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Cannon v. Austal USA LLC

United States District Court, S.D. California

April 14, 2017

WILLIAM J. CANNON, Plaintiff,
v.
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]

          Hon. Barbara L. Major United States Magistrate Judge

         Currently 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.

         BACKGROUND

         On 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.

         RELEVANT DISCOVERY BACKGROUND

         On 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.

         Fact discovery closed in the instant matter on February 27, 2017. MTC at 2; see also ECF No. 51 at 2.

         On 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.

         THIRD PARTY DEFENDANT AUSTAL USA, LLC'S MOTION

         Austal 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.

         DEFENDANT USA'S OPPOSITION

         Defendant 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 constituted ...


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