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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

GUY BECKETT, Personal Representative of

the Estate of Lois M. Beckett, individually

and on behalf of all others similarly situated, 

Plaintiff,

v.

MELLON INVESTOR SERVICES, LLC, a

New Jersey limited liability company,

Defendant.

Case No. C06-5245 RJB

ORDER ON PLAINTIFF’S

MOTION FOR AN

ORDER PERMITTING

PLAINTIFF TO

PROPOUND

ADDITIONAL

INTERROGATORIES

AND REQUIRING

DEFENDANT TO

ANSWER THIRTY DAYS

FROM SERVICE ON

MARCH 15, 2010

This matter comes before the court the plaintiff’s Motion for an Order Permitting Plaintiff to

Propound Additional Interrogatories and Requiring Defendant to Answer Thirty Days from Service on

March 15, 2010 (Dkt. 49). The court has considered the relevant pleadings and the file herein.

BACKGROUND

On March 23, 2006, plaintiff filed a civil case in Kitsap County Superior Court against defendant

Mellon Investor Services LLC (see Dkt. 1), and on May 4, 2006, the case was removed to the United

States District Court in Western District of Washington at Tacoma (Dkt. 1). 

On May 8, 2006, the court issued a minute order (Dkt. 3), which required the parties to submit

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ORDER

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their Joint Status Report and Discovery Plan no later than September 5, 2006. On September 21, 2006,

the plaintiff requested new deadlines for serving and filing the Initial Disclosures and Joint Status Report

to allow the plaintiff to file a motion for remand to state court. Dkt. 5. The court agreed and set the due

date of the Initial Disclosures and Joint Status Report to a date subsequent to the determination of the

plaintiff’s motion to remand. Dkt. 8. The case was not remanded to state court (Dkt. 21), and the court

dismissed the case (Dkt. 21) pursuant to the defendant’s Motion to Dismiss Under Securities Litigation

Uniform Standards Act (“SLUSA”) (Dkt. 9).

On December 4, 2006, the plaintiff appealed the judgment to the United States Court of Appeals

for the Ninth Circuit (Dkt. 23). On July 16, 2009, the United States Court of Appeals for the Ninth

Circuit affirmed in part, as to the district court’s dismissal of the plaintiff’s allegations of omissions that

were prohibited from prosecution by SLUSA; and reversed in part, as to the plaintiff’s possible individual

and class claims for breach of contract, breach of fiduciary duties, unjust enrichment, and/or violation of

the Washington Consumer Protection Act. Dkt. 28; Dkt. 29. The possible remaining claims were

remanded to federal court. Dkt 28; Dkt. 29. On February 2, 2010, this case was reassigned to Judge

Robert J. Bryan. Dkt. 36.

In plaintiff’s First Amended Complaint (Dkt. 30), he claims that defendant, a transfer agent for

Washington Mutual and other companies, sold shares of Washington Mutual stock at plaintiff’s request

on March 24, 2003, and that he was paid for those shares a price below the lowest trading price for

Washington Mutual shares sold on that day. Dkt. 30. Plaintiff seeks to represent a class of “hundreds if

not thousands” of individuals. Dkt. 30.

On March 12, 2010 the court addressed the propriety of the plaintiff’s class certification pursuant

to the defendant’s Motion to Dismiss Class Allegations (Dkt. 38), and dismissed the defendant’s motion

without prejudice, ruling that the plaintiffs have until May 14, 2010 to timely file for class certification. 

Dkt. 47.

PLAINTIFF’S MOTION TO PROPOUND INTERROGATORIES

On March 14, 2010, plaintiff served defendant with interrogatories via email, and noted that the

interrogatories were in a number greater than allowed by Fed. R. Civ. P. 33 absent a stipulation by the

parties or leave of court. Dkt. 54-2. (Because the email was sent on a Sunday, the parties agreed that

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service was effective on Monday, March 15, 2010). The defendant has counted the interrogatories at over

50, including subparts, while the plaintiff has not commented as to the exact number of interrogatories he

presented. Dkt. 54. Defendant asked plaintiff which of the 25 interrogatories the plaintiff would like it to

answer, and did not stipulate to a greater number of interrogatories than the 25 allotted by Rule 33. Id. 

On March 18, 2010, plaintiff filed the instant motion requesting leave of court to propound additional

interrogatories. Dkt. 49. Plaintiff contends that the propounded interrogatories are reasonable and

necessary to support his motion for class certification that is due on May 14, 2010. Id. 

Defendant, on the other hand, contends that the additional interrogatories are overly burdensome. 

Dkt. 53. The defendant further asserts that the plaintiff’s motion should be denied because plaintiff has

not provided his first 25 interrogatories before requesting to propound; plaintiff did not provide

particularized reasoning as to why he seeks to exceed the limit; and because the plaintiff did not attempt

to meet and confer with the defendants as required by Rule 37(a)(1). Id.

On April 2, 2010, the plaintiff filed his reply (Dkt. 55), and he contends that the additional

interrogatories are particularly necessary to explore issues relating to the defendant’s practices with

respect to any person who requested it to sell shares, not only persons who requested it to sell Washington

Mutual shares. Dkt. 55. Additionally, plaintiff asserts that Rule 33(a)(1) does not require a party to serve

its first 25 interrogatories for before requesting to propound additional interrogatories. Id. The plaintiff

also notes that the Rule 37(a)(1) meet and confer requirement does not apply in the context of a request to

propound interrogatories. Id.

STANDARD

Rule 33 expressly forbids a party from serving more than 25 interrogatories on another party

“without leave of court or written stipulation.” Fed. R. Civ. P. 33. The parties may waive the quantity

limitation in a written stipulation, and the court may grant leave to serve additional interrogatories to the

extent consistent with the principles of Rule 26(b)(2). Fed. R. Civ. P. 33(a). The limitation is based on

the recognition that, although interrogatories are a valuable discovery tool, “the device can be costly and

may be used as a means of harassment...” Advisory Committee Note, 146 F.R.D. 675, 675 (1993). The

goal of the limitation is “not to prevent needed discovery, but to provide judicial scrutiny before parties

make potentially excessive use of this type of discovery.” Id.

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Rule 26(b)(2) governs the court’s determination on whether leave will be granted to serve

additional interrogatories. The court will limit discovery if: (1) the discovery sought is unreasonably

cumulative or duplicative, or is obtainable from some other source that is more convenient, less

burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in

the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery

outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the

parties’ resources, the importance of the issues at stake in the litigation, and the importance of the

proposed discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2). The party seeking leave must set

forth a “particularized showing” to exceed the limit of twenty-five interrogatories. See Duncan v.

Paragon Publ’g, Inc., 204 F.R.D. 127, 128 (S.D. Ind. 2001) (denying leave to serve 99 additional

interrogatories that were overly broad and burdensome in light of the common law tort claims at issue);

Archer Daniels Midland Co. v. Aon Risk Servs. Inc. of Minnesota, 187 F.R.D. 578, 586 (D. Minn. 1999)

(denying leave to serve additional interrogatories where defendant’s request was “bereft of any showing”

that specific interrogatories were required to properly defend itself); Mead Corp. V. Riverwood Natural

Res. Corp., 145 F.R.D. 512, 518 (D. Minn. 1992) (denying leave to serve additional interrogatories,

where party did not demonstrate necessity by showing the specific content of the interrogatories);

Capacchione v. Charlotte-Mecklenburg Sch., 182 F.R.D. 486, 492 (W.D.N.C. 1998) (denying leave to

serve additional interrogatories where party gave no explanation of their subject matter).

DISCUSSION

Plaintiff contends that its interrogatories are needed to obtain “the information necessary to

support a motion for class certification,” and that these interrogatories help to explore the “issues of

numerosity, typicality and adequacy” of the potential class. Dkt. 49. Plaintiff further asserts that in order

to prosecute a class action of this “scope and complexity” the “information about [defendant’s] sales

procedures, trades made both for Washington Mutual and the other companies is required, as well as

information for what amounts were paid to its customers who requested that the defendant sell shares for

them.” Id. This reasoning, along with the specific list of interrogatories provided, make a particularized

showing of the plaintiff’s need to serve additional interrogatories in order to prepare to move for class

certification and to prepare to present his case. The unusual manner in which this case has progressed

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justifies allowing the plaintiff to serve additional interrogatories in his first set of interrogatories in order

to continue this case on course.

Defendant’s argument that the additional interrogatories are overly burdensome is unpersuasive

without a showing as to what burden the interrogatories impose. And, while the court advises the plaintiff

that it is best to meet and confer with opposing counsel over discovery issues, the meet and confer

requirement is not mandatory before serving interrogatories or requesting authority for additional

interrogatories. For the reasons above, the defendant should respond to plaintiff’s propounded

interrogatories.

Accordingly, it is hereby ORDERED that plaintiff’s Motion for an Order Permitting Plaintiff to

Propound Additional Interrogatories and Requiring Defendant to Answer Thirty Days from Service on

March 15, 2010 (Dkt. 49) is GRANTED in part. Defendant shall respond to plaintiff’s interrogatories on

or before 30 days of the date hereof.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any

party appearing pro se at said party’s last known address. 

DATED this 5th day of April, 2010.

ARobert J. Bryan

United States District Judge 

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