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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROADRUNNER INTERMODAL
SERVICES, LLC,
Plaintiff,

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ORDER DENYING EX PARTE
APPLICATION FOR EXPEDITED
DISCOVERY WITHOUT PREJUDICE

v.

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Case No. 1:17-cv-01056-DAD-BAM

T.G.S. TRANSPORTATION, INC.,
Defendant.

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Plaintiff Roadrunner Intermodal Services, LLC (“Plaintiff” or “Roadrunner”) filed this

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action against Defendant T.G.S. Transportation, Inc. (“Defendant”), on August 7, 2017. (Doc. 1).

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The same day, Plaintiff filed an ex parte motion seeking expedited discovery of Defendant and

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Roadrunner former employee, Jeffrey Cox’s (“Cox”), alleged wrongful solicitation of

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Roadrunner’s employees, contractors, drivers and customers in violation of a non-competition,

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non-solicitation, and confidential information agreement entered into by Plaintiff and Cox. (Doc.

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2).

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Plaintiff has not filed a proof of service in this action and Defendant has not appeared.

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While Plaintiff’s supporting declaration suggests that it served a copy of the complaint on

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Defendant, Plaintiff has not filed a return of service or an executed summons with respect to

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service of the complaint nor the instant ex parte motion. See Declaration of Michael D. Lane
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(“Lane Decl.”), (Doc. 2-1 at 2, ¶6). Plaintiff fails to address that the Court currently lacks

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personal jurisdiction over defendant.

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Until such time as Plaintiff properly serves the summons and complaint on the

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Defendant, this Court lacks jurisdiction over the Defendant and cannot consider the merits of

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Plaintiff’s ex parte motion. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc.,

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840 F.2d 685, 688 (9th Cir. 1988) (“A federal court does not have jurisdiction over a defendant

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unless the defendant has been served properly under Fed.R.Civ.P. 4”); see also Omni Capital

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Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987)

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(“Before a federal court may exercise personal jurisdiction over a defendant, the procedural

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requirement of service of summons must be satisfied”).

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Consequently, the Court denies Plaintiff’s ex parte motion without prejudice to renewal

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upon proper service of the summons and complaint on Defendant. Plaintiff is directed to serve

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the summons and complaint on Defendant and to file proofs of service indicating that it has

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properly served Defendant. Once this is done, Plaintiff may file a new request for expedited

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discovery or for other requested relief. With any requested relief, that the Court will consider

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appropriate Due Process safeguards.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 8, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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