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Jimena v. UBS AG Bank

October 12, 2010


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge


(Doc. 270)

Plaintiff Carl L. Jimena, proceeding in pro per, has timely filed a request for reconsideration by the District Court of the Magistrate Judge's Order Denying Plaintiff's Motion to Compel (Doc. 267).

The standard of review is the "clearly erroneous or contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A). Rule 303(f), Local Rules of Practice. The "clearly erroneous" standard applies to a Magistrate Judge's findings of fact. Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993). "A findings is 'clearly erroneous' when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 622. The "contrary to law" standard allows independent, plenary review of purely legal determinations by the Magistrate Judge. FDIC v. Fidelity & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D.Cal.2000); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3rd Cir.1992). "An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." DeFazio v. Wallis, 459 F.Supp.2d 159, 163 (E.D.N.Y.2006).

A. Timeliness of UBS's Responses to Discovery

Plaintiff argues that the Magistrate Judge erred in ruling that UBS's responses to discovery were timely, even though they were not served until Monday, July 12, 2010.

The record establishes that Plaintiff dropped off his discovery requests addressed to UBS's counsel at an OfficeMax FedEx drop off location on Sunday, June 6, 2010. Plaintiff did not complete a proof of service for these discovery requests, but retained a receipt showing that he dropped the package off on June 6, 2010. The package was shipped to UBS's counsel by FedEx on Monday, June 7, 2010. Plaintiff refers to his Declaration, (Doc. 248, Exh. 5):

2. On June 23, 2010, at about 3:15 p.m., I had a telephone conversation with Atty. Jacob S. Kreilkamp on the subject of when I served UBS AG with the Request for Admission, Interrogatories, Demand for Production of Documents, all Set No. 1. He asked me when I served UBS AG with the latter discovery papers, I answered him, it was on June 6, 2010, a Sunday, the day proceeding the hearing of the above entitled case on June 7, 2010. I recorded this conversation on the attached Exhibit 1, 'Notes on Conversation with Atty. Jacob S. Kreilkamp' which I hereby declare to be true and correct under penalty of perjury under federal law and California Laws.

The Magistrate Judge ruled:

Pursuant to the Federal Rules of Civil Procedure, discovery responses must be served See 30 days following service of the requests.

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's 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 Cf. Willis v. Mullins Plaintiff's motion to compel on its merits.,..., 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 these 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 a shield against UBS by demanding timely responses to discovery requests that are not accompanied by a proof of service necessary to calculate the response deadline. Under the circumstances, the Court cannot determine that UBS's responses were one day late.

Plaintiff argues that he completed service of the discovery requests to UBS when he delivered the package to the FedEx drop off location on June 6, 2010, equating this delivery to depositing a document in the U.S. Mail. Therefore, Plaintiff contends, UBS incorrectly calculated the 33-day period as commencing on June 7, 2010, the date FedEx shipped the package. Although not addressed by the parties, in the Ninth Circuit, service of documents by delivery to FedEx does not constitute service by mail within the meaning of Rule 5. See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1430-1431 (9th Cir.1996). Consequently, Plaintiff's contention that service was complete when he delivered the package to the FedEx drop off location, thereby starting the 33-day period, is incorrect as a matter of law. Here, Plaintiff's failure to serve his discovery requests by U.S. Mail as required by Rule 5 and his failure to include a proof of service lead to UBS's confusion about the time to respond to the discovery requests. UBS AG in good faith attempted to ascertain the date FedEx shipped the package and in good faith provided discovery responses within the appropriate time period. UBS was under no obligation to accept Plaintiff's statement that Plaintiff delivered the package to FedEx on June 6, 2010. As a party, Plaintiff is not authorized to serve discovery and FedEx did not commence its service until June 7, 2010.

Further, even if UBS's discovery responses were one day late, the Court would not exercise its discretion to sanction UBS by ruling that any objections to Plaintiff's discovery requests are waived and that Plaintiff's Request for Admission is deemed admitted. The record establishes that UBS attempted in good faith to timely respond to the discovery requests. Plaintiff has not demonstrated that the Magistrate Judge's ruling is clearly erroneous or contrary to law.

B. Interrogatory No. 1, Set 1

Plaintiff's Interrogatory No. 1, Set 1, requested:

IDENTIFY yourself which includes if telephone no. 411234111, fax no. 4113553864, physical address Gessneralle 3, CH-8001, Zurich, Switzerland, belongs to UBS AG (Zurich, Switzerland Headquarters.

UBS responded as follows:

Defendant objects that this Request is directed in part to UBS Financial Services, Inc.... which is no longer a party to this case, and Defendant will not respond on UBS FS's behalf. Subject to the foregoing objection, Defendant responds that Defendant is a global firm providing financial services to private, corporate and institutional clients, with an office at Gessneralle 3, CH-8001, Zurich, Switzerland.

The Magistrate Judge ruled:

Plaintiff states UBS's response is inadequate because it does not confirm whether the phone number and facsimile number listed in the interrogatory are correct. UBS agreed to supplement its answer, and on September 2, 2010, did so by providing the address, phone number, and facsimile number associated with both UBS and UBS FS, despite its objection with regard to UBS FS. As Defendant supplemented this response, Plaintiff's motion to compel further responses is DENIED. Plaintiff contends that the ruling is clear error: "There is a specific question that call for specific answer. there is no specific answer ...

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