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Pacific Marine Propellers, Inc. v. Wartsila Defense, Inc.

United States District Court, S.D. California

April 3, 2018

PACIFIC MARINE PROPELLERS, INC., Plaintiff,
v.
WARTSILA DEFENSE, INC., BRYAN RUTTER, BOBBY HENINGER, Defendants.

          ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE NO. 3 [ECF NO. 40]

          HON. NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the parties' Joint Motion for Determination of Discovery Dispute No. 3 whereby Defendant Wartsila Defense, Inc. (“Wartsila”) moves to compel documents responsive to two document requests. ECF No. 40. Having reviewed the briefing submitted and for the reasons set forth below, the Court DENIES Wartsila's motion to compel.

         I. BACKGROUND

         Plaintiff Pacific Marine Propellers, Inc. (“Plaintiff”) and Wartsila both are in the business of repairing marine propellers. ECF No. 19 ¶¶ 6, 8. In its Second Amended Complaint (“SAC”), Plaintiff presents seven claims related to Wartsila's entry into the San Diego marine propeller repair market and its actions in competing for government subcontracts.

         Specifically, Plaintiff explains that only companies holding a Basic Ordering Agreement (“BOA”) from the U.S. Navy may submit bids to the U.S. Navy or to civilian vessel repair contractors (who are in need of subcontractors) for marine propeller repair. Id. ¶¶ 14-15. As the holder of a BOA, Plaintiff underwent an audit by the Defense Contract Management Agency of the actual cost of providing marine propeller repairs on U.S. Navy vessels. Id. ¶ 20. The audit yielded Plaintiff's “wrap rate, ” which is an hourly rate for the audited cost of propeller repair and related work that includes labor and overhead costs. Id. Plaintiff states that it is the only facility at the Port of San Diego holding a BOA for propeller repair and that Wartsila holds BOAs at the Port of Seattle and the Port of Norfolk. Id. ¶¶16-17. In its SAC, Plaintiff alleges that Wartsila has intentionally underbid its own costs in order to improperly divert marine propeller repair work from Plaintiff in the Port of San Diego.

         II. DISCUSSION

         Discovery Dispute No. 3 involves a dispute regarding Plaintiff's production of documents and responses to Wartsila's Request for Production of Documents (“RFP”) Nos. 13 and 26, which are set forth below. ECF No. 40 at 1-2.

         Request No. 13:

“All documents that evidence, support, refer to, or relate to your ‘cost' of propeller repair, as the term ‘cost' is used in California Business and Professions Code section 17026.”

         Plaintiff's Response to Request No. 13:

Responsive documents in Plaintiff's possession, custody and control will be produced. Plaintiff's wrap rate determination is previously produced in Response to Request No. 12 above. Plaintiff incorporates by reference its response to Request No. 12 as if fully set forth herein. Additional responsive information is set forth in Plaintiff's invoices and bids produced in response to Request No. 1. Generally, cost accounting calculations were done by Plaintiff's outside CPA, David Park, who as indicated above, passed away recently. Plaintiff is working to recover its files from his business and upon doing so will produce any additional responsive documents contained therein.

         Request No. 26:

“To the extent not responsive to Request No. 24[1] or a previous Request for Production served by Wartsila, all documents necessary to compute your cost for performing propeller repair as the term cost is defined in [Cal.] Bus. & Prof. Code[] § 17026.”

         Plaintiff's Response ...


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