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Jimena v. UBS AG Bank

October 25, 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 FOR SANCTIONS

(Docket No. 274)

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.

II. DISCOVERY DISPUTE

In June 2010, Plaintiff propounded various discovery requests to UBS including (1) Interrogatories, Set 1; (2) Request for Admissions, Set 1; and (3) Demand for Production of Documents. UBS served responses to these discovery requests in July 2010. On August 20, 2010, Plaintiff filed a Motion to Compel further production of documents and further responses to interrogatories from UBS. (Doc. 258.) One of the interrogatories that Plaintiff desired to compel further responses from UBS included Interrogatory No. 24. Plaintiff argued that, pursuant to Interrogatory No. 24, UBS should have disclosed the period of time Clive Standish was employed by UBS as well as Clive Standish's email addresses.

Specifically, Plaintiff's Interrogatory and UBS's response are as follows: INTERROGATORY NO. 24: IDENTIFY the person, Clive Standish.

RESPONSE TO INTERROGATORY NO. 24:

Clive Standish is the former Chief Financial Officer of Defendant. The most recent address Defendant possesses for Mr. Standish is New Street 225, 3186 Brighton, Australia. (Doc. 258, Ex. 2.)

The Interrogatories, Set 1 that contained Interrogatory No. 24 provided a definition of the term "IDENTIFY." Section Four ("Sec. 4") of the Interrogatories, entitled "Definitions," provided the following:

CC. In any of the following interrogatories in which you are asked to "IDENTIFY" A "PERSON[,]" the word "person" shall be understood to refer equally to natural person [sic], corporations, partnerships, limited liability companies, firms, joint ventures, associations or other entities. Further a request to "identify" a "person" shall be understood to include the period of time he was employed by UBS AG and to include as well a request for the person's full name, present address including physical office and home address, telephone number, fax number, email office and home address, present or last known position and business affiliation, title, business telephone number, and, if employed or retained by you, each position he or she has held during the period in question, a general description of the duties of each such position, the specific period in which the position was held, and the office or location where the position was held.*fn1 (Docs. 265, 3:17-28; 272 at 6 (emphasis added).)

On September 2, 2010, after the parties met and conferred regarding Plaintiff's motion to compel, UBS supplemented its response to Interrogatory No. 24, providing Clive Standish's birth date, positions he held prior to his tenure at UBS AG, the date he joined UBS AG and his positions within the company, his office address, and the date he retired. (Doc. 265, Ex. 1.) The supplemental response also stated that UBS's counsel expected "to supplement this letter shortly to provide the requested email, direct phone and fax information for Mr. Standish during his tenure at UBS AG." (Doc. 265, Ex. 1.)

On September 22, 2010, the Court issued an order regarding Plaintiff's August 20, 2010, Motion to Compel. (Doc. 267.) With regard to Interrogatory 24, the Court found that UBS had agreed to supplement its response, and, as such, the motion to compel a further response was denied. The Court ordered that UBS "make the supplemental response it agreed to provide on or before October 1, 2010." (Doc. 267, 7:11-12.)

On October 7, 2010, Plaintiff filed a "Motion and Memorandum to Sanction Disobedience to Court Order Doc. 267" ("Motion for Sanctions"). (Doc. 274.) Plaintiff reiterates the argument he made with regard to his motion to compel a ...


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