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CNA Insurance Co. Ltd. v. Expeditors International of Washington Inc.

United States District Court, W.D. Washington, Seattle

December 9, 2019





         This 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'[1]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.


         The 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.[2] 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.

         Plaintiff 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[3] to complete limited discovery and additional time to prepare pretrial filings. Dkt. #36 at 9.

         Two 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.


         A. Plaintiff's and Defendant's Suggested Remedies

         Plaintiff's 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 ...

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