Mackay Communications Inc v. Miss Leona Inc

1 HONORABLE BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE MACKAY COMMUNICATIONS, IN ADMIRALTY INC., NO. 20-587 BJR 11 Plaintiff, STIPULATED MOTION AND 12 v. ORDER TO EXTEND DISCOVERY CUT OFF DATE MISS LEONA, INC., in personam, and F/V MISS LEONA, Official No. 522643, her engines, tackle, equipment, appurtenances, etc., in rem, Defendants.

Plaintiff Mackay Communications, Inc. and Defendant Miss Leona, Inc. respectfully submit pursuant to Fed.R.Civ.P. 16(b)(4) and LCR 7(d)(1), 10(g), and 16(b)(5), their Joint Stipulated Motion to Extend the Discovery Cut Off Date to January 22, 2021.

20 The case involves Plaintiff’s claim relating to non-payment of a bill for repair of a fishing vessel and Defendant’s counterclaim for costs incurred due to problems with Plaintiff’s repairs.

The parties filed their Joint Status Report on 8/10/20 requesting a discovery cut-off date of January 22, 2021, and a trial date of May 24, 2021 (dkt 11). The parties stated therein that they “may request an extension [of this date] due to unforeseen future delays due to the coronavirus.” Id. The Court issued an Order Setting Trial and Related Dates on 10/6/21, setting a trial date of 5/24/21, but an earlier discovery cut off of 11/25/20 (dkt 12).

5 The parties have tried, but are unable to meet the discovery cut-off date due to the unexpected lack of availability of key witnesses and due to delays in scheduling important depositions due to Covid.

8 A primary witness in the case is Chris Allinson, who is the Captain of the F/V MISS LEONA. Allinson has the most knowledge about key issues in the case, including the damage to the boat, hiring Mackay, what defendant contends was the parties’ agreement, alleged delays in completion due to work on the boat, alleged inadequacies in the repairs performed by Mackay, and what additional work was performed by a new contractor and which of this work relates to work that Mackay performed. Allinson has been fishing on the boat in Alaska since the summer and only returned to Washington last week. It was not expected when the parties filed their Joint Status Report that Allinson would be away fishing until November. His deposition is scheduled for Monday, November 23. However, based on his testimony, additional depositions of other witnesses may need to be scheduled.

19 Defendant will rely on surveyor Stuart McFarland, who resides in Kodiak, Alaska, and Dave Pratt of Fusion Marine. McFarland coordinated the repairs on behalf of Defendant’s insurer and will offer testimony related to alleged delay and problems with Plaintiff’s repairs. Requests to depose these witnesses were made in October after Defendant served its discovery responses producing records and statements from them.

Efforts to schedule their depositions has taken much longer than expected because of their limited availability due to Covid. McFarland is only first available to be deposed on December 1, 2020. Pratt’s work schedule has not yet allowed scheduling his deposition, and the earliest date he will be available appears to be sometime in December.

Defendant requested to depose Brynn Decker, the manager of Mackay’s office in Dutch Harbor who was involved with scheduling the vessel repairs, but she was not available and her deposition could not be scheduled until November 24, 2020.

6 The parties will not be able to obtain expert opinions in the case until depositions of these primary factual witnesses are completed. Upon completion of these depositions, additional depositions of fact witnesses may be necessary. For instance, Defendant has indicated it may need to depose the electrician and electronics technician who performed work on the M/V MISS LEONA to the extent the scheduled witnesses do not have the requisite knowledge. Plaintiff may need to depose similar workers from the subsequent repairer who replaced Mackay.

The parties have prosecuted the case in good faith. The parties exchanged Initial Disclosures in early August in accordance with the case schedule. The parties were unable to propound discovery until around this time pursuant to the Civil Rules. Plaintiff issued discovery in August after receiving Defendant’s Initial Disclosures. Delays brought about due to Covid restrictions and the difficulty in obtaining responsive information and documents because the boat was still fishing in Alaskan waters, Defendant was unable to serve discovery responses until October 9, 2020. Plaintiff was unaware of certain witnesses (e.g. McFarland) until disclosed in these discovery responses, and soon afterward requested to schedule their depositions. As discussed above, these depositions could not be scheduled until the next week and some of the witnesses are not available until December.

The Court may extend the case scheduling dates for “good cause.” LCR 16(b)(5).

Good cause for purposes of Rule 16 looks at the diligence of the parties in complying with the case scheduling order. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Good cause exists is “noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999).

6 The parties submit that good cause exists to extend the trial and associated case dates. The case schedule issued on October 6th, affording only seven weeks to complete discovery. The parties had exchanged Initial Disclosures and propounded discovery requests, but Defendant’s responses were only received subsequently. Scheduling of depositions has been delayed for reasons both unexpected and out of the control of the parties. The M/V MISS LEONA remained fishing in Alaskan waters until November, which was unexpected. That made key witnesses unavailable until late November and December.

Other key witnesses in the case who must be deposed are employees of the parties who reside outside Seattle (e.g. Dutch Harbor) or contractors (e.g. Dutch Harbor, Kodiak), the scheduling of whose depositions has been delayed due to Covid issues, despite the diligence of counsel, who are both members of small firms working out of their homes.

18 Accordingly, the parties respectfully request that the Court modify the case schedule to extend the discovery cut off date until January 22, 2021.

20 The parties are not requesting the Court to change the trial date, but if the Court believes that these changes require a new trial date, the parties request a date in either June or July 2021.

1 DATED this 17th day of November, 2020.

2 GASPICH LAW OFFICE PLLC PRITCHETT & JACOBSON, P.S.

s/Anthony J. Gaspich s / Russell W. Pritchett Anthony J. Gaspich, WSBA No. 19300 Russell W. Pritchett, WSBA No. 8018 Attorneys for Plaintiff Mackay Attorneys for Defendant Miss Leona, Inc. Communications, Inc. 870 Democrat Street 8094 Barthrop Pl NE Bellingham, WA 98229 Bainbridge Island, WA 98110 Tele: (360) 647-1238 Tele: (206) 956-4204 Email: [email protected] Fax: (206) 956-4214 Email: [email protected]

ORDER The parties having so stipulated, and the Court finding good cause for entry hereof, NOW, THEREFORE, IT IS HEREBY ORDERED that the discovery cut off date is extended until January 22, 2021, all other dates in the Order Setting Trial and Related Dates (dkt 12) remaining the same.

Dated this 23rd day of November, 2020.

A 21 B arbara Jacobs Rothstein U .S. District Court Judge

2 Presented by: GASPICH LAW OFFICE PLLC s/Anthony J. Gaspich Anthony J. Gaspich, WSBA No. 19300 Attorneys for Plaintiff 1000 Second Avenue, Suite 3330 Seattle, WA 98104 Tele. (206) 956-4204 Email: [email protected] Approved as to form; Notice of presentation waived PRITCHETT & JACOBSON, P.S.

13 s/Russell W. Pritchett Russell W. Pritchett, WSBA No. 8018 Attorneys for Defendant Miss Leona, Inc. Democrat Street Bellingham, WA 98229 Tele: (360) 647-1238 Email: [email protected]