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Plaintiffs’ Ex Parte Application for an Order Continuing Port of Stockton’s 

Motion for Summary Judgment; and Order Granting Ex Parte Application Case No. CIV. S-04-1916 MCE DAD

BANNING MICKLOW BULL & LOPEZ LLP

Edward M. Bull III, SBN 141996

Eugene A. Brodsky, SBN 36691

Jennifer L. Fiore, SBN 203618

One Market, Steuart Tower, Suite 1440

San Francisco, California 94105

Telephone: (415) 399-9191

Facsimile: (415) 399-9192

Attorneys for Plaintiff

LESTER A. FERREIRA SR.

and EVA JEAN FERREIRA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LESTER A. FERREIRA SR.

and EVA JEAN FERREIRA,

Plaintiffs,

vs.

M/V CCNI ANTOFAGASTA, her

engines, tackle, apparel, furniture, etc.,

IN REM, COMPANIA CHILENA de

NAVEGACION INTEROCEANICA

S.A., PORT OF STOCKTON, and

SECHSTE REEDEREI ALSTERUFER

26 GmbH & CIE. KG

Defendants.

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CASE NO. CIV. S-04-1916 MCE

DAD

PLAINTIFFS’ EX PARTE

APPLICATION FOR AN ORDER

CONTINUING THE HEARING

ON AND THE DEADLINE FOR

FILING AN OPPOSITION TO

DEFENDANT PORT OF

STOCKTON’S MOTION FOR

SUMMARY JUDGMENT; AND 

ORDER GRANTING EX PARTE

APPLICATION 

(Pursuant to Local Rule 6-144)

Present Hearing Date: April 3, 2006

Time: 9:00 A.M.

Courtroom 3

Hon. Morrison C. England, Jr.

TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:

Plaintiffs, Lester A. Ferreira, Sr. and Eva Ferreira, apply to this Court for an

order continuing: (1) for approximately 30 days, the presently scheduled hearing

date of April 3, 2006 on Port of Stockton’s Motion for Summary Judgment; and

(2) the deadline for Plaintiffs to file an opposition to the motion for summary

judgment to 14 days before the continued hearing date. Plaintiff also moves for an

order continuing the Court’s Order setting the last day to hear dispositive motions

for April 4, 2006, for the sole purpose of hearing this motion. 

Case 2:04-cv-01916-MCE -DAD Document 41 Filed 03/30/06 Page 1 of 6
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Plaintiffs’ Ex Parte Application for an Order Continuing Port of Stockton’s 

Motion for Summary Judgment; and Order Granting Ex Parte Application Case No. CIV. S-04-1916 MCE DAD

Plaintiffs’ Ex Parte Application is necessary and good cause exists for

granting plaintiff’s Ex Parte Application for the following reasons:

1. Basis for the Continuance; Necessary Discovery Needs to Be

Completed

Plaintiff, Lester A. Ferreira, Sr., a longshoreman alleges that he was injured

on January 25, 2003, in the course of line hauling the vessel M/V CCNI

ANTOFAGASTA when he was struck by a heavy mooring line that caught on the

Port of Stockton’s fendering system. Plaintiffs brought this action under 33

U.S.C. §§ 905(b) and 933 for negligence against the vessel owner, Sophie

Rickmers Schiffahrtsgesellschaft mbH & CIE. KG, and for a dangerous condition

on public property against the Port of Stockton. Plaintiff’s wife, Eva Jean

Ferreira, also has a cause of action for loss of consortium against all Defendants. 

On March 6, 2006, the Port of Stockton (“Port”) filed a motion for summary

judgment, arguing “that no triable issue of material fact exists as to: (1) the

defense of design immunity under California Government Code section 830.6; (2)

the alleged failures to maintain or warn of a dangerous condition; and (3) lack of

landowner liability for injuries sustained by an employee of independent

contractor.” (Port’s Notice of Motion at 1:24-27.) The issues raised in the Port’s

motion are complex and fact intensive. (Declaration of Edward M. Bull, III, filed

in Support of Plaintiff’s Ex Parte Application ¶ 4, filed herewith.) 

Plaintiffs have not had an opportunity to conduct all the discovery that is

necessary to be fully prepared to oppose the Port’s motion for summary judgment. 

That discovery is:

1. Deposition of Port employee/representative, Mark Tollini, who has

been identified as having received repeated complaints about the

fendering system during safety meetings;

///

///

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Plaintiffs’ Ex Parte Application for an Order Continuing Port of Stockton’s 

Motion for Summary Judgment; and Order Granting Ex Parte Application Case No. CIV. S-04-1916 MCE DAD

2. Deposition of Port employee/representative, Mike Tyler, who also has

been identified as having received repeated complaints about the

fendering system during safety meetings;

3. Deposition of Mr. S.Y. Kim, Port Engineer, who filed a declaration in

support of the Port’s motion for summary judgment and attested to

key issues in the Port’s motion;

4. Deposition of the Person(s) Most Knowledgeable (“PMK”) for

Stevedoring Services of America (“SSA”), whose deposition was

already noticed, but not completed. One PMK may presumably be

Daniel Speers, who also filed a declaration in support of the Port’s

motion and attested to key issues in the Port’s motion; and

5. Subpoenaing minutes from the International Longshore Warehouse

Union (“ILWU”) and/or Pacific Maritime Association (“PMA”)

safety meetings where the complaints regarding the fendering system

were raised (which were described by witness, David Caruso in his

deposition of February 16, 2006).

(Bull Decl. ¶ 5.) Plaintiffs may also take the deposition of Virgil Konshack, a

senior longshoreman and safety representative from the ILWU. It is anticipated

that all of this discovery can and will be completed by the non-expert discovery

cut-off of April 7, 2006. (Id.) 

2. Plaintiffs’ Request for Continuance, Plaintiffs’ Presentation of

Applicable Case Law to the Port and the Port’s Refusal to Agree to

Continuance

On March 13, 2006, Plaintiffs’ counsel, Edward M. Bull, III, requested that

counsel for all defendants, John Giffin, Esq., for the vessel owner Sophie

Rickmers Schiffahrtsgesellschaft mbH & CIE. KG and Daniel Truax, Esq., for the

stipulate to a 30-day continuance of the hearing on the Port’s motion so that the

necessary discovery could be completed. (Bull Decl. ¶ 6.) On March 14, 2006,

Case 2:04-cv-01916-MCE -DAD Document 41 Filed 03/30/06 Page 3 of 6
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Plaintiffs’ Ex Parte Application for an Order Continuing Port of Stockton’s 

Motion for Summary Judgment; and Order Granting Ex Parte Application Case No. CIV. S-04-1916 MCE DAD

the Port’s counsel Mr. Truax advised that he needed to discuss the request with his

client. (Id. ¶ 7.) On March 15, 2006, after not hearing from Mr. Truax, Mr. Bull

emailed Mr. Truax, requesting a response by that day and providing specific

authority under the Federal Rules of Civil Procedure, Rule 56(f) and case law

providing for the continuance of motions where discovery is necessary. (Id. ¶ 8.) 

Rule 56(f) specifically provides:

Should it appear from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts essential to justify

the party’s opposition, the court may refuse the application for judgment or

may order a continuance to permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make such other order as is just. 

Plaintiffs cannot present by affidavits facts essential to opposing the Port’s motion

for summary judgement because they do not have ex parte access to the Port’s

representatives or employees (e.g., Mr. Tollini, Mr. Tyler and Mr. Kim). (Bull

Decl. ¶ 10.) Further, Plaintiffs are not aware of who are the PMK’s that will be

produced in response to the outstanding deposition notice for SSA. Presumably,

one such person will be Mr. Speers, who filed a declaration in support of the

Port’s motion. Plaintiffs, are therefore, not in a position to obtain a counter

affidavit from him. (Id.) Plaintiffs are also not in a position to obtain affidavits

regarding minutes from the safety meetings since those are documentary in nature. 

(Id.) 

The hearings on motions for summary judgment are routinely continued

where discovery needs to be completed in order to oppose the motion. See, e.g.,

International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F2d 946, 949 (3rd

Cir. 1990) [“where the facts are in the possession of the moving party, a

continuance . . . should be granted almost as a matter of course”]; Redmond v.

Burlington N. R.R. Co. Pension Plan, 821 F.2d 461, 469 (8th Cir. 1987) ["a party

must have an adequate opportunity to develop his claims through discovery before

summary judgment is appropriate.”] (Bull Decl. ¶ 9.) 

///

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Plaintiffs’ Ex Parte Application for an Order Continuing Port of Stockton’s 

Motion for Summary Judgment; and Order Granting Ex Parte Application Case No. CIV. S-04-1916 MCE DAD

As of the time of filing this Ex Parte Application, counsel for the Port has

not stipulated to the continuance. 

3. Conclusion

The Port’s motion is premature and not appropriate until the discovery set

forth above is completed. As the trial date in this case is not until August 9, 2006, 

resolution of the Port’s motion in early May will not prejudice any party. 

Plaintiffs, however, will be prejudiced if they are not given the opportunity to

complete the necessary discovery. For the foregoing reasons, Plaintiffs’ Ex Parte

Application should be granted.

Since Plaintiffs’ opposing papers are presently due on Monday, March 20,

2006, Plaintiffs respectfully request that their application be expeditiously

considered.

DATED: March 15, 2006 BANNING MICKLOW BULL & LOPEZ LLP

 

By: /S/ Edward M. Bull 

EDWARD M. BULL, III

EUGENE A. BRODSKY

 JENNIFER L. FIORE

 

Attorneys for Plaintiffs

LESTER A. FERREIRA SR.

and EVA JEAN FERREIRA

ORDER

Having considered Plaintiffs’ Ex Parte Application for an Order Continuing

the due date for his opposition papers and the hearing date on the Port of

Stockton’s Motion for Summary Judgment, and good cause appearing,

IT IS HEREBY ORDERED THAT:

1. The hearing on the Port of Stockton’s Motion for Summary Judgment

is continued to May 1, 2006; 

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Plaintiffs’ Ex Parte Application for an Order Continuing Port of Stockton’s 

Motion for Summary Judgment; and Order Granting Ex Parte Application Case No. CIV. S-04-1916 MCE DAD

2. Plaintiff’s opposition papers are due 14 days before the new hearing

date; 

3. The Port of Stockton’s reply papers are due 7 days before the new

hearing date; and

4. The last day for hearing dispositive motions is continued to the new

hearing date solely to allow the hearing on this motion. 

Dated: March 30, 2006

__________________________________

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MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-01916-MCE -DAD Document 41 Filed 03/30/06 Page 6 of 6