Allianz Sigorta, S.A. v. Ameritech Industries Inc., et al

Filing 90

ORDER denying 84 Motion to Compel signed by Magistrate Judge Allison Claire on 10/13/17. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLIANZ SIGORTA, S.A.,

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Plaintiff,
v.

ORDER

AMERITECH INDUSTRIES, INC. and
EAGLE ENGINES,
Defendants.

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No. 2:15-cv-01665-MCE-AC

This matter is before the court on Ameritech Industries, Inc. and Eagle Engines’

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(collectively, “defendant” or “Ameritech”) motion to compel. ECF No. 84. This discovery

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motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(1), and came on for

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hearing on October 11, 2017. Gregory L. Anderson appeared on behalf of plaintiff and Bryan

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Rose appeared on behalf of defendant. For the reasons stated below, defendant’s motion is

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DENIED.

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I.

Relevant Background

Plaintiff is an insurance company organized under Turkish law and based in Istanbul,

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Turkey. Complaint (ECF No. 1) ¶ 1. Defendant Ameritech Industries, Inc., of which defendant

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Eagle Engines is a subsidiary, is a Redding, California company that inspects, services, maintains,

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repairs, overhauls and certifies aircraft engines. Complaint ¶ 4.

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On February 18, 2014, Ameritech serviced the engine on a Cessna T206H plane that was

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then sold, on July 17, 2014, to non-party Korfez Hartalcilik Planlama Ltd STI (“Korfez”). Id.

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¶¶ 7-11. Korfez is plaintiff’s insured. Id. ¶¶ 11, 12. Plaintiff insured the plane on August 27,

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2014. Id. ¶ 12. On August 30, 2014, while the plane was being flown from the U.S. to Turkey,

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the engine failed and the plane made an emergency landing near the East Coast of Canada. Id. ¶

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13; Declaration of Gregory L. Anderson (“Anderson Decl.”) (ECF No. 13-2) ¶ 3. According to

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the complaint, the engine failed because of its negligent servicing by defendant Ameritech, and

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Ameritech’s false representation that the engine was airworthy. Complaint, Claims 1 & 2. The

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damaged Cessna, with its allegedly defective engine, are now housed at an Air Labrador facility

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at Goose Bay, Newfoundland, Canada. Complaint ¶ 15; Anderson Decl. ¶ 4.

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Plaintiff Allianz (the insurer) initially paid $275,000 to Korfez (the owner of the Cessna),

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which Allianz estimated to be the cost to repair the Cessna. Complaint ¶ 16; Anderson Decl. ¶ 5.

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Allianz (as Korfez’s subrogee), filed this lawsuit against Ameritech to recover those costs.

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Complaint ¶¶ 33-37. A dispute arose between Allianz and Korfez in which Korfez contended that

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the Cessna could not be repaired and that Allianz should therefore have paid the insured value of

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the aircraft. Decl. of Asli Lograsso ¶¶ 7-9. The dispute between Allianz and Korfez was

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submitted to a Panel of the Insurance Arbitration Commission for decision, and the final

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arbitration decision required Allianz to pay Korfez an additional $135,166.50 (USD) along with

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certain costs, fees and interest. Id. Allianz paid Korfez the total additional amount of

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approximately $177,679.30 as required by the arbitration. Id.

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Throughout this time and to present, Air Labrador retained possession of the aircraft and

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engine, but it does not have title; Korfez retains the title. On February 11, 2016, plaintiff Allianz

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filed a motion contending that Air Labrador – which, according to Allianz, had no objection to an

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inspection – needed a court to order inspection of the Cessna and its engine. ECF No. 13.

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Allianz argued that this court could not compel the inspection directly, because the owner,

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Korfez, is a non-party located in Turkey, and Air Labrador is a non-party located in Canada. Id.

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Ameritech argued in its opposition that a visual inspection of the engine would be useless, and it

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needed to disassemble the engine in order to defend itself. ECF No. 17 at 14. The court granted
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the request for letters rogatory and, noting that plaintiff is not required to draft its discovery

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requests to the specifications of defendant, did not touch upon the issue of disassembly. ECF No.

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22 at 4-5, n.3. On July 19, 2016, defendant was able to visually inspect the aircraft, the exterior

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of the engine, and the log books through plaintiff’s request for letters rogatory. ECF No. 88 at 2.

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II.

Motion

Defendant asks the court to compel the following: (1) production of the engine for

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disassembly, inspection of its component parts, and component testing as necessary, and (2)

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access to the aircraft’s JPI or “engine monitoring” data. ECF No. 88 at 2. The request for

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production that defendant relies on is defendant’s RFP No. 22, which states in full: “Produce for

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inspection the Subject Engine in its entirety, including any parts or pieces that have been removed

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or detached from said Engine.” Id. at 3. In response to this RFP, plaintiff responded that the

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engine and its parts and pieces are not in the possession, custody, or control of the plaintiff. Id. at

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3-4. The parties met and conferred before bringing this dispute before the court. Id. at 3.

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III.

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Analysis

A. Legal Standard
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

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party’s claim or defense. . . . Relevant information need not be admissible at the trial if the

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discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.

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Civ. P. 26(b)(1). Federal Rules 33 and 34 provide that discovery requests must be responded to

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within 30 (or in some cases 45) days. Richmark Corp. v. Timber Falling Consultants, 959 F.2d

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1468, 1473 (9th Cir. 1992). In response to a request for production of documents or tangible

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things under Rule 34, a party is to produce all relevant documents in his “possession, custody, or

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control.” Fed. R. Civ. P. 34(a)(1). Accordingly, a party has an obligation to conduct a reasonable

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inquiry into the factual basis of his responses to discovery, National Ass’n of Radiation Survivors

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v. Turnage, 115 F.R.D. 543, 554– 56 (N.D. Cal. 1987), and, based on that inquiry, “[a] party

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responding to a Rule 34 production request...‘is under an affirmative duty to seek that information

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reasonably available to [it] from [its] employees, agents, or others subject to [its] control.’” Gray

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v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted).
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B. The Court Cannot Compel Production That Was Not Requested
Plaintiff argues, and the court agrees, that defendant seeks to compel discovery that was

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not requested by RFP 22. Rule 34(b) requires a party requesting the production of items to

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describe the items to be produced with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1–2).

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“The test for reasonable particularity is whether the request places a party upon reasonable notice

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of what is called for and what is not.” Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 616

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(C.D. Cal. 2013) (quoting Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436

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(N.D.Ill.2004).

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First, defendant’s RFP 22 asks plaintiff to “produce for inspection” the subject engine, and

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does not mention aircraft engine monitoring data. Second, the request is limited to “inspection”

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of the engine, and does not specify that disassembly and potentially testing are intended. Black’s

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Law Dictionary defines “inspection” as a “careful examination of something, such as goods (to

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determine their fitness for purchase) or items produced in response to a discovery request (to

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determine their relevance to a lawsuit).” INSPECTION, Black's Law Dictionary (10th ed. 2014).

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In contrast, Miriam Webster’s Dictionary defines “disassemble” as “to take apart.” Disassemble

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Definition, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/disassemble

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(last visited Oct. 11, 2017). A distinction between “inspection” and “testing” is drawn by Rule 34

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itself, which states a requesting party may ask a producing party to “produce and permit the

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requesting party or its representative to inspect, copy, test, or sample the following items in the

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responding party’s possession, custody, or control[.]” Fed. R. Civ. P. 34(a)(1) (emphasis added).

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The use of the word “or,” and the separate listing of “test” and “inspect,” indicates that these are

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distinct concepts with particular meanings. Rule 34 also requires a requesting party to specify the

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“manner for the inspection and for performing the related acts” as part of the RFP. Fed. R. Civ.

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P. 34(1)(B). Disassembly and possible testing of component parts are inspection-related acts

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which must be identified, and the manner of which must be disclosed, in the request.

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Defendant’s RFP 22 cannot be read to reasonably put plaintiff on notice that defendant

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sought disassembly or testing of the engine; the RFP calls only for inspection. The inspection

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requested is of “the Subject Engine” as a whole, without reference to its component parts. The
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only reference to discrete engine parts is to those that have already been removed. Even if

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plaintiff had independent reason to know that defendant wished to disassemble the engine, and no

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matter how reasonable such a request may be, it is simply not a request that was made in RFP 22.

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Further, the RFP is entirely silent on the subject of engine monitoring data. Because defendant’s

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RFP does not specifically seek type or manner of production defendant now seeks to compel,

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defendant’s motion must be denied. The court cannot compel discovery that is beyond the scope

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of the request for production. The issue of legal control, which both parties spend much time

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arguing in their briefs, need not be reached.

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IV.

Conclusion

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For the reasons set forth above, defendant’s motion to compel (ECF No. 84) is DENIED.

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IT IS SO ORDERED.

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DATED: October 13, 2017

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