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Alutiiq International Solutions, LLC v. OIC Marianas Insurance Corp.

United States District Court, D. Nevada

March 15, 2018

ALUTIIQ INTERNATIONAL SOLUTIONS, LLC, Plaintiff,
v.
OIC MARIANAS INSURANCE CORPORATION, et al., Defendants.

          ORDER

          CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE

         The Law Office of Dan M. Winder P.C.'s Motion to Quash (ECF No. 275); Plaintiff's Motion for Sanctions (ECF No. 279); and Plaintiff's Motion for Withdrawal/Substitution of Counsel (ECF No. 282).

         Before this Court is The Law Office of Dan M. Winder P.C.'s (former attorney of record for the Defendant and current interested party) Motion to Quash (ECF No. 275), Plaintiff's Motion for Sanctions (ECF No. 279), and Motion to Substitute Counsel (ECF No. 282). For the reasons stated below, Winder's motion to quash is denied, the Court orders Winder to serve a copy of the requested discovery upon Christopher Rose (attorney of record for the Plaintiff) by close of business today, Plaintiff's Motion for Sanctions is granted in part and denied in part, and Plaintiff's motion to substitute counsel is granted.

         Factual Background

         Plaintiff Alutiiq filed a lawsuit against OIC Marianas Insurance Company on July 19, 2010. (ECF No. 1). Plaintiff secured a favorable judgment on January 14, 2016. (ECF No. 217). Plaintiff asserts that, following the court's judgment, it has struggled to collect from the Defendants. (ECF No. 259). Plaintiff filed a motion to compel compliance with a subpoena for ten categories of documents. (Id.). The Court ordered that Plaintiff send the Law Office of Dan M. Winder (“Winder”) a list of search terms, and that Winder then submit electronic searchable versions of the documents requested by Plaintiff within forty-five days. (ECF No. 272).

         Plaintiff allegedly submitted the search terms to Winder's office on December 22, 2017. (ECF No. 277 at 11). Plaintiff claims that it sent Winder's office a letter by U.S. mail, and an email addressed to danwinder@attorneydanwinder.com. (Id.). On February 5, 2018, Plaintiff sent a second email alerting Winder that this was his last day to comply with the discovery subpoena. (Id. at 10). Plaintiff sent this second email to winderanatty@aol.com. (Id.). Later on February 5, 2018, Winder replied to Plaintiff's second email. Winder stated that this was the first notice his office had received of the search list. (Id. at 9-10). Winder claimed that the email address used in Plaintiff's first email was not an email address that either he or anyone in his office used. Winder then requested an additional two weeks to produce the discovery. On February 6, 2018 Plaintiff replied that he did not believe Winder's claim that February 5 was the first time Winder's office had received notice of the search term list. (Id. at 9). Plaintiff agreed to grant Winder a one-week extension to produce the discovery. (Id.).

         On February 13, 2018, Winder filed a motion to quash service of the first email and requested the Court grant it forty-five days from the reception of the second email to produce the discovery. (ECF No. 275). On February 14, 2018, Plaintiff filed a Motion to sanction Winder for its conduct during this discovery process. (ECF No. 279). On March 2, 2018, Plaintiff's counsel (Mark Rosencrantz) also filed a motion to Substitute Counsel for his client (ECF No. 282). The Court held a hearing on these three motions on March 15, 2018. At the hearing, Winder stated that he had mailed the discovery to Mr. Rosencrantz's (attorney of record for Plaintiff) office on or about March 12, 2018. Rosencrantz stated that he has not yet received the mailed discovery.

         Analysis

         I. Winder's Motion to Quash Should be Denied

         Winder argues that he never received Plaintiff's letter containing the search terms via U.S. mail. (ECF No. 275 at 1). Winder further claims that Plaintiff sent the December 22nd email to an invalid email address. While Winder acknowledges that the email address in question is attached to his office, he claims that it is neither used nor monitored by anyone in his office. (ECF No. 280 at 2). Winder asserts that he does not know where Plaintiff got this email address from, and posits that Plaintiff must have assumed it was a proper email address based on other email addresses in use by Winder's firm. (Id.). Winder argues that since the first email was sent to an incorrect email address, he did not receive notice of the search terms until Plaintiff sent him the second email on February 5, 2017. (ECF No. 275 at 1). He asserts that since he received notice of the list of search terms so late, he did not have time to produce the discovery requested within the one-week time allotment Plaintiff granted him.

         Plaintiff claims that he did send the letter containing the search terms to Winder's office through U.S. mail. (ECF No. 276 at 2-4). Plaintiff also asserts that he used the email address in question because he had used it to successfully contact Winder's firm over a dozen times during the course of this litigation. (Id.). Plaintiff argues that Winder received the list of search terms and that Winder was merely attempting to delay the proceedings. (Id.). Plaintiff highlights previous instances where either Winder's firm or other defense counsel has delayed Court proceedings during the course of this litigation. (Id.).

         The court may quash service when service is insufficient. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). Service may be made by either mailing the subpoena through U.S. mail or by electronic means. Fed.R.Civ.P. 5(b). When a subpoena is served by electronic means, service is “not effective if the serving party learns that it did not reach the person to be served.” Fed.R.Civ.P. 5(b)(2)(E). The court construes the provisions outlining service liberally. Crane v. Battelle, 127 F.R.D 174, 177 (S.D. Cal. 1989).

         Plaintiff properly served the list of search terms on Winder. It is unclear whether Plaintiff mailed the letter to Winder through U.S. mail. While Plaintiff claims as much, the only evidence he submits is a declaration. (ECF No. 277 at 2). Since Winder alleges the opposite (ECF No. 275), whether or not the letter was mailed is essentially a credibility determination.

         The Court declines to rule on whether Plaintiff sent the list of search terms through U.S. mail because Plaintiff served the list on Winder through email. Both parties agree that the email was sent to an existing email address that was connected to Winder's firm. (ECF No. 276; ECF No. 280 at 2). Winder seems to be arguing that he could not produce the requested discovery because the list of search terms never reached him. By Winder's own admission this is not true. The search terms did reach him when Plaintiff sent them to his email that is connected to his law firm. That Winder lacks the diligence to check this in box does not change the fact that it is a ...


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