Linlor v. JPMorgan Chase & Co. et al, No. 3:2017cv00005 - Document 89 (S.D. Cal. 2018)
Court Description: ORDER Denying 55 Defendant's Ex Parte Application for Order Prioritizing Discovery. Signed by Magistrate Judge Karen S. Crawford on 07/20/2018. (All non-registered users served via U.S. Mail Service)(ajs)
Download PDF
<![CDATA[
Linlor v. JPMorgan Chase & Co. et al Doc. 89 1 2 3 FILED 4 JUL 2 3 2018 5 CLERK, U.S. DISTRICT COURT SOUTHERN DIST CJ OF CALIFORNIA BY . DEPUTY 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES LINLOR, Plaintiff, 12 13 v. 14 CHASE BANKCARD SERVICES, INC.; CHASE BANK USA, NA, 15 16 Defendants. Case No.: 17cv5-WQH(KSC) ORDER RE DEFENDANTS' EX PARTE APPLICATION FOR ORDER PRIORITIZING DISCOVERY [Doc. No. 55] 17 18 19 Before the Court is defendants' Ex Parte Application for Order Prioritizing 20 Discovery [Doc. No. 55] and plaintiffs Objection thereto [Doc. No. 57]. In their Ex Parte 21 Application, defendants request that the Court issue an order staying all further discovery 22 in the case as to plaintiff only until and unless plaintiff supplements his responses to certain 23 discovery requests as required by Federal Rule of Civil Procedure 26(e)(l). [Doc. No. 55, 24 at p. 3.] Although plaintiff filed a document entitled "Plaintiffs Objection to Defendants' 25 Ex Parte Motion," he does not specifically address defendants' request to stay discovery 26 against him until he provides supplemental responses to certain discovery requests. [Doc. 27 No. 57, at pp. 1-18.] Instead, plaintiff complains that defendants' Ex Parte Application is 28 "defective and improper." [Doc. No. 57, at p. 4.] He also argues that defendants are 17cv5-WQH(KSC) Dockets.Justia.com 1 withholding discovery they should have produced in response to his discovery requests; 2 have refused to cooperate in discovery or appear for a deposition; and should be sanctioned. 3 [Doc. No. 57, at pp. 1-2, 4-8.] 4 For the reasons outlined more fully below, the Court finds that defendants' Ex Parte 5 Application must be DENlED for failure to: (1) establish good cause; (2) follow established 6 rules and procedures; and (3) satisfy the meet and confer requirements. However, the Court 7 will forewarn plaintiff about his duty to supplement his discovery responses in a timely 8 manner as required by Federal Rule of Civil Procedure 26(e)(l). 9 Background 10 Plaintiff is proceeding in this action pro se. 1 In the First Amended Complaint, 11 plaintiff generally alleges that he was the victim of credit card fraud and reported the 12 fraud to defendants, but defendants failed to remove the fraudulent charges or conduct a 13 reasonable investigation and then reported false and misleading information to credit 14 reporting agencies in violation of the Fair Credit Reporting Act. [Doc. No. 22, at pp. 2-3, 15 9 et seq.] Discussion 16 17 18 I. Meet and Confer Requirements. "On notice to other parties and all affected persons, a party may move for an order 19 compelling disclosure or discovery. The motion must include a certification that the 20 movant has in good faith conferred or attempted to confer with the person or party failing 21 to make disclosure or discovery in an effort to obtain it without court action." 22 Fed.R.Civ.P. 37(a)(l). Local Rules also require parties to meet and confer "concerning 23 all disputed issues" before filing a discovery motion with the Court. CivLR 26.l(a). 24 25 26 27 28 District Courts are obligated to afford a certain amount of leeway to prose litigants and to construe their pleadings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 2 17cv5-WQH(KSC) 1 Local Rule 26. l(a) states as follows: "If counsel have offices in the same county, they 2 are to meet in person. If counsel have offices in different counties, they are to confer by 3 telephone. Under no circumstances may the parties satisfY the meet and confer 4 requirements by exchanging written correspondence." CivLR 26.l(a) (emphasis 5 added). Chambers' Rules for this Court also require the parties to meet and confer "on 6 all issues" before seeking assistance in resolving a discovery dispute. Chambers' Rule 7 V(B). Here, it is apparent that defendants have not satisfied the meet and confer 8 9 requirements with respect to the specific dispute raised in their moving papers. [Doc. No. 10 55, at p. 5; Doc. No. 55-1, at pp. 1-4.] Defendants represent in their moving papers that 11 they met and conferred about other issues, but they did not make any such representation 12 as to the instant dispute about plaintifrs duty to supplement his discovery responses. 13 [Doc. No. 55, at p. 5.] Rather, defendants only represent that they sent a letter to plaintiff 14 via facsimile to let him know they would be filing an Ex Parte Application the next day. 15 [Doc. No. 55, at p. 5.] Accordingly, the Court finds that defendants' Ex Parte 16 Application for Order Prioritizing Discovery must be DENIED for failure to satisfy the 17 meet and confer requirements. 18 II. 19 Defendants' Request (or "Prioritizing Discovery." Defendants argue that the Court should prioritize discovery by: (1) ordering 20 plaintiff to supplement his responses to certain discovery requests within 15 days; and 21 (2) ordering a stay of any other discovery in the case until plaintiff supplements these 22 discovery responses. [Doc. No. 55, at p. 3.] Essentially, the disputed discovery requests 23 ask plaintiff to identify any charges on his credit card statements that he contends are 24 fraudulent and to disclose any supporting documents. [Doc. No. 55, at p. 2.] Defendants 25 contend the relief they seek is appropriate, because there is "temporal urgency such that 26 immediate and irreparable harm will occur ifthere is any delay in obtaining relief." 27 [Doc. No. 55, at pp. 5-6.] Defendants do not state what irreparable harm will occur ifthe 28 Court does not grant their request for relief. [Doc. No. 55, at pp. 6.] Rather, defendants 3 17cv5-WQH(KSC) 1 argue there is "temporal urgency," because plaintiff cannot prevail in the case unless and 2 until he identifies any fraudulent charges on his credit card account. [Doc. No. 55, at 3 p. 6.] 4 "Parties may obtain discovery regarding any non-privileged matter that is relevant 5 to any party's claim or defense and proportional to the needs of the case, considering the 6 importance of the issues at stake in the action, the amount in controversy, the parties' 7 relative access to relevant information, the parties' resources, the importance of the 8 discovery in resolving the issues, and whether the burden or expense of the proposed 9 discovery outweighs its likely benefit." Fed.R. Civ.P. 26(b). "The court may, for good 10 cause, issue an order to protect a party or person from annoyance, embarrassment, 11 oppression, or undue burden or expense, including ... specifying terms, including time 12 and place ... for the disclosure or discovery ...." Fed.R.Civ.P. 26(c)(l)(A). 13 On September 28, 2017, defendants served plaintiff with written discovery 14 requests, and plaintiff responded on October 30, 2017. [Doc. No. 55, at p. 4.] In these 15 discovery requests, defendants sought documents and information from plaintiff 16 identifying any charges on his credit card account that he contends are fraudulent. [Doc. 17 No. 55-1, at pp. 1-3.] However, plaintiffs responses to defendants' discovery requests 18 were somewhat evasive and indicated he did not have enough information to identify any 19 purported fraudulent charges. [Doc. No. 55-1, at pp. 1-3.] Thereafter, on March 9, 2018, 20 defendants produced copies of statements detailing all the charges applied to defendant's 21 credit card account. [Doc. No. 55-1, at p. 3.] 22 On May 15, 2018, defendants filed a Motion for Summary Judgment, arguing that 23 they are entitled to judgment in their favor, because plaintiff has not identified any 24 fraudulent charges on his credit card account, and, as a result, he cannot satisfy his 25 burden of establishing that defendants reported inaccurate, derogatory information to 26 credit reporting agencies. [Doc. No. 70-1, at pp. 5-6.] On May 30, 2018, plaintiff filed 27 an Opposition to defendants' Motion for Summary Judgment, arguing, in part, that the 28 District Court should deny defendants' Motion, because plaintiff has not been given an 4 17cv5-WQH(KSC) 1 opportunity to complete discovery. [Doc. No. 78, at p. 4.] On June 13, 2018, plaintiff 2 filed a second Opposition to defendants' Motion for Summary Judgment. [Doc. No. 83.] 3 In his May 30, 2018 Opposition to defendants' Motion for Summary Judgment, 4 plaintiff argues that the District Court should deny defendants' Motion, because "plaintiff 5 has not been given an opportunity to complete discovery due to defendants' stonewalling 6 and refusals to cooperate .... " [Doc. No. 78, at p. 4.] Plaintiff also complains that 7 defendants are required by law to complete an investigation into any "disputed 8 information," but have not produced the results of an investigation even though e-mails 9 from defendants' representative indicate that an investigation was completed. [Doc. No. 10 78, at pp. 12-13, citing attached e-mails at Doc. No. 78, at pp. 14-15.] In his June 13, 11 2018 Opposition to defendants' pending Motion for Summary Judgment, plaintiff 12 continues to complain that discovery is not yet complete, that defendants have refused to 13 cooperate in discovery, and that certain discovery produced by defendants on CDs is 14 "locked" and "umeadable." [Doc. No. 83, at pp. 2-3, 8-9 et seq.] 15 Based on the foregoing, it is this Court's view that defendants cannot establish good 16 cause to stay discovery against plaintiff until he supplements his discovery responses. If 17 the Court stays discovery as to plaintiff only, it appears that the District Court could be 18 umeasonably delayed in reaching a resolution on the pending Motion for Summary 19 Judgment. In other words, plaintiff has indicated in opposing defendants' Motion for 20 Summary Judgment that he believes defendants are withholding relevant information that 21 will support his allegation that fraudulent charges were posted to his credit card account. 22 Plaintiffs belief may, of course, be incorrect. However, he is entitled to pursue his theory 23 of the case and present his evidence to the District Court in order to oppose defendants' 24 Motion for Summary Judgment but would be unable to do so if discovery is stayed against 25 him. See Fed.R.Civ.P 56(d). Accordingly, the Court finds that defendants' Ex Parte 26 Application for Order Prioritizing Discovery must be DENIED for failure to establish good 27 cause. 28 III 5 l 7cv5-WQH(KSC) 1 III. Plaintifrs Duty to Supplement His Discovery Responses. 2 Defendants' request for an order compelling plaintiff to provide supplemental 3 responses to certain discovery requests is a discovery dispute that should have been raised 4 pursuant to the procedure set forth in Chambers' Rule V. Chambers Rule VI also states 5 that "the Court prefers that all discovery disputes and requests for protective orders or 6 continuances be submitted as joint motions" rather than as ex parte applications or motions. 7 Chambers' Rule V(A) requires the parties to submit discovery disputes in the form 8 of a joint motion. If, as in this case, the dispute involves written discovery requests, 9 Chambers' Rule V(D) also requires the parties to use a specific format to present their 10 respective arguments about a discovery dispute in a single document. Chambers' Rule 11 V(D) further states as follows: 12 13 14 15 16 17 18 19 20 21 A party seeking to bring a discovery dispute before the Court must provide the opposing party a reasonable opportunity to contribute to the joint motion. An ex parte motion or application to compel is only appropriate under circumstances where the opposing party refuses to participate in contributing to a joint motion after a reasonable opportunity has been provided, or if the motion to compel is directed to a non-party. This Court considers a minimum of 5 business days prior to the anticipated filing date of the joint motion to be a reasonable time period for a party to participate meaningfully in the preparation of a joint motion. This means that the party initiating a joint motion to resolve a discovery dispute must provide opposing counsel with a complete draft of the joint motion and any exhibits or supporting declarations at least 5 business days prior to the anticipated filing date. Ex parte motions or applications to compel discovery that do not contain a declaration stating the opposing party has been given a meaningful opportunity to participate in a Joint Motion will be rejected by the Court. 22 23 Chambers' Rule V(D) (emphasis in original). 24 Defendants did not submit their dispute in the form of a joint motion. Nor did 25 defendants submit their dispute in the specific format set forth in Chambers' Rule V(D). It 26 is also apparent based on the papers submitted that defendants submitted their dispute as 27 an ex parte application without making any attempt to obtain plaintiffs cooperation in the 28 preparation and submission of a joint motion. Accordingly, the Court finds that 6 17cv5-WQH(KSC) 1 defendants' Ex Parte Application seeking an order requiring plaintiff to supplement his 2 discovery responses must be DENIED for failure to comply with Chambers' Rule V. 3 Defendants' Ex Parte Application and a supporting Declaration do include argument 4 and information indicating that plaintiff does have a duty to supplement his responses to 5 the following written discovery requests: Defendants' Interrogatorv No. 1 requests "all facts that support [plaintiffs] claims against [defendants] in the [First Amended Complaint]." Plaintiff responded that he "has stated all facts supporting [his] claims in the Court-filed Second Amended Complaint." [Doc. No. 55-1, at pp. 2-3.] 6 7 8 9 Defendants' Document Request No. 1 seeks "all documents that relate to any fraudulent charges [plaintiff] contend[ s] were made on [his] accounts." Plaintiff responded that he "has already provided all documents known to be responsive to defendants at this time." 10 11 12 Defendants' Interrogatorv No. 5 requested that plaintiff"identify all fraudulent charges [that he] contend[s] were made on [his] accounts." Plaintiff responded that he "does not have records of 'all fraudulent charges' as these were not relayed by defendants to plaintiff in a list for plaintiff to review. Defendants solely know all fraudulent charges that they have verbally confirmed as the basis for blocking of plaintiffs credit card." 13 14 15 16 17 18 [Doc. No. 55-1, at p. 2-3.] 2 As noted above, defendants provided plaintiff with copies of statements detailing all 19 20 21 of the charges posted to his credit card account, and, as a result, it is apparent that plaintiff is able to review these charges and provide defendants with supplemental responses to 22 23 2 24 25 26 27 28 The Ex Parte Application indicates defendants would also like supplemental responses to Interrogatory Nos. 4, 6, 7, 8, and 13; Document Request Nos. 2, 3, and 4; and Requests for Admission Nos. 1, 2, and 3. [Doc. No. 55, at p. 3.] However, defendants did not provide the Court with the information required by Chambers' Rule V (i.e., the exact wording of these requests, plaintiffs responses thereto, and any reasons why defendants believe plaintiffs responses to these requests are inadequate and need to be supplemented). As a result, it is unclear whether defendants would be entitled to any supplemental responses as to these requests. 7 l 7cv5-WQH(KSC) 1 these requests. In the interests of judicial efficiency (i.e., the disputed discovery requests 2 are relevant to defendants' pending Motion for Summary Judgment), the Court will 3 forewarn plaintiff about his duty to supplement his discovery responses. 4 specifically forewarned that Federal Rule of Civil Procedure 26(e)(1) states as follows: 5 6 7 8 9 Plaintiff is A party who ... has responded to an interrogatory, request for production, or request for admission-must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect ... ; or (B) as ordered by the court. Fed.R.Civ.P. 26(e)(l) (emphasis added). 10 Here, it is apparent that plaintiffs original responses to Interrogatory Nos. 1 and 5 11 and Document Request No. 1 are now incomplete and incorrect and must be supplemented 12 as required by Rule 26(e)(1 ). 13 statements that set forth all of the charges to his credit card account, plaintiff is obligated 14 to review the charges and identify any specific charges that he believes are fraudulent. In 15 his various filings, plaintiff seems to take the position that he is not required to identify 16 specific charges that he believes are fraudulent, because defendants already have that 17 · information on their own. Because defendants provided plaintiff with copies of Plaintiff also alleges in Exhibit B to the First Amended 18 Complaint that the balance on his credit card account "went from zero to $2,200 almost 19 overnight, with no charges having been made or authorized by the plaintiff." [Doc. No. 20 22, at p. 19 (emphasis added).] However, in response to defendants' discovery requests, 21 plaintiff must identify the specific charges that he believes are fraudulent regardless of 22 whether he believes defendants already have this information. With respect to any 23 charges he believes are fraudulent, plaintiff must also disclose any supporting facts or 24 documents. For example, to the extent plaintiff has boarding passes, plane tickets, hotel 25 bills, or other documents indicating where he was on a particular date that could be used to 26 show that particular account entries are fraudulent, he must produce them. 27 Plaintiff is also forewarned that sanctions may be imposed against him ifhe fails to 28 supplement his responses to defendants' discovery requests as required under Rule 8 l 7cv5-WQH(KSC) 1 26(e)(l). Fed.R.Civ.P. 37(c)(l)(A)-(C). In this regard, Federal Rule of Civil Procedure 2 37(c)(l) states in part as follows: 3 4 5 6 7 8 9 10 11 If a party fails to provide information or identify a witness as required by Rule 26( a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial unless the failure was substantially justified or is harmless. In addition to or instaed of this sanctions, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including [the evidentiary or terminating sanctions] listed in Rule 3 7(b )(2 )(A)(i)-(vi). 12 13 Fed.R.Civ.P. 37(c)(l). 14 In sum, plaintiff is specifically forewarned that the above-referenced discovery 15 requests and Rule 26(e)(l) require him to review all of the account statements itemizing 16 all of the charges on his credit card account that were produced to him by defendants 17 and to specifically identify each account entry by date and amount that he believes is 18 fraudulent. As to each entry that plaintiff believes is fraudulent, he must also state any 19 supporting facts and produce any supporting documents. Ifplaintifffails to do so, he is 20 further forewarned that monetary or other sanctions may imposed against. 21 Since Rule 26(e)(l) requires parties to supplement their discovery responses "in a 22 timely manner," the Court finds that any supplemental responses provided by plaintiff on 23 or before August 3, 2018 will be considered timely. Fed.R.Civ.P. 26(e)(l) (emphasis 24 added). If plaintiff fails to provide adequate supplemental responses by August 3, 2018, 25 defendants may file a motion for sanctions no later than August 13, 2018. 26 Conclusion 27 Based on the foregoing, IT IS HEREBY ORDERED that defendants' Ex Parte 28 Application For Order Prioritizing Discovery is DENIED for failure to establish good 9 17cv5-WQH(KSC) 1 cause; failure to satisfy the meet and confer requirements; and failure to follow Chambers' 2 Rule V. However, as outlined above, plaintiff is forewarned that he must supplement his 3 responses to Interrogatory Nos. 1 and 5 and Document Request No. 1 "in a timely manner" 4 (i.e., no later than August 3, 2018). Fed.R.Civ.P. 26(e)(l). 5 6 7 8 IT IS SO ORDERED. Dated: July J-&, 2018 o ·aren S. Crawford United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 17cv5-WQH(KSC)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
