Mility v. County of Kern et al

Filing 27

ORDER GRANTING 20 Plaintiff's Motion for an Extension to Serve Defendant Chris Rodriguez and to Conduct Early Discovery, signed by Magistrate Judge Jennifer L. Thurston on 7/31/2017. Motion hearing set for 8/1/2017 at 09:00 AM is VACATED. (Hall, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KERNEL MILITY, Plaintiff, 12 v. 13 14 COUNTY OF KERN, et al., Defendants. 15 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00446 - DAD - JLT ORDER GRANTING PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME TO SERVE DEFENDANT CHRIS RODRIGUEZ, AND TO CONDUCT EARLY DISCOVERY (Doc. 20) Kernel Mility was employed as a maintenance worker by the County of Kern from August 17 18 2015 to August 2016. Plaintiff asserts he suffered discriminatory acts by individuals who were 19 employed as his co-workers, including Chis Rodriguez. (See generally, Doc. 1) Plaintiff seeks an 20 extension of time to serve Mr. Rodriguez with the complaint, and to conduct early discovery to obtain 21 identifying information concerning Mr. Rodriguez from the County. (Doc. 20) No parties have 22 opposed the motion. For the reasons set forth below, Plaintiff’s motion is GRANTED. 23 I. 24 25 26 27 28 Extension of Time for Service Rule 4 of the Federal Rules of Civil Procedure governs the deadlines for service of a complaint upon a defendant, and provides in relevant part: If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 1 1 Fed. R. Civ. P. R. 4(m). Thus, Rule 4 “explicitly provides that the court shall allow additional time if 2 there is good cause for the plaintiff's failure to effect service …, and authorizes the court to relieve a 3 plaintiff of the consequences of an application of this subdivision even if there is not good cause 4 shown.” Fed. R. Civ. P. 4, Advisory Committee’s Note; see also Henderson v. U.S., 517 U.S. 654, 662 5 (1996) (“courts have been accorded discretion” to enlarge the service period, “even if there is no good 6 cause shown”). 7 , Plaintiff initiated this action by filing a complaint on March 28, 2017. (Doc. 1) Pursuant to 8 Rule 4, service was to be completed within ninety days, or no later than June 26, 2017. On June 23, 9 2017, Plaintiff filed the motion now before the Court, requesting “ninety (90) additional days to serve 10 defendant Chris Rodriguez with the summons and complaint.” (Doc. 20 at 1) Plaintiff reports that his 11 attempts to locate Mr. Rodriguez have been unavailing and, as discussed below, believes early 12 discovery is necessary to obtain “the last known address and other identifying information” from the 13 County. (Doc. 20-1 at 1-2) Given the timely request for additional time, as well as Plaintiff’s reported attempts to locate 14 15 Mr. Rodriguez, the Court finds the good cause requirement of Rule 4 is satisfied. 16 II. 17 Early Discovery In general, discovery is not permitted without a Court order before the parties have conferred 18 pursuant to Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 26(d)(1). However, “courts 19 have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the 20 plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia Ins. 21 Co. v., 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing, e.g., Gillespie v. Civiletti, 629 22 F.2d 637, 642 (9th Cir. 1980)). 23 A request for early discovery may be granted when the moving party shows good cause for the 24 discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). First, 25 the plaintiff should “identify the missing party with sufficient specificity such that the Court can 26 determine that defendant is a real person or entity who could be sued in federal court.” Columbia Ins. 27 Co., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express, 556 F.2d 406, 430 n.24 28 (1971) [stating that plaintiffs bear the burden of establishing jurisdictional facts]). In addition, the 2 1 plaintiff must describe “previous steps taken to locate the elusive defendant.” Columbia Ins. Co., 185 2 F.R.D. at 579. Plaintiff has alleged sufficient facts for the Court to determine that Chris Rodriguez is an 3 4 individual who was previously Plaintiff’s co-worker with the County, and is “a real person … who 5 could be sued in federal court.” In addition, Plaintiff’s counsel, Randy Rumph, reports that he 6 informally asked “Mr. James Brannen, the attorney for the County of Kern, if he could obtain Mr. 7 Rodriguez’s last known address.” (Doc. 20-1 at 1) Plaintiff asserts that “Mr. Brannen had indicated 8 he would get back with Mr. Rumph, and Mr. Rumph has heard nothing back from Mr. Brannen.” (Id.) 9 Accordingly, Plaintiff has taken steps to locate Mr. Rodriguez without engaging in formal discovery, 10 but was unsuccessful in his attempts. Given the limited nature of the discovery needed to serve Mr. Rodriguez, the Court finds 11 12 Plaintiff has demonstrated good cause to engage in early discovery to receive identifying information 13 from the County. See Columbia Ins. Co., 185 F.R.D. at 577. 14 III. Conclusion and Order 15 Based upon the foregoing, and good cause appearing, the Court ORDERS: 16 1. GRANTED; and 17 18 Plaintiff’s request for an additional ninety days to serve defendant Chris Rodriguez is 2. Plaintiff’s request for leave to engage in early discovery for the limited purpose of 19 obtaining the last known address and identifying information of Chris Rodriguez from 20 the County is GRANTED. 21 22 23 24 IT IS SO ORDERED. Dated: July 31, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 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?