                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1953


SUSAN C. TURNER, Individually and as Administratrix of the
Estate of Roger W. Turner, Jr.,

                 Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA; UNITED STATES COAST GUARD,

                 Defendants – Appellees,

           and

LIBERTY   MUTUAL   INSURANCE   COMPANY,          d/b/a   Montgomery
Insurance; SIMMONS & HARRIS INSURANCE            AGENCY, INC.; THE
NETHERLANDS INSURANCE COMPANY,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (2:09-cv-00037-BO)


Argued:   September 17, 2013                 Decided:   November 20, 2013


Before MOTZ and DIAZ, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion. Judge Gibney wrote the opinion,
in which Judge Motz and Judge Diaz joined.
ARGUED: Cynthia Marie Currin, CRISP, PAGE & CURRIN, LLP,
Raleigh, North Carolina, for Appellant.    Bruce A. Ross, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: Thomas G. Walker, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina; Stuart F.
Delery, Principal Deputy Assistant Attorney General, Douglas M.
Hottle, Torts Branch, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellees.




                               2
GIBNEY, District Judge:

     This    case       comes    before   the     Court    on    an    appeal    of   the

district court’s grant of summary judgment to the defendant, the

United States Coast Guard (“USCG”), in a personal injury and

wrongful death action.            The central issue in the case concerns

whether the Coast Guard breached a duty of care in attempting to

rescue Susan Turner and her husband, Roger Turner, Jr.                          Based on

the record in this case, we conclude that the Coast Guard is not

liable for Ms. Turner’s injuries or Mr. Turner’s death.

     In addition, the case presents questions arising from three

subsidiary matters: (1) Ms. Turner demanded sanctions premised

on the USCG’s alleged deliberate spoliation of evidence; (2) she

opposed     the    district       court’s       decision    to    grant     the       USCG

permission to file an out-of-time motion for summary judgment,

claiming the decision deprived her of due process; and (3) she

challenged the propriety of the USCG’s responses to Turner’s

Freedom of Information Act (“FOIA”) request.                     The district court

ruled against her on all three issues.                 We find that the rulings

on the issues of spoliation and the timeliness of the motion

reflect proper exercises of the district court’s discretion and

should not be disturbed.             We also affirm the district court’s

ruling    that    the    Coast    Guard’s       response   to    Ms.   Turner’s       FOIA

request satisfied its duty under that Act.

     We therefore affirm the judgment of the district court.

                                            3
                                              I.

      Susan Turner commenced this action by filing a complaint in

which she – in her individual capacity and as administratrix of

her   husband’s    estate      –    brought        personal      injury    and   wrongful

death claims against the United States and the USCG under the

Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 30901-30918.

      The   case    arises         from   a       tragic     boating      incident     that

occurred    in   the     coastal     waters        of    North    Carolina.       On   the

afternoon of July 4, 2007, Ms. Turner and her husband, Roger

Turner, Jr. (collectively, the “Turners”), left their home on

the   Little     River    on   their      private          20-foot     long   motorboat,

intending to watch holiday fireworks.                      Before leaving, Roger Jr.

spoke to his father, Roger Sr., telling him that the Turners

would be going to one of three possible locations that evening:

the Pasquotank River, the Perquimans River, or Mann’s Harbor.

After leaving home, the Turners decided to travel to a party at

the home of a friend, located on the Perquimans River.

      The Turners left that affair at around 8:30 p.m.                           By then,

the seas were rough, with waves of three to four feet.                                  The

Turners did not wear life jackets.                      Attempting to move from bow

to stern, Ms. Turner fell overboard at approximately 9:00 p.m.,

nearly one and a half miles offshore.                         She cried out to her

husband, who responded, and turned the boat around to come back

for her.    Ms. Turner could see the boat but could not see Roger

                                              4
Jr.         Soon Ms. Turner lost sight of the boat.                  At some point

thereafter, Roger Jr. also entered the water.                  The Turners’ boat

stayed afloat, drifting downriver.

        When the Turners did not return home by 9:30 p.m., Roger

Sr. became concerned.           After trying without success to reach the

Turners on their cell phones, he called 911 at about 12:25 a.m.

That        office   relayed    Roger      Sr.’s   information       to    the   North

Carolina Wildlife Resources Commission (“NC Wildlife”) and the

USCG, which returned Roger Sr.’s call at about 1:00 a.m. on July

5. 1    Roger Sr. told the Command Duty Officer that the Turners

were overdue in returning home, and that they might be in one of

three locations his son had given him earlier that afternoon.

He     also     mentioned     that   the    Turners    could   be     at    a    fourth

location, a friend’s cabin of unknown address.

        Roger    Sr.   told    the   duty    officer   that    the    Turners     were

experienced boaters and strong swimmers.                He also told the Coast


        1
       The log for the Turner case in the CG’s Marine Information
for Safety and Law Enforcement (MISLE) system contains an entry
corresponding with the time of 9:58 p.m. on July 4, 2007,
stating: “Response resource requested.” The resource requested,
“UTL-212051,” was a 21-foot utility boat stationed at the USCG’s
Elizabeth City Air Station. The USCG later explained this entry
was a “placeholder” created by the watch-stander, and unrelated
to any actual call. The watch-stander testified that he chose
this time randomly. The record contains no evidence that the
USCG tried to rescue the Turners as early as 9:58 p.m., or that
the USCG even had any information concerning the Turners at that
time.



                                            5
Guard that the Turners’ vessel had flares, a VHF radio, cell

phones, flotation devices, an anchor, and food and water.                         Upon

receipt of this information, the USCG decided that, due to the

number    of   potential      locations    and    the   current     deployment      of

search assets on a confirmed emergency mission (a missing jet

ski),    the   USCG   would    not     initiate   an    active     search   for    the

Turners’ overdue boat at that time.                 Instead, the duty officer

informed Roger Sr. that the USCG would begin making radio calls

and would inquire with local marinas later that morning.

     NC Wildlife contacted the USCG in regards to Roger Sr.’s

call.      The   USCG    told     NC     Wildlife      that   it    would   request

assistance from NC Wildlife if necessary, but that due to the

size of the area in which the Turners might be located and the

nature of the call (an overdue boat manned by two experienced

boaters and swimmers), the USCG did not intend to initiate a

search and rescue operation at that time.

     At approximately 1:00 a.m., a USCG helicopter that had been

searching for the overdue jet ski left that operation to return

to Elizabeth City to refuel, traveling on a flight path that led

up the Pasquotank River.             The USCG ordered that helicopter, as

it traveled up the Pasquotank, to look for the Turners’ boat, an

activity that did not require the helicopter to deviate from its

flight path.      The crew did not see the Turners’ boat while en

route to Elizabeth City.

                                          6
       Later    that        morning,     the       USCG    conducted         a   series     of

preliminary and extended communication searches (“PRECOMS” and

“EXCOMS,”       respectively).                 These       operations,           in    effect

information-gathering             activities,        included          call-outs      to   the

Turners’       boat,        an    “Urgent      Marine          Information       Broadcast”

requesting      other        boaters      to       contact       the      USCG    with      any

information, and calls and visits to marinas where the Turners

might have decided to tie up.                  The USCG concluded their PRECOM

and EXCOM searches at approximately 8:40 a.m. on July 5.

       Shortly before 8:00 a.m., the USCG dispatched a 21-foot

utility boat from the Oregon Inlet Coast Guard Station.                                    That

craft launched at approximately 9:15 a.m. and began searching

the area of Mann’s Harbor, one of the four places that Roger Sr.

gave as a possible location of the Turners.                          Meanwhile, the host

of the party the Turners had attended on July 4, aware of their

failure    to   return        home,    began       retracing      the      Turners’    likely

return    route    up       the     Perquimans       River.          He    discovered      the

Turners’ boat, beached and empty, at approximately 9:00 a.m.

Upon   learning        of    this     discovery,       the     USCG       reclassified      the

incident    from   a        “possible    overdue”         to    an    “overdue     distress”

case, and launched an air and sea search for the Turners.                                  From

the morning of July 5 through the evening of July 6, the USCG

deployed twelve manned search and rescue boats and planes, and

searched    173    square         nautical     miles.          The    USCG    utilized     the

                                               7
Turners’     boat’s     GPS       when    performing        their    search.        The   USCG

suspended its search activities on July 6 at 7 p.m.

       During the night of July 4 and into the morning of July 5,

Ms.    Turner     tread       water      for    nearly      12   hours,    surviving       by

clinging to crab pot buoys.                 She came ashore at about 9:20 a.m.

on    July   5.    The       USCG,       despite     the    extensive     search     efforts

described above, did not find Roger Jr.; his body washed ashore

two days later.             The medical examiner listed Roger Jr.’s cause

of death as drowning but could not identity a precise time of

death.



                                                 II.

       We    review     a    district       court’s        decision    granting      summary

judgment     de   novo,       applying         the   same    legal    standards      as   the

district court and viewing all facts and reasonable inferences

therefrom in the light most favorable to the nonmoving party,

here the Turners.             T-Mobile Ne. LLC v. City Council of Newport

News, 674 F.3d 380, 384-85 (4th Cir. 2012).                          Summary judgment is

appropriate       “if       the   movant       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).




                                                8
       Ms. Turner’s claim arises under admiralty law. 2                     In the

arena of tort law, general maritime law mirrors many principles

of traditional negligence law.                See McMellon v. United States,

338 F.3d 287, 298 (4th Cir. 2003) (McMellon I), vacated en banc

on other grounds, 387 F.3d 329 (4th Cir. 2004).                        Ms. Turner

bears the burden of establishing that the USCG owed her and her

late husband an identifiable duty, that the USCG breached that

duty, and that the USCG’s breach of duty proximately caused harm

to the Turners.         Id.     Ms. Turner’s attempt to establish a prima

facie case falls short on several fronts.

       The USCG’s enabling statute, 14 U.S.C. § 88, authorizes the

USCG       to   undertake     rescue   efforts,    but    does   not   impose   any

affirmative duty to commence such rescue operations.                     See Hurd

v. United States, 34 F. App'x 77, 81 (4th Cir. 2002) (collecting

cases).          But,   “once    the    Coast     Guard   undertakes    a   rescue




       2
       Ordinarily, the USCG enjoys sovereign immunity in its
activities.   The SIAA provides a limited waiver of sovereign
immunity.   See Sagan v. United States, 342 F.3d 493, 497 (6th
Cir. 2003).   Even with the waiver of immunity, the USCG cannot
be held liable for injuries arising from the performance of
discretionary functions.    See McMellon v. United States, 387
F.3d 329, 338 (4th Cir. 2004) (McMellon II). The parties devote
a considerable portion of their briefs to the issue of sovereign
immunity, but we need not consider this issue because we find
that the USCG did not violate the relevant standard of care in
any action taken or decision made.



                                          9
operation, it must act with reasonable care.” 3                         Sagan, 342 F.3d

at 498 (citing Patentas v. United States, 687 F.2d 707 (3d Cir.

1982)).     “Its     actions       are    judged      according       to     the   so-called

‘Good    Samaritan’       doctrine.”            Id.      “Under       this    doctrine,        a

defendant    [becomes]          liable    for      breach   of    a    duty       voluntarily

assumed by affirmative conduct, even when that assumption of

duty was gratuitous.”              Id. (citing Indian Towing Co. v. United

States, 350 U.S. 61 (1955)); see also, Thames Shipyard & Repair

Co. v. United States, 350 F.3d 247, 261 (1st Cir. 2003); Frank

v. United States, 250 F.2d 178, 180 (3d Cir. 1957).

     The Good Samaritan doctrine, however, sets a high bar to

impose liability on a rescuer.                  The evidence must show that the

rescuer    failed        to    exercise       reasonable     care       in    a    way    that

worsened the position of the victim.                     See Sagan, 342 F.3d at 498

(citing    Myers    v.        United   States,      17   F.3d    890,       903    (6th   Cir.

1994)).     “There are two ways in which a rescuer can worsen the

position    of     the    subject        of   the     rescue.         The    first       is    by

increasing the risk of harm to the person in distress.                                        The

second is to induce reliance, either by the subject or other

     3
       Because the USCG has no duty to rescue, the law imposes no
standard of care until an attempted rescue commences.         The
parties devoted much effort below, and considerable effort in
this Court, arguing over when the USCG’s attempted rescue began.
Because we find that the USCG did not violate the operative
standard of care at any time, we need not address the issue of
when the formal rescue attempt began.



                                              10
potential      rescuers,      on   the   rescuer’s     efforts.”       Hurd,    34    F.

App'x at 84 (internal citations omitted); see also, Restatement

(Second) of Torts §§ 323, 324A, 327.                   The test is whether “the

risk    was    increased      over    what      it   would   have    been     had    the

defendant not engaged in the undertaking at all.”                        Sagan, 342

F.3d at 498.

       The Turners have not shown that the USCG’s actions worsened

their position.          Whatever happened to the Turners, the Coast

Guard did not “increase the risk of harm” that confronted the

unfortunate couple.             In fact, the USCG did not intervene in

their situation at all until their boat was discovered grounded,

so it could hardly have worsened their position.                        Indeed, the

thrust of the plaintiff’s case is that the USCG should have done

something to alleviate the Turners’ predicament sooner.                            As we

noted above, the USCG was under no obligation to do so.                              Cf.

Hurd, 34 F. App'x at 81.

       Nor did the USCG’s actions worsen the Turners’ position by

inducing reliance on the part of either the Turners or a third

party.      Obviously, the Turners themselves never spoke with the

Coast Guard, and so could not have relied on representations by

the USCG.

       Recognizing       this      problem,      Ms.   Turner       points    to     the

discussion between a USCG command duty officer and an official

from   NC     Wildlife   as     evidence     that    the   latter    relied    on    the

                                           11
USCG’s rescue efforts and so was dissuaded from commencing its

own rescue effort.        The record does not support this claim.                  The

USCG did not represent to NC Wildlife that it would undertake a

rescue operation.        In fact, the duty officer expressly told NC

Wildlife that the USCG was not preparing to launch search and

rescue operations.         A NC Wildlife official testified that his

agency   also    would    not     have     launched    a    search    and     rescue

operation   at   that     time,    regardless     of       the   USCG’s     actions,

because of both the dearth of actionable information and the

prevailing weather conditions.

     In short, the USCG neither increased the danger facing the

Turners nor induced reliance on the part of either the Turners

or a third party.           Accordingly, Ms. Turner cannot prove the

USCG breached its duty to the Turners, 4 and the district court

properly entered summary judgment on the Turners’ tort claims.



                                         III.

     The district court properly denied Ms. Turner’s motion for

sanctions   based    on    spoliation.          Spoliation       is   a     rule    of

     4
        An   additional  problem exists  for   Ms.  Turner  as
administratrix of her husband’s estate.  The evidence does not
establish when Mr. Turner died. Roger Jr. could well have been
dead before the USCG even had a chance to try to rescue him.
Given this gap in the plaintiff’s evidence, the Coast Guard
could not have been held liable for Roger Jr.’s unfortunate
death.



                                          12
evidence, and the decision to impose sanctions for violations is

one “‘administered at the discretion of the trial court’” and

governed by federal law.                 Hodge v. Wal-Mart Stores, Inc., 360

F.3d    446,    450     (4th    Cir.    2004)      (quoting       Vodusek   v.   Bayliner

Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995)).                         When reviewing

a    district        court’s    ruling      on    a   plaintiff’s        request      for    a

spoliation inference, even on a grant of summary judgment, we

have held that the district court’s ruling “must stand unless it

was an abuse of the district court’s ‘broad discretion’ in this

regard.”        Id.     (citing Cole v. Keller Indus., Inc., 132 F.3d

1044,      1046-47     (4th    Cir.    1998)).         Ms.   Turner,       as   the   party

disputing       the    district       court’s      ruling,    bears      the    burden      of

establishing spoliation.              See id. at 453.

       A     party    seeking       sanctions      based     on    the    spoliation        of

evidence must establish, inter alia, that the alleged spoliator

had a duty to preserve material evidence.                     This duty arises “not

only during litigation but also extends to that period before

the    litigation       when    a   party    reasonably       should     know    that       the

evidence may be relevant to anticipated litigation.”                             Silvestri

v.    Gen.     Motors    Corp.,       271   F.3d      583,   591    (4th    Cir.      2001).

Generally, it is the filing of a lawsuit that triggers the duty

to preserve evidence.               Victor Stanley, Inc. v. Creative Pipe,

Inc., 269 F.R.D. 497, 522 (D. Md. 2010).                          Moreover, spoliation

does not result merely from the “negligent loss or destruction

                                             13
of evidence.”            Vodusek, 71 F.3d at 156.                  Rather, the alleged

destroyer must have known that the evidence was relevant to some

issue in the anticipated case, and thereafter willfully engaged

in conduct resulting in the evidence’s loss or destruction.                             See

id.    Although the conduct must be intentional, the party seeking

sanctions need not prove bad faith.                    Id.

       Here, Ms. Turner says the USCG wrongfully destroyed audio

recordings of telephone calls to the Coast Guard by recycling

them   and     recording      over        them.       The    plaintiff,    however,     did

nothing to trigger a duty to preserve evidence on the part of

the USCG.         She did not send the USCG a document preservation

letter,      or    any     other    correspondence           threatening      litigation.

After learning that Roger Jr. had gone overboard the night of

July 4, the USCG specifically reviewed the voice recordings for

that night the very next morning and discovered nothing.                                The

action of recycling the voice recordings was standard operating

procedure for the USCG.              Without a warning of future litigation

or reason to believe that voice recordings devoid of a rescue

call would be relevant in any event, the Coast Guard had no

reason    to      change    its    standard       routine.         Ms.   Turner   has   not

established        that    the     USCG    had    a   duty    to   preserve    the   audio




                                              14
recordings,        so   the    district        court’s     decision    not    to   award

sanctions is clearly correct. 5



                                               IV.

       We review a grant of summary judgment in a FOIA claim de

novo.       Hunton & Williams v. U.S. Dep’t of Justice, 590 F.3d 272,

276-76 (4th Cir. 2010).              In this case, the plaintiff sought

certain documents from the USCG.                     The Coast Guard produced all

documents responsive to the request, but Ms. Turner argues that

the USCG must have other, additional records responsive to her

request.

       A valid FOIA claim requires three components: the agency

must       have   (1)   improperly       (2)    withheld     (3)   agency     records.

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.

136, 150 (1980).            “[D]istrict courts typically dispose of FOIA

cases       on    summary     judgment    before       a   plaintiff    can    conduct

discovery.”        Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 544

(6th Cir. 2001).

       Here, the district court concluded that the USCG conducted

a proper and reasonable search for records in response to the


       5
       Ms. Turner also attempts to state a tort claim for
spoliation.   Spoliation of evidence, standing alone, does not
constitute a basis for a civil action under either federal or
admiralty law. See Silvestri, 271 F.3d at 590.



                                           15
Turner’s FOIA request, and determined that the USCG had provided

the Turners with all such documents in its possession.                                  The USCG

stated it did not withhold any responsive documents, and Ms.

Turner advanced no evidence to refute this contention.

       The    FOIA     imposes       limited      duties       on     federal       agencies.

“[FOIA]       does     not     obligate      agencies          to     create       or     retain

documents; it only obligates them to provide access to those

which it in fact has created and retained.”                          Kissinger, 445 U.S.

at   152.      To     this    end,   courts       have   held       that     FOIA    does    not

provide a remedy for “destruction of documents.”                                 See Inman v.

Comm’r,       871    F.      Supp.   1275,     1277      (E.D.        Cal.       1994)     (“The

destruction of documents in the normal course of an agency’s

business      is     not   relevant     to   whether       or       not    the    agency     has

complied with a FOIA request.”).

       Recognizing the limitations of the FOIA, Ms. Turner argues

that the USCG’s failure to retain voice tapes and emails should

stand    as    proof       that   the    USCG’s     search          for    such     responsive

documents was inadequate.               This is illogical and incorrect.                     The

lack    of    responsive       documents       does      not    signal       a    failure     to

search.       The USCG’s diligence in this case is underscored by its




                                             16
candid admission that it had recorded over its tape of phone

calls from the night of the accident. 6

     FOIA required that the USCG satisfy its duty of production

by producing the responsive documents in the USCG’s possession

at the time of Ms. Turner’s FOIA request.             The USCG did so.       The

district    court   appropriately    granted    summary     judgment    to   the

USCG on this claim.


                                     V.

     Ms. Turner argues the district court deprived her of due

process    by   permitting   the   USCG   to   file   its   summary    judgment

motion more than twelve months after the deadline for filing

dispositive motions.         We review a district court’s decisions

pertaining to the management of its own docket under an abuse of

discretion standard.     Marryshow v. Flynn, 986 F.2d 689, 693 (4th

Cir. 1993).

     6
       On appeal, Ms. Turner emphasizes the USCG's failure to
search for a duplicate set of tapes that may have existed at the
USCG's District 5 Command Center in Virginia. The USCG reported
that it found no responsive recordings based on a search for
electronic recordings only at its Atlantic Beach facility in
North Carolina.    The latter facility coordinated the USCG's
efforts with respect to the Turners.    The FOIA officer did not
search District 5, nor did the Coast Guard initially disclose
the possible existence of a duplicate set of tapes at that
location.   Nonetheless, the district court's grant of summary
judgment was proper because the FOIA officer had a reasoned
explanation for not searching the Virginia Command Center, and
FOIA does not require duplicative searches.     See Rein v. U.S.
Patent & Trademark Office, 553 F.3d 353, 358 (4th Cir. 2009).



                                     17
     The   de   facto   extension   of   time   to   file   the   motion   lay

within the sound discretion of the district court, and we see no

reason to disturb the court’s action.           The district court gave

Ms. Turner the opportunity to file a brief in opposition to the

USCG’s motion for summary judgment, and Ms. Turner did so.                 Her

due process rights were not violated. 7



                                     VI.

     For the reasons stated above, we affirm the judgment of the

district court.

                                                                    AFFIRMED




     7
        Ms. Turner also contends that the district court erred
when it denied a joint motion for a court-hosted settlement
conference.    The decision to conduct a settlement conference
pertains, again, to the district court’s management of its own
docket.   Ms. Turner cannot show that the district court abused
its discretion in this matter.



                                    18
