United States District Court, W.D. Washington
CRAIG M. BALL, Plaintiff,
MANALTO, INC., a Virginia corporation, and ANTHONY OWEN, an individual, Defendants.
ORDER DENYING MOTION TO CONTINUE TRIAL DATE
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Manalto, Inc. and
Anthony Owen's Motion to Continue Trial Date. Dkt. #33.
Trial is currently set in this matter for October 23, 2017.
Dkt. #12. The discovery motion deadline is May 26, 2017, the
discovery cut-off is June 26, 2017, and the dispositive
motion deadline is July 25, 2017. Id. Defendants are
represented by two named counsel in this matter, attorneys
Daniel Thieme and Kellie Tabor. See Docket.
bring this Motion to request a four-month continuance of the
trial date to accommodate the scheduled leave of one of their
counsel. Ms. Tabor is pregnant with a due date of October 23,
2017. Dkt. #34 at ¶6. Ms. Tabor is currently a
“shareholder” at the firm Littler Mendelson, but
began this case as a “senior associate.”
Id. at ¶ 4. Littler Mendelson's policy
requires a shareholder to appear on all of the pleadings and
to supervise the case. Id. Shareholder Dan Thieme
agreed to serve in that capacity. Id. According to
the declaration of Ms. Tabor, “Defendants selected me
specifically to be their attorney in this case.”
Id. at ¶ 2. Defendants do not submit any
further evidence to support this assertion. Defendants argue
that good cause exists to continue the trial date by four
months because “lead trial counsel for Defendants
recently learned that the birth of her child will conflict
with the currently scheduled trial date, and thus she will be
unavailable for the currently-set trial date.” Dkt. #33
at 4. Defendants argue that Plaintiff will not be prejudiced
by this continuance because this request is not being made on
the eve of trial. Id. at 5. Defendants argue that
“[r]efusing a continuance for the birth of a child
would be contrary to Washington State's public policy
against pregnancy and sex discrimination.” Id.
at 6 (citing RCW 49.60.010). Defendants discuss current
issues surrounding pregnancy in the legal profession.
Id. at 6-7. Defendants argue that “[r]efusing
a short continuance for the birth of a child (both medical
incapacity associated childbirth and critical bonding time
with a new baby) communicates to female litigators that they
either need to choose not to have children, or that they need
to stop litigating for the years in which they desire to have
a child.” Id. at 7.
Ball first responds by suggesting that the trial date be
moved to an earlier date with the deadline for filing
dispositive motions moved up to “the day after the
[current] discovery cutoff.” Dkt. #36 at 3. Plaintiff
argues that continuing trial for four months would cause him
financial hardship. Dkt. # 36 at 5. Plaintiff states through
his personal declaration that he is currently unemployed and
looking for work, and that a delay in the resolution of this
case will affect his family's financial affairs. Dkt.
#38. Plaintiff next points out several holes in
Defendants' reasons to request this continuance. First,
that Defendants have two named counsel who should be prepared
to go to trial. Dkt. #36 at 6-7. Second, that Defendants
selected a law firm with other counsel who can be brought up
to speed in this matter prior to trial. Id. at 7-8.
Third, that if Ms. Tabor's "personal participation
is necessary for trial preparation, a trial date of October
23, 2017 would afford a greater opportunity for her
use any knowledge unique to her to prepare the case for trial
than Defendants' requested date of sometime in
March.” Id. at 8 (emphasis in original).
Fourth, that Defendants' assertion that they specifically
selected Ms. Tabor for this case is only supported by a
single sentence in Ms. Tabor's declaration, is not
supported by a declaration from Defendants, and that in any
case the individual currently directing counsel on behalf of
Manalto, Inc. was not the person who selected Defendants'
counsel. Id. at 8 (citing Dkts. #37-7). The Court
notes that Plaintiff makes a point of stating that “all
pregnancies deserve to be celebrated” and that
“no lawyer should have her career derailed by her
pregnancy.” Id. at 1.
Reply, Defendants argue that advancing trial to September
will prejudice Defendants ability to adequately prepare and
defend their case and would “deprive Defendants of the
benefit of the Court's standard case schedule, which
typically allows parties a full month between the close of
discovery and the dispositive motions filing
deadline...” Dkt. #41 at 2-3. Defendants spend the
majority of their brief attacking Plaintiff Ball's claims
of financial hardship due to unemployment and argue that he
has failed to mitigate his damages. Id. at 4-5.
Defendants go so far as to insinuate that Plaintiff cannot
claim financial hardship because he resides in a neighborhood
“widely acknowledged as ‘one of the most affluent
communities in metro Seattle, '” with a median home
value of $2, 298, 400 and average rental cost of $7, 814 per
month. Id. at 5 (citing The Seattle Times and Zillow
website). Defendants do not reply to Plaintiff's argument
that the proposed continuance would cause Ms. Tabor to be
absent from trial preparations or argument that the person
currently directing counsel on behalf of Manalto was not the
person who selected Ms. Tabor. Defendants do not attach a
client declaration to support their assertion that they
selected Ms. Tabor for this case.
Court begins by expressing its dismay that the parties could
not come together and propose an agreed rescheduling of the
trial date. As a result, this Motion has required the Court
and the parties to wade into the private affairs of Ms. Tabor
and, surprisingly, Mr. Ball, to an extent that strikes the
Court as unnecessary and inappropriate.
Ball's request to move the trial to September can easily
be denied. The Court will not prejudice Defendants by
shortening their time to prepare for trial, and setting a
dispositive motion deadline one day after the discovery
cutoff is illogical for the reasons stated in Defendants'
Court next turns to Defendants' proposed continuance. The
Court is only interested in the basis or bases Defendants put
forth to constitute good cause under Rule 16(b)(4).
Defendants do not submit any evidence that either Manalto the
company or Anthony Owen the individual have a conflict with
the existing trial date. The only basis for continuance is
the conflict with the leave schedule of one of
Defendants' attorneys. There have been two attorney names
attached to each and every pleading and brief filed by
Defendants. From the Court's perspective, there is no
reason to believe that Mr. Thieme is not fully capable of
representing Defendants, even if he has spent less time than
Ms. Tabor working on this case.
strongest argument is that they specifically selected Ms.
Tabor for this case. However, the Court finds that Defendants
have failed to put forth meaningful evidence that they
selected Ms. Tabor, and the Court is persuaded by
Plaintiff's unrebutted argument that the individuals who
could have selected Ms. Tabor no longer work for Defendant
Court is also not convinced that Defendants will suffer harm
unless the continuance is granted. While pregnancy would
almost certainly constitute good cause for a four month
continuance if Defendants were represented by a solo
practitioner, the Court finds that it does not constitute
good cause when Defendants are represented by at least one
other named counsel and a firm full of associates that can
certainly be brought up to speed on this case. Trial is not
set to begin for five more months. Further, the Court agrees
with Plaintiff that the existing trial schedule will allow
Defendants access to Ms. Tabor's expertise in valuable
pretrial preparations, whereas the requested relief might
actually deprive Defendants of Ms. Tabor's expertise.
Given all of this, Defendants present insufficient evidence
of good cause to warrant their requested extension, and the
Court denies their request. Therefore, the Court need not
address the potential prejudice to Plaintiff, or the
tangential question of his alleged failure to mitigate.
accusation that ruling against Defendants “communicates
to female litigators that they either need to choose not to
have children, or that they need to stop litigating for the
years in which they desire to have a child” is
offensive at best. See Dkt. #33 at 7. The Court
fully supports attorneys taking maternity and paternity
leave, but such leave alone cannot constitute good cause
without a connection to the parties supported by evidence.
The Court has made its decision based on the evidence, or
lack thereof, showing how this continuance would impact the
parties, not their counsel. The needs of the parties and the
Court's responsibility “to secure the just, speedy
and inexpensive determination of every action and
proceeding” take priority over the schedule of one
counsel for one party. See Fed. R. Civ. P. 1.
reviewed the relevant briefing, the declarations and exhibits
attached thereto, and the remainder of the record, the Court
hereby finds and ORDERS that ...