United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE OPPOSITION BRIEF
L. ROBART UNITED STATES DISTRICT JUDGE.
matter comes before the court on Plaintiff Donna Werner's
motion for leave to file an opposition to Defendant Holland
America Line, Inc.'s (“Holland America”)
motion for summary judgment. (See Mot. (Dkt. # 33);
See also MSJ (Dkt. # 20).) For the reasons set forth
below, the court GRANTS Ms. Werner's motion.
case was originally filed in Alaska state court.
(See Compl. (Dkt. # 1-1) at 1.) Holland America
removed this case to the United States District Court for the
District of Alaska on December 4, 2018. (See Not. of
Removal (Dkt. # 1) at 1.) On August 22, 2019, that court
granted Holland America's motion to stay the case pending
the outcome of Holland America's motion to change venue.
(See 8/22/19 Order (Dkt. # 19); MTS (Dkt. # 18).)
Four days later, on August 26, 2019, Holland America filed a
motion for summary judgment. (See MSJ.) In that
motion, Holland America stated that “[a]lthough it is
[Holland America's] position that the transfer issue
needs to be resolved prior to consideration of the merits of
this action, with no stay having been entered, briefing on
this [m]otion can proceed pending a ruling on the [m]otion to
[t]ransfer.” (Id. at 20 (citation to footnote
September 3, 2019, the court granted Holland America's
motion to transfer venue and directed the Clerk for the
District of Alaska to transfer the case to the United States
District Court for the Western District of Washington.
(9/3/19 Order (Dkt. # 21) at 15.) The Clerk instructed the
parties that “[i]f a motion is pending and undecided at
the time of transfer, the moving party must note it for
consideration on the court's calendar in accordance with
LCR 7(d).” (See 9/10/19 Ltr. (Dkt. # 24).) On
September 19, 2019, Holland America re-noted its summary
judgment motion for October 11, 2019, the fourth Friday after
September 19, 2019. (Not. of Re-Noting (Dkt. # 27) at 1.)
October 11, 2019, Holland America filed a reply in support of
its summary judgment motion, noting that Ms. Werner failed to
file an opposition to the motion. (MSJ Reply (Dkt. # 29).)
Holland America also noted that Ms. Werner's counsel had
not appeared or affiliated with local counsel, but that
Holland America emailed Ms. Werner's counsel a courtesy
copy of the notice re-noting its summary judgment motion.
(Id. at 2 n.1.)
Werner's Alaska counsel applied to appear pro hac
vice on October 22, 2019. (See PHV Appl. (Dkt.
# 30).) On October 23, 2019, local counsel for Ms. Werner
appeared, and Ms. Werner's Alaska counsel's pro
hac vice application was granted. (See Not. of
Appearance (Dkt. # 32); 10/23/19 Order (Dkt. # 30)). On the
same day, Ms. Werner filed the present motion for leave to
file an opposition to Holland America's summary judgment
motion. (See Mot. at 1.)
Ms. Werner's Motion
Werner asks the court to grant her leave to file an
opposition to Holland America's summary judgment motion
pursuant to Federal Rule of Civil Procedure 6(b)(1)(B).
(See Id. at 2-3 (citing Fed.R.Civ.P. 6(b)(1)(B).)
Along with her motion for leave to file an opposition, Ms.
Harbers filed what appears to be the opposition she wishes to
file. (See Opp. (Dkt. # 33-2).)
court may extend the time to file a response for good cause
if the extension request is made “before the original
time or its extension expires.” See Fed. R.
Civ. P. 6(b)(1)(A). However, the party seeking an extension
must meet the higher showing of “excusable
neglect” if they make the extension request
“after the time has expired.” See Fed.
R. Civ. P. 6(b)(1)(B). Although not entirely clear from Ms.
Werner's motion, by citing to Rule 6(b)(1)(B), she
appears to concede that she failed to timely file her
opposition to Holland America's summary judgment motion.
(See Mot. at 4.)
court first concludes that Holland America's summary
judgment motion was originally filed improperly because the
case was stayed. (See 8/22/19 Order at 2.) However,
because the stay was “pending the Court's Order on
the Motion for Change of Venue” (see id.), the
stay was lifted when the District of Alaska ruled on that
motion and transferred the case to the Western District of
Washington. (See 9/3/19 Order.) Subsequently,
Holland America re-noted its motion for the fourth Friday
following the filing of the motion in accordance with Local
Civil Rule 7(d)(3), which allowed Ms. Harbers the amount of
time to respond set forth in the Local Civil Rules.
See Local Civil Rules W.D. Wash. LCR 7(d)(3).
Accordingly, Ms. Harbers must meet Rule 6(b)(1)(B)'s
“excusable neglect” standard. The court concludes
that she does.
normal circumstances, Holland America re-noting its motion
pursuant to Local Civil Rule 7(d)(3) would allow Ms. Werner
sufficient time to file an opposition. However, the record
reflects that Ms. Werner had difficulty obtaining local
counsel as required by the local civil rules. (See
Mot. at 2; Twomey Decl. (Dkt. # 2) ¶ 6.) Ms. Werner
asserts that since September 10, 2019, her Alaska counsel
undertook “efforts to retain local counsel, ” but
that “it was not until October 18, 2019 that a
relationship with local counsel was formed.”
(See Mot. at 2; Twomey Decl. ¶ 6.) Ms. Werner
further contends that “[w]hile Plaintiff's Alaska
counsel was out of state caring for his spouse he was alerted
to Defendant's position that an opposition had not been
filed when Defendant provided a copy of their reply
memorandum.” (See Mot. at 2 (citation to
footnote omitted); Twomey Decl. ¶ 7.) Ms. Werner further
contends that Holland America would suffer no prejudice from
allowing Ms. Werner to file her opposition. (See
Mot. at 5.)
America filed a response to Ms. Werner's motion on
October 25, 2019. (Resp. (Dkt. # 36).) Holland America
“takes no position on [Ms. Werner's] request for
leave to file an opposition to Holland America's motion
for summary judgment.” (Id. at 1.)
Nevertheless, Holland America includes several pages of
argument that appears to oppose Ms. Werner's request.
(See, e.g., id. at 3
(“Plaintiff's contention that Holland America will
not be prejudiced by an extension is somewhat
misplaced.”).) If the court grants Ms. Werner leave to
file an opposition, “Holland America respectfully
requests the Court permit time to file a reply brief per
the confusion created by the stay and transfer, Ms.
Werner's counsel's difficulty in retaining local
counsel, and Ms. Werner's counsel's family health
issues, the court finds that Ms. Werner has shown excusable
neglect. Additionally, the court finds that Holland America
will not suffer prejudice-the dispositive motions deadline in
this case is not until March 3, 2020. (See Sched.
Order (Dkt. # 25).) Accordingly, the court GRANTS Ms.
Werner's motion for leave to file an opposition brief.
However, the court cautions Ms. Werner's counsel that
court will strictly enforce the deadlines set by this
case's scheduling order and the Local Civil Rules.
(See id.) Any further extension requests-even where
stipulated-must “be filed sufficiently in advance of
the deadline to allow the court to rule on the motion ...