Swinomish Indian Tribal Community v BSNF Railway Company

Filing 137

STUPULATION AND ORDER granting Parties' 131 Stipulation Motion Regarding Expert Discovery, Summary Judgement Briefing Schedule, and Damages Trial. The expert discovery deadline is extended to April 22, 2021. The Court further ORDERS that the Parties shall file staggered cross-motions for summary judgment under a four-brief schedule: Plaintiff's Motion for Summary Judgment April 9, 2021, BNSF's Response/Cross-Motion April 29, 2021, Tribe's Response/Reply May 14, 2021, BNSF's Reply May 28, 2021. Signed by Judge Robert S. Lasnik.(SR)

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SWINOMISH INDIAN TRIBAL
COMMUNITY, a federally recognized Indian
Tribe,
Plaintiff,

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v.

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BNSF RAILWAY COMPANY, a Delaware
corporation,

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NO. 2:15-cv-00543-RSL
STIPULATED MOTION AND ORDER
REGARDING EXPERT DISCOVERY,
SUMMARY JUDGMENT BRIEFING
SCHEDULE, AND DAMAGES TRIAL

Defendant.

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Pursuant to Fed. R. Civ. P. 16(b)(4), the Parties file this Stipulated Motion Regarding
Expert Discovery Summary Judgment Briefing Schedule, and Damages Trial, and state as
follows:
A.

The Parties Stipulate to Extend Expert Discovery to April 22, 2021
1.

The parties exchanged expert disclosures on February 1, 2021 and rebuttal

expert disclosures on March 15, 2021. The Tribe disclosed three experts and one rebuttal expert
and BNSF disclosed two experts and four rebuttal experts (one of which was a previously

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STIPULATED MOTION AND ORDER REGARDING
EXPERT DISCOVERY, SUMMARY JUDGMENT
BRIEFING SCHEDULE, AND DAMAGES TRIAL - 1

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone]  FAX [phone]

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disclosed expert). The Tribe intends to take depositions of four of BNSF’s five experts. BNSF

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intends to take the depositions of all four of the Tribe’s disclosed experts.

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2.

The operative scheduling order provides that expert discovery must be

completed by April 15, 2021. (Dkt. 120).

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3.

Due to the number of experts involved, in order to accommodate the scheduling

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of the Parties’ counsel and eight experts, the Parties stipulate that the deadline to complete

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expert discovery should be extended to April 22, 2021.

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4.

Pursuant to the Court’s operative scheduling order, this will also extend the

deadline for the parties to file any motions related to expert discovery. No other deadlines are

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affected by this stipulation.

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B.

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The Parties Stipulate to Modify the Briefing Protocol for Rule 56 Motions
5.

After discussion, the Parties anticipate that the topics on which they will seek

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summary judgment have substantial overlap regarding the interpretation and effect of the

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Easement.

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6.

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In order to avoid duplication of effort and to reduce the burden on the Court that

will result if the Parties file simultaneous cross-motions on the same issues, the Parties stipulate

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STIPULATED MOTION AND ORDER REGARDING
EXPERT DISCOVERY, SUMMARY JUDGMENT
BRIEFING SCHEDULE, AND DAMAGES TRIAL - 2

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone]  FAX [phone]

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to a staggered, modified briefing schedule where each party will file two, 30-page briefs as

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follows:

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Tribe’s Motion for Summary Judgment

April 9, 2021

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BNSF’s Response and Cross-Motion

April 29, 2021

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Tribe’s Response/Reply

May 14, 2021

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BNSF’s Reply

May 28, 2021

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This briefing schedule will not extend the noting date.

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C.

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Setting Second Phase Trial
7.

This case has been bifurcated into two trial phases: the liability phase, to be tried

in August 2021 and a subsequent damages phase, which has not been set.
8.

The Parties have not yet engaged in any damages discovery, which would need

to be accomplished following the August 2021 trial.
9.

Further, in December 2020, BNSF sent a formal letter to the Tribe requesting

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consent to an increase in rail traffic over the Easement for the year 2021. On February 16,

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2021, the Swinomish Senate held a special meeting to consider the request. The Senate voted to

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deny consent. Formal notice of the Tribe’s response was sent to BNSF’s counsel on March 4,

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2021. BNSF intends to bring claims related to this request and denial, as may be appropriate

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following the Court’s rulings on the claims pending for trial in August. The Parties agree that in

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STIPULATED MOTION AND ORDER REGARDING
EXPERT DISCOVERY, SUMMARY JUDGMENT
BRIEFING SCHEDULE, AND DAMAGES TRIAL - 3

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone]  FAX [phone]

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addition to damages discovery, BNSF may conduct discovery regarding the Senate’s February

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2021 decision in the second-phase trial.

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10.

The Parties therefore request that the Court set a status conference to discuss

scheduling of the second phase trial and accompanying scheduling order.
DATED this 19th day of April, 2021.
TOUSLEY BRAIN STEPHENS PLLC

PACIFICA LAW GROUP LLP

By: /s/ Christopher I. Brain
Christopher I. Brain, WSBA #5054
By: /s/ Chase C. Alvord
Chase C. Alvord, WSBA #26080
By: /s/ Rebecca L. Solomon
Rebecca L. Solomon, WSBA #51520
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
Tel: [phone]/Fax: [phone]

By: s/ Paul J. Lawrence
Paul J. Lawrence, WSBA #13557
By: s/ Michelle Vaughan
Michelle Vaughan, WSB# 54571
By: s/ Gregory J. Wong
Gregory J. Wong, WSBA #39329
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
1191 Second Avenue, Suite 2000
Seattle, WA 98101
Tel: [phone]/Fax: [phone]
Attorneys for Defendant BNSF Railway
Company

OFFICE OF THE TRIBAL ATTORNEY,
SWINOMISH INDIAN TRIBAL
COMMUNITY

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By: /s/ Stephen T. LeCuyer
Stephen T. LeCuyer, WSBA #36408
By: /s/ Weston R. Lemay
Weston R. Lemay, WSBA #51916
Email: [e-mail]
11404 Moorage Way
LaConner, WA 98257
Tel: [phone]/Fax: [phone]

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Attorneys for Plaintiff

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STIPULATED MOTION AND ORDER REGARDING
EXPERT DISCOVERY, SUMMARY JUDGMENT
BRIEFING SCHEDULE, AND DAMAGES TRIAL - 4

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone]  FAX [phone]

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PURSUANT TO STIPULATION, THE COURT ORDERS that the expert discovery

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deadline is extended to April 22, 2021. The Court further ORDERS that the Parties shall file

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staggered cross-motions for summary judgment under a four-brief schedule:

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Plaintiff’s Motion for Summary Judgment

April 9, 2021

BNSF’s Response/Cross-Motion

April 29, 2021

Tribe’s Response/Reply

May 14, 2021

BNSF’s Reply

May 28, 2021

Each brief shall be limited to 30 pages. All other deadlines set forth in the May 11, 2020
Amended Order Setting Trial Date & Related Dates shall remain unchanged.
Issues related to phase 2 discovery and scheduling will be discussed, if necessary, at the
close of the liability trial.

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Dated this 19th day of April, 2021.
Robert S. Lasnik
United States District Court Judge

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STIPULATED MOTION AND ORDER REGARDING
EXPERT DISCOVERY, SUMMARY JUDGMENT
BRIEFING SCHEDULE, AND DAMAGES TRIAL - 5

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone]  FAX [phone]