Valerie Rountree et al v. Ching Feng Blinds et al
Order on Motion for Miscellaneous Relief, Order on Motion for Reconsideration, Order on Motion to Expedite
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
VALERIE ROUNTREE, individually
and as Personal Representative of
the ESTATE OF APRIL LYNNE COX;
MORGAN SCHEDIWY, a minor
through her natural mother and
guardian VALERIE ROUNTREE; and
CHING FENG BLINDS INDUSTRY CO.,)
LTD., and WINDOW COVERING
MANUFACTURERS ASSOCIATION, )
ORDER AND OPINION
[Docket nos. 138, 142, and 143 ]
I. MOTIONS PRESENTED
At docket 138 plaintiffs move for reconsideration of the court’s decision not to
extend the time for the exchange of expert reports and the time for discovery from
experts announced at the conference held on July 27, 2007. At that conference, the
court also granted an oral motion to dismiss defendant Ching Feng Blinds Industry Co.,
Ltd. (“Ching Feng”), leaving as the only defendant in this case Window Covering
Manufacturers Association (“WCMA”). The motion at docket 138 does not seek
reconsideration of the dismissal of Ching Feng. Nevertheless, the court requested both
Ching Feng and WCMA to respond to plaintiffs’ motion at docket 138. They have done
At docket 142 plaintiffs moved to supplement their briefing in support of the
motion at docket 138 by calling the court’s attention to the motion at docket 81 and the
order at docket 82, matters which neither the court nor any party brought up at the
conference on July 27, 2007, and which plaintiffs neglected to cite in support of the
motion at docket 138. At docket 143, plaintiffs moved to shorten time on the motion to
supplement. The motions at dockets 142 and 143 have been opposed by WCMA.
All motions are now fully briefed.
The case at bar results from the death of a child, April Lynne Cox, who got
tangled in a window blind’s cord at her grandparents’ home and died from strangulation
on May 27, 2002.1 As a consequence of her death, plaintiffs filed this lawsuit against
Ching Feng, WCMA, and two other defendants. After protracted motion practice, the
court eventually winnowed the field of defendants to WCMA. Of particular significance
to the pending motions is the course of the proceedings respecting jurisdiction over
defendant Ching Feng. With respect to that matter, the court finds the briefing filed by
Ching Feng at docket 147 especially helpful. Indeed, rather than recreate here the
chronology set out there, the court is content to adopt the same by reference. It puts
the discussion in the next section in a somewhat fuller context.
A. Motions at dockets 142 and 143
The motion at docket 143 will be granted in the sense that the court will address
the underlying motion at docket 142 prior to deciding the motion at docket 138. The
motion at docket 142 does no more than ask the court to consider the motion at
docket 81 and the court’s order at docket 82. These are matters which the court should
Doc. 6, p. 2, ¶ 3.
have discovered on its own, and which are in any event mentioned in Ching Feng’s
helpful response to the motion at docket 138. It would be inappropriate for the court to
decide the motion at docket 138 without considering relevant documents on file. The
motion at docket 143 will also be granted.
B. Motion at docket 138
Plaintiffs assert that the court should reconsider its decision not to provide for an
exchange of expert reports and discovery regarding those experts. At the time the court
ruled, the court had not carefully researched all of the twists and turns in this case
relating to the exchange of expert reports. Based on what the parties said at the
conference on July 27, 2007, and the court’s recollection of the record, it appeared clear
that the time for exchanging expert reports had long since elapsed and that plaintiffs
had simply not acted in a timely fashion.
Looking at the record now, the court notes that at docket 81 plaintiffs asked the
court to extend the deadline for the exchange of expert reports until 60 days after the
court disposed of Ching Feng’s then pending motion for a protective order relating to
discovery about the court’s jurisdiction over Ching Feng. In an order at docket 82, the
court granted the motion at docket 81 and vacated the existing deadline for the
exchange of such reports and further stated that the date would be “re-set upon the
court’s disposition of the motion for a protective order at docket 61.” Later, in an order
at docket 87, the court denied the motion for a protective order on the grounds that
plaintiffs’ primary theory of jurisdiction over Ching Feng–that it had sold blinds in
question to defendant Wal-Mart–went up in smoke when the court granted Wal-Mart’s
motion for summary judgment. However, the order denied the motion without prejudice
to a new motion if plaintiffs pursued some other theory to establish personal jurisdiction
over Ching Feng. The order at docket 87 was silent as to the exchange of expert
reports which left the precise status for the exchange of expert reports uncertain.
The parties have interpreted the matter of expert reports differently. WCMA has
taken the view that the time for exchanging reports ran 60 days from the filing of the
order at docket 87. Ching Feng and plaintiffs considered that the time for filing reports
would not expire until the court had decided the jurisdictional issue one way or the
other. As it turns out, resolution of the jurisdictional issue was not achieved until
July 27, 2007, when the court decided it would permit no further discovery on the
personal jurisdiction issue and that on the available record, plaintiffs had failed to
establish personal jurisdiction over Ching Feng.
Given the nature of the claims in this case, plaintiffs would be unable to make a
very persuasive case against WCMA on either liability or damages without expert
testimony. The preference for deciding disputes on their merits strongly favors allowing
plaintiffs (and of course WCMA also) to obtain the requisite expert opinions and to
conduct discovery from the experts before the case is taken to trial. While the court
recognizes that WCMA has relied on a fairly reasonable interpretation of the orders at
dockets 82 and 87, there is no prejudice to the merits of WCMA’s which would arise
from allowing expert evidence. Furthermore, the court does not interpret the orders at
docket 82 and 87 to have set a deadline for the exchange of expert reports.
An additional matter must be addressed. WCMA contends that the motion at
docket 138 was untimely. Motions for reconsideration are subject to a five-day time limit
pursuant to D.Ak.LR 59.1. The order whose reconsideration is sought was announced
at the conference on July 27, 2007, and the minutes of that proceeding were placed on
the ECF record on that date. The motion at docket 138 was filed on August 6, 2007.
When computing the time allowed for taking any action which is less than 11 days, the
day on which the initiating event takes place is not counted and intervening nonbusiness days are not counted.2 Thus, WCMA contends the five days ran on Friday,
August 3, 2007.
Plaintiffs assert that the provisions of D.Ak.LR 5.3(f)(2), which equate electronic
filing with service by first class mail, requires that three days of additional time be
added. Of course, service by mail does mean that three days must be added.3 If
D.Ak.LR 5.3(f)(2) applies the motion which was filed on the next business day, Monday
August 6, 2007, was timely filed.
Fed. R. Civ. P. 6(a).
Fed. R. Civ. P. 5(b)(2)(D) and 6(e).
Although counterintuitive, because Mr. Ray was present and actually heard the
ruling on July 27, 2007, the court must agree with plaintiffs. D.Ak.LR 59.1 governing
motions for reconsideration states that for its purposes, “an order is deemed entered
upon service by the clerk of the minutes of the proceeding” when there is no written
order to follow. The Clerk’s service occurred when the minutes were entered into the
ECF system on July 27, 2007. Service by entry into the ECF system is governed by
D.Ak.LR 5.3(f)(2). It follows that three days must be added pursuant to that rule. The
motion was timely.
The motions at docket 138, 142, and 143 are GRANTED as follows:
(1) Plaintiffs will be allowed until October 31, 2007, to provide their expert
reports to defendant WCMA.
(2) WCMA will thereafter have until December 3, 2007, in which to provide its
expert reports to plaintiffs.
(3) Recognizing the impact of the mid-winter holidays, depositions of the
experts shall be completed not later than January 21, 2008.
(4) The parties shall immediately file a joint request for a trial date upon
completion of discovery. That request should set out the parties’ best estimate of the
trial’s duration and suggest at least two mutually agreeable trial dates which must be not
less than eight weeks following the filing of the notice.
DATED at Anchorage, Alaska, this 10th day of September 200.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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