Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 1 of 7

The Honorable John C. Coughenour

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

DISCOVERY PARK COMMUNITY
ALLIANCE, et al.,

9
Petitioners,
10
vs.
11

No. 2:19-cv-1105-JCC
CITY OF SEATTLE’S MOTION TO
MODIFY THE SCHEDULING ORDER
NOTE ON MOTION CALENDAR:
Friday, January 3, 2020

CITY OF SEATTLE,
12
Respondent.
13
I.

INTRODUCTION AND RELIEF REQUESTED

14
Respondent City of Seattle has maintained a vision for concluding this case
15
expeditiously: join necessary parties; bring dispositive motions to resolve the federal issues; and,
16
depending on the result, resolve any remaining issues before this Court or, if appropriate,
17

through a remand to state court. The City and Petitioners’ then-counsel agreed to that approach

18
in principle before the parties proposed a case schedule at the August 6, 2019 status conference.
19
Petitioners have stymied that approach and left the City unable to comply with the
20
August 6 scheduling order. They caused a seven-week delay to fire their original counsel and
21
retain a second. They engendered another seven-week delay needlessly litigating whether to join
22
23

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 1
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 2 of 7

1

the Seattle Public Schools as a party. For four weeks now they have failed to comply with this

2

Court’s order to join necessary parties. And now their second counsel seeks to withdraw.

3
4

To advance the orderly administration of justice, the City respectfully asks this Court to
modify the scheduling order in three respects:

5

1.

strike the March 23, 2020, trial and the March 13 pretrial order deadline;

6

2.

set a deadline of January 17, 2020, for Petitioners to comply with this Court’s

7

November 14 order to file and serve an amended complaint joining necessary

8

parties (and condition any order allowing Petitioners’ second counsel to withdraw

9

on Petitioners first complying with the November 14 order); and

10

3.

set a new status conference for approximately Tuesday, February 18, 2020, so the

11

Court and all necessary parties may craft a new scheduling order to resolve this

12

case expeditiously.

13
14

II.

FACTS

This Court held a status conference August 6, 2019. To prepare, the City’s counsel and

15

Petitioners’ then-counsel, Daniel Frohlich, conferred July 25. In an email message later that day,

16

the City’s counsel summarized what they discussed, including: the City’s desire to join the Army

17

as a party; the City’s intent to seek dismissal of the federal questions through dispositive

18

motions; and the parties’ intent to confer after rulings on the motions to explore how to resolve

19

any remaining issues. See Declaration of Roger Wynne in Support of the City’s Motion to

20

Modify the Scheduling Order (“Wynne Decl.”), Ex. 1.

21

At the courthouse before the status conference, Mr. Frohlich indicated his assent to the

22

City’s approach. Id. In the status conference, Mr. Frohlich and the City’s counsel proposed a

23

schedule premised on prompt joinder of the Army as a party. See Dkt. # 9 (scheduling order).

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 2
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 3 of 7

1

The order sets a trial for March 23, 2020, with dispositive motions due 90 days before the trial,

2

which means December 24, 2019. Id.

3

The afternoon of the status conference, the City’s counsel emailed Mr. Frohlich with a

4

proposal for stipulating to the joinder of the Army as a party. Mr. Frohlich responded: “Sounds

5

reasonable to me.” Wynne Decl. Ex. 2.

6

Petitioners then put this case on hold for seven weeks. On August 9, Petitioners notified

7

the Court they had terminated Mr. Frohlich and asked the City to take no action until Petitioners

8

secured new counsel—a request the City respected. Dkt. # 10. This Court granted Mr. Frohlich’s

9

motion to withdraw on September 19. Dkt. # 14.

10

Allen Miller filed a notice of appearance for Petitioners on September 24. Dkt. # 15. By

11

then having realized the need to join Seattle Public Schools (“SPS”) in addition to the Army, and

12

seeking to expedite the process, the City moved to join them three days later, on September 27,

13

after speaking with Mr. Miller. Dkt. # 16. See Wynne Decl.

14

Petitioners objected to the joinder of SPS. Dkt. # 20. Seven weeks later, on November 14,

15

this Court ordered Petitioners to file and serve an amended petition naming the Army and SPS as

16

respondents. Dkt. # 25.

17

After nearly three weeks without word from Petitioners, the City’s counsel asked Mr.

18

Miller when the City could expect the amended petition, conveyed information on how to serve

19

the Army, and sought a stipulation to an amended case schedule. Wynne Decl. Ex. 3. The City

20

received no response. Wynne Decl.

21
22

Instead, two days later, on December 6, Mr. Miller filed a “Notice of Withdrawal”
followed by a December 11 motion to withdraw. Dkt. # 26 and # 27.

23

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 3
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 4 of 7

III.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

ISSUE PRESENTED

Should this Court modify the scheduling order to advance the orderly administration of
justice?
IV.

EVIDENCE

The City relies on the Declaration of Roger Wynne in Support of the City’s Motion to
Modify the Scheduling Order and the other papers on file with this Court.
V.

ARGUMENT

The City presents good cause to modify the scheduling order. See Fed. R. Civ.
P. 16(a)(4); Local Rules W.D. Wash. LCR 16(b)(5). Since the August 6 status conference, the
City has been subject to four months of delay it could not have anticipated: seven weeks while
waiting for Petitioners to secure new counsel; seven more weeks needlessly overcoming
Petitioners’ refusal to join SPS as a party; and now four more weeks (and counting) waiting for
Petitioners to comply with the November 14 order to join the Army and SPS as parties. The City
now must wait for a decision on Mr. Miller’s motion to withdraw and likely for Petitioners to
again ask the City to stand down so they can secure yet another attorney.
The City has acted in good faith. It worked with opposing counsel to structure this
litigation efficiently. It agreed to a schedule at the status conference premised on Petitioners’
then-counsel’s agreement to join the Army—the only party the City then believed needed to be
joined. The City respected Petitioners’ request to take no action until they secured new counsel.
The City, by then having realized the need to join SPS as a party and trying to expedite this
litigation, moved to join the Army and SPS days after Mr. Miller appeared. After this Court
granted that motion, the City asked Petitioners to stipulate to an amended case schedule.

23

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 4
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 5 of 7

1

The City has acted promptly. The City moved to join other parties days after Mr. Miller

2

appeared and prepared and filed this motion upon learning last Friday of Mr. Miller’s attempted

3

withdrawal.

4

Petitioners have left the City in a bind. The dispositive motion deadline is December 24,

5

but necessary parties remain outside this litigation. Even if the City could proceed alone, Mr.

6

Miller has asked to withdraw and the City cannot work directly with Petitioners until Mr. Miller

7

secures an order allowing his withdrawal. See RPC 4.2; Local Rules W.D. Wash. LCR 83.2(b)(3)

8

– (4). Even if the parties—especially those not yet joined—could adequately prepare for a

9

March 23 trial, the orderly administration of justice would be best served by allowing the parties

10

to resolve dispositive motions without preparing all issues for trial, especially if any trial on

11

remaining issues ultimately occurs in state court.

12

To advance the orderly administration of justice, the City asks this Court to enter an order

13

modifying the scheduling order in three respects. First, the Court should strike the remaining

14

dates in the scheduling order: the pretrial order deadline of March 13 and the trial on March 23.

15

This will relieve the City from trying to comply with the order—particularly the resulting

16

dispositive motion deadline—without necessary parties and, in effect, without Petitioners.

17

Second, this Court should set a deadline of January 17, 2020, for Petitioners to comply

18

with this Court’s November 14 order to file and serve an amended complaint naming the Army

19

and SPS as respondents. Any order allowing Mr. Miller to withdraw should be conditioned on

20

Petitioners first complying with the November 14 order. Mr. Miller should have complied with

21

that order promptly, especially because the scheduling order set a “Pleading amendment/3rd

22

Party action” deadline of November 22. Complying with the order poses no hardship.

23

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 5
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 6 of 7

1

Finally, this Court should set a new status conference for approximately Tuesday,

2

February 18, 2020—roughly four weeks after the deadline to file and serve the amended petition.

3

This timing will allow the newly-joined parties to acquaint themselves with the case and enable

4

Petitioners to secure new counsel or opt to proceed pro se. The goal of the new status conference

5

would be to craft a new scheduling order.
VI.

6

CONCLUSION

7

The City and Petitioners proposed the current schedule to pursue an expeditious

8

resolution of this dispute. Because Petitioners thwarted that approach, the City respectfully asks

9

this Court to modify the scheduling order to advance the orderly administration of justice.

10
11
12
13
14
15
16
17

DATED December 13, 2019.
PETER S. HOLMES
Seattle City Attorney
By:

/s/ Patrick Downs, WSBA # 25276
/s/ Roger D. Wynne, WSBA #23399
Assistant City Attorneys
Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104-7097
Ph: (206) 684-8200
Fax: (206) 684-8284
E-mail: patrick.downs@seattle.gov
roger.wynne@seattle.gov
Attorneys for Respondent City of Seattle

18
19
20
21
22
23

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 6
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I certify that on this day I electronically filed this document, the Declaration of Roger
Wynne in Support of the City’s Motion to Modify the Scheduling Order and the [Proposed] Order
Modifying the Scheduling Order with the Clerk of the Court using the CM/ECF system which will
send notification of such filing to:

3
4
5
6
7

Allen T. Miller, WSBA # 12936
Law Offices of Allen T. Miller, PLLC
1801 West Bay Drive NW
Olympia, WA 98502
Phone: 360-754-9156
Email: allen@atmlawoffice.com
Attorney for Petitioners

8
9

I also certify that on this day I sent a copy of this document via e-mail to the same
individual and to mmoc@atmlawoffice.com, lisa@atmlawoffice.com, and
andrea@atmlawoffice.com.

10
Dated December 13, 2019, at Seattle, Washington.
11
12

/s/ Alicia Reise_________________
ALICIA REISE, Legal Assistant

13
14
15
16
17
18
19
20
21
22
23

CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 7
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200