TDX Power Services, LLC v. Rigaud et al

Filing 31

ORDER by Judge Hamilton re application for writ of attachment, and request for inspection (pjhlc2, COURT STAFF) (Filed on 2/8/2013)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 TDX POWER SERVICES LLC, 9 v. 11 For the Northern District of California United States District Court 10 Plaintiff, LOUIS RIGAUD, et al., 12 No. C 12-4419 PJH ORDER RE APPLICATION FOR WRIT OF ATTACHMENT, AND REQUEST FOR INSPECTION Defendants. _______________________________/ 13 14 The application of plaintiff TDX Power Services, LLC (“TDX”) for a writ of pre- 15 judgment attachment, or in the alternative, for inspection, came on for hearing before this 16 court on February 6, 2013. Plaintiff appeared by its counsel Mitchell Greenberg, and 17 defendant Louis Rigaud appeared by his counsel Donald McMillan. Defendant Wells Fargo 18 Bank, which was previously dismissed from the case, did not appear. Having read the 19 parties’ papers and carefully considered their arguments and the relevant legal authority, 20 the court hereby DENIES the application for writ of attachment, and GRANTS the request 21 for an inspection in part and DENIES it in part, as follows and for the reasons stated at the 22 hearing. 23 At the hearing, the parties requested an immediate referral to the court’s ADR 24 program, so that they could work towards a “business solution” of their dispute, with the 25 assistance of a mediator. The court made the referral, and the ADR Clerk filed a notice on 26 February 7, 2013 appointing a mediator. 27 28 In light of all of the factual disputes surrounding the oral modifications of the terms of the contract, the court finds that plaintiff has not established that it is more likely than not 1 that it will obtain a judgment against the defendant on the breach of contract claim. 2 Additionally, given the parties’ agreement to work towards a business solution, the court 3 DENIES the application for the writ of attachment. 4 As for the inspection, the court finds that while TDX is entitled to an inspection to 5 determine whether the turbines are in fact located at defendant’s premises, the inspection 6 previously demanded by TDX was excessive in scope and therefore unreasonable at this 7 stage of the process. The court thus GRANTS leave for a one-hour inspection (in line with 8 TDX’s prior inspections), but DENIES the request for the six-to-seven-hour inspection 9 demanded by TDX. The inspection ordered by this ruling also supercedes any inspection 11 For the Northern District of California United States District Court 10 12 requested by TDX to date pursuant to Federal Rule of Civil Procedure 34. IT IS SO ORDERED. Dated: February 8, 2013 ______________________________ PHYLLIS J. HAMILTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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