Powers v. United States

• Court: District Court, W.D. Washington
• Decided: January 18, 2023
• Docket: 2:21-cv-00517
• Status: Unknown

Opinion

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3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 MICHAEL POWERS, 7 Plaintiff, 8 C21-0517 TSZ v. 9 MINUTE ORDER UNITED STATES OF AMERICA, 10 Defendant. 11 The following Minute Order is made by direction of the Court, the Honorable 12 Thomas S. Zilly, United States District Judge: 13 (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, 14 docket no. 71-2. 15 (2) Defendant’s motion to strike, docket no. 89, is GRANTED in part, and DENIED in part, as follows: 16 (a) With regard to plaintiff’s Notice of Errata RE Audio Recordings, 17 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 18 is GRANTED as to fourteen (14) audio files1 not cited in plaintiff’s briefs in

19 1 (1) 12-11-44_05-02-19_D4s.wav; (2) 12-11-50_05-02-19_D3s.wav; (3) 12-15-30_05-02- 19_D5s.wav; (4) 12-15-35_05-02-19_D3s.wav; (5) 12-16-41_05-02-19_D2s.wav; (6) 12-18- 20 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_05-02- 21 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. 1 support of his motion for partial summary judgment, docket nos. 72 & 82, and DENIED as to nine (9) audio files2 cited in plaintiff’s reply, docket no. 82. 2 (b) With regard to plaintiff’s praecipe, docket no. 86, attached to which 3 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 4 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. 5 (3) Plaintiff’s motion for partial summary judgment, docket no. 72, is DENIED in part, and DEFERRED in part, as follows: 6 (a) With regard to whether the United States Coast Guard owed a duty 7 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). 8 (b) With regard to whether defendant may, as a matter of law, pursue a 9 comparative negligence defense, plaintiff’s motion is DENIED. “The relevant negligence of the person rescued is . . . that which, whether occurring before or 10 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 11 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 12 weather or in any other manner constitutes a factual question that must await trial. 13 (c) With regard to whether defendant can carry its burden of proving that the “discretionary function” exception applies, plaintiff’s motion is 14 DEFERRED, and will be decided in conjunction with defendant’s motion to dismiss, docket no. 69. 15 16 17

18 2 (1) 12-11-54_05-02-19_D22s.wav; (2) 12-12-19_05-02-19_D10s.wav; (3) 12-16-03_05-02- 19 19_D6s.wav; (4) 12-16-12_05-02-19_D5s.wav; (5) 12-16-31_05-02-19_D7s.wav; (6) 12-20- 35_05-02-19_D3s.wav; (7) 12-21-55_05-02-19_D6s.wav; (8) 12-22-05_05-02-19_D18s.wav; 20 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 21 (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 22 his opening brief in support of his motion for partial summary judgment. 1 (4) The Clerk is directed to send a copy of this Minute Order to all counsel of record. 2 Dated this 18th day of January, 2023. 3 Ravi Subramanian 4 Clerk 5 s/Laurie Cuaresma Deputy Clerk 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22