212,UG 10 It1!
6 1T THE SUPERIOR COURT OF GUAM 7
$ MARIANA STONES CORPORATION, LTD., CIVIL CASE NO. CVY3O7-19 9
10 DECISION AND ORDER Plaintiff, 11 vs. 12
13 fADIAN DEVELOPMENT, INC. AND 14 DOES 1-10,
15 Defendant. 16 INTRODUCTION 17 This matter is before the Honorable Vernon P. Perez on Plaintiff Mariana Stones Cooration, Ltd.’s (“MSC”) Motion for Authority to Exceed Number of Inteffogatories, filed May 4, 2022. Plaintiff is represented by Attorneys Jacques G. Bronze and Edward C. Han, and Defendant Fadian Development, Inc. (“fadian”) is represented by Attorney Louie J. Yanza. Having reviewed the pleadings, the arguments presented, and the record, the Court now issues 22 the following Decision and Order. 23 BACKGROUND This matter sterns from an Agreement entered into by MSC and Fadian on July 31, 2015 for the clearing, levelling, and grading of Tract 157NEW.’ (Am. Compl. ¶J 6-8, Oct. 20, 2020). 26
27 The Amended Complaint previously included counts against 3&K Development, LLC, which were dismissed 28 without prejudice on August 4, 2021. See Stipulation for Dismissal Without Prejudice, Aug. 4, 2021.
Mariana Stones Corp.. Ltd. vs. fadian Development. Inc. Case No. CV1307-19 Decision and Order
Page 1 of 5 i On November 25, 2022, Fadian moved to dismiss the Amended Complaint, which was denied 2 by the Court. See Dec. & Order, May 20, 2021. On June 10, 2021, F adian filed its Answer to 3 the Amended Complaint. 4 On January 24, 2022, Attorney Bronze replaced Attorney Anthony C. Perez as counsel 5 for fadian. See Substitution of Counsel, Jan. 24, 2022. 6 On May 4, 2022, MSC filed a Motion for Authority to Exceed Number of 7 Interrogatories (“Motion to Exceed”). On June 1, 2022, Fadian filed its Opposition. On June 8 14, 2022, M$C filed its Reply. 9 On June 22, 2022, the parties filed a Stipulation for Submission on the Briefs, and on 10 June 24, 2022, the Court placed the matter under advisement without oral argument. See CVR ii 7.1 Form 3, Jun. 24, 2022. 12 DISCUSSION 13 MSC moves the Court to increase the number of interrogatories allowed in this matter. 14 See generally, Mot. Exceed, May 4, 2022. According to MSC, “Defendant’s response to 15 Plaintiffs first Set of Interrogatories stopped on Interrogatory No. 17 subpart ‘c” and asserts 16 for the remaining interrogatories that “Pursuant to GRCP 33, without leave of court or written 17 stipulation, any party may serve any other party written interrogatories, not exceeding 50 in 18 number including all discrete subparts. Guam GRCP. Subpart ‘c’ of interrogatory 17 exceeds 19 the 50 interrogatories permitted by the Guam Rules of Civil Procedure.” (Mot. Exceed at 3). 20 See also Decl. of Edward Han, Ex. 2, May 4, 2022. F adian opposes, arguing that MSCS failed 21 to comply with GRCP Rule 37(a)(2)(A) and Local Rule CVR 37.1(a) and (b). See generalv, 22 Opp’n, Jun. 1, 2022. 23 Under GRCP Rule 33, “any party may serve upon any other party written 24 interrogatories, not exceeding 50 in number, including all discrete subparts, to be answered by 25 the party served . . . Leave to serve additional interrogatories shall be granted to the extent 26 consistent with the principles of Rule 26(b)(2).” Guam R. Civ. Pro. 33(a) (emphasis added). 27 Local Rule CVR 33.1(a) also provides in relevant part that “[i]nterrogatories or requests for 28 admission shall not exceed fifty (50) in number, counting any subparts or subquestions as
Mariana Stones Corp., Ltd. vs. Fadian Development, Inc. Case No. CV1307-19 Decision and Order
Page2 of5 i individual questions. Subparts or subquestions of any interrogatory shall relate directly to the 2 subject matter of the interrogatory.” Local Rule CVR 33.1(a). The party upon whom 3 interrogatories are served is required to serve answers and objections within 30 days after the 4 service of the interrogatories, or at a different time agreed upon in writing by the parties or as 5 directed by the court. Guam R. Civ. Pro. 33(b)(3). Rule 33 requires each interrogatory to “be 6 answered separately and fully in writing under oath” and for any objections to be “stated with 7 specificity.” Guam. R. Civ. Pro. 33(b)(4). “The party submitting the interrogatories may move 8 for an order under Rule 37(a) with respect to any objection to or other failure to answer an 9 interrogatory.” Guam R. Civ. P. 33(b)(5). Rule 37 provides in relevant part that: 10 if a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that 11 inspection will be permitted as requested or fails to permit an inspection as 12 requested, the discovering party may move for an order compelling an answer, or 13 a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith 14 conferred or attempted to confer with the person or party failing to make the 15 discovery in an effort to secure the information or material without court action.
16 Guam R. Civ. P. 37(a)(2)(B).
17 As an initial matter, the Court finds that MSC is not moving to compel Fadian to answer
18 the interrogatories based on a failure to properly respond. Rather, MSC is moving the Court to
19 allow it to exceed the number of interrogatories under Rule 33. Therefore, the Court finds that
20 Rule 37 does not apply at this time, and will not deny the Motion to Exceed based on a failure to
21 include a certification that counsel made a good faith effort to confer or attempt to confer with
22 opposing counsel in an effort to secure the information without court action.
23 MSC both appears to be requesting that it be allowed to exceed the number of 50
24 interrogatories and requesting that the Court find that the subsections of each interrogatory be
25 construed as subsumed in the primary question and therefore not be counted as separate
26 interrogatories (thus totaling thirty five interrogatories, well below the limit of 50 set forth in
27 Rule 33). Compare Mot. Exceed, May 4, 2022 with Reply, Jun. 1, 2022. MSC also sets forth
28 that Fadian cannot object to any additional interrogatories because it failed to answer the
Mariana Stones C’orp., Ltd. vs. fadian Development. Inc. Case No. CV1307-19 Decision and Order
Page 3 of 5 i interrogatories within thirty (30) days of its service to begin with. On September 9, 2022, MSC 2 served on Fadian its first Set of Interrogatories. (Deci. of Edward C. Han, Ex. 1, May 4, 2022). 3 Fadian’s response to MSC’s first Set of Interrogatories was served on MSC on March 25, 2022. 4 (Decl. of Edward C. Han, Ex. 2, May 4, 2022). The interrogatories were therefore not timely 5 responded to within thirty (30) days. “Generally, the failure to make a timely and specific 6 objection in written discovery responses waives the objection.” See, e.g., Saftco Insurance Co. 7 of America v. Rawstrom, 183 F.R.D. 668, 671 (C.D. Cal. 1998) (holding that “interrogatory 8 objections not included in a timely response are waived even if the objections are contained in a 9 later untimely response, absent a showing of good cause.”). As F adian’s objection to the 10 Motion to Exceed primarily resolves around an objection to MSC following Rule 37, the Court ii has not been presented with any information showing good cause as to the delay in responding 12 to the interrogatories initially. The Court is cognizant, however, of the fact that counsel for 13 Fadian has changed over the past year. Additionally, as noted earlier, MSC is not moving to 14 compel F adian to answer the interrogatories based on a failure to respond or answer. Therefore, 15 the Court will not grant the motion solely on any waiver of objection.
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212,UG 10 It1!
6 1T THE SUPERIOR COURT OF GUAM 7
$ MARIANA STONES CORPORATION, LTD., CIVIL CASE NO. CVY3O7-19 9
10 DECISION AND ORDER Plaintiff, 11 vs. 12
13 fADIAN DEVELOPMENT, INC. AND 14 DOES 1-10,
15 Defendant. 16 INTRODUCTION 17 This matter is before the Honorable Vernon P. Perez on Plaintiff Mariana Stones Cooration, Ltd.’s (“MSC”) Motion for Authority to Exceed Number of Inteffogatories, filed May 4, 2022. Plaintiff is represented by Attorneys Jacques G. Bronze and Edward C. Han, and Defendant Fadian Development, Inc. (“fadian”) is represented by Attorney Louie J. Yanza. Having reviewed the pleadings, the arguments presented, and the record, the Court now issues 22 the following Decision and Order. 23 BACKGROUND This matter sterns from an Agreement entered into by MSC and Fadian on July 31, 2015 for the clearing, levelling, and grading of Tract 157NEW.’ (Am. Compl. ¶J 6-8, Oct. 20, 2020). 26
27 The Amended Complaint previously included counts against 3&K Development, LLC, which were dismissed 28 without prejudice on August 4, 2021. See Stipulation for Dismissal Without Prejudice, Aug. 4, 2021.
Mariana Stones Corp.. Ltd. vs. fadian Development. Inc. Case No. CV1307-19 Decision and Order
Page 1 of 5 i On November 25, 2022, Fadian moved to dismiss the Amended Complaint, which was denied 2 by the Court. See Dec. & Order, May 20, 2021. On June 10, 2021, F adian filed its Answer to 3 the Amended Complaint. 4 On January 24, 2022, Attorney Bronze replaced Attorney Anthony C. Perez as counsel 5 for fadian. See Substitution of Counsel, Jan. 24, 2022. 6 On May 4, 2022, MSC filed a Motion for Authority to Exceed Number of 7 Interrogatories (“Motion to Exceed”). On June 1, 2022, Fadian filed its Opposition. On June 8 14, 2022, M$C filed its Reply. 9 On June 22, 2022, the parties filed a Stipulation for Submission on the Briefs, and on 10 June 24, 2022, the Court placed the matter under advisement without oral argument. See CVR ii 7.1 Form 3, Jun. 24, 2022. 12 DISCUSSION 13 MSC moves the Court to increase the number of interrogatories allowed in this matter. 14 See generally, Mot. Exceed, May 4, 2022. According to MSC, “Defendant’s response to 15 Plaintiffs first Set of Interrogatories stopped on Interrogatory No. 17 subpart ‘c” and asserts 16 for the remaining interrogatories that “Pursuant to GRCP 33, without leave of court or written 17 stipulation, any party may serve any other party written interrogatories, not exceeding 50 in 18 number including all discrete subparts. Guam GRCP. Subpart ‘c’ of interrogatory 17 exceeds 19 the 50 interrogatories permitted by the Guam Rules of Civil Procedure.” (Mot. Exceed at 3). 20 See also Decl. of Edward Han, Ex. 2, May 4, 2022. F adian opposes, arguing that MSCS failed 21 to comply with GRCP Rule 37(a)(2)(A) and Local Rule CVR 37.1(a) and (b). See generalv, 22 Opp’n, Jun. 1, 2022. 23 Under GRCP Rule 33, “any party may serve upon any other party written 24 interrogatories, not exceeding 50 in number, including all discrete subparts, to be answered by 25 the party served . . . Leave to serve additional interrogatories shall be granted to the extent 26 consistent with the principles of Rule 26(b)(2).” Guam R. Civ. Pro. 33(a) (emphasis added). 27 Local Rule CVR 33.1(a) also provides in relevant part that “[i]nterrogatories or requests for 28 admission shall not exceed fifty (50) in number, counting any subparts or subquestions as
Mariana Stones Corp., Ltd. vs. Fadian Development, Inc. Case No. CV1307-19 Decision and Order
Page2 of5 i individual questions. Subparts or subquestions of any interrogatory shall relate directly to the 2 subject matter of the interrogatory.” Local Rule CVR 33.1(a). The party upon whom 3 interrogatories are served is required to serve answers and objections within 30 days after the 4 service of the interrogatories, or at a different time agreed upon in writing by the parties or as 5 directed by the court. Guam R. Civ. Pro. 33(b)(3). Rule 33 requires each interrogatory to “be 6 answered separately and fully in writing under oath” and for any objections to be “stated with 7 specificity.” Guam. R. Civ. Pro. 33(b)(4). “The party submitting the interrogatories may move 8 for an order under Rule 37(a) with respect to any objection to or other failure to answer an 9 interrogatory.” Guam R. Civ. P. 33(b)(5). Rule 37 provides in relevant part that: 10 if a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that 11 inspection will be permitted as requested or fails to permit an inspection as 12 requested, the discovering party may move for an order compelling an answer, or 13 a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith 14 conferred or attempted to confer with the person or party failing to make the 15 discovery in an effort to secure the information or material without court action.
16 Guam R. Civ. P. 37(a)(2)(B).
17 As an initial matter, the Court finds that MSC is not moving to compel Fadian to answer
18 the interrogatories based on a failure to properly respond. Rather, MSC is moving the Court to
19 allow it to exceed the number of interrogatories under Rule 33. Therefore, the Court finds that
20 Rule 37 does not apply at this time, and will not deny the Motion to Exceed based on a failure to
21 include a certification that counsel made a good faith effort to confer or attempt to confer with
22 opposing counsel in an effort to secure the information without court action.
23 MSC both appears to be requesting that it be allowed to exceed the number of 50
24 interrogatories and requesting that the Court find that the subsections of each interrogatory be
25 construed as subsumed in the primary question and therefore not be counted as separate
26 interrogatories (thus totaling thirty five interrogatories, well below the limit of 50 set forth in
27 Rule 33). Compare Mot. Exceed, May 4, 2022 with Reply, Jun. 1, 2022. MSC also sets forth
28 that Fadian cannot object to any additional interrogatories because it failed to answer the
Mariana Stones C’orp., Ltd. vs. fadian Development. Inc. Case No. CV1307-19 Decision and Order
Page 3 of 5 i interrogatories within thirty (30) days of its service to begin with. On September 9, 2022, MSC 2 served on Fadian its first Set of Interrogatories. (Deci. of Edward C. Han, Ex. 1, May 4, 2022). 3 Fadian’s response to MSC’s first Set of Interrogatories was served on MSC on March 25, 2022. 4 (Decl. of Edward C. Han, Ex. 2, May 4, 2022). The interrogatories were therefore not timely 5 responded to within thirty (30) days. “Generally, the failure to make a timely and specific 6 objection in written discovery responses waives the objection.” See, e.g., Saftco Insurance Co. 7 of America v. Rawstrom, 183 F.R.D. 668, 671 (C.D. Cal. 1998) (holding that “interrogatory 8 objections not included in a timely response are waived even if the objections are contained in a 9 later untimely response, absent a showing of good cause.”). As F adian’s objection to the 10 Motion to Exceed primarily resolves around an objection to MSC following Rule 37, the Court ii has not been presented with any information showing good cause as to the delay in responding 12 to the interrogatories initially. The Court is cognizant, however, of the fact that counsel for 13 Fadian has changed over the past year. Additionally, as noted earlier, MSC is not moving to 14 compel F adian to answer the interrogatories based on a failure to respond or answer. Therefore, 15 the Court will not grant the motion solely on any waiver of objection. 16 Under Rule 26(b)(2), the Court may limit the number of interrogatories if “the discovery 17 sought is unreasonably cumulative or duplicative” or if “the burden or expense of the proposed 18 discovery outweighs its likely benefit.” Guam R. Civ. P. 26(b)(2)(i)-(iii). In this case, MSC’s 19 first Set of Interrogatories contains 35 interrogatories, a majority of which also contain 20 subsections. (Deci. of Edward C. Han, Ex. 1). Interrogatories numbered one through thirty four 21 each reference one of the affirmative defenses asserted in Fadian’s Answer, starting with the 22 second affirmative defense. Id. The subsections inquire as to (1) facts; (2) names; and (3) 23 documents as to each defense. Id. The thirty-fifth interrogatory requests information about any 24 expert witness intended to be called at trial. Id. “Although the tenu ‘discrete subparts’ does not 25 have a precise meaning, courts generally agree that ‘interrogatory subparts are to be counted as 26 one interrogatory ... if they are logically or factually subsumed within and necessarily related to 27 the primary question.” Trevino v. AC’B American, Inc., 232 f.R.D. 612, 613 (N.D.Cal.2006) 28 (citation omitted). The Court finds that these subparts asking for facts, documents, and
Mariana Stones (orp. Ltd. i’s. Padian Development. Inc. Case No. CV1307-19 Decision and Order
Page4of5 . witnesses relating to an affirmative defense should be construed as subsumed in the primary question and therefore grants MSC’s Motion to Exceed. Fadian may have thirty (30) days to 3 respond to the remaining interrogatories. 4 CONCLUSION For the foregoing reasons, the Court hereby GRANTS MSC’s Motion for Authority to 6 Exceed Number of Interrogatories. 7 IT IS SO ORDERED this day of August, 2022. $
11 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 12
18 acknow’edge that an eon :oc 19 to: cop of the ohgina was e.maued f?-% /;-ø_______
21 0at
22 piBaJr. of Guam DepuOy C’erk, Supenot Cowl 23
Mariana Stones Ltd. vs. Fadian Development, Inc. Case No. CV 1307-19 Decision and Order
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