Roadrunner Intermodal Services, LLC v. T.G.S. Transportation, Inc.

Filing 5

ORDER Denying Ex Parte Application for Expedited Discovery without prejudice signed by Magistrate Judge Barbara A. McAuliffe on 8/8/2017. (Valdez, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 ROADRUNNER INTERMODAL SERVICES, LLC, Plaintiff, 13 ORDER DENYING EX PARTE APPLICATION FOR EXPEDITED DISCOVERY WITHOUT PREJUDICE v. 14 15 Case No. 1:17-cv-01056-DAD-BAM T.G.S. TRANSPORTATION, INC., Defendant. 16 17 18 Plaintiff Roadrunner Intermodal Services, LLC (“Plaintiff” or “Roadrunner”) filed this 19 action against Defendant T.G.S. Transportation, Inc. (“Defendant”), on August 7, 2017. (Doc. 1). 20 The same day, Plaintiff filed an ex parte motion seeking expedited discovery of Defendant and 21 Roadrunner former employee, Jeffrey Cox’s (“Cox”), alleged wrongful solicitation of 22 Roadrunner’s employees, contractors, drivers and customers in violation of a non-competition, 23 non-solicitation, and confidential information agreement entered into by Plaintiff and Cox. (Doc. 24 2). 25 Plaintiff has not filed a proof of service in this action and Defendant has not appeared. 26 While Plaintiff’s supporting declaration suggests that it served a copy of the complaint on 27 Defendant, Plaintiff has not filed a return of service or an executed summons with respect to 28 service of the complaint nor the instant ex parte motion. See Declaration of Michael D. Lane 1 1 (“Lane Decl.”), (Doc. 2-1 at 2, ¶6). Plaintiff fails to address that the Court currently lacks 2 personal jurisdiction over defendant. 3 Until such time as Plaintiff properly serves the summons and complaint on the 4 Defendant, this Court lacks jurisdiction over the Defendant and cannot consider the merits of 5 Plaintiff’s ex parte motion. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 6 840 F.2d 685, 688 (9th Cir. 1988) (“A federal court does not have jurisdiction over a defendant 7 unless the defendant has been served properly under Fed.R.Civ.P. 4”); see also Omni Capital 8 Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987) 9 (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural 10 requirement of service of summons must be satisfied”). 11 Consequently, the Court denies Plaintiff’s ex parte motion without prejudice to renewal 12 upon proper service of the summons and complaint on Defendant. Plaintiff is directed to serve 13 the summons and complaint on Defendant and to file proofs of service indicating that it has 14 properly served Defendant. Once this is done, Plaintiff may file a new request for expedited 15 discovery or for other requested relief. With any requested relief, that the Court will consider 16 appropriate Due Process safeguards. 17 18 19 IT IS SO ORDERED. Dated: /s/ Barbara August 8, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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