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Jimena v. UBS AG Bank

September 22, 2010

CARL L. JIMENA, PLAINTIFF,
v.
UBS AG BANK, INC., SWITZERLAND HEADQUARTERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL

(Docket No. 258)

I. INTRODUCTION

Plaintiff Carl L. Jimena ("Plaintiff") filed this action on February 5, 2007. Plaintiff alleges that he was defrauded in a variant of the "Nigerian advance fee scheme" by Clive Standish, the Chief Financial Officer ("CFO") of UBS AG Bank, Inc. ("UBS"), who sent Plaintiff an email from an email address identified as "clive_standish@yahoo.com." Via this email, Clive Standish allegedly offered to transfer $19 million to Plaintiff's bank account by convincing Plaintiff to wire $51,000 via Washington Mutual Bank, Bank of New York, and UBS to an account at a fourth bank, HSBC, to satisfy a purported "Anti-Drug/Terrorist Clearance" fee required for transfers from Nigeria. Plaintiff also asserts that he received electronic correspondences regarding this transaction from an email bearing the address of "customerservices@privateclientsubs.cjb.net." Plaintiff alleges that he never received the $19 million.

On June 6, 2010, Plaintiff apparently delivered various discovery requests to UBS including (1) Interrogatories, Set 1; (2) Request for Admissions, Set 1; and (3) Demand for Production of Documents to a FedEx drop-off location. (See Doc. 248.) No proof of service was provided with the discovery requests, but the discovery requests themselves bear the date of June 6, 2010. On July 12, 2010, UBS served responses to Plaintiff's discovery requests. On August 20, 2010, Plaintiff filed a Motion to Compel further production of documents and further responses to interrogatories from UBS. On September 10, 2010, the parties filed a Joint Statement re Discovery Dispute ("Joint Statement") pursuant to Local Rule 251(c).

Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). The moving party bears the burden of demonstrating "actual and substantial prejudice" from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted).

1. Timeliness of Discovery Responses

Plaintiff argues that UBS's discovery responses were due on Friday, July 9, 2010, but UBS did not serve responses until Monday, July 12, 2010. Plaintiff claims that UBS's responses are untimely and that any objections UBS asserted in its responses are waived. (Joint Statement at 7.) UBS argues that Plaintiff failed to submit a proof of service with his discovery requests, and UBS did its best to ascertain when the responses were due based on a lack of proof of service of the requests. UBS contends that, if its responses were served a day late, it is because Plaintiff failed to properly issue a proof of service.

Apparently, on June 6, 2010, Plaintiff delivered various discovery requests he was attempting to serve on UBS to an OfficeMax FedEx drop off location so that they could be shipped. Plaintiff did not complete a proof of service for these discovery requests. Plaintiff did retain, however, a receipt showing that he dropped a package off at FedEx on June 6, 2010, addressed to UBS's counsel.

Pursuant to the Federal Rules of Civil Procedure, discovery responses must be served 30 days following service of the requests. See Fed. R. Civ. P. 33(b)(2). The deadline is extended by an additional three days if the discovery was served by mail. See Fed. R. Civ. P. 6(d). Therefore, if the discovery was served on June 6, 2010, the deadline for serving a response was July 9, 2010.

UBS asserts that, without the benefit of a proof of service, it had to ascertain when service was completed by Plaintiff. UBS contends that, based on FedEx tracking information, the date of service appeared to be Monday, June 7, 2010, the date FedEx tracking records show that the package was shipped. Counting from June 7, 2010, the thirty-third day falls on Saturday, July 10, 2010. According to Fed. R. Civ. P. 6(a)(1)(C), UBS's responses were, therefore, due on Monday, July 12, 2010. UBS argues that, if it miscalculated the response deadline, it was due to Plaintiff's failure to include a proof of service.

Plaintiff counters that pursuant to Russell v. City of Milwaukee, 338 F.3d 662, 665-67 (7th Cir. 2003), "the absence of a certificate [of service] does not require the invalidation of the paper" where actual service has been accomplished. (Joint Statement at 8.)

Russell supports the proposition that Plaintiff's discovery requests are not necessarily invalidated due to a lack of proof of service. In other words, UBS would not have been entitled to ignore the discovery requests based on this procedural error. Here, neither party disputes that the discovery requests were actually received by UBS -- the question is when they were served for purposes of triggering the response deadline. Because the discovery requests were actually served and received -- a fact not in dispute -- the Court will consider Plaintiff's motion to compel on its merits. Cf. Willis v. Mullins, No. CIV-F-04-6542 AWI LJO, 2006 WL 2792857, at * 2-3 (E.D. Cal. 2006) (proof of service is largely irrelevant when service was completed in accord with Rule 5(b)).

Without a proof of service as to the date of mailing, however, the Court will not entertain Plaintiff's argument that UBS's responses to those discovery requests were one day late. It appears that UBS attempted, in the absence of a proof of service, to determine the deadline for responses to the discovery in good faith and did, in fact, serve discovery responses on the date that fell 33 days from the date it ascertained service of the requests was accomplished.

The Court acknowledges Plaintiff's argument that, despite the absence of a proof of service, he can show by other means that service was actually accomplished on June 6, 2010. Plaintiff points to a receipt indicating that he dropped off a package with FedEx on June 6, 2010, addressed to UBS's counsel and that the discovery itself is dated June 6, 2010. There is no dispute that Plaintiff served the discovery requests, and the Court is entertaining Plaintiff's motion on its merits. Nevertheless, this does not obviate the need for a proof of service if Plaintiff wishes to enforce the 33-day response deadline under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 33(b)(2), 6(d).Plaintiff cannot use the Federal Rules of Civil Procedure as both a sword and shield against UBS by demanding timely responses to discovery requests that are not accompanied by a proof of service necessary to correctly calculate the response deadline. Under the circumstances, the Court cannot determine that UBS's responses were one day late.

2. Specific Discovery Requests Plaintiff Wishes to Compel ...


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