Case 2:19-cv-01105-JCC Document 28 Filed 12/13/19 Page 1 of 7
1 The Honorable John C. Coughenour
6 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
7 AT SEATTLE
8 DISCOVERY PARK COMMUNITY
ALLIANCE, et al.,
No. 2:19-cv-1105-JCC
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Petitioners,
CITY OF SEATTLE’S MOTION TO
10 MODIFY THE SCHEDULING ORDER
vs.
11 NOTE ON MOTION CALENDAR:
CITY OF SEATTLE,
Friday, January 3, 2020
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Respondent.
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I. INTRODUCTION AND RELIEF REQUESTED
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Respondent City of Seattle has maintained a vision for concluding this case
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expeditiously: join necessary parties; bring dispositive motions to resolve the federal issues; and,
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depending on the result, resolve any remaining issues before this Court or, if appropriate,
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through a remand to state court. The City and Petitioners’ then-counsel agreed to that approach
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in principle before the parties proposed a case schedule at the August 6, 2019 status conference.
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Petitioners have stymied that approach and left the City unable to comply with the
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August 6 scheduling order. They caused a seven-week delay to fire their original counsel and
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retain a second. They engendered another seven-week delay needlessly litigating whether to join
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CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 1 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 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 To advance the orderly administration of justice, the City respectfully asks this Court to
4 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 II. FACTS
14 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 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 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 Instead, two days later, on December 6, Mr. Miller filed a “Notice of Withdrawal”
22 followed by a December 11 motion to withdraw. Dkt. # 26 and # 27.
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CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 3 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 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
1 III. ISSUE PRESENTED
2 Should this Court modify the scheduling order to advance the orderly administration of
3 justice?
4 IV. EVIDENCE
5 The City relies on the Declaration of Roger Wynne in Support of the City’s Motion to
6 Modify the Scheduling Order and the other papers on file with this Court.
7 V. ARGUMENT
The City presents good cause to modify the scheduling order. See Fed. R. Civ.
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P. 16(a)(4); Local Rules W.D. Wash. LCR 16(b)(5). Since the August 6 status conference, the
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City has been subject to four months of delay it could not have anticipated: seven weeks while
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waiting for Petitioners to secure new counsel; seven more weeks needlessly overcoming
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Petitioners’ refusal to join SPS as a party; and now four more weeks (and counting) waiting for
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Petitioners to comply with the November 14 order to join the Army and SPS as parties. The City
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now must wait for a decision on Mr. Miller’s motion to withdraw and likely for Petitioners to
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again ask the City to stand down so they can secure yet another attorney.
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The City has acted in good faith. It worked with opposing counsel to structure this
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litigation efficiently. It agreed to a schedule at the status conference premised on Petitioners’
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then-counsel’s agreement to join the Army—the only party the City then believed needed to be
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joined. The City respected Petitioners’ request to take no action until they secured new counsel.
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The City, by then having realized the need to join SPS as a party and trying to expedite this
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litigation, moved to join the Army and SPS days after Mr. Miller appeared. After this Court
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granted that motion, the City asked Petitioners to stipulate to an amended case schedule.
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CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 4 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 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.
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CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 5 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 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.
6 VI. 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 DATED December 13, 2019.
11 PETER S. HOLMES
Seattle City Attorney
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By: /s/ Patrick Downs, WSBA # 25276
13 /s/ Roger D. Wynne, WSBA #23399
Assistant City Attorneys
14 Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
15 Seattle, WA 98104-7097
Ph: (206) 684-8200
16 Fax: (206) 684-8284
E-mail: patrick.downs@seattle.gov
17 roger.wynne@seattle.gov
Attorneys for Respondent City of Seattle
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CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 6 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 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
3 Modifying the Scheduling Order with the Clerk of the Court using the CM/ECF system which will
send notification of such filing to:
4
Allen T. Miller, WSBA # 12936
5 Law Offices of Allen T. Miller, PLLC
1801 West Bay Drive NW
6 Olympia, WA 98502
Phone: 360-754-9156
7 Email: allen@atmlawoffice.com
Attorney for Petitioners
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I also certify that on this day I sent a copy of this document via e-mail to the same
9 individual and to mmoc@atmlawoffice.com, lisa@atmlawoffice.com, and
andrea@atmlawoffice.com.
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Dated December 13, 2019, at Seattle, Washington.
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/s/ Alicia Reise_________________
12 ALICIA REISE, Legal Assistant
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CITY’S MOTION TO MODIFY THE SCHEDULING ORDER - 7 Peter S. Holmes
Seattle City Attorney
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200
