United States District Court, S.D. California
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE NO. 3 [ECF NO. 40]
NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
“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.”
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
“To the extent not responsive to Request No.
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.”