Cumming et al v. Big Picture Loans, LLC et al

Filing 64

ORDER RE: JURISDICTIONAL DISCOVERY. Re: Dkt. No. 61 . Signed by Judge Nathanael Cousins on 3/13/2019. (lmh, COURT STAFF) (Filed on 3/13/2019)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10
11

CHRISTINE CUMMING, et al.,

United States District Court
Northern District of California

Plaintiffs,
12
v.
13
14

Case No.18-cv-03476-EJD (NC)
ORDER RE: JURISDICTIONAL
DISCOVERY
Re: Dkt. No. 61

BIG PICTURE LOANS, LLC, et al.,
Defendants.

15
16
17

On November 11, 2018, Judge Edward J. Davila granted Plaintiffs’ request for

18

jurisdictional discovery and referred the details of that discovery to the undersigned. See

19

Dkt. No. 53. The Court conducted a hearing regarding the parties’ discovery dispute on

20

March 13, 2019.

21

The present dispute concerns the scope of jurisdictional discovery directed at

22

defendants Big Picture Loans, LLC and Ascension Technologies, Inc.’s assertion of tribal

23

immunity. Here, the parameters of jurisdictional discovery is set by the five-factor test for

24

assessing whether an entity is an arm of a tribe: “(1) the method of creation of the

25

economic entities; (2) their purpose; (3) their structure, ownership, and management,

26

including the amount of control the tribe has over the entities; (4) the tribe’s intent with

27

respect to the sharing of its immunity; and (5) the financial relationship between the tribe

28

and the entities.” White v. Univ. of California, 765 F.3d 1010, 1025 (9th Cir. 2014)

1

(quoting Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d

2

1173, 1181 (10th Cir. 2010)).
Plaintiffs seek production of all documents and deposition transcripts produced in

3
4

Williams v. Big Picture Loans, LLC, No. 17-cv-0461 (E.D. Va.), a case with nearly

5

identical facts. See Dkt. No. 61 at 5. Big Picture and Ascension argue that wholesale

6

production of the documents produced in Williams is overbroad and unnecessary. See id.

7

at 7–8.1
The Court agrees with Big Picture and Ascension. In Williams, the plaintiffs sued

8
9

five defendants not named in this suit. See Williams v. Big Picture Loans, LLC, 329 F.
Supp. 3d 248, 266 (E.D. Va. 2018). Although those five defendants were ultimately

11

United States District Court
Northern District of California

10

dismissed, jurisdictional discovery in Williams occurred before their dismissal. Id. As a

12

result, there is a possibility that the Williams discovery contains material not relevant to

13

this case. Likewise, the Williams district court did not rely on every document or

14

deposition transcript produced in that case. Thus, Plaintiffs’ request for automatic

15

reproduction of Williams discovery is overly broad and therefore DENIED.
Accordingly, the Court rules as follows:

16

• Plaintiffs’ request for automatic reproduction of Williams discovery is

17

DENIED;

18

• Parties must meet and confer to draft a proposed protective order, which

19

must be filed within 7 days of this order;

20

• Martorello must produce all discovery he produced in Williams within 30

21

days of this order;

22

• Big Picture and Ascension must serve their objections and responses to

23
24

Plaintiffs’ September 12, 2018, requests for production (see Dkt. No. 38-4,

25

Ex. C.) within 14 days of this order;

26
27
28

1

Co-defendant Matt Martorello takes no position with respect to Plaintiffs’ discovery
request to Big Picture and Ascension. See Dkt. No. 61 at 9. At the March 13, 2019,
hearing, Martorello represented that he will produce his discovery in Williams.
2

1
2
3

• Big Picture and Ascension must produce all responsive, non-privileged
documents within 30 days of this order;
• Plaintiffs’ are limited to 3 depositions, including depositions of Michelle

4

Hazen and James Williams, Jr., without further leave of the Court;

5

• Plaintiffs may move for further jurisdictional discovery in line with the

6
7

White five-factor test;
• By stipulation (see Dkt. No. 61 at 3 n.4), Big Picture and Ascension must

8

produce unredacted briefs, exhibits, and documents cited in Williams v. Big

9

Picture Loans, LLC, 329 F. Supp. 3d 248, 266 (E.D. Va. 2018);
• All jurisdictional discovery must be completed by June 7, 2019; and

11

United States District Court
Northern District of California

10

• Parties must file a joint discovery status report by June 12, 2019, with a

12

telephonic discovery status conference set for June 19, 2019, at 10:00 a.m.

13

Counsel must meet and confer in an effort to resolve any discovery dispute. The parties

14

must comply with the undersigned’s standing order in presenting discovery disputes by

15

joint letter brief.

16

IT IS SO ORDERED.

17
18
19

Dated: March 13, 2019

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
3