Oil Spill Response Vessels, LLC et al v. City of Kodiak et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
OIL SPILL RESPONSE VESSELS,
LLC, DARREN K. BYLER, and
DARREN K. BYLER, Preferred
Marine Mortgage Lien Holder M/V
Alaskan,
Plaintiffs,
vs.
CITY OF KODIAK, PAT BRANSON,
MIKE TVENGE, JOSIE BAHNKE,
MICHAEL SARNOWSKI, CHARLES
DAVIDSON, TERRY J. HAINES,
RICHARD WALKER, JOHN
WHIDDON, LAURA ARBOLEDA,
COOPER G. CURTIS, HIGHMARK
MARINE FABRICATION, LLC.,
Defendants.
Case No. 3:23-cv-00067-JMK
CASE MANAGEMENT ORDER
Before the Court are various motions from each of the parties. 	The Court
issues this Case Management Order for the efficient resolution of the pending motions and
to direct forward progress in this litigation. For the reasons below, Plaintiffs’ Motion for
Entry of Default is DENIED AS MOOT and Motion to Amend at Docket 28 is
GRANTED. 	Defendants’ Motion to Take Judicial Notice and Motions to Dismiss at
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Oil Spill Response Vessels, LCC, et al. v. City of Kodiak, et al. 	Case No. 3:23-cv-00067-JMK
Case Management Order 	Page 2
Dockets 24–26 are DENIED AS MOOT. 	Plaintiffs’ Motion to Dismiss Counsel
Appearance and Court Filings by Counsel at Docket 32; Amended Motion to Dismiss
Counsel Appearance and Court Filings at Docket 39; and Motion for Leave to File Exhibit
Conventionally at Docket 40 are DENIED.
A. 	Plaintiffs’ Motion for Entry of Default
At Docket 19, Plaintiffs move for an entry of default pursuant to Federal Rule
of Civil Procedure 55. 	At Docket 17, Defendants requested additional time to file their
Answer, which the Court granted at Docket 18. 	Defendants filed appropriate responsive
pleadings at Dockets 21–26 on or before June 15, 2023, as directed by the Court.
Accordingly, Plaintiffs’ Motion for Entry of Default is DENIED AS MOOT.
B. 	Motions to Dismiss and Motion to Amend
At Dockets 24, 25, and 26, Defendants filed a Motion to Take Judicial Notice
and Motions for Dismiss for Failure to State a Claim. 	Eight days later at Docket 28,
Plaintiff Byler moved to amend his complaint. The proposed First Amended Complaint is
timely under Federal Rule of Civil Procedure 15(a)(1)(B). 	At Docket 35, Defendants
responded in opposition arguing that the proposed First Amended Complaint does not
follow the Local Civil Rules for amendment and brings no new claims, just additional
narrative.
The Court has thoroughly considered Defendants’ argument. After extensive
review and without making any judgment or findings as to the sufficiency of the pleadings,
the Court finds that Plaintiff Byler did articulate new alleged constitutional violations under
the Fourth and Fourteenth Amendments in the First Amended Complaint. 	Because the
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Oil Spill Response Vessels, LCC, et al. v. City of Kodiak, et al. 	Case No. 3:23-cv-00067-JMK
Case Management Order 	Page 3
Court must give self-represented litigants the benefit of liberal construction,1 the Court
does find Plaintiff Byler’s proposed First Amended Complaint appropriate.
Therefore, Plaintiff Byler’s Motion to Amend at Docket 28 is GRANTED.
Plaintiff Byler must re-file the proposed First Amended Complaint at Docket 28-1 within
seven days of receipt of this Order. Defendants’ Motion to Take Judicial Notice at
Docket 24; Motion to Dismiss for Failure to State a Claim at Docket 25, and Motion to
Dismiss for Failure to State a Claim at Docket 26 are DENIED AS MOOT. Upon the
proper filing of the First Amended Complaint, Defendants’ responsive pleading deadlines
shall resume. Defendants have leave to re-file the Motion to Take Judicial Notice and/or
any same or similar Motions to Dismiss for Failure to State a Claim.
C. Motions to Dismiss Counsel
Plaintiff Byler, as a self-represented litigant and through counsel, requests
this Court disqualify and strike all filings from defense counsel “per Alaska Rules of
Professional Conduct Rule 1.7, Conflict of Interest, and ‘Beyond the Pale’ late notice of
appearance filed on June 12, 2023 and subsequent documents filed with this Court.”2
Plainly, these motions have no merit. First, Defendants’ counsel’s appearance was timely.3
Second, Plaintiff’s ethics claim lacks the proper venue or factual basis to be brought before
this Court.
1 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
2 Docket 32 at 1–2; Docket 39 at 1.
3 See Dockets 16–18 and 20–26.
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Oil Spill Response Vessels, LCC, et al. v. City of Kodiak, et al. 	Case No. 3:23-cv-00067-JMK
Case Management Order 	Page 4
Local Civil Rule 83.1(h) states that “[t]he standards of the Alaska Rules of
Professional Conduct apply to any attorney admitted to practice in this court.” Alaska Rule
of Professional Conduct 1.7 defines a concurrent conflict of interest as: 	“(1) the
representation of one client will be directly adverse to another client; or (2) there is a
significant risk that the representation of one or more clients will be materially limited by
the lawyer’s responsibilities to another client, a former client, or a third person or by a
personal interest of the lawyer.” 	An actual conflict of interest is one “that affect[s]
counsel’s performance—as opposed to a mere theoretical division of loyalties.”4
While a court does have a responsibility to monitor the conduct of attorneys,
a federal district court does not adjudicate matters pursuant to the Alaska Rules of
Professional Conduct.5 	Regardless, Plaintiffs filings—both self-represented and re-
packaged and re-submitted by counsel—do not provide meritorious arguments that
opposing counsel have violated the Alaska Rules of Professional Conduct. 	Defendants
may and can choose their counsel as they see fit. Any further attempts to file motions of
this rationale will be summarily denied and risk sanctions against Plaintiff under Rule 11
of the Federal Rules of Civil Procedure. The Motions to Disqualify Counsel at Dockets 32
and 39, and the Motion for Leave to File Exhibit Conventionally at Docket 40, are
DENIED.
4 Mickens v. Taylor, 535 U.S. 162, 163 (2002).
5 See Erickson v. Newmar Corp., 87 F.3d 298, 300 (9th Cir. 1996) (citing Trust Corp. v.
Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983)) (“The district court has the duty and
responsibility of supervising the conduct of attorneys who appear before it.”); see also Alaska Bar
Association, Complaints Against Attorneys (March 15, 2024, 7:50 PM), https://alaskabar.org/for-
our-community/complaints-against-attorneys.
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Oil Spill Response Vessels, LCC, et al. v. City of Kodiak, et al. 	Case No. 3:23-cv-00067-JMK
Case Management Order 	Page 5
IT IS SO ORDERED this 21st day of March, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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