In the Matter of the Complaint of SDS Lumber Co as owner or owner pro hac vice and operator of the tug DAUBY ON 641327 for Limitation of Liability

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE S.D.S. LUMBER CO., CASE NO. C20-5767 MJP Plaintiff, ORDER ON PETITIONER’S MOTION TO STRIKE AND v. CLAIMANTS’ CROSS-MOTION KEVIN GREGORY; JACOB GREGORY, Defendant.

This matter is before the Court on Petitioner’s motion to strike or disregard Claimants’ response to its motion for partial summary judgment, (Dkt. No. 72), and Claimants’ cross-motion to consider deposition testimony in connection with Petitioner’s motion for partial summary judgment, (Dkt. No. 76). Having considered the motions, the Court DENIES Petitioner’s motion to strike and GRANTS Claimants’ cross-motion. In their opposition to Petitioner’s motion for summary judgment on punitive damages, Claimants asked for a Rule 56(d) continuance, stating that they were unable to schedule the deposition of Captain Cornelison due to scheduling conflicts of Petitioner’s counsel and the Captain. (Dkt. Nos. 63, 64.) After the motion was briefed but before it was decided, Claimants filed the deposition transcript to be considered. (Dkt. Nos. 70, 71.) Petitioner then moved to strike the filing as untimely. (Dkt. No. 72.) Claimants opposed and cross-moved to ask the Court to consider the deposition. (Dkt. No. 76.) The motion for summary judgment was re-

noted, Petitioner filed a combined reply and opposition to the cross-motion, (Dkt. Nos. 84, 85), and Claimants filed a surreply, (Dkt. Nos. 89, 90). “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Claimants have set forth specific facts explaining why they were unable to present evidence essential to their opposition. (Dkt. No. 64, Declaration of James P. Jacobsen.) The deposition of the captain piloting the tugboat allegedly responsible for the collision at issue here falls into the category of facts that are essential for consideration on the issue of punitive damages. As the DAUBY’s captain, punitive damages

will turn on whether his conduct exhibited reckless disregard for Claimants’ safety. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 476–78 (2008); Protectus Alpha Navigation Co. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir. 1985). Petitioner’s motion noted four weeks before the close of discovery and before Claimants could depose the captain. After Petitioner served its motion, Claimants’ attorneys promptly scheduled the deposition of Captain Cornelison, but the deposition was rescheduled to after the motion’s noting date because Petitioner’s counsel and the captain were unavailable. Because “summary judgment is disfavored where relevant evidence remains to be discovered,” Jones v. Blanas, 393 F.3d 918,

930 (9th Cir. 2004), the Court DENIES Petitioner’s motion to strike and GRANTS Claimants’ motion to consider the deposition. The clerk is ordered to provide copies of this order to all counsel. Dated October 21, 2021. A

Marsha J. Pechman United States District Judge