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Faile v. Upjohn Co.

filed*fn*: March 18, 1993.

BRIAN S. FAILE, PLAINTIFF-APPELLANT,
v.
THE UPJOHN COMPANY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV 90-398-LDG. Lloyd D. George, Chief District Judge, Presiding.

Before: Alfred T. Goodwin, Dorothy W. Nelson, and Stephen Reinhardt, Circuit Judges. Opinion by Judge Reinhardt.

Author: Reinhardt

REINHARDT, Circuit Judge:

This case requires us to decide whether an incarcerated pro se litigant completes "service" of discovery responses at the time he submits the responses to prison authorities for forwarding to the party being served. We hold that he does, and reverse and remand.

I

Brian S. Faile alleges that his use of the prescription drug Xanax, manufactured by defendant The Upjohn Company ("Upjohn"), resulted in depression and violent outbursts. Ultimately, he was seriously wounded by police officers reacting to his violent behavior, and was imprisoned after convictions of assault with a deadly weapon and attempted murder. Faile, who remains incarcerated, filed his pro se complaint in June 1990.*fn1

On August 8, 1991, the district court, under the belief that Faile, despite an extension, had not filed an opposition to Upjohn's motions to dismiss and for summary judgment, dismissed the complaint. On August 15, 1991, Faile moved to reconsider. The motion was timely under Fed. R. Civ. P. 59(e).

On October 1, 1991, the court, noting that Faile had in fact filed opposition, albeit tardy, to Upjohn's motions, indicated that it was inclined to reconsider the earlier dismissal. However, the court added that Upjohn had also urged dismissal on the basis of plaintiff's failure to comply with a magistrate Judge's order requiring Faile to respond to defendant's interrogatories and requests for production. The court gave Faile 15 days to "fully comply with the magistrate's order." The court indicated that its earlier order of dismissal would stand if Faile did not so comply. Upjohn was to file a status report within 20 days of the court's order. On October 17, 1991, Upjohn reported to the district court that it had received nothing from Faile. As a consequence, on October 22, 1991, the court denied Faile's motion to reconsider dismissal.

Asserting that the court had made a mistake of law, Faile moved to vacate the October 22, 1991 order under Fed. R. Civ. P. 60(b). On December 3, 1991, the district court denied the motion, and Faile appeals. Faile contends that he timely complied with the district court's October 1 order by turning over his discovery responses, within the 15 days allowed, to prison officials for forwarding to Upjohn. The district court apparently concluded that compliance required receipt of the responses by Upjohn within the time allowed.

II

We review the denial of a motion under Fed. R. Civ. P. 60(b) for an abuse of discretion. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 263, 54 L. Ed. 2d 521, 98 S. Ct. 556 n.7 (1978). If its Conclusion that Faile had not timely complied rested upon an erroneous view of the law, the district court abused its discretion. See Yniques v. Cabral, 985 F.2d 1031, slip ops. at 1201, 1205 (9th Cir. 1993) (legal error is "mistake" warranting relief under Fed. R. Civ. P. 60(b)). Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359 (1990) (district court abuses its discretion in basing decision on erroneous view of law).

The magistrate Judge's order, with which Faile was to fully comply by October 16, 1991, required him to respond to Upjohn's interrogatories and requests for production. Under Fed. R. Civ. P. 33 and 34, a party is to "serve" discovery responses upon the requesting party. "Service" may be accomplished by mail, and "service by mail is complete upon mailing." Fed. R. Civ. P. 5(b). Under these rules, the district court erred in determining that full compliance with the magistrate Judge's order required receipt of the responses by Upjohn. Rather, Faile could timely comply with the order by mailing the responses within 15 days.

Nevertheless, according to Upjohn, Faile's responses were postmarked October 18, 1991, two days beyond the court-imposed deadline. Faile contends that compliance was complete when he submitted the discovery responses to prison officials for forwarding to Upjohn on October 14, 1991, two days before the deadline. We must therefore decide whether actual mailing or submission to a ...


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