United States District Court, W.D. Washington, Seattle
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE A
Honorable James L. Robart U.S. District Court Judge.
the court is Plaintiff Weyerhaeuser Company's
(“Weyerhaeuser”) motion for leave to file the
supplemental declaration of James Drake, an expert on English
law. (Mot. (Dkt. # 74).) Defendants Novae Syndicate 2007
(“Novae”), Apollo Liability Consortium 9984
(“Apollo”), SCOR UK Company Ltd.
(“SCOR”), Starstone Syndicate 1301
(“Starstone”), Hiscox Dedicated Corporate Member
Limited as representative member of Syndicate 33 at
Lloyd's (“Hiscox”), and Starr Underwriting
Agents Ltd. (“Starr”) (collectively,
“Defendants”) oppose the motion. (Hiscox/Starr
Resp. (Dkt. # 76) (opposition of Hiscox and Starr
(collectively, “Hiscox/Starr”)); Defs. Resp.
(Dkt. # 77) (opposition of Novae, Apollo, SCOR, and
Starstone).) The court has considered the motion, the
parties' submissions concerning the motion, the relevant
portions of the record, and the applicable law. Being fully
advised,  the court GRANTS Weyerhaeuser's motion
for leave to file the supplemental declaration of Mr. Drake.
Additionally, the court GRANTS Defendants leave to file, no
later than July 3, 2019, supplemental authority on the
English law of non-mutual collateral estoppel, as explained
more fully herein.
case involves excess liability insurance policies that
Weyerhaeuser purchased from Defendants for the 2016-17 policy
year. Weyerhaeuser filed suit on April 20, 2018.
(See Compl. (Dkt. # 1).) Weyerhaeuser seeks a
declaratory judgment that it is not required to arbitrate in
the United Kingdom any insurance coverage dispute that may
arise between Weyerhaeuser and Defendants. (See Id.
April 30, 2018, former Defendant XL Catlin Syndicate 2003
(“XL Catlin”) filed a parallel action (“the
English Action”) in the High Court of Justice of
England and Wales (“the English High Court”).
(See Stip. MTS (Dkt. # 12) at 1.) On December 21,
2018, the English High Court ruled that, under the language
of the policy XL Catlin issued Weyerhaeuser, Weyerhaeuser is
required to arbitrate insurance coverage disputes with XL
Catlin in London. (See 1/2/19 JSR (Dkt. # 59) at 2,
Exs. A, B.) The relevant language in the XL Catlin policy is
the same as that in Defendants' policies. (See
Cordell Decl. (Dkt. # 6) ¶ 6.)
the English Action was pending, Weyerhaeuser filed a motion
for summary judgment. (See MSJ (Dkt. # 36).) The
parties subsequently stipulated to multiple extensions of the
noting date. (See 9/11/18 Not. (Dkt. # 38) at 2;
10/11/18 Not. (Dkt. # 40) at 2.) In January 2019, after the
English High Court issued its decision, the court ordered the
parties to submit supplemental briefing on the preclusive
effects, if any, of the English High Court's ruling with
respect to Weyerhaeuser's action against Defendants.
(1/25/19 Order (Dkt. # 64) at 2); 1/31/19 Order (Dkt. # 66)
at 1-2); see also Defs. Supp. Br. (Dkt. # 67); Pl.
Supp. Br. (Dkt. # 68); Defs. Supp. Resp. (Dkt. # 72); Pl.
Supp. Resp. (Dkt. # 73).) Supplemental briefing closed on
February 15, 2019. (1/31/19 Order at 2.)
their supplemental briefs, the parties disagree about whether
the English High Court's decision precludes Weyerhaeuser
from challenging arbitration clauses in the excess insurance
policies issued by Defendants. Defendants contend that the
court should afford preclusive effect to the English High
Court's judgment and thereby find that Weyerhaeuser is
required to arbitrate coverage disputes with Defendants.
(Defs. Supp. Br. at 3-8.) Weyerhaeuser, on the other hand,
argues that the court must not give preclusive effect to the
English High Court's judgment because (1) Defendants were
not parties to the English Action or in privity with XL
Catlin, and (2) the court must apply the law on issue
preclusion of the jurisdiction where the prior judgment was
rendered, and English law does not recognize non-mutual
collateral estoppel. (Pl. Supp. Br. at 6-7.) To support that
argument, Weyerhaeuser submitted the first declaration of Mr.
Drake, an expert on English law, alongside its supplemental
brief. (See 2/7/19 Drake Decl. (Dkt. # 70).)
March 12, 2019, Weyerhaeuser filed the present motion for
leave to file the supplemental declaration of Mr. Drake.
(See Mot. at 1-2; see also Praecipe (Dkt. #
75); 3/12/19 Drake Decl. (Dkt. # 75-1).) Hiscox/Starr filed
an opposition to Weyerhaeuser's motion. (See
Hiscox/Starr Resp.) Novae, Apollo, SCOR, and Starstone joined
in Hiscox/Starr's opposition and filed a separate
opposition. (See Defs. Resp.) In addition to
opposing Weyerhaeuser's motion, Defendants request that,
should the court consider Mr. Drake's supplemental
declaration, the court also grant Defendants leave to file
supplemental authorities on applicable English law.
(See Hiscox/Starr Resp. at 6; Defs. Resp. at 1
(joining Hiscox/Starr's arguments).)
district court has broad discretion to determine whether a
party may supplement a summary judgment record. See,
e.g., Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir.
2001) (noting that the Ninth Circuit “review[s] . . .
challenges to trial court management for abuse of
discretion”); Block v. Solis, No. C08-1850JLR,
2010 WL 2079688, at *9 (W.D. Wash. May 20, 2010) (granting
the plaintiff's motion for leave to file a supplemental
declaration on summary judgment, even though the motion was
untimely); Moreno v. Ross Is. Sand & Gravel Co.,
No. 2:13-cv-00691-KJM-KJN, 2015 WL 5604443, at *5 (E.D. Cal.
Sept. 23, 2015) (noting that “[a] district court has
discretion to permit a litigant to supplement the summary
judgment record”) (citing Betz v. Trainer Wortham
& Co., 610 F.3d 1169, 1171 (9th Cir. 2010)). When
assessing motions to supplement the record, the court should
be mindful that public policy favors the disposition of cases
on their merits, and that “disposition of a case on a
more complete record must be preferred to disposition on a
less complete record.” Block, 2010 WL 2079688,
at *9 (citing In re Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (en
contends that the court grant its motion because Mr.
Drake's supplemental declaration responds to arguments on
English law that Defendants raised for the first time in
their responsive supplemental brief. (Mot. at 2.)
Specifically, Weyerhaeuser asserts that Defendants
“waited until their response brief to argue, for the
first time, that UK law would permit them to use the UK
judgment to preclude Weyerhaeuser from making arguments on
the arbitrability issue.” (Id. (citing Defs.
Supp. Resp. at 4-5).) In the proffered supplemental
declaration, Mr. Drake addresses specific arguments that
Defendants made in their responsive brief concerning
non-mutual collateral estoppel under English law.
(See 3/12/19 Drake Decl. ¶¶ 5-24.) He also
expressly opines that English law does not permit non-mutual
collateral estoppel. (See Id. ¶ 25.)
first oppose Weyerhaeuser's motion on the ground that
their responsive supplemental brief raised no new arguments
on the English law of issue preclusion. (Defs. Resp. at 2-3.)
The court agrees that, for the most part, Defendants simply
critiqued the arguments that Mr. Drake advanced in his
initial declaration. (See Defs. Supp. Resp. at 4-5.)
Defendants did assert-for the first time-that “an
English court would find sufficient identity between
[Defendants] and XL Catlin such that it would not be unfair
for Weyerhaeuser to be bound to the result of litigation
between it and XL Catlin in subsequent litigation . . .
.” (Id. at 5 n.1.) Although new, this argument
responded directly to Weyerhaeuser's contention that
English law does not countenance non-mutual collateral
estoppel. (See, e.g., Pl. Supp. Br. at 6 (citing
2/7/19 Drake Decl. ¶¶ 7, 9).) Weyerhaeuser's
suggestion that it was unfairly surprised by Defendants'
arguments on that point thus rings hollow. (See Mot.
at 2.) This consideration weighs against granting
also insist that Weyerhaeuser's motion is untimely.
Specifically, Defendants argue that Weyerhaeuser should have
“promptly notif[ied] the [c]ourt and adverse parties of
perceived problems with [the] submitted briefing, ”
instead of filing a motion to supplement the record nearly a
month after the supplemental briefing period closed. (Defs.
Resp. at 3; see also Hiscox/Starr Resp. at 4-5.)
Weyerhaeuser, for its part, states that any delay in its
filing is attributable to the “very busy
calendar” of Mr. Drake, who “was unable to turn
full attention to this unexpected assignment on such short
notice.” (Reply (Dkt. # 78) at 3.) The court agrees
that, to the extent Weyerhaeuser believed that Defendants had
improperly raised a new argument in its supplemental
response, Weyerhaeuser would have been ...