THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

)
WESTERN SEAFOOD COMPANY ) NO. G-03-CV-811
)
1
-VS- ) GALVESTON, TEXAS
) APRIL 8, 2004
)
THE UNITED STATES OF ) 10:08 a.m.
AMERICA and THE CITY OF )
FREEPORT, TEXAS )

TRANSCRIPT OF STATUS CONFERENCE

BEFORE THE HONORABLE SAMUEL B. KENT

A P P E A R A N C E S :

FOR PLAINTIFF:
RANDALL A. KOCUREK
Kocurek and Associates, P.C.
3730 Kirby
Suite 1200
Houston, Texas 77098
713-626-2004

FOR DEFENDANT THE CITY OF FREEPORT:

JOHN JOSEPH HIGHTOWER and LOREN SMITH
Olson & Olson
2727 Allen Parkway
Wortham Tower, Suite 600
Houston, Texas 77019-2133
713-533-3800
713-533-3888 (fax)

OFFICIAL COURT REPORTER: JEANETTE C. BYERS, RPR, CSR

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPH,

TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION

Jeanette Byers, CSR, RPR (409) 766-3559

 THE COURT: Good morning everyone. Be seated,

please.

All right. This is a status conference in G-03-811,

Western Seafood Company v e r s u s t h e United S t a t e s o f America

and t h e C i t y o f F r e e p o r t .

Who's here for the plaintiff?

MR. KOCUREK: Plaintiff Western Seafood by Randell

Kocurek, Your Honor, attorney, and also Wright Gore, president

of Western Seafood and his son, Wright 111.

THE COURT: Hello to each.

And for the defendants?

MR. HIGHTOWER: Your Honor, John Hightower with Olson

& Olson; Loren Smith, also with Olson & Olson. And we have

some people from the City as well.

THE COURT: All right. Is the Government - - the

federal government now out of this case or what's their

status?

MR. KOCUREK: In terms of the Corps of Engineers'

permit, Your Honor, there's nothing pending at the Corps of

Engineers at this time.

THE COURT: All right. Well, they're noted as a

party in this case. Are they still a party to this case?

MR. KOCUREK: Oh, no, sir, they've been dismissed on

the notice pursuant to the Rules.

THE COURT: All right. Well, I have read the status

Jeanette Byers, CSR, RPR (409) 7 6 6 - 3 5 5 9

I
report provided by Mr. Kocurektsoffice and I understand

that's a somewhat unilateral perspective on the case.

I guess my question to you, Mr. Hightower, is what is

the status, if any, of the participation of Mr. Royall of this

developer up in Dallas?

MR. HIGHTOWER: Mr. Royall is the principal, the, I

guess, person in charge.

THE COURT: I understand that. I'm talking about his

participation in these ongoing settlement negotiations.

MR. HIGHTOWER: He has been - - he has made himself

available to us. We're - - the City - - the EDC is the - -

actually eastern part of the property.

THE COURT: Right.

MR. HIGHTOWER: In fact, we have a contract with

Mr. Royall's group to - - to develop the marina, but that might

not necessarily be what happens. We might develop it in other

ways. He Is made himself available to us. We know what his

position is. And I'm not sure exactly what the Court's

asking.

THE COURT: Well, I'm wondering in order to - - if we

need a machination procedurally such as they're adding them as

a party to get his attention sufficiently to make him a

meaningful negotiator.

MR. HIGHTOWER: My view, Your Honor, we have had

meaningful negotiations. And, frankly, there's just a - -

Jeanette Byers, CSR, RPR ( 4 0 9 ) 7 6 6 - 3 5 5 9

there's a complete difference of opinion of the effect this

project will have on Western Seafood's business. They

believe - - and I think it's an honest belief whether it's

correct or not - - if this project goes forward that their

business is going to be severely damaged.

On the other hand, we think - - and I can assure the

Court honestly believe - - it's an honest difference of

opinion - - that the project will not significantly affect

existing operations of Western Seafood and that they, like

everyone else in Freeport, will benefit from a successful

project. We've worked - - both worked hard. We've had several

meetings all of which occurred at Western Seafood's offices.

I travelled from Houston several times. The City wasn't

that inconvenient. It's a walk of about 150 feet or maybe 150

yards from city hall to the - - but, anyway, we went to their

place, we've all worked very diligently. It's just - - it's

one of those things where the parties have such different

understandings of the facts that we haven't been able to make

substantial progress.

Mr. - - suddenly the City cares what Mr. Royal1 thinks

about the project because they do have a contract with him.

But it's their decision, not his. And they have been ready,

willing and able to - - to make a decision in the negotiations.

They simply haven't felt like they could do anything more than

they've done to this point in time, just as Western Seafood, I

Jeanette Byers, CSR, RPR (409) 766-3559

think, feels the same way. You know, we're not able, despite

our best efforts to reach a agreement.

THE COURT: All right. Now, is this on the jury

docket?

MR. KOCUREK: No, Your Honor, it's - - it's an

admiralty case.

THE COURT: All right. Well, it seems to me we need

to try this case. So let's set a schedule and move in that

direction.

How much time is it going to take you both to get

ready for trial? And I'm anticipating a non-jury trial,

maximum of three days, each side will get a day and a half.

MR. HIGHTOWER: Your Honor, I guess I'm at a loss for

what issues would be - - it's hard to answer that question

without knowing what issues will be tried or triable and,

frankly - - at this point in time pending before the Court is

his motion to - - for leave to amend his petition. And if the

case is to be tried on the issues identified in his amended

petition, I believe there's no trial necessary, it's a pure

question of law.

MR. KOCUREK: Your Honor, if I may address several

quick issues. To answer the Court's question, Your Honor, I

think we can be ready for trial in six months unless we have

to add a new party, which, of course, will take another couple

of months.

Jeanette Byers, CSR, RPR ( 4 0 9 ) 7 6 6 - 3 5 5 9

 THE COURT: Okay.

MR. KOCUREK: Mr. Hightower has represented that

there's a contract between - -

THE COURT: Excuse me. Wait a minute. I've got to

take an emergency phone call. Just stay put. 1'11 be right

back.

(A recess was taken.)

THE COURT: Be seated, please.

All right. Go ahead, sir. I'm sorry to interrupt.

MR. KOCUREK: Your Honor, I was just going to point

out that counsel's representing to the Court that there is a

contract between the City and this Freeport Waterfront

Properties that Mr. Walker Royal1 is the principal of. We've

asked for a signed copy of that with Mr. Royallls signature on

it for Freeport Waterfront Properties on seven or eight

occasions and have never ever seen it, Your Honor, so - -

THE COURT: Have you filed a formal request for

production?

MR. KOCUREK: No, Your Honor I haven't done it.

THE COURT: Well, it's about time we cranked up the

jam on this one.

MR. KOCUREK: Okay. The other thing I'd like to

point out is they keep insisting that this 200 feet or so

strip in dispute, 300 feet, whatever that might be, is so

important to this project. But the project actually has 3,000

Jeanette Byers, CSR, RPR (409) 766-3559

square - - 3,000 waterfront feet of property already between

the back of the property - -

THE COURT: We're past that. I've given you guys

months to try and work this out. And I'm tired of waiting.

We're going to set a trial and go.

MR. KOCUREK: All right, Your Honor.

THE COURT: Plaintiff's given leave to amend. I want

that done by May the 14th. You want to bring in new parties

or do anything you want to do and perfect your claims or

causes of action, do so by that date.

I'm going to set this case for trial preferential

number one. It will not be continued for any reason

whatsoever. We'll set it for trial February 22nd, 2005.

That's an absolutely firm trial date. In consideration

thereof, I'm going to close discovery on February the 4th,

'05. Pretrial order in the non-jury format will be due,

please, by February llth, '05. Pretrial conference by

February - - or during the week, rather, of February 14th, '05.

You'll get a date and time certain setting from the magistrate

judge's chambers in due course.

Plaintiff should designate experts and tender the

reports thereof by November 5th.

Defendant will designate - - or defendants will

designate experts and tender the reports thereof by December

the 17th.

Jeanette Byers, CSR, RPR (409) 766-3559

 And in anticipation of the likelihood of newly

appearing counsel, give me a joint agreeable designation of a

mediator by August the 13th. I'm not going set a deadline for

dispositive motions, but the closer in proximity those are

filed to the trial date, the overwhelming likelihood is that

they will be carried with trial. And unless your position is

that you should win as a matter of law based upon applicable

and specific concise Fifth Circuit or Supreme Court authority,

save your breath, we're going to try this case.

Now, is there anything else we can address

procedurally today that would be of any benefit either extant

or anticipatorily between the parties to save you any expense

or inconvenience?

MR. HIGHTOWER: Yes, Your Honor.

MR. KOCUREK: Not from the plaintiff's perspective,

Your Honor.

THE COURT: Proceed.

MR. HIGHTOWER: First of all, there is a United

States Supreme Court case right on point. So we are going to

be arguing on the law.

THE COURT: Okay.

MR. HIGHTOWER: Second, if the Court does choose, as

it has, to retain jurisdiction of this case, the City is

currently within days of filing a state condemnation action.

They've been going through the preliminary process of doing

Jeanette Byers, CSR, RPR (409) 766-3559

that. Not wanting to be back - - back before the Court, an

angry court, I need - - I guess I would like some direction

from the Court as to whether the Court considers that we are

in some way prohibited from proceeding with our state court

condemnation action.

THE COURT: Do whatever you need, but the Court

pursuant to Fifth Circuit authority and the Court's inherent

powers, I will take under advisement the possibility of

removing that claim and joining it with this proceeding.

MR. HIGHTOWER: That was going to be my next

question, whether the Court would consider taking pendent

jurisdiction over the - -

THE COURT: Well, supplemental jurisdiction, but,

yes, I certainly would.

MR. HIGHTOWER: Sorry.

THE COURT: And that can be one of those things we

try in the trial of this case.

MR. HIGHTOWER: And one last thing. Assuming - -

THE COURT: And, look, let's make sure we do

something because that's - - I'm kind of annoyed with your

comment. You're not facing an angry court, you're facing a

federal district court who has 900 cases on its docket and has

watched this one flop around like a dead flounder for about a

year now. And I want to see it moved to conclusion. That is

the Court's only interest in this case. So do not

Jeanette Byers, CSR, RPR (409) 766

characterize me in a negative context. That's inappropriate

and it's disingenuous.

MR. HIGHTOWER: I apologize. It certainly was not

intended that way, Your Honor.

THE COURT: Well - -

MR. HIGHTOWER: We have the same interest as the

Court in getting rid of the case.

What would be the appropriate timing and form for us

to bring before the Court our - - our issue of law as to

whether or not there's a - -

THE COURT: File a motion for summary judgment.

MR. HIGHTOWER: And does the Court wish to set a

deadline for that or - -

THE COURT: Get it on file as soon as you're prepared

to do so. The response is due within 20 days.

MR. HIGHTOWER: Thank you, Your Honor.

THE COURT: Can you think of anything else?

MR. HIGHTOWER: No, sir.

THE COURT: Anything else?

MR. KOCUREK: No, Your Honor.

THE COURT: All right. Now, there is nothing to

prevent you-all from continuing to discuss the matter and to

amicably resolve it. If you do so, that's great. Call my

case manager and let her know that. I'll be delighted to take

it off the trial docket. Failing that, however, we need

Jeanette Byers, CSR, RPR (409) 766-3559

closure on this issue for the City and for this landowner and

we're going to get it done.

MR. HIGHTOWER: We agree with that, Your Honor.

THE COURT: All right. Thank you.

We're in recess.

(Court adjourned at 10:22 a.m.)

I certify that the foregoing is a correct transcript

from the record of the proceedings in the above-entitled
matter.

/ JEANETTE BYERS, @R \

September 2, 2 0 0 4

Jeanette Byers, CSR, RPR (409) 766-3559