Lycurgan Inc. v. Jones, No. 3:2014cv00548 - Document 140 (S.D. Cal. 2017)

Court Description: ORDER Denying without Prejudice Plaintiffs 117 Motion to Take Immediate Discovery of the Person(s) Most Knowledgeable at the Bureau of Alcohol, Tobacco, Firearms, and Explosives Regarding Identities of the Unknown Named Defendants. It is ordered that Plaintiff has not shown good cause for an order allowing him to proceed with discovery on an expedited basis. Signed by Magistrate Judge Karen S. Crawford on 6/21/2017. (dxj)
Download PDF
Lycurgan Inc. v. Jones Doc. 140 jgstea »ras w .m JUN 2 2 201? 1 CLERK. U.S. DISTRICT COURT o f Ca l if o r n ia BY r f d epu t y j 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 Case No.: 14CV548-JLS-BGS LYCURGAN, INC., a California corporation, d/b/a/ ARES AMOR, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO TAKE IMMEDIATE DISCOVERY OF PERSON(S) MOST KNOWLEDGEABLE AT THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES REGARDING IDENTITIES OF UNKNOWN NAMED DEFENDANTS Plaintiff, 13 14 v. 15 EARL GRIFFITH, an individual, UNKNOWN NAMED TECHNOLOGIST, an individual UNKNOWN NAMED AGENTS I-VII individuals, and DOES 1-X, in their individual capacities, 16 17 18 Defendants. 19 [Doc. No. 117] 20 21 22 23 24 25 26 Presently before the Court is plaintiffs ex parte Motion to Take Immediate Discovery From the Person(s) Most Knowledgeable at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“BATFE”) Regarding the Identities of the Unknown Named Defendants in this case (“Motion”). [Doc. No. 117.] Also before the Court is defendants’ Opposition to the Motion [Doc. No. 131] and plaintiffs Reply in Support of the Motion [Doc. Nos. 132-1; 134]. 27 28 l 14CV548-JLS-BGS 1 Specifically, plaintiff seeks to conduct immediate discovery by serving the Proposed 2 Notice of Deposition and Request for Production of Documents “on the person(s) most 3 knowledgeable at the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE or 4 the Agency) prior to a conference of the parties required by Federal Rule of Civil 5 6 Procedure 26(f) in order to leam the identities of Defendants (1) Unknown Named 7 capacities (the ‘Unknown Named Defendants’) and to serve them with process.” [Doc. 8 9 No. 117-3, at pp. 10, 34.] Plaintiff asserts that the information sought is necessary “in 10 he will “suffer undue prejudice without such discovery in the form of dismissals and 11 delays from suit.” Id. For the reasons provided below, the Court denies without prejudice 12 plaintiffs Motion. 13 14 Technologist, (2) Unknown Named Agents I-VII, and (3) Does I-XI, in their individual order to amend its pleadings to name the Unknown Named Defendants” and contends that I . FAC TU AL AN D PR O C ED U R AL BAC KG R O U N D On March 11, 2014, plaintiff filed a Complaint, seeking a declaratory judgment that 15 its “EP Arms unfinished lower receiver is not a firearm,” a temporary restraining order 16 (“TRO”), and injunctive relief forbidding the BATFE from seizing plaintiffs unfinished 17 lower receivers and customer list. [Doc. Nos. 1, 2.] The same day, the Court granted 18 plaintiffs request for a TRO. [Doc. No. 4.] On March 14, 2014, the Court clarified that 19 the TRO did not enjoin defendants from lawfully seizing evidence and contraband pursuant 20 to a valid search warrant. [Doc. No. 6.] 21 After the issuance and execution of a search warrant in which BATFE agents seized 22 property from four of plaintiffs facilities, plaintiff filed a First Amended Complaint 23 (“FAC”) on December 17, 2014, alleging First, Second, Fourth and Fifth Amendment 24 violations. [Doc. No. 42.] Plaintiff brought its FAC against B. Todd Jones in his official 25 capacity as Director of the BATFE. Id. The FAC also named the following individual 26 defendants: Earl Griffith, Unknown Named Technologist, Unknown Named Agents I-VII, 27 and Does I-X. Id. On November 19, 2015, the Court dismissed without prejudice 28 plaintiffs first, fourth, eighth, and ninth claims against Defendant Jones under both Federal 2 14CV548-JLS-BGS 1 Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Doc. No. 106.] On July 5,2016, the Court 2 issued an Order Directing Plaintiff to Either File a Second Amended Complaint or Face 3 Involuntary Dismissal of Action for Failure to Prosecute noting that “[i]n the more than 4 seven months since [the Court’s Order at Doc. No. 106], Plaintiff has taken no further 5 action in this case.” [Doc. No. 108, at p. 1.] The Court cited Federal Rule of Civil 6 Procedure 41(b) and gave plaintiff thirty (30) days to file a second amended complaint. Id. 7 at p. 2. 8 On August 5, 2016, plaintiff filed a Second Amended Complaint (“SAC”). [Doc. 9 No. 109.] Plaintiff brought its SAC against Earl Griffith, in his individual capacity, and 10 the Unknown Named Defendants, in their individual capacities. Id. On February 28,2017, 11 defendants filed a Motion to Dismiss as to Mr. Griffith on the following grounds: (1) 12 plaintiff cannot establish personal jurisdiction over Mr. Griffith; (2) plaintiff did not timely 13 serve Mr. Griffith (citing Federal Rule of Civil Procedure 4(m)); (3) plaintiffs SAC does 14 not state a plausible claim for relief against Mr. Griffith; and (4) Mr. Griffith is entitled to 15 qualified immunity. [Doc. No. 115-1.] On May 30, 2017, defendants also filed a Motion 16 to Dismiss Unknown Named Defendants under Federal Rule of Civil Procedure 4(m) and 17 12(b)(5), contending that the Rule 4(m) deadline expired in this case more than two years 18 ago, and plaintiff has neither applied for nor obtained an extension. [Doc. No. 126-1.] Both 19 of defendants’ Motions to Dismiss are currently pending before Judge Sammartino. 20 21 II. LEGAL STANDARD FOR EXPEDITED DISCOVERY Discovery is generally not permitted without a court order before the parties have 22 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed.R.Civ.P. 26(d)(1). Courts 23 in the Ninth Circuit generally grant requests for expedited discovery when the moving party 24 shows good cause. Semitool, Inc. v. Tokyo Elec. Am. Inc., 208 F.R.D. 273, 275-276 (N.D. 25 Cal. 2002). “Good cause may be found where the need for expedited discovery, in 26 consideration of the administration of justice, outweighs the prejudice to the responding 27 party. [Citation omitted.] In determining whether there is good cause to allow expedited 28 discovery to identify doe defendants, courts consider factors including whether: (1) the 3 14CV548-JLS-BGS 1 plaintiff can identify the missing party with sufficient specificity such that the Court can 2 determine that defendant is a real person or entity who could be sued in federal court; (2) 3 the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the 4 plaintiffs suit against defendant could withstand a motion to dismiss; and (4) the plaintiff 5 has demonstrated that there is a reasonable likelihood of being able to identify the 6 defendant through discovery such that service of process would be possible.” Columbia 7 Ins. Co. v., 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). 8 9 10 11 III. DISCUSSION A. Plaintiffs Argument Plaintiff argues at length in the Motion about the facts which plaintiff establish good cause to take early discovery, including: (1) how the defendants are real persons subject to 12 a lawsuit whom plaintiff has identified with specificity; (2) the steps taken to serve the 13 Unknown Named Defendants; (3) the claims against the Unknown Named Defendants are 14 not subject to dismissal; and (4) that plaintiff will likely identify the Unknown Named 15 Defendants through what plaintiff contends is narrowly targeted discovery. [Doc. No. 11716 3, at pp. 17-33.] Further, plaintiffs counsel contends in his Declaration attached to the 17 Reply in Support of the Motion as follows: 18 19 20 21 22 23 24 25 26 27 28 Plaintiff seeks narrowly tailored discovery to obtain the names of the Unknown Named Defendants who participated in a specific event: the raids on [p]laintiff s four facilities on March 15, 2014, as well as those individuals who were responsible for obtaining the search warrant and its supporting affidavit. The only step left in obtaining the names of the Unknown Named Defendants is to ask for their identities, to which the person(s) most knowledgeable at the Bureau of Alcohol, Tobacco, Firearms, and Explosives should have access. Good faith responses to the proposed deposition topics and requests for production of documents should reveal the requested names and identities. The proposed subpoena to testify at a deposition in a civil action for the person most knowledgeable at the BATFE, and request for production of documents, is attached as Exhibit D [to McMillan’s Declaration for Reply in Support of the Motion]. 4 14CV548-JLS-BGS 1 2 3 4 5 6 7 8 9 10 11 12 [Doc. No. 132-1, at p. 13.] Plaintiffs initial proposal to conduct immediate discovery was to serve the Proposed Notice of Deposition and Request for Production of Documents on the person(s) most knowledgeable at the BATFE, which are attached to the Motion as Exhibit G. [Doc. No. 117-3, at p. 34.] However, in the Reply, plaintiff changed its proposed method of obtaining the discovery sought in response to an argument made by the defendant detailed below. [Doc. No. 132-1, at p. 8; see also Doc. No. 131, at pp. 9-10]. Specifically, in the Reply, plaintiff “respectfully requests that the Court allow Plaintiff to substitute the proposed Notice of Deposition for a Rule 45 subpoena to the BATFE, attached as Exhibit D to Scott A. McMillan’s supporting declaration.” [Doc. No. 132-1, atp. 8.] B. Defendants’Arguments 13 Defendants make four general arguments in the Opposition to plaintiffs Motion. 14 [Doc. No. 131, at pp. 4-10.] First, defendants assert that the Court should deny plaintiffs 15 Motion until Judge Sammartino rules on defendants’ pending Motion to Dismiss for failure 16 to prosecute. [Doc. No. 131, at p. 4 {See, e.g., Berlin Media Art v. Does 1-654, Case. No. 17 11-03770, 2001 WL 36383080, at *4 (N.D. Cal. Oct. 18, 2011) (denying motion for 18 expedited discovery into the identity of anonymous Doe defendants because “Plaintiffs 19 motion of expedited discovery has failed to demonstrate that the complaint could withstand 20 a motion to dismiss.”).] Defendants contend that plaintiff “took no action in this case to 21 identify and serve the Unknown [Named] Defendants for 2 14 years after naming these 22 Defendants in the FAC filed on December 17, 2014.” [Doc. No. 131, at p. 4.] Defendants 23 argue that plaintiff failed to meet the requirements of Federal Rule of Civil Procedure 4(m), 24 to identify and serve these defendants within 120 days, or show good cause for an 25 26 extension. Id. Second, defendants contend that if the pending Motion to Dismiss for Failure to 27 Prosecute [Doc. No. 126] is granted, then the instant discovery Motion will be moot. [Doc. 28 No. 131, at p. 5.] However, if the Motion to Dismiss is denied, then defendants contend 5 14CV548-JLS-BGS 1 that a renewed meet and confer will be more productive than in the instant procedural 2 posture. Defendants highlight that one of the objections raised in the meet and confer in 3 connection with the instant Motion was “that the time for serving the Unknown [Named] 4 Defendants] under Fed. R. Civ. P. 4(m) expired long ago.” Id. (internal citation omitted). 5 Defendants argue that the Court’s ruling on this same issue in the pending Motion to 6 Dismiss will inform this objection. Id. 7 Third, defendants argue that the scope of the discovery sought by plaintiff exceeds 8 what is necessary to identify the Unknown Named Defendants. [Doc. No. 131, at p. 5.] 9 Plaintiffs proposed Notice of Deposition would require production of multiple witnesses 10 to testify about ten different topics. Id. at p. 6. Further, the proposed Notice of Deposition 11 includes a “lengthy Request for Production of Documents with three pages of instructions 12 and definitions, and fifteen Requests for Production of Documents.” [Doc. No. 131, at p. 7 13 14 15 16 17 18 19 20 (internal citation omitted).] Specifically, defendants contend: [T]he discovery that Plaintiff actually seeks permission to conduct against ATF is not ‘limited solely to discovery that would aid in identifying the Unknown Named Defendants,’ as Plaintiffs Ex Parte Application represents. Instead, Plaintiff seeks discovery bearing on the merits of its case (see especially Request for Production Nos. 11-14), and expressly demands production of attorney-client communications (see Request for Production No. 12). The breadth of this discovery and the burden that it will impose on [BATFE] far exceeds what is necessary and proportionate to accomplish the limited purpose of identifying the Unknown Defendants. 21 Id. at p. 9 (internal citations omitted). 22 23 24 25 Finally, defendants contend that plaintiffs initial proposal of serving a Notice of Deposition and Request for Production of Documents on the person(s) most knowledgeable at the BATFE, attached as Exhibit G to the Motion “would have no legal effect” because 26 27 28 6 14CV548-JLS-BGS 1 BATFE is not a party to this case.1 [Doc. No. 131, at p. 9.] Defendants assert that a Rule 2 45 subpoena is required to obtain testimony and documents from third parties. Id. (internal 3 citation omitted). In response to this argument, in the Reply, plaintiff requests that the 4 Court allow plaintiff to substitute the proposed Noticed of Deposition for a Rule 45 5 subpoena to the BATFE, attached as Exhibit D to Scott A. McMillan’s declaration. [Doc. 6 No. 132-1, at p. 8.] C. Analysis 7 8 Based on a review of plaintiffs moving papers, it is apparent that it would be overly 9 burdensome at this early stage of the litigation for defendants and/or third parties to be 10 ordered to provide plaintiff with access to the information that plaintiff now seeks. 11 Contrary to plaintiffs representations, the expedited discovery sought here is not narrowly 12 tailored and seeks far more than the minimum amount needed to identify the Unknown 13 Named Defendants. 14 For example, the proposed Notice of Deposition would require a witness to testify 15 about topics that go well beyond the identity of the Unknown Named Defendants, including 16 but not limited to the following: (1) the identities and contact information for all BATFE 17 personnel responsible for forming the affidavit; (2) the identities and contact information 18 for all BATFE personnel involved in advising on the legal grounds for the formation of the 19 affidavit and search warrant; (3) the identities and contact information for all BATFE 20 personnel who were custodians of plaintiffs inventory as described in the SAC 21 79-82, 134, 144, and 164, including but not limited to, business documents [SAC ^ 80], 22 contents of plaintiffs safe [SAC 23 12, 63, 81], 5,804 unfinished polymer lower receivers [SAC f 82], plaintiffs “Rudius” unfinished pistol frames [SAC ^ 134], plastic bins [Id.], and 24 customer list [SAC Tf 144]; (4) communications regarding the determination that 80% of 25 unfinished AR-15 lower receivers were classified as a “firearm” as applied to plaintiff; and, 26 27 28 i BATFE was dismissed from this case on November 19,2015 and is not a named defendant in the instant SAC. [Doc. Nos. 106, 109.] 7 14CV548-JLS-BGS 1 (5) the identities and contact information for all custodians of all documents pertaining to 2 the above-listed topics/requests [Doc. No. 131, at pp. 6-7]. Similarly, almost all of the 3 fifteen requests for production of documents proposed by plaintiff are overbroad and go to 4 the merits of the case. Id. at pp. 8-9 (see, e.g., RFP No. 13 seeking “all documents relating 5 to the search warrant” and RFP No. 14 seeking “all documents relating to the affidavit”). 6 Plaintiff argues that “injustice would prevail if [pjlaintiff s proposed Motion is 7 denied, as [p]laintiff has no other recourse to proceed in this case than to take early 8 discovery.” [Doc. No. 132-1, at p. 7.] Further, plaintiff argues that its requests are “made 9 so that it may determine the identities of the unknown, named defendants, as well as Does 10 who should be added to the case based on the allegations and those individuals involved in 11 the raid and events leading up to them.” Id. at p. 8. 12 Notwithstanding plaintiffs argument, there is no suggestion that the time necessary 13 to narrow the issues in the case through the currently pending Motions to Dismiss made 14 pursuant to Federal Rule of Civil Procedure 12(b) will make it difficult or impossible for 15 plaintiff to obtain access to the discovery he seeks in the normal course. In fact, the 16 defendants have raised a legal challenge to plaintiffs SAC contending that the Federal 17 Rule of Civil Procedure Rule 4(m) deadline expired more than two years ago, and plaintiff 18 has neither applied for nor obtained an extension. [Doc. No. 126-1, at p. 2.] Therefore, the 19 Court should first be given an opportunity to decide defendants’ pending Motions to 20 Dismiss, which appear to raise potentially valid legal challenges, before considering 21 plaintiffs overarching discovery requests. If the Court denies the pending Motions to 22 Dismiss, such rulings will necessitate renewed meet and confer sessions between the 23 parties regarding the scope of necessary discovery. After discovery commences in the 24 normal course, plaintiff will have an opportunity to serve subpoenas and written discovery 25 / / 26 / / 27 / / 28 / / 8 14CV548-JLS-BGS 1 requests on defendants and third parties, and to then, if necessary, request leave to amend 2 his SAC to add new parties that could not have been discovered earlier.2 3 Accordingly, under the circumstances presented, including the overbroad nature of 4 plaintiffs’ discovery demands and the procedural posture of the case, the Court finds that 5 plaintiff has not established good cause for expedited discovery. 6 IV. CONCLUSION 7 Based on the foregoing, the Court finds that plaintiffs Motion [Doc. No. 117] must 8 be DENIED without prejudice. Plaintiff has not shown good cause for an order allowing 9 him to proceed with discovery on an expedited basis. 10 11 IT SO ORDERED. Dated: June/V, 2017 12 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Under Federal Rule of Civil Procedure 15(a)(2), a complaint may be amended after responsive pleadings have been filed “with the court’s Leave.” Fed. R. Civ. P. 15(a)(2) “The Court should freely give leave when justice so requires.” Id. Even after the Court enters a Scheduling Order under Federal Rule of Civil Procedure 16(b) and sets a deadline for amending the pleadings, the deadline can be modified upon a showing of “good cause.” Fed. R. Civ. P. 16(b). “Rule 16’s ‘good cause’ standard focuses on the diligence of the party seeking amendment.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). 9 14CV548-JLS-BGS