Preview
FILED
5/4/2020 9:59AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kevin Molden DEPUTY
CAUSE NO. DC-19-11136
BERNARD BURKHOLDER AND IN THE DISTRICT COURT
BLAKE BURKHOLDER,
INDIVIDUALLY AND IN THEIR
CAPACITY AS A LIMITED
PARTNERS OF WESTERN
DEVELOPMENT GROUP, LP, AND
AS MANAGERS OF WESTERN
DEVELOPMENT GROUP, GP, LLC
Plaintiffs,
V. 192ml JUDICIAL DISTRICT
WWWWWWWWWWWWWWWWWWWWWWW
THOMAS A. MACDONALD AND
KAREN MACDONALD
Defendants.
AND WESTERN DEVELOPMENT
GROUP, LP AND WESTERN
DEVELOPMENT GROUP GP, LLC
Nominal Defendants. DALLAS COUNTY, TEXAS
DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S
MOTION FOR CONTINUANCE OF HEARING ON MOTION TO COMPEL, SUBJECT
TO SPECIAL APPEARANCE
Come now, Defendants Thomas A. Macdonald and Karen MacDonald (“Defendants”) who
file this their Motion for Continuance of Hearing 0n Motion t0 Compel, subject to their Special
Appearance, and respectfully show the Court the following:
DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 1
FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL,
SUBJECT TO SPECIAL APPEARANCE
I.
GROUNDS FOR MOTION FOR CONTINUANCE
1. Plaintiffs have currently set a hearing — by submission — 0n Plaintiffs’ Motion to
Compel, Which is currently set for 1:45 p.m. 0n Monday, May 4, 2020. By way of this Motion,
Defendants request that the hearing be continued for the reasons delineated below. Defendants
further request that counsel be allowed t0 present oral argument at any hearing — live,
telephonically or Via Zoom — instead 0f a hearing by submission only.
2. The Defendants in this action are residents of Oregon. On March 8, 2020, the
Governor or Oregon declared an emergency due t0 the public health threat posed by the novel
“ ”
infectious coronavirus (C0Vid-19). See Exhibit . On March 13, 2020, the President of the
United States declared the Covid- 1 9 outbreak a national emergency. On 0r about March 23, 2020,
the Governor of Oregon issued a “Stay at Home” Order. Id. As of the date of filing, the order has
not been lifted.
3. Defendants also have retained counsel in Seattle, Washington for purposes 0f
representation in matters related to the subject of this litigation Which have previously been filed
in Oregon and Washington. Counsel has communicated with Defendant’s Seattle counsel and
believes there may be documents stored at Seattle counsel’s office which may contain documents
responsive t0 one 0r more 0f Plaintiffs’ discovery requests in the instant lawsuit.
4. As the Court may know, the Seattle, Washington area was one of the first epicenters
in the United States for C0Vid-19. On January 21, 2020, the Washington State Department 0f
Health confirmed the first case of C0Vid-19 in the United States in Snohomish County,
DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 2
FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL,
SUBJECT TO SPECIAL APPEARANCE
Washington.
5. The Governor 0f Washington declared issued a State 0f Emergency 0n February
29, 2020. After 19 amendatory proclamations, the Governor issued a “Stay at Home” Order 0n
March 23, 2020. See Exhibit “B.” T0 date, this Order has not been lifted.
6. Defendants’ Seattle Counsel’s office has been and remains closed as a result of
Covid-19 and the orders issued by the State 0f Washington. For these reasons, Defendants’
counsel has been unable t0 obtain and review the documents necessary to determine the proper
responses t0 Plaintiffs’ discovery requests.
7. Accordingly, Defendants request the hearing on Plaintiffs’ Motion to Compel be
set after a sufficient time after the Stay at Home Orders provided as Exhibit “A” and Exhibit “B”
are lifted, t0 allow Defendants’ counsel t0 use due diligence in order to respond to Plaintiffs’
Motion t0 Compel.
II.
ARGUMENT AND AUTHORITY
8. Pursuant t0 TEX. R. CIV. P. 25 1 ,
a trial court may grant a continuance for sufficient
cause supported by affidavit, 0r by consent of the parties, or by operation of law. See TEX. R. CIV.
P. 25 1. A motion for continuance must be in writing, contain specific facts supporting the motion,
and be verified 0r supported by affidavit. TEX. R. CIV. P. 252; Joe v. Two Thirly-Nine Joint
Venture, 145 S.W.3d 150, 161 (Tex. 2004); Wal—Mart Stores Tex., LP v. Crosby, 295 S.W.3d
346, 356 (Tex. App.—Da11as 2009, pet. denied). When a Motion for Continuance is in substantial
compliance With Rule 25 1 ,
is not controverted, and isproperly verified, the trial court must accept
DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 3
FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL,
SUBJECT TO SPECIAL APPEARANCE
the statements therein as true. Verkz'n v. Southwest Ctr. One, Ltd, 784 S.W.2d 92, 94 (Tex. App.—
Houston [1st Dist] 1989, writ denied).
9. A continuance is necessary for Defendants t0 adequately and meaningfully prepare
their claims and/or defenses in this matter, including responding t0 Plaintiffs’ Discovery Requests
and Motion t0 Compel.
10. For the reasons stated, Defendants request a continuance of the current hearing date.
Good cause exists for such a continuance, Without Which Defendants will be unfairly and
significantly prejudiced. A new hearing date, after the lifting 0f the Stay at Home Orders, is
necessary for Defendants to respond to discovery and Plaintiffs’ Motion to Compel. This request
is reasonable, necessary, and fair.
11. This Motion for Continuance is made in good faith. This Motion is not being filed
for the purposes of delay, but so that justice may be done.
WHEREFORE, PREMISES CONSIDERED, Defendants pray that this Court grant
Defendants’ Motion for Continuance, and set the hearing for this matter for a sufficient time after
the Stay at Home Orders in Washington and Oregon have been lifted and all relief Defendants may
show themselves entitled in law or equity.
DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 4
FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL,
SUBJECT TO SPECIAL APPEARANCE
Respectfully submitted,
COX L.L.P.
/s/ Jas Braich
CLINTON V. COX
State Bar N0. 24040738
ccox@coxpllc.com
JAS BRAICH
State Bar N0. 24033 198
jbraich@coxpllc.com
7859 Walnut Hill Lane, Suite 310
Dallas, Texas 75230
214-444-7050
469-340- 1 884 [Fax]
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the foregoing document has been served in
accordance with the TEXAS RULES OF CIVIL PROCEDURE 0n the 1“ day of May, 2020 to allcounsel.
/s/ Jas Braich
JAS BRAICH
DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 5
FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL,
SUBJECT TO SPECIAL APPEARANCE
DECLARATION
In accordance with section 132.001 of the Texas Civil Practice & Remedies Code,
[hereby declare as follows:
My name is Jas Braich; and I am over the age of eighteen (1 8) years and of sound mind. I
have never been convicted of a felony or a crime of moral turpitude and am capable of making this
Declaration. I have reviewed the factual statements in the Motion for Continuance and they are
true and correct and based on my personal knowledge.
15‘
Executed on this the day of May, 2020. 7 -
‘
(
‘33s Braich
DEFENDANTS THOMAS A. MACDONALD AND KAREN MCDONALD’S MOTION FOR
CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT T0 SPECIAL
APPEARANCE PAGE - 6
‘
Office 0fthe Governor
State 0f Oregon
EXECUTIVE ORDER NO. 20-12
STAY
ST A Y HOME, SA VE LIVES:
SAVE ORDERING OREGONIANS TO STAY ST AY AT
HOME, CLOSING SPECIFIED RETAIL BUSINESSES, REQUIRING
SOCIAL DISTANCING MEASURES FOR OTHER PUBLIC AND
PRIVATE FACILITIES, AND IMPOSING REQUIREMENTS FOR
OUTDOOR AREAS AND LICENSED CHILDCARE FACILITIES
February 28,
On February 2020, II appointed
28, 2020, the State
appointed the of Oregon's
State of Oregoh’s Coronavirus Response
Coronavirus Response
Team.
February 29,
On February 2020, the
29, 2020, Department of
the Department of Human Services
Services issued strict guidelines,
issued strict guidelines,
restricting visitation
restricting at congregated
visitation at facilities, including
care facilities,
congregated care including nursing homes.
nursing homes.
On March 2, 2020, the
2, 2020, of Oregon Emergency Coordination
State of
the State Center was
Coordination Center
activated.
activated.
On March 8, 8, 2020, declared an
2020, II declared an emergency under ORS 401
emergency under 401.165
.165 et seq. due to
et seq. the
to the
health threat
public health
public posed by
threat posed by the infectious coronavirus
novel infectious
the novel (COVID-19).
coronavirus (COVID-19).
On March 12, I prohibited gatherings
2020, Iprohibited
12, 2020, gatherings ofof 250 oror more people, and announced
people, and
a statewide
a closure of
statewide closure schools from March
of Oregon K-12 schools 16,
16, 2020, through March
2020, through
31,
3 2020.
1 , 2020.
On March 13, 13, 2020, President of
the President
2020, the of the
the United States declared
United States the COVID-19
declared the
outbreak national emergency.
outbreak aa national emergency.
On March 16, 16, 2020,
2020, the Department of
the Department of Human Services imposed its
Services imposed its most recent
most recent
measures
protective measures
protective to
t0 restrict
restrict visitors
visitors to
to long-term
long-term care
care facilities
facilities and
and other
other
residential facilities.
residential facilities. The Oregon Health has adopted
Authority has
Health Authority similar measures
adopted similar measures at at
the
the Oregon State
State Hospital
Hospital and other
other behavioral
behavioral health
health settings
settings and has
has limited
limited
admissions t0
admissions the Oregon State
to the Hospital.
State Hospital. Department of Corrections
The Oregon Department Corrections
has suspended all
has all Visits to state
visits to prisons.
state prisons.
On March 17, 2020, Iprohibited
17, 2020, gatherings of
I prohibited gatherings of 25
25 or banned on-site
people, banned
or more people, on-site
consumption of and drink
food and
of food drink at food establishments
at food establishments statewide, and
statewide, and extending
extending
school closures
school closures until April 28,
until April 2020.
28, 2020. I encouraged all
also encouraged
I also all businesses not subject
businesses not to
subject t0
the prohibitions to
the prohibitions distancing
social distancing
to implement social protocols.
protocols.
On March 18, 2020, II suspended
18, 2020, in-person instructional
suspended in—person activities at
instructional activities higher
at higher
education
education institutions through April
institutio_ns through 2020.
28, 2020.
April 28,
EXHIBIT "A"
$8
EXECUTIVE ORDER NO. 20-12
PAGE TWO
On March 19, 2020, Iordered the postponement 0f non-urgent health care
procedures, in order to conserve personal protective equipment and hospital beds
for the state’s COVID-19 emergency response efforts. I also directed the Oregon
Health Authority to provide guidance regarding limitations and screening for
visitors t0 hospitals and ambulatory surgical centers.
COVID—19 may cause respiratory disease leading t0 serious illness or death. The
World Health Organization considers COVID—19 t0 be a global pandemic.
COVID-19 spreads person-to-person through coughing, sneezing, and close
personal contact, including touching a surface with the Virus on it and then
touching your mouth, nose, or eyes.
To reduce spread of COVID-19, the United States Centers for Disease Control and
Prevention (CDC) has recommended community mitigation strategies to increase
containment of the virus and to slow transmission of the virus, including
cancellation of gatherings of people and social distancing in smaller gatherings.
State and local public health officials advise that the Virus is circulating in the
community and expect the number of cases to increase. The CDC reports that
COVID-19 is most contagious when the individual is most symptomatic but may
also spread before symptoms appear.
The number of COVID-19 cases continues to rise in Oregon. On March 8, 2020, at
the time I declared an emergency, there were 14 presumptive or confirmed cases in
Oregon. By March 12, 2020, there were 21. As of today, there are at least 161
cases and five deaths.
In a short time, COVID-19 has spread rapidly. Additionally, some Oregonians are
not adhering t0 social distancing guidance provided by the Oregon Health
Authority, as represented by crowds this last weekend at the Oregon Coast, Smith
Rock State Park, the Columbia River Gorge, and other places around the state. To
slow the spread of COVID-19 in Oregon, to protect the health and lives of
Oregonians, particularly those at highest risk, and t0 help avoid overwhelming local
and regional healthcare capacity, I find that immediate implementation of
additional measures is necessary. The purpose of this Executive Order is to reduce
person-to-person interaction with the goal of slowing transmission.
EXECUTIVE ORDER NO. 20-12
PAGE THREE
NOW THEREFORE, IT IS HEREBY DIRECTED AND ORDERED THAT:
Stay Home, Save Lives
1. It isessential to the health, safety, and welfare of the State of Oregon during
the ongoing state 0f emergency that, to the maximum extent possible,
individuals stay at home or at their place of residence, consistent with the
directives set forth in my Executive Orders and guidance issued by the
Oregon Health Authority. To that end, pursuant t0 ORS 433.441 (3),
ORS 401.168(1), ORS 401.175(3), and ORS 401.188(2) to (3), Iam
ordering the following:
a. Non-essential social and recreational gatherings of individuals
outside of a home or place of residence (e.g., parties, celebrations, or
other similar gatherings and events) are prohibited immediately,
regardless of size, if a distance of at least six feet between
individuals cannot be maintained.
b. Individuals are prohibited from patronizing businesses that are
closed pursuant to paragraph 2 of this Executive Order, and from
engaging in conduct prohibited by prior Executive Orders or
inconsistent with guidance provided by the Oregon Health
Authority.
c. When individuals need to leave their homes or residences, they
should at all times maintain social distancing 0f at least six feet from
any person who is not a member of their immediate household, to
'
the greatest extent possible, and comply With the other Social
Distancing Requirements guidance issued by the Oregon Health
Authority.
d. Individuals may go outside for outside recreational activities
(walking, hiking, etc.), but must limit those activities to non—contact,
and are prohibited from engaging in outdoor activities where it is not
possible to maintain appropriate social distancing (six feet or more
between individuals).
e. Failure to comply with any of the provisions of this Executive Order
constitutes an imminent threat and creates an immediate danger to
§§§$8
EXECUTIVE ORDER NO. 20-12
PAGE FOUR
public health. Any person found to be in Violation of this Executive
Order is subj ect to the penalties described in ORS 401 .990.
Closure of Certain Businesses
2. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.1680), and ORS
401.188(1) to (3), and effective 12:01 am. on March 24, 2020, I prohibit
the operation of the following businesses, for which close personal contact
is difficult or impossible to avoid:
Amusement parks; aquariums; arcades; art galleries (t0 the extent
that they are open Without appointment); barber shops and hair
salons; bowling alleys; cosmetic stores; dance studios; esthetician
practices; fraternal organization facilities; furniture stores; gyms and
fitness studios (including climbing gyms); hookah bars; indoor and
outdoor malls (i.e., all portions of a retail complex containing stores
and restaurants in a single area); indoor party places (including
jumping gyms and laser tag); jewelry shops and boutiques (unless
they provide goods exclusively through pick-up or delivery service); '
medical spas, facial spas, day spas, and non-medical massage
therapy services; museums; nail and tanning salons; non-tribal card
rooms; skating rinks; senior activity centers; ski resorts; social and
private clubs; tattoo/piercing parlors; tennis clubs; theaters; yoga
studios; and youth clubs.
Paragraph 2 of this Executive Order does not apply to restaurants, bars,
taverns, brew pubs, wine bars, cafes, food courts, coffee shops, or other
similar establishments that offer food or drink, which remain subj ect to
Executive Order No. 20-07 (prohibiting on-premises consumption 0f food
or drink, but allowing take—out or delivery service).
Indoor and outdoor malls, and other businesses subj ect to paragraph 2 of
this Executive Order, are not prohibited from operating to provide food,
grocery, health care, medical, pharmacy, 0r pet store services.
Subject to approval by the Governor, the Oregon Health Authority has the
authority to determine if additional business closures are necessary to slow
the spread of COVID—19 during the ongoing state of emergency.
EXECUTIVE ORDER NO. 20-12
PAGE FIVE
Required Social Distancing for Other Retail Businesses
6. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.1680), and
ORS 401.188(1) to (3), and effective 12:01 am. 0n March 24, 2020, I
prohibit the operation 0f any other retail business not subj ect to paragraph 2
of this Executive Order, unless the business designates an employee 0r
officer to establish, implement, and enforce social distancing policies;
consistent With guidance from the Oregon Health Authority.
‘
7.. Retail businesses that fail to comply with paragraph 6 of this Executive
Order will be closed until they demonstrate compliance.
8. Paragraphs 6 and 7 of this Executive Order do not apply to grocery, health
care, medical, or pharmacy services, which also are encouraged to comply
with social distancing guidelines.
Workspace Restrictions
9. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.1680), and ORS
401.188(1) to (3), and effective March 25, 2020, all businesses and non-
profit entities with offices in Oregon shall facilitate telework and work-at-
home by employees, to the maximum extent possible. Work in offices is
prohibited whenever telework and work-at—home options are available, in
light 0f position duties, availability of teleworking equipment, and network
adequacy.
10. When telework and work-from-home options are not available, businesses
and non-profits must designate an employee or officer to establish,
implement, and enforce social distancing policies, consistent with guidance
from the Oregon Health Authority. Such policies also must address how the
business 0r non-profit will maintain social distancing protocols for
business-critical visitors.
11. Businesses and non-profits that fail to comply with paragraphs 9 and 10 of
this Executive Order Will be closed until they demonstrate compliance.
comm
EXECUTIVE ORDER N0. 20-12
PAGE SIX
Government Buildings
12. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.168(1), and
ORS 401.1880) t0 (3), and effective March 25, 2020, all state executive
branch offices and buildings, to the maximum extent possible, shall close to
the public and provide public services by phone and online during regular
business hours. To the extent that closure is not feasible, in—person
interactions between staff and the public should be by appointment,
whenever possible. When public services require in—person interactions,
social distancing measures must be established, implemented, and enforced,
to the maximum extent possible.
13. State executive branch offices and buildings shall facilitate telework and
work-at-home by employees, to the maximum extent possible. When
telework and work-from-home options are not possible, agencies must
designate an employee or officer to establish, implement, and enforce social
distancing policies, consistent With guidance from the Oregon Health
Authority.
14. Paragraphs 12 and 13 of this Executive Order apply to all offices and
buildings owned or occupied by the state executive branch. This Executive
Order does not apply to offices and buildings owned or occupied by the
state legislative and judicial branches, federal government, local
governments, and tribal governments, but those governments are
nonetheless strongly encouraged t0 adhere to the policies underlying these
directives.
Childcare Facilities
15. Pursuant to ORS 433.441(3)(a) and (d), ORS 401.168(1), and
ORS 401.188(2) and (3), it is ordered that any childcare facility licensed
under ORS 329A.030 and ORS 329A.250 to ORS 329A.450 that does not
meet the requirements 0f paragraph 16 of this Executive Order shall close
from March 25, 2020, through April 28, 2020 (“effective period”), unless
that period is extended or terminated earlier by the Governor.
16. Notwithstanding paragraph 15, childcare facilities are allowed to remain
open during the effective period if they meet the following requirements:
EXECUTIVE ORDER NO. 20-12
PAGE SEVEN
a. Childcare must be carried out in maximum stable groups of 10 or
fewer children (“stable” means the same 10 or fewer children are in
the same group each day), and in a classroom that cannot be
accessed by children outside the stable group; and
b. Facilities must prioritize the childcare needs of first responders,
emergency workers, health care professionals, followed by critical
operations staff and essential personnel, consistent with guidance
provided by the Oregon Department ofEducation, Early Learning
Division.
'I
17. delegate authority to the Oregon Department 0f Education, Early Learning
Division, to set forth exceptions to the rules provided by paragraph 16 of
'
this Executive Order, if it becomes necessary to do so.
Outdoor Recreation and Travel
1'8.
‘
Pursuant to the powers vested in me by ORS 433.441(3), ORS 401.1680)
and (3), and ORS 401.188(1) to (3), I hereby order all private and public
campgrounds t0 be closed immediately. This order does not prohibit camp
hosts or veterans from remaining in state campgrounds, nor does it extend
t0 RV parks and other housing. -
19. I authorize the Oregon Parks and Recreation Department t0 close any
property or facility, when proper social distancing cannot be maintained.
20. I order the immediate closure of all pools, skate parks, outdoor sports
courts, and playground equipment areas.
21. For public recreational areas that are permitted to remain open subject to
this Executive Order, signs requiring social distancing must be posted at all
entrances, exits, and in prominent areas. On-site restrooms must have trash
cans, and soap and water 0r hand sanitizer available. Users of open public
recreational areas must strictly adhere to social distancing guidelines.
22L Individuals are directed to minimize travel, other than essential travel to or
from a home, residence, or workplace; for obtaining or providing food,
shelter, essential consumer needs, education, health care, or emergency
services; for essential business and government services; for the care of
family members, household members, elderly persons, minors, dependents,
EXECUTIVE ORDER NO. 20-12
PAGE EIGHT
persons with disabilities, or other vulnerable persons, pets or livestock;
travel as directed by government officials, law enforcement, or courts; and
other essential travel consistent with the directives of my Executive Orders
and guidance from the Oregon Health Authority.
Enforcement
23. The directives in this Executive Order are effective statewide.
24. This Executive Order is a public health law, as defined in ORS 431A.005,
and may be enforced as permitted under ORS 43 1A.010. Additionally, any
person found to be in Violation of this Executive Order is subj ect to the
penalties described in ORS 401 .990.
This Executive Order is issued under the authority conferred to the Governor by
ORS 401.165 to 401 .236. Pursuant t0 ORS 401.1920), the directives set forth in
this Executive Order have the full force and effect 0f law, and any law, ordinances,
rules and orders shall be inoperative to the extent that they are inconsistent with
this exercise of the Governor’s emergency powers.
This Executive Order is effective immediately, and remains in effect until
terminated by the Governor.
Done at Salem, Oregon this 23rd day of March, 2020.
Kate Brown
GOVERNOR
ATTEST:
Preview
FILED 5/4/2020 9:59AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kevin Molden DEPUTY CAUSE NO. DC-19-11136 BERNARD BURKHOLDER AND IN THE DISTRICT COURT BLAKE BURKHOLDER, INDIVIDUALLY AND IN THEIR CAPACITY AS A LIMITED PARTNERS OF WESTERN DEVELOPMENT GROUP, LP, AND AS MANAGERS OF WESTERN DEVELOPMENT GROUP, GP, LLC Plaintiffs, V. 192ml JUDICIAL DISTRICT WWWWWWWWWWWWWWWWWWWWWWW THOMAS A. MACDONALD AND KAREN MACDONALD Defendants. AND WESTERN DEVELOPMENT GROUP, LP AND WESTERN DEVELOPMENT GROUP GP, LLC Nominal Defendants. DALLAS COUNTY, TEXAS DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION FOR CONTINUANCE OF HEARING ON MOTION TO COMPEL, SUBJECT TO SPECIAL APPEARANCE Come now, Defendants Thomas A. Macdonald and Karen MacDonald (“Defendants”) who file this their Motion for Continuance of Hearing 0n Motion t0 Compel, subject to their Special Appearance, and respectfully show the Court the following: DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 1 FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT TO SPECIAL APPEARANCE I. GROUNDS FOR MOTION FOR CONTINUANCE 1. Plaintiffs have currently set a hearing — by submission — 0n Plaintiffs’ Motion to Compel, Which is currently set for 1:45 p.m. 0n Monday, May 4, 2020. By way of this Motion, Defendants request that the hearing be continued for the reasons delineated below. Defendants further request that counsel be allowed t0 present oral argument at any hearing — live, telephonically or Via Zoom — instead 0f a hearing by submission only. 2. The Defendants in this action are residents of Oregon. On March 8, 2020, the Governor or Oregon declared an emergency due t0 the public health threat posed by the novel “ ” infectious coronavirus (C0Vid-19). See Exhibit . On March 13, 2020, the President of the United States declared the Covid- 1 9 outbreak a national emergency. On 0r about March 23, 2020, the Governor of Oregon issued a “Stay at Home” Order. Id. As of the date of filing, the order has not been lifted. 3. Defendants also have retained counsel in Seattle, Washington for purposes 0f representation in matters related to the subject of this litigation Which have previously been filed in Oregon and Washington. Counsel has communicated with Defendant’s Seattle counsel and believes there may be documents stored at Seattle counsel’s office which may contain documents responsive t0 one 0r more 0f Plaintiffs’ discovery requests in the instant lawsuit. 4. As the Court may know, the Seattle, Washington area was one of the first epicenters in the United States for C0Vid-19. On January 21, 2020, the Washington State Department 0f Health confirmed the first case of C0Vid-19 in the United States in Snohomish County, DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 2 FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT TO SPECIAL APPEARANCE Washington. 5. The Governor 0f Washington declared issued a State 0f Emergency 0n February 29, 2020. After 19 amendatory proclamations, the Governor issued a “Stay at Home” Order 0n March 23, 2020. See Exhibit “B.” T0 date, this Order has not been lifted. 6. Defendants’ Seattle Counsel’s office has been and remains closed as a result of Covid-19 and the orders issued by the State 0f Washington. For these reasons, Defendants’ counsel has been unable t0 obtain and review the documents necessary to determine the proper responses t0 Plaintiffs’ discovery requests. 7. Accordingly, Defendants request the hearing on Plaintiffs’ Motion to Compel be set after a sufficient time after the Stay at Home Orders provided as Exhibit “A” and Exhibit “B” are lifted, t0 allow Defendants’ counsel t0 use due diligence in order to respond to Plaintiffs’ Motion t0 Compel. II. ARGUMENT AND AUTHORITY 8. Pursuant t0 TEX. R. CIV. P. 25 1 , a trial court may grant a continuance for sufficient cause supported by affidavit, 0r by consent of the parties, or by operation of law. See TEX. R. CIV. P. 25 1. A motion for continuance must be in writing, contain specific facts supporting the motion, and be verified 0r supported by affidavit. TEX. R. CIV. P. 252; Joe v. Two Thirly-Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Wal—Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Da11as 2009, pet. denied). When a Motion for Continuance is in substantial compliance With Rule 25 1 , is not controverted, and isproperly verified, the trial court must accept DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 3 FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT TO SPECIAL APPEARANCE the statements therein as true. Verkz'n v. Southwest Ctr. One, Ltd, 784 S.W.2d 92, 94 (Tex. App.— Houston [1st Dist] 1989, writ denied). 9. A continuance is necessary for Defendants t0 adequately and meaningfully prepare their claims and/or defenses in this matter, including responding t0 Plaintiffs’ Discovery Requests and Motion t0 Compel. 10. For the reasons stated, Defendants request a continuance of the current hearing date. Good cause exists for such a continuance, Without Which Defendants will be unfairly and significantly prejudiced. A new hearing date, after the lifting 0f the Stay at Home Orders, is necessary for Defendants to respond to discovery and Plaintiffs’ Motion to Compel. This request is reasonable, necessary, and fair. 11. This Motion for Continuance is made in good faith. This Motion is not being filed for the purposes of delay, but so that justice may be done. WHEREFORE, PREMISES CONSIDERED, Defendants pray that this Court grant Defendants’ Motion for Continuance, and set the hearing for this matter for a sufficient time after the Stay at Home Orders in Washington and Oregon have been lifted and all relief Defendants may show themselves entitled in law or equity. DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 4 FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT TO SPECIAL APPEARANCE Respectfully submitted, COX L.L.P. /s/ Jas Braich CLINTON V. COX State Bar N0. 24040738 ccox@coxpllc.com JAS BRAICH State Bar N0. 24033 198 jbraich@coxpllc.com 7859 Walnut Hill Lane, Suite 310 Dallas, Texas 75230 214-444-7050 469-340- 1 884 [Fax] ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE Ihereby certify that a true and correct copy of the foregoing document has been served in accordance with the TEXAS RULES OF CIVIL PROCEDURE 0n the 1“ day of May, 2020 to allcounsel. /s/ Jas Braich JAS BRAICH DEFENDANTS THOMAS A. MACDONALD AND KAREN MACDONALD’S MOTION PAGE - 5 FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT TO SPECIAL APPEARANCE DECLARATION In accordance with section 132.001 of the Texas Civil Practice & Remedies Code, [hereby declare as follows: My name is Jas Braich; and I am over the age of eighteen (1 8) years and of sound mind. I have never been convicted of a felony or a crime of moral turpitude and am capable of making this Declaration. I have reviewed the factual statements in the Motion for Continuance and they are true and correct and based on my personal knowledge. 15‘ Executed on this the day of May, 2020. 7 - ‘ ( ‘33s Braich DEFENDANTS THOMAS A. MACDONALD AND KAREN MCDONALD’S MOTION FOR CONTINUANCE OF HEARING ON PLAINTIFFS’ MOTION TO COMPEL, SUBJECT T0 SPECIAL APPEARANCE PAGE - 6 ‘ Office 0fthe Governor State 0f Oregon EXECUTIVE ORDER NO. 20-12 STAY ST A Y HOME, SA VE LIVES: SAVE ORDERING OREGONIANS TO STAY ST AY AT HOME, CLOSING SPECIFIED RETAIL BUSINESSES, REQUIRING SOCIAL DISTANCING MEASURES FOR OTHER PUBLIC AND PRIVATE FACILITIES, AND IMPOSING REQUIREMENTS FOR OUTDOOR AREAS AND LICENSED CHILDCARE FACILITIES February 28, On February 2020, II appointed 28, 2020, the State appointed the of Oregon's State of Oregoh’s Coronavirus Response Coronavirus Response Team. February 29, On February 2020, the 29, 2020, Department of the Department of Human Services Services issued strict guidelines, issued strict guidelines, restricting visitation restricting at congregated visitation at facilities, including care facilities, congregated care including nursing homes. nursing homes. On March 2, 2020, the 2, 2020, of Oregon Emergency Coordination State of the State Center was Coordination Center activated. activated. On March 8, 8, 2020, declared an 2020, II declared an emergency under ORS 401 emergency under 401.165 .165 et seq. due to et seq. the to the health threat public health public posed by threat posed by the infectious coronavirus novel infectious the novel (COVID-19). coronavirus (COVID-19). On March 12, I prohibited gatherings 2020, Iprohibited 12, 2020, gatherings ofof 250 oror more people, and announced people, and a statewide a closure of statewide closure schools from March of Oregon K-12 schools 16, 16, 2020, through March 2020, through 31, 3 2020. 1 , 2020. On March 13, 13, 2020, President of the President 2020, the of the the United States declared United States the COVID-19 declared the outbreak national emergency. outbreak aa national emergency. On March 16, 16, 2020, 2020, the Department of the Department of Human Services imposed its Services imposed its most recent most recent measures protective measures protective to t0 restrict restrict visitors visitors to to long-term long-term care care facilities facilities and and other other residential facilities. residential facilities. The Oregon Health has adopted Authority has Health Authority similar measures adopted similar measures at at the the Oregon State State Hospital Hospital and other other behavioral behavioral health health settings settings and has has limited limited admissions t0 admissions the Oregon State to the Hospital. State Hospital. Department of Corrections The Oregon Department Corrections has suspended all has all Visits to state visits to prisons. state prisons. On March 17, 2020, Iprohibited 17, 2020, gatherings of I prohibited gatherings of 25 25 or banned on-site people, banned or more people, on-site consumption of and drink food and of food drink at food establishments at food establishments statewide, and statewide, and extending extending school closures school closures until April 28, until April 2020. 28, 2020. I encouraged all also encouraged I also all businesses not subject businesses not to subject t0 the prohibitions to the prohibitions distancing social distancing to implement social protocols. protocols. On March 18, 2020, II suspended 18, 2020, in-person instructional suspended in—person activities at instructional activities higher at higher education education institutions through April institutio_ns through 2020. 28, 2020. April 28, EXHIBIT "A" $8 EXECUTIVE ORDER NO. 20-12 PAGE TWO On March 19, 2020, Iordered the postponement 0f non-urgent health care procedures, in order to conserve personal protective equipment and hospital beds for the state’s COVID-19 emergency response efforts. I also directed the Oregon Health Authority to provide guidance regarding limitations and screening for visitors t0 hospitals and ambulatory surgical centers. COVID—19 may cause respiratory disease leading t0 serious illness or death. The World Health Organization considers COVID—19 t0 be a global pandemic. COVID-19 spreads person-to-person through coughing, sneezing, and close personal contact, including touching a surface with the Virus on it and then touching your mouth, nose, or eyes. To reduce spread of COVID-19, the United States Centers for Disease Control and Prevention (CDC) has recommended community mitigation strategies to increase containment of the virus and to slow transmission of the virus, including cancellation of gatherings of people and social distancing in smaller gatherings. State and local public health officials advise that the Virus is circulating in the community and expect the number of cases to increase. The CDC reports that COVID-19 is most contagious when the individual is most symptomatic but may also spread before symptoms appear. The number of COVID-19 cases continues to rise in Oregon. On March 8, 2020, at the time I declared an emergency, there were 14 presumptive or confirmed cases in Oregon. By March 12, 2020, there were 21. As of today, there are at least 161 cases and five deaths. In a short time, COVID-19 has spread rapidly. Additionally, some Oregonians are not adhering t0 social distancing guidance provided by the Oregon Health Authority, as represented by crowds this last weekend at the Oregon Coast, Smith Rock State Park, the Columbia River Gorge, and other places around the state. To slow the spread of COVID-19 in Oregon, to protect the health and lives of Oregonians, particularly those at highest risk, and t0 help avoid overwhelming local and regional healthcare capacity, I find that immediate implementation of additional measures is necessary. The purpose of this Executive Order is to reduce person-to-person interaction with the goal of slowing transmission. EXECUTIVE ORDER NO. 20-12 PAGE THREE NOW THEREFORE, IT IS HEREBY DIRECTED AND ORDERED THAT: Stay Home, Save Lives 1. It isessential to the health, safety, and welfare of the State of Oregon during the ongoing state 0f emergency that, to the maximum extent possible, individuals stay at home or at their place of residence, consistent with the directives set forth in my Executive Orders and guidance issued by the Oregon Health Authority. To that end, pursuant t0 ORS 433.441 (3), ORS 401.168(1), ORS 401.175(3), and ORS 401.188(2) to (3), Iam ordering the following: a. Non-essential social and recreational gatherings of individuals outside of a home or place of residence (e.g., parties, celebrations, or other similar gatherings and events) are prohibited immediately, regardless of size, if a distance of at least six feet between individuals cannot be maintained. b. Individuals are prohibited from patronizing businesses that are closed pursuant to paragraph 2 of this Executive Order, and from engaging in conduct prohibited by prior Executive Orders or inconsistent with guidance provided by the Oregon Health Authority. c. When individuals need to leave their homes or residences, they should at all times maintain social distancing 0f at least six feet from any person who is not a member of their immediate household, to ' the greatest extent possible, and comply With the other Social Distancing Requirements guidance issued by the Oregon Health Authority. d. Individuals may go outside for outside recreational activities (walking, hiking, etc.), but must limit those activities to non—contact, and are prohibited from engaging in outdoor activities where it is not possible to maintain appropriate social distancing (six feet or more between individuals). e. Failure to comply with any of the provisions of this Executive Order constitutes an imminent threat and creates an immediate danger to §§§$8 EXECUTIVE ORDER NO. 20-12 PAGE FOUR public health. Any person found to be in Violation of this Executive Order is subj ect to the penalties described in ORS 401 .990. Closure of Certain Businesses 2. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.1680), and ORS 401.188(1) to (3), and effective 12:01 am. on March 24, 2020, I prohibit the operation of the following businesses, for which close personal contact is difficult or impossible to avoid: Amusement parks; aquariums; arcades; art galleries (t0 the extent that they are open Without appointment); barber shops and hair salons; bowling alleys; cosmetic stores; dance studios; esthetician practices; fraternal organization facilities; furniture stores; gyms and fitness studios (including climbing gyms); hookah bars; indoor and outdoor malls (i.e., all portions of a retail complex containing stores and restaurants in a single area); indoor party places (including jumping gyms and laser tag); jewelry shops and boutiques (unless they provide goods exclusively through pick-up or delivery service); ' medical spas, facial spas, day spas, and non-medical massage therapy services; museums; nail and tanning salons; non-tribal card rooms; skating rinks; senior activity centers; ski resorts; social and private clubs; tattoo/piercing parlors; tennis clubs; theaters; yoga studios; and youth clubs. Paragraph 2 of this Executive Order does not apply to restaurants, bars, taverns, brew pubs, wine bars, cafes, food courts, coffee shops, or other similar establishments that offer food or drink, which remain subj ect to Executive Order No. 20-07 (prohibiting on-premises consumption 0f food or drink, but allowing take—out or delivery service). Indoor and outdoor malls, and other businesses subj ect to paragraph 2 of this Executive Order, are not prohibited from operating to provide food, grocery, health care, medical, pharmacy, 0r pet store services. Subject to approval by the Governor, the Oregon Health Authority has the authority to determine if additional business closures are necessary to slow the spread of COVID—19 during the ongoing state of emergency. EXECUTIVE ORDER NO. 20-12 PAGE FIVE Required Social Distancing for Other Retail Businesses 6. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.1680), and ORS 401.188(1) to (3), and effective 12:01 am. 0n March 24, 2020, I prohibit the operation 0f any other retail business not subj ect to paragraph 2 of this Executive Order, unless the business designates an employee 0r officer to establish, implement, and enforce social distancing policies; consistent With guidance from the Oregon Health Authority. ‘ 7.. Retail businesses that fail to comply with paragraph 6 of this Executive Order will be closed until they demonstrate compliance. 8. Paragraphs 6 and 7 of this Executive Order do not apply to grocery, health care, medical, or pharmacy services, which also are encouraged to comply with social distancing guidelines. Workspace Restrictions 9. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.1680), and ORS 401.188(1) to (3), and effective March 25, 2020, all businesses and non- profit entities with offices in Oregon shall facilitate telework and work-at- home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work-at—home options are available, in light 0f position duties, availability of teleworking equipment, and network adequacy. 10. When telework and work-from-home options are not available, businesses and non-profits must designate an employee or officer to establish, implement, and enforce social distancing policies, consistent with guidance from the Oregon Health Authority. Such policies also must address how the business 0r non-profit will maintain social distancing protocols for business-critical visitors. 11. Businesses and non-profits that fail to comply with paragraphs 9 and 10 of this Executive Order Will be closed until they demonstrate compliance. comm EXECUTIVE ORDER N0. 20-12 PAGE SIX Government Buildings 12. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.168(1), and ORS 401.1880) t0 (3), and effective March 25, 2020, all state executive branch offices and buildings, to the maximum extent possible, shall close to the public and provide public services by phone and online during regular business hours. To the extent that closure is not feasible, in—person interactions between staff and the public should be by appointment, whenever possible. When public services require in—person interactions, social distancing measures must be established, implemented, and enforced, to the maximum extent possible. 13. State executive branch offices and buildings shall facilitate telework and work-at-home by employees, to the maximum extent possible. When telework and work-from-home options are not possible, agencies must designate an employee or officer to establish, implement, and enforce social distancing policies, consistent With guidance from the Oregon Health Authority. 14. Paragraphs 12 and 13 of this Executive Order apply to all offices and buildings owned or occupied by the state executive branch. This Executive Order does not apply to offices and buildings owned or occupied by the state legislative and judicial branches, federal government, local governments, and tribal governments, but those governments are nonetheless strongly encouraged t0 adhere to the policies underlying these directives. Childcare Facilities 15. Pursuant to ORS 433.441(3)(a) and (d), ORS 401.168(1), and ORS 401.188(2) and (3), it is ordered that any childcare facility licensed under ORS 329A.030 and ORS 329A.250 to ORS 329A.450 that does not meet the requirements 0f paragraph 16 of this Executive Order shall close from March 25, 2020, through April 28, 2020 (“effective period”), unless that period is extended or terminated earlier by the Governor. 16. Notwithstanding paragraph 15, childcare facilities are allowed to remain open during the effective period if they meet the following requirements: EXECUTIVE ORDER NO. 20-12 PAGE SEVEN a. Childcare must be carried out in maximum stable groups of 10 or fewer children (“stable” means the same 10 or fewer children are in the same group each day), and in a classroom that cannot be accessed by children outside the stable group; and b. Facilities must prioritize the childcare needs of first responders, emergency workers, health care professionals, followed by critical operations staff and essential personnel, consistent with guidance provided by the Oregon Department ofEducation, Early Learning Division. 'I 17. delegate authority to the Oregon Department 0f Education, Early Learning Division, to set forth exceptions to the rules provided by paragraph 16 of ' this Executive Order, if it becomes necessary to do so. Outdoor Recreation and Travel 1'8. ‘ Pursuant to the powers vested in me by ORS 433.441(3), ORS 401.1680) and (3), and ORS 401.188(1) to (3), I hereby order all private and public campgrounds t0 be closed immediately. This order does not prohibit camp hosts or veterans from remaining in state campgrounds, nor does it extend t0 RV parks and other housing. - 19. I authorize the Oregon Parks and Recreation Department t0 close any property or facility, when proper social distancing cannot be maintained. 20. I order the immediate closure of all pools, skate parks, outdoor sports courts, and playground equipment areas. 21. For public recreational areas that are permitted to remain open subject to this Executive Order, signs requiring social distancing must be posted at all entrances, exits, and in prominent areas. On-site restrooms must have trash cans, and soap and water 0r hand sanitizer available. Users of open public recreational areas must strictly adhere to social distancing guidelines. 22L Individuals are directed to minimize travel, other than essential travel to or from a home, residence, or workplace; for obtaining or providing food, shelter, essential consumer needs, education, health care, or emergency services; for essential business and government services; for the care of family members, household members, elderly persons, minors, dependents, EXECUTIVE ORDER NO. 20-12 PAGE EIGHT persons with disabilities, or other vulnerable persons, pets or livestock; travel as directed by government officials, law enforcement, or courts; and other essential travel consistent with the directives of my Executive Orders and guidance from the Oregon Health Authority. Enforcement 23. The directives in this Executive Order are effective statewide. 24. This Executive Order is a public health law, as defined in ORS 431A.005, and may be enforced as permitted under ORS 43 1A.010. Additionally, any person found to be in Violation of this Executive Order is subj ect to the penalties described in ORS 401 .990. This Executive Order is issued under the authority conferred to the Governor by ORS 401.165 to 401 .236. Pursuant t0 ORS 401.1920), the directives set forth in this Executive Order have the full force and effect 0f law, and any law, ordinances, rules and orders shall be inoperative to the extent that they are inconsistent with this exercise of the Governor’s emergency powers. This Executive Order is effective immediately, and remains in effect until terminated by the Governor. Done at Salem, Oregon this 23rd day of March, 2020. Kate Brown GOVERNOR ATTEST: