Kakogui v. American Brokers Conduit et al

Filing 54

ORDER DENYING 50 Plaintiff's Motion to Compel as Premature. Signed by Magistrate Judge Howard R. Lloyd on 06/24/2010. (hrllc1, COURT STAFF) (Filed on 6/24/2010)

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** E-filed June 24, 2010 **

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 COMPEL AS PREMATURE [Re: Docket No. 50]

United States District Court

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For the Northern District of California

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

Pro se plaintiff Juan Carlos Kakogui ("Kakogui") sued defendants alleging several state and federal law claims arising out of his home mortgage. An initial case management conference took place in May but no scheduling order has been issued. (Docket No. 49.) A further case management conference is set for August 20.1 (Docket 53.) On May 28, Kakogui filed the instant motion to compel the defendants to "provide an affidavit of truth" and to answer his "qualified written request." (Docket No. 50.) Federal Rule of Civil Procedure ("FRCP") 37 permits a party to move to compel discovery with respect to a request made under the FRCP discovery rules. See Fed. R. Civ. P. 37(a)(3). Such a motion may only be made after discovery has been sought unsuccessfully. See Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th Cir. 1991) (pro se plaintiff's motion to compel production of documents dismissed as premature because he had made no request for documents pursuant to FRCP 34). Moreover, because discovery generally may not be sought before the parties have
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Defendants' motion to dismiss Kakogui's Second Amended Complaint is currently pending and scheduled for hearing on August 20 as well. (Docket Nos. 47 & 51.)

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conferred as required by Rule 26(f), a motion to compel filed before that conference is premature. See Fed. R. Civ. P. 26(d)(1); Arias v. Dyncorp, 517 F.Supp.2d 221, 230 (D.D.C. 2007) (discovery may not be demanded before a Rule 26(f) planning conference). As noted above, there is no scheduling order for this case yet. In addition, Kakogui's requests do not appear to be FRCP discovery requests: he asks for an "affidavit of truth" and for answers to a "qualified written request," not discovery requests made under the FRCP discovery rules. Accordingly, his motion to compel is DENIED as premature.2 IT IS SO ORDERED. Dated: June 24, 2010
UNITED STATES MAGISTRATE JUDGE

HOWARD R. LLOYD

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court notes that Kakogui should wait to file discovery until after the case management conference takes place on August 20 and a scheduling order has issued by Judge Fogel. 2
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For the Northern District of California

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C09-04841 JF (HRL) Notice will be electronically mailed to: Donald John Querio Jason M. Julian Juan Carlos Kakogui Juan Carlos Kakogui [e-mail] [e-mail], [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

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For the Northern District of California

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