Aguirre et al v. A.P. Green Industries Incorporated et al
Filing
7
ORDER denying without prejudice #5 Plaintiff's Motion to Compell. Signed by Magistrate Judge Lawrence O Anderson on 9/30/11.(LSP)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
11
12
13
14
Linda Aguirre and Norma J. Garcia, as)
)
surviving children of Johnny Griego,
)
)
Plaintiffs,
)
)
vs.
)
)
A.P. Green Industries, Inc., et al.,
)
)
Defendants.
)
No. CV-11-1907-PHX-LOA
ORDER
15
This matter is before the Court on Plaintiff's Motion for Expedited Discovery, doc.
16
5, seeking an order authorizing Plaintiffs to immediately serve discovery requests on non-
17
parties.
18
I. Legal Standard
19
Federal Rule of Civil Procedure 26 provides that “[a] party may not seek discovery
20
from any source before the parties have conferred as required by Rule 26(f), except in a
21
proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by
22
these rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1) (emphasis added). The
23
moving party must show good cause “to warrant the granting of any expedited discovery prior
24
to the Rule 26(f) scheduling conference.” Yokohama Tire Corp. v. Dealers Tire Supply, Inc.,
25
202 F.R.D. 612, 614 (D.Ariz. 2001); accord Semitool, Inc. v. Tokyo Electron Am., Inc., 208
26
F.R.D. 273, 275 (N.D.Cal. 2002).
27
28
1
2
II. Analysis
Plaintiffs seek a court order pursuant to Rule 26(d)(1), but fail to show good cause
3
why the Court should grant its motion. Good cause exists “where the need for expedited
4
discovery, in consideration of the administration of justice, outweighs the prejudice to the
5
responding party.” Semitool, 208 F.R.D. at 276 (recognizing “that good cause is frequently
6
found in cases involving claims of infringement and unfair competition”); Best Western Int’l.,
7
Inc. v. Doe, 2006 WL 2091695, at * 1 (D.Ariz., July 25, 2006) (permitting expedited discovery
8
to identify unknown defendants). Plaintiffs’ only argument that the Court should grant their
9
Motion is that they have exercised “diligent efforts” thus far without ascertaining some
10
important information. (Doc. 5 at 3) Indeed, parties are expected to be diligent in their efforts.
11
However, Plaintiffs fail to state any reason why their “diligent efforts” outweigh the prejudice
12
to the Defendants.
13
Plaintiffs have filed this motion ex parte, stating only that they mailed a copy of the
14
motion and complaint to counsel for the various Defendants. In other words, Plaintiffs have not
15
yet complied with Rule 4. Ex parte motions are rarely justified. ACE Am. Ins. Co. v. Keiicmiro,
16
2008 WL 2264241, at * 2 (D.Ariz. May 30, 2008) (citing Yokohama, 202 F.R.D. at 613). To be
17
justified, the evidence must show that the moving party’s cause will be irreparably prejudiced
18
if the underlying motion is heard according to regular noticed motion procedures. Id. In ACE
19
American Insurance, the plaintiff requested its motion be granted “[i]n the interests of
20
expeditiously resolving this matter, minimizing unnecessary litigation expenses, and keeping
21
in mind the interests of judicial economy.” Id. The District Judge there found no reason to stray
22
from regular noticed motion procedures and denied the plaintiff’s motion. Id. As with the
23
plaintiff in ACE American Insurance, Plaintiffs here have “offered no evidence to indicate that
24
adherence to the procedures contemplated by Rule 4 of the Federal Rules of Civil Procedure
25
would somehow prejudice [their] case or cause undue expense.” 2008 WL 2264241, at * 2.
26
Morever, the Court is concerned that granting Plaintiffs’ motion at this time might violate Defendants’
27
constitutional due process right to fair notice and an opportunity to be heard.
28
Based on the foregoing,
-2-
1
2
3
IT IS ORDERED that Plaintiff’s Motion to Compel, doc. 5, is DENIED without
prejudice.
Dated this 30th day of September, 2011.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?