United States District Court, W.D. Washington, Seattle
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court following the Court's order to
show cause whether this matter should be dismissed or whether
there was an appropriate sanction short of dismissal that
would allow this matter to proceed on the merits. Also
pending before the Court are Defendants'Motion to Dismiss
and Defendants' Motion In Limine to Exclude or
Limit the Testimony of David Giardino. Dkts. #33 and #34. The
Court resolves the issues as follows.
relevant background is primarily procedural. Plaintiff CNA
Insurance Company Limited and Defendant Expeditors
International of Washington, Inc. d/b/a Expeditors
International Ocean were to begin trial on December 2, 2019.
Dkt. #20. Thirty-two days before the trial date, Defendant
filed a motion to dismiss the action on the assertion that
“Plaintiff has not prosecuted the case and has stymied
[Defendant's] ability to conduct discovery and submit
pretrial filings in accordance with past and pending
deadlines.” Dkt. #33 at 1 (punctuation altered). The
motion was noted for the Court's consideration ten days
before the trial date. Shortly thereafter, Defendant also
filed a motion in limine seeking to exclude the
testimony of a possible witness, Mr. Giardino. Dkt. #34. Both
motions were premised, at least in part, on a dispute over
who was responsible for scheduling continuation of a Federal
Rule of Civil Procedure 30(b)(6) deposition with Mr. Giardino
substituted as the 30(b)(6) witness. Dkts. #33 and #34.
opposes the motions, arguing that Defendant was the cause of
the delay, failed to protect its own rights, and violated its
own discovery obligations. Dkts. #36 and #37. Plaintiff
argues “that dismissal of the captioned matter is not
warranted” and requests 30 days to complete limited
discovery and additional time to prepare pretrial filings.
Dkt. #36 at 9.
days after responding to Defendant's motion, Plaintiff
violated an order of this Court by failing to file an agreed
pretrial order on the date previously set by the Court.
Defendant filed its own proposed pretrial order and indicated
that Plaintiff had additionally failed to comply with its
obligations under the Court's Local Civil Rules. Dkt.
#38. Noting the obligations imposed on Plaintiff by the
Court's local rules and prior orders, and Plaintiff's
clear notice of the possible sanctions for violations, the
Court indicated that some sanction was likely warranted. Dkt.
#41 at 3-4. However, finding both parties to have some
culpability and because of the drastic nature of dismissing
Plaintiff's claims, the Court required the parties to
propose appropriate sanctions. Id. at 4-6.
Specifically, the Court required the parties to address
“(a) whether Plaintiff's action should be
dismissed, (b) what sanction short of dismissal may be
appropriate, and (c) considering counsel's actions and
appropriate sanctions, what is a reasonable path to
resolution.” Id. at 6.
Plaintiff's and Defendant's Suggested
contrite, yet brief, response acknowledges that mistakes were
made. Dkt. #42 at 1-2. Nevertheless, Plaintiff indicates that
dismissal would be an overly harsh result, representing that
even without Mr. Giardino's testimony, it has sufficient
evidence to establish a prima facie case that shoes were
damaged in Defendant's possession. Id. at 2-3.
Accordingly, Plaintiff requests that the Court:
1. Allow it to secure Mr. Giardino's presence at a Rule
30(b)(6) deposition before December 20, with Plaintiff
bearing the deposition costs-should the deposition not occur,
Plaintiff agrees it should be precluded from offering Mr.
Giardino's testimony at trial;
2. Require mediation of Plaintiff's claims before January
17, 2020, with Plaintiff bearing the costs;
3. Set February 14, 2020, as a new deadline for filing an
agreed pretrial order and require Plaintiff to provide
Defendant with a Pretrial Statement by January 24, 2020; and
4. Dismiss the case if Plaintiff fails to comply with any
deadlines hereafter set by the ...