Mosley v. Groupon Inc., et.al.

Filing 52

ORDER GRANTING MOTION TO COMPEL by Magistrate Judge Paul Singh Grewal granting 41 (psglc2, COURT STAFF) (Filed on 11/3/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM MOSLEY, et al.,
Plaintiffs,

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(Re: Docket No. 43)

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GROUPON, INC., et al.,
Defendants.

United States District Court
Northern District of California

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Even among all the unnecessary discovery disputes brought to this court, this one stands
out.

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ORDER GRANTING MOTION TO
COMPEL

v.

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Case No. 15-cv-01205-BLF

After Plaintiffs William and Frances Mosley filed this suit in state court in January 2015,
Defendant Groupon, Inc. removed it to this court in March.1 During email discussions in late June
about a joint case management statement, Plaintiffs’ counsel asked Groupon’s counsel if the latter
“would be willing to accept electronic service.”2 On June 29, Plaintiffs’ counsel again asked
Groupon’s counsel if he was “okay with electronic service.”3 Six minutes later, Groupon’s
counsel responded, “I am.”4 Plaintiffs then served Groupon their discovery requests by email later
that day, and Groupon’s counsel acknowledged that he had received them.5 And yet, four months

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See Docket No. 1.

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Docket No. 43-1.

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Id.

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Id.

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See id.

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Case No. 15-cv-01205-BLF
ORDER GRANTING MOTION TO COMPEL

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later, Groupon claims that it was never served those requests and that it never consented to

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electronic service.6 Groupon therefore contends that it no longer needs to respond to requests

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relating to claims that Judge Freeman dismissed in August.7
In its papers and in oral argument, Groupon argues that the consent was ambiguous. It

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says that the parties always intended to memorialize the terms and conditions in a more complete

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agreement. When Groupon’s counsel agreed that he was “okay with electronic service,” his

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statement was only the prelude to negotiating a full written contract. And the discovery requests

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themselves were ambiguous as well—when Groupon’s counsel received them, he thought that

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they were only courtesy copies of discovery to be served later. Groupon’s argument borders on

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the frivolous. The court has reviewed the email exchange at issue, and it is abundantly clear that

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United States District Court
Northern District of California

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both parties intended to—and thus did—consent to electronic service. Groupon’s counsel simply

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lost track of the requests at issue, an otherwise excusable mistake that Groupon then compounded

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by claiming it never received them.
Plaintiffs’ motion is GRANTED. Groupon must respond to the requests within 14 days.

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Pursuant to Fed. R. Civ. P. 37(b)(2)(C), Plaintiffs are further awarded the attorneys’ fees they

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incurred in filing this motion and in meeting and conferring with Groupon about these discovery

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requests. By failing to timely respond, Groupon has admitted the matters in Plaintiffs’ requests for

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admission and has waived its objections to all of Plaintiffs’ requests. Plaintiffs also request that

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the court extend Plaintiffs’ deadline to amend their complaint, but Judge Freeman set that deadline

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in her order dismissing Plaintiffs’ claims.8 Plaintiffs should direct this request for relief to the

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presiding judge.

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See Fed. R. Civ. P. 5(b)(2)(E) (authorizing service of documents “by electronic means if the
person consented in writing—in which event service is complete upon transmission, but is not
effective if the serving party learns that it did not reach the person to be served”).
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See Docket No. 37.

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See id. at 3.

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Case No. 15-cv-01205-BLF
ORDER GRANTING MOTION TO COMPEL

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SO ORDERED.

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Dated: November 3, 2015
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
Northern District of California

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Case No. 15-cv-01205-BLF
ORDER GRANTING MOTION TO COMPEL