United States District Court, D. Hawaii
ORDER ADOPTING AS MODIFIED THE MAGISTRATE JUDGE'S
FINDINGS AND RECOMMENDATION
C. KAY SR. UNITED STATES DISTRICT JUDGE.
November 17, 2017, Plaintiff Philip Bralich filed a Motion to
Remand or in the Alternative for Summary Judgment for Failure
to Respond or in the Alternative to Compel Responses to
Interrogatories and for Sanctions for Wasting the Court's
and Plaintiff's Time and Money. ECF No. 24
(“November Motion”). Plaintiff first argued that
Defendant Microsoft's removal was untimely. Id.
at 2. Plaintiff also claimed that Defendants had improperly
failed to respond to four sets of interrogatory requests he
had previously sent and sought summary judgment or in the
alternative to compel responses and sanctions. Id.
December 20, 2017, Magistrate Judge Puglisi entered
“Findings and Recommendation to Deny Plaintiff's
Motions to Remand or in the Alternative Motion for Summary
Judgment for Failure to Respond or in the Alternative to
Compel Responses to Interrogatories and for Sanctions for
Wasting the Court's and Plaintiff's Time and
Money”. ECF No. 74 (“F&R”). On January
3, 2018, Defendants Barry A. Sullivan and Microsoft Corp.
filed statements seeking to clarify the date of the fourth
set of interrogatory requests. ECF Nos. 75-76. On that date,
Plaintiff also filed a motion seeking to compel responses to
the fourth set of interrogatory requests. ECF No. 77
(“January Motion”). As noted in its recent minute
order, the Court does not construe any of the parties'
January 3, 2018 filings as objections to the F&R. ECF No.
79. Since no objections were filed, the Court reviews the
F&R for clear error. See Noetzel v. Haw. Med. Serv.
Ass'n, 183 F.Supp.3d 1094, 1098 (D. Haw. 2016).
respect to Plaintiff's motion to remand, none of the
parties have raised any concerns with respect to the
recommendation to deny in any event. Having carefully
reviewed Defendant Microsoft Corp.'s removal and the
F&R, the Court adopts the F&R as to the issue of
remand for the reasons stated therein. See F&R
at 5-6. Plaintiff's request to remand this action is
respect to Plaintiff's motion for summary judgment or in
the alternative to compel responses to interrogatories and
for sanctions, the Court generally considers it premature to
have addressed discovery issues prior to resolution of the
remand issue by this Court, as indicated in its prior minute
order. ECF No. 79. Since this is a “court of limited
jurisdiction, ” it is “presumed that a cause of
action lies outside of this limited jurisdiction” until
the contrary has been established by the party asserting
jurisdiction. See Corral v. Select Portfolio Servicing,
Inc., 878 F.3d 770, 2017 WL 6601872, at *2 (9th Cir.
2017) (internal citation and quotation omitted). As such, the
Court first “has an obligation to assure itself of
jurisdiction.” See Perry v. Luu, No.
1:13-CV-00729-AWI, 2013 WL 3354446, at *3 (E.D. Cal. July 3,
2013). Courts have indicated that “it is in the
interest of judicial economy to decide issues of jurisdiction
as early in the litigation as possible” since
“[i]f jurisdiction does not exist, the case can be
remanded before federal resources are further
expended.” Conroy v. Fresh Del Monte Produce
Inc., 325 F.Supp.2d 1049, 1054 (N.D. Cal. 2004).
Nevertheless, where the facts do not obviously support
remand, some courts have proceeded to address other issues in
conjunction with a motion to remand. See, e.g.,
J.W. v. Pfizer, Inc., No. 13-CV-00318-YGR, 2013 WL
1402962, at *4 (N.D. Cal. Apr. 5, 2013) .
Plaintiff's motion to remand had not yet been finally
resolved by this Court, addressing discovery issues in the
F&R invited possible waste of judicial resources.
However, as the Court has now determined that Plaintiff's
motion to remand should be denied, it will turn to the
discovery issues addressed in the F&R. The parties'
January 3, 2018 filings only raise concerns regarding the
most recent of the four sets of interrogatory requests
addressed in the F&R, the set sent in November 2017.
See F&R at 7-8; ECF Nos. 75-77. The Court has
carefully reviewed the F&R with respect to the three
earlier sets of interrogatory requests, which are not the
subject of the parties' January 3, 2018 filings, and
adopts the F&R as to those sets of interrogatory requests
for the reasons stated.As to these interrogatories,
Plaintiff's motion for summary judgment, or in the
alternative to compel and for sanctions is DENIED.
the remaining set of interrogatory requests, Judge Puglisi
proceeded on the basis that this set was served on November
15, 2017, and since responses were not yet due when Plaintiff
filed his November Motion two days later, the requests for
summary judgment, to compel, and for sanctions were
premature. See F&R at 7-8. The Court notes that
there appears to be a disagreement about the date this set of
interrogatories was sent. Plaintiff did not identify the date
of the November set of interrogatory requests until his reply
brief. ECF No. 73 at 3. However, in that filing, Plaintiff
also appears to have made conflicting representations as to
the exact date this set of interrogatories was served.
See id. (indicating that they had been mailed on
November 7 and also served on November 15, 2017). In his
January Motion, Plaintiff appears to take the position that
the interrogatory requests were sent on November 15 and
responses are now overdue, but repeats the same conflicting
date representations. See ECF No. 77. at 3-4. In
their January 3, 2018 filings, ECF Nos. 75-76, Defendants
Barry A. Sullivan and Microsoft Corp. raised the issue of the
date of the November set of interrogatory requests before
this Court and claim it was sent prior to the Rule 26(f)
planning meeting held on November 13, 2017. See ECF
the exact date of the November set of interrogatory requests
may be relevant to Plaintiff's January Motion seeking to
compel discovery responses, ECF No. 77, the Court finds it
proper to ADOPT the F&R as to this set of interrogatories
regardless of the exact date. If this set of interrogatory
requests was sent before the Rule 26(f) planning conference,
then, like the other sets of interrogatories, it constituted
premature discovery. Plaintiff's November Motion should
then be denied as to the November set of interrogatory
requests for the same reasons as stated in the F&R as to
the earlier sets of interrogatories. See F&R at
7-8. However, if this set of interrogatory requests was sent
on November 15, 2017, then the Court agrees that
Plaintiff's November Motion requesting summary judgment
or in the alternative to compel and for sanctions as to the
November set of interrogatories was premature and should be
denied for the reasons stated in the F&R. See
id. The Court therefore MODIFIES the F&R with
respect to the November set of interrogatories in accordance
with the above, and DENIES Plaintiff's November Motion as
to this set of interrogatory requests as well.
respect to Plaintiff's recently-filed January Motion
seeking to compel discovery responses, ECF No. 77, the Court
REFERS this motion to Judge Puglisi. In considering that
motion, Judge Puglisi may address the various issues raised
by the parties in the January 3, 2018 filings, to the extent
appropriate. These issues include the exact date of the
November set of interrogatories, Plaintiff's objections
to the accuracy of Defendants' Report of Planning
Meeting, the scope of the parties' apparent agreement to
stay further discovery, and whether Defendants' request
for an order abating discovery is warranted at this stage.
See ECF No. 73 at 2-5; ECF No. 75 at 4; ECF No. 76
at 2-3; ECF No. 77 at 2-5.
The Court additionally notes that
Plaintiff's continued assertion that Federal Rule of
Civil Procedure 33 allows for interrogatories to be served
“without leave of Court” and from the
“commencement of the action” appears misplaced.
See ECF No. 24 at 2; ECF No. 73 at 3, 5; ECF No. 77
at 3. This language does not appear in the Federal Rule of
Civil Procedure 33. Rather, it appears in Rule 33 of the
Hawaii Rules of Civil Procedure. State procedural rules only
govern a state court action until it is removed to federal
court. Prazak v. Local 1 Int'l Union of Bricklayers
& Allied Crafts, 233 F.3d 1149, 1152 (9th Cir.
2000). After removal, federal procedural rules govern the
action. Fed.R.Civ.P. 81(c)(1). As such, the Hawaii Rules of
Civil Procedure do not apply in this action as long as it is
in federal court. In addition, because under the federal
rules discovery may not occur until the Rule 26(f)
conference, any discovery requests propounded prior to
removal and not yet due were void at least until the Rule
26(f) conference occurred. See Bridgham-Morrison v.
Nat'l Gen. Assurance Co., Case No. C15-927RAJ, 2015
WL 12712762, at *3 (W.D. Wash. Nov. 16, 2015) (denying motion
to compel interrogatory responses propounded in state court
prior to removal).
It appears that there may be a dispute
as to the date of the Rule 26(f) conference, as Plaintiff has
stated in multiple filings that it took place on November 15,
2017. See ECF No. 73 at 2; ECF No. 77 at 2-3.
However, this two-day discrepancy appears ...