T-Mobile USA, Inc. v. Andrew Leung

Filing 19

ORDER by Judge Richard A Jones. The court directs the clerk to TERMINATE Plaintiff's motion correction of misnomer (Dkt. # 18 ) and to change the name of the Defendant to Andrew Chong. (CL)

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HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 T-MOBILE USA, INC., Plaintiff, 10 11 12 ANDREW CHONG, ORDER Defendant. 13 14 CASE NO. C13-29RAJ v. In December 2013, more than five months after the court denied Plaintiff’s motion 15 for a default judgment, Plaintiff T-Mobile USA, Inc. (“T-Mobile”) filed a motion 16 revealing that it had discovered in September 2013 that the Defendant, who T-Mobile 17 believed was named Andrew Leung, was actually named Andrew Chong. The court 18 neither grants nor denies the motion, because it requests relief that is unnecessary to 19 correct the naming error. The court directs the clerk to TERMINATE the motion (Dkt. # 20 18) and to change the name of the Defendant to Andrew Chong. This order concludes 21 with specific instructions. 22 T-Mobile’s pre-complaint investigation focused on a single person who was 23 trafficking in cellular telephones with prepaid airtime minutes from T-Mobile. For 24 reasons that T-Mobile explains in its motion, T-Mobile believed that person’s name was 25 Andrew Leung. In September 2013, T-Mobile was contacted by counsel for a person 26 who is actually named Andrew Leung. That person resides at the New York City address 27 28 ORDER – 1 1 where the target of T-Mobile’s investigation responded to a legal process server 2 attempting to serve process in another matter on Andrew Leung. The real Andrew Leung 3 explained, through his counsel, that the person described in T-Mobile’s complaint is 4 named “Andrew Chong,” and that Mr. Chong is or was the boyfriend of Mr. Leung’s 5 sister. 6 At worst, T-Mobile’s belief that the target of its investigation was named Andrew 7 Leung is the result of an excusable mistake. More likely, it is the result of a concerted 8 effort on behalf of the real Andrew Leung and Andrew Chong to misrepresent Mr. 9 Chong’s identity. In any event, there is no question that the complaint in this matter (and 10 11 virtually every document on the docket) misnames the Defendant. Rule 60(a) of the Federal Rules of Civil Procedure allows a court to correct a 12 “mistake arising from oversight or omission whenever one is found in a judgment, order, 13 or other part of the record.” At least one court in this District has construed excusable 14 mistakes in naming a defendant as mistakes within the scope of Rule 60(a). Mitchell 15 Repair Info. Co. v. Rutchey, No. C08-500RSM, 2009 U.S. Dist. LEXIS 98698, at *3-4 16 (W.D. Wash. Oct. 2, 2009). Here, Mr. Chong knew about the complaint from the 17 moment he was served with it. He either knew that the person the complaint identified as 18 Andrew Leung was actually him, or he knew that he had an obligation to respond to the 19 complaint to contest that he was the person identified in the complaint. Instead, Mr. 20 Chong did not respond to the complaint. Amending the complaint to correct the name of 21 the Defendant does not prejudice Mr. Chong. If Mr. Chong suffers any prejudice, it is the 22 result of his failure to respond to the initial complaint. 23 T-Mobile requests that the court, under the auspices of Federal Rule of Civil 24 Procedure 60(a), correct every portion of the record in which Mr. Chong is misnamed. T- 25 Mobile specifically requests that the court “correct[] all references in the record by 26 substituting ‘Andrew Chong’ in place of ‘Andrew Leung.’” Mot. (Dkt. # 18) at 12. If T- 27 28 ORDER – 2 1 Mobile wishes to correct every one of the dozens of documents that make up the record 2 in this case by replacing “Leung” with “Chong,” it is welcome to do so. The court 3 declines the invitation. Instead, the court will correct the two documents that T-Mobile 4 needs to bring this case to a resolution: the complaint and the clerk’s February 12, 2013 5 order entering Defendant’s default. Relying on Rule 60(a), the court deems those 6 documents (Dkt. ## 1, 13) corrected to indicate that the Defendant is named Andrew 7 Chong. T-Mobile does not reveal if it makes any difference, 1 but the court declares that 8 the correction to the complaint is retroactive to the date of service of the original 9 complaint, and that the correction to the order entering default is retroactive to February 10 12, 2013. 11 To summarize, the court orders as follows: 12 1) The court deems the complaint in this action corrected to substitute Andrew 13 Chong as the Defendant. T-Mobile need not file a corrected complaint 14 reflecting this change. The clerk shall modify the Defendant’s name 15 accordingly in the court’s electronic filing system. T-Mobile need not re-serve 16 its complaint. Service of the original complaint on Mr. Chong was sufficient 17 to subject him to the jurisdiction of this court, regardless of the error in naming 18 Mr. Chong. 2) The court declares that Andrew Chong is in default, and has been in default 19 since February 12, 2013. 20 3) This action is proceeding at a snail’s pace, considering that no one is opposing 21 T-Mobile. The court denied T-Mobile’s motion for default judgment on July 22 23 24 25 26 27 28 1 T-Mobile does not reveal whether a later date of service for its complaint would run it afoul of any relevant statute of limitations. T-Mobile could have amended its complaint using Mr. Chong’s name and re-served Mr. Chong. If there were statute of limitations concerns, it could have invoked Federal Rule of Civil Procedure 15(c) to demonstrate that the amended complaint relates back to the date of the initial complaint. The court is satisfied that in the circumstances before it, both T-Mobile’s invocation of Rule 60(a) to avoid the necessity of amending and reserving its complaint is consistent with both Mr. Chong’s due process rights and the interests of justice. ORDER – 3 1 11, 2013. T-Mobile has done nothing to bring this action to a resolution since, 2 even though it has known of the error regarding the Defendant’s name since 3 mid-September. T-Mobile has assured the court that it will file a second 4 motion for default judgment within seven days of this order. If T-Mobile does 5 not file a motion for default judgment by January 27, 2014, the court will 6 dismiss this action without prejudice for failure to prosecute. 7 4) The clerk shall TERMINATE T-Mobile’s motion. Dkt. # 18. 8 DATED this 13th day of January, 2014. 9 11 A 12 The Honorable Richard A. Jones United States District Court Judge 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – 4

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