Dunn v. City of Seattle et al

Filing 58

ORDER Scheduling Oral Argument re Defendant City of Seattle's 46 MOTION for Summary Judgment : Motion Hearing set for 10/30/2019 at 10:00 AM; denying any request to delay or reschedule oral argument; granting Mr. Hildes the option to appear telephonically at the hearing. The City shall file on the docket a complete copy of the August 5, 2019, deposition of Mr. Dunn by 12:00 p.m. on October 21, 2019. Signed by Judge James L. Robart. (SWT)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

BRENDAN DUNN,

CASE NO. C18-0257JLR
Plaintiff,

11
v.

ORDER SCHEDULING ORAL
ARGUMENT

12
13

CITY OF SEATTLE, et al.,
Defendants.

14
15

The court hereby schedules oral argument on Defendant City of Seattle’s (“the

16

City”) motion for summary judgment (MSJ (Dkt. # 46)) on October 30, 2019, at 10:00

17

a.m. The court understands that Plaintff Brendan Dunn’s counsel, Lawrence Hildes, may

18

object to this schedule based on medical issues related either to himself or his wife. For

19

the reasons set forth below, the court DENIES any request to delay or reschedule oral

20

argument, GRANTS Mr. Hildes the option to appear telephonically at the hearing, and

21

ORDERS the City to file on the docket a complete copy of the August 5, 2019,

22

deposition of Mr. Dunn by 12:00 p.m. on October 21, 2019.

ORDER - 1

1

On October 15, 2019, court personnel emailed counsel for Mr. Dunn and the City

2

and informed counsel that the court intended to schedule oral argument for the City’s

3

motion for summary judgment on either Tuesday, October 29, 2019, or Wednesday,

4

October 30, 2019. The City responded to court personnel via email and indicated that it

5

was available for argument on October 30, 2019. Court personnel responded to this

6

email and informed Mr. Hildes that the court would allow him to appear telephonically

7

for oral argument if he was available on October 30, 2019. Mr. Hildes responded on

8

October 15, 2019, via a voicemail left for court personnel that was extremely difficult to

9

understand due to poor cell phone reception. Based on what court personnel could

10

decipher, it sounded as though Mr. Hildes called to inform the court that, due to his

11

wife’s severe medical complications, he did not believe that he could appear even

12

telephonically for argument “tomorrow,” which, at the time of Mr. Hildes’s call, was

13

October 16, 2019. The court assumes that Mr. Hildes misunderstood court personnel’s

14

initial email. As court personnel’s email made clear, the court intends to schedule

15

argument on either October 29, 2019, or October 30, 2019, not on October 16, 2019.

16

In light of the parties’ responses to court personnel’s email, the court hereby

17

schedules oral argument for the City’s motion for summary judgment on Wednesday,

18

October 30, 2019, at 10:00 a.m. During oral argument, the court will hear argument on

19

any of the issues raised in the City’s motion for summary judgment, but the court

20

instructs the parties to ensure that they are prepared to address the City’s argument that

21

Mr. Dunn’s claims are barred by the applicable statutes of limitations. (See MSJ at

22

//

ORDER - 2

1

14-16.) The court also ORDERS the City to file on the docket a complete copy of the

2

August 5, 2019, deposition of Mr. Dunn by 12:00 p.m. on October 21, 2019. 1

3

The court believes that Mr. Hildes’s concerns with the proposed oral argument

4

schedule will be alleviated by the court’s clarification that oral argument is on October

5

30, 2019, not October 16, 2019. However, the court separately notes that it is well-aware

6

of the central objection raised in Mr. Hildes’s voicemail to the proposed oral argument

7

schedule—that his and his wife’s medical complications prevent him from adequately

8

preparing for oral argument. Mr. Hildes’s and his wife’s medical issues have come up in

9

the course of this litigation on at least six prior occasions:

10

• On May 17, 2018, Mr. Dunn moved for an extension to the deadline to oppose

11

the City’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss due to

12

Mr. Hildes’s medical condition. (See 5/17/18 Mot. (Dkt. # 10); 5/17/18 Hildes

13

Decl. (Dkt. # 11).) The court granted that motion, but warned Mr. Dunn that it

14

would be unlikely to grant similar requests in the future. (See 6/4/18 Order

15

(Dkt. # 13).)

16

• On July 5, 2019, the City moved to amend the case schedule due to Mr. Dunn’s

17

failure to respond to discovery on account of Mr. Hildes’s and his wife’s

18

medical issues. 2 (See 7/5/19 Mot. (Dkt. # 27) at 2-3.) Two weeks later, Mr.

19
20
21
22

1

Excerpts of Mr. Dunn’s deposition are attached as Exhibit 7 to the Esler Declaration
filed in support of the City’s motion for summary judgment. (See Dkt. # 51-7.)
2

The parties also stipulated to amend the case schedule on May 24, 2019, but did not
indicate in that stipulated motion whether or not Mr. Hildes’s medical issues gave rise to the
need for an extension. (See 5/24/19 Mot. (Dkt. # 25).)

ORDER - 3

1

Hildes stipulated to the City’s requested amendment. (See 7/17/19 Mot. (Dkt.

2

# 30).) The court granted the stipulation in part and denied it in part and

3

warned Mr. Dunn and Mr. Hildes that “failure to provide discovery may be

4

used as grounds to dismiss this action.” (See 7/19/19 Order (Dkt. # 31).)
• On July 24, 2019, the City moved to compel Mr. Dunn to provide fulsome

5
6

discovery responses and noted that Mr. Dunn premised his failure to timely

7

respond to discovery on Mr. Hildes’s and his wife’s medical issues. (See

8

7/24/19 Mot. (Dkt. # 34); 7/24/19 Esler Decl. (Dkt. # 33) ¶¶ 6, 8, 17.)

9

• On July 27, 2019, Mr. Dunn moved for reconsideration of the court’s July 19,

10

2019, order granting in part and denying in part the parties’ stipulated motion

11

to amend the case schedule based on the allegation that the court erred in

12

failing to adequately credit the severity of Mr. Hildes’s and his wife’s medical

13

complications. (See 7/27/19 Mot. (Dkt. # 35) at 1-7.) The court denied that

14

motion and informed Mr. Hildes that “[t]he court is not being mean-spirited,

15

unsympathetic, or arbitrary in denying the motion. Rather, the court expects

16

all counsel to diligently represent their clients by preparing cases for trial or

17

arranging other representation.” (7/31/19 Order (Dkt. # 37) at 4.)

18

• On August 8, 2019, Mr. Dunn filed an untimely response to the City’s July 24,

19

2019, motion to compel and argued that his failures to file a timely response

20

and to comply with discovery obligations were due to Mr. Hildes’s and his

21

wife’s medical complications. (See 8/8/19 Resp. (Dkt. # 38) at 1-6.)

22

//

ORDER - 4

• On September 29, 2019—six days after missing the deadline to file a response

1
2

to the City’s summary judgment motion—Mr. Dunn filed an emergency

3

motion for extension of time to oppose that motion. (See 9/29/19 Mot. (Dkt.

4

# 54).) Mr. Dunn’s motion noted that Mr. Hildes missed the deadline to file an

5

opposition due to Mr. Hildes’s wife’s medical complications. 3 (See id. at 1-4.)

6

The court denied that motion on account of Mr. Hildes’s lengthy history of

7

requesting extensions on the basis of various medical complications. (See

8

9/30/19 Mot. (Dkt. # 55) at 3-4.)

9

These instances are only the ones that have showed up on this court’s docket in this case.

10

The court is also familiar with the impact that Mr. Hildes’s and his family’s medical

11

issues have had on the case schedules in other cases in this district. See, e.g., Young v.

12

Pena, No. C18-1007JLR (W.D. Wash.); Juarez v. City of Bellingham, No. C16-0620JCC

13

(W.D. Wash.).

14

The court is not referencing this procedural history in this and other cases in order

15

to comment on or diminish in any way the hardship that Mr. Hildes alleges he is suffering

16

due to his and his wife’s medical conditions. Rather, the court restates the lengthy

17

history of Mr. Hildes’s difficulty complying with court-imposed deadlines in order to

18

remind Mr. Hildes of the warning that it provided to him more than two months ago:

19

consistent with the Rules of Professional Conduct, the court expects all counsel to

20

//

21
22

3

Mr. Dunn also failed to respond to the City’s motion to strike Mr. Dunn’s expert. (See
generally Dkt.) Mr. Dunn did not offer an explanation for that failure or seek an extension of the
deadline to oppose that motion.

ORDER - 5

1

diligently represent their clients by preparing cases for trial or arranging other

2

representation. See RPC 1.1 (“A lawyer shall provide competent representation to a

3

client. Competent representation requires the . . . thoroughness and preparation

4

reasonably necessary for the representation.”); RPC 1.3 (“A lawyer shall act with

5

reasonable diligence and promptness in representing a client.”); RPC 1.16(a)(2) (“[A]

6

lawyer . . . shall . . . withdraw from representation of a client if . . . [t]he lawyer’s

7

physical or mental condition materially impairs his ability to represent the client; . . .”);

8

RPC 3.2 (“A lawyer shall make reasonable efforts to expedite litigation consistent with

9

the interests of the client.”).

10

The court’s expectation of diligence and the relevant Rules of Professional

11

Conduct apply with full force to the oral argument on the City’s motion for summary

12

judgment. The City filed its motion for summary judgment on September 3, 2019 (see

13

MSJ), and the court is setting oral argument on that motion for October 30, 2019. Thus,

14

Mr. Hildes will have had nearly two months to consider and prepare a response to the

15

City’s motion by the time for oral argument. Moreover, although the court prefers that

16

counsel for both parties appear for oral argument in person, due to Mr. Hildes’s and his

17

wife’s history of medical troubles, Mr. Hildes may appear for argument telephonically to

18

alleviate the burden on him. Given the amount of time that Mr. Hildes has been provided

19

//

20

//

21

//

22

//

ORDER - 6

1

to review and prepare a response to the City’s motion, however, the court expects Mr.

2

Hildes and counsel for the City to be prepared for oral argument on October 30, 2019.

3

Dated this 16th day of October, 2019.

4
5

A

6

JAMES L. ROBART
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 7