Brian S. Faile v. The Upjohn Company

Caution
93 Daily Journal DAR 3473·988 F.2d 985·1993 WL 73916·25 Fed. R. Serv. 3d 155·1993 U.S. App. LEXIS 4925
United States Court of Appeals for the Ninth CircuitMarch 18, 199391-16938California2,056 words

Opinion

Opinion

Reinhardt, J.

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.

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…

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