Powers v. United States of America

Filing 94

MINUTE ORDER: Defendant's unopposed request for judicial notice, docket no. 71 , is GRANTED, and the Court will consider Exhibit Q to the Declaration of Frank J. Anders, docket no. 71 -2. Defendant's motion to strike, docket no. 89 , i s GRANTED in part, and DENIED in part. The Court will consider the revised response, docket no. 86 . Plaintiff's motion for partial summary judgment, docket no. 72 , is DENIED in part, and DEFERRED in part. Authorized by Judge Thomas S. Zilly. (LH)

Case 2:21-cv-00517-TSZ Document 94 Filed 01/18/23 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICHAEL POWERS,

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Plaintiff,

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C21-0517 TSZ

v.

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UNITED STATES OF AMERICA,

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MINUTE ORDER

Defendant.

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The following Minute Order is made by direction of the Court, the Honorable
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(1)
Defendant’s unopposed request for judicial notice, docket no. 71, is
GRANTED, and the Court will consider Exhibit Q to the Declaration of Frank J. Anders,
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(2)
Defendant’s motion to strike, docket no. 89, is GRANTED in part, and
DENIED in part, as follows:
(a)
With regard to plaintiff’s Notice of Errata RE Audio Recordings,
docket no. 84, and Notice of Filing Paper or Physical Materials with the Clerk,
docket no. 85 (concerning a disc labeled Exhibit 4A), defendant’s motion to strike
is GRANTED as to fourteen (14) audio files 1 not cited in plaintiff’s briefs in

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(1) 12-11-44_05-02-19_D4s.wav; (2) 12-11-50_05-02-19_D3s.wav; (3) 12-15-30_05-0219_D5s.wav; (4) 12-15-35_05-02-19_D3s.wav; (5) 12-16-41_05-02-19_D2s.wav; (6) 12-1820 24_05-02-19_D2s.wav; (7) 12-23-02_05-02-19_D1s.wav; (8) 12-38-38_05-02-19_D7s.wav;
(9) 12-38-52_05-02-19_D6s.wav; (10) 12-38-58_05-02-19_D3s.wav; (11) 12-39-15_05-0221 19_D16s.wav; (12) 12-39-32_05-02-19_D7s.wav; (13) 12-39-41_05-02-19_D3s.wav; and
(14) 19-W2776 Fire EMS Radio.wav. In connection with the pending motions, the Court will
22 not consider the audio files listed in this footnote.

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MINUTE ORDER - 1

Case 2:21-cv-00517-TSZ Document 94 Filed 01/18/23 Page 2 of 3

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support of his motion for partial summary judgment, docket nos. 72 & 82, and
DENIED as to nine (9) audio files 2 cited in plaintiff’s reply, docket no. 82.

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(b)
With regard to plaintiff’s praecipe, docket no. 86, attached to which
is a revised version of plaintiff’s response to defendant’s motion to dismiss, which
contains the corrections outlined in the redlined version, docket no. 92-1, filed at
the Court’s direction, defendant’s motion to strike is DENIED. The changes are
not substantive and the Court will consider the revised response, docket no. 86.

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(3)
Plaintiff’s motion for partial summary judgment, docket no. 72, is DENIED
in
part,
and
DEFERRED
in part, as follows:
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(a)
With regard to whether the United States Coast Guard owed a duty
to plaintiff or breached any such duty, plaintiff’s motion is DENIED. Genuine
disputes of material fact preclude summary judgment. See Fed. R. Civ. P. 56(a).

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(b)
With regard to whether defendant may, as a matter of law, pursue a
comparative negligence defense, plaintiff’s motion is DENIED. “The relevant
negligence of the person rescued is . . . that which, whether occurring before or
after the accident, relates to the rescue and either worsens the victim’s condition
or hinders the rescue.” Berg. v. Chevron U.S.A., Inc., 759 F.2d 1425, 1431 (9th
Cir. 1985) (emphasis added). Whether plaintiff was comparatively negligent in
failing to activate the radio in his boat as he set out in the dark during inclement
weather or in any other manner constitutes a factual question that must await trial.

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(c)
With regard to whether defendant can carry its burden of proving
that the “discretionary function” exception applies, plaintiff’s motion is
DEFERRED, and will be decided in conjunction with defendant’s motion to
dismiss, docket no. 69.

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(1) 12-11-54_05-02-19_D22s.wav; (2) 12-12-19_05-02-19_D10s.wav; (3) 12-16-03_05-0219_D6s.wav; (4) 12-16-12_05-02-19_D5s.wav; (5) 12-16-31_05-02-19_D7s.wav; (6) 12-2035_05-02-19_D3s.wav; (7) 12-21-55_05-02-19_D6s.wav; (8) 12-22-05_05-02-19_D18s.wav;
and (9) 12-22-31_05-02-19_D8s.wav. The Court has reviewed the transcripts of these audio
files, and they are consistent with the United States Coast Guard Case Study (“USCG Report”)
dated September 18, 2019, filed by defendant as Exhibit H to the Declaration of Frank J. Anders
(docket no. 70-8). The Coast Guard presumably considered these recordings in preparing the
USCG Report, and defendant was not prejudiced by plaintiff’s failure to cite these materials in
his opening brief in support of his motion for partial summary judgment.

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Case 2:21-cv-00517-TSZ Document 94 Filed 01/18/23 Page 3 of 3

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(4)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 18th day of January, 2023.

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Ravi Subramanian
Clerk

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s/Laurie Cuaresma
Deputy Clerk

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MINUTE ORDER - 3