Reming et al v. Holland America Inc et al

Filing 136

ORDER granting in part and denying in part pltfs' 124 Motion for stay of briefing and case deadlines by Judge Robert S. Lasnik.(RS)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10

GARY A. REMING and PATRICIA A.
REMING,
Plaintiffs,

11
12
13
14

Case No. C11-1609RSL

v.
HOLLAND AMERICA LINE INC., et al.,

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR STAY OF BRIEFING
AND CASE DEADLINES

Defendants.

15
16

I. INTRODUCTION

17

This matter comes before the Court on plaintiffs’ “Motion for Stay of Briefing and Case

18

Deadlines ” (Dkt. # 124). Plaintiffs ask the Court to stay the remaining deadlines in the Court’s

19

case management order, as well as the summary judgment proceedings, pending service of

20

process on defendant Tropical Tours Baja Cabo S.A. DE C.V. (“Tropical Tours”). Defendants

21

respond that plaintiffs have had ample opportunity to perfect service. Dkt. # 115 at 5-7. Having

22

considered the parties’ memoranda, supporting documents, and the remainder of the record, the

23

Court GRANTS IN PART and DENIES IN PART plaintiffs’ motion.

24

II. BACKGROUND

25

Since the Court entered the parties’ stipulated order granting plaintiffs leave to add

26

Tropical Tours as a defendant in March 2012, Dkt. # 27, plaintiffs have been attempting to effect

27
28

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR STAY - 1

1

proper service on Tropical Tours in Mexico. Their first attempt failed due to errors in both

2

Tropical Tours’ corporate name and address.

3

In February 2013, the Court granted defendants’ motion for summary judgment, leaving

4

just plaintiffs’ negligent selection, training, supervision and retention claim against defendants

5

remaining. Dkt. # 105 at 12. One week later, defendants moved for summary judgment on that

6

claim. Dkt. # 109. Plaintiffs responded by filing a motion to continue defendants’ summary

7

judgment until June 21, 2013, to allow them time to serve Tropical Tours and conduct discovery

8

prior to submitting their response. Dkt. # 113. Although plaintiffs did not make the requisite

9

showing for a continuance under Rule 56(d), the Court granted plaintiffs’ motion to give effect

10

to the Court’s earlier orders allowing the addition of Tropical Tours as a defendant and

11

continuing the trial date. Dkt. # 119 at 3.

12

Because plaintiffs still have not perfected service on Tropical Tours, they now seek to

13

stay the entire case pending service. Dkt. # 124 at 5-6. Defendants claim that plaintiffs have

14

had ample time and opportunity to perfect service on Tropical Tours and the resolution of

15

plaintiffs’ remaining claim against them should not be delayed indefinitely.
III. DISCUSSION

16
17

“The District Court has broad discretion to stay proceedings as an incident to its power to

18

control its own docket.” Clinton v. Jones, 520 U.S. 681, 706-07 (1997). The party seeking the

19

stay bears the burden of establishing its need. Id. at 708. District courts must weigh “the

20

possible damage which may result from granting of a stay, the hardship or inequity which a party

21

may suffer in being required to go forward, and the orderly course of justice measured in terms

22

of the simplifying or complicating of issues, proof, and questions of law which could be

23

expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).

24

Considering these factors, the Court finds that plaintiffs fail to show a stay of the entire

25

case is necessary. Plaintiffs claim that they will suffer hardship by proceeding with their case

26

against defendants if they are required to respond to defendants’ summary judgment motion

27

without obtaining discovery from Tropical Tours. Dkt. # 124 at 5. However, the Court

28

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR STAY - 2

1

previously determined that plaintiffs were not entitled to a continuance of defendants’ summary

2

judgment motion under Rule 56(d). Dkt. # 119 at 3. Thus, plaintiffs’ contention that staying the

3

entire case “will promote an efficient and fair resolution of this case” because it will allow them

4

to conduct discovery is not persuasive. Id. Despite plaintiffs’ argument to the contrary, the

5

Court’s earlier orders providing time for plaintiffs to serve Tropical Tours do not suggest that an

6

indefinite delay in this case is warranted. Balancing the Court’s interest in an orderly course of

7

justice with the potential harm plaintiffs face by proceeding without a stay, the Court DENIES

8

plaintiffs’ motion to stay the entire case.

9

However, the Court is persuaded that granting a stay of plaintiffs’ case against Tropical

10

Tours is warranted. Service of process on Tropical Tours is governed by the Convention on the

11

Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov.

12

15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 [1969] (“Hague Convention” or the “Convention”),

13

an international treat to which the United States and Mexico are signatories. Volkswagenwerk

14

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988) (“[c]ompliance with the Convention is

15

mandatory in all cases to which it applies.”). The Hague Convention requires each signatory

16

country to establish a central authority to receive requests for service of process from other

17

countries. Id. at 698-99. The central authority is solely responsible for serving the documents or

18

having them served “by a method prescribed by its internal law for service of documents in

19

domestic actions upon persons who are within its territory.” Art. 5(a). Unlike Rule 4, which

20

requires plaintiffs to serve defendants within 120 days, Fed. R. Civ. P. 4(m), the Hague

21

Convention does not impose a time limit on the country’s central authority to effect service,

22

Broad v. Mannesmann Anlagenbau, A.G., 196 F.3d 1075, 1077 (9th Cir. 1999).

23

Here, plaintiffs have provided all of the requisite documentation to Mexico’s central

24

authority and currently await notice that service has been completed. Because effective service

25

is within the sole control of the central authority, the Court finds a limited stay is justified to

26

allow plaintiffs a meaningful opportunity to pursue their claims against Tropical Tours.

27
28

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR STAY - 3

1

Furthermore, defendants have not shown that they will suffer any prejudice if a stay is imposed

2

with respect to Tropical Tours only.

3

While the Court, in its discretion, grants in part plaintiffs’ motion for stay, it finds that a

4

stay indefinite in duration is disfavored. Dependable Highway Exp., Inc. v. Navigators Ins. Co.,

5

498 F.3d 1058, 1066 (9th Cir. 2007). Having already given plaintiff more than one year to

6

complete service of process on Tropical Tours, the Court finds that some deadline is necessary

7

for service, lest this litigation stall with regards to the claims against Tropical Tours. Thus,

8

service shall be accomplished on or before September 25, 2013, unless plaintiffs show good

9

cause for the failure to do so.
IV. CONCLUSION

10
11

For all of the foregoing reasons, the Court GRANTS IN PART plaintiffs’ motion for stay

12

(Dkt. # 124). The above-captioned matter is stayed with respect to defendant Tropical Tours

13

only, pending completion of proper service on that defendant. Plaintiffs must notify the Court

14

within seven days after receipt of confirmation of service of process on Tropical Tours. If,

15

however, service of process has not been achieved by September 25, 2013, plaintiffs must file a

16

status report informing the Court of this fact on or before September 27, 2013.

17
18

DATED this 28th day of June, 2013.

19
20
21

A

22

Robert S. Lasnik
United States District Judge

23
24
25
26
27
28

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR STAY - 4