United States District Court, S.D. California
WILLIAM J. CANNON, Plaintiff,
AUSTAL USA LLC AND UNITED STATES OF AMERICA, Defendants.
ORDER GRANTING IN PART THIRD PARTY DEFENDANT AUSTAL
USA, LLC'S MOTION TO COMPEL [ECF NO. 64]
Barbara L. Major United States Magistrate Judge
before the Court is Third Party Defendant Austal USA,
LLC'S April 4, 2017 motion to compel [ECF No. 64-1
(“MTC”)], Defendant United States of
America's April 7, 2017 opposition to the motion [ECF No.
65 (“Oppo.”)], and Third Party Defendant Austal
USA, LLC'S April 11, 2017 reply [ECF No. 69
(“Reply”)]. For the reasons set forth below,
Austal's motion to compel is GRANTED IN PART.
March 30, 2017, counsel for Defendant Austal USA LLC, Mr.
Rudy Huerta Lopez, and counsel for Defendant United States of
America, Mr. Frank J. Anders, jointly contacted the court
regarding a discovery dispute. ECF No. 61. In regard to the
dispute, the Court issued a briefing schedule and the parties
timely filed their motion, opposition, and reply. See
Id.; see also MTC, Oppo, and Reply.
January 27, 2017, Austal served seven requests for production
(Set 3), nine interrogatories (Set 3), and sixteen requests
for admission (Set 4) on Defendant USA via electronic mail
and United States First Class Mail. MTC at 2; see
also ECF No. 64-2, Declaration of Douglas L. Brown
(“Brown Decl.”) at Exhibit 1.
discovery closed in the instant matter on February 27, 2017.
MTC at 2; see also ECF No. 51 at 2.
March 1, 2017, Defendant USA objected to the January 27, 2017
discovery requests stating that:
The United States objects to this request since Austal failed
to initiate this request a sufficient period of time in
advance of the fact discovery cut-off date, so that it may be
completed by the cut-off date, taking into account the times
for service, notice, and response as set forth in the Federal
Rules of Civil Procedure. Since Austal served this discovery
by Mail on the United States on January 27, 2017, the United
States has 33 days to serve responses (see Fed.R.Civ.P.
6(d)), which is March 1, 2017. However, the Court's Order
dated September 26, 2016, states, “All fact discovery
shall be completed by all parties on or before February 27,
2017.”Completed" means that all discovery under
Rules 30-36 of the Federal Rules of Civil Procedure, and
discovery subpoenas under Rule 45, must be initiated a
sufficient period of time in advance of the cut-off date, so
that it may be completed by the cut-off date, taking into
account the times for service, notice, and response as set
forth in the Federal Rules of Civil Procedure.” Since
Austal failed to provide sufficient time for the United
States to serve a response, taking into account the times for
service, notice, and response as set forth in the Federal
Rules of Civil Procedure, the United States is not required
to provide a response. Although Austal also e-mailed this
discovery to counsel for the United States, the United States
has never consented in writing nor in any other manner to
acceptance of service by electronic means (see Fed.R.Civ.P.
5(b)(2)(E)) for these discovery requests, and therefore this
e-mailing does not constitute service by electronic means.
For the above-listed reasons, the United States provides no
response to this discovery request.
Oppo. at 3-4.
PARTY DEFENDANT AUSTAL USA, LLC'S MOTION
seeks an order from the Court requiring Defendant USA
“to provide full and complete responses to its requests
for production (Set 3) and its interrogatories (Set 3) and
deeming its requests for admission (Set 4) admitted because
the United States refused to respond within thirty (30) days
of service.” MTC at 2, 4. Austal argues that Defendant
USA incorrectly contends that since it did not consent to
electronic service in writing under FRCP 5(b)(E), it was not
required to respond to Austal's discovery requests.
Id. at 2. Austal argues that by registering as a
Filing User for the Court's Case Management Electronic
Case Filing System (“CM/ECF”) in accordance with
Civil Local Rule (“CivLR”) 5.4, Defendant USA has
consented to electronic service. Id. Austal further
argues that since CivLR 5.4d is unambiguous and Defendant USA
consented to electronic service for all purposes when it
registered for electronic case filing, Austal's January
27, 2017 discovery requests were complete when emailed and
Defendant USA's responses were due on February 27, 2017.
Id. at 3. Austal reasons that even if CivLR 5.4d did
not require Defendant USA to accept electronic service, the
fact that Defendant USA has consistently used e-mail to send
and receive documents and discovery in this matter estops
Defendant USA from arguing that it has not consented to
electronic service. Id. at 3-4.
USA objects to Austal's request and asks the Court to
deny Austal's motion for the following reasons. First,
Defendant USA informed the parties in this matter that it
“does not accept service by e-mail or fax.” Oppo.
at 3; see also ECF No. 65-1, Declaration of Vickey
L. Quinn (“Quinn Decl.”) at Exhibit A. Given
Defendant USA's notice, the fact that FRCP 5 requires
written consent for electronic service, and that neither
CivLR 5.4 nor case law requires Defendant USA to accept
electronic service for discovery, Austal's position that
Defendant USA impliedly consented to electronic service is
incorrect and contrary to the law. Oppo. at 6. Second, the
case Austal cites to in support of its position, Greenly
v. Lee, 2008 WL 298822 (E.D. Cal. 2008), relies on a
local rule for the Eastern District of California that is
irrelevant to the instant Southern District matter. Oppo. at
5. Defendant USA contends that a more relevant and applicable
case is Carroll v. County of San Diego, 2014 WL
4185530 (S.D. Cal. 2014) where the Court “held that
e-mail does not constitute proper service in the absence of
written consent” and Judge Sammartino rejected the
argument that consenting to using the Court CM/ECF system