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Home My WebLink About12-22-2020 - TRACFone Motion to Continue Hearing Date (002)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 125110.0002/8293848.1 TRACFONE’S MOTION TO AMEND CASE SCHEDULE AND CONTINUE HEARING DATE - 1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON RE: TracFone Wireless, Inc. Administrative Appeal TRACFONE’S MOTION TO AMEND THE CASE SCHEDULE AND CONTINUE HEARING DATE INTRODUCTION While discovery has been proceeding and is close to being completed, counsel for the parties engaged in good faith negotiations regarding a brief extension of the discovery deadline to accommodate the schedules of witnesses for depositions and of the hearing date to accommodate any motion practice. Unfortunately, the parties could not agree on the date for the hearing. As a result, the parties are submitting competing motions to amend the case schedule and to continue the hearing date. Appellant TracFone Wireless, Inc., (“TracFone”) respectfully requests that the hearing be set for up to three days the week of March 15, 2021, with revisions to the Case Schedule as set forth below STATEMENT OF FACTS On November 6, 2019, TracFone filed this appeal of the City’s utility tax assessment. TracFone is appealing the application of the city’s utility tax to its business, including the methodology and tax calculations by the City and/or its outside contingent fee auditor, Tax 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 125110.0002/8293848.1 TRACFONE’S MOTION TO AMEND CASE SCHEDULE AND CONTINUE HEARING DATE - 2 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107 Recovery Services (“TRS”) On February 18, 2020, the Hearing Examiner conducted a pre- hearing conference and issued a pre-hearing order that set the hearing date for September 16, 2020. Shortly after the pre-hearing order was issued, the COVID-19 pandemic began to impact the community, the country and the ability to efficiently proceed with discovery. As a result, counsel for the parties worked in good faith to submit a stipulated motion and order amending the case schedule and continuing the hearing date to the week of January 11, 2021. The current case schedule set November 23, 2020 as the deadline for the completion of discovery. The parties were unable to complete discovery by the scheduled deadline for several reasons including a city witness who was on an extended family leave and significant difficulty experienced in efforts to obtain all documents from the city’s outside auditor, TRS, whose work on the audit represents a significant portion of the record in this case. Since late November, counsel for the parties have attempted to finalize an agreed schedule for completion of discovery, submission of any dispositive or significant pre- hearing motions and a new hearing date. Thus far, the parties have agreed to the following “interim” deadlines: • Submission of final witness lists (December 21) • City’s Responses to TracFone’s Requests for Production and Requests for Admissions (December 16) • TracFone’s Responses to City’s Requests for Admissions (December 22) • Two scheduled depositions remain to be taken—Chesley Dillon (December 23) and Thomas Hilton (January 6). The Parties tentatively had agreed to a January 8, 2021 discovery cutoff, and a January 29, 2021 deadline for filing any dispositive or pre-hearing motions. TracFone proposed that the hearing be scheduled for up to three days during the week of March 15, 2021. Operating with the understanding that the week of March 15 was acceptable, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 125110.0002/8293848.1 TRACFONE’S MOTION TO AMEND CASE SCHEDULE AND CONTINUE HEARING DATE - 3 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107 TracFone has confirmed the availability of its witnesses for hearing at that time. The City has not accepted that date and wants the hearing scheduled for the week of April 26, 2021. A second item over which the parties disagree is over scheduling oral argument on dispositive or pre-hearing motions. The city has stated an intention to bring a summary judgment motion. TracFone strongly believes that the Hearing Examiner should hear oral argument on any dispositive motion. The city does not support oral argument on dispositive motions. TRACFONE’S PROPOSED AMENDMENTS TO THE CASE SCHEDULE AND HEARING DATE TracFone proposes that the Hearing Examiner set the Hearing for up to three days the week of March 15, 2021. In addition, TracFone proposes that the case schedule be amended to reflect the interim deadlines agreed to by the parties as well as the following new deadlines: Submission of Final Witness Lists December 21, 2020 Discovery Cutoff January 6, 2021 Deadline for filing dispositive or other pre-hearing motions January 29 ,2021 Opposition to any dispositive or other pre-hearing motions 14 days after the motion is filed Reply briefs in support of any dispositive or pre-hearing motions 5 days following receipt of opposition brief Oral Argument on dispositive and/or Pretrial Motions To be set by Hearing Examiner 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 125110.0002/8293848.1 TRACFONE’S MOTION TO AMEND CASE SCHEDULE AND CONTINUE HEARING DATE - 4 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107 Final Exhibit Lists submitted and Exchanged 7 days prior to the start of the hearing Pre-hearing briefs submitted 7 days prior to the start of the hearing Hearing Commences Week of March 15, 2021 TracFone believes the schedule set forth above will keep the matter moving, is fair to the parties and will result in an efficient and timely completion of the hearing. DATED: December 22, 2020 LANE POWELL PC By Scott M. Edwards, WSBA No. 26455 edwardss@lanepowell.com Grant S. Degginger, WSBA No. 15261 deggingerg@lanepowell.com Attorneys for TracFone Wireless, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 125110.0002/8293848.1 TRACFONE’S MOTION TO AMEND CASE SCHEDULE AND CONTINUE HEARING DATE - 5 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WA 98111-9402 206.223.7000 FAX: 206.223.7107 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury of the laws of the State of Washington and the United States that, on the date listed below, I caused to be served a copy of the attached document to the following persons via electronic mail: Kari L. Sand Ogden Murphy Wallace P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, WA 98164 ksand@omwlaw.com Cynthia Moya Renton City Clerk 1055 So. Grady Way Renton, WA 98057 cmoya@rentonwa.gov olbrechtslaw@gmail.com Executed on the 22nd day of December, 2020, at Seattle, Washington. s/ Norma Tsuboi Norma Tsuboi, Legal Assistant