Bralich v. Sullivan et al

Filing 81

ORDER ADOPTING AS MODIFIED MAGISTRATE JUDGE'S re 74 FINDINGS AND RECOMMENDATION re: 24 MOTION to Remand filed by Philip A. Bralich, re: 74 FINDINGS AND RECOMMENDATIONS The Court REFERs: 77 MOTION for Summary Judgm ent For Failure To Respond To Interrogatories Sent November 15, 2017 With Responses Due December 15, 2017 Or In The Alternative To Compel Responses To Said Interrogatories filed by Philip A. Bralich to Judge Puglisi. Signed by JUDGE ALAN C. KAY o n 01/23/2018. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry: Philip A. Bralich; 815 Filmore St; Monterey, CA 93940

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PHILIP BRALICH, PH.D. ,

)
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Plaintiff,
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vs.
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BARRY A. SULLIVAN, ESQ.;
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MARK PIESNER; CHRIS FRY;
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JOHN BATALI; WILLIAM
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O’GRADY; PETER MORRELI;
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CRAIG WEISSMAN; SAM
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PULLARA; SCOTT ZIEGLER;
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TWITTER; THROWNET A. CA)
CORP; THROWNET B. MA-CORP; )
SALESFORCE.COM INC.;
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MICROSOFT; STANFORD
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UNIVERSITY; NUANCE
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COMMUNICATIONS,
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Defendants.
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_____________________________ )

CV 17-00547 ACK-RLP

ORDER ADOPTING AS
MODIFIED THE MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATION

ORDER ADOPTING AS MODIFIED THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION
On 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
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four sets of interrogatory requests he had previously sent and sought summary
judgment or in the alternative to compel responses and sanctions. Id. at 2-4.
On 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).
With 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 DENIED.

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With 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) .
Because Plaintiff’s motion to remand had not yet been finally resolved

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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.1
As to these interrogatories, Plaintiff’s motion for summary judgment, or in the
alternative to compel and for sanctions is DENIED.
As to the remaining set of interrogatory requests, Judge Puglisi
proceeded on the basis that this set was served on November 15, 2017, and since

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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).
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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, 2017.2 See ECF
Nos. 75-76.
Although the exact date of the November set of interrogatory requests
may be relevant to Plaintiff’s January Motion seeking to compel discovery
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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 immaterial to the parties’
positions at this time.
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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.
With 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’

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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.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 23, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Bralich v. Sullivan, et al., Civ. No. 17-00547 ACK-RLP, Order Adopting as Modified the
Magistrate Judge’s Findings and Recommendation.

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