Kakogui v. American Brokers Conduit et al

Filing 29

ORDER DENYING 28 Ex Parte Application by Magistrate Judge Howard R. Lloyd. (hrllc1, COURT STAFF) (Filed on 2/3/2010)

1 2 3 4 5 6 7 8 9 10

** E-filed February 3, 2010 **

NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JUAN CARLOS KAKOGUI, v. Plaintiff, No. C09-04841 JF (HRL) ORDER DENYING PLAINTIFF'S MOTION TO SHORTEN TIME [Re: Docket No. 28]

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For the Northern District of California

AMERICA BROKERS CONDUIT, et al., Defendants. ____________________________________/

Plaintiff Juan Carlos Kakogui sued defendants in October 2009, alleging various federal and state claims pertaining to his home mortgage. Defendants moved to dismiss his complaint, but the motion was mooted when Kakogui filed a First Amended Complaint. Defendants then moved to dismiss the First Amended Complaint. The hearing for this motion to dismiss is set for March 26, 2010, the same day as the case's initial case management conference. Plaintiff now moves for an order shortening time to hear his motion to conduct discovery prior to the time specified in Rule 26(d). Defendants did not file an opposition or statement of nonopposition to plaintiff's administrative motion within the time specified by this court's Local Rules. See N.D. Cal. Civ. R. 7-11. According to the Federal Rules of Civil Procedure, a party cannot conduct discovery until meeting and conferring pursuant to Rule 26(f), unless otherwise authorized by the Rules, stipulation of the parties, or court order.1 Fed. R. Civ. P. 26(d). Rule 26(f) provides that the parties must meet
1

Rule 26(d) contains exemptions for certain proceedings that are not relevant here.

1 2 3 4 5 6 7 8 9 10

and confer at least twenty-one days before the initial scheduling conference to prepare for initial disclosures and develop a plan for discovery. Fed. R. Civ. P. 26(f). Plaintiff asserts that he served discovery upon defendants, but that they objected to his requests on grounds that he served them too early. He argues that because the initial scheduling conference is now set for the same day as defendants' motion to dismiss, he will be "without the benefit of the issuance of a Rule 26(d) discovery order setting forth discovery guidelines" for the case in advance of the motion to dismiss. (Mot. 2.) As a result, he says, he will be "severely prejudiced" if the court does not hear his motion to conduct early discovery on shortened time. (Id. at 3.) Despite plaintiff's desire to conduct early discovery, the hearing on defendants' motion to dismiss is not based on any evidence that Kakogui might gather from discovery. Instead, the motion tests the sufficiency of his First Amended Complaint as pled. Furthermore, the window of time for the required 26(f) meet-and-confer process in preparation of the initial scheduling conference has not yet arrived. As a result, the court finds good cause lacking and, accordingly, DENIES Kakogui's motion to shorten time. IT IS SO ORDERED. Dated: February 3, 2010
UNITED STATES MAGISTRATE JUDGE

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For the Northern District of California

HOWARD R. LLOYD

2

1 2 3 4 5 6 7 8 9 10

C 09-04841 JF (HRL) Notice will be electronically mailed to: Donald John Querio Jason M. Julian Juan Carlos Kakogui [e-mail] [e-mail], [e-mail], [e-mail] [e-mail], [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For the Northern District of California

3