) Preparation on deck of second Anderson sediment trap, instrumentation, and strongback. (C) Deployment of Anderson sediment trap from Part B (photo above). Case Document 10 Filed 03/31/16 Page 19 of 30 Location of Beacon Signal Location of Beacon Signal . '.015: 1" I Fig Wyljiyiood?r . Figure 3. Maps of US. Geological Survey (USGS) mooring (M81) beacon locations. A) The ?rst beacon location (black dot in red marker) was sent in a message to USGS on January 17. 2016, at 12:25 PM local time. The beacon is located on the eastern side of Moss Landing Harbor. B) The ?nal beacon location (black dot in red marker) was sent to USGS on Wednesday, January 20, 2016, at 10:01 AM local time. The beacon is located on the western side of Moss Landing Harbor where there is a loading/unloading dock. Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 20 of 30 Figure 4. Defendant Daniel Sherer with MS1 in Moss Landing Harbor. Case 5:16-cv-01479-PSG Document 10 Filed 03/31/16 Page 21 of 30 MS1 being taken from Moss Landing Harbor Figure 5. USGS' MS1 being taken from Moss Landing Harbor in white truck on Wednesday, January 20, 2016. Case Document 10 Filed 03/31/16 Page 22 of 30 EXHIBIT Case Document 10 Filed 03/31/16 Page 23 of 30 United States Department of the Interior OFFICE OF THE SOLICIT OR Pacific Southwest Region San Francisco Field Of?ce 333 Bush Street, Suite 775 San Francisco, CA 94104 February 19, 2016 David R. Sherer, Esq. 993 S. Santa Fe, Suite C-158 Vista, CA 92083 Re: United States preperty Dear Mr. Sherer: I am in receipt of your letter dated February 1, 2016, wherein you advised that your client, Fishing, has possession of equipment belonging to the United States Geological Survey an agency of the US. Department of the Interior. You suggest that your client would be willing to retan the property to the USGS, but on the condition that the USGS remit monies to your client. You have conflated two separate issues. The ?rst is the right to possession of property that belongs to the United States government. Your client has no claim or right to possession of the said equipment and, indeed, your client?s continued possession will cause damages to the United States. The United States therefore demands the immediate return of its equipment to the USGS. The second issue is your belief that your client is entitled to some sort of remuneration for having taken possession of the equipment. We are not in a position to provide legal advice as to whether or not your client has a claim. Nevertheless, if you believe your client has some sort of legal claim for remuneration, we trust you will provide appropriate legal advice and that you (or your client) will act accordingly. We stress, however, that effectively holding the equipment as defacto hostage is not the appropriate course and may subject your client (or whomever has possession) to liability. If the equipment is not returned voluntarily, we reserve the right to seek return of the pr0perty by all legal means available and will refer the matter to the appropriate legal authorities within the Department of Justice. Please contact to the undersigned at your earliest convenience to discuss the logistics by which the USGS can retrieve its property. Case Document 10 Filed 03/31/16 Page 24 of 30 US. Department of the Interior 333 Bush Street, Suite 775 San Francisco, CA 94104 (415) 296-3381 (0) (415) 296-3371 (I) Karen.glasgow@sol.doi.gov Case Document 10 Filed 03/31/16 Page 25 of 30 EXHIBIT Case Document 10 Filed 03/31/16 Page 26 of 30 DAVID R. SHERER Attorney at Law 903 S. Santa Fe. Suite Vista. 92083 (805) 23(1-9083 March 23. 30:6 Atty. Karen Glasgow Department of Interior 333 Bush Street. Suite 775 San Francisco. CA 94 04 Re:' Salvage Bottom instrument Thanks for tire position letter ol?FehJQ'?. As an old trial dog I object to the ?rst sentence on the grounds it assumes facts not in evidence. The ?avor of the thing says that the principal authorities you represent have a ?xed position and I'll just have to deal with that. The only thing remaining is to make a speci?c demand to them and watch for a response. it'any. Numhers are at the end ot'this letter. did ask that they let you furnish me with the approximate cost of the equipment and they gave no response. Thus place our arbitrary ?gure of $400.00?. 1 did ask that they furnish any legal authority contrary to the international laws of obstruction to navigation and salvage. They respond with nothing. Daniel and A818 are the OWNERS ofthe equipment and that does not change no matter how many times you are ordered to say otherwise. On good days ?shing they gross $2.700. Taking the bi?eI and gouging thing onto the boat and having it there kept the boat out ol'aetion for nine days I'or a multiply OISE-1.300. Twenty percent ol't'alue would be We offer to Sl-le (you can use any other word you like in an agreement) it to you for $45.00?. Copies ol'this letter are being retained for use. as an exhibit in any future litigation. Very 'l?ruly Yours. David Sherer Case Document 10 Filed 03/31/16 Page 27 of 30 EXHIBIT 2 men take @mBaeew'swehee 2 of 5 LIVE: Microsoft Build 2016 titty 2 keynote LAW DISORDER CIVILIZATION 8: DISCONTENTS 2 men take US gov?t ocean science buoy, now want to ?sell? it back for $13,000 litt?ltut "If you lose something in the ocean. it doesn't stay yours forever." . Panama Farlvar? Mar 29.20166 zeampo'r - Instantly . ?v-?nrth' 1\ J5. glib", I i. a? 1753Il'l?" ?14} .. i isMoored Instrument arrays as I, .. .43FEATURE STORY {2 PAGES) To SQL or That's the database question WWI . But as technological lines blur. there?s not i . . i always a clear-cut answer. Benth Node This aerial view of Monterey Bay from the south was created by combining compiler-generated topograpno and balhymelnc data Ventral reltel has been exaggerated to better show the Monterrey Canyon and mountains on erther side of the bay Matte-ray Bay Arman?th Ringgit-ch institute Turns out. the government doesn't take too kindly to the FURTHER theft olr one of its scienti?c buoys. to a lawsurt filed last week by federal prosecutors in California. two commercial ?shermen are essentially 9 hostage-takers, as they recovered a loose United States Geological Survey buoy in January 2016 and are now walking the 2016 NY Aum demanding money for its return. FISHERMAN WHO Show HAS KEPT USGS By contrast. the ?shermen?s lawyer said on Monday that his BUOY FOR 10 a Jonaman walks around the clients [one of which is his son) recovered the offshore buoy, WEEKSZ ALL I WANT 2MB New VOW Internallonal Aum Show which had come loose from its moorings due to a storm. IS COMPENSATION Therefore, because they took possession of the buoy. they 5mm Shem ?You dmu, know STAY IN THE KNOW WITH 3 became in tact, its rightful owners. The fishermen am not how much um: this I?ll! put meander asking for a ransom?now $13.000?but merely a sticker price. "If you lose something in the ocean. it doesn't stay yours torever. it becomes salvaged," David Sharer, LATEST EWS a the attorney. told Ars. "It's not government property anymore, it?s the linder?s property." EBAY SAVINGS Today only. save SIS orders of 575 or more But by his own admission, Sherer also said that he had "very little" experience in maritime law. On March 25. the government filed its lawsuit v. Sharer or at} against the two men and their firm, ass Fisheries. demanding that the court mandate the return of the buoy along with at least $115,000 in damages. On Monday, Sharer told Are that the govemment had been made aware that the price has Dfs?n?." hm?fi?'nmm nowfallan to swoon It Weird science 1 6J?031?2-men-take-us- 3f 3 ?201 6 2 me" take 3 0f 5 By the government's telling. Scienti?c Mooring M81 was placed at a depth of SOD meters below the surface of the ocean in Monterey Bay outside of ltlloss Landing. California {about too miles south of San Francisco). litlt'li' free in lfiriunl Studio Saarinen tJl'c?t' Madness. werewolves. upon When it was deployed in October 2015. the buoy's obiective was to gather data about conditions in an ocean canyon during the current El Nino event. Data would be obtained through April 2on5. Once complete. the buoy was designed to release itself from the seafloor anchor and send a signal to its scienti?c handlers so that they could manually download its data. The buoy was part of the Coordinated Canyon Experiment and was designed to send data to numerous scienti?c teams from universities worldwide. Livelilii 1: Dev trials. Kantariit. and nature in ?lliltl Z?l? ALL CF THE itminrnn espiinils ?ash with Red Bull. Trojan. Starbucks. and more However. on January 15. 2016. M51 apparently detached itself fron1 its anchor and ?oated to the surface. By January its homing beacon indicated to the United States Coast Guard that it had been taken to share at Moss Landing Harbor. Two days after that. Daniel Sherer. one of the fishermen. informed the USGS that he had taken possession ofthe buoy and that he would not return it unless the government paid him. That same day. January 19. a government representative met Sharer in person. and again he refused to give up custody without payment. This pag Enlarge - Maire sure the web a U5 Drill! f?lJu'icrI: Look for the page wi . NHL-?air. in - Soon after. Sharer and his colleague Patrick Anderson Iawyered up?and told the government that they were represented by Sherer's tether. David. By February 19. Karen Glasgow, a lawyer with the Department of the Interior. sent the men a letter. As she wrote: Who have con?ated two separate issues. The first is the right to possession or property that belongs to the United States government. Your client has no claim or right to possession of the said equipment and. indeed. your client?s continued possession will cause damages to the United States. The United States therefore demands the immediate return or its equipment to the USGS. The second issue is your belief that your client is entitled to some sort of remuneration for having taken possession of the equipment. We are not in a position to provide legal edifice as to whether or not your client has a claim. Nevertheless. if you believe your client has some sort of legal claim for remuneration. we trust you will provide appropriate legal advice and that you {or your client) will act aCcordingly. We stress. however. that effectively holding the equipment as de facro hostage is not the appropriate course and may subject your Client (or whomever has possession) to liability. If the equipment is not returned voluntarily. we reserve the right to seek return of the property by all legal means available and will refer the matter to the appropriate legal authorities within the Department of Justice Four days after that. David Sharer responded with his own letter; As an old trial dog I object to the first sentence on the grounds it assumes facts not in evidence. The ?avor of the thing says that the principal authorities you represent have stirred position and I'll just have to deal with that. The only thing remaining is to make a specific demand to them and watch for a response. if any. Numbers are at the end of this letter I did ask that they let you furnish me with the approximate cost of the equipment and they gave no responSe. Thus place our arbitrary figure of 5400.000. I did ask that they ful'l?ilSh any legal authority contrary to the international laws 0f obstruction ID navigation and salvage. They respond with nothing. Daniel and ass are the OWNERS of the equipment and that does not change no matter how many times you are ordered to say otherwise. Oh good days fishing they gross $2300. Taking the big and gouging thing onto the boat and having it there kept the boat out of action for nine days for a multiply of 524.3%. Twenty percent 381/2016 2 men take [assesses?Sweetest; 4 0f 5 of value would be 530000. We offer to SELL {you can use any other word you like in an agreement]: it to you for $45,000 Losers weepers'.? According to David Sharer. his son Daniel and Anderson were out fishing one day and came across the "floating item." approximately five miles offshore. "[My son was] out and he ?nds this item. which is not connected anymore. it's gotten loose" he said. "It's blocking the watch-way. and loose. And he picks it up as a lost item.? But one maritime lawyer that Ars spoke with said American law actually doesn't rely on a principle oi Ti nd'e rs-keepErs. "In the maritime world. by ?nding property that belongs to someone else. you do not obtain title to it or the right to possession of it unless it has been abandoned." Marilyn Raia. a maritime lawyer in San Francisco. e?mailed. "The offshore distance is irrelevant. If asked. I would not accept the defense of these fishermen in the pending action. This wasn't abandoned so it's a moot point really. Abandonment involves an intentional retinquishmant of rights to property. You can't negligently abandon something.? Department of Justice lawyers did not immediately res pond to Ars' request for comment. Kim a spokesman at the Monterey Bay Aquarium Research Institute. which manages the experiment that the M31 was part of. told Ars he was not familiar with the particulars of this case. However. he did note that there have been "occasional issues" with people taking or damaging oceanic equipment in general. "it's one of the many hazards we face any time we put expensive gear in the ocean." Fultonv?ennett wrote. And so where is the buoy new? David Sherer isn?t telling. "As of today I have no comment on where it is. except that we have it. not the government." he said. Th3 C853 is for its first management conference hetere a federal magistrate judge in 55m JOSE. Catifomia. in June 2016. 100?} @cflri vuron Twitter i OLDER STORY READER COMMENTS 268 .33 52 Td Cyrus Fanvart Cyrus is the Senor Business Editor at Ans Tact-mica. and is also a ratio producer and author His ?rst book. The htemetof Elsewhere. was published In April 2011 NEWER STORY HISTORY The Spouses of' New Solar 'I'cclt These Celebs Will Throws Power Leave 1t?ou Companies A Speechless Cun'e'oall YOU MAY ALSO LIKE . Neil Patrick Harris? Mansion [5 Literally Unbelievable Hl'?lt'l'h Dumbest Athlete Purchases In History - GARDEN KARI-I 3 Tips for :1 Yard Full nt'Lush Green Grass Donald Trump's filthy richness in 33 photos. 3/31f2016