Rose v. Wachovia Mortgage, FSB et al

Filing 79

ORDER granting Plaintiff's 70 Ex Parte Application for Leave to take Expedited Discovery. Signed by Magistrate Judge Karen S. Crawford on 12/4/12. (cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARCELLA ROSE, an individual

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CASE NO. 3:11-cv-00240-AJB (KSC)

ORDER GRANTING PLAINTIFF'S
EX PARTE APPLICATION FOR
LEAVE TO TAKE EXPEDITED
DISCOVERY

Plaintiff,
vs.

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SEAMLESS FINANCIAL CORPORAnON,
INC., a Nevada Corporation; MICHAEL
MCDEVITT, an individual; CHAD
HAGOBIAN, an individual; JEAN-PIERRE
RADTKE, an individual; PREMIERE
CAPITAL ESCROW, INC., a California
Corporation; LUIS ANTONIO VENEGAS,
an individual; and DOES 1-100,

[Doc. No. 70.]

Defendants.

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Before the Court is plaintiff s ex parte motion, pursuant to Federal Rule of Civil Procedure

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26(f)(1), to conduct limited discovery. For the reasons outlined below, plaintiffs Ex Parte Application

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is GRANTED.

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PROCEDURAL HISTORY

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Marcella Rose is a 91-year-old woman residing in San Diego, California. The present action

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was originally filed on December 29, 2010 in state court against defendants Wachovia, Wells Fargo 1,

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1 Wells Fargo brought the motion individually and on behalfofWachovia as their predecessor
in interest. All further references will be solely to Wells Fargo.

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II-cv-00240-Al8(KSC)

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Seamless, McDevitt, and Hagobian. [Doc. No.1-I.] The Complaint contained six causes of action

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alleging violations of: (1) the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 ("'RESPA");

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(2) the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"); (3) the California

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Rosenthal Fair Debt Collection Practices Act, CaL Civ. Code §§ 1788 et seq. ("Rosenthal Act");

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(4) Unfair Competition provisions under California Business and Professions Code §§ 17200 et seq.

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("UCL"); (5) common law provisions against fraud and deceit; and (6) the Elder Abuse and Dependent

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Adult Civil Protection Act, Cal. Welfare & Institutions Code § 15610.30 (the "Elder Abuse Act"). The

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first, second, and third causes ofaction were alleged solely against Wells Fargo, whereas the remaining

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state law causes of action were alleged against all defendants.

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On February 4,2011, defendants removed this action to federal court on the basis of federal

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question jurisdiction and supplemental jurisdiction over the related state law claims. [Doc. No.1.]

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On February 11,2011, defendant Wells Fargo filed a motion to dismiss the Complaint, [Doc. No.2.],

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which was subsequently denied as moot after plaintiff filed a First Amended Complaint ("'FAC") on

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March 4, 2011. [Doc. No. 7.]2 Thereafter, on March 18, 2011, Wells Fargo moved to dismiss

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plaintiff's FAC. [Doc. No. 13.] On May 25,2011, plaintiff and Hagobian filed ajoint motion for an

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extension of time for Hagobian to respond to the FAC. [Doc. No. 23.] While Wells Fargo's motion

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to dismiss was pending, Wells Fargo and Wachovia entered into a good faith settlement with plaintiff.

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[Doc. No. 32.] The settlement was approved by the Court on March 2,2012. [Doc. No. 50.] The

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federal causes of action alleged against Wells Fargo were subsequently dismissed. [Doc. No. 56.]

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Plaintiff filed a Second Amended Complaint ("SAC") on April 2, 2012. [Doc. No. 53.] The

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SAC alleged four causes ofaction, including violations of: (1) the Elder Abuse Act; (2) common law

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provisions against fraud and deceit; (3) breach of fiduciary duty; and (4) unlawful, unfair, and

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deceptive practices under the UCL. 3 On May 1,2012, defendant Hagobian filed a Motion to Dismiss

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On March 16,2011 this case was transferred from Judge Irma E. Gonzalez. [Doc. No. 12.]

3 The SAC named Seamless, McDevitt, Hagobian, Jean-Pierre Radtke ("Radtke"), Premiere
Capital Escrow, Inc. (",Premiere"), and Luis Antonio Venegas ("Venegas") as defendants. Defendants
Radtke, Premiere, and Venegas were added as additional defendants by Plaintiff for the first time in
the SAC. A summons for the SAC was issued on April 3, 2012. [Doc. No. 54]. Defendant Hagobian
has been served and appeared. Defendant McDevitt has been served with the F AC but not the SAC,
but has yet to appear. All other added defendants have not yet been served.

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ll-cv-00240-AJB(KSq

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[Doc. No. 59] and on June 1, 2012, plaintiff filed a motion to remand. [Doc. No. 61.] On August 1,

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2012, plaintiff filed the instant motion for an order extending time to serve defendants for ninety days

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and to permit limited discovery of defendants' locations. [Doc. No. 69 & 70.] On August 7, 2012 a

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response in opposition to the plaintiffs request for expedited limited discovery was filed by the

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defendant. [Doc. No. 71.] On August 23,2012, while the plaintiffs motion for expedited limited

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defendants. [Doc. No. 72.] On September 10, 2012, the Court issued an order denying the plaintiffs

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Motion to Remand, [Doc. No. 61] and granting defendant's Motion to Dismiss the SAC [Doc. No. 59]

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with regard to the first three causes of action without leave to amend, and with leave to amend with

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respect to the fourth cause of action. Plaintiff was ordered to file an amended complaint within thirty

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(30) days of the Order, in the event the plaintiff elected to file an amended complaint with respect to

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the fourth cause of action. Defendants' answer was to be due within thirty (30) days of the filing of

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the amended complaint.

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On October 10,2012, plaintiff filed a Third Amended Complaint ("TAC"). [Doc. No. 74.]

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The Complaint contains four causes of action including violations of: (1) the Elder Abuse Act4 ; (2)

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common law provisions against fraud and deceie; (3) breach of fiduciary duty6; and (4) unlawful,

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unfair, and deceptive practices under UCL. 7

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FACTUAL BACKGROUND

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Plaintiff alleges that she is a victim offraud and elder abuse due to the fraudulent and deceitful

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financial practices ofdefendants. Plaintiff alleges that defendants conspired to fraudulently induce her

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to refinance her home and that as a result she paid $27,000 to enter into a loan that she neither

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4 This cause of action is asserted against Defendants Seamless, McDevitt, Radtke, Venegas,
and DOES 1-100.

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5 This cause of action is asserted against Defendants Seamless, McDevitt, Radtke, Venegas,
and DOES 1-100.

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6 This cause of action is asserted against Premier Capital, Seamless and DOES 1-100.
7 This cause of action is asserted against all defendants. A motion for sanctions is pending by
defendant Hagobian, but does not appear to affect the current discovery motion at issue. [Doc. No.
76.]

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\\-cv-00240-AJ8(KSC)

1 understood nor could afford. [Doc. No. 53, SAC at 4.]
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Plaintiff further alleges that defendants solicited her to refinance her home, falsified her loan

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application, misrepresented her income for the loan application, forged her signature and ultimately

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provided her with a deceptively devised financial product. [Id. at 5-6.] Plaintiff was eventually unable

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to pay the monthly loan payments and was unsuccessful at arranging further modifications to her loan.

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[Id. at 6,7.] After a foreclosure proceeding was begun against plaintiffs home, a short sale was

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arranged at the suggestion ofWachovia. [Id. at 7.] As alleged, plaintifflost her home and all of her

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savings as a result of defendant's alleged wrongdoing. [Id.]

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DISCUSSION

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Plaintiff's Ex Parte Application for Leave to Take Limited Discovery seeks an order permitting

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very limited, tailored discovery in the form of interrogatories directed to Mr. Hagobian requesting

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provision ofany and all contact information for the remaining defendants.

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Discovery is generally not permitted without a court order before the parties have conferred

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pursuant to Federal Rule of Civil Procedure 26(f), unless a party obtains a stipulation or court order

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to conduct the discovery. FED. R. CIv. P. 26(d)(I). A court order allowing the discovery may be

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appropriate when there is good cause or "where the need for the discovery, in consideration of the

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administration ofjustice, outweighs the prejudice to the responding party." Semitool, Inc. v. Tokyo

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Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. CaL 2002). "[I]n rare cases, courts have made

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exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff

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to learn the identifying facts necessary to permit service on the defendant." Columbia Ins. Co. v.

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Seescandy.com, 185 F.R.D. 573, 577 (N.D. CaL1999). Courts in the Ninth Circuit generally grant

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requests for expedited discovery when the moving party shows good cause. See also, Gillespie v.

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Civiletti, 629 F.2d 637,642 (9th Cir. 1980) (reversing the district court's dismissal of the case with

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respect to the doe defendants without permitting discovery from other named defendants). Courts also

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consider whether the requested "expedited discovery would ultimately conserve party and court

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resources and expedite the litigation." Semitool, 208 F.R.D. at 276.

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Plaintiff has reason to believe that she will be able to locate and serve at least some of the

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defendants ifshe is permitted to obtain information in the possession ofChad Hagobian. [Doc. No.70

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ll-cv-00240-Al8(KSC)

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at 2.] As indicated in Mr. Salisbury's Declaration in support of this application, plaintiff has learned

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through discussions with Mr. Hagobian's attorney that Mr. Hagobian was not only the broker ofrecord

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for defendant Seamless Financial Corporation, but also may have been its treasurer. [Doc.70-1 at 2.]

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The Declaration also states that Mr. Hagobian worked closely with defendant lean-Pierre Radtke,

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President of Seamless. [ld.] Mr. Hagobian did not respond to an informal request for information

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regarding the location ofthe defendants. [Doc. No. 70 at 2.] Plaintiffhas requested narrowly "tailored

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discovery in the form ofinterrogatories asking Mr. Habogian to provide all known contact information

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for the remaining defendants." [ld] Expedited discovery is permissible when it is "narrowly tailored"

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defendant may not have had ample time to prepare}. Semitool, 208 F.R.D. at 277 (fmding narrowly

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tailored expedited discovery permissible when it substantially moves the case forward). Plaintiffhas

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demonstrated that the narrow discovery requested will likely contribute to moving this case forward;

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further, the service of this discovery does not prejudice defendant Chad Hagobian.

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CONCLUSION

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Based on the foregoing, the Court finds good cause to grant plaintiff's application for an order

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permitting limited expedited discovery pursuant to Federal Rule ofCivil Procedure 26(d}( 1} to obtain

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information from Mr. Chad Hagobian concerning the location of the other named defendants.

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Therefore, IT IS HEREBY ORDERED THAT plaintiff's Ex Parte Application for Leave to Take

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Expedited Discovery is GRANTED.

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IT IS SO ORDERED.

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Date: December --1--,2012

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