Rubino v. ACME Building Maintenance et al

Filing 148

ORDER by Magistrate Judge Howard R. Lloyd denying 134 plaintiff's motion re interrogatories; and denying 135 plaintiff's motion for sanctions. 2/9/2010 motion hearing is vacated. (hrllc2, COURT STAFF) (Filed on 2/5/2010)

1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JOSEPH E. RUBINO, Plaintiff, v. ACME BUILDING MAINTENANCE, et al., Defendants. / No. C08-00696 JW (HRL) ORDER (1) DENYING PLAINTIFF'S MOTION RE INTERROGATORIES; AND (2) DENYING PLAINTIFF'S MOTION FOR SANCTIONS [Re: Docket Nos. 134, 135] *E-FILED 02-05-2010*

United States District Court

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For the Northern District of California

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Pro se plaintiff Joseph Rubino sues for alleged employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Presently before this court are two motions filed by Rubino. Although the first is styled as a motion for leave to propound over 25 interrogatories to various persons and entities, it appears that Rubino actually seeks a court order both allowing the interrogatories and compelling answers to them. The second seeks sanctions. Defendant ACME Building Maintenance ("ACME") opposes the motions. The matter is deemed suitable for determination without oral argument, and the February 9, 2010 hearing is vacated. See CIV. L.R. 7-1(b). Upon consideration of the moving and responding papers, this court denies both motions. Plaintiff essentially seeks a court order permitting him to propound a number of interrogatories on (a) all ACME workers at Spansion; (b) all the Officers of ACME/GCA; (c) Joe Shuburg (someone who apparently worked with Rubino either at ACME or Spansion);

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(d) Jim Cronin (identified as a Spansion employee and plaintiff's former co-worker); and (e) the California Department of Fair Employment & Housing. As noted above, he also wants a court order compelling the interrogatories to be answered. The subject interrogatories apparently were served on or about the December 28, 2009 discovery cutoff date. Plaintiff's motion re interrogatories is denied. First, the interrogatories were not timely served.1 See Civ. L.R. 26-2 ("Unless otherwise ordered, as used in any order of this Court or in these Local Rules, a `discovery cutoff' is the date by which all responses to written discovery are due and by which all depositions must be concluded."). Second, all of them are directed to nonparties. Federal Rule of Civil Procedure 33 provides that interrogatories may be served "on any other party" to the action. Fed. R. Civ. P. 33(a)(1) (emphasis added). However, interrogatories "cannot be served on nonparty witnesses." SCHWARZER, ET AL., CALIFORNIA: FEDERAL CIV. PROC. BEFORE TRIAL, § 11:1671 (Rev. #1 2008). Even if the interrogatories to ACME's officers were deemed requests directed to ACME itself, and to the extent the questions posed are relevant, this court finds that it would need to re-draft the interrogatories for plaintiff. This court does not find it appropriate to do so at this juncture. Insofar as plaintiff's motion for sanctions is premised upon defendant's alleged discovery failures, this court does not find sanctions to be warranted on the record presented. The motion is denied SO ORDERED. Dated: February 5, 2010 HOWARD R. LLOYD

United States District Court

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For the Northern District of California

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UNITED STATES MAGISTRATE JUDGE

Plaintiff says that he served an earlier set of interrogatories sometime in May or June 2009. (See Docket No. 143, Plaintiff's Reply Brief at 2 and Ex. 2). Those earlier interrogatories appear duplicate, to a certain extent, the interrogatories directed to all ACME workers. The record indicates that ACME may have objected to those interrogatories on the ground that service was invalid under Fed. R. Civ. P. 5(b)(1). (Id., Ex. 9). Inasmuch as plaintiff claims to have also served those earlier interrogatories on defense counsel, there appears to be a factual dispute about the validity of service. But even if this court were to accept plaintiff's representation, the earlier set of interrogatories were nonetheless directed to nonparties.
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5:08-cv-00696-JW Notice electronically mailed to: Paul T. Hammerness [e-mail], [e-mail] David Dong-In Sohn [e-mail] David Jude Comeaux [e-mail], [e-mail], [e-mail] Erica Kristen Rocush [e-mail], [e-mail] Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. 5:08-cv-00696-JW Notice mailed to: Joseph E Rubino 2151 Oakland Road #36 San Jose, CA 95131

United States District Court

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For the Northern District of California

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