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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Linda Aguirre and Norma J. Garcia, as)
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surviving children of Johnny Griego,
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Plaintiffs,
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vs.
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A.P. Green Industries, Inc., et al.,
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Defendants.
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No. CV-11-1907-PHX-LOA
ORDER

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This matter is before the Court on Plaintiff's Motion for Expedited Discovery, doc.

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5, seeking an order authorizing Plaintiffs to immediately serve discovery requests on non-

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parties.

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I. Legal Standard

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Federal Rule of Civil Procedure 26 provides that “[a] party may not seek discovery

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from any source before the parties have conferred as required by Rule 26(f), except in a

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proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by

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these rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1) (emphasis added). The

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moving party must show good cause “to warrant the granting of any expedited discovery prior

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to the Rule 26(f) scheduling conference.” Yokohama Tire Corp. v. Dealers Tire Supply, Inc.,

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202 F.R.D. 612, 614 (D.Ariz. 2001); accord Semitool, Inc. v. Tokyo Electron Am., Inc., 208

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F.R.D. 273, 275 (N.D.Cal. 2002).

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II. Analysis
Plaintiffs seek a court order pursuant to Rule 26(d)(1), but fail to show good cause

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why the Court should grant its motion. Good cause exists “where the need for expedited

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discovery, in consideration of the administration of justice, outweighs the prejudice to the

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responding party.” Semitool, 208 F.R.D. at 276 (recognizing “that good cause is frequently

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found in cases involving claims of infringement and unfair competition”); Best Western Int’l.,

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Inc. v. Doe, 2006 WL 2091695, at * 1 (D.Ariz., July 25, 2006) (permitting expedited discovery

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to identify unknown defendants). Plaintiffs’ only argument that the Court should grant their

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Motion is that they have exercised “diligent efforts” thus far without ascertaining some

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important information. (Doc. 5 at 3) Indeed, parties are expected to be diligent in their efforts.

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However, Plaintiffs fail to state any reason why their “diligent efforts” outweigh the prejudice

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to the Defendants.

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Plaintiffs have filed this motion ex parte, stating only that they mailed a copy of the

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motion and complaint to counsel for the various Defendants. In other words, Plaintiffs have not

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yet complied with Rule 4. Ex parte motions are rarely justified. ACE Am. Ins. Co. v. Keiicmiro,

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2008 WL 2264241, at * 2 (D.Ariz. May 30, 2008) (citing Yokohama, 202 F.R.D. at 613). To be

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justified, the evidence must show that the moving party’s cause will be irreparably prejudiced

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if the underlying motion is heard according to regular noticed motion procedures. Id. In ACE

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American Insurance, the plaintiff requested its motion be granted “[i]n the interests of

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expeditiously resolving this matter, minimizing unnecessary litigation expenses, and keeping

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in mind the interests of judicial economy.” Id. The District Judge there found no reason to stray

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from regular noticed motion procedures and denied the plaintiff’s motion. Id. As with the

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plaintiff in ACE American Insurance, Plaintiffs here have “offered no evidence to indicate that

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adherence to the procedures contemplated by Rule 4 of the Federal Rules of Civil Procedure

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would somehow prejudice [their] case or cause undue expense.” 2008 WL 2264241, at * 2.

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Morever, the Court is concerned that granting Plaintiffs’ motion at this time might violate Defendants’

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constitutional due process right to fair notice and an opportunity to be heard.

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Based on the foregoing,
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IT IS ORDERED that Plaintiff’s Motion to Compel, doc. 5, is DENIED without
prejudice.
Dated this 30th day of September, 2011.

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