Myhre v. Seventh-Day Adventist Church Reform Movement American Union International Missionary Society et al, No. 3:2013cv02741 - Document 67 (S.D. Cal. 2014)

Court Description: ORDER Granting in Part and Denying in Part Plaintiff's 42 Motion to Compel Jurisdictional Discovery from Defendants and Granting in Part and Denying in Part Defendants' 45 Motion for Protective Order. Defendants are ordered to provide or supplement their discovery responses as described in this Order on or before May 8, 2014. Signed by Magistrate Judge Ruben B. Brooks on 4/17/2014. (knb)

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Myhre v. Seventh-Day Adventist Church Reform Movement American Union Inte...Missionary Society et al Doc. 67 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEINAR MYHRE, 12 Plaintiff, 13 v. 14 SEVENTH-DAY ADVENTIST CHURCH REFORM MOVEMENT AMERICAN UNION INTERNATIONAL MISSIONARY SOCIETY, a New Jersey corporation; INTERNATIONAL MISSIONARY SOCIETY SEVENTH-DAY ADVENTIST CHURCH REFORM MOVEMENT GENERAL CONFERENCE, a California corporation; and DOES 1-100, 15 16 17 18 19 Defendants. 20 21 Civil No. 13cv2741 BEN(RBB) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL JURISDICTIONAL DISCOVERY FROM DEFENDANTS [ECF NO. 42] AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PROTECTIVE ORDER [ECF NO. 45] Plaintiff Steinar Myhre’s Motion to Compel Jurisdictional 22 Discovery [ECF No. 42] (“Motion to Compel”) was filed on March 5, 23 2014. 24 and Myhre filed a reply [ECF No. 64]. 25 Defendants filed their response in opposition [ECF No. 58], On March 9, 2014, Defendants Seventh-Day Adventist Church 26 Reform Movement American Union International Missionary Society, a 27 New Jersey Corporation (“IMS-NJ”); The Seventh Day Adventist Church 28 Reform Movement American Union International Missionary Society, a 1 13cv2741 BEN(RBB) Dockets.Justia.com 1 Texas Corporation (“IMS-TX”); The Seventh Day Adventist Church 2 Reform Movement American Union IMS, Inc., a Georgia Corporation 3 (“IMS-GA”); Miami Dade Area Seventh Day Adventist Church Reform 4 Movement, International Missionary Society, Inc., a Florida 5 Corporation (“IMS-Miami”); and The Seventh Day Adventist Church 6 Reform Movement American Union International Missionary Society, a 7 Florida Corporation (“IMS-FL”) filed a Motion for Protective Order 8 Denying or, in the Alternative, Limiting the Discovery of Plaintiff 9 [ECF No. 45]. 10 11 Plaintiff filed his opposition [ECF No. 59], and Defendants filed a reply [ECF No. 63]. The hearing on the motions was set for April 7, 2014. The 12 Court determined the matters to be suitable for resolution without 13 oral argument, submitted the motions on the parties papers pursuant 14 to the Local Civil Rule 7.1(d), and vacated the motion hearing. 15 (Mins., ECF No. 66.) 16 to Compel is GRANTED in part and DENIED in part, and Defendants’ 17 Motion for Protective Order is GRANTED in part and DENIED in part. 18 19 For the following reasons, Plaintiff’s Motion I. FACTUAL BACKGROUND On November 14, 2013, Plaintiff Steinar Myhre filed a 20 Complaint against Defendants alleging breach of contract, breach of 21 the covenant of good faith and fair dealing, fraud, interference 22 with contract, conversion, and civil conspiracy. 23 No. 1.) 24 injunctive relief for the alleged termination of his pension 25 benefits by his former employer. 26 he was forced to retire over a theological disagreement in 2009; by 27 then, he had worked for Defendants for over twenty-seven years as (Compl. 1, ECF Plaintiff is a retired pastor who seeks money damages and (Id. at 3.) Myhre claimed that 28 2 13cv2741 BEN(RBB) 1 an ordained minister. (Id. at 3-5.) 2 retirement payments ceased in 2013. Plaintiff stated that his (Id. at 9-10.) 3 Myhre originally named as Defendants two entities: 4 International Missionary Society Seventh Day Adventist Church 5 Reform Movement General Conference (“IMS-GC”). 6 Plaintiff alleged that he resides in Colorado, that Defendant IMS- 7 NJ is a New Jersey corporation headquartered in Georgia and doing 8 business in various states, including the State of California and 9 the County of San Diego. (Id.) IMS-NJ and (Id. at 2.) Myhre also claimed that Defendant 10 IMS-GC is a California corporation headquartered in Georgia and 11 doing business in various states, including the State of 12 California. 13 that Defendant IMS-GC has the right and ability to control 14 Defendant IMS-NJ, and thus IMS-GC has vicarious liability for the 15 actions of IMS-NJ. 16 (Id.) Plaintiff alleged, upon information and belief, (Id.) On January 6, 2014, Plaintiff amended his Complaint, adding 17 five more Defendants: (1) The Seventh-Day Adventist Church Reform 18 Movement American Union International Missionary Society, a Texas 19 corporation (“IMS-TX”); (2) The Seventh-Day Adventist Church Reform 20 Movement American Union IMS, Inc., a Georgia corporation 21 (“IMS-GA”); (3) Miami Dade Area Seventh-Day Adventist Church Reform 22 Movement, International Missionary Society Inc., a Florida 23 corporation (“IMS-Miami”); (4) The Seventh-Day Adventist Church 24 Reform Movement American Union International Missionary Society, a 25 Florida corporation (“IMS-FL”); and (5) Tampa Bay Area Seventh Day 26 Adventist Church Reform Movement, International Missionary 27 Society Inc., a Florida corporation (“IMS-Tampa”). 28 3, ECF No. 15.) (Am. Compl. 2- Myhre’s Amended Complaint states that “Defendant 3 13cv2741 BEN(RBB) 1 entities are part of a singular, hierarchical church organization 2 that collectively conducts business throughout the United States 3 and the world, with each level answerable to, and controlled by, 4 higher levels of the organization.” 5 Defendants collectively as “IMS,” Plaintiff also alleged, on 6 information and belief, that “Defendant IMS has officially 7 registered as a non-profit religious organization in the United 8 States via a single entity reference, specifically, ‘International 9 Missionary Society Seventh-Day Adventist Church,’ EIN 71- (Id. at 3.) Referring to all 10 0905495, without any reference therein to either ‘American Union’ 11 or ‘General Conference.’” (Id.) 12 provides: 13 14 15 16 17 18 19 20 21 22 23 Myhre’s Amended Complaint also 15. Defendants IMS-AU-NJ, IMS-Tampa, IMS-AU-TX, IMS-AU-GA, IMS- Miami, and IMS-AU-FL are indistinguishable for purposes of liability under the facts of this case, and are treated as a single entity by Plaintiff herein, collectively referred to as “Defendant American Union” unless otherwise specified in this Amended Complaint. 16. Upon information and belief, and based on admissions of Defendants, Defendant American Union has not maintained any principal place of business anywhere for almost 30 years. However, Defendant American Union has churches located in various states, including five churches in California, five in Florida, three in Georgia, two each in New York and Texas, and one each in Illinois, Colorado, New Jersey, Rhode Island, Virginia, and Washington DC. (Id. at 3-4.) Myhre alleged that jurisdiction is proper in this Court 24 pursuant to 28 U.S.C. § 1332 because the parties are citizens of 25 different states and the amount of controversy exceeds $75,000. 26 (Id. at 4.) 27 district “because Defendant American Union resides in this district 28 (by virtue of being registered to do business in California, having Plaintiff claimed that venue is proper in this 4 13cv2741 BEN(RBB) 1 a church located in Vista, CA in the Southern District of 2 California, and having further personnel located in Oceanside, CA) 3 . . . .” 4 (Id.) Currently pending before the Court are four motions to dismiss 5 filed by the Defendants. Defendant IMS-NJ’s Motion to Dismiss for 6 Lack of Subject Matter Jurisdiction or Improper Venue argues that 7 because IMS-NJ’s principal place of business is in Colorado, it is 8 a citizen of Colorado and the case must be dismissed for lack of 9 diversity jurisdiction. (Def. [IMS-NJ’s] Mot. Dismiss Attach. #1 10 Mem. P. & A. 8,1 ECF No. 31.) 11 that the case must be dismissed for improper venue because not all 12 of the corporate Defendants are residents of California. 13 13-14.) 14 claim, arguing that Plaintiff fails to allege any facts against it. 15 (Def. [IMS-GC’s] Mot. Dismiss Attach. #1 Mem. P. & A. 6, ECF No. 16 32.) 17 principal place of business in Georgia, and it seeks dismissal for 18 improper venue or transfer to the Northern District of Georgia. 19 (Id. at 11-14.) 20 In the alternative, IMS-NJ argues (Id. at Defendant IMS-GC moves to dismiss for failure to state a IMS-GC also claims that it is a California corporation with a Defendants IMS-TX, IMS-GA, IMS-Miami and IMS-FL filed a Motion 21 to Dismiss for Lack of Subject Matter Jurisdiction or Improper 22 Venue, arguing that both IMS-GA and IMS-FL are citizens of Colorado 23 for purposes of diversity jurisdiction. 24 IMS-Miami & IMS-FL’s] Mot. Dismiss Attach. #1 Mem. P. & A. 12, ECF 25 No. 34.) (Defs. [IMS-TX, IMS-GA, Finally, Defendant IMS-Tampa filed a Motion to Dismiss 26 27 28 1 Because the Defendants’ memoranda of points and authorities in support of their motions to dismiss are not consecutively paginated, the Court will cite to each using the page numbers assigned by the Court’s ECF system. 5 13cv2741 BEN(RBB) 1 for Improper Venue or, in the Alternative, to Transfer; it claims 2 that transfer to Florida is proper because its principal place of 3 business is in Florida. 4 #1 Mem. P. & A. 6, ECF No. 39.) 5 transfer this case to Georgia because IMS-NJ’s2 principal place of 6 business is in Georgia. 7 a hearing on June 16, 2014, before the Honorable Roger T. Benitez 8 [ECF No. 61]. 9 (Def. [IMS-Tampa’s] Mot. Dismiss Attach. (Id.) In the alternative, it moves to These motions are currently set for In response to Defendants’ challenges to jurisdiction and 10 venue, Plaintiff brought this Motion to Compel seeking to 11 “ascertain[] the facts behind Defendants’ conclusory allegations 12 that (1) any of the Defendants have a principal place of business 13 in Colorado; and (2) proper corporate formalities were observed as 14 to each of the Defendants.” 15 & A. 5,3 ECF No. 42.) 16 the citizenship of IMS-NJ, IMS-GA, and IMS-FL for purposes of 17 diversity jurisdiction, as well as the Defendants’ contacts with 18 the Southern District for purposes of venue. 19 whether a transfer to another forum is appropriate for the 20 convenience of parties and witnesses, and whether 21 // 22 // 23 // 24 // (Pl.’s Mot. Compel Attach. #1 Mem. P. The disputed issues require an inquiry into Related questions are 25 2 26 27 IMS-Tampa’s memorandum of points and authorities refers to IMS-NJ as “American Union.” (Def. [IMS-Tampa’s] Mot. Dismiss Attach. #1 Mem. P. & A. 5-6, ECF No. 39.) 3 28 Because Plaintiff’s brief is not consecutively paginated, the Court will cite to it using the page numbers assigned by the Court’s ECF system. 6 13cv2741 BEN(RBB) 1 Defendants observed corporate formalities to withstand allegations 2 that they are alter egos of each other.4 3 4 II. LEGAL STANDARDS “Parties may obtain discovery regarding any nonprivileged 5 matter that is relevant to any party's claim or defense . . . . 6 Relevant information need not be admissible at the trial if the 7 discovery appears reasonably calculated to lead to the discovery of 8 admissible evidence.” 9 matter” under Rule 26(b)(1) is any item that “bears on, or that Fed. R. Civ. P. 26(b)(1). A “relevant 10 reasonably could lead to other matter that could bear on, any issue 11 that is or may be in the case.” 12 437 U.S. 340, 351 (1978). 13 Oppenheimer Fund, Inc. v. Sanders, Rule 37 of the Federal Rules of Civil Procedure enables the 14 propounding party to bring a motion to compel responses to 15 discovery. 16 discovery bears the burden of resisting disclosure. 17 Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992). 18 has discretion to permit or deny jurisdictional discovery. 19 Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). 20 “‘[D]iscovery should ordinarily be granted where pertinent facts 21 bearing on the question of jurisdiction are controverted or where a 22 more satisfactory showing of the facts is necessary.’” 23 U.S. Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) 24 (quoting Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d Fed. R. Civ. P. 37(a)(3)(B). The party opposing Miller v. A district court Laub v. 25 4 26 27 28 Plaintiff Myhre alleges he discovered a "web of corporate entities with almost identical corporate names, overlapping addresses, overlapping personnel, and overlapping use of the employer identification number (EIN) appearing on Plaintiff's W-2 tax forms, making it impossible to even separate out one corporation from another." (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 5, ECF No. 42.) 7 13cv2741 BEN(RBB) 1 535, 540 (9th Cir. 1986)); Calix Networks, Inc. v. Wi–Lan, Inc., 2 No. C–09–06038–CRB (DMR), 2010 WL 3515759, at *3 (N.D. Cal. Sept. 3 8, 2010) (quoting Laub, 342 F.3d at 1093)). 4 present a “colorable basis” for jurisdiction to obtain discovery. 5 Id. at *4. 6 that “‘might well demonstrate’ jurisdictionally relevant facts.” 7 Id. at *3 (quoting Rutsky & Co. Ins. Servs., Inc. v. Bell & 8 Clements Ltd., 328 F.3d 1122, 1135 (9th Cir. 2003)). 9 not warranted, however, if a plaintiff cannot “demonstrate how A plaintiff need only “It may be an abuse of discretion” to deny discovery Discovery is 10 further discovery would allow it to contradict the [defendant's] 11 affidavits.” 12 Cir. 1995). Terracom v. Valley Nat’l Bank, 49 F.3d 555, 562 (9th 13 III. DISCUSSION 14 A. 15 Plaintiff moves to compel the following jurisdictional 16 17 18 19 20 Motion to Compel discovery: 1. Deposition of material witness, Henry Dering, American Union Vice President, near his residence in Sacramento, California; 2. A short deposition of either President, Vice President, Secretary, or Treasurer of Defendant IMS-Texas at their principal place of business in Huntington Park, California; 21 22 3. Production of additional documents promised to be subsequently provided in responses to Requests for Production, specifically – 23 24 25 a. b. c. d. e. From From From From From Defendant Defendant Defendant Defendant IMS-Miami IMS-New Jersey (Nos. 17 and 18); IMS-Texas (Nos. 2 and 3); IMS-Georgia (No. 2); IMS-Florida (Nos. 1-4); and (Nos. 1-4). 26 27 or written confirmation that there are no responsive documents. 28 4. Proper responses to Requests for Production of documents directly related to issues of jurisdiction, 8 13cv2741 BEN(RBB) 1 2 3 4 5 6 7 8 venue, and alter ego/joint enterprise issues raised in Defendants’ pending motions to dismiss or transfer, specifically – a. b. c. d. e. From From From From From IMS-New Jersey (Nos. 13, 14, 15, and 21); IMS-Texas (No. 5 and 8); IMS-Georgia (Nos. 3 and 5); IMS-Florida (No. 5); and IMS-Miami (No. 5). 5. Proper responses to identical Interrogatories propounded to each of Defendants IMS-Texas, IMS-Georgia, IMS-Florida, and IMS-Miami, also relating to related to issues of jurisdiction, venue, and alter ego/joint enterprise issues raised in Defendants’ pending motions to dismiss or transfer, specifically – 9 10 11 12 13 a. Interrogatory No. 2 (requires specification of “local area”); b. Interrogatory No. 5 (requires identification of personnel that perform the day-to-day activities of the corporation); c. Interrogatory No. 6 (EIN used by Defendants to compare with Plaintiff’s employment records); and d. Interrogatory Nos. 7 and 8 (location of actual places of activity). 14 15 16 17 6. Defendants’ Initial Disclosures per Fed. R. Civ. P. Rule 26(a). (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 7-8, ECF No. 42.) Myhre contends that the discovery he propounded relates to the 18 issues raised in the Defendants’ motions. 19 Defendants attack the “allegations in the Amended Complaint that 20 the Defendants constitute a ‘joint enterprise’ and contest[] 21 diversity jurisdiction and venue for this case.” 22 Plaintiff alleges that (Id. at 5.) Plaintiff seeks jurisdictional discovery to address 23 Defendants’ Motions to Dismiss brought under Rule 12(b)(1) of the 24 Federal Rules of Civil Procedure. 25 jurisdiction under Rule 12(b)(1) may be raised as either a facial 26 or factual attack. 27 1035, 1039 (9th Cir. 2004). 28 asserts that the allegations contained in a complaint are A challenge to subject matter See Safe Air for Everyone v. Meyer, 373 F.3d “In a facial attack, the challenger 9 13cv2741 BEN(RBB) 1 insufficient on their face to invoke federal jurisdiction. 2 contrast, in a factual attack, the challenger disputes the truth of 3 the allegations that, by themselves, would otherwise invoke federal 4 jurisdiction.” 5 By Id. Here, Defendants challenge the factual allegations in 6 Plaintiff’s Amended Complaint, arguing that Defendants IMS-NJ, IMS- 7 FL, and IMS-GA are citizens of Colorado. 8 destroy diversity jurisdiction in this case. 9 Motion to Compel, Defendants contend that none of Plaintiff’s If true, this would In opposing Myhre’s 10 discovery relates to subject matter jurisdiction. 11 Mot. Compel 5,5 ECF No. 58.) 1. 12 13 (Defs.’ Opp’n Rule 26(f) conference Defendants argue that Plaintiff is not entitled to conduct 14 jurisdictional discovery because he has not held Rule 26(f) 15 conferences with each of them; furthermore, propounding discovery 16 on Defendants before obtaining a court order was impermissible. 17 (Id. at 7-8.) 18 defense counsel conducted a Rule 26(f) conference “when there were 19 the original two defendants . . . .” 20 Order Attach. #1 Decl. Kramer 2, ECF No. 59.) 21 counsel, she “sought to do a follow-up after additional parties 22 were added (all represented by the same counsel). 23 and refused, however, to complete the process.” 24 Defendants were added in the Amended Complaint filed on January 16, 25 2014, and served on the new parties in late January or early Plaintiff’s counsel acknowledges that she and (Pl.'s Opp'n Mot. Protective According to They have failed (Id.) Five 26 27 5 28 Because Defendants’ opposition brief is not consecutively paginated, the Court will cite to it using the page numbers assigned by the Court’s ECF system. 10 13cv2741 BEN(RBB) 1 February 2014. (Defs.’ Opp’n Mot. Compel 8, ECF No. 58.) These 2 facts will not excuse the Defendants from responding to discovery. 3 First, there is authority that “[n]o Rule 26(f) [conference], 4 discovery plan or status conference is required in order to conduct 5 discovery for the jurisdictional inquiry.” 6 Co., No. CIV-07-1145-F, 2007 U.S. Dist. LEXIS 87880, at *8 (W.D. 7 Okla. Nov. 29, 2007). 8 governs the commencement of discovery. 9 discovery from any source before the parties have conferred as Cannon v. Fortis Ins. Second, a separate provision, Rule 26(d)(1), “A party may not seek 10 required by Rule 26(f), except . . . when authorized by these 11 rules, by stipulation, or by court order.” 12 26(d)(1) (emphasis added). 13 represented that an agreement on discovery had been made with 14 Myhre. 15 Fed. R. Civ. P. In another filing, Defendants Plaintiff also asks this Court for a scheduling order that allows him to obtain discovery before having to file his opposition [to motions to dismiss or transfer]. This request is moot because the parties already worked out a discovery schedule that provides plaintiff with sufficient discovery to prepare his opposition to defendants’ pending motions. 16 17 18 19 (Defs.’ Opp’n Pl.’s Ex Parte Appl. 3-4, ECF No. 36.) 20 construed Defendants’ statements as an agreement to provide 21 discovery. 22 responses have been and will be timely served, [and] that Plaintiff 23 will have sufficient time to review discovery before filing 24 oppositions . . . .” 25 41.) 26 address any dispute regarding the scope and timing of discovery to 27 [the assigned magistrate judge].” 28 authorized the Plaintiff to proceed with discovery. Judge Benitez He wrote, “[Defendants] also state that discovery (Order Ex Parte Appl. Scheduling 2, ECF No. Finally, the district court directed the parties “to promptly 11 (Id. at 3.) The Court For all these 13cv2741 BEN(RBB) 1 reasons, Defendants’ contention that jurisdictional discovery is 2 precluded because a Rule 26(f) conference has not taken place with 3 new Defendants is not well taken. 4 5 2. Depositions Defendants oppose Myhre’s requests to depose Henry Dering, 6 IMS-NJ’s vice president, and the president or secretary of IMS-TX. 7 (Defs.’ Opp’n Mot. Compel 12-13, ECF No. 58.) 8 and Defendants concede, that Henry Dering is currently vice 9 president of American Union6 and previously served as its Plaintiff alleged, 10 president. 11 Mot. Dismiss Attach. #2, Decl. Petkov 3-4, ECF No. 31.) 12 agree that deposing an appropriate person is a permissible method 13 of gathering jurisdictional facts; however, they insist that the 14 choice of deponent must be left to them. 15 12, ECF No. 58; see Defs.’ Mot. Protective Order Attach. #1 Mem. P. 16 & A. 17, ECF No. 45.) 17 (First Am. Compl. 7, 12, ECF No. 15; Def. [IMS-NJ’s] Defendants (Defs.’ Opp’n Mot. Compel Defendants cite Orchid Biosciences, Inc. v. St. Louis Univ., 18 198 F.R.D. 670, 676 (S.D. Cal. 2001), as authority for their 19 contention that they designate the person to be deposed on 20 jurisdictional contacts. 21 Orchid Biosciences, the plaintiff served St. Louis University with 22 “a notice of taking deposition of Defendant through its designated 23 personnel.” The case does not support the claim. Id. at 672 (footnote omitted). In Plaintiff listed six 24 6 25 26 27 28 Although Defendants sometimes use the name “American Union” to refer to the IMS-NJ (see Def. [IMS-GC’s] Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF No. 32), they accuse Plaintiff of creating the confusion by referring to “American Union.” (Defs.’ Mot. Protective Order Attach. #1 Mem. P. & A. 10, ECF No. 45 (“Plaintiff maintains that the rightful defendant has no principal place of business because it is actually a web of dispersed corporate entities (a web which he confusingly calls ‘Defendant American Union’)”.) 12 13cv2741 BEN(RBB) 1 topics it sought to cover at the deposition. 2 defendant moved for a protective order denying or limiting 3 discovery. 4 produce the appropriate person to provide deposition testimony on 5 four of the six subjects listed in plaintiff’s notice. 6 There is nothing remarkable about the case; it appears to involve 7 no more than the taking of deposition testimony from an 8 organization under Rule 30(b)(6) of the Federal Rules of Civil 9 Procedure. 10 11 12 Id. at 671. Id. at 677-78. The The court directed the defendant to Id. at 676. Myhre is not limited to taking deposition testimony of an organization under Rule 30(b)(6). 16 A party may still name a particular person to testify on behalf of the organization by noticing the deposition under Rule 30(b)(1) . . . . Rule 30(b)(6) simply gives a party seeking discovery from an organization or government agency the choice either to designate an appropriate individual under Rule 30(b)(1), or to describe the subject matter of the questions to be asked and allow the deponent to designate its own spokesperson familiar with the subject matter. 17 7 James Wm. Moore et al., Moore’s Federal Practice § 30.25[1], at 18 30-64 (3d ed. 2013). 13 14 15 19 In moving to dismiss for lack of diversity jurisdiction, 20 Defendants placed the citizenship of IMS-NJ at issue. Defendant 21 IMS-NJ claimed that it is a citizen of Colorado. 22 Mot. Dismiss Attach. # 1 Mem. P. & A. 10, ECF 31.) 23 codefendant, IMS-General Conference, claimed that “Defendant 24 American Union [IMS-NJ] is a corporation organized in New Jersey, 25 also with its principal place of business in Georgia.” 26 GC’s] Mot. Dismiss Attach. #1 Mem. P. & 27 Likewise, IMS-Tampa argued that IMS-NJ’s principal place of 28 business is in Georgia. (Def. [IMS-NJ’s] Its (Def. [IMS- A. 5, ECF No. 32.) (Def. [IMS-Tampa’s] Mot. Dismiss Attach. 13 13cv2741 BEN(RBB) 1 #1 Mem. P. & A. 6, ECF No. 39.) These conflicting statements 2 create a factual dispute as to the principal place of business of 3 Defendant IMS-NJ, and thus necessitate jurisdictional discovery. 4 Defendants acknowledge that Plaintiff offered them a choice of 5 deponents with regard to IMS-TX deposition, but they argue that the 6 stated subject topics for that deposition were overly broad. 7 (Defs.’ Opp’n Mot. Compel 13, ECF No. 58; see Defs.’ Mot. 8 Protective Order Attach. #1 Mem. P. & A. 16-17, ECF No. 45.) 9 Plaintiff explains the need for IMS-TX to produce one or more of 10 its officers for deposition to explain inconsistencies with regard 11 to Defendant’s corporate structure. 12 20 In November 2012, Tzvetan Petkov, who has also filed two declarations in this case (Doc. #4-2 and #31-2), filed a Periodic Report of a Nonprofit Corporation with the Secretary of State of Texas that used the File Number belonging to IMS-Texas, the precise name configuration as IMS-Georgia, stated the corporation was incorporated in New Jersey (even though IMS-New Jersey has never been authorized to conduct business in Texas), and a Colorado address for the “address of its principal office in the state or country under the laws of which it is incorporated.” See Doc. #37-1, pg. 2:21-3:8 and Exhibit B thereto. The document also listed as Directors known officers of the “American Union” in Georgia, New York, California, and Florida. Id. Despite this document, as noted above, in its filing in this case, IMS-Texas claims its principal place of business is in Huntington Park, CA. 21 (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 10-11, ECF No. 42.) 13 14 15 16 17 18 19 22 Defendants have raised factual challenges to Plaintiff’s 23 jurisdiction and venue allegations. 24 facts bearing on the question of jurisdiction are in dispute, 25 discovery should be allowed.” 26 Ltd., 877 F.2d 793, 801 (9th Cir. 1989); accord Coe v. Philips Oral 27 Healthcare, Inc., Case No. C13-518-MJP, 2014 U.S. Dist. LEXIS 28 19186, at *15 (W.D. Wash. Feb. 14, 2014); Orchid Biosciences, Inc., Generally, where “pertinent Am. W. Airlines, Inc. v. GPA Grp., 14 13cv2741 BEN(RBB) 1 198 F.R.D. at 672. 2 corporations’ principal places of business, the Court grants 3 Plaintiff’s request to depose Henry Dering and the president or 4 secretary of IMS-TX. 5 deposition testimony from Defendant IMS-TX, Myhre described topics 6 to be covered during the deposition and, in effect, requested that 7 IMS-TX designate one of the two individuals as the appropriate 8 person to provide deposition testimony. 9 officer should be deposed. 10 11 3. In light of the factual dispute as to Defendant In Plaintiff’s second notice to take Defendant may select which Requests for production Plaintiff alleges he has propounded written discovery requests 12 on all Defendants that involve “almost exclusively matters 13 regarding the actual location of business operations of each 14 Defendant and addressing connections between the entities relevant 15 to an alter ego analysis.” 16 A. 7, ECF No. 42.) 17 supplement responses to his requests for production of documents. (Pl.’s Mot. Compel Attach. #1 Mem. P. & Myhre moves to compel Defendants to produce or 18 a. IMS-NJ, IMS-TX, IMS-GA, IMS-FL, and IMS-Miami 19 profit and loss statements 20 Plaintiff seeks profit and loss statements for the last ten 21 years from Defendant IMS-NJ (request thirteen), and for the last 22 five years from Defendants IMS-TX (request five), IMS-GA (request 23 five), IMS-FL (request five), and IMS-Miami (request five) to 24 discover “whether [each] corporation maintains independent 25 financial records from the co-defendants.” 26 Resubmission Attach. #1 Ex. A, at 7, ECF No. 44; id. Attach. #2 Ex. 27 B, at 5-6; id. Attach. #3 Ex. C, at 5-6; id. Attach. #4 Ex. D, at 28 5-6; id. Attach. #5 Ex. E, at 5-6.) 15 (Second Notice of Defendants objected to the 13cv2741 BEN(RBB) 1 requests as overbroad, harassing, and not reasonably calculated to 2 lead to the discovery of admissible evidence, and they argued that 3 Plaintiff was seeking private financial information not relevant to 4 jurisdiction, venue, or the substantive action. 5 Resubmission Attach. #1 Ex. A, at 7, ECF No. 44; id. Attach. #2 Ex. 6 B, at 5-6; id. Attach. #3 Ex. C, at 5-6; id. Attach. #4 Ex. D, at 7 5-6; id. Attach. #5 Ex. E, at 5-6.) 8 relevant time period for venue purposes is when the Amended 9 Complaint was filed. (Second Notice of Defendants claim that the (Defs.’ Opp’n Mot. Compel 17, ECF No. 58; see 10 Defs.’ Mot. Protective Order Attach. #1 Mem. P. & A. 12, ECF No. 11 45.) 12 to controverted jurisdictional questions” because they are likely 13 aimed at Plaintiff’s alter ego theory. 14 16-17, ECF No. 58.) 15 reflecting donations to the churches should not be made public. 16 (Id. at 17.) 17 They also argue that the requests are “only tenuously related (Defs.’ Opp’n Mot. Compel In addition, they contend that any information The objection to the time period for profit and loss 18 statements is not persuasive. 19 Technograph Printed Circuits, Ltd. v. Packard Bell Elecs. Corp., 20 290 F. Supp. 308, 326 (C.D. Cal. 1968), is misplaced. 21 id., cites Hoffman v. Blaski, 363 U.S. 335 (1960), a case involving 22 a transfer of venue between districts, as authority for the 23 proposition that “venue, i.e., ‘where [the action] might have been 24 brought,’ is to be determined as of the time of the filing of the 25 actions . . . .” 26 The Defendants’ reliance on Technograph, They read too much into the decision. These Defendants have moved to dismiss for improper venue or 27 to transfer venue [ECF Nos. 31, 32, 34]. 28 matter, the case must be sent to a district “where it might have 16 True, to transfer a 13cv2741 BEN(RBB) 1 been brought” at the time of filing. 2 Supp. 2013); see also Technograph, 290 F. Supp. at 326. 3 before this Court, however, is not whether venue is proper -– that 4 issue will be ultimately decided by Judge Benitez. 5 only decide whether Plaintiff should be allowed to discover facts 6 pertinent to Defendants’ assertions that the case should be 7 dismissed or transferred for improper venue. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 28 U.S.C.A. § 1404(a) (West At issue This Court need For venue purposes, a corporation resides wherever it is subject to personal jurisdiction, i.e. where it has minimum contacts. 28 U.S.C.A. § 1391(c)(2) (West Supp. 2013). “A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, ––– U.S. ––––, 131 S.Ct. 2 846, 2851, 180 L. Ed. 2d 796 (2011). For general jurisdiction to exist, a defendant must engage in “continuous and systematic general business contacts,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1 868, 80 L. Ed.2d 404 (1984), that “approximate physical presence” in the forum state, Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir.2000). “The standard is met only by ‘continuous corporate operations within a state [that are] thought so substantial and of such a nature as to justify suit against [the defendant] on causes of action arising from dealings entirely distinct from those activities.’” King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579(9th Cir.2011) (alterations in original) (quoting International Shoe, 326 U.S. at 318, 66 S. Ct. 154). To determine whether a nonresident defendant's contacts are sufficiently substantial, continuous, and systematic, we consider their “[l]ongevity, continuity, volume, economic impact, physical presence, and integration into the state's regulatory or economic markets.” Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1172 (9th Cir. 2006). 25 26 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223-24 27 (9th Cir. 2011). Thus, the minimum contacts analysis includes an 28 17 13cv2741 BEN(RBB) 1 inquiry into the longevity and continuity of the Defendants’ 2 presence in the forum. 3 See id. (quoting Tuazon, 433 F.3d at 1172). Plaintiff alleges he discovered a "web of corporate entities 4 with almost identical corporate names, overlapping addresses, 5 overlapping personnel, and overlapping use of the employer 6 identification number (EIN) appearing on Plaintiff's W-2 tax forms, 7 making it impossible to even separate out one corporation from 8 another." 9 42.) (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 5, ECF No. In their motions to dismiss, Defendants claimed the Court 10 lacks subject matter jurisdiction because several Defendants –- 11 IMS-NJ, IMS-GA, and IMS-FL –- are citizens of Colorado, where 12 Plaintiff resides. 13 P. & A. 2, ECF 31; Def. [IMS-TX, IMS-GA, IMS-Miami, and IMS-FL’s] 14 Mot. Dismiss Attach. #1 Mem. P. & A. 3, ECF 34.) 15 that the case was brought in an improper forum because IMS-NJ 16 “[h]as [n]o [m]inimum [c]ontacts [w]ith the Southern District of 17 California”; IMS-TX, IMS-GA, IMS-Miami, and IMS-FL “[h]ave [n]o 18 [m]inimum [c]ontacts [w]ith [t]he Southern District of California”; 19 and IMS-GC “does not have the sufficient ‘minimum contacts’ for 20 personal jurisdiction in the Southern District of California.” 21 (See Def. [IMS-NJ’s] Mot. Dismiss Attach. #1 Mem. P. & A. 2, ECF 22 31; Def. [IMS-TX, IMS-GA, IMS-Miami, and IMS-FL’s] Mot. Dismiss 23 Attach. # 1 Mem. P. & A. 3, ECF 34; Def. [IMS-GC’s] Mot. Dismiss 24 Attach. #1 Mem. P. & A. 12, ECF No. 32.) 25 subject matter jurisdiction arguments rely on establishing their 26 separate corporate identities. 27 corporate formalities and can withstand allegations that it is the 28 alter ego of others is an appropriate inquiry. (Def. [IMS-NJ’s] Mot. Dismiss Attach. #1 Mem. They also alleged Defendants’ venue and Whether each Defendant observed 18 Contacts beyond 13cv2741 BEN(RBB) 1 those on the date the Complaint or Amended Complaint was filed are 2 relevant to the tests for personal jurisdiction and venue. 3 b. IMS-NJ document request 14 4 Myhre seeks copies of all Field-Union Officer Election, 5 Secretarial Six-Month Report, Quarterly Church Missionary Report, 6 and Church Membership List reports prepared by, submitted to, or 7 copied to, Defendant IMS-NJ from 2008 to the present. 8 Compel Attach. #1 Mem. P. & A. 14, ECF No. 42; Second Notice of 9 Resubmission Attach. #1 Ex. A, ECF No. 44.) (Pl.’s Mot. He alleges that this 10 request encompasses “routine business reports that identify 11 business activity” and that such mandatory records are relevant to 12 both IMS-NJ’s and IMS-GC’s location of activities in the various 13 states. 14 42.) 15 see how these documents relate to plaintiff’s alter-ego theory.” 16 (Defs.’ Mot. Protective Order Attach. #1 Mem. P. & A. 12, ECF No. 17 45.) 18 time frame to analyze venue. 19 (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 14, ECF No. Defendants object to this request, arguing that they “fail to IMS-NJ also argues that the request goes outside the relevant (Id. at 14.) Defendants again cite Technograph Printed Circuits, Ltd. v. 20 Packard Bell Elecs. Corp., 290 F. Supp. at 326, for the proposition 21 that venue is determined as of the time Plaintiff filed the Amended 22 Complaint. 23 for the last six years. 24 is relevant to the determination of citizenship and minimum 25 contacts with this forum. 26 in the pending motions to dismiss, particularly the inconsistent 27 statements relating to Defendant IMS-NJ’s principal place of 28 business, which Plaintiff pointed out in his Ex Parte Application Here, Myhre seeks to discover IMS-NJ’s business reports This inquiry is not overly intrusive and Considering Defendants’ arguments raised 19 13cv2741 BEN(RBB) 1 to Shorten Time [ECF No. 46], the Court concludes that Plaintiff 2 may seek the production of IMS-NJ’s business records specified in 3 request fourteen. 4 c. 5 IMS-NJ document request 15 Plaintiff requested from Defendant IMS-NJ a document submitted 6 to the Department of Homeland Security in 2007 describing the 7 church organization, specifically, “relating to visa applications 8 for Neptali Acevedo and/or Humberto Ajucum describing the details 9 of the International Missionary Society Seventh Day Adventist 10 Church Reform Movement organization.” 11 #1 Mem. P. & A. 14, ECF No. 42.) 12 to third parties regarding the scope and location of activities of 13 the church organization [are] directly relevant to jurisdiction, 14 venue, and alter ego.” 15 (Pl.’s Mot. Compel Attach. Myhre argues that “[s]tatements (Id.) Defendant challenges this request as overly intrusive and 16 argues that there are other methods for Plaintiff to ascertain the 17 church organization. 18 It also claims that this document is not relevant to the disputed 19 jurisdictional issues and goes outside the relevant time period for 20 venue purposes. 21 authority for objections to request fifteen is Technograph Printed 22 Circuits. 23 Defendant’s argument. 24 its principal place of business and the extent of its contacts in 25 California and this district. 26 information IMS-NJ supplied to the Department of Homeland Security 27 in 2007 that describes the church and its activities will be 28 accurate. (Defs.’ Opp’n Mot. Compel 14, ECF No. 58.) (Id.) The only case Defendant IMS-NJ cites as As explained above, the case does not support IMS-NJ has created the dispute concerning Plaintiff reasonably assumes that Given the conflicting assertions by the Defendant, which 20 13cv2741 BEN(RBB) 1 are now the subject of a Rule 11 Motion brought by Plaintiff [ECF 2 No. 62], Defendant IMS-NJ must produce the document described in 3 request for production fifteen. 4 5 d. IMS-NJ document requests 17, 18, and 21 IMS-NJ objected to Myhre’s requests for production of 6 documents identifying the location of any bank accounts held 7 directly or indirectly by IMS-NJ in California (request seventeen), 8 and documents disclosing identifying information for all real 9 property in California in which IMS-NJ held a beneficial interest 10 over the last ten years (request eighteen). 11 Compel 14-16, ECF No. 58.) 12 these records are directly relevant to establish IMS-NJ’s presence 13 in California for the purpose of jurisdiction and venue. 14 Mot. Compel Attach. #1 Mem. P. & A. 11-12, ECF No. 42.) 15 (Defs.’ Opp’n Mot. Plaintiff moves to compel, arguing (Pl.’s Defendant claims these requests do “not relate to disputed 16 issues of venue because the parties do not dispute that defendant 17 IMS-New Jersey is a resident of California for venue purposes.” 18 (Defs.’ Opp’n Mot. Compel 15, ECF No. 58.) 19 “southern district” from its statement that it “is a resident of 20 California for venue purposes.” 21 venue is not disputed is irreconcilable with IMS-NJ’s motion to 22 dismiss for lack of subject matter jurisdiction or improper venue; 23 it claims that IMS-NJ “has no minimum contacts in the Southern 24 District of California which would subject it to personal 25 jurisdiction there.” 26 P. & A. 20, ECF No. 31.) 27 Defendant’s contacts with the forum over a span of years; the 28 request is relevant. (See id.) This Defendant omitted The suggestion that (Def. [IMS-NJ’s] Mot. Dismiss Attach. #1 Mem. Plaintiff is entitled to inquire into 21 13cv2741 BEN(RBB) 1 IMS-NJ claims that Plaintiff’s request for bank accounts held 2 indirectly “appears designed to harass church members by inquiring 3 into their private financial affairs.” 4 15, ECF No. 58.) 5 organization has at times held church real property and monies in 6 the name of individuals. 7 Kramer 3, ECF No. 42.) 8 discover church members’ private information; he seeks to ascertain 9 whether Defendant holds an interest in any bank accounts or 10 (Defs.’ Opp’n Mot. Compel Plaintiff alleged that the Defendant church (Pl.’s Mot. Compel Attach. #2 Decl. Thus, Plaintiff’s objective is not to property in California. 11 Defendant also argues that the real property locations are 12 equally available to Plaintiff through searches of public records 13 or the church’s website. 14 58.) 15 public record that are equally accessible to all parties.” 16 Wm. Moore, et al., Moore's Federal Practice, § 34.12[5][b], at 17 34–53 (3d ed. 2013) (footnote omitted). 18 the adverse party may be ordered when it would be excessively 19 burdensome . . . for the requesting party to obtain the documents 20 from the public source rather than from the opposing party.” 21 (footnote omitted). 22 public records Myhre can locate documents showing beneficial 23 interests it held in real property during the last ten years. 24 information is not equally available to Plaintiff. 25 far better position to ascertain the location of records 26 identifying its California property. 27 28 (Defs.’ Opp’n Mot. Compel 16, ECF No. “A court may refuse to order production of documents of 7 James “However, production from Id. Defendant does not identify where in the This IMS-NJ is in a Finally, Defendant objects to the request on the ground that it seeks documents for ten years, an irrelevant time frame. 22 13cv2741 BEN(RBB) 1 (Defs.’ Opp’n Mot. Compel 16, ECF No. 58.) 2 Myhre’s request for all documents over the last ten years relating 3 to work done, contacts made, church services held, or any other 4 presence in the Southern District of California, on the ground of 5 irrelevant time period. 6 contacts analysis required for a venue determination may involve an 7 inquiry into longevity and continuity of Defendant’s presence in 8 the forum. 9 Tuazon, 433 F.3d at 1172). 10 As stated earlier, the minimum Mavrix Photo, Inc., 647 F.3d at 1223-24 (quoting For the reasons described above, the objection is overruled. 11 12 (Id.) IMS-NJ also objected to e. IMS-GA document request 3 Defendant IMS-GA objected to Plaintiff’s request to produce 13 its corporate records reflecting the election of officers or 14 directors since incorporation, arguing that these records are not 15 relevant to the controverted venue issue. 16 Compel 17-18, ECF No. 58.) 17 relate to whether Defendants are alter egos of each other and 18 whether proper corporate formalities have been observed. 19 Mot. Compel Attach. #1 Mem. P. & A. 15, ECF No. 42.) 20 argues that to the extent this information is sought to show that 21 IMS-GA’s directors overlap with other Defendants, the fact is 22 insufficient to allow corporate veil piercing. 23 Compel 18, ECF No. 58.) 24 whether IMS-GA maintained a separate corporate identity, but 25 whether Myhre should be allowed to discover facts related to this 26 issue. 27 28 (Defs.’ Opp’n Mot. Plaintiff claims that the documents (Pl.’s Defendant (Defs.’ Opp’n Mot. The question before this Court is not The Defendant overlooks case law holding that “[a]lter egos are treated as a single entity for purposes of personal 23 13cv2741 BEN(RBB) 1 jurisdiction.” 2 6148 (VM)(MHD), 2012 U.S. Dist. LEXIS 188295, at *47 (S.D.N.Y. July 3 17, 2012). 4 jurisdictional discovery to support an alter ego and agency theory 5 of personal jurisdiction. 6 Mgmt. Grp. LLC, No. 12-04000 SC, 2013 U.S. Dist. LEXIS 1604, at 7 *13-14 (N.D. Cal. Jan. 3, 2013). 8 9 Cardell Fin. Corp. v. Suchodolski Assocs., 09 Civ. Other courts have permitted plaintiffs to take See Circle Click Media LLC v. Regus Defendant IMS-GA’s objections are overruled. Defendant is to produce the records described in request for production three; 10 however, the production may be limited to either the last ten years 11 or since incorporation, whichever is shorter. f. 12 IMS-TX document request 8 13 Defendant IMS-TX objected to Myhre’s request for production of 14 “[a]ll documents reflecting the ownership of property in, ownership 15 or rental of any real estate or meeting space in, employees or 16 agents in, bank accounts held in, beneficial interest, presence in, 17 or any other interaction involving Responding Party and the State 18 of California in the past 10 years, either directly or indirectly.” 19 (Defs.’ Opp’n Mot. Compel 18, ECF No. 58.) 20 request violates Rule 34(b)’s requirement of particularity because 21 it consists of seven distinct requests. 22 IMS-TX claims this (Id. at 18-19.) Rule 34 requires requests for production to “describe with 23 reasonable particularity each item or category of items to be 24 inspected.” 25 is aimed at determining IMS-TX’s ties to California and is 26 reasonably related to disputed venue and jurisdictional issues. 27 The request is not so vague that it would not allow Defendants to 28 determine which documents in their control Plaintiff seeks. Fed. R. Civ. P 34(b)(1)(A). 24 Here, Plaintiff’s request See, 13cv2741 BEN(RBB) 1 e.g., K’napp v. Adams, No. 1:06–cv–01701–LJO–GSA–PC, 2014 WL 2 950353, at *6 (E.D. Cal. Mar. 11, 2014) (denying request for 3 production of “all documents related to Defendants’ affirmative 4 defenses” for failure to comply with Rule 34's particularity 5 requirements). 6 This objection is overruled. Nevertheless, IMS-TX responded to request eight by stating 7 that it “has no documents that are responsive to this request in 8 its possession, custody, or control.” 9 19, ECF No. 58.) (Defs.’ Opp’n Mot. Compel Plaintiff’s motion ignores this response. (See 10 Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 14-15, ECF No. 42.) 11 “This Court cannot compel the production of documents that do not 12 exist.” 13 LEXIS 99905, at *6 (M.D. Pa. July 17, 2013). 14 Compel a further response to request for production number eight to 15 IMS-TX is DENIED. 16 17 Banks v. Beard, Civil No. 3:CV-10-1480, 2013 U.S. Dist. 4. Myhre’s Motion to Interrogatories Plaintiff propounded identical interrogatories to Defendants 18 IMS-TX, IMS-GA, IMS-FL, and IMS-Miami. 19 #1 Mem. P. & A. 16, ECF No. 42; Second Notice of Resubmission 20 Attach. #6 Ex. F, ECF No. 44; id. Attach. #7 Ex. G; id. Attach. #8 21 Ex. H; id. Attach. #9 Ex. I.) 22 provided vague and nonresponsive answers to the questions. 23 a. (Pl.’s Mot. Compel Attach. Myhre argues that Defendants Interrogatory 2 24 Myhre seeks to compel Defendants to provide “proper responses” 25 to interrogatory number two, which asked Defendants IMS-TX, IMS-GA, 26 IMS-FL and IMS-Miami, “Why was the Responding Party created?” 27 (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 16, ECF No. 42.) 28 Defendant’s response to the interrogatory states: 25 Each 13cv2741 BEN(RBB) 1 Objection. This request is not reasonably calculated to lead to the discovery of admissible evidence. It is directed to a church congregation which is not a proper party to this action. Decisions relating to plaintiff at issue in this case were made at the level of the American Union, which is a distinct entity and separately named defendant Seventh-day Adventist Church Reform Movement American Union International Missionary Society, a New Jersey Corporation (“American Union”). The responding party is a local church - a group of members, which, like numerous other local churches throughout the country, exists within the geographical area, namely the United States of America and Puerto Rico, covered by the American Union. Subject to and without waiving any objections, Responding party was created in order to serve the local area with the message of the Church. 2 3 4 5 6 7 8 9 10 (Id.) (citation omitted). Plaintiff asks for clarification of the term “local” as used 11 12 by Defendants in reference to churches and the area they serve. 13 (Id. at 16-17.) 14 “extremely broad” and claim that “it is apparently aimed at proving 15 that these four churches did not have independent reasons for 16 opening, again in furtherance of plaintiff’s alter-ego theory.” 17 (Defs.’ Opp’n Mot. Compel 19, ECF No. 58.) 18 Defendants argue this question is not related to jurisdictional 19 issues, the Court disagrees. 20 motions to dismiss necessarily raise a factual dispute regarding 21 Defendants’ citizenship and contacts with this forum. 22 Defendants’ “[a]nswers must be responsive, complete, and not 23 evasive.” 24 § 33.101, at 33–72 (3d ed. 2013) (footnote omitted) (internal 25 citation omitted). 26 not informative. 27 each. 28 // Defendants argue that this interrogatory is To the extent As discussed earlier, Defendants’ The 7 James Wm. Moore, et al., Moore's Federal Practice, Their common answer to this interrogatory is Plaintiff is entitled to a further response from The Motion to Compel is GRANTED. 26 13cv2741 BEN(RBB) 1 2 b. Interrogatories 4 and 5 In interrogatory number four, Plaintiff asks Defendants IMS- 3 TX, IMS-GA, IMS-FL, and IMS-Miami to describe “the day-to-day 4 activities of Responding Party.” 5 Mem. P. & A. 17, ECF No. 42.) 6 deficiencies in Defendants’ responses to interrogatory four. 7 at 17-18.) 8 answer to the interrogatory. 9 the name, address, and role of any “employees, independent (Pl.’s Mot. Compel Attach. #1 Plaintiff does not address the (Id. Also, it is unclear whether Myhre is seeking a further Interrogatory number five asks for 10 contractors, or other agents that conduct the day-to-day activities 11 . . . .” 12 interrogatory number five to show the location of Defendants’ 13 activities, their principal places of business, and corporate 14 separateness. 15 (Id. at 18.) Plaintiff seeks to compel responses to (Id.) Defendants oppose the request to compel, stating that “[t]he 16 question has nothing to do with whether the defendant corporations 17 have minimum contacts in California.” 18 20, ECF No. 58.) 19 unrelated to plaintiff’s alter-ego allegations because the 20 employees, independent contractors, or other agents that are the 21 subject of this interrogatory by definition would not control the 22 subject corporation.” 23 Cardell, 2012 U.S. Dist. LEXIS 188295, at *47. 24 “[m]inimum contacts of a non-resident employer's agents or 25 employees, including contracts negotiated with or torts committed 26 against residents of the forum state, are imputed to the employer 27 and subject the non-resident employer to local jurisdiction.” 28 Edwards v. Sisto, Nos. C 08–2841 WHA (PR), C 08–2842 WHA (PR), 2011 (Defs.’ Opp’n Mot. Compel They also claim this request is “totally (Id.) Both contentions are incorrect. 27 See Furthermore, 13cv2741 BEN(RBB) 1 U.S. Dist. LEXIS 47745, at *24 (N.D. Cal. Apr. 28, 2011) (citing 2 Ochoa v. Martin & Sons Farms, Inc., 287 F.3d 1182, 1189 (9th Cir. 3 2002). 4 interrogatory five from each Defendant. Plaintiff is entitled to a further response to 5 6 c. Interrogatory 6 Myhre seeks to compel disclosure of tax identification numbers 7 or employer identification numbers used by Defendants IMS-TX, IMS- 8 GA, IMS-FL, and IMS-Miami. 9 A. 18, ECF No. 42.) (Pl.’s Mot. Compel Attach. #1 Mem. P. & Plaintiff claims he discovered through public 10 records “that the same EIN has been used in corporate filings by 11 IMS-Texas, IMS-Miami, and IMS-New Jersey.” 12 oppose this request, arguing that Plaintiff can use the same public 13 records to find EINs used by IMS-TX and IMS-Miami. 14 Mot. Compel 21, ECF No. 58.) 15 an Internal Revenue Service publication which presumably contains 16 the relevant information. (Id.) Defendants (Defs.’ Opp’n By way of example, Defendants cite to 17 Defendants do not contend that Plaintiff’s request for 18 individual tax identification numbers is unduly burdensome. 19 Instead, they assert that the information is equally available to 20 Myhre. 21 (Id.) "A party answering interrogatories has an affirmative duty to 22 furnish any and all information available to the party." 23 v. Smalls, Civil No. 09cv1067 MMA(RBB), 2012 U.S. Dist. LEXIS 24 150312, at *18 (S.D. Cal. Oct. 18, 2012) (quoting 7 James Wm. Moore 25 et al., Moore's Federal Practice § 33.102[1], at 33-72 (3rd ed. 26 2012)). 27 discusses options available to a responding party when the burden Franklin Rule 33(d) of the Federal Rules of Civil Procedure 28 28 13cv2741 BEN(RBB) 1 of answering an interrogatory is substantially the same for the 2 requesting and answering parties. 3 4 5 If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records . . . , and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: 6 (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and 7 8 9 (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. 10 11 Fed. R. Civ. P. 33(d). 12 for objection that the information is equally available to the 13 interrogator or is a matter of public record.’” 14 Johns-Manville, 83 F.R.D. 32, 35 (E.D. Pa. 1979) (quoting 8 Wright 15 & Miller, Federal Practice & Procedure, Civil § 2014 at 111). 16 Accordingly, Defendants’ objection is overruled. 17 answer interrogatory six, or if they can establish that the burden 18 of deriving the answer is substantially the same, they may specify 19 and produce records under Rule 33(d). d. 20 21 Furthermore, “it is ‘not usually a ground Petruska v. Defendants must Interrogatory 7 Plaintiff also asked Defendants IMS-TX, IMS-GA, IMS-FL, and 22 IMS-Miami to identify all officers and directors since the 23 incorporation. 24 No. 42.) 25 jurisdiction or venue issues. 26 No. 58.) 27 period for venue determination. 28 objections are without merit. (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 19, ECF Defendants oppose this request as unrelated to the (Defs.’ Opp’n Mot. Compel 21, ECF They also argue the request goes beyond the relevant time (Id. at 22.) Defendants’ As mentioned before, the issue 29 13cv2741 BEN(RBB) 1 before this Court is not whether venue was proper at the time of 2 filing of the action, but only whether Plaintiff should be allowed 3 to discover facts pertinent to Defendants’ assertions that the case 4 should be dismissed for lack of subject matter jurisdiction, or 5 transferred for improper venue. 6 interrogatory, however, the response may be limited to either the 7 last ten years or since incorporation, whichever is shorter. 8 9 e. Defendants are to answer this Interrogatory 8 Myhre sought to discover all actual office locations of 10 Defendants IMS-TX, IMS-GA, IMS-FL, and IMS-Miami where day-today- 11 activities are carried out. 12 & A. 19, ECF No. 42.) 13 not related to the disputed issues. 14 ECF No. 58.) 15 of public record[,]” and therefore “plaintiff can just as easily 16 discover these documents on his own.” 17 (Pl.’s Mot. Compel Attach. #1 Mem. P. Defendants objected to this interrogatory as (Defs.’ Opp’n Mot. Compel 22, They also argue that “[c]hurch locations are a matter (Id. at 23.) Defendants’ responses to Plaintiff’s interrogatories state 18 that each Defendant has “multiple church locations.” 19 Notice of Resubmission Attach. #6 Ex. F, ECF No. 44; id. Attach. #7 20 Ex. G; id. Attach. #8 Ex. H; id. Attach. #9 Ex. I.) 21 Plaintiff were easily able to discover all the multiple locations, 22 it is not clear how he should ascertain whether Defendants actually 23 carry out their day-to-day activities in any of the locations. 24 Defendants do not explain how the locations of their day-to-day 25 activities are matter of public record. 26 Defendants’ daily activities are relevant to jurisdiction and 27 venue. 28 interrogatory shall be answered. (Second Even if The actual locations of Accordingly, their objections are overruled; the 30 13cv2741 BEN(RBB) 1 2 5. Unopposed requests Plaintiff has requested that Defendants supplement their 3 production and provide the following corporate records: (1) bylaws 4 or governing documents for Defendants IMS-TX, IMS-GA, IMS-FL, and 5 IMS-Miami; (2) articles of incorporation and any amendments for 6 Defendants IMS-FL and IMS-Miami; (3) corporate records reflecting 7 election of directors and/or officers since incorporation for 8 Defendants IMS-TX, IMS-FL, and IMS-Miami; and (4) annual reports 9 filed with any secretary of state since the date of incorporation 10 for Defendants IMS-FL and IMS-Miami. 11 Mem. P. & A. 12, ECF No. 42.) 12 promised, but failed to provide, the responsive documents. 13 (Pl.’s Mot. Compel Attach. #1 Myhre claims that Defendants (Id.) Neither Defendants’ Opposition brief nor their Motion for 14 Protective Order addresses these requests for supplemental 15 production. 16 produce these documents; they do not dispute this contention. 17 Accordingly, Plaintiff’s Motion to Compel production of the 18 corporate documents listed above is GRANTED. Plaintiff represents that Defendants had agreed to 19 B. 20 Defendants seek a protective order under Federal Rule of Civil Motion for Protective Order 21 Procedure 26(c)(1)(B) and (D), arguing that they should not be 22 required to produce Henry Dering or the officers of IMS-TX 23 for deposition, provide any further responses to Plaintiff’s 24 written discovery, or submit disclosures under Rule 26. 25 Mot. Protective Order Attach. #1 Mem. P. & A. 4, ECF No. 45.) 26 Defendants’ Motion for Protective Order mirrors their Opposition to 27 Plaintiff’s Motion to Compel, although it specifically addresses 28 only some of Myhre’s requests. (Defs.’ Defendants seek a protective order 31 13cv2741 BEN(RBB) 1 denying Plaintiff’s request to depose Henry Dering and IMS-TX. 2 (Id. at 8-9, 16-17.) 3 as to this request. 4 For the reasons above, the Motion is DENIED Defendants also ask the Court to deny the following requests 5 for production: 6 years for IMS-NJ, and for the last five years for IMS-TX, IMS-GA, 7 IMS-FL, and IMS-Miami; (2) “[c]opies of all Field-Union Officer 8 Election, Secretarial Six-Month Report, Quarterly Church Missionary 9 Report, and Church Membership List reports prepared by, submitted 10 to, or copied to, Responding Party from 2008 to the present” from 11 Defendant IMS-NJ; (3) a “copy of document submitted by Responding 12 Party in or around June 2007 to Department of Homeland Security 13 relating to visa applications for Neptali Acevedo and/or Humberto 14 Ajucum describing the details of the International Missionary 15 Society Seventh Day Adventist Church Reform Movement organization” 16 from Defendant IMS-AU-NJ; and (4) a “copy of all corporate records 17 reflecting election of directors and/or officers of Responding 18 Party since incorporated” from Defendant IMS-GA. 19 As discussed earlier, Plaintiff is entitled to further responses to 20 the specified requests for production, and the Motion for 21 Protective Order is DENIED as to these. 22 (1) profit and loss statements for the last ten (Id. at 12-14.) Defendants IMS-TX, IMS-GA, IMS-FL, and IMS-Miami seek a 23 protective order with regard to interrogatories two, four, five, 24 six, and seven. 25 interrogatories two, five, and six for the reasons articulated 26 above. 27 interrogatory four; accordingly, Defendants’ request to limit 28 responses to interrogatory four is GRANTED. (Id. at 14-16.) Their request is denied as to Plaintiff is not seeking to compel responses to 32 The Court DENIES 13cv2741 BEN(RBB) 1 Defendants’ request to limit their response to interrogatory seven, 2 except as specified in this Order in connection with Plaintiff’s 3 Motion to Compel. 4 Defendants also ask that the Court bar Plaintiff from 5 propounding further discovery or noticing any further depositions 6 pending a ruling on Defendants’ motions to dismiss. 7 Because there is no indication that Plaintiff intends to propound 8 further discovery, this request is premature. 9 to issue a forward-looking ban at this time. (Id. at 19.) The Court declines Defendants will be 10 able to raise any specific concerns regarding further discovery in 11 the future. 12 IV. CONCLUSION 13 For the reasons stated above, the Court GRANTS in part and 14 DENIES in part Plaintiff’s Motion to Compel Jurisdictional 15 Discovery [ECF No. 42], and GRANTS in part and DENIES in part 16 Defendants’ Motion for Protective Order [ECF No. 45]. 17 are ordered to provide or supplement their discovery responses as 18 described in this Order on or before May 8, 2014. 19 to be taken by May 15, 2014. 20 IT IS SO ORDERED. 21 Dated: April 17, 2014 cc: Depositions are ______________________________ Ruben B. Brooks United States Magistrate Judge 22 23 Defendants Judge Benitez All Parties of Record 24 25 26 27 28 33 I:\Chambers Brooks\CASES\MYHRE2741.13\Order re Motion to Compel JD Discovery 3.wpd 13cv2741 BEN(RBB)

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