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Athwal v. Nijjer

United States District Court, W.D. Washington, Seattle

March 5, 2018

SATBINDER ATHWAL, individually and on behalf of the Estate of HARKANWAL SINGH ATHWAL, deceased, Plaintiff,
v.
JAY NIJJER and “JANE DOE” NIJJER, individually and as a marital community, Defendants, and INDIGO HOLDINGS, LLC, a Washington limited liability company, Nominal Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL

          Robert S. Lasnik United States District Judge.

         This matter comes before the Court on “Plaintiff's Motion to Compel Discovery Responses.” Dkt. # 27. This case involves a dispute over plaintiff's alleged fifty percent ownership interest in Indigo Holdings, LLC (hereinafter “Indigo”). Plaintiff asserts claims of breach of contract, breach of fiduciary duty, wrongful interference with a business relationship, fraudulent misrepresentation, and violation of the Washington Limited Liability Company Act under RCW 25.15 et seq., among other claims. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:

         I. Discovery Deficiencies

         On October 4, 2017, plaintiff served her First Set of Interrogatories and Requests for Production on Indigo and her First Requests for Admission on Jay and Jane Doe Nijjer. Dkt. #28 at Ex. B, Ex. C; Dkt. #29-1 at ¶ 6. The initial response date was November 2, 2017. The parties agreed to continue the deadline until December 11, 2017. Dkt. #29-1 at ¶ 9. Defendants submitted their answers on December 11, 2017, but they were incomplete. Dkt. #29-1 at ¶ 9. At a meet and confer conference on December 14, 2017, the parties agreed that defendants would supplement their answers and documents by December 22, 2017. Dkt. #29-1 at ¶ 9. However, on December 22, 2017, defendants produced some informal discovery and informed plaintiff that they would not provide the supplemental discovery responses until the first week of January. Dkt. #29-1 at ¶ 10. Plaintiff brought this motion to compel on December 28, 2017. Dkt. #27. Defendants produced supplemental discovery responses on January 8, 2018. Dkt. #29-1 at ¶ 12. Discovery closed on February 5, 2018. Dkt. #18.

         Defendants argue that plaintiff's motion was unnecessary because they were already in the process of supplementing discovery and that it is now moot as their discovery production is complete. Defendants also argue that many of plaintiff's requests were over-broad in scope and difficult to answer as they required gathering information from disparate sources. Finally, defendants argue that plaintiff exceeded the permissible number of interrogatories through the use of sub-questions. The motion to compel is not moot: production after a party is forced to file a motion to compel may still be sanctioned, and plaintiff argues that the January 8, 2018, supplemental production remains incomplete. In light of the fact that defendants filed supplemental responses between the initial motion to compel and plaintiff's ultimate reply, the Court will consider only those items argued in plaintiff's reply.[1]

         A. Interrogatories

Interrogatory No. 1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all the facts upon which you base your response; (c) state the NAMES, ADDRESSES, and TELEPHONE NUMBERS of all PERSONS who have knowledge of those facts; (d) identify all DOCUMENTS and other tangible things that support your response and state the NAME, ADDRESS, and TELEPHONE NUMBER of the PERSON who has each DOCUMENT or thing.

         Indigo's answer is a mishmash of references and statements. Dkt. #32 at 10. It fails to provide much of the requested information, including the number of the request for admission to which it corresponds, addresses of the persons listed, or any information about supporting documents and who may have them. Therefore, the answer is deficient.

         Plaintiff points out that the representation that KS Accounting prepared Indigo's taxes in 2012 and 2013 contradicts defendants' prior statement that Olsen & Company CPAs has been the only accounting firm used by Indigo to prepare its taxes since formation. Defendants are reminded that admissions are considered conclusively established and that responses to interrogatories are made under oath. See Fed.R.Civ.P. 33(b)(3); 36(b).

Interrogatory No. 2: How much of the distributions noted on the attached Exhibit A and Exhibit B have actually been remitted to Hark, Sally, and/or ESSA Investments? If all of the distributions have not been remitted: (a) What portion has not been remitted? (b) Why has that portion been withheld? (c) Where is the withheld portion of the distribution? (d) What was the money used for or being held for? (e) Provide the bank and bank account numbers where the unremitted distributions are being held.

         While Indigo provides a supplemental answer to this interrogatory, it answers only subpart (a) and glosses over subparts (b) through (e). This answer is, therefore, deficient. The Court also notes that the answer provided appears inconsistent with Indigo's 2015 tax returns, see Dkt. #28 at Ex. M, and reminds Indigo that its interrogatory answers are under oath. See Fed.R.Civ.P. 33(b)(3).

Interrogatory No. 6: Describe in detail the reason for each transaction listed below involving Indigo Wells Fargo Bank Account # ___3294. Provide an accounting as to the source and/or recipient of the said transaction, and for all withdrawals and outgoing wires explain why you authorized the transaction: [the interrogatory lists twenty-four transactions occurring between May 8, 2012, and June 14, 2017.]

         Indigo objects to Interrogatory No. 6 on the ground that each of the twenty-four listed transactions constitutes a discrete subpart and that plaintiff's interrogatories therefore exceed the twenty-five interrogatory limit permitted under Fed.R.Civ.P. 33(a)(1). Dkt. #29-1 at ¶ 8. The supplemental production provides details for only four of the listed transactions.

         Federal Rule of Civil Procedure 33(a)(1) provides: “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Rule 33 does not, however, define “discrete subparts.” The Advisory Committee states:

Parties cannot . . . join[] as ‘subparts' questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.

Fed. R. Civ. P. 33 Advisory Committee Notes regarding 1993 Amendment. “[T]he task of counting interrogatories requires a case-specific assessment.” Synopsys, Inc. v. ATopTech, Inc., 319 F.R.D. 293, 295 (N.D. Cal. 2016). “The subparts can be explicit or implicit; the number of subparts does not turn on the formalism of labeling.” Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191, 195 (E.D. Tex. 2016) (citing 7 James Wm. Moore, Moore's Federal Practice § 33.30[2], at 33-33 (3d ed. 2016); Safeco of Am. v. Rawstron, 181 F.R.D. 441, 443 (C.D.Cal.1998)). While courts have formulated various tests for determining when subparts are a separate interrogatory, “courts generally agree that interrogatory subparts are to be counted as one interrogatory ... if they are logically or factually subsumed within and necessarily related to the primary question.” Trevino ...


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