Plaintiff's Opposition to the Estates Motion to Dismisss

PLAINTIFF’S OPPOSITION TO ESTATE’S MOTION TO DISMISS 1.

LAW OFFICES OF ANTHONY M. URIE, PLLC 18130 Midvale Ave N Ste A Shoreline, WA

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THE HONORABLE PALMER ROBINSON

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR KING COUNTY

THORNE H. TASKER, successor trustee for THT Trust and FFL Trust, third party beneficiaries, Tiger Tasker and Kerry Tasker,

Plaintiffs,

v.

JANET K. PHILLIPS, as the Personal representative of THE ESTATE OF WILLIAM D. PHILLIPS, Sr.; AJVS, Inc., a Delaware Corporation, John Doe Corporations 1 through 5, successors in interest to the named corporate entities. Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 11-2-06352-6 SEA PLAINTIFF’S OPPOSITION TO THE ESTATE’S MOTION TO DISMISS

I. THE ESTATE’S POSITION SUPPORTING DISMISSAL

The Estate takes the position that William D. Phillips, now represented by his Estate, did

not have minimum contacts with the State of Washington sufficient to confer jurisdiction

of this court over his business transactions and activities conducted in Washington. Both

the facts of this case, Washington’s Long Arm Statute and legal precedent should result

in this court finding jurisdiction.

II. FACTS OF THIS CASE SUPPORTING MINIMUM CONTACTS AND JURISDICTION



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A. Facts Obtained from the Public Record: These facts are set forth in the

declaration of Marja Starczewski, Esq.

“Detail of Public Records Findings. 4. Exhibit 1, Shipspotting.com, internet site, shows the vessel Excellence moored in Seattle, Washington. Identifies AJVS, Inc. as owner, with hailing port of Seattle, Washington. Identifies Supreme Alaska Seafoods, of Seattle, Washington, as ship’s manager. 5. Exhibit 2, List of IFQ Motherships, obtained from the Internet, Federal web site. Shows Excellence owned by AJVS, Inc., with owners’ address located at 111 W. Harrison, Seattle, WA 98119.

6. Exhibit 3, PACER CASE LOCATER, federal web site, identifies 30 lawsuits wherein all but 6 of them against AJVS, Inc., were filed in the Western District of Washington. In two other cases, both filed in 1990, AJVS, Inc., was the plaintiff, and chose the Western District of Washington as its forum for suit. 7. Exhibit 4, State of Alaska Corporations, official records that identifies Supreme Alaska Seafoods, Inc., as having William D. Phillips as a Director, with Mr. Phillips’ address identified at 4200 23rd Ave. W. #300, Seattle, WA 98199, in 1998. The same information was supplied to the State of Alaska, Corporations’ Section, for the year 2001. The same information was provided to the State of Alaska, Corporations’ Section, for the year 2003. The same information was provided to the State of Alaska, Division of Corporations, for the year 2010. I redacted names of other owners/ parties, to comply with prior court order, although this was obtained from the State of Alaska public records internet site. 8. Exhibit 5. Washington State, Secretary of State, Corporations’ Division, Supreme Alaska Seafoods, Inc., (Alaska Corporation), gives a Seattle, Washington address for its director, William Phillips. Washington filing Date February 2, 1994, expiration date, February 28, 2010.

9. Exhibit 6. Washington State Department of Revenue, Supreme Alaska Seafoods, Inc., Business location, 4225 23rd Ave. W. Ste 104, Seattle, WA, 98199. Permit effective, 1-1-2010, expires 1-1-2010. 10. Exhibit 7. Alaska Corporations business and professional licensing, Supreme Alaska Seafoods, Inc., principal office address, 4225 23rd Ave. W. #104, Seattle, WA, 98199. Entity effective date, July 3, 1990, William D. Phillips, 12.62% owner. William Phillips address identified as 4225 23rd Ave. W. #104, Seattle, WA 98199.



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11. Exhibit 8. Declarations of Service of Summons in a civil action, US District Court, Western District of Washington at Seattle, Ejor v. Supreme Alaska Seafoods, Inc., et al. Defendant served AJVS, Inc., as well as Supreme Alaska Seafoods, Inc., both served at 111 W. Harrison St. Seattle, Washington, AJVS was served by delivery to F. Joseph Bersch III Executive Vice President Phoenix Processor Limited Partnership general Partner, and Supreme Alaska Seafoods was served by delivery to F. Josdph Bersch III, registered Agent.

12. Exhibit 9. Answer and Affirmative Defenses, in matter of Ejor v. Supreme Alaska Seafoods Inc., and Alaska Joint Venture Seafoods, Inc., (aka AJVS Inc) and M/V Excellence, defendants, page 2, paragraph 5, “Admit only that defendant AJVS, Inc is an Alaska Corporation and has a mailing address in Seattle, Washington.” Paragraph 6 “Admit . . . that the M/V Excellence’s hailing port is Seattle, Washington. Signed by David C. Bratz and Carey M.E. Gephart, October 21, 2010.” 13. Also, Exhibit 9a Notice of Appearance, on behalf of both, Supreme Alaskaa Seafoods, Inc., and AJVS, Inc., by David C. Bratz, in Ejor v. Supreme Alaska Seafoods, Inc., and AJVS, Inc., and the M/V Excellence.

14. Exhibit 10, Answer and Affirmative Defenses of Supreme Alaska Seafoods, Inc., in Jattabary v. Supreme Alaska Seafoods, admitting it was the owner pro hac vice of the M/V Excellence, paragraph 2.2, 15. Exhibit 11. My email of February 2, 2011, with my research at that time, from the US Coast Guard official web site, identifying AJVS, Inc., at the address 111 W. Harrison St. Seattle, Washington, 98119, as owner of the vessel Excellence, March 1, 2010. Since this expired in March, 2011, I have updated the same search on the Coast Guard’s web site, and the same information remains. 16. Exhibit 12. Defendant AJVS, Inc’s Answer and Affirmative Defenses, Tim Kennedy, et al., v. AJVS, Inc., Janet K. Phillips as Personal Representative of the Estate of William D. Phillips, case number CV-01-231, US District Court, Western District of Washington, at Seattle. Paragraph 3.9, “Admit only that AJVS, Inc. is a Delaware Corporation with a principal place of business in Seattle, King County, Washington,” signed by David C. Bratz, September 22, 2011. 17. Exhibit 13, Corporate Disclosure of AJVS, Inc., Tim Kennedy, et al., v. AJVS, Inc., Janet K. Phillips as Personal Representative of the Estate of William D. Phillips, case number CV-01-231, US District Court, Western District of Washington, at Seattle, admitting as follows; “As of the date of this Corporation Disclosure Statement, AJ VS, Inc. is a Delaware corporation wholly and privately owned by Phoenix Processor Limited Partnership, a Washington limited partnership.”



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18. Exhibit 14. Internet article, dated October, 1989, by Richard Tremaine, paragraph 4;

“During its formative years, AJVS had trouble finding an Alaskan bank willing to lend it money and when it did, the service was poor. "We opened a Seattle office just to arrange and handle financing. Also the shipyards, brokers and a centralized industry are all down there," says Tasker.”

19. Exhibit 15. Obtained from Pacer, from the file of Kennedy v. Phillips”, U.S. District Court, Western District of Washington, case number 11-01231-MJP, from the Declaration of Carey Gephart, Exhibit A, pages 4 – 10, correspondence from John Stephens dated August 15, 2011, indicated that Seattle law firm had represented Mr. Phillips and Mr. Tasker, and correspondence from a Seattle law firm to William D. Phillips, dated 1998, indicating that William Phillips selected Williams, Kastner & Gibbs as AJVS’s legal counsel (based in Seattle).

20. The aforementioned documents were obtained, in the public domain, on the internet.

21. Exhibit 16 is the “Second Amended Claim of Phoenix Processor Limited partnership”, as filed by LeGros Buchanan & Paul, in the Maryland Register of Wills, (probate court), with an indication, at page 2, that a copy has been mailed to Mr. Bloodworth. This Second Amended Claim includes an explanation of the amended claim with a description of the vessel transaction, as follows;

“William D. Phillips assigned and transferred to Claimant, Phoenix Processor Limited Partnership, a Washington limited partnership ("PPLP"), 1000 shares of the common stock (the "Shares") of AJVS, Inc. a Delaware corporation (hereinafter, the "Company") - representing 100% of the issued and outstanding shares of the Company. In that Assignment, Mr. Phillips repeated and reaffirmed the representations and warranties set forth in Sections 13 and 14 of that certain Option Agreement dated as of December 13,2007 by and between AJVS, Inc. and Supreme Alaska Seafoods, Inc., an Alaska corporation (,'SAS") (copy attached), as amended and assigned to PPLP, with the understanding and intention that all references in such Section 14 to "NewSub" shall (pursuant to Section 9.1 of the Option Agreement and the Assignment) be deemed to apply to the Company, to the Shares, and to William D. Phillips.”

(Declaration of Marja Starczewski, filed herewith).



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B. Records from Columbia State Bank:

Additional Facts Supporting Jurisdiction are contained in the Declaration of Marja

Starczewski, Esq. regarding records from Columbia State Bank, a Washington State

Bank.

4. “I attach a true and correct copy of the Declaration of records Custodian for Columbia Bank, but I have excerpted out only the following documents, from the 51 pages of documents provided by the Records Custodian (all 51 pages are included in our original Exhibit 7, as filed with our prior Response to Summary Judgment).

5. The Guarantee Agreement, dated December 24, 2008, states as follows;

“12. Law That Applies and Where Guarantor May be Sued. This agreement is governed by Washington law. Guarantor consents to the personal jurisdiction of the courts of the State of Washington and the federal courts located in Washington so that Bank may sue Guarantor in Washington to enforce this agreement. Guarantor agrees not to claim that Washington is an inconvenient place for trial. At Bank's option, the venue (location) of any suit to enforce this agreement may be in Seattle, Washington”

6. The Revolving Note, indicating Washington law is to apply. 7. Payoff information, sent to William Phillips, by Columbia Bank, Seattle. 8. Wiring Instructions.

9. Emails to/from William Barclay and William Phillips, regarding the transaction.

10. Satisfaction of Mortgage, produced by Kim Marine Documentation, a Seattle-based vessel documentation company. 11. Email re using Kim Marine Documentation.

12. Wire transfer clearing, in Seattle, Washington. 13. Receipt for wire transfer, from Phoenix Processor Limited Partners.”

(Declaration of Marja Starczewski, with Columbia Bank Records, filed herewith).



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C. Declaration of Tim Kennedy:

The Declaration of Tim Kennedy provides additional information regarding

contacts of William D. Phillips with the State of Washington, which serve as indicators

that William D. Phillips has had the minimum contacts with Washington to confer

jurisdiction. In particular, the Court is asked to refer to Exhibit 17g and Exhibit 17h,

both of which are an extension agreements, dated October 22, 2010, and January 21,

2011, respectively, signed by Janet K. Phillips, as Personal Representative on behalf of

the Estate of William D. Phillips, agreeing to extend loans with Columbia State Bank, a

Washington Corporation, upon which William D. Phillips had given his personal

guarantees. The Promissory Notes and personal guarantees thus extended by the Estate,

had forum selection clauses providing that any suit on those guarantees would be in

Washington State;

1. “I, Tim Kennedy, make this declaration from my personal knowledge. I am over the age of 18, and competent to testify to the matters set forth in this declaration.

2. I am a Member of Atlantic Frost Holdings LLC, together with William D. Phillips. I keep records of bank transactions of Atlantic Frost Holdings LLC, in the regular course of business. Attached hereto are true and correct copies of some of the loan documents, from my business records, which indicate that Washington State was accepted as a choice of venue for any dispute, by William D. Phillips and/or his Estate. 3. Attached at Exhibit 17a is a Business Loan Agreement, dated October 16, 2009, for a loan with Columbia State Bank. Columbia State Bank, also known as Columbia Bank, is located in Washington State. The Business Loan Agreement, was signed by William D. Phillips individually, and by William D. Phillips as Member of Atlantic Frost Holdings LLC on June 24, 2009. The “Jurisdiction” section, at page 5 of the Business Loan Agreement, reads as follows;

JURISDICTION. Obligors agree to waive any objection to jurisdiction or venue on the ground that Obligors are not residents of



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Lender's locality. Obligors authorize any action brought to enforce Obligors' obligations to he instituted and prosecuted in any state court having jurisdiction or in the United States District Court for the District that includes Lenders location as set forth at the beginning of this Agreement. Obligors authorize Lender to elect the court at Lenders sole discretion”

4. At the time this Business Loan Agreement was signed, it was known to myself and William D. Phillips that the Lender’s locality was Seattle, King County, Washington, and in fact Columbia State Bank’s address is set forth at the top of the first page of this Agreement.

5. Attached at Exhibit 17b is a Commercial Security Agreement, signed by William Phillips, also dated October 16, 2009, which indicates that the Borrower includes both Atlantic Frost Holdings LLC and William D. Phillips individually. On the last page (page 6) of this Agreement is an acknowledgement that the Agreement was delivered within the State of Washington;

GOVERNING LAW. This Agreement has been delivered in the state of Washington and shall be construed in accordance with the laws of that state.

6. Attached as Exhibit 17c is an Amendment to Preferred Mortgage, drafted by Kim Marine Documentation, a vessel documentation service located in Seattle, King County, Washington which provided the documentation services for the 2005 modification of an existing loan with Columbia Bank, a Seattle-based bank.

7. Attached at Exhibit 17d is a Promissory Note, with a loan date of 06-29-05, for the principal sum of $1,000,000.00, wherein the Lender was Columbia State Bank, located in Seattle, King County Washington, and which contains, at page 2, the following venue provision;

CHOICE OF VENUE. lf there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of KING County, State of Washington.

8. Attached at Exhibit 17e is an Amendment to Preferred Mortgage, with an attached promissory Note. The Amended documentation was prepared by Kim Marine Documentation, of Seattle, King County, Washington, and was for a loan modification with Columbia Bank, 2nd and University Branch in Seattle, King County, Washington. The following paragraph at page 2, paragraph 3 of the Amendment indicates William D. Phillips was personally obligated on the loan;

Terms of the existing Promissory Note are amended as specified in the -new Promissory Note which is executed by the Mortgagor, and William D. Phillips as co-borrower individually. A copy of the new



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Promissory Note is attached hereto as Exhibit “A". 9. The Promissory Note, at Exhibit 17e, is signed twice by William D. Phillips, individually and as Member of Atlantic Frost holdings LLC, on August 6, 2006.

10. Exhibit 17f is a Change in Terms, for a Line of Credit, with Columbia Bank, a Seattle-based bank signed by William D. Phillips both individually, and as Member of Atlantic Frost Holdings LLC, for a loan with a principal balance of $951,369.26, and line of Credit Limit of $928,000.00.

11. Exhibit 17g is an extension agreement, dated October 22, 2010, signed by Janet K. Phillips, as Personal Representative on behalf of the Estate of William D. Phillips, with Columbia State Bank, a Washington Corporation.

12. Exhibit 17h is an Additional Extension Agreement, dated January 21, 2011, signed by Janet K. Phillips, as Personal Representative on behalf of the Estate of William D. Phillips, with Columbia State Bank, a Washington Corporation.

13. I was asked to sign a Personal Guarantee for all the previously mentioned loans and extensions prior to August 2010 by William D. Phillips as a personal favor because Columbia State Bank did not deem Phillips creditworthy based on his financial statement and personal guarantees alone. I renewed the Guarantee several times at Phillips request. Phillips gave me his word that he would be reimburse me if the Guarantee was ever called.”

(Declaration of Tim Kennedy, dated October 23, 2011, filed herewith).

D. Declaration of Thorne Tasker:

Mr. Thorne Tasker has had a long-standing business relationship with William D.

Phillips, which involved multiple vessels, based in Seattle, and multiple corporations,

based in Seattle, and has personal knowledge of Mr. Williams’ personally conducting

business in Seattle, before, during, and after the relevant time period of 1995.

The Estate asserts that William D. Phillips’ “office” was in Washington, D.C.

That statement, however, is only true as to the “law office” of William D. Phillips, not the

fisheries-related business offices, which apparently were at SAS Fisheries headquarters,



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in Seattle, as reported to the Secretaries of State of both, Washington and Alaska, and as

set forth in the Declaration of Thorne Tasker;

1. “I, Thorne Tasker, hereby certify as follows; I am over the age of 18, and competent to testify to the matters contained in this declaration.

2. William D. Phillips and I had a partnership, which involved a half a dozen vessels, and at any given point at least one vessel would be in a ship yard in Seattle. Bill Phillips was a member of the WAC (Washington Athletic Club, located on 6th Avenue, downtown Seattle), so he used to frequently use the WAC – that’s where he would usually stay. In a normal business cycle of a year, I would meet Bill Phillips 6 times in Seattle and maybe 2 times in Alaska, and of the two times in Alaska, one would be his sport fishing with Ted Stevens, so would not be connected to AJVS business. So 75% to 80% of all the business meetings we had were conducted in Seattle, over the years from the late 1980’s to our partnership split in 1991. In 1992, we signed a follow-up agreement to unwind our partnership, and that had a venue clause which provided for jurisdiction in Seattle.

3. In 1995, we signed an agreement, which is known to this Court as the 1995 Swap Agreement, which also recites that Washington Law applies. At the time I signed the agreement, I thought that the phrase, Washington Law applies, would mean that jurisdiction for any suit would be in Seattle, King County, Washington. 4. The 1999 agreement, and the subsequent amended version of the 1999 agreement, both recited that jurisdiction for any suit would be in Seattle.

5. Between 1990 to 1995, Mr. Phillips and I were involved in at least two litigations brought against us and our companies here in Seattle, where we both attended mediations, depositions, hearings, and we actually went to trial in one of those litigations. In one suit, the Judge ruled that Phillips was using AJVS as an Alter Ego, and entered judgment personally against Phillips. 6. After our split in 1992, Bill Phillips decided to move the fishery operations headquarters from Anchorage to Seattle, and after 1993, there was almost no connection to Anchorage, the business was conducted almost entirely in Seattle. Examples of the business connection to Seattle include; Seattle was where the M/V Excellence was based, where all the hiring and firing of the crew was done, where any crew injury or wage claims would be handled, and the entity that controlled the Excellence, SAS, was headquartered. 7. Bill Phillips would attend board meetings for SAS, Inc. frequently in Seattle, from 1991 – on. I have correspondence referring to board meetings



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in Seattle. I personally attended three board meetings that were in Seattle, and Bill Phillips was present at all three.

8. Bill Phillips made it a routine practice to be in Seattle to conduct business. When we had a vessel in a Seattle shipyard, I would be here to supervise the shipyard work, and Bill Phillips would come to Seattle for several days at a time to visit me, check on the business, and engage in continuous negotiations with banks, because at that time he was CFO of AJVS, in addition to being President. He had also signed personal guarantees with the banks. 9. After 1989, all of he AJVS banking was done in Seattle. Our revolving lines of credit, our vessel mortgages, were all done in Seattle, with SeaFirst or Seattle First Bank. Bill Phillips would come out frequently to meet with Everett Allen, the banker. Bill Phillips and I had provided our personal guarantees for all the bank loans we had at SeaFirst or Seattle First. At the end, we were up to loan number 18 – so I assume we had had 17 loans prior to that. Our loan balance would be in the millions of dollars, and we would deposit our income in the bank, also in the millions of dollars. 10. All of AJVS marketing and a lot of our sales were done in Seattle, a lot of the sales were based on Lines of Credit, so SeaFirst Bank would be involved in the sales. Bill Phillips was involved in the marketing rights (not the actual marketing of product) for the Seattle-based marketing. 11. All of our normal maritime business, as far as registering and licensing vessels, was done through Kim Marine Documentation, located in Seattle, Washington. This would include recording vessel mortgages, liens, UCC documentation, releases, and many of these documents would require William Phillips’ signature or approval, which he would provide directly to Kim Marine Vessel Documentation, in Seattle. 12. After Bill Phillips and I split up, AJVS interests were exclusively managed by SAS, which became headquartered in Seattle, so when Bill Phillips dealt with Fisheries business, he would come to Seattle to do business. He did not conduct seafood business in D.C., which was his law office. Bill Phillips may not have had a law office in Seattle, but he would conduct fisheries business from Seattle, and he had his board meetings, and conduct his fisheries-related banking, in Seattle. 13. Our Japanese partner, Tayio, managed all their fish plants and operations in Seattle. Our AJVS Seafood marketing was done in Seattle. DOCUMENTS

14. I have kept some of the records of corporations and Limited Partnerships, in which I shared interest in fishing vessels, with William Phillips. The attached exhibits are true and correct copies of corporate records, which I have kept in the ordinary course of my business. I have



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attached only those records which specifically indicate use of Seattle, King County, Washington as the convenient or necessary forum for the conduct of our business, and the situs of the corporations and/or Limited Partnerships, as follows;

15. Exhibit 18, a 1992 Agreement between William Phillips and myself, which includes the following venue paragraph, on page 4;

“Venue for any action under this Agreement shall lie in King County, Washington.”

16. Exhibit 19, a and b, are excerpts of depositions, taken of William D. Phillips in 1991 and 1992, where he came to Seattle to have his deposition taken in this lawsuit. 17. Exhibit 20, is a letter from the Preston law firm to William Phillips, indicating he had agreed to fund certain legal actions, several of which had Seattle connections. The person writing the letter, Joan Travostino, was the original Trustee of a predecessor to one of the trusts referenced in the 1995 Swap agreement. She was my step-mother, in that she had married my father. 18. Exhibit 21. First Amendment to Duffy Sea Limited partnership, a Washington limited partnership, in which William Philips was a Limited Partner, with a 37% partnership interest. Other partners were Tasker, and Supreme Alaska Seafoods, Inc. 19. Exhibit 22. Attorney Instructions, Oct 15, 1990. William Phillips was corresponding with the Seattle, Washington law firm of Preston Thorgrimson Shidler Gates & Ellis, in 1990, re AJVS, Inc., and said law firm created the documentation for the Alaskan Pride Limited Partnership, for filing with “the Secretary of State's Office here in Washington.”

‘Certificate of Limited Partnership for the Duffy Sea Limited partnership, to be executed in duplicate and returned to me for filing with the Washington Secretary of State's Office” “As you and Thorne know, a representation of parties with potential conflicting interests is not permitted under the canon of ethics governing lawyers unless those parties consent (in Washington, that consent must be confirmed in writing).”

20. Exhibit 23. Stock Subscription Agreement. William D. Phillips was the President of Duffy Sea Management Inc., a Washington corporation, and approved a stock subscription agreement, in 1990. Schedule I indicates an outstanding loan from Seafirst Bank (a Washington-based bank), in the amount of $1,050,000.00. 21. Exhibit 24. Redemption Agreements, 1990. Two 1990 Stock Redemption agreements, the first, the seller is William Phillips, and the



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second, the seller is Thorne Tasker, to White bear Co., a Washington Corporation; each containing the following provision;

“11. Applicable Law. This Agreement shall be construed in accordance with the laws of the State of Washington.”

22. Exhibit 25. Description of purchase of the M/V Excellence. Consent of Directors, of White Bear Co., a Washington corporation, signed by William Phillips, Director, and Thorne Tasker, Director, in 1990, with the following provision;

“WHEREAS, William Phillips ("Phillips") and Thorne Tasker ("Tasker") each own shares of common stock of the Corporation;

WHEREAS, Phillips desires to have the Corporation redeem 191 of his shares of common stock in the. Corporation which Phillips acquired pursuant to an April 1990 exchange for $240,000 in cash (the "Phillips' Price");” . . .

‘The execution of this Consent shall constitute written waiver of any notice required by the Washington Business Corporation Act and the corporation's Articles of Incorporation and Bylaws.” Attachment to Consent of Directors, EXHIBIT A

DESCRIPTION OF TRANSACTION INVOLVING ALASKAN PRIDE LIMITED PARTNERSHIP . . .

“A summary of the transaction and its purpose follows: Purpose: Phillips and Tasker have entered into·a series of agreements with Taiyo pursuant to which AJVS, Inc. ("AJVS" ), a corporation wholly owned by Phillips and Tasker, purchased a fish processing vessel from Taiyo known as the Excellence. AJVS has chartered the Excellence to SASI. Taiyo owns 49% " of the shares of SASI and Phillips and Tasker own 49%; the remaining 2% is owned by a third party unrelated to either Phillips and Tasker or Taiyo. SASI will operate the Excellence a processing· factory vessel, primarily in the North Pacific. The Excellence will not be permitted to SASI will be capitalized with cash and interests in vessels which can supply fish to the Excellence. Phillips and Tasker have agreed to provide a portion of their capital contribution in the form of an interest in the F/V Alaskan Pride. Because of vessel ownership and tax laws, Phillips and Tasker have determined that the most appropriate method of carrying out this contemplated capital contribution is through a conversion of a portion of Phillips' and Tasker's interest in the Company into a limited partnership interest that can be contributed to SASI.



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As part of the agreement surrounding the formation of SASI, AJVS will enter into an agreement with SASI to supply round fish needed for the Excellence. Phillips and Tasker expect to make the FIV Alaskan Pride available for purposes of this supply. If so, the Company, through its interest in the L.P., may benefit from additional earnings.

L. P. : The L.P. will be a newly-formed Washington limited partnership. Its sole general partner will be the Company. . .”

23. Exhibit 26. CERTIFICATE OF LIMITED PARTNERSHIP OF DUFFY SEA LIMITED PARTNERSHIP, containing the following provisions;

Article II “The street address of the initial office for records of the limited partnership in the State of Washington is c/o Preston Thorgrimson Shidler Gates &Ellis, 5400 Columbia Seafirst Center, 701 - 5th Avenue, Seattle, Washington 98104-7078. The name of the initial registered agent of the limited partnership is PTSGE corp. and its street address is 5400 Columbia Seafirst center, 701 - 5th Avenue, Seattle, Washington 98104-7078.”

24. Exhibit 27. CONSENT TO'SERVE AS REGISTERED,AGENT, for the Duffy Sea Limited Partnership, by PTSGE Corp., 5400 Columbia Seafirst Center 701 - 5th Avenue Seattle, Washington 98104-7078 25. Exhibit 28. AGREEMENT OF LIMITED PARTNERSHIP OF DUFFY SEA LIMITED PARTNERSHIP;

“1. Formation of Limited Partnership.

The parties hereby form and agree to operate a limited partnership (the "Partnership") pursuant to the provisions of the Uniform Limited Partnership Act of the state of washington (Ch. 25.10, Revised Code of Washington).

2. Name and Place of Business. The name of the Partnership is Duffy Sea Limited Partnership and its principal place of business shall be 2550 Denali, suite 1406, Anchorage, Alaska 99503. The Partnership's office of record, as required by RCW 25.10.040(1), shall be c/o PTSGE Corp., 5400 Columbia Seafirst Center, 701 Fifth Avenue, Seattle, Washington 98104-7078, and the agent for service of process on the

Partnership, as required by RCW 25.10.040 (2) 5400 Columbia Seafirst Center, 701 5th Avenue, Seattle, Washington 98104-7078.



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3. Purposes and Powers. 3.1 The purposes of the Partnership shall be:

(a) to own and operate the fishing vessel Duffy Sea, official no. 588,849, currently being renamed the "Allegiance" (the "Vessel");”

. . . “3.2 The Partnership shall have all of the powers permitted under the applicable laws of the state of Washington to do any and·all things necessary, proper or expedient, in furtherance of any of its purposes,” . . .

4. Term. The Partnership shall commence on the date the Partnership's certificate of Limited Partnership is filed with the office of the Secretary of State of the State of Washington and shall continue for thirty (30) years thereafter unless earlier terminated in accordance with Article 15 below.

William Phillips’ interest in the partnership was 49.5%, with a stated value of $828,630

. . . 16.2 The death of a Partner . . . (however, if there is more than one Purchasing Partner and they are unable to agree on an arbitrator, then any such Partner may within the twenty-five (25) day period petition King county Superior Court for the appointment of their arbitrator and, provided any such Partner has so petitioned, the provisions of this sentence shall not apply). If both Partners select an arbitrator in a timely fashion, the two arbitrators so appointed shall, within ten (10) days of the last of the appointment select a third arbitrator with experience in the valuation of fishing vessels active in the North Pacific. (If the arbitrators are unable to reach agreement on a third arbitrator, the third arbitrator shall be appointed as expeditiously as possible by the King county Superior Court and either Selling Partner or any Purchasing Partner shall be entitled to petition such court for such purpose).. . .”

. . . “19.6 without limiting the parties' rights to bring an action in any forum, if any action, suit or proceeding arising out of this Agreement is brought in the state or federal court sitting in King County, Washington, the parties hereby consent to jurisdiction in such forum, and hereby waive any challenge they might have to



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proceeding in such forum by way of jurisdiction, venue, forum non-conveniens or otherwise.”

(Signed, by William Phillips, President, Duffy Sea management Inc., General Partner, and by Limited Partners, William Phillips and Thorne Tasker)

26. Exhibit 29. Correspondence from Kim Marine Documentation, regarding an amendment to a promissory Note (See Exhibit 10, below, which was the enclosure). Kim Marine Documentation, located at that time in Smith Tower, Seattle, Washington, performed the vessel documentation services. The referenced note was with Seattle-First National Bank, also located in Seattle, Washington. 27. Exhibit 30. Amendment to Preferred Mortgage, with Seattle-First national Bank, by Alaska Joint Venture Seafoods, Inc., and its Exhibit A, the Promissory Note, in the principal amount of $450,000, signed May 14, 1990, by Thorne Tasker, Chairman, and by William D. Phillips, President, of AJVS., Inc., a Delaware Corporation DBA Alaska Joint Venture Seafoods, Inc., bearing the following provision;

“This Note has been delivered to Lender and accepted by lender in he State of Washington. If there is a lawsuit, borrower agrees to submit to the jurisdiction of the courts of King County, the State of Washington. This Note shall be governed by and construed in accordance with the laws of the State of Washington.”

28. Exhibit 31. Installment, Note, dated December 7, 1989, for $1,050,000, with SeaFirst Bank, signed by William D. Phillips and Thorne Tasker, on behalf of Alaska Joint Venture Seafoods, Inc., with the following provision;

“If suit is instituted to enforce the terms of this note, the Courts of the State of Washington and Federal Courts located in the State' of Washington shall have personal jurisdiction over each undersigned customer and the venue of the suit, at the option of the holder of this note, may be laid in King County, Washington.”

29. Exhibit 32. Single Pay, Note, dated December 7, 1989, for $450,000, with SeaFirst Bank, signed by William D. Phillips and Thorne Tasker, on behalf of Alaska Joint Venture Seafoods, Inc., with the following provision;

“If suit is instituted to enforce the terms of this note, the Courts of the State of Washington and Federal Courts located in the State' of Washington shall have personal jurisdiction over each undersigned customer and the venue of the suit, at the option of the holder of this note, may be laid in King County, Washington.”



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30. Exhibit 33. Notice of Mortgage form, signed by William D. Phillips – President of Alaska Joint Venture Seafoods, Inc., and Thorne Tasker, Chairman, indicating we will place, and use diligence to retain one copy of the Preferred Mortgage on the vessel, Duffy Sea, the mortgage is with Seattle-First national Bank, the Notice, and preferred mortgage documentation, was by Kim Marine Documentation, Inc., located in Smith Tower, Seattle, Washington. 31. Exhibit 34. IRS Form 2553, for Duffy Sea Management Inc., indicating Washington as the place of incorporation, signed by William Phillips, indicating he acquired 500 shares in October, 1990. William Phillips is provided as corporate officer or legal representative, in box C. 32. Exhibit 35, is Mr. Phillips’ instructions to Williams, Kastner & Gibbs, a Seattle law firm, apparently acting as my attorney, telling this Seattle firm to file a lawsuit on my behalf.

33. Exhibit 36 is a diagram of the purchase of the vessel Excellence, showing the responsibilities of both corporations, AJVS and SAS.

34. Exhibit 37 is a letter from Suzanne Tasker, complaining about the 1995 Swap Agreement, which as she describes, was conducted in the middle of the night. This letter by Suzanne was actually written in 1998, the date 1996 is a typo error. I have several letters back and forth on this subject, in 1998. 35. Exhibit 38a is a Complaint and Exhibit 38b is William Phillips’ declaration, provided in a lawsuit he had filed on behalf of AJVS, in King County Superior Court, in Seattle, Washington. William Phillips was the 100% owner of the plaintiff, AJVS, and about 20% owner of SAS at the time this lawsuit was filed, so he had directed that the suit be filed in Seattle, as his most convenient forum. Attached to Exhibit 38b is a June 4, 1999 Settlement Agreement, signed by William Phillips, with the following venue provision;

“9.6 The parties agree that any action brought by any party with respect to this Agreement: shall be brought in King County Superior Court or the Federal District. Court for the Western District of Washington at Seattle, and the law of the State of Washington shall apply. The parties hereby waive all questions of personal jurisdiction or venue for the purposes of carrying out this provision.”

36. Exhibit 39, are documents indicating the business address of SAS, Supreme Alaska Seafoods, was in Seattle, Washington. These include a permit application, and an accident report for a crewmember. All such business was handled out of the Seattle, Washington office. 37. When William Phillips and I were in partnership, we tended to insure our vessels in Seattle. The adjusting of any insurance claims was done in Seattle, as was any litigation. Attached at Exhibit 40, is a copy of an



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insurance binder, insuring the M/V Excellence for 40 million dollars, with a Seattle-based company, in 1991. In addition to insurance, most of the crew contracts for the Excellence (about 80 contracts per trip) were signed in Seattle, most of the provisioning for the Excellence was done in Seattle, and any disputes were handled in Seattle. 38. I have reviewed the 1995 Swap Agreement, and my declaration of September 9, 2011, which I incorporate herein. At the time we signed the 1995 Swap Agreement, Phillips was aware that my family had two trusts for the benefit of our children, and that those trusts had suffered damage due to actions taken by Phillips. Mr. Phillips knew of the trusts, and knew the trustees, and the purpose of the 1995 Swap Agreement was to correct some of the financial losses suffered by the trusts, due to Mr. Phillips actions.”

(Declaration of Thorne Tasker, filed herewith).

E. Second Declaration of Thorne Tasker:

The second declaration of Thorne Tasker dated September 9, 2011 authenticates

the “1995 Swap and Release Agreement”, and neither the Estate nor any other party has

submitted any evidence that the document is other than authentic.

In Summary, the aforementioned declarations and facts therein, summarize

relevant facts that establish William D. Phillips and now the Estate of William D.

Phillips, have for many years chosen to use the State of Washington as a place to conduct

various business activities related to his/its management of the vessel Excellence, (AJVS,

Inc. corporate vessel owner), both the vessel and AJVS, Inc. at relevant times owned

100% by William D. Phillips, and both William D. Phillips, and now his estate through

its Personal Representative, Janet K. Phillips have entered into, or extended, personal

guarantees and Promissory Notes which specify that suit is to be had in Washington

State. Furthermore, according to Thorne Tasker, at least one court has already held that



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William D. Phillips was an Alter Ego of his corporation, and had entered judgment

personally against William D. Phillips based on that determination.

III. WASHINGTON’S LONG ARM STATUTE SUBMITS THE ESTATE OF WILLIAM D. PHILLIPS TO THE JURISDICTION

OF THIS COURT

RCW 4.28.185(1)(a), (b) and (c) grant Washington courts long-arm jurisdiction over

out of state parties when:

“RCW 4.28.185 (1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: (a) The transaction of any business within this state; (b) The commission of a tortious act within this state; (c) The ownership, use, or possession of any property whether real or personal situated in this state;.. .”

Long-arm jurisdiction standards are less stringent than those necessary to

establish general jurisdiction. Raymond v. Robinson, 104 Wash.App. 627, 638, 15 P.3d

697 (2001).

To evaluate whether long-arm jurisdiction exists, the Courts examine three

factors: (1) whether the party purposefully committed some act or consummated some

transaction in the state; (2) whether the cause of action arose from, or was connected

with, the act or transaction; and (3) whether the exercise of jurisdiction would offend

traditional notions of fair play and substantial justice. Raymond, 104 Wash.App. at 637,



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15 P.3d 697. The focus is on the quality and nature of the act occurring within the forum

state. Raymond, 104 Wash.App. at 637, 15 P.3d 697.

Courts evaluate the entire business transaction, including the negotiations,

contemplated future consequences, the terms, and the parties' course of dealing to

determine whether the purposeful act requirement is met. Raymond, 104 Wash.App. at

637, 15 P.3d 697. The mere execution of a contract with a state resident is not enough to

fulfill the purposeful act requirement. Raymond, 104 Wash.App. at 638, 15 P.3d 697.

In order for Washington to exert long-arm jurisdiction, the evidence must show

that the Defendant "availed itself of the privilege of conducting activities within the state,

invoking the benefits and protections of our laws." Raymond, 104 Wash.App. at 637, 15

P.3d 697. And Defendant must have "purposefully availed itself of the state's markets and

derived a financial benefit." Raymond, 104 Wash.App. at 638, 15 P.3d 697.

In Raymond, the court concluded that long-arm jurisdiction existed because the

defendant (1) initiated business transactions through advertising; and (2) encouraged

sales by sending brochures and reference lists to potential Washington customers. 104

Wash.App. at 637-40, 15 P.3d 697. The court also noted that the parties' course of

dealing placed the defendant in Washington because it agreed to perform warranty work

in the state. Raymond, 104 Wash.App. at 638, 15 P.3d 697.

Relevant Case Law and the Long Arm Statute confer jurisdiction over non-

resident William D. Phillips pursuant to Section A, B and C, of RCW 4.28.185(1), above.

Phillips purposefully transacted systematic business in Washington by having his vessel

the Excellence designate Seattle as its home port and managing the vessel in Seattle



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through usage of SAS as the charterer/manager of the vessel. Phillips in addition to

owning 100% of the Excellence and the AJVS stock, he was part owner in SAS and sat

on its board of directors in Seattle. Phillips was often present in the State of Washington

to participate with his agents and business partners over the management of the affairs of

the Excellence, AJVS, Inc. and SAS.

This lawsuit arises out of a breach of contract, which arose in Seattle (the sale of

the vessel, Excellence to a Seattle-based corporation, and resultant failure to notify the

Trustee and/or beneficiaries of the Tasker trusts).

This lawsuit concerns property located within this state – the vessel Excellence,

which is based in Seattle, documented in Seattle, repaired in Seattle shipyards, and sold

through Seattle-based corporations, using Seattle-based documentation services.

IV. SUPREME COURT PRECEDENCE ALLOWS FOR LONG ARM JURISDICTION OVER WILLIAM D. PHILLIPS & NOW HIS ESTATE

Washington is one of the most liberal forums for obtaining personal jurisdiction

over non-resident defendants. The test is: whether the event occurs from defendants’

contacts with the forum “so long as it could have arisen “but for” those contacts. Shute v.

Carnival Cruise Lines, 113 Wn.2d 763, 113 Wn.2d 763, 783 P.2d 78 (1989). The Ninth

Circuit had certified the issue as to the cruise line’s liability under the Washington Long

Arm Statute, RCW 4.28.185 (1)(A), to the Washington State Supreme Court, and the

State court, in a 9-to-0 opinion held that the fact that the corporation had solicited

business within this state was sufficient to impose liability on the foreign corporation to

the extent permitted by federal due process. Justice Charles Z. Smith speaking for the



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unanimous court stated at page 733 of the opinion: “We conclude that Washington’s

Long Arm Statute extends jurisdiction to the limit of federal due process. The United

States Court of Appeals for the Ninth Circuit has determined that federal due process

permits specific jurisdiction in this case. We will not deny Washington plaintiffs the

benefit of that determination.” Further, the court commented:

We adopt the "but for" test of Shute v. Carnival Cruise Lines, 863 F.2d 1437 (9th Cir. 1988), Withdrawn, 872 F.2d 930 (1989), and hold that there is sufficient connection between the Shutes' claim and Carnival's Washington contacts to support long arm jurisdiction under RCW 4.28.185. "But for" Carnival's "transaction of any business within this state," Mrs. Eulala Shute would not have been injured on respondent's cruise ship. Therefore her claim "arises from" Carnival's Washington contacts within the meaning of Washington's long-arm statute. Shute v Carnival Cruise Lines, 113 Wn 2d, at 772,

The resulting Ninth Circuit opinion, Shute v. Carnival Cruise Lines, 897 F.2d 377

(9th Cir. 1988), was later reversed by the US Supreme Court, but only on the grounds of

a contractual forum selection clause. As the US Supreme Court stated, “Because we find

the forum selection clause to be dispositive of this question, we need not consider

petitioner's constitutional argument as to personal jurisdiction.” Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522 (1991). The “but for” test is still good law for

jurisdiction in Washington. The U.S. Supreme Court did not overrule the Ninth Circuit’s

application of the Washington Supreme Court’s expansive application of the “but for”

test. In Shute Supra., plaintiff was injured on a Carnival cruise outside the State of

Washington, yet bought her ticket for the cruise in Washington. The court properly

reasoned that selling the cruise ticket in Washington was “sufficient connection” between



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Shute’s claim and Carnival’s Washington contacts to support long arm jurisdiction under

RCW 4.28.185.

William D. Phillips and now his estate have through his/its continuous business

transactions and usage, control and possession of personal property, ie. the Excellence,

within this state, submitted himself/the Estate, to this courts Long Arm Jurisdiction.

Although not necessary in this case, the “But for” test has been met. This cause of action

would not have arisen, but for William D. Phillips selling his vessel’s – AJVS’Inc, stock,

through usage of Kim Marine Documentation in Seattle, Washington, first to SAS, a

Seattle based company, and then to PPLP, another Seattle based company, without

informing Thorn Tasker as required by the “1995 Swap and Release Agreement”. This

contract litigation in King County may not have been necessitated. See Declaration of

F. Joseph Bersch, III, wherein he describes the sales transaction giving rise to this

litigation, as clearly, occurring in Seattle, Washington. The transaction involved in this

lawsuit is only one of many business transactions of William D. Phillips and or his

agents, business partners conducted in Seattle, King County, Washington, over the course

of a continuing business occurring in Washington State.

V. THE GENERAL JURISDICTION OF THIS COURT

SHOULD BE CONFERED OVER PHILLIPS & HIS ESTATE

Washington permits the assertion of general jurisdiction over a foreign defendant

“doing business” with the state. RCW 4.28.080 (10). Washington Courts have ruled that

the “doing business” requirement “subsumes the due process requirement. Hartely v.

American Contract Bridge League, 61 Wash. App. 600, 605 (1991). See also,



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International Shoe V. Washington, 326 U.S. 310,319 (1945); Roth v. Garcia Marquez,

942 F. 2d 617, 620 (9th Cir. 1991). Defendants in this case cannot dispute that in his

ownership of the vessel Excellence, William D. Phillips was doing business in the State

of Washington, [Excellence, Home Port, Seattle, WA], in that AJVS owned the vessel

and Phillips owned 100% of the corporations stock. Defendants also cannot deny that the

Excellence was under a charter to SAS who managed the vessel with its principal

business location in Seattle, Washington, or that Phillips owned part of SAS and sat on its

board of directors and personally attended Directors’ meetings in Seattle, Washington.

There is no dispute that SAS, AJVS and Phillips himself continuously and for many

years, dating back to the late 1990’s, operated their commercial fishing business from

Seattle as described above. This purposeful availment of Washington State as a place to

operate the referenced business confers general jurisdiction to the courts of this state.

Conclusion.

Defendant Estate has not presented any competent evidence to support its

assertion of either of its factual assertions. The Estate motion should be denied.

Respectfully Submitted this November 4, 2011;

______________________________ , WSBA 11711

Plaintiff's Opposition to the Estates Motion to Dismisss

Documents