Kakogui v. American Brokers Conduit et al

Filing 33

ORDER OVERRULING 30 , 32 OBJECTION TO MAGISTRATE JUDGE LLOYD'S ORDER OF FEBRUARY 3, 2010. Signed by Judge Jeremy Fogel on 2/25/2010. (jflc2, COURT STAFF) (Filed on 2/25/2010)

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**E-Filed 2/25/2010**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JUAN CARLOS KAKOGUI, Plaintiff, v. AMERICAN BROKERS CONDUIT, et al., Defendants.

Case Number C 09-4841 JF (HRL) ORDER1 OVERRULING OBJECTION TO MAGISTRATE JUDGE LLOYD'S ORDER OF FEBRUARY 3, 2010 [re: document nos. 30, 32]

Plaintiff Juan Carlos Kakogui ("Kakogui"), proceeding pro se, filed the instant action on August 4, 2009 in the Santa Cruz Superior Court. Defendant Wells Fargo Bank dba America's Servicing Company ("Wells Fargo") removed the action on October 13, 2009. Kakogui filed the operative first amended complaint on January 14, 2010. Defendants Wells Fargo and US Bank National Association (collectively "Defendants") have filed a motion to dismiss that is set for hearing on March 26, 2010. The initial case management conference has been scheduled for the same date and time. On January 29, 2010, Kakogui filed an application for an order shortening time to hear This disposition is not designated for publication in the official reports.

C a s e No. C 09-4841 JF (HRL) O R D E R OVERRULING OBJECTION TO MAGISTRATE JUDGE LLOYD'S ORDER ( JF L C 2 )

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his motion for early discovery. Magistrate Judge Lloyd denied that motion in an order dated February 3, 2010. On February 3, 2010 and February 18, 2010, Kakogui filed correspondence directed to the Court; the Court will construe the correspondence as an objection to Judge Lloyd's ruling. Where, as here, the magistrate judge's ruling addresses a non-dispositive matter, the district judge will modify or set aside "any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Judge Lloyd's order noted that Kakogui's motion to shorten time appeared to be driven by Kakogui's perception that he needs to conduct discovery prior to the hearing on the motion to dismiss and prior to the initial case management conference. The order explained that Defendants' motion to dismiss tests the sufficiency of the allegations of the first amended complaint and does not depend on any evidence that Kakogui might obtain during the discovery process.2 Judge Lloyd denied Kakogui's motion to shorten time because Kakogui had failed to demonstrate good cause. Kakogui asserts that this ruling was unfair because he needs discovery in order to obtain evidence to support the allegations of his first amended complaint. Judge Lloyd's order addresses Kakogui's desire to take early discovery, and in particular Kakogui's erroneous perception that he needs evidence in order to oppose Defendant's motion to dismiss. Judge Lloyd's ruling was not clearly erroneous or contrary to law. Accordingly, Kakogui's objections will be overruled. ORDER The objections to Magistrate Judge Lloyd's Order of February 3, 2010 are OVERRULED.

Dated: 2/25/2010

__________________________________ JEREMY FOGEL United States District Judge

In fact, the Court ordinarily does not consider evidence in determining a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 2
C a s e No. C 09-4841 JF (HRL) O R D E R OVERRULING OBJECTION TO MAGISTRATE JUDGE LLOYD'S ORDER ( JF L C 2 )

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Copies of Order served on:

Plaintiff pro se: Juan Carlos Kakogui [e-mail], [e-mail]

Defendants: Donald John Querio [e-mail] Jason M. Julian [e-mail], [e-mail], [e-mail]

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C a s e No. C 09-4841 JF (HRL) O R D E R OVERRULING OBJECTION TO MAGISTRATE JUDGE LLOYD'S ORDER ( JF L C 2 )